Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - State appeal against sentence - Aggravated grievous bodily harm, assaulting a public officer and cruelty to animal - Offences committed while respondent subject to suspended imprisonment order - Manifest inadequacy - Totality principle - Residual discretion in State appeals against sentence - Effect of mandatory minimum penalty for offence committed in circumstances of aggravation which were not pleaded

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

Sentencing Act 1995 (WA), s 7(3), s 32, s 80

CMB v Attorney General (NSW) [2015] HCA 9; (2015) 89 ALJR 407

Garlett v The State of Western Australia [2016] WASCA 80

Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 45 WAR 207

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Gurgone v The State of Western Australia [2016] WASCA 9

JWD v The State of Western Australia [2013] WASCA 233

Mercanti v The State of Western Australia [2009] WASCA 109

Moran v The State of Western Australia [2011] WASCA 137

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

Newport v The State of Western Australia [2015] WASCA 224

Peake v The State of Western Australia [2015] WASCA 239

QJS v The State of Western Australia [2015] WASCA 9

Roffey v The State of Western Australia [2007] WASCA 246

Smith v The State of Western Australia [2010] WASCA 176

The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119

The State of Western Australia v Ellement [2016] WASCA 1

The State of Western Australia v Jeffries [2007] WASCA 255

The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308

Trompler v The State of Western Australia [2008] WASCA 265

Wilson v The State of Western Australia [2010] WASCA 82

Winmar v The State of Western Australia [2016] WASCA 62

1 BUSS P: This is a State appeal against sentence.

2 The respondent was convicted, on his pleas of guilty before Staude DCJ, of five counts on indictment 1581 of 2015 and three counts on a notice under s 32 of the Sentencing Act 1995 (WA).

3 On 15 April 2016, the sentencing judge imposed a total effective sentence of 2 years 2 months' immediate imprisonment. The total effective sentence was backdated to 6 August 2015. A parole eligibility order was made.

4 Details of the counts on the indictment and the s 32 notice, the maximum penalties, the sentences imposed and the orders for concurrency or cumulacy are set out below:

Aggravated unlawful wounding - s 301(1)(a) Criminal Code (WA) (the Code)

Aggravated grievous bodily harm - s 297(1) and s 297(3) Code

Attempted stealing of a motor vehicle - s 371A, s 378 and s 552 Code

Stealing of a motor vehicle - s 371A and s 378 Code

Cruelty to an animal - s 19(1) Animal Welfare Act 2002 (WA)

5 The respondent committed the indictable offences and the s 32 notice offences while he was subject to a suspended imprisonment order of 10 months' imprisonment suspended for 12 months. The suspended imprisonment order was imposed on 17 November 2014 in the Magistrates Court in relation to:

(a) two offences of being armed or pretending to be armed in a way that may cause fear;

(c) three offences of breaching a community based order; and

6 Pursuant to s 80 of the Sentencing Act, the sentencing judge ordered the respondent to serve 6 months of the 10 months' suspended imprisonment, commencing on 15 April 2016.

The facts and circumstances of the offending

7 The facts and circumstances of the indictable offences, the s 32 notice offences and the suspended imprisonment order offences are set out in Mitchell JA's reasons. I will not repeat them except to the extent necessary to explain my reasons.

8 The sentencing judge's sentencing remarks are summarised in Mitchell JA's reasons. It is unnecessary to repeat them except to the extent necessary to explain my reasons.

10 Ground 1 alleges that the sentence imposed for count 1 on the indictment was manifestly inadequate.

11 Ground 2 alleges that the sentence imposed for count 2 on the indictment was manifestly inadequate.

12 Ground 3 alleges that the total effective sentence infringed the first limb of the totality principle.

13 The respondent was born on 22 August 1989. He was aged 25 when he committed the indictable offences and the s 32 notice offences, and was 26 at the time of sentencing.

14 He had a significant and lengthy prior criminal record, including convictions for offences involving domestic violence and the breach of police and violence restraining orders.

15 The respondent entered early pleas of guilty. The sentencing judge allowed a discount of 25%, pursuant to s 9AA of the Sentencing Act, on each of the head sentences he would otherwise have imposed.

16 The respondent expressed remorse for his offending. However, he claimed to have no recollection of his actions. He attributed his professed lack of recollection to methylamphetamine intoxication.

17 At the sentencing hearing, defence counsel asserted that the death of the respondent's father in 2009 triggered the respondent's increasingly heavy use of methylamphetamine and, ultimately, the offending in question.

18 The respondent regularly committed antisocial offences after the death of his father in 2009 and before the occurrence of most of the offending in question in July or August 2015, including the following:

(a) a conviction on 23 September 2010 for breach of a violence restraining order;

(b) a conviction on 21 February 2011 for obstructing public officers and disorderly behaviour in a public place;

(c) a conviction on 14 May 2013 for breach of a violence restraining order and aggravated common assault;

(d) a conviction on 4 September 2013 for obstructing public officers and disorderly behaviour in a public place;

(e) a conviction on 11 February 2014 for aggravated common assault;

(f) a conviction on 8 April 2014 for breach of a violence restraining order;

(g) convictions on 17 November 2014 for two separate offences of being armed in public in a way that may cause fear; and

(h) a conviction on 19 January 2015 for breach of a violence restraining order.

19 The respondent did not commit any offences between 2005 and 2009. His Honour appears to have attached substantial weight to that factor.

20 A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

21 The maximum penalty for unlawful wounding, if the offence is committed in circumstances of aggravation, contrary to s 301(1)(a) of the Criminal Code (WA) (the Code), is 7 years' imprisonment.

