Ashley v The State of Western Australia
[2017] WASCA 131
•11 JULY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ASHLEY -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 131
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 21 JUNE 2017
DELIVERED : 11 JULY 2017
FILE NO/S: CACR 139 of 2016
BETWEEN: DANIEL JOHN ASHLEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STONE DCJ
File No :IND 388 of 2016
Catchwords:
Criminal law and sentencing - Totality - Offences of aggravated burglary, being armed and unlawful detention - Offender suffered serious injuries rendering him a paraplegic - Whether sentence reflects criminality of offences in their circumstances and in offender's personal circumstances
Legislation:
Nil
Result:
Appeal upheld
Category: D
Representation:
Counsel:
Appellant: Mr S Vandongen SC
Respondent: Mr J A Scholz
Solicitors:
Appellant: Kate King Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Quinn v The State of Western Australia [2006] WASCA 99
R v Barci (1994) 76 A Crim R 103
R v Galeano [2013] QCA 51; [2013] 2 Qd R 464
Sianas v The Queen [2016] VSCA 84
BUSS P & BEECH JA:
Introduction
The appellant pleaded guilty to one count of aggravated burglary, one count of being armed in a way that may cause fear, one count of aggravated assault and five counts of detaining another with intent to compel the doing of an act. The appellant committed these offences with the aim that he would die as a result of being shot by police. In the course of or immediately following his offending, he was shot by police, as a result of which he is a paraplegic. He was sentenced to a total effective sentence of 6 years' imprisonment. He appeals against the sentence imposed on the ground that it infringed the first limb of the totality principle.
For the reasons that follow, we would uphold the appeal and resentence the appellant to a total effective sentence of 4 years 6 months' immediate imprisonment.
The charges and the sentences imposed
The appellant pleaded guilty to the following eight counts, for which the following sentences, respectively, were imposed:
Count
Offence
Sentence
Maximum
1.
Aggravated burglary
3 years' imprisonment (HS)
20 years
2.
Being armed in a way that may cause fear
12 months' imprisonment (concurrent)
7 years
3.
Detained another with intent to compel the doing of an act
3 years' imprisonment (cumulative)
20 years
4.
Detained another with intent to compel the doing of an act
3 years' imprisonment (concurrent)
20 years
5.
Detained another with intent to compel the doing of an act
3 years' imprisonment (concurrent)
20 years
6.
Detained another with intent to compel the doing of an act
3 years' imprisonment (concurrent)
20 years
7.
Detained another with intent to compel the doing of an act
3 years' imprisonment (concurrent)
20 years
8.
Aggravated assault
12 months' imprisonment
(concurrent)
7 years
Thus, the total effective sentence was 6 years' imprisonment. A parole eligibility order was made. The total effective sentence was backdated to 2 August 2016.
The facts
The facts are not in dispute, and may be summarised as follows.[1]
[1] The summary comes from the sentencing judge's statement of facts.
In 2014 the appellant was in a relationship with a woman. In December of that year the appellant's girlfriend terminated their relationship.[2]
[2] ts 139.
Between 9 and 10 June 2015, the appellant contacted a former colleague of his who by then was working as a police constable. He asked her about how police normally respond to hostage situations and whether they shoot to kill or shoot to disarm.[3]
[3] ts 139.
On 23 June 2015, the appellant attended various retail outlets and purchased a firearm mountable accessory torch, firearm scope, flexible cuffs, a radio earpiece, a handcuff key, tactical gloves, cargo pants, a duffel bag, a medic badge, a badge wallet, a handcuff strap, two rolls of gaffer tape, matches and a 20‑litre fuel can.[4]
[4] ts 139.
At about 2.00 pm that same day the appellant attended an address in Mosman Park. He knocked on the door and was met by one of the complainants, Mr M, who was the primary occupant of that house. There was no one else at home at the time. The appellant showed him an advertisement for the sale of the house and a floorplan for the house and purported to be a potential buyer. The appellant asked if he could see inside the house. Mr M refused, instead referring the appellant to the real estate agent.[5]
[5] ts 139.
At about 8.30 pm that same day the appellant returned to the address in Mosman Park. He drove his car there and parked it on the street near the front of the property. Inside the boot of the car was a 20-litre fuel can which was almost full of petrol.[6]
[6] ts 139.
He knocked on the front door. His ex‑girlfriend answered the door. He immediately pointed a replica pistol at her and then struck her directly or indirectly to the left shoulder, knocking her to the ground.[7] At the time, the house was occupied by four occupants who normally lived there in a house share arrangement as well as the mother of one of the occupants who was visiting from overseas.[8]
[7] ts 139.
[8] ts 140.
