Criminal law - Offences against the person - Grievous bodily harm - Sentencing - Principles to be applied - Transitional provisions

Criminal Appeals Act 2004 (WA), s 31(4), s 41(4)

Criminal Code (WA), s 1, s 280, s 287, s 297, s 304(2), s 317

Criminal Law and Evidence Amendment Act 2008 (WA)

Sentencing Act 1995 (WA), s 34(2), s 37, s 88(4)

Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1 cl 2(1)

1 MARTIN CJ: The State of Western Australia appeals from the sentence imposed on Scott Daniel Redman following his conviction for unlawfully causing grievous bodily harm to Dexter Charles Williams, in contravention of s 297 of the Criminal Code (WA) (the Code).

2 Four counts were alleged against Mr Redman in the indictment that was presented at the commencement of his trial. The first was an allegation of doing an act with intent to harm Mr Murray James Smith, as a result of which bodily harm was caused to Mr Smith, contrary to s 304(2) of the Code. In the alternative to that count, he was charged with unlawfully assaulting Mr Smith and causing him bodily harm, contrary to s 317 of the Code. Mr Redman was further charged with the manslaughter of Dexter Charles Williams, contrary to s 280 and s 287 of the Code. In the alternative to that count, he was charged with unlawfully doing grievous bodily harm to Mr Williams, contrary to s 297 of the Code.

3 After a trial by jury, Mr Redman was found guilty of counts 1 and 4 on the indictment - namely, doing an act with intent to harm Mr Smith, as a result of which bodily harm was caused to him, and unlawfully doing grievous bodily harm to Mr Williams. The maximum penalty available in respect of the first count was a period of 20 years imprisonment, whereas the maximum penalty available in respect of the fourth count was a period of 10 years imprisonment. Following the decision of this court in Yates v The State of Western Australia [2008] WASCA 144, in which it was held that the transitional provisions applied to sentences imposed for contraventions of s 304(2) of the Code, notwithstanding that that offence had not been created at the time of enactment of the transitional provisions, any sentence imposed upon Mr Redman on either count has to be reduced by one-third, with the result that the maximum sentence which could lawfully be imposed in respect of count 1 was 13 years and 4 months, and in respect of count 4, 6 years and 8 months.

4 The trial judge made the following findings of fact for the purposes of passing sentence.

5 The offences were committed in the early hours of the morning on 28 July 2007 at the Café Kebab in Mandurah. Mr Redman was in the company of a friend, Mark Edwards, with whom he had spent several hours drinking alcohol at a nearby hotel and nightclub. Coincidentally, Mr Smith and Mr Williams, who were friends, had also been drinking at the same two venues, but there was no contact between the different groups until after the nightclub had closed and all happened to go to the Café Kebab at roughly the same time to buy food.

6 All four men were intoxicated at the time they attended the kebab shop. Mr Smith and Mr Redman got into a senseless argument. Mr Redman then walked away from the argument, but was followed by Mr Smith. Mr Redman told Mr Smith twice that he did not want a confrontation, and that he should go away, but Mr Smith continued to follow Mr Redman and continued to argue with him.

7 By that time, Mr Smith had been made aware that Mr Redman served in the navy. Mr Smith then made some insulting remarks about Mr Redman and the navy and Mr Smith may have also bumped Mr Redman with his shoulder. Mr Redman responded by pushing Mr Smith so that he fell back against the glass door of the restaurant which was adjacent to the Café Kebab. Mr Smith fell against the door, falling to the ground, and ended up slumped against the door. While he was in this position, Mr Redman punched him three or four times in the face, causing fractures to his mandible and his nose.

8 In the meantime, Mr Dexter Williams was seated near another group, which included Mr David Williams, who was no relation.

9 The sound of Mr Smith falling against the glass door of the restaurant attracted the attention of those in the vicinity, including Mr Dexter Williams. Mr Dexter Williams got up from where he was seated and walked towards Mr Redman. When Mr Redman and Mr Dexter Williams were about a metre apart, Mr Redman pushed Mr Williams on his chest and then punched him with a single blow to the face. The trial judge found that:

[I]t was a very forceful punch which caused Mr Williams to topple backwards and to strike the back of his head on the hard brick paving.

10 As a result of the fall onto the brick paving, Mr Williams sustained a fractured skull and brain injuries. Those injuries were found by the trial judge to be life threatening. It was those injuries which he took the jury, by its verdict, to have concluded fell within the definition of 'grievous bodily harm' in the Code. That definition includes injuries which are life threatening, and those likely to cause permanent injury (the Code, s 1). The trial judge went on to assert that Mr Redman's criminal culpability is to be assessed by reference to the likelihood of the injuries to cause permanent injury. It is doubtful whether that conclusion is sustained by the evidence, but nothing turns upon it, as it is clear that the fractured skull and swelling caused to the brain were life threatening if not successfully treated.