22 The maximum penalty for unlawful wounding, if the offence is not committed in circumstances of aggravation, contrary to s 301(1)(b) of the Code, is 5 years' imprisonment.

23 When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the respondent, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. But the mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

24 The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.

25 The seriousness of the facts and circumstances of offending against s 301(1)(a) can be highly variable. The sentences imposed for offences of this kind vary significantly given the wide variety of circumstances in which the offence can be committed and the differing personal circumstances of the offenders. Accordingly, care must be exercised, when considering other cases of aggravated unlawful wounding, to identify all the relevant facts and circumstances of those cases before deciding whether the sentence in question is manifestly excessive or manifestly inadequate. See Moran v The State of Western Australia [2011] WASCA 137 [20] - [21] (Hall J, McLure P & Newnes JA agreeing).

26 I have examined a number of previous cases involving offending against s 301(1)(a) or s 301(1)(b) which have at least some features comparable to the respondent's offending. See, in particular, Smith v The State of Western Australia [2010] WASCA 176; Moran; and the decisions referred to in Smith and Moran. It is unnecessary to reproduce the facts and circumstances of or the sentencing outcomes in the prior cases.

27 In the present case, the respondent's offending was serious. In particular:

(a) The respondent armed himself with a claw hammer, a weapon capable of inflicting serious harm.

(b) The respondent's attack upon the victim was cowardly. He struck her on the head with the claw hammer while she had her back to him.

(c) The respondent's attack upon the victim was unprovoked.

(d) The respondent's conduct, in arming himself with a weapon capable of inflicting serious harm, and using the weapon to strike the victim on the head, had the potential to cause the victim extremely serious injury.

(e) The victim was shorter than the respondent. He was tall and of medium build. She had little or no chance of defending herself.

(f) The offending occurred while the respondent was subject to a suspended imprisonment order.

28 The injury inflicted upon the victim in the present case was not of the most serious kind, but it was nevertheless significant. The wound to the back of her head exposed her skull and bled profusely. There were three lacerations which required suturing.

29 The respondent did not have the mitigation of youth or inexperience.

30 His personal circumstances and antecedents were unfavourable. He had relevant previous convictions. Although his prior criminal record did not aggravate the seriousness of the offending in question, it indicated that the respondent was not entitled to any leniency on the ground that he was ordinarily of good character. The respondent had a history of domestic violence towards his partners, and this underscored the importance of personal deterrence as a sentencing factor.

31 The mitigating factors appear to have been confined to the respondent's early plea of guilty, his expression of remorse and the emotional trauma associated with the death of his father. The respondent's methylamphetamine intoxication was not, of course, mitigatory.

32 In my opinion, the sentence of 6 months' immediate imprisonment was not commensurate with the seriousness of the offence. I am satisfied, after considering all relevant facts and circumstances and all relevant sentencing factors, that the length of the sentence was unreasonable or plainly unjust. That is the only conclusion reasonably open when the sentence is viewed from the perspective of the maximum penalty (7 years' imprisonment); the seriousness of the offending (including the vulnerability of the victim); the general pattern of sentencing for offences of the kind in question; the importance of appropriate punishment and personal and general deterrence as sentencing considerations; and all mitigating factors. The sentence was not merely 'at the lower end of the available range' or 'lenient'. It was substantially outside the sentencing range open to his Honour on a proper exercise of his discretion.

34 The maximum penalty for unlawfully doing grievous bodily harm to another, if the offence is committed in circumstances of aggravation, contrary to s 297(1) read with s 297(3) of the Code, is 14 years' imprisonment.

35 The maximum penalty for unlawfully doing grievous bodily harm to another, if the offence is not committed in circumstances of aggravation, contrary to s 297(1) of the Code, is 10 years' imprisonment.

36 The only cases in which there has been an appeal to this court against a sentence imposed for unlawfully doing grievous bodily harm to another, in circumstances of aggravation, are The State of Western Australia v Jeffries [2007] WASCA 255 and The State of Western Australia v Ellement [2016] WASCA 1.

37 By contrast, this court has considered, on numerous occasions, appeals against sentence for unlawfully doing grievous bodily harm, without circumstances of aggravation. See, for example, Trompler v The State of Western Australia [2008] WASCA 265; Mercanti v The State of Western Australia [2009] WASCA 109; The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308; Peake v The State of Western Australia [2015] WASCA 239; Winmar v The State of Western Australia [2016] WASCA 62; and decisions cited in those cases.

38 In Taylor [35] - [39], I made these remarks (McLure P and Mazza JA agreeing) about sentencing for unlawfully doing grievous bodily harm to another, where (unlike the present case) the offence is not committed in circumstances of aggravation:

In Trompler, Wheeler JA (Buss JA agreeing) noted that there are, in general, three matters of significance in determining the criminality of an offence which involves unlawfully doing grievous bodily harm. First, there is the nature of the harm which is inflicted. Although any grievous bodily harm is necessarily serious, it may range from a permanent injury with which the complainant is able to cope, to a severe and life-threatening injury which occasions significant permanent disability. Secondly, there is the nature of the act which causes the harm. This may range from a single act, to repeated acts of violence. Thirdly, there is the background to and circumstances of the offence. This may range from a response to a provocative act of the complainant, to random and senseless violence. See Trompler [9] - [11]. See also Hussaini v The State of Western Australia [2009] WASCA 207 [23] (Wheeler JA).

