THE STATE OF WESTERN AUSTRALIA -v- CHUNGARAI [2021] WASCA 147 (18 August 2021)

(2) Count 2 (threat to kill): 12 months' imprisonment, concurrent.

(3) Count 3 (aggravated assault occasioning bodily harm): 2 years' imprisonment.

(4) Count 4 (aggravated unlawful wounding): 18 months' imprisonment, cumulative on count 3.

4 Thus, the total effective sentence was 3 years and 6 months' immediate imprisonment. The respondent was made eligible for parole. The sentence was backdated to commence on 27 December 2019, with the result that the respondent's earliest eligibility date for parole is 27 September 2021.

5 The appellant (the State) appeals against these sentences, contending that the individual sentences for counts 1 and 3 are manifestly inadequate and that the total effective sentence of 3 years 6 months' imprisonment infringes the first limb of the totality principle.

6 For the reasons that follow, we would uphold the appeal and resentence the respondent to a total effective sentence of 6 years' imprisonment as detailed in [74] below.

7 The respondent denied various aspects of the facts as stated by the prosecutor.[1] The judge sentenced the respondent on the basis of the facts that were not in dispute.[2]

8 The facts, as so stated by the judge, can be summarised as follows.

9 The respondent was aged 38 at the time of the offending and the victim was aged 36. They had been in a domestic relationship since 2013 and had two daughters, aged 5 years and 1 year at the time of the offences.

10 The offences occurred over the course of five to six hours in the early hours of 28 December 2019. At that time, the offender was subject to protective bail conditions prohibiting him from contacting the victim. However, as at 28 December 2019, the respondent and the victim were living together with their daughters.

11 On the evening in question, the respondent consumed a substantial volume of alcohol, estimated at a carton of beer and two bottles of wine. The respondent was in a very intoxicated state.

12 The victim had also been consuming alcohol, although not to anywhere near the same extent.

13 In the early hours of 28 December 2019, the respondent and the victim became involved in a two‑way argument in which each was accusing the other of looking for, or sleeping with, other people. The respondent told the victim that she was trying to look nice for another man. The respondent took out a razor and started shaving her hair, telling her that he was going to make her look 'rubbish'. The respondent shaved off most of her hair, causing numerous lacerations on her scalp. That constituted the start of the protracted aggravated assault occasioning bodily harm the subject of count 3, which continued over the course of five to six hours.

14 The victim's screams for help awoke the two daughters. The victim made up a bed at the back of the house, outside, where she and the children lay down. While the victim was breastfeeding the younger child, and while the other child was sleeping, the respondent came outside and started hitting and punching the victim, punching her twice to the face while she breastfed. This conduct was also part of count 3.

15 The respondent demanded that she bring their daughters inside. Being scared, and to avoid being hit further, she complied.

16 Sometime later, the pair resumed arguing. The respondent told the victim that if the police came to the house, he would get her before they got in. The respondent smashed an empty bottle of bourbon and, while holding the broken bottle in his hand, threatened to kill the victim (count 2). The victim was in fear that the respondent would stab her with the bottle.

17 The respondent threw the bottle at the wall, smashing it. Glass chips landed on the victim and the 1‑year‑old child.

18 The victim repeatedly asked the respondent to settle down so that everyone could sleep. For a period, the respondent went to sleep. The 5‑year‑old daughter remained awake.

19 Subsequently, the respondent smashed a wooden photo frame and used the sharp part of the wood to stab the victim to her right leg and to her back. The victim suffered two large cuts in those areas. That wounding is the subject of count 4.

20 The respondent then pushed the victim, who was bleeding heavily, into a wall and punched her. The victim went to the toilet and her blood, as the judge said, 'was going everywhere on the wall and toilet seat'.[3] The respondent continued to punch the victim. He then told her to clean the blood off the walls and she did so.

21 Substantial blood remained on the toilet seat and could be seen in photographs subsequently taken by the police.

22 At a point while the victim was in the lounge room, the respondent used electrical cord to tie her feet together so that she could not get away. The prosecutor stated, without contradiction on behalf of the respondent, that the respondent tied the victim up on two occasions and told her that if she left, he would hit her even more.[4] This tying up constitutes count 1.

23 While the victim was tied up, the respondent jumped on her feet. This conduct is a continuation of count 3.

24 At another point in the evening, while the victim was in the bathroom, the respondent threw a butter knife at her, hitting her in the face near her right eye, causing a large split above her eye. This conduct is also an aspect of count 3.