11 Those injuries were treated by Mr Williams being placed into an induced coma. Following two days of treatment, he appeared to be making reasonably good progress towards recovery. However, his immobilisation in a hospital bed resulted in the formation of a deep vein thrombosis which probably developed in his leg. That thrombosis produced an embolism (blood clot) which detached and then travelled to Mr Williams' heart, blocking the right ventricle of his heart and causing cardiac arrest. All attempts were made to resuscitate Mr Williams but those attempts failed and, tragically, Mr Williams was pronounced dead.

12 The trial judge correctly observed that by its verdict of not guilty of manslaughter, the jury must be taken to have concluded that Mr Redman was not criminally responsible for the death of Mr Williams. However, the jury's finding of guilt in respect of the count of occasioning grievous bodily harm meant that Mr Redman was to be sentenced on the basis that his criminal conduct caused the skull fracture and brain swelling which occurred when Mr Williams' head struck the brick paving following the punch delivered by Mr Redman.

13 The trial judge further found that Mr Redman had been provoked (although not in the legal sense) by the insults from Mr Smith, and that he lost his power of self control. He also found that at the time of the assault upon Mr Williams, Mr Redman perceived him to be a threat, but that that perception was not a reasonable one. The trial judge concluded that the most likely explanation for the assault upon Mr Williams was the transfer of anger which Mr Redman felt towards Mr Smith to Mr Williams. That conclusion was supported, in the view of the trial judge, by the fact that when Mr David Williams approached to give assistance to Mr Dexter Williams, Mr Redman asked if 'he also wanted to have a go'. It was about then that Mr Redman was restrained by his friend, Mr Edwards.

14 The trial judge made the following findings with respect to Mr Redman's personal circumstances. He was, at the time of sentence, 27 years of age, single and a leading seaman in the Royal Australian Navy, with an excellent service record. He grew up in Burnie, Tasmania, and enjoyed the support of his family. Numerous positive references from people who knew Mr Redman had been tendered in evidence, which led the trial judge to conclude that Mr Redman had a good reputation and was highly regarded by everyone with whom he had come into contact. References were provided from naval personnel (including Mr Redman's superiors), which led the trial judge to conclude that Mr Redman was highly regarded within the navy and also considered to be a person of good character. Mr Redman has no prior convictions. The trial judge accepted that the consequence of the convictions would be to destroy Mr Redman's career in the navy.

15 The trial judge also found that there was no premeditation or planning of either offence, which occurred in quick succession. He also found that Mr Redman had co-operated with the police and volunteered information against his interests - for example, the fact that he had punched Mr Smith three or four times when the prosecution evidence was to the effect that he only struck him once or twice. The trial judge also accepted that Mr Redman was genuinely remorseful about Mr Williams' death, although he did not consider that Mr Redman had fully acknowledged the extent of his wrongdoing.

16 On 23 May 2008, the trial judge imposed a sentence of 2 years imprisonment in respect of the count involving Mr Smith, and a further period of 2 years imprisonment in respect of the count involving Mr Williams. At the time he did so, he relied upon the decision of this court in The State of Western Australia v Wallam [2008] WASCA 117, for the proposition that the transitional provisions did not apply to sentences imposed in respect of a contravention of s 304 of the Code. The decision in Wallam was later reversed by the decision in Yates to which I have referred.

17 The trial judge addressed the question of the extent to which the sentences he was to impose should be directed to be served concurrently. In that context, he observed that although the two offences occurred in quick succession, and there was close proximity in place and time, there were nevertheless two separate victims who suffered separate invasions of their legally protected rights. In that context, it was his view that if the sentences were made completely concurrent, they would not reflect the overall culpability involved. The trial judge observed that, in his view, the totality principle required an appropriate total period to be served of 3 years imprisonment, which he achieved by ordering that the two sentences be made partially concurrent. He therefore directed that the sentence which he imposed in respect of count 4 should commence at the expiration of 1 year of the sentence imposed in respect of count 1. Because of time spent in custody awaiting trial, the trial judge further backdated the sentences to commence on 29 October 2007. Mr Redman was made eligible for parole.

18 By an application dated 7 July 2008, Mr Redman sought a correction of sentence pursuant to s 37 of the Sentencing Act 1995 (WA), because the trial judge had not stipulated the minimum period which the respondent would be required to serve in custody in respect of the terms imposed (as required by s 34(2) of the Sentencing Act). The decision in Yates was then delivered by this court. Shortly thereafter Mr Redman amended his application to seek a further correction to the sentence on the ground that the trial judge had erred by not applying the transitional provisions to the sentence he imposed in respect of count 1.