McLure JA made these comments in Trompler about the broad range of sentences (post-transitional) for unlawfully doing grievous bodily harm:

'The sentences actually imposed for offences of this type have a post-transitional range of 8 months (Camilleri) to 5 years and 4 months (Bruno v The State of Western Australia [2005] WASCA 149). I have reviewed many of the cases in between (including R v Hodges [1999] WASCA 278; Hayes v The Queen [2003] WASCA 230; Clements v The State of Western Australia [2006] WASCA 69; Etrelezis v The Queen [2001] WASCA 327) [38].'

In each of The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394, Bruno v The State of Western Australia [2005] WASCA 149, R v Hodges [1999] WASCA 278, Hayes v The Queen [2003] WASCA 230 and Clements v The State of Western Australia [2006] WASCA 69, the offender entered a plea of guilty.

In Trompler, Wheeler JA observed:

'I would note that in Camilleri (The State of Western Australia v Camilleri [2008] WASCA 217), I reviewed a number of cases involving offences of grievous bodily harm. They reveal that, as one would expect, serious offences of the kind inevitably attract sentences of imprisonment of some severity and that, prior to the increase in the maximum penalty from 7 years to its current maximum of 10 years, relatively serious examples of that kind of offence would result in a range of sentences (pre-transitional) of 3 to 5 years. Allowing for the effect of the transitional provisions and the effect of the increase in the maximum, one would expect a post-transitional range of 3 to 5 years for those offences which are towards the upper end of the range, although not of the most serious kind [19].'

In Mercanti, Miller JA (Wheeler & Pullin JJA agreeing) held that the general range established in cases of unlawfully doing grievous bodily harm is between 8 months and 5 years 4 months, but more like 3 to 5 years for offences towards the upper end of the range [35]. His Honour added that these ranges were 'post-transitional' and, in view of the decision of the majority in The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, this was the appropriate range to apply [36]. See also Djiagween v The State of Western Australia [2012] WASCA 141; Holden v The State of Western Australia [2011] WASCA 238; Hobby v The State of Western Australia [2011] WASCA 197; Steel v The State of Western Australia [2010] WASCA 118; Ward [No 2].

39 In the present case, the respondent's offending was serious. As I have noted, in the context of ground 1, the respondent armed himself with a claw hammer, a weapon capable of inflicting serious harm, and his attack upon the victim was unprovoked. The injury to the victim's hand was not life-threatening and did not result in any permanent residual disability. However, she sustained the injury in the course of attempting to defend herself against the respondent striking her again with the hammer after he had committed the offence the subject of count 1 on the indictment. The respondent's conduct in striking the victim with the hammer had the potential to cause her extremely serious injury. He was physically stronger and more powerful than her. As I have mentioned, the offending occurred while the respondent was subject to a suspended imprisonment order.

40 I am satisfied that the sentence of 18 months' immediate imprisonment was not commensurate with the seriousness of the offence. In my opinion, after having regard to all relevant facts and circumstances and all relevant sentencing factors, the length of the sentence was unreasonable or plainly unjust. That is the only conclusion reasonably open when the sentence is viewed from the perspective of the maximum penalty (14 years' imprisonment); the seriousness of the offending (including the vulnerability of the victim); the general pattern of sentencing for offences of the kind in question; the importance of appropriate punishment and personal and general deterrence as sentencing considerations; and all mitigating factors. As with the sentence for count 1, the sentence for count 2 was not merely 'at the lower end of the available range' or 'lenient'. It was substantially outside the sentencing range open to his Honour on a proper exercise of his discretion.

42 The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

43 I have concluded that the individual sentence for count 1 on the indictment and the individual sentence for count 2 on the indictment were manifestly inadequate. Each of those offences occurred in the course of a sustained attack by the respondent upon the victim. The attack ceased only when the victim took refuge at the neighbour's premises.

44 The respondent's assault on Constable Salt (count 4 on the indictment) and the respondent's cruelty to the police dog, Slam (count 3 on the s 32 notice) were serious offences of their type. The respondent produced a knife in the course of his interaction with Constable Salt. The respondent used the hammer to inflict bodily injury on Constable Salt. He also used the hammer to strike Slam. Accumulation of the individual sentences for those offences was necessary.

45 Further, it was an aggravating feature of the offences in question that they were committed while the respondent was subject to a suspended imprisonment order. It was necessary that the term of 6 months' imprisonment ordered to be served, pursuant to s 80 of the Sentencing Act, be accumulated.

46 In my opinion, the total effective sentence of 2 years 2 months' immediate imprisonment was not commensurate with the overall seriousness of all of the offending. I am satisfied that the total effective sentence did not bear a proper relationship to the criminality involved in all of the offences, viewed together, and after having regard to all relevant facts and circumstances and all relevant sentencing factors, including the seriousness of the offending as a whole, the pattern of sentencing in reasonably comparable cases and the mitigation. Error by the sentencing judge should be implied or inferred, based on the first limb of the totality principle, from the sentencing outcome.

The penalty for the assault against Constable Salt

48 The sentencing judge sentenced the respondent for the assault against Constable Salt (count 4 on the indictment) on the basis that the maximum penalty for the offence was 7 years' imprisonment and the minimum penalty for the offence was 6 months' immediate imprisonment. See s 318 of the Code. On appeal, the State did not challenge the correctness of the maximum penalty or the minimum penalty on the basis of which his Honour sentenced the respondent. It is unnecessary, in the circumstances, to deal with that issue in this appeal.

