Black v The State of Western Australia
[2010] WASCA 48
•12 MARCH 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BLACK -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 48
CORAM: OWEN JA
HEARD: ON THE PAPERS
DELIVERED : 12 MARCH 2010
FILE NO/S: CACR 178 of 2009
BETWEEN: DANIEL ALEXANDER BLACK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAVRIANOU J
File No :IND 1451 of 2009
Catchwords:
Criminal law and procedure - Sentencing - Leave to appeal against sentence - Turns on own facts
Legislation:
Nil
Result:
Leave granted (some grounds)
Leave refused (some grounds)
Category: B
Representation:
Counsel:
Appellant: No appearance
Respondent: No appearance
Solicitors:
Appellant: Max Crispe
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
OWEN JA: On 12 November 2009 the appellant pleaded guilty to one count of unlawfully doing grievous bodily harm with intent (Criminal Code (WA) s 294) and one count of unlawful wounding (Criminal Code s 301). He was sentenced to immediate imprisonment for 2 years and 6 months on the first count and 6 months for the unlawful wounding. The sentencing judge ordered that the terms be served cumulatively, thus arriving at a total sentence of 3 years' imprisonment. The appellant was made eligible for parole. This is an application for leave to appeal against sentence. It has been dealt with on the papers.
Background
On 26 January 2009 the complainant JA held a party at his home. Several people were present including the second complainant RR. Between 5.00 pm and 6.00 pm a person named Samuel Whitmore drove past the address. Whitmore had two passengers in the vehicle, including a young female. The vehicle stopped at the front of the house where a verbal argument occurred. The vehicle left the scene and Whitmore delivered both passengers to their respective homes. Whitmore then contacted three friends including the appellant. Whitmore told them he had been assaulted and the female passenger had been punched in the face. That information was false - neither Whitmore nor the female passenger had been assaulted.
At about 10.40 pm the group returned to the address. The State's case was that they went there with the intent of assaulting the guests. Whitmore alighted from the vehicle and approached a party guest who was standing next to his vehicle ready to leave. A verbal argument began when JA approached Whitmore and pushed him in the chest, telling him to leave. The appellant approached the group. The appellant had armed himself with a knife. There was no evidence that the appellant took the knife with him that night - it seems the knife just happened to be in the car. The State also alleged that as the second complainant (RR) came across the front lawn, the appellant produced the knife and swung it at RR. This caused a 12 cm cut to the left side of his chest, penetrating the chest cavity and cutting an artery inside his chest. There was damage caused to three ribs and an injury to his left middle finger which severed the tendon, requiring plastic surgery. JA was injured during the incident with a stab wound to the left side of his body, 4 cm deep and 3 cm wide, requiring three stitches.
The appellant fled the scene with the three other males and drove to a park in Leeming. They left the vehicle and attempted to conceal their identity by changing their shirts. The appellant later handed himself in to police and participated in a video record of interview.
Grounds of appeal
The grounds of appeal, as drafted in the Appellant's Case, are as follows:
1.The learned judge erred in law in not having regard to the applicant's age at the time of offending, namely 21 years, and only to his age at the time of sentencing which occurred some 10 months after the offences occurred.
2.The learned Judge erred in law in not having regard to, alternatively in not giving due weight to, the fact that the applicant was inveigled by Whitmore, and committed the offences, in circumstances where his prescribed medication for his attention deficit hyperactivity disorder had worn off, as it was required to have done, and as a result, through no fault of his own, he was by reason of his disorder distracted, impulsive and hyperactive.
3.The learned Judge erred in law in overlooking the applicant's account with respect to certain matters material to sentencing, and in sentencing the applicant on the basis of facts asserted by the State in relation to those matters where those facts were not accepted by the defence and were not the subject of a trial of issues.
Particulars
The matters related to:
(a)whether the applicant met Mr Whitmore at a local primary school before they went to the premises where the offences occurred, or whether Whitmore took the applicant from the applicant's house in Whitmore's care to the primary school, this being relevant to the issue of the extent to which the applicant exercised independent choice in becoming involved in the incident;
b)whether the applicant left the car and entered the property where the offences occurred once he saw the complainant [JA] approach Whitmore and push him in the chest, or whether he only did so after the complainant [RR] had also approached Whitmore and it appeared to the applicant that two people were attacking Whitmore, this being relevant to the applicant's account that his initial intention was only to scare off the complainants and help Whitmore out of the situation, and of mitigatory relevance.
4.In the alternative, the learned Judge erred in law in imposing sentences that were manifestly excessive in all the circumstances.
5.Further or in the alternative, the learned Judge erred in law in imposing a total effective sentence which infringed the principle of totality, having regard to the overall criminality involved in the offences viewed in their entirety and all the circumstances of the case including those referable to the appellant personally.