19 After hearing submissions, on 25 July 2008 the trial judge resentenced Mr Redman pursuant to s 37 of the Sentencing Act. He determined that, in respect of count 1, the sentence he would have imposed but for the transitional provisions was 2 years (being the sentence which he had in fact imposed earlier), and that the transitional provisions required him to reduce that sentence by one-third, to the period of 1 year and 4 months imprisonment.

20 However, pursuant to s 88(4) of the Sentencing Act, it was not possible for the trial judge to direct that the sentence in respect of count 4 start any later than the earliest date upon which Mr Redman could be released from custody in respect of the sentence imposed on count 1. The earliest date upon which Mr Redman could be released from custody in respect of the sentence now imposed on count 1 was 8 months after the commencement of that sentence. Ordering the sentence of 2 years imposed in respect of count 4 to commence at that time, would have resulted in a total head sentence of 2 years and 8 months, which was less than the period of 3 years which the trial judge considered appropriate to satisfy the totality principle. Accordingly, the trial judge decided that the best way in which that head sentence could be achieved was to reverse his previous direction to the effect that the sentences be served partially concurrently, and instead to direct that the sentences be served cumulatively, and by reducing the sentence imposed in respect of count 4 to 1 year and 8 months. Accordingly, the total of the sentences imposed in respect of count 1 (1 year and 4 months) and count 4 (1 year and 8 months) was 3 years.

21 This appeal was commenced after the coming into operation of the Criminal Law and Evidence Amendment Act 2008 (WA) which repealed s 41(4) of the Criminal Appeals Act 2004 (WA) and inserted a new subsection. By virtue of that subsection, the principles previously applicable to appeals against sentence by the State no longer apply. The court must therefore exclude from consideration the fact that upholding the appeal might mean that Mr Redman is again sentenced for the offences of which he was convicted - see The State of Western Australia v Richards [2008] WASCA 134 at [41] - [42]; The State of Western Australia v Barton [2008] WASCA 152 at [21].

22 However, there is a well-established general principle applicable to all appeals against sentence, whether by the State or a convicted person. That principle is that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion (see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]). This principle has been described by the High Court as 'basic', and the corollary of the discretion committed to sentencing judges, which is of 'vital importance in the administration of our system of criminal justice' (Lowndes at [15]; also see House v The King [1936] HCA 40; (1936) 55 CLR 499). The principle properly applied was succinctly enunciated by Malcolm CJ in Weng Keong Chan (1989) 38 A Crim R 337 at 342:

This Court will only interfere with a sentence that is manifestly inadequate or excessive, where, for instance, the trial judge has acted on a wrong principle or overlooked or undervalued or over-estimated or misunderstood some salient feature of the material before him ... To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender ...

23 There are five grounds of appeal. It is convenient to group them into three areas. Ground 1 asserts that the trial judge erred in the findings of fact which he made for the purposes of sentence, in that he should have found that Mr Redman had kicked Mr Williams while he was lying on the ground. Grounds 2 - 4 assert that the 'sentence for count 4 and the overall sentence' imposed by the trial judge was: manifestly inadequate because it failed to reflect adequately the seriousness of the offence and the need for general deterrence and punishment; gave undue weight to factors personal to the respondent; and provided inadequate reasons for arriving at the sentence imposed in relation to count 4. During oral argument, counsel for the State explained that even though the grounds of appeal referred to 'the overall sentence', no appeal was brought in respect of the sentence imposed on count 1. Rather, the State's proposition was that because the sentence imposed in respect of count 4 was manifestly inadequate, the overall sentence was also manifestly inadequate. Count 5 complains that, at the time of resentencing, the trial judge erred by reducing the sentence which he had considered appropriate in respect of count 4 so as to achieve the overall head sentence by accumulating the two sentences.

24 At the time of sentence, the State submitted that Mr Redman should be sentenced on the basis that he had kicked Mr Dexter Williams while he was lying on the ground. The trial judge correctly observed that he should only sentence on that basis if he was satisfied of that allegation beyond reasonable doubt - R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. He reviewed the evidence on that topic in the reasons which he gave for rejecting the State's assertion. He considered that Mr David Williams was the most reliable witness of the sequence of events, because he saw more of the events than any other witness. As the trial judge observed, Mr David Williams gave no evidence to the effect that Mr Redman kicked Mr Dexter Williams at any time. As the trial judge observed, Mr David Williams was a witness independent of any party to the assault.