25 Throughout the period of five to six hours, the victim was too scared to leave because she thought that the respondent would hurt her or the children, as he had threatened to do.

26 The victim was treated for her injuries, which included deep lacerations to various parts of her face, superficial lacerations to her ankle, scalp, thighs and ears, bruising to her shoulders, forearms, thumb, neck and other parts, and swelling and tenderness of her face, ankle, right arm and both forearms. She spent two days in Broome Hospital being treated with painkillers and antibiotics.

27 The judge found that the wound on the victim's leg developed an infection for which she had to be treated 14 times in January 2020. On appeal, the State acknowledges that this is in error, which reflected an error in the amended statement of facts read to the sentencing judge. The medical report states that the wound infection requiring such treatment was the wound on the victim's lower back.

28 The respondent was 38 years old at the time of the offending and 39 when he was sentenced. He was born in Derby and raised in the Balgo community. He was one of eight children. His parents separated when he was young and he was predominantly raised by his father. The respondent's mother died when he was aged 17.

29 The respondent began drinking shortly after his mother's passing and has had a problem with alcohol abuse since then.

30 The respondent attended school until year 10, acquiring some basic literacy skills. He has had employment in a variety of roles in the Balgo community. He plans to return to work as a ranger upon his release from custody.

31 The respondent had a lengthy criminal history, including a number of convictions for offences of violence, for some of which he had previously served periods of imprisonment. He was imprisoned in June 2017 for 10 months for an offence of aggravated unlawful wounding against the same victim. He had three previous separate offences of assault occasioning bodily harm, two of which were aggravated, and all of which led to terms of imprisonment.

32 The judge referred to the maximum penalties for each of the offences, being 10 years' imprisonment for the offence of deprivation of liberty and 7 years' imprisonment for the other three offences.

33 The judge identified the sustained nature of the respondent's assault of the victim, over a period of five to six hours, as an aggravating feature of the respondent's offending. The judge also referred to the vulnerability of the victim, the respondent's partner, who was smaller than him. His Honour observed that what the respondent did was degrading and humiliating to the victim, with the respondent's offending including not only the acts of assault and wounding, but the acts of shaving her hair and tying her up.[5]

34 The judge referred to the victim impact statement, including the effect on their older daughter, who has been unable to sleep well at night since the night of this offending. The victim also has difficulty sleeping and did not return to her house for a period of two to three months because of the flashbacks she experienced there.

35 The judge identified some mitigating factors. The respondent pleaded guilty, for which the judge gave a 10% discount under s 9AA of the Sentencing Act.[6] The judge found that the respondent was now remorseful and, some time after his offending in a state of intoxication, had come to understand what he had done. The judge also found that the respondent had made efforts to rehabilitate himself in custody, doing courses on drugs and alcohol, and on family domestic violence issues.

36 The judge described the respondent's offences as very serious examples of domestic violence.[7]

37 The judge referred to the respondent's need to address his anger management, impulsivity and jealousy issues, and the need to address his alcohol abuse.

38 The judge characterised the respondent's assault of the victim as brutal, humiliating and degrading, saying that the victim suffered an ordeal that lasted five to six hours.[8] He observed that the respondent's offending was likely to have a psychological and emotional impact on the victim for a very long period of time.

39 The judge observed that both general and specific deterrence needed to be given 'some weight' and that the respondent was not a youthful offender and not a person of previous good character.

40 The judge imposed the sentences summarised in [3] above.

41 Ground 1 contends that the sentence of 6 months' immediate imprisonment for count 1 was manifestly inadequate. Ground 2 contends that the sentence of 2 years' immediate imprisonment for count 3 was manifestly inadequate. Ground 3 contends that the total effective sentence of 3 years 6 months' imprisonment infringed the first limb of the totality principle.

The parties' submissions The State's submissions

42 The State identified a number of aggravating features of the deprivation of liberty offence which, it submits, demonstrates its seriousness. We will refer to those features later in these reasons.

43 Similarly, the State identifies a number of features of the assault occasioning bodily harm which, it submits, demonstrate that the appellant's offence was at the high end of seriousness of offences of that kind. Again, we will refer to these features in explaining our disposition of ground 2.

