Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Application for extension of time - Application for leave to appeal against sentence - Appellant convicted after trial of one count of assault causing bodily harm and one count of grievous bodily harm and sentenced to total effective sentence of 6 years' imprisonment - Whether sentence infringed totality principle - Turns on own facts

Roffey v The State of Western Australia [2007] WASCA 246

Wilson v The State of Western Australia [2010] WASCA 82

2 MAZZA JA: This is an application for an extension of time to appeal and, if granted, for leave to appeal against sentence.

3 The appeal was filed approximately seven weeks out of time. The delay has been explained by the appellant in an affidavit sworn 25 June 2014. Although the explanation is not completely satisfactory, I would grant the extension of time.

4 The appellant was charged in the District Court as follows:

(1) On 7 October 2012 at Wagin Ray Bassin Hansen unlawfully assaulted Peter Steven Hill and thereby did him bodily harm

And that children were present, namely Teanna Madison Rose Lee-Broughton and Heath Phillip Lee-Hill: s 317(1)(a) Criminal Code.

(2) On the same date and at the same place as in count one Ray Bassin Hansen unlawfully assaulted Miranda Jane Lee and thereby did her bodily harm

And that Ray Bassin Hansen was in a family and domestic relationship with Miranda Jane Lee

And that children were present, namely Teanna Madison Rose Lee-Broughton and Heath Philip Lee-Hill: s 317(1)(a) Criminal Code.

(3) On 26 October 2012 at Wagin Ray Bassin Hansen unlawfully did grievous bodily harm to Miranda Jane Lee

And that Ray Bassin Hansen was in a family and domestic relationship with Miranda Jane Lee: s 297(3) Criminal Code.

5 On 26 March 2014, the appellant was convicted after a trial before Keen DCJ and a jury of counts 1 and 3. He was acquitted of count 2. On 23 April 2014, he was sentenced to 1 year 6 months' imprisonment on count 1 and 4 years 6 months' imprisonment on count 2. The learned sentencing judge ordered that the sentences be served cumulatively. Thus, the total effective sentence that was imposed was 6 years' imprisonment. The appellant was made eligible for parole.

6 None of the individual sentences are challenged. The sole ground of appeal is that the total effective sentence infringed the first limb of the totality principle. For the reasons which follow, the ground has no reasonable prospect of succeeding. Accordingly, leave to appeal must be

refused, with the consequence that the appeal is taken to be dismissed. My reasons for these conclusions are as follows.

7 The victim in count 3, Miranda Jane Lee, was in a family and domestic relationship with the appellant. She had previously been in a relationship with Peter Steven Hill, the victim in count 1. Ms Lee and Mr Hill had a child who was in Ms Lee's care. As at 7 October 2012, Ms Lee was pregnant with the appellant's child.

8 On the evening of 7 October 2012, Ms Lee, Mr Hill and their two children were walking along Upland Street, Wagin. The appellant followed them in his vehicle, driving in what his Honour described as 'an intimidatory fashion'. Eventually, he stopped and then got out of his vehicle, carrying a wooden implement of some sort which was perhaps 2 ft long and an inch and a half wide. Then, in the presence of the two children, the appellant struck Mr Hill with the stick, possibly seven or eight times, to the ribs, kidney and elbow (count 1). His Honour was satisfied that the appellant did so out of anger and jealousy. At trial, the appellant alleged that Mr Hill was carrying a knife and that he struck him in self-defence. Consistently with the jury's verdict, his Honour found that the appellant did not act in self-defence. His Honour further found that Mr Hill was not armed with a knife.

9 Mr Hill suffered a large lump-type bruise to the left elbow, a fracture to the ulna bone close to the elbow, bruising to the back and loin and a laceration and bleeding in and around the kidney. It appears that he has made a full recovery from these injuries.

10 A short time after the incident on 7 October 2012, Ms Lee miscarried. The State expressly disavowed any connection between the incident on 7 October 2012 and the miscarriage.

11 After the episode on 7 October 2012, Ms Lee went to stay with a friend, Ms Hayward, who also lived in Wagin. The appellant and Ms Lee remained in contact and saw each other from time to time.

12 On 26 October 2012, Ms Lee and the appellant were drinking together at a reserve. The appellant and Ms Lee returned to Ms Hayward's house and went into Ms Lee's bedroom. The appellant asked Ms Lee for sex, but she refused. As a result, the appellant became angry and punched her seven to ten times to her face with a closed fist. His Honour described what occurred as 'a savage beating' and as 'random and senseless violence'. Ms Lee was taken to the local hospital, but had to be airlifted to Royal Perth Hospital, where she underwent surgery to repair a fractured eye socket. The surgery involved reconstruction of the bones using titanium mesh. Ms Lee's victim impact statement speaks of the terror she experienced during the assault and the adverse ongoing psychological effects of it.

13 As he had in count 1, the appellant alleged that the victim was armed with a knife and that he acted in self-defence. These claims were rejected by the learned sentencing judge.