The result of the appeal and the resentencing of the respondent

50 Counsel for the respondent did not submit that the discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. The respondent does not, of course, bear an onus to establish that the residual discretion should be exercised in his favour. Rather, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised. See CMB v Attorney General (NSW) [2015] HCA 9; (2015) 89 ALJR 407 [33] - [34] (French CJ & Gageler J), [66] (Kiefel, Bell & Keane JJ).

51 In my opinion, there is no basis, in the present case, for invoking the discretion. The individual sentences for counts 1 and 2 on the indictment and the total effective sentence imposed by the sentencing judge were substantially less than the sentences open on a proper exercise of the sentencing discretion. Appealable error has been very clearly established. This court's intervention is necessary to ensure the preservation of proper sentencing standards for the relevant offences.

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

53 The individual sentences imposed by his Honour for counts 1 and 2 on the indictment should be set aside. His Honour's orders for concurrency and cumulacy in relation to the counts on the indictment, the counts on the s 32 notice and the suspended imprisonment order (as activated by his Honour) should be set aside. The individual sentences imposed by his Honour for counts 3, 4 and 5 on the indictment and the counts on the s 32 notice, and the term of 6 months' immediate imprisonment ordered to be served in respect of the suspended imprisonment order, should not be disturbed.

54 I would allow a discount of 25%, pursuant to s 9AA of the Sentencing Act, on each of the head sentences I would otherwise have imposed for each of counts 1 and 2 on the indictment.

55 After taking into account the maximum penalties, the facts and circumstances of the offences and all other relevant sentencing factors (including matters of mitigation), I would impose an individual sentence of 2 years' immediate imprisonment for count 1 on the indictment (aggravated unlawful wounding), an individual sentence of 3 years 6 months' immediate imprisonment for count 2 on the indictment (aggravated grievous bodily harm) and a total effective sentence of 4 years 8 months' immediate imprisonment.

56 Each of the individual sentences for count 4 on the indictment (6 months' immediate imprisonment for assaulting a public officer), count 3 on the s 32 notice (2 months' immediate imprisonment for cruelty to an animal) and charge PE 91675 of 2014 (6 months' immediate imprisonment in relation to the suspended imprisonment order) should be served cumulatively upon each other and cumulatively upon the new individual sentence for count 2 on the indictment (3 years 6 months' immediate imprisonment for aggravated grievous bodily harm).

57 All other individual sentences (including the new individual sentence for count 1 on the indictment) should be served concurrently with each other and concurrently with the new individual sentence for count 2 on the indictment.

58 The new individual sentence for count 2 on the indictment is to be taken to have taken effect on 6 August 2015.

59 The respondent remains eligible for parole. He will be eligible to be considered for release on parole upon having served 2 years 8 months in custody calculated from 6 August 2015.

61 The State appeals against a total effective sentence of 2 years 2 months' imprisonment imposed on the respondent in respect of a number of offences. The most significant offences occurred on 5 August 2015, while the respondent was subject to a suspended imprisonment order. Those offences arose out of the respondent's attacks on his former de facto partner and a police officer using a claw hammer. The respondent pleaded guilty to unlawfully wounding his partner and causing grievous bodily harm to her in circumstances of aggravation. He also pleaded guilty to assaulting a public officer performing a function of his office, and cruelty to the officer's police dog which he also struck with the hammer.

62 The State appeals on the grounds that the sentences imposed for the unlawful wounding and grievous bodily harm offences were manifestly inadequate. The State also contends that the total effective sentence imposed for the offences described above and certain other offences infringed the first limb of the totality principle of sentencing. That is, the State contends the total effective sentence of 2 years 2 months' imprisonment failed to bear a proper relationship to the overall criminality involved in all the offences.

63 I agree with the State's submissions and would allow the appeal. In all the circumstances the respondent should be resentenced to a total effective term of 4 years 8 months' imprisonment.

Offences against respondent's de facto partner on 5 August 2015

64 The respondent had been in a domestic relationship with his female victim for about 8 months at the time of these offences. They shared a home in South Guildford. He was 25 years old, of medium build and 180 cm tall. She was 26, of solid build and 170 cm tall.

65 The respondent and his victim were at their home at about 7.30 pm on 5 August 2015. Both had used amphetamines earlier in the day. The respondent became agitated and left the residence for some time. He was armed with a hammer when he left. The respondent returned to the residence with the hammer and argued with the victim, making a number of allegations against her. In the course of the argument, the respondent threatened to strike the victim with the hammer. She did not believe that he would do so, and turned her back to the respondent. The respondent then violently struck the victim to the back of her head, exposing her skull and causing significant bleeding. This conduct was the subject of the unlawful wounding charge.

66 As the victim was attempting to flee the house, the respondent attempted to strike her again with the hammer. The victim raised her right hand to protect herself and the hammer struck her hand, causing a fracture to the third metacarpal. This subsequently required the insertion of a titanium plate to prevent permanent disabilities, which were likely to include stiffness and reduced function of the hand. This conduct was the subject of the charge of causing grievous bodily harm in circumstances of aggravation.

67 The victim then ran to a neighbour's front yard and called for help. The neighbour allowed the victim into his rear yard, which prevented the respondent from following her. The respondent yelled abuse and waved the hammer at the victim from the neighbour's gate. He walked back to their residence and smashed three windows on the victim's Holden Astra. He then walked back to the neighbour's gate and continued yelling at the victim and waving the hammer in her direction. The respondent then walked off down the road.