He ordered his ex‑girlfriend to go into the living room and for all of the victims to get on the floor. They all believed the gun was real. All of them except for his ex‑girlfriend got on the floor as ordered. The appellant held the replica pistol in his left hand and threatened to strike her with an expandable baton that was in his right hand. After his ex‑girlfriend continued to defy the appellant, he struck her twice to her left elbow causing her pain and temporary loss of feeling in her left hand (count 8).[9]
[9] ts 140.
He then bound the victims' hands behind their back and their feet, except one, with flexi cuffs. He also covered the mouths of two victims. He then went through their wallets and purses and turned off their mobile phones.[10]
[10] ts 141.
The appellant made various calls to 000 demanding that he speak with a police negotiator. He threatened that he would shoot someone should his demands not be met.[11]
[11] ts 142.
At about 11.15 pm the appellant exited the house via the front door with the replica pistol and approached police. He was continually instructed by the police to drop his gun. He ignored their commands.[12]
[12] ts 143.
The appellant was shot by police in the torso. He collapsed and officers approached to take control of him. He then lifted the gun and pointed it in the direction of police. Another officer then shot the appellant in the side of his face.[13]
[13] ts 143.
As a result of the first shot, the appellant is now a paraplegic. No‑one other than the appellant suffered any significant physical injuries.
The judge also accepted that:
(a)it was not the appellant's intention to physically harm the hostages. Rather, his intention was to die by what he called 'cop suicide';[14] and
(b)the appellant did not intend to knock his ex‑girlfriend to the floor when he forced his way into the house.[15]
[14] ts 144.
[15] ts 144.
The appellant's personal circumstances
The appellant was 26 years old at the time of the offending. He grew up in Perth. His parents separated when he was 9 years old.
He did not have any relevant adult criminal history. He was studying towards a Bachelor in Japanese and Computer Science at the University of Western Australia. He was employed as a security officer at Crown Casino for four years.[16]
[16] ts 146 ‑ 147.
The appellant was suffering from a number of health-related issues at the time of sentencing. The report of Dr Ker, which was before the sentencing judge, described the appellant's physical condition as follows:
(a)The appellant sustained an intraocular haemorrhage with a resultant retina injury and suffers from ongoing left sided visual impairment;
(b)The appellant suffered a gunshot wound to his right upper arm, resulting in a fracture of the proximal shaft of the humerus and head of the humerus. The same bullet also resulted in a chest injury, which struck the T6 vertebrae and caused a fracture of the left scapula, resulting in paraplegia;
(c)The appellant's arm injury limited his ability to undertake intermittent urethral catheterisation, required at least four times per day and it has also compromised his ability to propel a manual wheelchair;
(d)The appellant has no voluntary control over his bowel or bladder function, and he has difficulty with his bowel routine, at times leading to faecal incontinence; and
(e)Some 12 months after the injury the appellant still is not independent in a sustainable routine of personal care and requires a significant degree of assistance.
The letter from the appellant's mother to the sentencing judge outlined the nature and extent of the daily challenges created by the appellant's injuries.
It was agreed between the parties that at the time of the commission of the offences, the offender was suffering from depression. It was also agreed that the depression was significant, meaning more than minor or trivial, but was not a major depressive condition as defined in the Mental Health Act 2014 (WA). Further, it was agreed that the relevance of the appellant's depression was that it was one of a number of factors that ought to be taken into account when considering the matters personal to the offender, but it was not to be treated as a separate consideration that in itself would justify a different sentence.[17]
[17] ts 106.
A psychiatric report of Dr Pascu was before the sentencing judge. His Honour gave a detailed outline of the report.[18] The report included the following:
(a)When the appellant's relationship with his ex‑girlfriend came to an end, he made a number of unsuccessful attempts to discuss with her the reasons for the break up. That contributed to the appellant becoming increasingly depressed.
(b)The appellant's emotional distress and desperation culminated on the day of the offences when he became determined to 'die with a statement'.
(c)At the time of the offending the appellant was not only upset and distressed, but also enraged by the lack of an explanation from his ex‑girlfriend which contributed, together with the emotional stress and the worsening depression, to his determination to die by 'cop suicide'.
(d)She diagnosed the appellant as having a dependent personality style, with the underlying desire to have friends and develop a relationship. She expressed the opinion that there was no evidence to support a personality disorder and more so an antisocial personality disorder.
(e)The appellant will require life‑long care for his physical disabilities and medical problems secondary to the wounds he sustained during the incident. He will also require counselling to help him deal with having lost his physical abilities, as well as with his longstanding psychological problems. She also expressed the opinion that the appellant would benefit from counselling to provide support to adjust to being in prison.
