Supreme Court of WA|2007-06-27|Before: Mr J, Heenan J

THE STATE OF WESTERN AUSTRALIA -v- GORE [2007] WASC 208 (27 June 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- GORE [2007] WASC 208

Criminal law - Sentencing - Unlawfully doing grievous bodily harm - Death of victim - Aboriginal tribal background - Drunken fight - Delay in plea of guilty due to delay of indictment and material prosecution evidence

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

1 EM HEENAN J: Kelwyn James Gore, you have been convicted, on your own plea of guilty, of the offence of unlawfully doing grievous bodily harm to Jeremy Roberts at Wyndham on 17 October 2006. You were arraigned before this court for trial on an indictment alleging this and another alternative offence. The plea of guilty which you entered, literally at the commencement of the trial, resulted in your conviction - it being accepted by the prosecution in full satisfaction of the indictment. As a result the jury which had been summoned was not required.

2 Yesterday I heard submissions concerning sentencing from counsel for the prosecution and your own counsel. I also heard a helpful report from a community corrections' officer by way of oral pre-sentence report. I have considered these submissions and now must impose sentence upon you for this offence.

3 The offence of doing grievous bodily harm is established by s 297 of the Criminal Code. It is designated as a crime, that is one of the more serious offences, and carries a maximum term of imprisonment of 10 years (14 years if committed in circumstances of aggravation). I must, therefore, consider what sentence to impose and, in so doing, keep within the requirements of the laws relating to sentencing which, of course, are set out in the Sentencing Act 1995 (WA).

4 It is important that I expressly recognise the principles which apply and explain them to you in terms which I hope you will be able to understand. Under s 6 of the Sentencing Act, I must impose a sentence which is commensurate with the seriousness of your offence. The seriousness of the offence is to be determined by taking into account the statutory penalty which, as I have already said, is a maximum of 10 years; the circumstances of the commission of the offence, including the vulnerability of the victim of the offence, and I will say more about that later; any aggravating factors; and, any mitigating factors. Importantly, the law requires that I do not impose a sentence of imprisonment unless I decide that the seriousness of the offence is such that only imprisonment can be justified, or that the protection of the community requires it.

5 In this case your counsel has submitted, and I consider correctly and inevitably, that the seriousness of this particular offence is one which results in the only appropriate form of punishment being imprisonment. That is because it was a serious injury which was inflicted and serious disability, indeed death, resulted - I will say more about the consequences of the injury and their significance in a moment. Further, the protection of the community, in my view, also requires the imposition of a term of imprisonment, not just because of any threat which you may pose, but because of the need for deterrence to the public at large against the commission of offences involving violence of this kind.

6 However, to return to the principles of sentencing, as observed above, I am required to consider aggravating factors or mitigating factors. Aggravating factors are those which increase the culpability of the offender. However, I should point out that an offence is not aggravated by the fact that the offender pleaded not guilty to it. Nor is it aggravated by the fact that the offender, as you have, has a previous criminal record.

7 Mitigating factors are those which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which you should be punished. A plea of guilty is especially recognised as a mitigating factor and, the earlier in proceedings that it is made or that any indication is given that it will be made, the greater the mitigation. I also can take into account any assistance which you have provided to law enforcement authorities as a mitigating factor. In this case, in a video record of interview which you participated in with the police soon after this incident, you gave a full account of what you considered happened and that, too, is a matter which must be regarded as going to your credit.

8 I must say a few other things about the sentencing process. Under s 34 of the Sentencing Act, I must explain the process of sentencing and the effect of the sentence to you in language that you are likely to understand. However, some aspects of what I say I expect will be beyond you, because of their complexity and medical nature; but it is nonetheless necessary that I should put on the record of this court the findings which I make. Where I deal with particularly complicated matters, I will endeavour, having done so, to explain briefly, in more simple terms, the effect of them for you.

9 The reasons which I am giving for the passage of sentence upon you are being transcribed by this court. A written record of these reasons will be made and will be provided to your solicitors and to you in due course.

10 I must now turn to the various options that are available for imposing sentence. These are set out in s 39 of the Sentencing Act. They range from minor to more severe punishments. At the minor end there is a discharge without any sentence being imposed or a fine. At the upper end there is the imposition of a term of suspended imprisonment or actual imprisonment. There are also various options in between. Again, I should explain to you that the law requires that a court should not use a sentencing option which is more severe than any of the other available options, unless justified by the seriousness of the offence or the protection of the community. This is consistent with the long-established principle of law that a sentence of imprisonment is a sentence of last resort and that, if at all practical, some lesser sentencing option should be selected. If a term of imprisonment is considered to be the appropriate sentence, even then, I am required to consider whether, in all the circumstances, it might be suspended, notwithstanding that other factors indicate that it is the only appropriate form of sentence.

