Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Unlawfully doing grievous bodily harm - Manifest excess - Express error - Reference to a conviction for an offence committed as a juvenile

Young Offenders Act 1994 (WA), s 189

Mercanti v The State of Western Australia [2009] WASCA 109

Trompler v The State of Western Australia [2008] WASCA 265

1 MAZZA JA: This is an application for leave to appeal against sentence.

2 The appellant was charged on indictment with unlawfully doing grievous bodily harm to Michael Liddiard, contrary to s 297 of the Criminal Code (WA). The maximum penalty for this offence is 10 years' imprisonment. The appellant pleaded guilty on the fast-track system. On 23 May 2013, he was sentenced in the District Court to 14 months' imprisonment with eligibility for parole.

3 The appellant's proposed grounds of appeal allege that the sentence is manifestly excessive (ground 1) and that the learned sentencing judge erred in taking into account a conviction for an offence the appellant committed when he was a juvenile (ground 2).

4 Leave to appeal cannot be granted unless a ground has a reasonable prospect of succeeding. In an appeal against sentence, it must be reasonably arguable that any error was material, that is, it is one that affects or is capable of affecting the sentence actually imposed by the sentencing judge.

5 For the reasons that follow, neither proposed ground has a reasonable prospect of succeeding. Accordingly, the appeal must be taken to be dismissed: Criminal Appeals Act 2004 (WA) s 27(1), s 27(2) and s 27(3).

6 On 10 December 2012, the appellant and four of his associates were drinking heavily. At about 6.30 pm, they went to a liquor store in Southern River to purchase more alcohol. The appellant remained outside the store while the others went inside. Due to their intoxication they were refused service. The group angrily left the store. About five minutes later, the appellant entered the store. He attempted to purchase alcohol, but he too was refused service. The appellant slapped a bottle of liquor off the counter, verbally abused the staff and left the store.

7 A short time later, he re-entered the premises. He yelled at the staff and demanded to see the manager. Mr Liddiard, who was the manager, approached the appellant. The appellant walked up to him and, with great force, punched him once with a clenched fist to the jaw. The impact of the punch detached Mr Liddiard's jaw from his skull. The appellant left the store and got into a vehicle which then drove away.

8 Mr Liddiard was hospitalised for three days. He underwent surgery to repair and realign his jaw. That procedure involved the insertion of plates and screws. Fortunately, he has not sustained any significant permanent disability.

9 On 20 December 2012, the appellant was interviewed by police. He said that Mr Liddiard had refused to serve him once before. He admitted punching Mr Liddiard whom he said had given him a 'smart ass look'.

10 The appellant's counsel explained that a few days before the incident the appellant had separated (temporarily as it turned out) from his wife and that at the time of the offence he was upset and intoxicated. Counsel said that the appellant was sorry for what he had done and had since stopped drinking alcohol completely. Counsel's submissions were consistent with what the appellant had told the writer of the pre-sentence report, to whom he said that he was, at the time, 'feeling angry and wanted to write myself off'.

11 The appellant was 34 years of age at the time of sentencing. The reports before his Honour revealed that the appellant had endured a dysfunctional and unstable childhood. He has been a regular user of cannabis and was prone to bouts of binge drinking as a negative coping strategy. The appellant and his wife have three young children. Another child died tragically of a cot death approximately 4 years ago. According to Jane Sampson, a clinical psychologist, the appellant 'lacks the ability to think beyond the present and to consider the consequences of his actions; he is prone to undertake risky and reckless actions'. The appellant was assessed as having a low to moderate likelihood of offending in a similar way without treatment. He was, at the time of his sentencing, gainfully employed and has a good work record.

12 The appellant has a lengthy criminal history. He was convicted in the Brisbane District Court on 7 November 1997 with a series of offences, most notably assault occasioning bodily harm in company, for which he was sentenced to 3 1/2 years' imprisonment. The criminal record shows that this offence was committed on 7 December 1995, when the appellant was 16 years of age. Since then, he has been convicted of other offences involving violence, being common assault on 28 October 1998 and assaulting a police officer in 2006. In addition to these offences, the appellant has, both in Queensland and Western Australia, been convicted of numerous traffic and traffic-related offences.

