Abfahr v The State of Western Australia
[2013] WASCA 87
•5 APRIL 2013
ABFAHR -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 87
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 87 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:191/2012 | 8 FEBRUARY 2013 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 5/04/13 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application for an extension of time to appeal dismissed Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | ZIAD ABFAHR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Appellant convicted after trial of doing grievous bodily harm with intent to his estranged wife Sentence of 5 years' immediate imprisonment Whether the trial judge erred in failing to suspend the sentence because of difficulties in arranging appropriate care for the appellant's and the victim's young children Whether sentence manifestly excessive |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4)(a) Criminal Code (WA), s 294(1) Road Traffic Act 1974 (WA), s 54, s 56 Sentencing Act 1995 (WA), s 6(4), s 39 |
Case References: | Black v The State of Western Australia [No 2] [2010] WASCA 145 Boyle v The Queen (1987) 34 A Crim R 202 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Eriha v The State of Western Australia [2011] WASCA 167 Fazari v The State of Western Australia [2012] WASCA 176 Fogg v The State of Western Australia [2011] WASCA 11 Hodder v The Queen (1995) 15 WAR 264 Kennedy v The State of Western Australia [2008] WASCA 185 McCormack v The Queen [2000] WASCA 139 McMaster v The Queen [2004] WASCA 52 Minhaj v The Queen [2000] WASCA 52 Petrelis v The State of Western Australia [2012] WASCA 235 Rolfe v The State of Western Australia [2012] WASCA 169 S v The Queen [2003] WASCA 309 Skipworth v The State of Western Australia [2008] WASCA 64 Stephens v The State of Western Australia [2005] WASCA 98 Stewart v The Queen (1994) 72 A Crim R 17 The State of Western Australia v Jeffries [2007] WASCA 255 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ABFAHR -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 87 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BIRMINGHAM DCJ
File No : IND 738 of 2011
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted after trial of doing grievous bodily harm with intent to his estranged wife - Sentence of 5 years' immediate imprisonment - Whether the trial judge erred in failing to suspend the
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sentence because of difficulties in arranging appropriate care for the appellant's and the victim's young children - Whether sentence manifestly excessive
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Code (WA), s 294(1)
Road Traffic Act 1974 (WA), s 54, s 56
Sentencing Act 1995 (WA), s 6(4), s 39
Result:
Application for an extension of time to appeal dismissed
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : No appearance
Solicitors:
Appellant : N R Barber Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Black v The State of Western Australia [No 2] [2010] WASCA 145
Boyle v The Queen (1987) 34 A Crim R 202
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Eriha v The State of Western Australia [2011] WASCA 167
Fazari v The State of Western Australia [2012] WASCA 176
Fogg v The State of Western Australia [2011] WASCA 11
Hodder v The Queen (1995) 15 WAR 264
Kennedy v The State of Western Australia [2008] WASCA 185
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McCormack v The Queen [2000] WASCA 139
McMaster v The Queen [2004] WASCA 52
Minhaj v The Queen [2000] WASCA 52
Petrelis v The State of Western Australia [2012] WASCA 235
Rolfe v The State of Western Australia [2012] WASCA 169
S v The Queen [2003] WASCA 309
Skipworth v The State of Western Australia [2008] WASCA 64
Stephens v The State of Western Australia [2005] WASCA 98
Stewart v The Queen (1994) 72 A Crim R 17
The State of Western Australia v Jeffries [2007] WASCA 255
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1 McLURE P: I agree with Buss JA.
2 BUSS JA: The appellant has applied for an extension of time to appeal, and leave to appeal, against sentence.
3 On 20 January 2012, he was convicted, after a trial in the District Court before Birmingham DCJ and a jury, on three counts in an indictment.
4 Count 1 alleged that on 5 October 2010, at Spearwood, the appellant, with intent to maim, disfigure, disable or do some grievous bodily harm to his estranged wife, Soad Nahim Abfahr, unlawfully did grievous bodily harm to Ms Abfahr, contrary to s 294(1) of the Criminal Code (WA) (the Code).