[18] ts 148 ‑ 150.
Sentencing remarks
The sentencing judge identified the following aggravating features of the appellant's offending:
(1)The offending was premeditated and showed a very high level of planning. Two weeks before the offending, the appellant spoke to a police officer about the police response to hostage situations. On the day of the offending, the appellant purchased a great deal of material for the purposes of his plan.[19]
(2)The appellant's actions were deliberate.[20]
(3)The appellant's actions were persistent, with the incident lasting almost three hours.[21]
(4)The appellant's behaviour was threatening and his intention was sinister, referring to what the appellant wore and brought with him.[22]
(5)The victims were vulnerable and extremely intimidated by what the appellant did.[23]
(6)The victims were entitled to feel safe in their own home at night, but the appellant forced his way into the house.[24]
[19] ts 145.
[20] ts 145.
[21] ts 145.
[22] ts 146.
[23] ts 146.
[24] ts 146.
The judge identified the following mitigating factors:
(1)The appellant had shown some remorse through his pleas of guilty and to the writer of the pre-sentence report and, to a greater extent, in his letter to the sentencing judge.[25]
(2)The pleas of guilty were entered at the first reasonable opportunity, albeit in the face of an overwhelming case, attracting a 20% discount.[26]
(3)The appellant suffered life-changing and permanent injuries. Consequently, deterrence and retribution were partly achieved.[27]
(4)The appellant suffered from some mental health difficulties.[28]
(5)The appellant had taken some steps towards rehabilitation, including engaging in psychological counselling.[29]
(6)Imprisonment will be more onerous for the appellant than it ordinarily would be for others.[30]
(7)The appellant was otherwise of prior good character.[31]
[25] ts 150.
[26] ts 151.
[27] ts 151.
[28] ts 152.
[29] ts 152.
[30] ts 152.
[31] ts 152.
The sentencing judge took the appellant's injuries into account as mitigating in three ways:
(1)the appellant's injuries will be a constant reminder to him of what happened and so, to a certain extent, deterrence and retribution are partly achieved;[32]
(2)imprisonment will be more onerous for the appellant;[33] and
(3)the appellant will be at a low risk of reoffending.[34]
[32] ts 151.
[33] ts 152.
[34] ts 154.
The sentencing judge made the following observations as to the appellant's culpability. He characterised the offending as extremely serious. First, the invasion of a home occupant's place, particularly at night, is a serious crime for which deterrence and punishment are important sentencing objectives. That was all the more so when the offending was premeditated and accompanied by a considerable degree of planning.[35]
[35] ts 153.
Secondly, pretending to be armed in circumstances likely to cause fear was also a serious offence. The replica gun used by the appellant was extremely realistic, which was calculated to, and did, increase the fear caused by his conduct.[36]
[36] ts 153.
Thirdly, deprivation of liberty, or in effect taking a hostage, is almost always viewed as a serious crime for which deterrence and punishment are important sentencing objectives. That was all the more so where there were five victims who were physically restrained by flexi cuffs and duct tape and where the ordeal extended over almost three hours.
Fourthly, the assault on his ex‑girlfriend, while not serious as regards to physical impact, had a considerable psychological impact and was a form of domestic violence.[37]
[37] ts 154.
The judge accepted that the appellant did not intend to physically harm the hostages, apart from when he intentionally struck his ex‑girlfriend, but the victims did not know that. The victims were bound and gagged and could hear threats to shoot hostages made by the appellant during police negotiations. The judge accepted that the appellant's intention on that day was to end his life. The judge also accepted that the only person who sustained significant physical injury as a result of what the appellant did was the appellant himself.[38]
[38] ts 154.
Given his physical disabilities, he was at low risk of reoffending.[39] Nevertheless, general deterrence remained an important sentencing consideration.
[39] ts 154.
The judge imposed the sentences we have set out earlier in these reasons.
Ground of appeal
There is one ground of appeal. It alleges that the sentencing judge erred in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the offender personally.
The question of leave to appeal was referred to the hearing of the appeal.[40]
[40] Order of Mazza JA 19 November 2016.
General principles
The following principles relevant to an appeal on grounds of totality are well‑established.
Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
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.
The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light individual sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is outside the available sentencing range.
The utility of comparable cases in determining questions of totality may be limited to providing some broad guidance, because there will not infrequently be significant differences in the circumstances of the offending and the offenders. This is such a case.
The parties' submissions
The appellant rightly accepts that given the unusual circumstances of this case, including the fact that the appellant suffered very serious permanent injuries as a result of his offending, detailed examination of other cases provides little assistance in determining whether the aggregate sentence imposed infringes the totality principle.[41] The appellant also rightly accepts that his offending was very serious.