44 The State submits that the collective bodily harm caused to the victim fell at the higher end of the range of seriousness of the offence of assault occasioning bodily harm. It submits that the bodily harm, separate from the lacerations caused by the wounding, was to the following effect:

(2) multiple lacerations to her right inner ankle, left lower eyelid, lips, scalp and both thighs and both ears;

(3) bruising to both shoulders, both forearms, right thumb and the back of her head and neck;

(4) swelling and tenderness to both cheeks, her lips, her right ankle, her right hand and to both forearms;

(5) the victim experienced blood in her urine in hospital, likely due to the bruising of her kidneys or bladder; and

(6) the victim was hospitalised for two days because of her injuries.

45 The State submits that a review of cases concerning appeals against sentence for deprivation of liberty demonstrates that the term of 6 months' imprisonment is inconsistent with, and significantly below, the pattern of sentences imposed for offences of deprivation of liberty among other cases. The State points to the review of decisions in 2009 in The State of Western Australia v TIK,[9] revealing a range from 1 year and 4 months' imprisonment to 3 years and 4 months', and to the decisions in Cook v The Queen[10] (16 months' post‑transitional), Henderson v The State of Western Australia[11] (16 months'), McAllister v The State of Western Australia[12] (15 months'), Pureau v The State of Western Australia[13] (3 years'), Iveson v The State of Western Australia[14] (2 years').

46 The State also points to the recent recognition of a need to firm up sentences for offences committed in the course of domestic violence.[15]

47 The State's submissions on ground 2, challenging the sentence for the offence of assault occasioning bodily harm, point to the fact that the assault was committed within a domestic setting as a significant aggravating factor.[16] The State points to the refusal of leave to appeal against a 3‑year post‑trial sentence for assault occasioning bodily harm in Duncan v The State of Western Australia, emphasising the absence of any pleaded circumstances of aggravation and that the offending occurred over a substantially shorter period of time. It also points to the decision in Drage v The State of Western Australia, in which leave to appeal against a sentence of 3 years and 9 months' imprisonment was refused.

48 The State submits that the combination of serious features of the respondent's offence of assault occasioning bodily harm places the offence at the upper end of the range of seriousness of such offences.

49 In support of ground 3, the State relies on its earlier submissions and points to the seriousness of the other two offences - the threat to kill and the unlawful wounding. It submits that the threat to kill set the scene of terror for the victim, rendering her fearful for the rest of the night. The respondent stabbed the victim when she was defenceless and already injured. Both offences were committed in front of the victim's 5‑year‑old daughter, and while the respondent was on protective bail conditions relating to the victim.

50 The respondent emphasises that there is no tariff for the offence of deprivation of liberty because of the variations that attend the commission of the offence. The respondent accepts that, bearing in mind the sentencing patterns emerging from other cases, the sentence imposed on him can be said to have been lenient, but contends that the sentence is not so low as to compel a conclusion of an inference of error.

51 The respondent makes a like submission in relation to ground 2, concerning the sentence for the offence of aggravated assault occasioning bodily harm.

52 In response to ground 3, the respondent submits that, while the total effective sentence imposed was lenient, error has not been demonstrated. The respondent does not point to any basis upon which, if the court were persuaded that the grounds of appeal have been made out, the court should exercise the residual discretion.

53 The principles applicable to grounds of appeal alleging manifest inadequacy and infringement of the totality principle are well known. They were summarised in State of Western Australia v MDZ,[17] and need not be repeated.

54 For the reasons that follow, in our opinion all three grounds of appeal are established.

55 The maximum penalty for count 1, deprivation of liberty, is 10 years' imprisonment. The maximum penalty for each of the other three offences is 7 years' imprisonment.

56 We accept the State's submission that the following aggravating features of the respondent's offence of aggravated assault occasioning bodily harm meant that it was at the higher end of the range of seriousness of offences of that kind:

(1) The offence was sustained over five to six hours. It occurred in stages, which gave the respondent the opportunity to calm down and stop.

(2) The offence involved at least five incidents, all of which involved an assault and some of which could have been charged as a separate offence of assault occasioning bodily harm:

(a) the respondent cut and shaved the complainant's scalp causing numerous lacerations;

(b) he punched the complainant to the face while she breastfed;

(c) subsequently, the respondent pushed and punched the complainant while she was bleeding heavily as a result of the unlawful wounding the subject of count 4;

(d) while the complainant was tied up, the respondent jumped on her feet; and

(e) he threw a butter knife at the complainant, hitting her in the face and causing a large split above her eye.

(3) There were two statutory circumstances of aggravation which resulted in the higher maximum penalty: the victim was an intimate partner of the offender and the offending occurred in front of her 5‑year‑old child.