Offences against Constable Salt and his police dog on 5 August 2015

68 A short time after the events described above, Constable Salt and his police dog Slam were travelling in a police car along Queens Road in South Guildford searching for the respondent. They located the respondent walking along the road and asked him to stop. Constable Salt exited the police car, leaving the engine running and the door ajar. As he approached the respondent, the respondent sprinted around the vehicle and entered the driver's seat. He fully depressed the accelerator and attempted to engage the gear shift in 'drive'. This conduct was the subject of the charge of attempting to steal a motor vehicle.

69 As the respondent moved to shut the door, Constable Salt attempted to enter the car. The door struck Constable Salt's arm. Constable Salt managed to open the door and dive into the car. Constable Salt and the respondent wrestled for control of the gear shift and vehicle while the respondent was 'gunning' the engine. The respondent removed a large folded knife from his beltline. The knife dropped to the floor of the car, as Constable Salt struggled with the respondent in an attempt to knock the knife from his hand. Constable Salt then fired his taser at the respondent, which was not effective.

70 Constable Salt released his police dog, Slam, and commanded Slam to hold the respondent. Slam took hold of the respondent by the lower leg and pulled him out of the driver's seat, where the respondent came to a standing position. Constable Salt took hold of the respondent's torso.

71 The respondent then produced a hammer and raised it to approximately chest height. The respondent struck Slam on the head with the hammer, and then landed a second blow of the hammer onto Constable Salt's upper left arm, causing pain and bruising.

72 The respondent raised the hammer high above his head as though to strike Slam, who was still holding his leg, on the head again. Constable Salt shouted at the respondent to drop his hammer and re-deployed his taser. The taser was effective on this occasion, and the respondent went to the ground. As Constable Salt attempted to restrain the respondent's upper body area and secure the hammer, the taser cycle finished. The respondent then continued to fight with Constable Salt, still armed with the hammer. Constable Salt tasered the respondent again, which had a temporary effect. Constable Salt was able to kick the hammer from the respondent's hand, and then restrain the respondent until assistance arrived.

73 This conduct was the subject of the charges of assaulting and obstructing a public officer, and of cruelty to an animal (the latter being dealt with by s 32 notice).

74 At the time of committing the offences of 5 August 2015, the respondent was subject to a suspended imprisonment order. On 17 November 2014, the Magistrates Court sentenced the respondent to a total effective sentence of 10 months' imprisonment, suspended for 12 months. Suspended terms of imprisonment were imposed for two counts of being armed or pretending to be armed in a way that may cause fear, two counts of breach of bail, four counts of breaching a conditional release order and one count of stealing.

75 On 19 January 2015, the respondent was convicted of trespass, breaching a police order and breaching his suspended sentences. On that occasion, the Magistrates Court fined him and determined that the suspended imprisonment orders made on 17 November 2014 should continue.

Section 32 notices

76 The respondent also requested that he be sentenced for a number of charges pending in the Magistrates Court, pursuant to s 32 of the Sentencing Act 1995 (WA). One of those charges concerned the respondent's cruelty to the police dog Slam, referred to above. Others concerned a trespass at Crown Casino on 22 July 2015, from which the operators had prohibited the respondent from entering, and the stealing of a motor vehicle on 3 July 2014.

77 The respondent was sentenced for the above offences on 15 April 2016.

78 The sentencing judge referred to the circumstances of the offending on 5 August 2015, finding that the respondent was significantly affected by methylamphetamine intoxication at the time. The sentencing judge noted that the offences reflected an escalation in his offending behaviour. He referred to the respondent's 'long history of engagement with the courts going back to when you were a young teenager'. The sentencing judge did note that the respondent had not been before the courts from 2005 - 2010, when he was living a purposeful life with his children.

79 The sentencing judge referred to the setback which the respondent suffered when his father died. The sentencing judge then had a discussion with the respondent about the cycle of family dysfunction and steps which he should take towards his rehabilitation.

80 The sentencing judge identified totality as an important consideration. The sentencing judge noted that, despite the respondent's varied and extensive criminal record, this was his first term of imprisonment. The sentencing judge took account of the respondent's pleas of guilty, giving a 25% reduction under s 9AA of the Sentencing Act and also giving the respondent credit for the acceptance of responsibility and the remorse which he had shown.

81 The sentencing judge said it was evident from a psychological report that the respondent was developing better insight into his behaviour and the reasons for it. The sentencing judge told the respondent he had a chance of living a better life and being a good father to his children. He also noted the risk factors concerning accommodation, the respondent's association with negative influences and his substance abuse.

82 The sentencing judge then imposed the following sentences:

Section 32 notice

83 The sentencing judge also activated 6 months of the 10-month suspended sentence, but ordered that it be served wholly concurrently with the other sentences.

84 The total effective sentence for all of the offences was therefore 2 years 2 months' imprisonment, backdated to commence on 6 August 2015.

85 The State appeals against the sentences imposed on 15 April 2016. Leave to appeal was granted on 6 June 2016.

86 The State contends that the individual sentences of imprisonment imposed for the unlawful wounding (6 months) and grievous bodily harm (18 months) offences were manifestly inadequate. The State also contends that the total effective sentence of 2 years 2 months' imprisonment infringed the first limb of the totality principle.

87 The general principles governing a State appeal against sentence are well established, and recognise the discretionary nature of the sentencing exercise.[1] As Mazza JA noted in The State of Western Australia v Ellement:[2]

A claim of manifest inadequacy is an allegation of implied error. The ground of appeal cannot succeed unless the State demonstrates that the sentence imposed by his Honour was unreasonable or plainly unjust. To determine whether a sentence is manifestly inadequate, regard is had to the maximum sentence prescribed for the offence ... ; the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on the scale of seriousness of offences of that type and the personal circumstances of the offender.