5 Count 2 alleged that on 5 October 2010, at Spearwood, the appellant, being the driver of a Mitsubishi Magna motor vehicle on a road, which was involved in an incident occasioning bodily harm to another person (that is, to Ms Abfahr), failed to stop immediately after the occurrence of the incident and for as long as necessary to comply with the requirements of s 54(2) and s 54(6) of the Road Traffic Act 1974 (WA) (the Act), contrary to s 54(1) and s 54(3)(b) of the Act.
6 Count 3 alleged that on 5 October 2010, at Spearwood, the appellant failed to report the incident referred to in count 2 forthwith to the officer in charge of a police station, contrary to s 56(1) and s 56(2) of the Act.
7 On 7 June 2012, the trial judge imposed individual terms of immediate imprisonment, as follows:
Count 1: 5 years;
Count 2: 18 months;
Count 3: 12 months.
8 His Honour ordered that the sentences for counts 2 and 3 be served concurrently with each other and concurrently with the sentence for count 1. The total effective sentence was therefore 5 years' immediate imprisonment. The sentences were backdated to commence on 2 January 2011 to give credit for time the appellant had spent in custody on remand. A parole eligibility order was made.
9 In addition, the trial judge ordered that the Mitsubishi Magna vehicle be confiscated and that the appellant's motor vehicle driver's licence be
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- disqualified for four years (cumulative on any other period of disqualification) with effect from 7 June 2012.
The application for an extension of time
10 The last date for the appellant to appeal against sentence was 28 June 2012. He did not file his appeal notice until 30 August 2012.
11 The appellant relies on an affidavit sworn 28 August 2012 by his then solicitor, Matthew Alexander Holgate, in support of the application for an extension of time.
12 I will consider the merits of the proposed grounds of appeal before deciding whether an extension should be granted.
The facts and circumstances of the offending
13 The appellant and Ms Abfahr were born in Syria. They were married in 1994. Since 1995 they have lived in Australia. At the time of sentencing, the appellant was aged 50 and Ms Abfahr was 36.
14 When the offending occurred the appellant and Ms Abfahr had been in a relationship for 16 years. The last 10 years had been marred by repeated incidents of domestic violence. Each claimed to have been the victim of threats and violence by the other. In 2005, 2009, 2010 and 2011, violence restraining orders were made against the appellant but were subsequently cancelled. Ms Abfahr ended the relationship in 2009.
15 Ms Abfahr has suffered from mental illnesses, including severe depression, for some time. This placed additional strain on her relationship with the appellant.
16 In September 2009, Ms Abfahr moved from Western Australia to South Australia with two of the children of her marriage to the appellant, namely T and Z. T was born in 2002 and Z in 2003.
17 In October 2009, Ms Abfahr and the children returned to Western Australia.
18 In April 2010, Ms Abfahr obtained a violence restraining order against the appellant which prohibited him from contacting her.
19 In June 2010, the Family Court of Western Australia granted Ms Abfahr custody of T and Z. Limited provision was made by the court for contact between the appellant and the children.
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20 On the evening of 4 October 2010, the appellant was served with an interim violence restraining order. He was upset by this event. During the evening he consumed a substantial quantity of alcohol. He had little sleep that night.
21 On the morning of 5 October 2010, the appellant received a telephone call from T and Z who informed him that Ms Abfahr was not at home. They asked him for food.
22 After receiving the telephone call, the appellant drove his motor vehicle from his home in Spearwood towards Fremantle. During the journey, he saw Ms Abfahr waiting for a bus on Rockingham Road. Ms Abfahr noticed the appellant and saw him carry out a U-turn and drive back in her direction. He appeared to her to be angry.
23 Shortly afterwards, Ms Abfahr travelled on a bus from Rockingham Road to Marvell Avenue. Upon alighting from the bus, she walked on the Marvell Avenue footpath towards Newton Street. After Ms Abfahr had walked about 80 m, the appellant saw her as he turned his vehicle from Newton Street into Marvell Avenue. The appellant drove some distance along Marvell Avenue. He then mounted the footpath and struck Ms Abfahr with the middle of the bonnet of his vehicle. After being hit by the bonnet, she was thrown into the air and landed on the pavement. The appellant continued to drive along Marvell Avenue without stopping.