(4) Part of the assault was committed while the victim was breastfeeding her 1‑year‑old child, magnifying the victim's vulnerability and meaning there was a risk of injury to the child.

(5) The attack was persistent, sustained, controlling and carried out in a way to cause maximum terror and humiliation to the victim. The sentencing judge rightly described the assault as brutal, humiliating and degrading. The respondent forced the victim to clean her own blood off the walls while she was injured and bleeding and told her that the police could not help her. The attack involved demeaning conduct, including cutting her hair and telling the victim that he would make her look 'rubbish'.

(6) The respondent was on protective bail conditions concerning the victim at the time.

(7) The victim's injuries were serious and extensive, as detailed in [44] above.

57 As the sentencing judge observed, count 3 and the respondent's offending as a whole were very serious examples of domestic violence. This court has emphasised the importance of general deterrence and recognised the firming up, in recent years, of sentences for offences committed in the course of domestic violence. As was observed in Duncan v The State of Western Australia:[18]

There is no doubt that the incidence of violent assaults by men on vulnerable victims (mostly women) who are in domestic relationships with them, means that general deterrence is an important sentencing consideration in offences of this kind. In Bropho v Hall,[19] Mitchell J (as his Honour was then) discussed the impact of the aggravating factor of an assault committed in the context of a domestic relationship. His Honour rightly said:[20]

An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner.

58 Moreover, as the High Court observed in Munda v State of Western Australia, it is important to indicate that drunken violence against Aboriginal women is viewed very seriously.[21] An Aboriginal victim of violence by an Aboriginal offender is not to be seen as somehow less in need, or less deserving, of such protection and vindication as the criminal law can provide.[22]

59 The other circumstance of aggravation of the respondent's offence of aggravated assault occasioning bodily harm - that a child was present - must not be overlooked in evaluating the seriousness of that offence. The courts have long recognised that an offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated or angry.[23] The commission of violent offences in the presence of a child thereby exposes the child to the risk that the cycle of violence may extend to another generation. It is reasonable to expect that this risk is magnified where, as here, the offender and the victim is each a parent of the child, as those circumstances tend more strongly to normalise violence from the child's perspective.

60 For all these reasons, the respondent's offence of aggravated assault occasioning bodily harm was a very serious example of offences of that kind.

61 The respondent's offence of deprivation of liberty had many serious elements, as identified in the State's submissions:

(1) the offence was committed against an intimate partner;

(2) the offence was committed in front of a 5‑year‑old child;

(3) the respondent tied the victim up on two separate occasions to ensure she could not escape;

(4) the respondent told the victim that if she left, he would hit her even more;

(5) the seriousness of the deprivation of liberty offence was magnified by its context, being committed in the course of a brutal, sustained violent attack against the victim and after he had told her that if she called the police he would get her before the police arrived;

(6) the earlier violence and threats increased the victim's vulnerability, as did the fact that she was already injured by his assaults on her; and

(7) the respondent was on protective bail conditions concerning the victim at the time.

62 There were limited mitigating factors. In addition to the respondent's plea of guilty, for which the judge reduced the sentence by 10% under s 9AA of the Sentencing Act, the judge found that the respondent was now remorseful and had made some efforts to rehabilitate himself in custody by doing appropriate courses.

63 The respondent's lengthy criminal history, which included a number of convictions for offences of violence, often involving women and often against vulnerable victims, meant that personal deterrence had to be given weight in the sentencing exercise.

64 In the circumstances and for the reasons we have outlined, appropriate punishment, denunciation of the criminality, vindication of the complainant, and personal and general deterrence were important sentencing considerations.

65 We consider that, when the sentence for each of counts 1 and 3 is viewed from the perspective of:

(d) the aggravating factors and other matters we have referred to in [56] - [61] above;

(e) the general pattern of sentences for the offence in question;

(f) the importance of denunciation and personal and general deterrence; and

(g) all relevant sentencing factors, including the respondent's personal circumstances, the aggravating factors and the mitigating factors,

the sentence for each of counts 1 and 3 was not merely 'lenient' or 'at the lower end of the available range'. In our opinion, the sentence for each of counts 1 and 3 was not commensurate with the seriousness of the offence. We are satisfied, having regard to all relevant facts and circumstances and all relevant sentencing factors (including the respondent's personal circumstances and the mitigating factors), that the length of the sentence for each of counts 1 and 3 was unreasonable or plainly unjust.