The range of sentences customarily imposed provides a yardstick against which to measure the sentence under consideration with the aim of ensuring broad consistency in outcomes. However, it does not mark the boundaries within which the sentencing discretion is to be exercised. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect [37] - [38]. (citation omitted)

88 The alleged breach of the first limb of the totality principle in this case is also an allegation of implied error. The first limb of the totality principle requires that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.[3] The question is whether error can be inferred because the end result could not have been reached in the proper exercise of sentencing discretion. This requires consideration of all relevant sentencing factors to determine whether the sentence imposed was open in the circumstances.[4]

89 Where the principle of totality comes into effect, it is of little importance how the aggregate sentence is made up.[5] However, in the present case it is it is convenient to begin by considering the State's challenge to the individual sentences.

90 If error is established, this court may resentence the respondent. In doing so, the court does not take account of the fact that its decision may mean the respondent is again sentenced for the offence.[6] The common law principle of double jeopardy that once applied to State appeals against sentence has been abrogated.[7] However, even where appealable error is established, it remains incumbent on the State to negate any reason why the 'residual discretion' not to interfere with the sentence should be exercised.[8]

91 It is convenient to begin by considering the State's contention that the 18-month sentence imposed for the aggravated grievous bodily harm offence was manifestly inadequate.

92 The maximum penalty for the charged offence was 14 years' imprisonment, under s 297(3) of the Criminal Code. The higher maximum penalty arises because the respondent was convicted of committing the offence in the circumstance of aggravation that the respondent was in a family and domestic relationship with the victim of the offence.[9] If the offence had not been committed in circumstances of aggravation, the maximum penalty would have been 10 years' imprisonment.[10]

93 This court has considered the range of sentences imposed for the offence of causing grievous bodily harm in a number of cases. There is no single tariff for the crime of doing grievous bodily harm contrary to s 297(1) of the Criminal Code. However, it has been noted on a number of occasions that the general range established in cases of unlawfully doing grievous bodily harm is between 8 months and 5 years 4 months, with relatively serious examples of that offence attracting sentences of 3 - 5 years.[11] A sentence in the range of 3 - 5 years will commonly be imposed in cases involving the use of weapons.[12]

94 In an often cited passage in Trompler v The State of Western Australia,[13] Wheeler JA identified three matters which are generally significant in assessing the criminality involved in an offence of doing grievous bodily harm:

1. The nature of the resulting harm (which may range from a permanent injury which the victim is able to accommodate, to a severe and life-threatening injury resulting in serious permanent disability).
2. The nature of the act which causes the injury (which may involve deliberate and repeated violence or only a single act, and which may or may not involve the use of weapons).
3. The background and circumstances of the offence (whether a deliberate attack carried out in order to obtain some personal advantage, or for revenge, as opposed to senseless violence or aggression, and whether the offender's act is a response to provocative or threatening conduct).

95 The respondent's offending involved a serious example of the offence of causing grievous bodily harm. It may be accepted that the material before the sentencing judge did not establish that the respondent's de facto partner sustained permanent injury, and the injury to her hand which she in fact sustained was not life-threatening. However, it was significant that the injury in fact sustained was a defensive wound caused by an attempt to strike the victim with a hammer, in circumstances where the respondent had just struck her with the hammer to the back of her head. The use of the hammer in that manner was likely to permanently injure or even kill the victim. The level of violence employed against the victim was high. The infliction of the injury formed part of a sustained attack against the victim which ceased only after she was able to take refuge at the neighbour's premises. The victim had not provoked the attack, and posed no threat to the respondent.

96 It was also a significant aggravating factor that the offence occurred in a family and domestic relationship. Parliament has recognised the more serious nature of an offence committed in those circumstances by providing for a maximum penalty of 14, rather than 10, years' imprisonment. The provision which Parliament has made reflects an attitude of the community and the courts that serious acts of violence in a family and domestic relationship cannot be tolerated and demands a penalty with a significant specific and general deterrent effect. It must be recalled that the cases to which I have referred generally deal with offences to which the 10-year maximum penalty applies.

97 Another aggravating feature of this case is that the offence was committed while the respondent was subject to a suspended sentence.[14]

98 Having regard to the seriousness of the offence, including the fact that it was committed in circumstances of aggravation, a sentence of 18 months' imprisonment stands well outside the range of sentences customarily imposed for offences of this kind. That, of course, does not establish that the sentence was manifestly inadequate. As has been recognised on many occasions:[15]

1. The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
2. A sentencing range for comparable offences is merely one factor to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is significant for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
3. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
4. The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.

99 However, an 18-month sentence of imprisonment for a serious example of causing grievous bodily harm in circumstances of aggravation reflects a large disparity from the established general range (3 - 5 years' imprisonment for serious examples of the offence even where circumstances of aggravation are not established).

100 There is nothing in the respondent's circumstances or antecedents that could justify such a significant departure from the general range of sentences imposed in cases of this kind. At the age of 25 years, the respondent no longer enjoys the mitigating effect of youth. The respondent had an extensive record, including offences of violence in a domestic setting, although none involved the level of violence in this case. The respondent acknowledged that he had perpetrated domestic violence on a regular basis. The pre-sentence report author concluded that, if the respondent relapsed into illicit drug use when released to the community, he was at a high risk of committing offences of a similar nature in a future domestic relationship. The fact that the offence was committed while under the influence of methylamphetamine is not mitigatory. The only significant mitigating factor arose from the respondent's pleas of guilty.