11 If a sentence of immediate imprisonment is imposed, I am required to consider whether or not any period in custody which you have spent while on remand should be taken into account and, if so, whether or not the sentence should be backdated to give credit for that period. I have been told, and the prosecution accepts, that following your arrest you spent a period of 25 days in custody before being released on bail. This is a period which could be taken into account in reduction of any period of imprisonment which is to be imposed, and is a matter which I shall act on.

12 Also, I should point out that any court sentencing an offender to a fixed term may order that the offender be eligible for parole in respect of that term by making a parole eligibility order under s 89 of the Sentencing Act. Your counsel has submitted that, in the event of a sentence of imprisonment, you should be made eligible for parole. Counsel for the prosecution accepts that you should be made eligible for parole. Further, the community corrections' officer who reported to the court yesterday said that, in her opinion, you are suitable for parole eligibility, and that is a matter which I shall act on.

13 Finally, in relation to the explanation of the law which applies, I must point out that if a sentence of immediate imprisonment is to be imposed, then the term of that imprisonment which would otherwise have been imposed is to be reduced by a factor of one-third, having regard to the provisions of s 22 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), and I will also take that into account.

14 I have already mentioned that the indictment against you alleged an alternative offence. The alternative offence alleged was that on the same date and at the same place you unlawfully killed Jeremy Roberts. That is a charge of manslaughter which carries a maximum term of imprisonment of 20 years. You pleaded not guilty to that charge and the prosecution accepted that plea and has not sought to pursue the matter. It is therefore only in respect of the lesser charge of unlawfully doing grievous bodily harm that this sentence is to be imposed.

15 It is necessary that I make some findings about the facts. They are not essentially in contention. The deceased man was a cousin of yours and it seems that you knew him and his extended family well. During your childhood you and he and others in the extended family grew up together, were friends, played together and then worked together.

16 You, I should record at this stage, are now aged 31 years and nine months, having been born on 9 September 1975. The deceased man was younger. He was born on 26 June 1982 and was, therefore, aged 24 years at the date of his death. You and he were approximately the same height, but you are the bigger man and are obviously strong and powerful. The deceased man was only 60 kg in weight. At the time of his fatal injury he seems to have been quite severely intoxicated. He had also been injured in some way in the past and, as a result, the operation of his left eye was affected. I say these matters in order to point out that as between the two of you, you were certainly stronger and more powerful. The deceased man could not have been regarded in any way as a physical threat to you.

17 What happened was that on the afternoon of Tuesday, 17 October 2006, you, your late cousin and other friends and acquaintances were in Wyndham, at the Warrayu Reserve Aboriginal Community at Kabbarli Street. You, the other man and others were sitting out on a concrete verandah at the rear of the young men's quarters and were drinking. You have said to the police, and it is not disputed, that you had drunk the best part of a 1.2-litre bottle or container of moselle. The deceased and others were also drinking.

18 You and the deceased were a little apart from others present and, until the fight which I am about to mention began, the others were not paying close attention to what was going on between you. However, the account of what did transpire given by you seems to have been accepted by the prosecution. It is to the effect that you and the deceased man had been talking for some time while drinking, and that the deceased man was obviously intoxicated and was argumentative and somewhat insulting in an annoying way. I say 'annoying' because his insults could not be regarded as any kind of threat to you.

19 In this way the deceased man became abusive and began to talk about a member of the extended family, an aunt who had died shortly before. This, I accept, is offensive to you and to your Aboriginal culture, and is a significant departure from accepted behaviour. It caused you annoyance and you told him to be quiet or to shut up. Things degenerated. The language was coarse. The deceased man, no doubt because of his intoxication, was unresponsive and began to taunt you. He moved towards you and may actually have pushed you in the chest.

20 Although the deceased did these things, and they would have been annoying and contrary to Aboriginal culture, I do not for one moment accept that he posed any real threat to you. Nevertheless, you became annoyed. You say that you 'got wild' and said to him that you would 'show him how to shut up'.

21 Exactly what happened is not clear. The deceased man may have pushed you or looked as though he was going to strike you. However, he could not, under any circumstances, have posed any threat to you. You then struck him with your fists. Quite how many times you struck him is not clear. Some of the eyewitnesses report you striking the deceased man four or six times towards the head, jaw and body. You said to the police, and through your counsel you have said to this Court, that you only struck the deceased twice - once on the right side of the head and a second time squarely in the chest. It is not possible to say precisely how many blows were struck, but they were unquestionably powerful blows and they had devastating consequences.