25 There were two other independent witnesses whose evidence was referred to by the trial judge. Ms Cathryn Unmeopa gave evidence to the effect that she saw both Mr Redman and Mr Edwards kick Mr Dexter Williams twice in the side. Her evidence was to the effect that they were soft kicks - not very hard, and were 'kicks with the top of the toes'. The trial judge considered that Ms Unmeopa could have been mistaken about her observations, because of her emotional distress at the time.

26 The third independent witness was Ms Lynette Williams. The trial judge did not consider her to be a very impressive witness. She said that she saw only one kick by Mr Redman and none by Mr Edwards. Contrary to the evidence given by Ms Unmeopa, Ms Williams described the kick which she saw as 'quite violent'.

27 In relation to the forensic evidence concerning bruising on the body of Mr Dexter Williams, the trial judge observed that the only evidence of bruising possibly relevant to this issue was the bruising observed by the forensic pathologist, Dr Margolius, on an area on the inside of Mr Dexter Williams' left forearm. Dr Margolius gave evidence that she was of the view that the bruising was caused by kicking. However, when asked whether the bruising could have been caused by falling down, Dr Margolius responded, '[y]es. I have to consider that but I don't think it was'. Given the trial judge's views on the reliability of Mr David Williams' evidence and the uncertainty of the forensic evidence in this regard, understandably, the trial judge did not consider the forensic evidence to be of any particular significance to an allegation that Mr Williams had been kicked in the manner described by either Ms Unmeopa or Ms Williams.

28 Of course the trial judge had the advantage of seeing and hearing the evidence of the witnesses on this subject. The submissions of the State in support of this ground, essentially come down to the proposition that this court should prefer the evidence of Ms Unmeopa, or perhaps Ms Williams, or some conclusion to be drawn from a combination of the two, in preference to the evidence given by Mr David Williams.

29 In his summary of the evidence given in his reasons for sentence, the trial judge took a view of the evidence that was open to him. He correctly pointed out the inconsistencies between the evidence of the various witnesses on this subject, and the failure of the forensic evidence to strongly support the State's assertion. On the evidence, it was open to him to conclude that he was not satisfied beyond reasonable doubt that Mr Redman had kicked Mr Williams while he was lying on the ground. Ground 1 must be dismissed.

30 These grounds raise, in different ways, the general question of whether the sentence by the trial judge on count 4 was manifestly inadequate. I will address those contentions by reference to the factors conveniently summarised by Malcolm CJ in Chan (at 342).

31 The maximum sentence available for the offence of causing grievous bodily harm was increased from 7 years to 10 years in 1998. Of course, any sentence imposed must be reduced by one-third pursuant to the transitional provisions.

32 In Dadswell v The Queen [2003] WASCA 212, McKechnie J cited with approval the earlier observation of Owen J (Malcolm CJ and Ipp J agreeing) in Jones v The Queen (unreported; CCA SCt of WA; Library No 920406; 31 July 1992) to the effect that there is no tariff for the offence of grievous bodily harm, nor should there be, because the facts relevant to any particular case will be pivotal in reaching a decision as to the relative seriousness of the crime. In Jones, Owen J went on to observe that the most that could be said from a consideration of previous cases is that a sentence in the range of 3 to 5 years would not be inconsistent with the standards of sentencing customarily observed for the crime of unlawfully doing grievous bodily harm. It is to be noticed that this observation was made prior to the increase in penalty in 1998, and, of course, was prior to the enactment of the transitional provisions.

33 In Dadswell, the court upheld a sentence of 7 years imprisonment imposed following an apparently unprovoked and serious attack upon a woman previously unknown to the offender, and which left her with significant and permanent cognitive and physical impairment. That sentence was imposed prior to the commencement of the transitional provisions. It would be the equivalent of a sentence of 4 years and 8 months after the commencement of those provisions.

34 In Bruno v The State of Western Australia [2005] WASCA 149, a sentence (post-transitional provisions) of 6 years was reduced on appeal to a sentence of 5 years and 4 months. The circumstances of the case were that the appellant and the complainant were de facto partners. On the evening in question they had been drinking around a campfire. The appellant punched the complainant repeatedly in the face and ribs, hit her on the back of the head with a piece of wood, dragged her into the campfire and held her head in the flames, and put coals under her bare legs and buttocks. The complainant suffered burns to 15% of her body surface and a fractured left foot and arm. The appellant had previously been imprisoned as a result of the commission of violent offences against the same complainant. This case is obviously one of the most serious cases of this kind, and the sentence imposed was effectively the maximum sentence available after a discount for a plea of guilty.