24 Ms Abfahr was taken by ambulance to Fremantle Hospital. She received treatment for serious injuries, including a broken right femur, a broken left ankle, a broken nasal bone and soft tissue injuries. She underwent surgery for the fracture to her right femur.
25 After fleeing from the scene, the appellant drove to the Magistrates Court at Fremantle and made inquiries about challenging the interim violence restraining order. A court employee gave evidence at the trial that the appellant seemed unwilling to leave the Magistrates Court even when told by her that she was unable to assist him.
26 On the morning of 5 October 2010, after the incident occurred, the appellant spoke to his brother. The brother asked about the damage to the front of the appellant's vehicle. The appellant lied and said it was 'old damage'. At about 1.20 pm on that day, the appellant went to Fremantle Hospital after having been informed by family members that Ms Abfahr was there. The police located the appellant at the hospital and arrested him. He denied any involvement in the incident which caused
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- Ms Abfahr's injuries. He told the police that at the relevant time he was at the Magistrates Court in Fremantle.
27 The appellant did not admit until the eve of the trial that he was the driver of the vehicle that had collided with Ms Abfahr.
The appellant's version of events
28 The appellant gave sworn evidence in his defence at trial.
29 He said in evidence that on the morning of 5 October 2010, after receiving the telephone call from T and Z, he left home in his motor vehicle with the intention of driving to a shopping centre to purchase food for the children and then delivering it to them.
30 According to the appellant, Ms Abfahr jumped on the road in front of his vehicle while he was driving on Marvell Avenue. He suggested that she did this in order to create trouble for him by making it appear that he had breached the interim violence restraining order.
31 The appellant explained his failure to stop and his failure to report the incident on the basis that after the collision he saw Ms Abfahr in his rear-view mirror, she was attempting to get up and he presumed that she was fine.
32 As the trial judge noted in his sentencing remarks, the jury, by its verdict, rejected the appellant's version of events (ts 5).
The expert reports in relation to the appellant
33 The information before the trial judge at the sentencing hearing included a psychological report dated 31 January 2012 from Naomi Oliver, a clinical psychologist, and a pre-sentence report dated 7 May 2012.
34 The appellant, when interviewed by the authors of the reports, adhered in substance to his version of events at trial. He told Ms Oliver that he did not drive on the footpath and that his wife 'threw herself in front of the car because she wanted me in jail and to take the kids. She is mental. I couldn't stop because I knew I had a restraining order against me and I thought she was OK, so I left her and went' (2). The appellant believed that he should be absolved of any responsibility and appeared to have a complete lack of empathy and remorse in relation to his wife's significant injuries. He did not believe that he had any problems and, therefore, he did not require any help.
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35 Ms Oliver concluded that the appellant presented with 'profound deficits in empathy and remorse, minimisation and denial of violent and offending behaviour, a lack of personal responsibility for his behaviour, poor insight and possible difficulties with alcohol use' (3). She added that rehabilitative efforts would appear to be 'difficult … due to factors described above and his lack of rehabilitation readiness' (3).
The expert reports in relation to T and Z
36 The information before the trial judge at the sentencing hearing also included a psychological report dated 13 February 2012 from Kara Savilla, senior psychologist, and Tamara Muller, psychologist, of Families SA, an office within the Department for Education and Child Development of South Australia; an addendum psychological report dated 6 March 2012 from Ms Savilla and Ms Muller; and an addendum report dated 13 February 2012 to a Care and Protection Application made to the Youth Court of South Australia by Families SA. These reports related to T and Z.
37 The reports reveal, relevantly:
(a) In February 2011, Ms Abfahr moved again from Western Australia to South Australia with T and Z.
(b) In December 2011, Families SA were notified about Ms Abfahr's neglect of T and Z, the poor state of her home, disconnected electricity and gas, a lack of food in the home and Ms Abfahr's refusal to provide the children with adequate food.