22 After the final blow or blows, the deceased man slumped backwards and fell, striking his head upon some horizontal metal bars at the rear of the verandah, which are shown in some of the photographs which are exhibits in these proceedings. He then fell to the ground, striking the rear of his head upon the concrete floor. Traces of blood were noticed coming from the injury at the back of his head and the deceased man was unconscious and unresponsive.

23 Efforts were made to revive him but he did not revive. Alarmed at the possible consequences, particularly in view of the blood, you and others went to fetch help. The police and ambulance were called. The police arrived first, the ambulance followed, but the deceased man remained unconscious. The ambulance officers have said in their statements of evidence that they were unable to check a number of vital signs because the arms of the deceased man were crossed and in flexed positions, indicating severe brain damage.

24 The deceased was then conveyed by ambulance to the Wyndham Hospital and was given immediate medical attention. He was ventilated, his blood pressure was stabilised and he was sedated. The doctor in charge, quite correctly believing the injuries to be very serious and life-threatening, arranged for his patient to be transported to a major hospital. He was taken to the Royal Flying Doctor Service and, because of the urgency, was flown to Darwin.

25 He was put in the intensive care department at Royal Darwin Hospital and further investigations and diagnostic procedures were undertaken, including cranial x-rays and CT scans. He never regained consciousness and the diagnostic investigations, both radiographic and clinical, revealed non-survivable internal head injuries. He was placed on artificial life support systems until members of his family were notified. When it was appreciated that further treatment would have no beneficial effect, the life support systems were turned off and the young man died.

26 The fact that the immediate cause of death was the cessation of the life support systems does not in any way alter, as a matter of causation, the fact that the injuries which he sustained on the back verandah of the accommodation at Wyndham were the fatal injuries and, at law, the cause of his death.

27 After the death of the young man further investigations were conducted at Darwin, and certain other pathological investigations were conducted in Melbourne, upon his brain. The combination of these reveal that a number of substances were in the blood or tissues of the deceased man. There were traces of cannabinoids, indicating that the deceased person had used or consumed cannabis at some time or other. Use may have been up to 10 or more days before this incident. There is no evidence to suggest that the young man had been using cannabis this day or that that use might have contributed to his behaviour or injury.

28 There was also detected a level of morphine, of 0.04 mg/l, in the body tissues. That is a therapeutic dose and the probabilities are overwhelming that morphine was administered, either at the Wyndham Hospital or by the Royal Flying Doctor Service, or perhaps by the paramedics who first attended, as a therapeutic painkilling agent.

29 Similarly, there were therapeutic doses of the benzodiazepine drug, midazolam, detected. Midazolam is used, among other purposes, as an aid to anaesthesia or intubation. As I have said, the deceased man was intubated and ventilated. Again the probabilities are overwhelming that the midazolam was administered therapeutically during one or more passages of the medical treatment.

30 Finally, and importantly, the deceased's blood alcohol level was reported as 0.0111%. It is not a relatively high level of alcohol. However, it is to be remembered that the post-mortem blood sample would have been taken 24 hours or so after the fatal injury and it is quite possible, indeed probable, that the blood alcohol level at the time of the injury was higher. How much higher it is impossible to say, but the fact that the level at the time would have been higher is consistent with the eyewitness accounts that the deceased was significantly intoxicated.

31 I need to say something about the actual injuries sustained by the deceased because they are important in regard to the explanations which have been given of what happened. Just to recapitulate, I have mentioned that you have admitted and maintain that you struck the deceased twice only, and only once to the head; whereas other eyewitness accounts put the number of blows at about four or six.

32 There is a detailed post-mortem report from Professor David Ransom, which the prosecution relied upon to a considerable extent. It is a lengthy report, running to some 17 pages, and I will not attempt to summarise it all. However, I will draw attention to some passages. The important conclusion is that the cause of death was a head injury and that there was no other morbidity apparent in the deceased or in any of his organs which would account for his death.

33 When it comes to the details of the head injury we begin to get into technical medical language. For simplicity, I will simply say that there were numerous locations of internal brain damage, some of which, alone, and certainly collectively, were more than sufficient to cause death. They indicated that a substantial degree of force had been inflicted to this man's head. The details of the injuries are described at page 6 of Professor Ransom's report.