35 In The State of Western Australia v Jeffries [2007] WASCA 255, the respondent to a State appeal had pleaded guilty to causing grievous bodily harm to his de-facto wife. He hit her with a branch, causing numerous injuries such as fractured ribs, lacerations to her spleen, fractured vertebrae, contusions to her lungs, blood in the pleural cavities and a fractured shoulder. The complainant went into labour and the child was stillborn. The State's appeal against a sentence of 18 months imprisonment imposed by the trial judge was successful, and the Court of Appeal imposed a sentence of 3 years imprisonment. It is to be remembered that this sentence was imposed after the commencement of the transitional provisions but prior to the commencement of the Criminal Law and Evidence Amendment Act 2008 (WA). Accordingly, it can be assumed that the sentence imposed was mitigated by the principles governing State appeals which have been modified by that legislation. It is clear that, but for those two factors, a significantly greater sentence would have been imposed.

36 In Hayes v The Queen [2003] WASCA 230, a sentence of 5 years was imposed, following a plea of guilty, prior to the commencement of the transitional provisions. The appellant had separated from his wife. He went to her home while their children were present and forced his way in. He pushed her into a wall, then into a bookcase, and then squeezed his hands around her throat. She was pregnant at the time and suffered severe abdominal trauma and internal bleeding. This sentence, which was upheld on appeal, equates to a sentence of 3 years and 4 months after the commencement of the transitional provisions.

37 In Clements v The State of Western Australia [2006] WASCA 69, a sentence of 2 years following a plea of guilty was upheld on appeal. The appellant had been involved in a fracas in a tavern, in the course of which he threw a broken glass at the face of a security guard, which caused the loss of the guard's right eye. The sentence was mitigated by the appellant's co-operation with authorities and by remorse.

38 In Etrelezis v The Queen [2001] WASCA 327, a sentence of 3 years immediate imprisonment was altered on appeal by directing that the imprisonment be suspended for a period of 1 year. The circumstances of the offence involved a fight in a bar, followed by the appellant hitting the complainant in the face with the hand holding his glass, causing injury to the complainant's eye which was not permanent. Because the sentence was prior to the commencement of the transitional provisions, it would have equated to a period of 2 years imprisonment subsequent to the commencement of those provisions.

39 Accepting and giving full weight to the observations made in Dadswell and Jones as to the caution with which previous sentences for this offence should be approached, and acknowledging that the cases to which I have referred are not a comprehensive analysis of all cases of this type, the decisions at appellate level to which I have referred would suggest that the sentence of 1 year and 8 months imposed in this case is very much at the lower end of the range. In fact, it is lower than any case to which I have referred.

40 I have set out above the findings that were made in respect of the circumstances of the offence. It must be emphasised that Mr Redman is not to be sentenced for having caused the death of Mr Dexter Williams. The jury found him not guilty of the charge of manslaughter. It must follow that the jury was satisfied that Mr Williams' death was not the natural and probable or foreseeable consequence of the punch delivered by Mr Redman. However, the jury's verdict of guilt on the charge of occasioning grievous bodily harm must be taken to reflect a conclusion that Mr Redman was criminally responsible for the skull fracture and brain injury which was sustained when Mr Williams' head hit the brick paving.

41 The trial judge found that the punch delivered to Mr Williams was 'very forceful'. It was delivered very shortly after Mr Redman had punched Mr Smith in the face several times with sufficient force to fracture his mandible and his nose, at a time when Mr Smith was incapable of defending himself. The assault upon Mr Williams was unprovoked, and occurred at a time when, if Mr Redman had been acting reasonably, he would likely have concluded that all Mr Williams was doing was attempting to come to the aid of his friend. Each of the assaults upon Mr Smith and Mr Williams were initiated by Mr Redman (although Mr Smith may have bumped Mr Redman on the shoulder). The assault upon Mr Williams caused a life threatening fracture to his skull, and swelling to his brain.

42 Those circumstances appear to me to compel the conclusion that Mr Redman's offence must be placed in the upper range of seriousness of offences of this kind.

43 As I have observed, the trial judge made positive findings in respect of Mr Redman's antecedents and reputation. However, given the seriousness of the two assaults which he initiated, there is a limit to the amount of weight which can be given to those factors. Mr Redman is also entitled to credit for his co-operation with the authorities, and the loss of his career in the navy is undoubtedly a mitigating factor. Although the trial judge found that Mr Redman was genuinely remorseful for the death of Mr Williams, he also found that Mr Redman had not fully acknowledged the extent of his wrongdoing and, of course, Mr Redman does not get the benefit of any discount for a plea of guilt.

