Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Leave to appeal against sentence - Whether manifestly excessive - Turns on own facts

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

McCormack v The Queen [2000] WASCA 139

McMaster v The Queen [2004] WASCA 52

Minhaj v The Queen [2000] WASCA 52

R v Chan (1989) 38 A Crim R 337

Smith v The Queen [2003] WASCA 57

Grimwood v The Queen [2002] WASCA 135

R v King [2000] WASCA 130

Martin v The Queen, unreported; FCt SCt of WA; Library No 940417; 15 August 1994

1 MALCOLM CJ: In my opinion, this application for leave to appeal against sentence should be granted, but the appeal dismissed. I have reached that conclusion for the reasons to be published by McLure JA. There is nothing I wish to add.

2 ROBERTS-SMITH JA: I have read the draft reasons prepared by McLure JA. I agree with those reasons and have nothing to add.

3 MCLURE JA: The applicant was originally charged on 20 February 2004 in the Court of Petty Sessions with one count of unlawfully causing grievous bodily harm contrary to s 297 of the Criminal Code (WA). The offence carried a maximum penalty of 10 years' imprisonment. The applicant indicated an intention to plead guilty pursuant to the provisions of the "fast-track" system. Subsequently, however, the applicant was indicted on one count of causing grievous bodily harm with intent to maim, disfigure, disable or cause grievous bodily harm, contrary to s 294 of the Criminal Code. That was the charge that went to trial. The applicant was found guilty. The offence carries a maximum of 20 years' imprisonment. The applicant was sentenced to 6 years' imprisonment and declared eligible for parole. The applicant applies for leave to appeal the sentence.

4 The facts on which the applicant was sentenced are as follows. On 13 February 2004 he attended the Burrendah Tavern in Willetton with friends. Matthew John Carruthers (complainant) was at the tavern with his own friends. After an incident in the tavern involving the complainant and one of the applicant's friends, the applicant became involved in an affray involving a number of people from both the applicant's group of friends and the complainant's group of friends. A friend of the applicant and others were excluded from the tavern.

5 The complainant's group left the tavern by another door so as to avoid a confrontation. Some of the applicant's friends (but not the applicant) were eager to incite a further confrontation outside the tavern. The applicant left the tavern and got into his Nissan Patrol four-wheel drive. Two other people were in the vehicle. The complainant was on foot running along Pinetree Gulley Road. The applicant pursued the complainant in his vehicle.

6 The complainant ran on to the grassed verge between Pinetree Gulley Road and Willetton Senior High School. The applicant pursued the complainant onto the grassed area, taunting the complainant by coming up

close behind him and stopping before hitting him. The applicant admitted "teasing" him in this fashion.

7 The applicant followed the complainant from the grassed area to the entrance of the carpark of the Willetton Senior High School. As the complainant ran on to the bitumen of the carpark, he slipped and fell. He fell under the applicant's vehicle and became wedged underneath it. The applicant knew the complainant was under his car. With that knowledge, the applicant deliberately drove the car forward for a distance in the order of 30 metres. The applicant acted in this way knowing it was likely to cause grievous bodily harm to the complainant. As a result of the applicant's conduct, the complainant suffered permanent physical and emotional injuries.

8 The sole ground of appeal is that the sentence is manifestly excessive. The particulars to that ground claim the learned sentencing Judge failed to give sufficient weight to the applicant's co-operation with authorities, his plea of guilty to the original charge, his age, antecedents, contrition, remorse and demonstrated rehabilitation.

9 The role of this Court is limited. It is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing Judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. However, it is entitled to intervene if a material error of fact or law is discerned in the sentencing Judge's reasoning or if the sentence is manifestly excessive (from which error may be inferred): Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 324 - 325. The applicant does not rely on any express error made by the sentencing Judge.

10 The offence of causing grievous bodily harm with intent is serious, as demonstrated by the maximum penalty of 20 years' imprisonment. The circumstances of the offence are also serious. This is illustrated by the nature and extent of the actual violence used. It involved the deliberate use of a large four-wheel drive vehicle in a way that was likely to cause grievous bodily harm. The applicant left the scene without offering or providing any assistance to the complainant. The applicant's conduct has had a significant impact on the complainant and his family, as outlined in the victim impact statements before the sentencing Judge.

11 I turn now to the matters relied on by the applicant as demonstrating that the sentence was manifestly excessive, starting with his age and antecedents. It appears the applicant was 24 at the time of the offence and, as described by the Judge, had a record of "minor convictions".

12 As to co-operation, the applicant relies on arrangements made at the time of his arrest for the return of the tyres belonging to the vehicle and admissions made before and at trial that significantly narrowed issues to be dealt with at trial.

13 The Judge's remarks give a clearer insight into the claim of co-operation with police. The sentencing Judge observed:

"Having maimed the complainant for life you left ... the scene and drove off with your lights off to avoid detection. You then entered into a series of actions designed to deflect attention from yourself. You changed the tyres on the car and darkened the windows; you solicited a false alibi, even offering to pay for it; you drew others into your web of deceit.