34 He refers to four signs of injury in the head and neck. Firstly, to '[a] zone of bruising approximately 1.5 cm in maximum extent ... over the inferior aspect of the lateral third of the right eyebrow region'. That is depicted in a diagram among the papers. Further, '[i]n the centre of the area of bruising was an area of mixed abrasion, laceration measuring 0.5 cm in maximum extent'. Secondly, there was '[a]n irregular laceration having a stellate configuration with overall dimensions 2 cm in maximum extent ... situated in the right ear lobe. Injury to the back of the ear lobe was of similar dimension'. Thirdly, '[s]ituated in the skin of the head immediately beneath and behind the right ear lobe was an irregular laceration 1.5 cm in maximum extent which had a slight Y shaped configuration with a small further extension of 0.5 cm in length extending from the anterior inferior border of the injury'. And, fourthly, and importantly, '[s]ituated over the back of the head to the left of the midline in the mid occiput [that is, in the lower area of the head] was an area of abrasion, 4 cm in extent in the centre of which was an irregular laceration 1.5 cm in maximum extent'.

35 The Professor indicated that there was a fracture of the skull located in the area of the rear wound which I have just described. Also, in the post-mortem reports, there is an indication of a fracture of the skull on the left side near the site of some old, earlier surgery and sutured bone and tissue.

36 It is presumed and accepted by the prosecution and urged by your own counsel that the injury to the lower rear of the head was incurred when the deceased fell and struck his head on the concrete floor. It is also submitted that, of the various injuries to the head, including internal injuries, this was the more serious force and, of all the injuries, the most likely of itself to be fatal.

37 However, within the skull and brain there were signs of much other injury. I have mentioned the second fracture. This is referred to at page 7 of Professor Ranson's report, where he says that:

Examination of the most inferior and posterior of the [old] burr holes revealed a recent fracture extending posteriorly and inferiorly for a distance of some 3 cm. This fracture lay almost immediately beneath the abrasion laceration noted to the back of the scalp over the left occipital region. The thickness of the vault of the skull was unremarkable.

38 Within the brain there were many signs of displacement, compression and haemorrhage, together with contusions. They were found in and around the dural area, around the leptomeninges, and in the subarachnoid spaces.

39 In his final comments Professor Ranson says that:

Examination of the head revealed evidence of recent injury. There was evidence of a significant impact force to the back of the head associated with abrasion, bruising and laceration to the skin in this region and an underlying skull fracture. In association with this injury to the back of the head on the left side there were cortical contusions over the inferior surface of the brain anteriorly on the right side. These areas of contusion were also associated with a right sided subdural haematoma.

In layman's words, this means that there were many signs of internal bruising and of bleeding within the brain.

Review of the CT scans performed at the Royal Darwin Hospital [showed substantial] right sided sub dural haemorrhage with evidence of midline shift to the left and compression and obliteration of much of the lateral ventricles on the right side. Some possible pontine/midbrain haemorrhage is also noted.

Again, in layman's terms, this indicates that there was a lot of bleeding inside the brain just under the skull on the right side, and that the entire centre of the brain had been moved to the left. Further, in the process of this, there had been crushing of some of the internal spaces, so much so that the left ventricle was almost obliterated. This is consistent with the further post-mortem tests conducted in Melbourne which I spoke of earlier.

41 The St Vincent's Pathology notes are appended to Professor Ranson's report. The final neuropathological diagnosis was:

acute subarachnoid haemorrhage, acute subdural haemorrhage ... acute contusional injury involving the right inferior and anterolateral frontal inferolateral right temporal lobes. There is evidence of raised intracranial pressure with right subfalcine herniation, bilateral uncal herniation and cerebellar tonsil herniation. There is evidence of compression of the right posterior cerebral artery with the right medial occipital lobe infarction.

Again, in layman's terms, this means that there was much internal bleeding and bruising and the various structures within the brain or the arteries supplying the brain were torn, shifted or compressed. That is sufficient to show the serious extent and the irreversible damage which was suffered by the deceased as a result of this head injury.

42 That brings me to a consideration of what it means for the acceptance by the prosecution of the charge of doing grievous bodily harm in satisfaction of the charge of manslaughter. During the submissions in this court yesterday, I enquired of both counsel what was the basis for this charge. I enquired whether it may be no more than a compromise between the possibility that you might have been acquitted of both charges, because of a potential defence of accident, against the risk of being convicted of the more serious offence of manslaughter. That is certainly a possibility, but there is also a rational hypothesis which is revealed by a consideration of the decision of the Court of Criminal Appeal in Hooper v The Queen [2000] WASCA 394; (2000) 116 A Crim R 510. That was a case, not unlike the present, involving a fight, a fatal head injury where the deceased had hit his head on a hard object on the ground, and charges being laid of manslaughter and doing grievous bodily harm or, alternatively, assault.