Summary of considerations relating to adequacy of sentence

44 The statutory maximum available for the offence of which Mr Redman was convicted was a period of imprisonment for 10 years. When first passing sentence, the trial judge observed that, but for the transitional provisions, he would have imposed a sentence of 3 years. This seems to me to be very much at the lower end of the range, when regard is had not only to the statutory maximum, but also to sentences imposed for this offence. Having regard to the circumstances of the offence to which I have referred, and the limited mitigation to be drawn from the personal circumstances of Mr Redman, in my opinion, placement of the sentence within this lower end of the range manifests error on the part of the trial judge. That error was compounded when, at the time of resentence, the sentence imposed was reduced to 1 year and 8 months, which is the equivalent of a sentence of 2 years and 6 months prior to the commencement of the transitional provisions.

45 Put another way, the sentence actually imposed on count 4 was 25% of the available maximum sentence. The circumstances of the offence would, in my opinion, require the imposition of a sentence in the upper range, but for the mitigating factors present. However, those mitigating factors were, in my view, insufficient to result in the conclusion that a sentence towards the lower end of the range was a proper exercise of the discretion conferred upon the trial judge.

46 For these reasons, I would uphold grounds 2 and 3 on the basis that, having regard to the circumstances of the offence and the limited mitigation available, the sentence imposed on count 4 was manifestly inadequate.

47 My conclusions with respect to grounds 2 and 3 lead to the consequential conclusion that Mr Redman should be re-sentenced by this court. That in turn means that it is unnecessary to deal with ground 4 at any length, as that ground is only concerned with the adequacy of the reasons given by the trial judge, for a sentence which, in my view, should be set aside in any event. The argument in support of that ground was generally directed to disagreement with the conclusion at which the trial judge arrived and the discretion exercised in relation to that conclusion, rather than to any significant omission in the process of reasoning elucidated by the reasons given, or any failure to elucidate that process of reasoning. Although I disagree with the conclusions of the trial judge, the processes of reasoning he employed are quite apparent form the reasons he gave. I would therefore dismiss ground 4.

48 Ground 5 asserts error by the trial judge when resentencing Mr Redman on 25 July 2008. As my findings in relation to grounds 2 and 3 lead to the conclusion that it is appropriate to resentence Mr Redman on count 4, it is unnecessary to consider ground 5 in any detail other than to observe, as I have, that the effect of the resentencing in July 2008, was to further reduce a sentence which I consider was already inadequate.

49 For the reasons I have given, in my view, the circumstances of this offence point to a sentence towards the upper end of the range, which, after mitigation for factors personal to Mr Redman, leads to an appropriate conclusion that the sentence should be in the mid point of the range. This equates to a period of 5 years imprisonment on a pre-transitional basis, or 3 years and 4 months on a post-transitional basis. I would therefore set aside the sentence imposed by the trial judge in respect of ground 4, and substitute for that sentence a sentence of 3 years and 4 months imprisonment, backdated to 29 October 2007. This is double the sentence imposed by the trial judge.

50 The question then remains as to the extent to which that sentence should be ordered to be served concurrently with the sentence imposed on count 1, if at all. Initially the trial judge ordered that the two sentences be served partially concurrently, but in the end, ordered that they be served cumulatively, so as to arrive at the total head sentence he had originally considered appropriate.

51 In my respectful opinion, the initial view of the trial judge to the effect that the sentences on the two counts should be served partially concurrently, reflects a proper exercise of discretion. Although the two offences were very close in point of place and time, they were separate offences against separate victims. Unless compelled by the totality principle, an order that the sentence imposed on count 1 be served concurrently with the sentence imposed on count 4 in its entirety would diminish the significance of the serious offence committed by Mr Redman against Mr Smith. In my opinion, the proper balance of the principles

relating to concurrency and totality supports the conclusion that a direction should be made to the effect that the sentence on count 4 should commence eight months after the commencement of count 1 (being the time at which Mr Redman would have been eligible for parole on count 1). The net effect of that direction would provide a total head sentence of 4 years in place of the total head sentence of 3 years imposed by the trial judge. I would also direct that Mr Redman be made eligible for parole, and that the minimum period he should serve prior to such eligibility is the period of 2 years from the commencement of his sentence on 29 October 2007.

53 McLURE JA: I would dismiss the State appeal against sentence. The facts and grounds of appeal are set out in the reasons of the Chief Justice and not repeated here unless required for an understanding of these reasons.