[41] Appellant's submissions [20].
The appellant submits that when proper regard is had to:
(1)his significant physical and mental health issues;
(2)the fact that his paraplegia and related health problems were a direct result of his offending and will serve as some punishment; and
(3)the fact that the prison sentence of the length imposed will be significantly more onerous on him than on others;
the sentence imposed was plainly unreasonable or unjust.
The appellant did not contend, and it could not reasonably have been contended, that he should have received suspended terms of imprisonment.
The respondent submits that given the seriousness of the appellant's offending, even when full account is taken of his injuries, as well as his pleas of guilty and other mitigatory factors, the total effective sentence of 6 years' imprisonment did not breach the totality principle. The respondent emphasises the following features of the appellant's offending:
(1)the offences were premeditated and well‑planned;
(2)the appellant chose to subject five victims to a terrifying ordeal during which they were bound and detained for almost three hours; and
(3)the extremely realistic appearance of the replica pistol magnified the intimidation and fear suffered by the five victims.
The disposition of the appeal
There is no doubt that the appellant's offending, which included the features highlighted by the respondent, was very serious. We have regard to the maximum penalties for the various offences, which we have set out earlier in these reasons.
The appellant's submissions emphasised that his purpose in the commission of these offences was to bring about his own death; it was not to harm others or to gain financially as is often the case in offences of unlawful detention. We accept that this feature of the appellant's conduct is relevant to the assessment of his overall criminality and makes it less serious than a number of examples of unlawful detention. But it must not be overlooked that, in executing his plan, the appellant chose to use others as instruments of his plan without regard to the effects upon them. It was clear that the occupants of the house would be, as they were, terrorised by what the appellant did. Moreover, the risk of injury or even death to others in the course of a plan involving keeping people hostage and threatening to shoot them was self‑evident. The appellant's plan also involved the risk of trauma to police officers. Further, the appellant's plan involved an element of inflicting punishment on his ex‑girlfriend. It can safely be inferred that he chose the house occupied by his ex‑girlfriend as the location for his intended 'cop suicide' deliberately, so that she would suffer the trauma and likely feelings of guilt after his being shot by police.
In our view, even allowing for the fact that the appellant's purpose was to bring about his own death, if his injuries were put to one side, the total effective sentence of 6 years' imprisonment imposed on the appellant would have been well within the available sentencing range and an appropriate reflection of the criminality of his offences as a whole, taking into account his personal circumstances, his pleas of guilty and the other mitigating circumstances. The other mitigating circumstances included his prior good character, his developing remorse, and his good prospects of rehabilitation.
To our mind, the question is whether the total effective sentence can be said to be within the available sentencing range when account is taken of the permanent and life‑changing injuries suffered by the appellant in the course of and as a direct result of his offending.
It is well established that injuries suffered by an offender in the course of or as a result of a commission of an offence are a matter to which mitigatory weight may be given.[42]
[42] Quinn v The State of Western Australia [2006] WASCA 99 [16], [22]; R vBarci (1994) 76 A Crim R 103, 110 ‑ 111.
One reason for this is that the time to be served in prison by the offender may, and in this case undoubtedly will, be more difficult than for a person of ordinary health. Another is, as it has been put in other cases, that the offender's injuries will serve as a blunt reminder of his criminal conduct and should be regarded as some punishment for it.[43] A further reason is that the severity of the injuries may substantially reduce or eradicate the risk of reoffending and the weight to be given to personal deterrence as a sentencing factor.
[43] Barci (111).
The significance of such injuries as a sentencing consideration will depend upon all the circumstances of the case. Relevant factors may include the seriousness and permanence or otherwise of the injuries caused by or in the course of the offending; the nature of the offending; the relationship between the occurrence of the injuries and the commission of the offence; and the extent to which injuries of the kind suffered was a foreseeable risk of the offending conduct.
The respondent appeared to submit that recent appellate decisions in other States[44] support the proposition that an injury which is the realisation of an obvious risk of the offender's criminal conduct will not mitigate the offender's punishment to any significant extent.[45] We do not accept that any such broad principle is to be drawn from the cases to which the respondent refers. The obviousness of the risk of harm to the offender is a matter to be considered. The weight to be given to that consideration depends on all the circumstances of the case.
[44] R v Galeano [2013] QCA 51; [2013] 2 Qd R 464 [112]; Sianas v The Queen [2016] VSCA 84 [39].
[45] Appeal ts 13.