13 The learned sentencing judge observed that the victim in this case was vulnerable and completely unprepared for what occurred. He accepted that the appellant had pleaded guilty at the earliest opportunity and reduced the sentence by 25%, the maximum allowed by s 9AA of the Sentencing Act 1995 (WA). He also accepted that the appellant was remorseful for what he had done. His Honour had regard to the appellant's dysfunctional upbringing, his psychological state and that he had, since the offence, ceased drinking alcohol.

14 He noted that the appellant had a history of violent offending. In doing so, he referred to the conviction for assault occasioning bodily harm in company, which the appellant committed as a juvenile, but he also referred to the other convictions for violence I mentioned earlier. His Honour said that the appellant's record did not 'give much scope ... for mercy'.

15 Towards the conclusion of his sentencing remarks, his Honour referred to the need for general and personal deterrence. He then said:

Although your previous offence was 1997 which is now nearly - which is 15 years ago, obviously personal deterrence is an important element and general deterrence is an important element (ts 15).

16 After acknowledging the State's position that the offending was towards the lower end of the range, his Honour imposed a sentence of 14 months' imprisonment. His Honour declined to suspend that term.

17 I will deal first with ground 2, which alleges an express error.

18 The appellant alleges that his Honour's reference to the conviction in 1997 for an offence which he committed as a juvenile influenced his Honour's conclusion that personal deterrence was an important element in the sentencing. The appellant says that in doing so his Honour infringed s 189 of the Young Offenders Act 1994 (WA), which provides, in general terms, that if a young person is convicted of an offence and a period of 2 years has expired since the discharge of any sentence, the conviction is not to be regarded as a conviction for any purpose except as provided in that section.

19 The point raised by the appellant is moot. Regardless of whether his Honour infringed s 189 of the Young Offenders Act, the appellant has committed, as an adult, other offences of violence to which I have already referred. His record, generally, shows an inability or unwillingness to comply with the law. Thus, even if the 1997 conviction is ignored, his Honour's statement that the appellant needs to be personally deterred from offending is justified and not erroneous. If his Honour's reference to the 1997 conviction was erroneous (about which I make no comment), it was immaterial to the sentence that was imposed.

20 Ground 2 has no reasonable prospect of succeeding.

21 I now turn to ground 1. In order for this ground to succeed, the appellant must demonstrate that the sentence that was imposed upon him was, in all of the circumstances, plainly unjust or unreasonable.

22 When determining whether a sentence is manifestly excessive, the court must have regard to the maximum sentence for the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of that sort, the standards of sentences customarily imposed in respect of the offence and the personal circumstances of the offender.

23 As I observed earlier, the maximum penalty for an offence of grievous bodily harm is 10 years' imprisonment.

24 The learned sentencing judge accepted that the offence was at the lower end of the range of offences of grievous bodily harm. That said, the injury that was inflicted upon the victim was serious and required hospitalisation and surgery. Although it was inflicted by one punch, clearly the punch was one of considerable force to have resulted in Mr Liddiard's jaw being detached from his skull. From Mr Liddiard's point of view, the punch was entirely unexpected. The assault was completely unprovoked. In effect, the appellant took his anger out on an innocent victim. It was truly a senseless act of unnecessary violence. Shop managers who have to sometimes deal with customers' complaints need to be protected from physical confrontation and assault. His Honour was right to emphasise general deterrence. So too was his Honour justified in giving weight to personal deterrence.

25 The range of sentences customarily imposed for grievous bodily harm is between 8 months' imprisonment and 5 years and 4 months' imprisonment: see Trompler v The State of Western Australia [2008] WASCA 265 [38]; Mercanti v The State of Western Australia [2009] WASCA 109 [34]. Self-evidently, the sentence imposed by the learned sentencing judge is within this range. Of course, this does not automatically lead to the conclusion that the appeal must be dismissed. Every case must be judged according to its individual circumstances. However, it is relevant that the sentence imposed in this case was broadly consistent with the range of sentences customarily imposed and was towards the lower end of that scale.

26 The personal circumstances of the appellant were, at best, mixed, and could provide little by way of mitigation.

27 In my opinion, having regard to all of the circumstances of the case, it cannot be said that the sentence imposed by his Honour was plainly unjust or unreasonable. It was, in my view, a proper and appropriate exercise of his Honour's sentencing discretion. It is not reasonably arguable that the sentence imposed upon the appellant was manifestly excessive.

28 Neither of the proposed grounds of appeal has a reasonable prospect of succeeding. Accordingly, leave to appeal must be refused and the appeal dismissed.

1. Leave to appeal is refused.
2. The appeal is dismissed.