14 At the time he was sentenced, the appellant was 54 years of age. He had a good upbringing. He completed his education to year 10 and has been in regular employment since. He is an indigenous man who was said to have standing and respect amongst indigenous people in the Bunbury area.

15 The appellant has seven children, four of whom are adults. For a number of years, the appellant was the main caregiver to his three younger children.

16 The appellant has an hereditary heart condition and hypertension. There is nothing to indicate that these would make imprisonment more onerous than usual.

17 The appellant has a reasonably long criminal history of relatively minor, mostly traffic, offences commencing in 1979 and extending to 2012. Notably, in 1985 the appellant was convicted of aggravated assault upon a female and fined $100. In December 1996, he was convicted of common assault and fined $500. In 1999, he was convicted of violent behaviour on two occasions and once again fined. There have been no convictions for violence since then.

18 The pre-sentence report was unfavourable. He denied criminal responsibility for the offences and demonstrated no victim empathy or remorse for what he had done. The report noted that the appellant had poor emotional regulation, lack of insight, impulsivity, negative attitude, limited problem solving skills, poor conflict resolution skills and a lack of consequential thinking. He was assessed as being at moderate risk of reoffending.

19 It is unnecessary to say much more about his Honour's sentencing remarks. I have already referred to his findings as to the circumstances of the offending. His Honour said that count 1 was a serious example of its type. He characterised it as being 'in the mid range of offences of this kind'. As to count 3, he placed it 'in the mid to upper range of seriousness'. His Honour noted that there was little in the way of mitigation. He observed that the offences, particularly count 3, were prevalent. He emphasised the need for general deterrence.

20 To accommodate the totality principle, he reduced the individual sentence he would have imposed on each offence by 6 months.

21 The general sentencing principles applicable to this appeal are well known and do not need to be repeated. They were explained in Wilson v The State of Western Australia [2010] WASCA 82 [2].

22 The totality principle comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb is that the court should not impose a crushing sentence. The word 'crushing' in this context connotes the destruction of any reasonable expectation of a useful life after release: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26] (McLure JA). This appeal only concerns an alleged breach of the first limb of the totality principle.

23 The maximum penalty for count 1 is 7 years' imprisonment and for count 3, 14 years' imprisonment.

24 The offences were each serious examples of their type. Each was born out of anger and was brutal, sustained and completely without justification. On both occasions, the victim was defenceless. The injuries sustained by each victim were significant. In count 1, the appellant used a weapon clearly capable, as it did, of causing serious harm. In count 3, the appellant, as a result of his sexual advances being rebuffed, beat his domestic partner who was in bed and therefore vulnerable, causing major facial injury and ongoing psychological trauma. His Honour was correct to emphasise the need for general deterrence in both offences. In terms of mitigation, there was very little that could be said in the appellant's favour. In his oral submissions before this court, the appellant expressed remorse for what he had done, but that expression of remorse was inconsistent with the material before the learned sentencing judge and is contrary to his Honour's finding.

25 In his written submissions, the appellant referred to a number of sentencing decisions of this court, its predecessor and single judges. The cases he cited are set out in the schedule attached to these reasons and concern offences of aggravated assault occasioning bodily harm, aggravated grievous bodily harm and grievous bodily harm with intent to maim, disfigure, disable or do grievous bodily harm. The last mentioned offence carries a maximum penalty of 20 years' imprisonment.

26 There is no tariff for offences of the type committed by the appellant or for grievous bodily harm with intent. This reflects the variable circumstances in which such offences can be committed and of the offenders who commit them. Allowing for the variation in the circumstances of the cases cited by the appellant and for the different maximum penalty for grievous bodily harm with intent, the cases do not indicate that the total effective sentence imposed in this case was outside the range of a sound sentencing discretion.

27 The allegation that the total effective sentence of 6 years' imprisonment imposed in this case breached the first limb of the totality principle has no reasonable prospect of succeeding. In my view, it was a proper reflection of the appellant's overall criminality having regard to all of the circumstances of the case. I would refuse leave to appeal which, in the result, leads to the consequence that the appeal must be dismissed.

1. An extension of time within which to appeal is granted.
2. Leave to appeal is refused.
3. The appeal is dismissed.

Schedule Aggravated assault causing bodily harm

Kjellgren v Cameron [2012] WASC 80

Leeder v Moss [2011] WASC 196

Messiha v Plaucs [2012] WASC 63

Morgan v Kazandzis [2010] WASC 377

The State of Western Australia v Jeffries [2007] WASCA 255

THG v The State of Western Australia [2012] WASCA 139

Abfahr v The State of Western Australia [2013] WASCA 87

Bolton v The State of Western Australia [2012] WASCA 2

McCormack v The Queen [2000] WASCA 139

Minhaj v The Queen [2000] WASCA 52

Petrelis v The State of Western Australia [2012] WASCA 235

Smith v The Queen [2003] WASCA 57

Stephens v The State of Western Australia [2005] WASCA 98

The State of Western Australia v Naumoski [2013] WASCA 215

Vilai v The Queen [1999] WASCA 275

Wells v The State of Western Australia [2013] WASCA 124

Zhang v The State of Western Australia [2013] WASCA 121