43 The circumstances in that case were that, at his first trial, the accused was acquitted of manslaughter, presumably on the basis that the Crown could not refute potential accident, but convicted of one of the lesser offences. The accused successfully appealed and a re-trial was ordered because there had not been a sufficient distinction made by the judge when addressing the jury about the different potential applications of the defence of accident for the charge of manslaughter, on the one hand, and doing grievous bodily harm, on the other.

44 This is explained by Malcolm CJ, where his Honour said:

It should be immediately apparent that the relevant 'event' in the context of manslaughter ... was the death of [the deceased] ... [but] in the case of the offence alleged in count (2) of the indictment the relevant event was the grievous bodily harm [8].

45 His Honour then went on to explain how grievous bodily harm can be effected in one of two ways according to the definition in the Criminal Code. The case before the court, where the verdict was not guilty of manslaughter, necessarily involved a finding by the jury that the acts of the accused were of a kind such that it was not reasonably foreseeable that they would be likely to cause death. However, if the prosecution case was that the alternative offence of doing grievous bodily harm was committed because the actions of the accused caused the victim to suffer bodily injury likely to cause permanent injury to health, there would be no inconsistency with that first verdict.

46 That distinction explains how, in this present case, it is possible, at least theoretically, for you to have been acquitted of manslaughter but convicted of doing grievous bodily harm. That is, on the basis that your actions in striking this deceased caused the victim to suffer a bodily injury likely to cause permanent injury to health, but that it was not foreseeable that they would cause or be likely to cause death. I consider that that is the basis upon which I should proceed when imposing sentence.

47 From this account of events it seems to me that I should conclude that whether you struck the deceased only once to head, as you claim, or whether you struck him several times to the head, as witnesses report, the fact of the matter is that the blows were severe and that significant injury was done, almost certainly enough to result in immediate loss of consciousness and hence the fall. From this point on it is clear that the deceased man struck his head a second time, on the rail, which I have mentioned, and then finally on the concrete floor, and as a consequence suffered the severe injury to the back of the skull and the more severe internal injuries to the structure of the brain. It seems likely, therefore, that of all the injuries which the deceased sustained, it was falling on the concrete floor which was the most significant and destructive.

48 Nevertheless, it seems to me that this was a pointless fight. There was no real need for you to strike this man. He did not pose an immediate threat to you. He was annoying and behaving contrary to Aboriginal culture but, as you said to the police in your record of interview, the proper course was for you to ignore him and you recognised that yourself immediately. So it seems to me to be a significant and serious assault.

49 I should say a little more about sentences which are imposed for offences of this kind. I have already mentioned Hooper v The Queen. Hooper was tried again and was convicted of the lesser offence of causing grievous bodily harm. He was sentenced and appealed to the Court of Criminal Appeal against that sentence which was imposed and in the process it was necessary for the court to consider whether, although a charge of homicide had not been established, it was relevant to take into account the death when sentencing: Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264. His Honour Murray J said:

In my opinion, the fact that the blow had those [fatal] consequences was a matter relevant to a proper understanding of the nature of the blow which the sentencing Judge, rightly on the evidence, accepted to be one delivered with considerable force to the face of the victim who had given no provocation for the assault and who was evidently entirely unprepared to defend himself in any way or to lessen the impact of the blow he received [5].

When quoting that passage, I am not to be taken as suggesting that this deceased had not given you some cause for annoyance, or that he had not attempted to menace you in some way, or that he was entirely unprepared. However, he was drunk, powerless and irritating.

50 In another case, Bruno v The State of Western Australia [2005] WASCA 149, the Court of Appeal had to consider an appeal against sentence for an offence of grievous bodily harm and to take into account whether or not adequate allowance for an early plea of guilty had been given. In the course of reviewing the authorities, Steytler P said that counsel had submitted that:

[T]he usual deductions for early pleas of guilty are of between 20 per cent and 35 per cent: see, for example, Little v The Queen [2001] WASCA 87 at [13] where Malcolm CJ, Wallwork and Anderson JJ said that such discounts usually fall between 25 per cent and 35 per cent, depending upon the circumstances; Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313 at 318; and R v Abela [2002] WASCA 279; (2002) 134 A Crim R 392 at 403, where Malcolm CJ, with the concurrence of Wallwork J, observed that it had been said that it would be unusual if a fast-track plea did not result in a reduction of sentence of at least 25 per cent [8].