101 Having regard to the nature and circumstances of this offence and offender, and the range of offences customarily imposed for offences of this kind, a sentence of 18 months' imprisonment for causing grievous bodily harm in circumstances of aggravation is unreasonable and plainly unjust. Ground of appeal 2 is established.

102 I am also of the view that the sentence of 6 months' imprisonment for the unlawful wounding offence, considered as an individual sentence, was manifestly inadequate in all the circumstances (which include that the victim was struck in the head from behind with a hammer). However, little turns on that conclusion, as the sentence for the unlawful wounding offence is appropriately served wholly concurrently with the more serious offence of causing grievous bodily harm in circumstances of aggravation committed as part of the same transaction.

103 I have concluded that the 18-month sentence imposed for the offence of causing grievous bodily harm in circumstances of aggravation was manifestly inadequate. That total effective sentence does not, in my view, adequately reflect the degree of criminality involved in the offences against the respondent's de facto partner considered alone. It follows that the total effective sentence of 2 years 2 months' imprisonment for all offences failed to bear a proper relationship to the overall criminality involved in all the offences. Further, at least a significant degree of accumulation was required in order to reflect the offending which was the subject of the suspended imprisonment orders, as well as the offences against Constable Salt and his police dog Slam.

104 The assault of Constable Salt was a serious example of assaulting a public officer performing a function of his office. Any assault occasioning bodily harm to a police officer performing his or her important community function is a serious matter. That is particularly so where weapons are involved. The respondent produced a knife, which he did not have the opportunity of using, and employed a claw hammer to inflict bodily injury on Constable Salt. His physical aggression was sustained despite Constable Salt's repeated use of a taser. The experience must have been traumatic for the police officer, who (along with his police dog) was exposed to a risk of serious injury.

105 The respondent has not pointed to anything in the circumstances of the present case which should lead the court to exercise its 'residual discretion' to dismiss the State's appeal despite appealable error having been established. There was no delay in bringing or determining the appeal; we are informed that the respondent has been refused parole (appeal ts 16); the court has not been provided with material suggesting that the respondent has made any particular progress towards rehabilitation while in custody; and there was nothing in the State's conduct of the proceedings which should lead to the appeal being dismissed.[16] To decline to intervene in the circumstances of this case would simply perpetuate the error in imposing manifestly inadequate sentences which failed to give effect to the first limb of the totality principle.

106 In all the circumstances, bearing in mind that it is for the State to demonstrate why the discretion to interfere should be exercised, the appropriate exercise of the court's 'residual discretion' is to allow the appeal and resentence the respondent according to law.

Penalty for the assault against Constable Salt

107 Before turning to resentence the respondent, I will address an issue concerning the 6-month cumulative sentence imposed on the respondent in respect of his assault of Constable Salt, which the Director did not seek to challenge.

108 The offence charged in count 4 of the indictment was an offence of assaulting a public officer performing a function of his office, contrary to s 318(1)(d) of the Criminal Code. The maximum penalty for that offence is prescribed by s 318(1)(l) and s 318(1)(m) of the Criminal Code. Under s 318(1)(l), the maximum penalty is 10 years' imprisonment where the offender is, at or immediately before or immediately after the commission of the offence, either armed with any dangerous or offensive weapon or instrument or in company with another person or persons. Otherwise, the maximum penalty, provided for by s 318(1)(m), is 7 years' imprisonment.

109 Section 318(2) - s 318(5) of the Criminal Code provide for mandatory minimum penalties in certain cases. One such case is where the offence against s 318(1)(d) is committed against a public officer who is a police officer and the officer suffers bodily harm. The minimum penalty is 9 months' immediate imprisonment where the offence is committed in the circumstance set out in s 318(1)(l), and 6 months' immediate imprisonment in other circumstances.

110 On the facts read to the sentencing judge, and accepted by the respondent as correct, the public officer was a police officer assaulted with a hammer used as an offensive weapon resulting in bodily injury. On that basis, subject to the operation of s 7(3) of the Sentencing Act, the maximum penalty for the offence against Constable Salt was 10 years' imprisonment and the minimum penalty was 9 months' immediate imprisonment.

111 The prosecutor informed the sentencing judge that the maximum penalty for the offence was 7 years' imprisonment and the mandatory minimum term was 6 months' imprisonment.[17]

112 The prosecutor's reference to the maximum term was correct when account is taken of s 7(3) of the Sentencing Act and the fact that the indictment did not plead, as a circumstance of aggravation, that the respondent was armed with a dangerous or offensive weapon. Section 7(3) provides:

If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then:

(a) an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and

(b) whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.

113 Because the indictment did not allege that the respondent was armed with a dangerous or offensive weapon, he was not charged with committing the offence in that circumstance of aggravation. While the presence of weapons could still be taken into account as an aggravating factor, there was no charged circumstance of aggravation which operated to increase the maximum penalty for the offence from 7 to 10 years' imprisonment.[18]

114 However, the prosecutor at sentencing incorrectly identified 6 months as the minimum term. In a letter of 26 July 2016, which I would give leave to provide as a supplementary submission, the Director indicated the State's position in relation to the application of s 7(3) to the statutory minimum penalty. The State accepts that s 7(3) required the State to plead the circumstances of bodily harm and possession of a dangerous or offensive weapon in the indictment in order for the minimum sentence of 9 months to become mandatory pursuant to s 318(4)(a) of the Criminal Code. It would also follow from this concession that there was no minimum term which the court was required to impose in this case. That is because the indictment also did not plead the prescribed circumstance, which was required to engage the 6-month minimum term, that Constable Salt suffered bodily harm.