When the police caught up with you, as it was inevitable as they would, a week had passed. You lied to the police throughout your video record of interview and even at the end of it everyone, including me, was left wondering where the truth lay as little by little you revealed your lies."

14 The applicant's co-operation with police was of little significance in the overall context.

15 The applicant contends his admissions demonstrated a "willingness to facilitate the course of justice". That is a matter referred to by the High Court in Cameron v The Queen (2002) 209 CLR 339 at [11] - [13] in the context of explaining why a plea of guilty is ordinarily a matter to be taken into account in mitigation. The plea of guilty is said to reflect, subjectively, remorse, acceptance of responsibility and a willingness to facilitate the course of justice. Thus, subjective purpose is relevant. If the only purpose of making admissions is to secure a forensic advantage or to avoid a forensic disadvantage, it is of little moment that the effect of the admissions is to facilitate the course of justice. However, for the purposes of this application I will assume in the applicant's favour that the conduct demonstrated his willingness to facilitate the course of justice.

16 The applicant also relies on his plea of guilty to the original charge of causing grievous bodily harm. This conduct is linked with the weight to be given to his admissions generally, including his admission at the start of the trial to unlawfully causing grievous bodily harm.

17 Finally, the applicant relies on his rehabilitation which he says is demonstrated by the fact that during the period in custody following his arrest he engaged in psychological counselling at his own instigation and expense. There is nothing in the psychologist's report to suggest the applicant has any meaningful appreciation or insight into the seriousness of his conduct or the objective inadequacy of his explanation for it. In that regard, the psychologist's report states the applicant sees that the offence was perhaps motivated by "being hypervigilent [sic] to perceived bullying towards others" and him being "overly generous and nurturing of others" as a "means by which he attempts to gain a sense of acceptance" coupled with a need to take risks for excitement. Further, the psychologist's report makes no reference to the need for anger management, a problem that had been identified prior to the offence.

18 In determining whether a sentence is manifestly excessive it is proper to have regard to the standards of sentencing customarily observed with respect to the crime (R v Chan (1989) 38 A Crim R 337 at 342). The circumstances of offences of this nature vary considerably. The following cases give some indication of the range of sentences imposed. In Smith v The Queen [2003] WASCA 57 the defendant was convicted after trial of unlawfully doing grievous bodily harm with intent contrary to s 294 of the Criminal Code. The defendant had stabbed the complainant in the leg and neck with a knife and left him to die. On a Crown appeal against sentence, the penalty was increased from 6 years to 8 years, with a starting point of 11 years reduced to 9 years for mitigating factors, in particular the defendant's youth and prior good record, and further reduced to 8 years because it was a Crown appeal.

19 In Minhaj v The Queen [2000] WASCA 52 the defendant was convicted after trial of unlawfully doing grievous bodily harm with intent contrary to s 294 of the Code. He deliberately set his wife alight after throwing mineral turpentine over her. The offence was unplanned and the defendant rendered assistance immediately after he had acted. The defendant was sentenced to 12 years' imprisonment which was upheld on appeal.

20 In McMaster v The Queen [2004] WASCA 52 the defendant was convicted after trial of two counts of unlawfully doing grievous bodily harm with intent contrary to s 294 of the Code. After an altercation in a nightclub, the defendant fired a gun five times at two complainants who were a short distance away. Two shots struck the complainants. The defendant was sentenced to 7 years' imprisonment on each count to be served partially cumulatively, making a total effective sentence of 9 years.

21 In McCormack v The Queen [2000] WASCA 139 the defendant was convicted after trial of unlawfully doing grievous bodily harm with intent as a result of stabbing his wife in the back and neck. The defendant, who had good antecedents, was sentenced to 8 years' imprisonment.

22 All of these cases involve sentences of imprisonment imposed prior to the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("Act") which requires the Court to impose a term that is two-thirds of the term it would have imposed prior to the commencement of that Act. The applicant was sentenced after the commencement of the Act. Accordingly, under the prior sentencing regime he would have received a sentence of 9 years which would reflect a discount for relevant mitigatory factors. The conversion is necessary for the purposes of comparing the applicant's sentence with the standards of sentencing customarily observed in other relevant cases.

23 In the end, each case must depend on its own facts and circumstances. The circumstances of the offence in this case are very serious. The applicant intentionally used his vehicle as an instrument to cause fear and then grievous bodily harm. The applicant's subsequent conduct in engaging in, and drawing others into, a web of deceit to avoid responsibility for the crime and his reported explanation for his conduct counterbalance the claims of remorse and demonstrated rehabilitation.

24 I am satisfied that the sentence imposed on the applicant is within, albeit at the high end, of the range of sentencing discretion. Accordingly, the sentence cannot be described as manifestly excessive. I would grant leave to appeal against sentence but dismiss the appeal.

• Whether Sentence Manifestly Excessive