In circumstances where the appellant's plan was to die as a result of being shot by a police officer, there was an obvious risk that if he was shot and did not die, he would be seriously injured as a result of the shooting. Notwithstanding that, in the circumstances of this case, we think the injuries suffered by the appellant were a mitigating factor attracting very significant weight. The injuries suffered by the appellant mean that his life is permanently and profoundly altered. His paraplegia will prevent him doing a great many things which are taken for granted by able-bodied people. He also suffers from incontinence. The appellant is and is likely to continue to be highly dependent on others in many respects. The appellant's injuries significantly moderated the importance of punishment, retribution, and personal deterrence.
Moreover, his injuries will mean that the period he spends in prison will be significantly more onerous than would be the case for someone without his injuries.
These matters were not overlooked by the sentencing judge but, given the nature of the totality ground, that does not determine whether the sentence imposed reveals implied error.
Given the discretionary character of the sentencing exercise, the question is not whether we would have given more weight to the appellant's injuries than they were accorded by the sentencing judge. Rather, the question is whether, in all the circumstances of the appellant's offending, including the injuries that he suffered, the total effective sentence can be said to be plainly unreasonable or unjust. In the end, we are persuaded that it is. In our respectful opinion, the total sentence imposed exceeded the bounds of sentences available upon a proper exercise of the sentencing discretion in the circumstances of this case. Consequently, we would uphold the ground of appeal.
In resentencing the appellant, in all the circumstances of the case we would sentence the appellant to a total effective sentence of 4 years 6 months' immediate imprisonment. We would substitute a term of imprisonment of 18 months on count 3, leaving in place the order that it is cumulative upon count 1. All other sentences imposed and orders made (including the parole eligibility order and the commencement date of the total effective sentence, namely 2 August 2016) would remain unchanged.
Conclusion
For the reasons given, we would make the following orders:
1.Leave to appeal be granted.
2.The appeal be upheld.
3.The sentence imposed on count 3 be set aside and in substitution there be a sentence of 18 months' immediate imprisonment, cumulative on count 1.
4.All other sentences and orders be confirmed.
MAZZA JA: I agree with Buss P and Beech JA that the ground of appeal has been made out. I agree with their reasoning in support of this conclusion. As the ground of appeal has been made out, this court's power to resentence the appellant has been enlivened. In re‑exercising the sentencing discretion, I have come to a different total effective sentence to Buss P and Beech JA. I would impose a total effective sentence of 3 years and 6 months' immediate imprisonment with eligibility for parole.
It is unnecessary for me to repeat what has already been written about the facts of the offences and the appellant's personal circumstances. The appellant's overall offending was very serious and undoubtedly warranted a substantial term of immediate imprisonment. The appellant did not contend at first instance that the terms of imprisonment that were to be imposed should have been suspended. Such a submission would have been futile notwithstanding the serious injuries inflicted on the appellant.
The appellant formulated and executed a plan where hostages were taken with a view to bringing about a violent confrontation with the police. As recent events elsewhere show, such circumstances can develop in unpredictable ways and thus put at risk the safety of those who are captive. Put more bluntly, while the appellant may have intended to be the only one harmed, others may accidentally have been injured or killed. Consideration must also be given to the police officers who, in the line of duty, were compelled to shoot the appellant. It should not be assumed that police officers are not adversely affected by these incidents.
In order to achieve the sentencing objectives of punishment, retribution and general deterrence, a substantial term of immediate imprisonment is required. However, in my opinion, the seriousness of the appellant's injuries very significantly moderated the sentence which would otherwise have been required.
The injuries have left him with severe and permanent disabilities. He will never walk again and his vision and the use of his right arm have been impaired. In addition, he will suffer from incontinence for the rest of his life. In my opinion, the combined effect of the injuries he suffered obviates the need for personal deterrence in this case. Further, the
appellant's injuries will make imprisonment a great deal more onerous than for others. While the evidence before the sentencing judge was that the medical care that he needs can be given in a custodial setting, there can be no question that his imprisonment will be much more difficult for him by reason of his disabilities. In addition to these factors, the appellant pleaded guilty to the offences (for which I would give a reduction of 20% pursuant to s 9AA of the Sentencing Act), he is remorseful and has good antecedents and prospects of rehabilitation.
In my opinion, a total effective sentence of 3 years and 6 months' imprisonment is commensurate with the seriousness of this offending, bearing in mind all of the relevant circumstances of the case. This sentence is sufficient to fulfil the relevant sentencing objectives that I have mentioned.
I would make the following orders:
1.Leave to appeal is granted.
2.The appeal is upheld.
3.The sentences imposed on counts 1 and 3 be set aside and in substitution there be sentences of 21 months' imprisonment on each count to be served cumulatively.
4.All other sentences and orders stand.
3
3
1