Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal against sentence - Aggravated grievous bodily harm - De facto relationship between complainant and respondent - Death of unborn child - Sentence manifestly inadequate

1 STEYTLER P: This is a State appeal against the sentence imposed upon the respondent arising out of his conviction on a charge of unlawfully doing aggravated grievous bodily harm to another contrary to s 297 of the Criminal Code (WA). The respondent, who pleaded guilty to that charge, was sentenced to a term of 18 months' imprisonment. The sentence was backdated to 16 August 2006, being the date of his arrest and he was declared to be eligible for parole.

2 The circumstances of the offence were these. The respondent and the complainant were de facto partners. They had been so for five years. On the night of 15 August 2006 the two of them were at the Palm Pajinya community camping ground. Each of them consumed a large amount of alcohol during the course of the evening. The complainant was pregnant. Because of this, the respondent repeatedly told her to stop drinking. He became enraged when she ignored his requests.

3 This led to a violent argument. The respondent picked up a large, solid tree branch which was lying nearby. He was standing and the complainant was seated. He swung the branch across the complainant's back. Then he hit her twice across the head, causing severe lacerations which penetrated to her skull. Other injuries inflicted by him on the complainant were fractures of her ribs, lacerations to her spleen, fractures of the transverse processes of two of her vertebrae, contusions at the base of both of her lungs, blood in her pleural cavities, a fractured left shoulder and swelling and bruising. After the assault had ended the complainant and the respondent stayed together and she was assisted to a clinic only on the following morning. The doctor who examined and treated the complainant reported that, without medical intervention, she would have died. Whether, as counsel for the appellant submitted, this would have resulted from blood loss or otherwise the fact remains that her injuries were very severe.

4 It also seems that the assault led to the complainant going into labour. She was then 19 weeks into the term of her pregnancy. The child was stillborn. A post-mortem examination of the foetus was carried out by the doctor who had treated the complainant. This led him to conclude that the child had died as a direct result of the assault on the complainant.

5 This was not the first time that the respondent had assaulted the complainant. At the time of the commission of the present offence he was subject to a 9 month intensive supervision order. This had been imposed on 3 January 2006 in respect of charges of aggravated common assault and unlawful wounding. The complainant in the present case was the victim of both offences.

6 At the time of sentencing, the respondent was 26 years old. He had made an early plea of guilty and had demonstrated remorse. He had co-operated with the authorities and freely confessed to what he had done. He had not previously been imprisoned. His relationship with the complainant, with whom he has a 3-year-old child, has, unsurprisingly, been terminated.

7 When the trial judge came to sentence the respondent, he had regard for the facts that I have outlined. He also took into account the maximum penalty in respect of the offence, being one of 14 years' imprisonment. He arrived at the sentence of 18 months' imprisonment by commencing from a starting point of 3 1/2 years' imprisonment. He reduced this to 27 months' imprisonment to take account of the respondent's plea of guilty and all other mitigating factors. He then reduced that term by a further period of 9 months to take account of the transitional provisions of sch 1 to the Sentencing Legislation Amendment and Repeal Act 2003 (WA).

8 There is one ground of appeal. It is that the sentence imposed was so inadequate as to manifest error, having regard to the seriousness of the offence, the maximum penalty provided for it, the need for general and personal deterrence and the standards of sentencing for offences of a similar nature.

9 The principles to be applied in appeals against sentence upon the grounds of manifest inadequacy are not in doubt: see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [3], [21] and Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. Appeals by the State are in a special category. The principles applicable to such appeals are well established. They are summarised in The State of Western Australia v Houston [2005] WASCA 167 [52] - [54]. I will not repeat what was there said.

10 This offence is a serious example of its kind. The attack was brutal. It was made on a defenceless and pregnant woman. The weapon used in perpetrating the attack was one that was capable of causing serious harm, although it must be accepted that the respondent had formed no specific intent to injure the complainant. Counsel for the appellant rightly described the consequences of the attack as having been catastrophic.

11 The fast-track plea of guilty aside, there was little to be said in mitigation. The respondent's prior record does not assist him. While he showed remorse, this must be seen in the light of the fact that this was not the first time that he had assaulted the complainant. However, the sentencing judge found that his remorse was genuine and also that he co-operated fully with the police, and we should proceed on that basis.

12 I have reviewed a number of the cases dealing with offences of a similar kind. These reflect a considerable variation in the sentences imposed, perhaps not surprisingly given the variable nature of the offence concerned. However, it is apparent from what was said in those cases that the sentence imposed in this case was unduly lenient. I refer, in particular, to what was said in Stephens v The State of Western [2005] WASCA 98 and in the cases there referred to. Those were cases of causing grievously bodily harm with intent contrary to s 294 of the Criminal Code, unlike the present case. They reveal that in such cases sentences of between 7 and 12 years' imprisonment, prior to the operation of the transitional provisions, are not uncommon. Allowing for the fact that the intention to cause grievous bodily harm makes these offences more serious, as is reflected by the maximum penalty of 20 years' imprisonment in such cases, the sentences imposed reflect the unduly lenient nature of the sentence imposed in this case. This is also apparent from what is said in Gore v The State of Western Australia [2007] WASC 208 and Bruno v The State of Western Australia [2005] WASCA 149. Each of these was a case of unlawfully doing grievous bodily harm.

13 In Gore, a sentence of 4 years' imprisonment was imposed in a case in which the offender, who had been the subject of culturally offensive provocation and who faced the possibility of tribal punishment, had struck multiple blows to his victim. The victim struck his head when he fell as a result of the blows. Unlike this case, the victim later died. The same might easily have happened in this case. Gore had pleaded guilty, albeit at a late stage.

14 In Bruno, the offender and his victim were in a de facto relationship. The offender hit his victim with his fist and a piece of wood, dragged her to a fire and deliberatively burned her, causing severe burns. He had previously assaulted the same victim. He had made an early plea of guilty and shown remorse. Abuse of alcohol was a factor in that case. He was sentenced to a term of 5 years and 4 months' imprisonment after the operation of the transitional provisions. While the circumstances of that offence were more serious than this, both cases are bad examples of this kind of offence. Moreover, at the time at which the offender in Bruno was sentenced, the maximum term of imprisonment for an offence of that kind was one of 10 years. I have said that the maximum term is now 14 years.

15 It seems to me that, notwithstanding the constraints inherent in a State appeal and the matters in mitigation, the sentence imposed in this case was, with respect, so manifestly inadequate as to require intervention by this court. I would set it aside and impose, in lieu, a sentence of 4 years and 6 months' imprisonment, after allowing for the factors in mitigation to which I have referred, and which have been mentioned by counsel today including the fast-track plea of guilty and co-operation with the police. That sentence also takes account of the fact that this is a State appeal. I am obliged to reduce the sentence by one third in order to comply with the mandatory requirement of the transitional provisions.

16 It follows that I would allow the appeal, set aside the sentence imposed by the trial judge, and substitute, in lieu, a term of 3 years' imprisonment, backdated to 16 August 2006. The respondent will remain eligible for parole. He will be eligible for release on parole after he has served 18 months of that term.