115 Although the position has not previously been resolved by this court,[19] I accept the Director's concession that s 7(3) of the Sentencing Act applies to a statutory minimum penalty. It follows from the definition of 'statutory penalty' in s 4(1) of the Sentencing Act, and the manner in which s 9 of that Act deals with the effect of a statutory penalty, that the reference in s 7(3) to a 'statutory penalty for an offence' includes a statutory minimum penalty. That Constable Salt was a police officer assaulted with a weapon which caused bodily injury could be taken into account as aggravating factors under s 7(3)(b) of the Sentencing Act. However, because the relevant circumstances of aggravation were not pleaded in the indictment the respondent was not liable to any minimum penalty by virtue of the operation of s 7(3)(a) of the Sentencing Act.

116 The Director was also given an opportunity at the hearing of the appeal to amend the State's grounds of appeal to challenge the sentence imposed in respect of the assault on Constable Salt. The Director did not seek to do so.

117 In these circumstances, I would not, in resentencing the respondent, interfere with the wholly cumulative 6-month sentence imposed in respect of the assault of Constable Salt.

118 In light of the above conclusions it remains for this court (which has the necessary material) to consider the sentence which ought to be imposed.

1. For the offence of causing grievous bodily harm in circumstances of aggravation, 3 years 6 months' imprisonment.
2. For the offence of unlawful wounding, 2 years' imprisonment to be served concurrently with the sentence for the grievous bodily harm offence.

120 In fixing these sentences I have allowed a 25% discount under s 9AA of the Sentencing Act. In the case of the sentence for count 2 on the indictment, I have reduced a notional head sentence of 5 years' imprisonment by 15 months (or 25%) under s 9AA and by an additional 3 months for other mitigating factors.

121 I would not interfere with the other individual sentences imposed by the sentencing judge (including the sentence of 6 months' imprisonment for the offence of assaulting Constable Salt, and the sentence of 2 months' imprisonment for the offence of cruelty to an animal).

122 The sentences should be accumulated in the manner indicated below to produce a total effective sentence of 4 years 8 months' imprisonment. The head sentence should be backdated to begin on 6 August 2015 to take account of time spent in custody on remand. The respondent should remain eligible for parole on all sentences.

123 For these reasons, I would make the following orders:

1. The appeal is allowed.
2. The sentences for counts 1 and 2 on District Court indictment 1581 of 2015 be set aside and the following sentences substituted:

(a) Indictment count 1 (unlawful wounding): 2 years' imprisonment, concurrent.

(b) Indictment count 2 (causing grievous bodily harm in circumstances of aggravation): 3 years 6 months' imprisonment, cumulative.

1. The orders for concurrency and cumulacy in relation to the counts on the indictment, the counts on the s 32 notice and the suspended imprisonment order (as activated by the sentencing judge) should be set aside.
2. Each of the individual sentences for count 4 on the indictment (6 months' immediate imprisonment for assaulting a public officer), count 3 on the s 32 notice (2 months' immediate imprisonment for cruelty to an animal) and charge PE 91675 of 2014 (6 months' immediate imprisonment in relation to the suspended imprisonment order) should be served cumulatively upon each other and cumulatively upon the sentence for count 2 on the indictment (3 years 6 months' immediate imprisonment for aggravated grievous bodily harm).
3. All other individual sentences in relation to the counts on the indictment, the counts on the s 32 notice and the suspended imprisonment order are to be served concurrently with each other and concurrently with the sentence for count 2 on the indictment.
4. The sentence imposed for count 2 on the indictment is taken to have commenced on 6 August 2015.

[1] See Wilson v The State of Western Australia [2010] WASCA 82 [2].

[2] The State of Western Australia v Ellement [2016] WASCA 1.

[3] Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].

[4] JWD v The State of Western Australia [2013] WASCA 233 [40] - [41].

[5] Roffey [26]; Garlett v The State of Western Australia [2016] WASCA 80 [46].

[6] Section 41(4)(b) of the Criminal Appeals Act 2004 (WA).

[7] The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [142] - [160].

[8] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [64] - [78];

CMB v Attorney General (NSW) [2015] HCA 9; (2015) 89 ALJR 407 [33] - [34], [66].

[9] Section 221(a) of the Criminal Code.

[10] Section 297(1) of the Criminal Code.

[11] See, for example, Winmar v The State of Western Australia [2016] WASCA 62 [66] - [69]; Gurgone v The State of Western Australia [2016] WASCA 9 [38] and cases there cited.

[12] For recent examples, see Winmar; Gurgone; Cotterill v The State of Western Australia [2013] WASCA 52; The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308.

[13] Trompler v The State of Western Australia [2008] WASCA 265 [9] - [11].

[14] QJS v The State of Western Australia [2015] WASCA 9 [34]; Newport v The State of Western Australia [2015] WASCA 224 [42].

[15] See, for example, Winmar [70] - [73].

[16] See Munda [72], citing Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [43].

[17] See par 6(b) of the State's written sentencing submissions and ts 13, 36.

[18] As to the operation of s 7 of the Sentencing Act in relation to circumstances of aggravation which increase the maximum available penalty, see the discussion in Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 45 WAR 207 [13] - [15], [26] - [46], [174].

[19] An argument that s 7(3) could apply to a statutory minimum penalty was noted but not resolved in Rowsell v The State of Western Australia [2015] WASCA 2 [31].