51 Steytler P went on to say that he did not 'wish to lend [his] support to the suggestion that there can never be a deduction for an early plea of guilty of less than 20 per cent or, indeed, any other arbitrarily selected percentage' [9]. His Honour then continued:

[T]he proper percentage or overall allowance for mitigation in general is a matter for the discretion of the sentencing Judge, taking into account all of the circumstances and, as the High Court has said in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 672, the discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice [9].

52 I mention also the case of Dadswell v The Queen [2003] WASCA 212, another decision of the Court of Criminal Appeal, involving an appeal against a sentence for grievous bodily harm where there had been a plea of guilty but not at an early opportunity. In that case a sentence of seven years of imprisonment was upheld on appeal, although it was recognised that that was a severe sentence. In the course of a very careful judgment, McKechnie J reviewed the authorities dealing with sentences imposed for offences of grievous bodily harm and said:

In Jones v The Queen, unreported; CCA SCt of WA; Library No 920406; 31 July 1992, Owen J (Malcolm CJ and Ipp J agreeing) said:

'There is no tariff for this offence and neither, in my opinion, should there be. The facts relevant to any particular act of grievous bodily harm will be pivotal in reaching a decision as to the relative seriousness of the crime. For these reasons, reference to other sentences and other cases will be of limited utility.'

Owen J examined a number of authorities before concluding at 15:

'In my opinion it is quite impossible to extract from these authorities anything resembling a tariff. Each case depends on its own particular circumstances. The most that can be said is that a sentence in the range of 3 to 5 years is not inconsistent with the standards of sentencing customarily observed for the crime of unlawfully doing grievous bodily harm.' [41]

53 Again, McKechnie J reviewed a large number of cases dealing with sentences for this crime (at [46]) and then said:

Suffice to say that the cases do not suggest a particular pattern of sentences but confirm the view expressed that there is no tariff for this offence. As much as can be discerned, there is a trend to higher sentences where the grievous bodily harm results in long-term and significant injury. The other matter which can be discerned from a review of the authorities of this Court is that the present sentence of 7 years is longer than was previously imposed for an offence of doing grievous bodily harm [47].

54 At this point I should revert to a submission made by counsel for the prosecution which was not challenged by your own counsel. It was that Professor Ransom was said to be of the opinion, although not set out in his report, that, if on the somewhat artificial hypothesis that this deceased man had survived this injury, he would have had very significant permanent disability. It was said that this could have ranged from, at the least, total blindness with severe mental disability to, at the worst, permanent coma.

55 Going back to a consideration of the authorities which apply in similar cases, there is the decision of the Court of Criminal Appeal in Hayes v The Queen [2003] WASCA 230, where a sentence of 5 years was upheld on appeal. There is also the decision of R v Gordon [2000] WASCA 401, where on a plea of guilty to manslaughter - the more serious offence, not the offence for which you have been convicted - a sentence of 7 years was upheld by a majority of the court, although it was considered to be at the low end of the scale. This case was drawn to my attention by counsel, who referred to a passage in the judgment of Wheeler J, who dissented in that case, where her Honour referred to the possible significance of the offender facing severe tribal punishment. Her Honour appears to have acknowledged that the possibility of tribal punishment might in certain circumstances be a factor for consideration because she said:

While it may not be necessary to go into great detail in every case, there is in this case no evidence and not even any assertion on behalf of the respondent as to what tribal punishment would consist of [22].

56 That brings me to some further submissions which were made by counsel on your behalf, who drew my attention to certain passages in the Law Reform Commission of Western Australia, Aboriginal Customary Laws, Discussion Paper (2005). Under the heading 'Provocation', which I immediately pause to emphasise was not a defence in your case or suggested as being a defence, there is reference to the accepted feature of Aboriginal culture, that the utterance of a deceased person's name could be extremely offensive and upsetting to an Aboriginal person (at 184). It is also noted that in many Aboriginal communities it is offensive or inappropriate to refer to the name of a deceased person, especially a recently deceased person, and that to do so may be a violation of customary law (at 407). This goes to some extent to explain the way in which you may have regarded the conduct of the deceased man when taunting you on the back verandah at Wyndham on the day he suffered his fatal injury.

57 Another feature of the Discussion Paper drawn to my attention relates to the reported hardship of imprisonment for Aboriginal offenders (at 205, 206). In the event of imprisonment, it is noted, some Aboriginal prisoners are unable to maintain contact with their families. Further, it has been observed that to imprison Aboriginal people is to take them from their group, their culture and, too often, from their land. Indeed, it has been acknowledged by Murray J that serving a sentence in prison a long way from an Aboriginal person's country is almost akin to being imprisoned in a foreign country (transcript, The State of Western Australia v Sturt, Supreme Court of Western Australia, 1 September 2004, 44).