(c) On 25 December 2011, Crisis Care workers attended at Ms Abfahr's home. She presented as confused, disorientated and distressed. Ms Abfahr was admitted to hospital on that day.
(d) On 25 December 2011, T and Z were taken into care by Families SA as no friends or relatives were available to care for them while Ms Abfahr was in hospital.
(e) Between about 25 December 2011 and at least about 6 March 2012, T and Z resided in transitional care with rotating commercial carers.
(f) Based on information gathered during a psychological assessment undertaken by Ms Savilla and Ms Muller in February 2012, Ms Savilla and Ms Muller had serious concerns regarding
- Ms Abfahr's ability to care for T and Z, including significant concerns about her mental health.
- (g) In their addendum dated 6 March 2012, Ms Savilla and Ms Muller said:
Assessment of family to care for [T and Z] has been completed by Families SA, and [a] recommendation [has] been made to place the children in the care of an aunt and uncle. It was the writers' understanding that, whilst this extended family were initially advised that short-term care was required for [T and Z] they understand that long-term care may be required and are committed to providing this (3).
(h) In their addendum dated 6 March 2012, Ms Savilla and Ms Muller made the following recommendations:
• Families SA should seek to return [T and Z] to WA to the care of approved family members following the finalisation of the relative care assessment, including confirming the carer's commitment to the long-term care of the children. Any transition to WA should be carefully managed to reduce disruption to the children's lives.
• Ongoing support with parenting [T and Z] should be provided to the carers with whom the children are placed, particularly regarding developing an understanding of [their] emotional needs …
• [T and Z] should be afforded regular telephone contact with [the appellant] while they continue to reside in SA to support their relationship. [T and Z] should be supported to visit [the appellant] in prison upon their return to WA, if this [is] determined to be in their best interests.
• [The appellant] should engage with services to develop strategies to manage his ongoing relationship with Ms Abfahr and conflicting feelings towards her, and to receive psycho-education regarding domestic violence and emotional regulation training.
• Families SA should ensure that [T and Z's] relationship with [the appellant] and his capacity to care for the children is reassessed at the time of his release from prison, prior to considering reunification (3).
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The trial judge's sentencing remarks
38 The trial judge said in his sentencing remarks that, for the purposes of sentencing, he was not satisfied beyond reasonable doubt that, when the appellant turned into Marvell Avenue, he then had 'any intention to strike' Ms Abfahr (ts 4). His Honour added, however, that the appellant 'did immediately form an intention when [he] saw her' and that his Honour was satisfied beyond reasonable doubt that '[the appellant] had that intention from the moment [he] saw her and [he] drove [his] vehicle directly at her and struck her and injured her' (ts 4).
39 His Honour found that the appellant had engaged in 'a deliberate violent attack on [his] wife and the mother of [his] children without any justification or cause' (ts 5). The appellant's intention was to cause Ms Abfahr 'serious injury' (ts 6). When the opportunity presented to strike her with his vehicle, the appellant 'seized it with some enthusiasm' (ts 6).
40 The trial judge said that if, as the appellant contended, he was driving along Marvell Avenue to go to the shopping centre and contact T and Z, 'given that [he] thought … [his] wife was not injured when she'd thrown herself at [his] vehicle, [his] conduct in not … getting the food for [his] children but rather [continuing] along Marvell Avenue and [going to] Fremantle is wholly inconsistent' (ts 6).
41 His Honour referred to the appellant being aged 50 years and observed that he had always been engaged in work (ts 6). He had no criminal record of relevance (ts 6). His Honour rejected the suggestion that the offences in question 'may well represent a pinnacle of broader abusive behaviour' (ts 7). According to his Honour, the appellant 'lost control in a very significant way and gave vent to feelings [he] had maintained for some time' (ts 7).
42 The trial judge referred to the care and welfare of T and Z. He noted that the appellant's attention and concern appeared now to be focussed on addressing the needs of the children (ts 6). His Honour also noted that, according to the author of the pre-sentence report, T and Z had 'reportedly suffered considerable distress whilst in the care of their mother and have been removed from her care by authorities in South Australia and placed in the care of their paternal uncle, your brother, and his wife who is [Ms Abfahr's] sister' (ts 6).