54 I agree that grounds of appeal 1 and 4 should be dismissed generally for the reasons given by the Chief Justice. However, I am not satisfied that either the sentence of 2 years' imprisonment (reduced to 1 year and 8 months solely for totality reasons) for the offence of unlawfully causing grievous bodily harm to Dexter Williams contrary to s 297 of the Criminal Code (WA) (Code) or the total effective sentence of 3 years' imprisonment is manifestly inadequate. I would dismiss grounds of appeal 2 and 3. These are my reasons for that conclusion.

55 It is as well to identify at the outset what the respondent is not guilty of. First, the jury acquitted the respondent of the charge of manslaughter. Thus, the respondent, by the jury's verdict, is not criminally responsible for Mr Williams' death. His death is therefore an irrelevant sentencing consideration and cannot be taken into account in determining the appropriate sentence to be imposed on the respondent. The respondent's criminal responsibility for the consequence of his conduct is limited to Mr Williams' injuries sustained as a result of the fall, being a fractured skull and brain injuries. Although the sentencing judge found that the injuries were likely to cause permanent injury, the nature of the likely permanent injury was not identified. Secondly, the respondent did not intend to cause grievous bodily harm to Mr Williams.

56 Further, in sentencing for the offence against Mr Williams, the circumstances of the offence against Mr Smith cannot be taken into account. Those matters are reflected in the sentence imposed for the

offence against Mr Smith which is not challenged by the State. The criminality of the respondent's conduct as a whole is considered when determining the appropriate total sentence.

57 Against that background, I now turn to the circumstances of the offence against Mr Williams. The fall caused by the respondent's assault on Mr Smith attracted Mr Williams' attention who walked towards the respondent or Mr Smith. The respondent perceived Mr Williams to be a threat but, as the sentencing judge found, the perception was unreasonable. When the respondent and Mr Williams were facing each other, the respondent pushed and then punched him with a single blow to the face. The punch, which was very forceful, caused Mr Williams to topple backwards and to strike his head on the brick paving.

58 Mr Williams was taken to hospital and received two days of treatment during which he appeared to be making reasonably good progress towards recovery. However, he suffered a deep vein thrombosis which caused a fatal embolism.

59 The trial judge found that the offence against Mr Williams was spontaneous and not premeditated and that the respondent was genuinely remorseful, had cooperated with police and volunteered information against his interests. The respondent had no prior convictions and was highly regarded by his superiors in the Navy and by others who knew him.

60 This court cannot uphold an appeal against sentence simply because it would have imposed a different sentence. It is only entitled to intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest inadequacy is a claim of implied error of law. The State is required to demonstrate that the sentence for the offence of unlawfully causing grievous bodily harm is manifestly too short so as to be outside the range of a sound sentencing discretion. The notion of a sentencing range reflects the fact that there is no single correct sentence. Sentencing is an evaluative and judgmental process on which reasonable minds can differ.

61 When determining whether a sentence is manifestly inadequate (or excessive) regard is had to the maximum sentence for the offence, the standards of sentencing customarily imposed for offences of that type, the level of seriousness of the circumstances of the offending and matters personal to the offender.

62 The maximum sentence for the offence of causing grievous bodily harm is 10 years' imprisonment (6 years 8 months post transitional). The sentences imposed for that offence have a post-transitional range of 8 months' imprisonment (The State of Western Australia v Camilleri [2008] WASCA 217) to 5 years and 4 months' imprisonment (Bruno v The State of Western Australia [2005] WASCA 149).

63 The cases relied on by the Chief Justice are at the high end of the range of seriousness of offending of this type. Moreover, the matters personal to the offenders in those cases, particularly their record of prior offending, reflect considerable weight having been given to the interrelated sentencing objectives of personal deterrence and protection of the community from the offender. In Dadswell v The Queen [2003] WASCA 212, the court described the offending as an extremely brutal attack causing multiple injuries with long-term impairment of the victim's cognitive function. The circumstances of the offending, although not detailed in the reasons, was characterised as being at the highest end of the scale of seriousness of crimes of that type and justified a sentence of 7 years' imprisonment (4 years and 8 months post-transitional) which was at that time without precedent. It is apparent that the level of violence was very high. The offender had a prior record of violent offending.

64 The court in Bruno accurately described the circumstances of the offending in that case (detailed in the reasons of the Chief Justice) as being in the worst category. The offender in Bruno also had a prior record of violent offending, as did the offenders in The State of Western Australia v Jeffries [2007] WASCA 255, Hayes v The Queen [2003] WASCA 230, and Jones v The Queen (Unreported, WASCA, Library No 920406, 31 July 1992). The level and extent of the violence involved in the offending in the above cases are at a significantly higher level of seriousness than the present case. The consequences of the violence were also at a high level of seriousness. When the circumstances of the offending are considered together with the personal circumstances of the offenders, those cases provide no support for a conclusion that the sentence imposed on the respondent was outside the customary range or outside a sound sentencing discretion.

