Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Appeal - Criminal law and procedure - Application for leave to appeal - Whether reasonable prospects of success - turns on own facts

Criminal Appeals Act 2004 (WA), s 27

R v White [2002] WASCA 112

Stephens v The State of Western Australia [2005] WASCA 98

Ugle v The Queen [2001] WASCA 268

Vilai v The Queen [1999] WASCA 275

1 PULLIN JA: This is an application for leave to appeal against sentence. Section 27 of the Criminal Appeals Act states that the leave of the Court of Appeal is required for each ground of appeal and the Court of Appeal must not give leave to appeal unless satisfied the ground has a reasonable prospect of succeeding.

2 On 27 July 2005 Blaxell J sentenced the appellant to 4 years 7 months' imprisonment for the offence of unlawful wounding with intent to do grievous bodily harm and a further 6 months for breaching community based orders in relation to two charges of driving under suspension, these community based orders having been ordered on 23 October 2003. At the time he was sentenced by Blaxell J he was serving a sentence for another driving under suspension offence.

3 The circumstances in which the appellant was taken into custody and dealt with are as follows. He was taken into custody on 4 September 2004 in relation to the unlawful wounding charge. He was then held until 4 February 2005 when he was sentenced for driving whilst under suspension. He served nearly the whole of the nonparole period in relation to that offence between 4 February 2005 and 27 July 2005, when he was sentenced for the unlawful wounding.

4 His Honour would have imposed a sentence of 5 years for the unlawful wounding charge, but he had to take into account the fact that the appellant had already been 5 months in custody for that offence. It was not possible to backdate the sentence because he was serving a sentence in relation to the driving conviction. As a result, the outcome was that his Honour imposed a sentence of 4 years 7 months for the unlawful wounding charge, although it was clearly understood that his Honour worked on the basis that had it not been for the complications the sentence was 5 years.

5 In relation to the two breach offences, he was sentenced to 6 months' imprisonment on each, these to be concurrent with each other but cumulative on the unlawful wounding charge. The circumstances of the unlawful wounding charge are set out in his Honour's sentencing remarks.

6 In short, the appellant's victim was the mother of the appellant's 8-year-old son. The complainant and the appellant had been separated and she was in fear of the appellant and had moved to Sydney. However, the Family Court had ordered the appellant be provided with access to his son and it was for that reason that the complainant was obliged to return to Perth. She was visiting the appellant's parents' house to allow the appellant access to the child.

7 As his Honour explained, during the course of that evening the appellant attacked the complainant with a knife, and he stabbed at the complainant a number of times, the complainant blocking some of these motions using her arms and hands. She struggled free and ran to the appellant's parents for help. In that incident she received multiple stab wounds, including a stab wound to the anterior left side of the chest. She had lacerations to her thumb and right upper arm.

8 The appellant was 34 years of age and had a past record of convictions which were not serious. His Honour noted that the appellant showed immediate remorse, but subsequently it seems that inconsistent views had been expressed in telephone calls that the appellant had made. It was an aggravating factor, and I agree a particularly aggravating factor, that the offence occurred when the complainant was with the appellant because of the Family Court order relating to access. His Honour made a comment that it was little weight that he had been convicted of unlawful wounding as distinct from grievous bodily harm. His Honour said it was completely fortuitous that the complainant came off as lightly as she did.

9 The first ground of appeal is that the sentence of 4 years 7 months, effectively 5 years, was manifestly excessive, having regard to the minor injuries sustained by the complainant, the early plea of guilty, remorse and the fact that he rendered assistance, and the pattern of sentencing in similar cases.

10 In my opinion, his Honour was at liberty to say that it was fortuitous that there was only a wounding rather than grievous bodily harm. The intent was to do grievous bodily harm, and in my opinion there is no appellable error merely because he made that comment. If the sentence can be shown to be manifestly excessive by measuring it against the range of other sentences normally imposed for this kind of offence, then the comment would likely reveal why it was excessive, but if the sentence is not manifestly excessive, then the comment was, in my opinion, permissible and appropriate.

11 The complaint is that the sentence was manifestly excessive, having regard to the early plea of guilty. As to that, I have mentioned that the appellant displayed some ambivalence about this in subsequent telephone calls. These may have indicated to his Honour that the appellant was not entirely remorseful, so the sentencing Judge would have been entitled to reduce the normal discount that might be allowed for a plea of guilty in this case. He said that the plea of guilty was "reasonably early".

12 The other factor relied upon in support of this ground of appeal is the fact that the appellant rendered assistance.

13 In my opinion, these factors have clearly been taken into account by his Honour in imposing sentence, so the real point is whether or not the sentence imposed was beyond the range of sentencing customarily imposed for this type of offence.

14 Reference has been made to a few cases in the appellant's submissions, but these cases are grievous bodily harm cases. In the case of Stephens v The State of Western Australia [2005] WASCA 98 there was a review of some other grievous bodily harm cases, but clearly it was not an extensive review.

15 In my view, it would be more appropriate in making a comparison to refer to cases where there had been charges of unlawful wounding with intent to do grievous bodily harm. Three cases have been located by the Court and they are Ugle v The Queen [2001] WASCA 268, Vilai v The Queen [1999] WASCA 275 and R v White [2002] WASCA 112. They were all unlawful wounding cases, all three involved pleas of guilty and they reveal sentences, converted to post-2003 sentences, of between 4 years and 5 years and 4 months. Measured against those cases, the sentence of 5 years in this case is not manifestly excessive and, that being so, it is my opinion that this ground has no reasonable prospect of success.

16 Ground 2 complains about the cumulative 6 month sentence for breaching the two community based orders. The ground alleges that the learned trial Judge failed to have proper regard to the operation of the totality principle, in that the sentence already imposed for the indictable offence was more than sufficient to cover the seriousness of the offending behaviour.

17 It is also complained that the learned Judge failed to take into account the length of time which had elapsed since the commission of the offences, and that the appellant had otherwise complied with the conditions of the community based order for 11 months. His Honour noted that the second of the breach offences occurred while he was on bail for the first. That is a significant matter. He said that ordinarily in those circumstances he would have ordered the two 6 month terms, which he thought to be appropriate, to be cumulative with each other, but he said having regard to totality that they be concurrent with each other but cumulative on the other term; that is the unlawful wounding term of imprisonment.

18 The argument comes down to a suggestion that the trial Judge was more or less obliged to make the two 6 month sentences concurrent with the unlawful wounding charge. In my view, his Honour's discretion did not miscarry, and there is no reasonable prospect of successfully arguing that the discretion miscarried. Even though 11 months of the community based orders had elapsed without any offence having been committed, the offence that was committed in breach of the community based order was a serious one. In addition, his Honour mentioned the aggravating factor that one of the offences which attracted the 6 month sentence was one which had been committed while on bail on the first, so in my opinion the reasoning was in order, there was no error demonstrated, and as a result I conclude that ground 2 has no reasonable prospect of success.

19 Because I have refused leave in relation to both grounds I mention s 27(3) of the Criminal Appeals Act which states that the appeal is therefore taken to have been dismissed.