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43 His Honour accepted that the appellant had 'great love for [his] children' and that his 'overwhelming desire and concern [was] for their welfare' (ts 8).
44 The trial judge said that the welfare of the children was 'clearly a live issue in this case'; in particular, the impact on them of the appellant's incarceration for any substantial period (ts 9). His Honour observed that this would 'impact upon [T and Z] insofar as their mother is seemingly, at this stage, unable to care for them due to her continuing mental illness' (ts 9). His Honour then commented:
It must be said, however, that a factor contributing to your wife's incapacity must necessarily involve your conduct towards her, insofar as you deliberately drove a motor vehicle at her and caused grievous bodily harm to her, the mother of your children. [T and Z] then resided with her.
As I noted earlier … your protestations of concern for the welfare of your children was such that when you left that morning and ran over their mother, rather than do anything about the children, you drove on to the Fremantle Court and remained there (ts 9 - 10).
45 The trial judge concluded in relation to this issue:
So I have viewed with some scepticism your decision making process and the extent to which you were motivated by the welfare of your children, particularly on that occasion. The two youngest children now reside with the complainant's sister and her husband, your brother. Whilst that is not a satisfactory situation it has been in place now, I think, for some 18 months [sic] whilst you have been in custody.
Now, whilst I have great sympathy for the circumstances of the children, it must be recognised that it is a situation that is largely of your making through your conduct towards your wife and the commission of these offences. In my view, it would be wrong to allow you to benefit in any reduction in the sentence that I might impose in circumstances where they are largely of your making. I do not consider that the impact of any sentence upon the children is so exceptional that an otherwise proper sentence should be reduced (ts 10).
46 After imposing the sentences of imprisonment, his Honour considered whether they could be suspended. He decided that suspension would not 'meet the requirements for punishment and general and personal deterrence' and would not 'adequately reflect the seriousness of the offence' the subject of count 1 (ts 11).
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The proposed grounds of appeal
47 The appellant relies on two proposed grounds of appeal.
48 Ground 1 alleges that the trial judge erred, when determining not to suspend any term of imprisonment, by erroneously finding that the inability of Ms Abfahr to care for the children, T and Z, was, effectively, as a result of the appellant's actions.
49 Ground 2 alleges that the sentence of 5 years' immediate imprisonment for count 1 was manifestly excessive.
50 So, ground 1 asserts an express error and ground 2 an implied error.
The appellant's submissions
51 As to ground 1, counsel for the appellant submitted that the trial judge had found that '[Ms Abfahr] could look after the children prior to the incident' and that this finding was not reasonably open on the evidence.
52 As to ground 2, counsel for the appellant submitted that the sentence of 5 years' immediate imprisonment for count 1 was unreasonable or plainly unjust.
53 It was argued, in the context of both grounds, that suspended terms of imprisonment should have been imposed, alternatively that there should have been a shorter term of immediate imprisonment for count 1 and a shorter total effective custodial term.
54 Counsel submitted that there were 'exceptional circumstances' which required the appellant, rather than another family member, to care for T and Z.
The merits of ground 1
55 In my opinion, the trial judge did not make the finding attributed to him in ground 1. That is, he did not find that 'the inability of Ms Abfahr to care for the children, T and Z, was, effectively, as a result of the appellant's actions'.
56 This is apparent from the following observations by the trial judge in his sentencing remarks:
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- (a) His Honour said that an issue to be considered in the sentencing process was the impact on T and Z of the appellant's incarceration for any substantial period (ts 9).
(b) His Honour noted that the appellant's incarceration for any substantial period would 'impact upon [T and Z] insofar as their mother is seemingly, at this stage, unable to care for them due to her continuing mental illness' (ts 9).
(c) His Honour noted that 'a factor contributing to [Ms Abfahr's] incapacity must necessarily involve [the appellant's] conduct towards her, insofar as [he] deliberately drove a motor vehicle at her and caused grievous bodily harm to her' (ts 9).