58 Now, in your case, although you are an educated Aboriginal person, you have lived, I am told, for the whole of your life in the Kimberley and your immediate family reside with you at Glen Hill Station, some distance from Kununurra. You are therefore closely connected with the community in and around the Kimberley.

59 I come now to consider your own personal circumstances. You were born on 9 September 1975 and are therefore, as I have already said, presently aged 31 years and nine months. You are single but have three children. They are aged in the vicinity of three, six and 13 years. The two younger children reside with you at Glen Hill Station.

60 Unfortunately, but all too commonly for Aboriginal people who come before the court, you have a record of previous offences, some 20 convictions, dating from 1994 until May 2006. Most of these are for what have been termed alcohol and nuisance-type offences - threatening words, fighting, disorderly conduct, creating a disturbance and the like. They have not been treated as being of great severity, either by the prosecution, or by the community corrections' officer who reported in this case.

61 You do, however, have three convictions involving assault. There are two convictions for common assault, in May and August of 1996, when you were not quite 21, and one conviction for assault occasioning bodily harm in 1997. The last of these occurred some 10 years ago and, therefore, I think I should treat them as being of only minor significance.

62 In the transcript of the video record of interview (Exhibit 3), you make a number of statements to the police. At page 12 of the transcript you refer to having drunk, before this incident, about a '1.2 wine bottle', which has been interpreted as being 1.2 litres of wine, apparently moselle. At page 14 you refer to giving the deceased two hits after having described arguments and attempts to shut him up. At page 15 you were asked whether he tried to hit you first or had pushed you and your answer was that, '[h]e wanted to push me, you know, like that. I said, "No, don't do that to me." '

63 At page 16 you refer to hitting him with a fist. At page 17 you refer to him staggering back after you hit him on the left, 'bang, bang'. You then admit that you hit him on the side of the head, 'on the face part'. You said your left fist which inflicted this blow was only weak. That, I consider, is very much a matter of opinion. Then, at page 23, you said:

He just kept going on and on, on and on. I just didn't like it, that's how wild I was. I just got wild, a bit more and more.

I shouldn't have listened to him in the first place because he [was drunk] ... I ... shouldn't have ... really worried about him but it just got to me - like my attention and just under my nail.

It is thus obvious that you gave way to relatively minor irritation and you were then charged with assault.

64 Counsel for the offender also invited me to request an oral pre-sentence report. This is a process which I must say is very beneficial. What occurred was that inquiries were made yesterday at about noon as to whether or not it would be possible for a pre-sentence report to be delivered orally. Upon it being confirmed that it would be, the court adjourned at about 12.30 pm until 3 pm, and in the process an experienced community corrections' officer interviewed you, made contact with members of the deceased's family and at 3 pm gave a very useful and comprehensive report to this court.

65 On the issue of tribal punishment, the officer reported that she had been in contact with the brothers or sisters of the deceased and that it was reported to her that the immediate members of the family did not anticipate that there would be any form of cultural or tribal payback. They did not want it and would accept the consequences of the decision of this court. However, the officer communicated with more extended members of the family and from this she learned that the more extended family expected that some form of payback would be imposed and that you would be called to account eventually in this regard.

66 No indication was given of what exactly this would involve, although your counsel submitted that you had already visited a member of the deceased's family and had apologised for what had occurred and expressed contrition. Counsel also submitted that you yourself expected that after this was all over you would need to meet the brothers of the deceased and that you could expect to be beaten by them with sticks. This is contrary to the report given by the community corrections' officer, but it is somewhat difficult to identify exactly what is meant by 'brothers' in that context.

67 It seems to me that I should not say or do anything which would express any view of tolerance or acceptance for payback punishment, no matter how customary it may be. However, I should nevertheless realise that there is the possibility that this may occur, however unlawful, and that it might be a factor to be taken into account.

68 The community corrections' officer also reported in relation to the effect of imprisonment, that your country was, as I have already said, of the Kimberley and that you had spent your lifetime here. She made enquiries of the regional prison in Broome and reported that if you were sentenced to a term of imprisonment of approximately four years or less, you would be assessed at Broome to determine whether or not it would be appropriate for you to serve your sentence in the Broome area. However, if a significantly longer sentence than four years was to be imposed, then the probabilities would be that you would be sent to Perth.