66 The sentence for each of counts 1 and 3 was substantially less than the sentence that was open to his Honour on a proper exercise of his discretion. Each of those sentences was manifestly inadequate. Grounds 1 and 2 have been made out.

67 As to ground 3, we repeat what we have already said as to the seriousness of counts 1 and 3. Count 2 had serious elements. The respondent's threat to kill the subject of count 2 came in the midst of, and not at the beginning of, his attack on the complainant. That magnified her vulnerability and would undoubtedly have added to her terror. Moreover, the threat was made in circumstances where the respondent was evidently angry and was brandishing a broken bottle. Thus, from the complainant's perspective, the respondent had both the means and the motive to carry out the threat that he made.

68 In our opinion, the total effective sentence for counts 1, 2, 3 and 4 fell well short of bearing a proper relationship to the overall criminality involved in all of the respondent's offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors. As we have said, significant weight had to be given to denunciation of the respondent's criminality and to personal and general deterrence. In our respectful opinion, the total effective sentence was not merely 'lenient' or 'at the lower end of the available range'; it was unreasonable and plainly unjust. In our view, the total effective sentence was substantially less than the total effective sentence that was open to his Honour on a proper exercise of the sentencing discretion. Thus, ground 3 has been made out.

The outcome of the appeal; the residual discretion

69 The respondent concedes that there is no reason for this court to exercise the residual discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) to dismiss the appeal. We recognise that the respondent does not bear an onus to establish that the residual discretion should be exercised in his favour. Rather, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised.[24]

70 In our opinion, the respondent's concession is appropriate. There is no basis in the present case for invoking the residual discretion. As we have said, in our respectful opinion, appellable error has been clearly established - the sentence imposed by the sentencing judge was appreciably less than any sentence open on a proper exercise of the sentencing discretion. This court's intervention is necessary to ensure that proper standards are adopted and maintained for offences of the kind committed by the respondent.

72 This court has the material necessary to resentence the respondent.

73 We take into account, without repeating, what we have already said concerning the facts and circumstances of the offences, the respondent's personal circumstances and the aggravating and mitigating factors. Like the sentencing judge, we would allow a discount of 10%, pursuant to s 9AA of the Sentencing Act, on the head sentence we would otherwise have imposed for each offence, on account of the plea of guilty. We take into account and allow discounts for the other mitigating factors identified in [62] above.

74 In our view, the appropriate sentences for counts 1 ‑ 4 are as follows:

(1) Count 1 (deprivation of liberty): 18 months' imprisonment.

(2) Count 2 (threat to kill): 22 months' imprisonment.

(3) Count 3 (aggravated assault occasioning bodily harm): 3 years and 9 months' imprisonment.

(4) Count 4 (unlawful wounding): 2 years and 3 months' imprisonment.

We regard a total effective sentence of 6 years' imprisonment as a proper reflection of the respondent's total overall criminality, viewed in all its circumstances and having regard to his personal circumstances. We would order that the sentence on count 4 be served cumulatively on the sentence on count 3, with the sentences on counts 1 and 2 to be served concurrently with count 3 and with each other. Like the sentencing judge, we would order that the commencement of the sentence be backdated to 27 December 2019 and that the respondent be eligible for parole.

75 For the above reasons, we make orders as follows:

(2) The sentencing judge's sentencing decision is set aside and, in substitution, the respondent is sentenced as set out in [74] above.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[9] The State of Western Australia v TIK [2009] WASCA 122.

[10] Cook v The Queen [2001] WASCA 16.

[11] Henderson v The State of Western Australia [2007] WASCA 198.

[12] McAllister v The State of Western Australia [2017] WASCA 183.

[13] Pureau v The State of Western Australia [2017] WASCA 115.

[14] Iveson v The State of Western Australia [2005] WASCA 25.

[15] Duncan v The State of Western Australia [2018] WASCA 154.

[16] Drage v The State of Western Australia [2021] WASCA 6 [40] - [41]; Duncan[53].

[17] State of Western Australia v MDZ [2021] WASCA 95.

[18] Duncan v The State of Western Australia [2018] WASCA 154 [40].

[19] Bropho v Hall [2015] WASC 50.

[20] Bropho v Hall [16]; referred to with approval in Gillespie v The State of Western Australia [2016] WASCA 216 [48].

[21] Munda v State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [41], [42].

[23] See, for example, R v Fernando (1992) 76 A Crim R 58; Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[24] CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34], [66].