(d) His Honour said that while he had 'great sympathy for the circumstances of the children, it must be recognised that it is a situation that is largely of your making through your conduct towards your wife and the commission of these offences' (ts 10).
57 In my opinion, these passages show that his Honour found, in substance, that Ms Abfahr was unable to care for T and Z as a result of her continuing mental illness, but the appellant had contributed towards his wife's incapacity to care for them as a result of his having caused her grievous bodily harm. The grievous bodily harm comprised significant injuries (including a broken right femur and a broken left ankle) which were treated in hospital and which would necessarily have involved a reasonably lengthy period of convalescence. It is obvious that these injuries would have impeded Ms Abfahr's capacity to discharge parental duties.
58 When the appellant committed the offences on 5 October 2010, Ms Abfahr had custody of T and Z pursuant to an order of the Family Court of Western Australia made in June 2010. The expert reports from Ms Savilla and Ms Muller of Families SA do not assess Ms Abfahr's mental state as at about 5 October 2010 (when the offences occurred). Rather, they focus on her mental state since in or about December 2011, when the child welfare authorities held significant concerns about Ms Abfahr's ability to care for T and Z and about her mental health.
59 In these circumstances, the trial judge did not make an error in finding that the grievous bodily harm which the appellant inflicted on Ms Abfahr contributed to her incapacity to care for the children.
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60 In any event, even if his Honour made the error attributed to him in ground 1, for the reasons I give when considering ground 2, a different sentence should not have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
61 Ground 1 is without merit.
The merits of ground 2
62 As to count 1, s 294(1) of the Code provides, relevantly, that any person who, with intent to maim, disfigure, disable or do some grievous bodily harm to any person, unlawfully does any grievous bodily harm to any person by any means whatever, is guilty of a crime, and is liable to imprisonment for 20 years.
63 The seriousness of the facts and circumstances of offending against s 294 can be highly variable. See Black v The State of Western Australia [No 2] [2010] WASCA 145 [28] (McLure P, Buss JA and Mazza J agreeing).
64 In The State of Western Australia v Jeffries [2007] WASCA 255, Steytler P (McLure and Miller JJA agreeing) referred to Stephens v The State of Western Australia [2005] WASCA 98 and the cases reviewed in Stephens. His Honour said:
Those were cases of causing grievously bodily harm with intent contrary to s 294 of the Criminal Code … They reveal that in such cases sentences of between 7 and 12 years' imprisonment, prior to the operation of the transitional provisions, are not uncommon [12].
65 The cases reviewed in Stephens by McLure JA (Malcolm CJ and Roberts-Smith JA agreeing) included Minhaj v The Queen [2000] WASCA 52, McCormack v The Queen [2000] WASCA 139 and McMaster v The Queen [2004] WASCA 52.
66 More recently, the sentences which have been imposed for offences against s 294 were discussed in Eriha v The State of Western Australia [2011] WASCA 167 [50] - [55] (Mazza J, McLure P and Newnes JA agreeing). See also Kennedy v The State of Western Australia [2008] WASCA 185; Rolfe v The State of Western Australia [2012] WASCA 169; Petrelis v The State of Western Australia [2012] WASCA 235.
67 As to counts 2 and 3, the maximum penalty for:
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- (a) the failing to stop offence, is 14 years' imprisonment and a driver's licence disqualification for such period as the court thinks fit (s 54(3) and s 54(4) of the Act); and
(b) the failing to report offence, is 10 years' imprisonment and a driver's licence disqualification for not less than 12 months (s 56(2) of the Act).
68 The maximum penalties for the failing to stop offence and the failing to report offence were increased significantly in 2008. See s 20 of the Road Traffic Amendment Act (No 2) 2007 (WA), which commenced on 15 March 2008. The amending Act repealed the existing s 54, s 55 and s 56 of the Act and inserted replacement s 54, s 55 and s 56 to reorder and reorganise the provisions so as to improve their clarity, in addition to increasing the applicable penalties.