65 The circumstances of this case are more in keeping with those in Clements v The State of Western Australia [2006] WASCA 69, Trompler v The State of Western Australia [2008] WASCA 265, R v Hodges [1999] WASCA 278 and Stanik v The Queen [2001] WASCA 333 where the post transitional terms of imprisonment imposed were 2 years, 1 year and 8 months, 2 years and 2 years respectively. The offenders in these cases were men of prior good character. Alcohol fuelled situations provide the usual backdrop for offences of this nature. The cases as a whole demonstrate that the variability in sentences for the offence of causing grievous bodily harm is partly attributable to matters personal to the offender. Other important sentencing considerations are the nature and extent of the violence used and harm caused.

66 The positions of the State in relation to the s 304(2) offence against Mr Smith and the grievous bodily harm offence against Mr Williams are difficult to reconcile. Aspects of the circumstances of the offending against Mr Smith are objectively more serious than the offending against Mr Williams. Whilst Mr Smith was slumped against the restaurant door, the respondent punched him three or four times in the face directly causing fractures to Mr Smith's jaw and nose. It is an element of the s 304(2) offence against Mr Smith that the respondent intended to cause bodily harm. Because intent is an element of a s 304(2) offence, the maximum penalty is 20 years. As already noted, the relevant injury to Mr Williams was caused by one punch and the respondent did not intend to cause grievous bodily harm. The only more serious aspect of the offending against Mr Williams is the harm for which the respondent is criminally responsible. That can justify the higher penalty imposed for the grievous bodily harm offence but it cannot rationally explain the State's position that the sentence for the s 304(2) offence is appropriate but the sentence for the grievous bodily harm offence is manifestly inadequate. The State may have erroneously concluded that the sentence should reflect the fact that the respondent's conduct caused Mr Williams' death.

67 The violence against Mr Williams was spontaneous, isolated and towards the low end of the scale of seriousness. Although the consequences were severe, the respondent is not criminally responsible and cannot be sentenced for Mr Williams' death. The respondent is a relatively young man of prior good character who mitigated his offending by demonstrating remorse and cooperating with police. The not guilty plea is consistent with remorse, the respondent having been charged with, and acquitted of, the manslaughter of Mr Williams. A term of immediate imprisonment for the offence is what is required to mark its seriousness. However, the circumstances of the offending and the mitigating factors justify a sentence towards the lower end of the scale. A sentence of 1 year and 8 months (reduced from 2 years solely for totality reasons) is not manifestly inadequate.

68 The State's claim that the total sentence is manifestly inadequate is dependent on a finding that the sentence for the s 297 offence is manifestly inadequate. Accordingly that claim must also fail.

69 Ground 5 arises out of the re-sentencing of the respondent pursuant to s 37 of the Sentencing Act 1995 (WA). The sentence for the s 304(2) offence (count 1) was imposed before this court's decision in Yates v The State of Western Australia [2008] WASCA 144 which held that cl 2(1) of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (the transitional provisions) applied to a s 304(2) offence. After the decision in Yates the sentencing judge reduced the 2-year sentence on count 1 by one-third to 1 year and 4 months. At the original sentencing hearing, the trial judge had determined that a total effective sentence of 3 years' imprisonment was appropriate. However, that outcome could not be achieved once the sentence on count 1 had been reduced to 1 year and 4 months. In order to implement his original determination that the total sentence should be 3 years, the sentencing judge reduced the term on count 2 from 2 years to 1 year and 8 months and made the terms on counts 1 and 2 cumulative instead of partially concurrent.

70 As I understand it, the State contends there are two problems with this approach. First, it is said to contravene the approach required by the High Court in Pearce v The Queen (1998) 194 CLR 610 which is to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as totality. The High Court in Pearce identified the orthodox approach to sentencing for multiple offences. However, it is not an appealable error to adopt a different approach (such as for example, by adjusting the otherwise appropriate sentence rather than ordering partial concurrency) provided the correct sentencing principles are applied: Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26]; Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259 [27].

71 The second complaint has more merit. It is to the effect that the reduction in the sentence on count 1 should also have been reflected in a reduction in the total sentence because to do otherwise would be tantamount to circumventing the operation of the transitional provisions. Assuming, without deciding, that the sentencing judge erred in that way, it could only result in a reduction of the total sentence. The respondent does not cross-appeal for such a reduction. Section 31(4) of the Criminal Appeals Act 2004 (WA) provides that the Court of Appeal may only allow an appeal if in its opinion a different sentence should have been imposed. I am not of that opinion.