69 The officer also recommended that you were suitable for parole. She also treated your prior convictions as being of a nuisance or alcohol-type, apparently reflecting a realisation of how common offending of this nature is in this area. She reported that, although you and the deceased had grown up as children together and had been friends, there had over more recent years been feuding between these families. She noted that that history of feuding might possibly have been responsible, to some extent, for the conduct of the deceased in his taunting of you.

70 I now come to the significance of your plea of guilty, it being entered, literally, as the jury was about to be empanelled. It is submitted by your counsel that you should nevertheless receive a discount and a substantial discount notwithstanding this late plea. To consider this submission, I must examine the history.

71 The charge after your original arrest was of assault occasioning bodily harm on 17 October 2006. It was thus known, from the very outset, that you would be charged. After the deceased man passed away in hospital at Darwin, the charge was upgraded to manslaughter.

72 On 30 October 2006 you were remanded in custody on a charge of manslaughter. On 13 November you were then remanded to 8 January 2007 for committal mention and were granted bail. Exactly what happened after that is not entirely clear, but is apparent that your first appearance before this court was on 2 April 2007, but no indictment was then presented against you by the prosecution.

73 The present indictment is dated 30 May 2007 and your counsel informs me that it was only received by him at the beginning of June. That is only a little over three weeks ago. Your counsel has submitted that there were difficulties in communicating with you. He said that it was not really until he could come from Perth and meet you here in Kununurra, and go through all the details, that it was possible to make approaches to the prosecution which led to the acceptance of this plea. He did indicate that earlier approaches to plead to a lesser offence had been made but had been rejected.

74 It disturbs me that in a case like this involving a death, the circumstances of which seem to have been well settled from late October 2006 onwards, no indictment was presented until 30 May 2007, some seven months after the event. The explanation offered by counsel for the prosecution, which I accept is entirely conscientious, is that there was a delay in obtaining the pathologist's report - the report from Professor Ransom which I have quoted extensively - until recently. Indeed, that report is only dated 8 June 2007, so that report has, in effect, been available for only a fortnight. In view of its detailed contents and the reference to the greater severity of the impact of the injury at the back of the head, it is, unquestionably, an important document.

75 I think I should make some allowances for the fact that the accused would have been difficult to contact and that meaningful negotiations and instructions between legal representative and client were unlikely to take place until each could meet here in Kununurra. I will therefore treat this as a case in which a discount for a plea of guilty should be made. I will accommodate within this discount a balancing exercise, taking into account the fact that it is nevertheless a late plea, and that the degree of force inflicted in this striking appears to be very considerable.

76 Those are the factors which cause me to conclude that this is a case which, having regard to its impact on the deceased, its unnecessary nature, the gross disproportion between the strength and power of the offender and the slight stature and intoxicated nature of the deceased, was a very serious case of causing grievous bodily harm. Consequently, a term of immediate imprisonment is necessary, both to protect the community and to reflect the seriousness of the offence. This is an unfortunate conclusion in some way, looking only from the point of view of the offender, because he has never been sentenced to imprisonment before. However, I have no doubt, indeed his own counsel has conceded, that imprisonment is inevitable in this case.

77 Coming therefore to the terms of imprisonment, I consider that the starting point for an offence of this nature should be a term of 7 years and 6 months imprisonment. Reducing that by a factor of one-third because the Sentencing Legislation Amendment and Repeal Act reduces that to 5 years. Having regard to the plea of guilty and the fact that it was the fall to the floor which was the most serious injury, but also reflecting to some degree the fact that the plea was late and that the force was severe, I consider that a discount of 20 per cent should be made for the plea of guilty and all other mitigating factors. That produces a sentence of 4 years' imprisonment. I propose to give credit for the 25 days of imprisonment which has already been served, so in practical terms that could be achieved by backdating the present sentence from today to 2 June 2007.

78 Notwithstanding this conclusion, I am still required to consider whether or not this sentence of imprisonment should be suspended. I have done so but I am driven to the conclusion that the circumstances of this offence and the need for overall deterrence and the punishment of this offender makes suspension of the sentence inappropriate. Accordingly, the sentence of this court is that you, Kelwyn James Gore, shall serve a term of imprisonment of 4 years, with eligibility for parole, for doing grievous bodily harm to the deceased man, and that this sentence should date from 2 June 2007.

Legislation Amendment and Repeal Act 2003

THE STATE OF WESTERN AUSTRALIA -v- GORE [2007] WASC 208 (27 June 2007)

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Judgment (104 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- GORE [2007] WASC 208 (27 June 2007)

Legislation Cited (1)

Cases Cited (3)