69 Since the maximum penalties were increased, a sentencing range for these offences has not been established. Any cases dealing with sentences imposed before the increases in the maximum penalties are of little or no value for the purpose of comparison. See Fazari v The State of Western Australia [2012] WASCA 176 [67] - [69] (Buss JA, Murphy & Mazza JJA agreeing).
70 In Fazari, this court resentenced the offender under the new legislative scheme to 18 months' immediate imprisonment for a failing to stop offence and 6 months' immediate imprisonment for a failing to report offence.
71 It is well established that, in general, hardship to an offender's child is not a circumstance to be taken into account in the sentencing process. A case must be extreme or exceptional if the offender is to avoid a term of immediate imprisonment for that reason alone. Whether a particular case should be characterised as extreme or exceptional depends on the gravity of the offence and the circumstances of the case. See Boyle v The Queen (1987) 34 A Crim R 202, 204 - 206 (Burt CJ, Kennedy & Franklyn JJ agreeing); Stewart v The Queen (1994) 72 A Crim R 17, 21 (Franklyn J); Hodder v The Queen (1995) 15 WAR 264, 287 (Murray J); S v The Queen [2003] WASCA 309 [21] - [24] (Miller J, McKechnie J agreeing).
72 By s 6(4) of the Sentencing Act 1995 (WA):
A court must not impose a sentence of imprisonment on an offender unless it decides that -
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- (a) the seriousness of the offence is such that only imprisonment can be justified; or
(b) the protection of the community requires it.
73 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended imprisonment. See s 39(2) and s 39(3) of that Act. The sentencing judge must be positively satisfied that it is not appropriate to suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA), [58] (Buss JA); Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P, Mazza J agreeing).
74 The discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] (Kirby J). The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86] (Kirby J).
75 In the present case, when all relevant facts and circumstances and all relevant sentencing factors are evaluated, it is plain that it would not have been appropriate for the trial judge to suspend the terms of imprisonment he imposed or to reduce the individual term of 5 years' immediate imprisonment for count 1 or the total effective custodial term.
76 The seriousness of the offending precluded suspension. It is not even reasonably arguable that his Honour should have suspended the terms of imprisonment.
77 The egregious character of the offending was stark. The appellant deliberately carried out a violent attack on Ms Abfahr. He intended to (and did) cause her significant injuries. He seized the opportunity to run her down with some enthusiasm. Appropriate punishment and personal and general deterrence were the main sentencing considerations.
78 There was little mitigation. The appellant had a very good work ethic and he had no criminal record of relevance. He genuinely loved and was concerned for his children.
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79 However, the appellant had a complete lack of empathy and remorse for Ms Abfahr's injuries, he minimised his criminal behaviour, he refused to accept personal responsibility for what he had done, he had poor insight, and efforts towards his rehabilitation were likely to be difficult. The appellant did not have the mitigation that a plea of guilty would have brought.
80 No doubt, T and Z have suffered and will continue to suffer hardship and distress as a result of the inability of the appellant and Ms Abfahr to care for them. I am not persuaded, however, that the degree of hardship is severe. The evidence before the trial judge did not indicate that the children's uncle and aunt were not properly attending to their needs.
81 The appellant committed a serious offence. He is morally responsible for his own inability, by virtue of his incarceration, to look after the children. This case cannot be characterised as extreme or exceptional. It would be incompatible with the gravity of the appellant's offending and the circumstances of the case (including the evident adequacy of the arrangements which the child welfare authorities have put in place for the care of T and Z).
82 I am satisfied that neither the individual sentence for count 1 nor the total effective custodial term was unreasonable or plainly unjust, when they are examined in the context of the maximum penalties, the level of seriousness of the appellant's offending, the sentences customarily imposed for the offences in question, the appellant's personal circumstances and antecedents (including the circumstances of his children) and any mitigating factors.
83 Ground 2 is without merit.
Conclusion
84 Neither of the proposed grounds of appeal has a reasonable prospect of success. The application for an extension of time to appeal, and leave to appeal, should therefore be dismissed.
85 MAZZA JA: I agree with Buss JA.
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