After my initial review of the papers I caused my Associate to write to the appellant's solicitors pointing out what I saw as some difficulties with the drafting of grounds 4 and 5. The appellant has now applied for leave to amend those grounds as follows:
1.The learned Judge erred in law in not having regard to the applicant's age at the time of offending, namely 21 years, and only to his age at the time of sentencing which occurred some 10 months after the offences occurred.
2.The learned Judge erred in law in not having regard to, alternatively in not giving due weight to, the fact that the applicant was inveigled by Whitmore, and committed the offences, in circumstances where his prescribed medication for his attention deficit hyperactivity disorder had worn off, as it was required to have done, and as a result, through no fault of his own, he was by reason of his disorder distracted, impulsive and hyperactive.
3.The learned Judge erred in law in overlooking the applicant's account with respect to certain matters material to sentencing, and in sentencing the applicant on the basis of facts asserted by the State in relation to those matters where those facts were not accepted by the defence and were not the subject of a trial of issues.
Particulars
The matters related to:
(a)whether the applicant met Mr Whitmore at a local primary school before they went to the premises where the offences occurred, or whether Whitmore took the applicant from the applicant's house in Whitmore's car to the primary school, this being relevant to the issue of the extent to which the applicant exercised independent choice in becoming involved in the incident;
(b)whether the applicant left the car and entered the property where the offences occurred once he saw the complainant [JA] approach Whitmore and push him in the chest, or whether he only did so after the complainant [RR] had also approached Whitmore and it appeared to the applicant that two people were attacking Whitmore, this being relevant to the applicant's account that his initial intention was only to scare off the complainants and help Whitmore out of the situation, and of mitigatory relevance.
4.In the alternative, the learned Judge erred in law in imposing sentences that were manifestly excessive in all the circumstances, having regard to:
(a)the applicant's pleas of guilty on the fast‑track system;
(b)the nature and circumstances of the offending;
(c)the applicant's personal circumstances and antecedents;
(d)other mitigating factors, including the circumstances which gave rise to the applicant attending at the place where the offences occurred, the medical issues which influenced the offending, the previous incident in which the applicant was assaulted that had relevance to the offending, the applicant's genuine remorse, and the more onerous nature of the applicant's imprisonment by being in segregated custody.
5.Further or in the alternative, the learned Judge erred in law in imposing a total effective sentence which infringed the principle of totality, having regard to the overall criminality involved in the offences viewed in their entirety and all the circumstances of the case including the matters referred to in paras (a) ‑ (d) of Ground 4.
Ground 1
The appellant was born on 10 August 1987, the offences were committed on 26 January 2009 and he was sentenced on 12 November 2009. He was 21 years, 5 months and 2 weeks at the time the offences were committed. He was 22 years and 3 months at the time of sentencing.
It is true, as the ground alleges, that the sentencing judge referred only to his age at the time of sentencing. But in my view the point in issue, as the sentencing judge recognised, was that the appellant was a young adult. The difference of nine and a half months between the date of the offences and the date of sentencing could have no material impact on the exercise of the sentencing discretion. Ground 1 has no reasonable prosects of success and leave is refused in relation to it.
Ground 2
The second ground contains two separate complaints. First, that the appellant was inveigled by Whitmore into participating in the unfortunate venture. Secondly, the effect of the medication he was taking would have worn off and he would therefore have been vulnerable to impulsive action.
The evidence certainly points to the fact that Whitmore misrepresented to the appellant what had happened on his (Whitmore's) first visit to the premises. A difficulty that the appellant is going to face is that the sentencing judge recognised the fact that the appellant had been given wrong information (ts 19). The allegation that the sentencing judge did not have regard to it cannot be sustained. On the other hand, there may be an argument as to the materiality of that factor and I am inclined to allow the ground to stand.
The second limb of ground 2 has some slightly curious aspects. On the information presently on the court file it is not clear whether the limited temporal effect of the medication was known to the appellant. If the appellant knew, or should have known, that the medication would have worn off by about 5.00 pm (ts 12) its mitigatory effect would be limited. When he came to deal with the appellant's personal circumstances (ts 20 - 21) the sentencing judge mentioned that the appellant had been diagnosed as suffering from ADHD and that he was prone to impulsivity. But he did not mention the effect of the medication. On balance (and notwithstanding some misgivings), I think I should allow ground 2 to stand so it can be argued in a full evidentiary context.
Leave is granted in relation to ground 2.
Ground 3
In relation to particular 3(a) I will accept, for the purpose of this application, that the appellant's version of events is correct. In my view it still could have no material bearing on the exercise of the sentencing discretion. Whitmore went to the appellant's home. The appellant was already in bed. Whitmore explained to him what he (Whitmore) wanted and the appellant made the decision to leave his home and accompany Whitmore on the venture. I find it difficult to see what difference it could possibly have made whether Whitmore collected the appellant from his home and took him to the school or whether the appellant had spoken to Whitmore (presumably by telephone) and then made his own way to the school to meet Whitmore and the others. This particular has no reasonable prospect of success.
As to particular 3(b) the sentencing judge's findings are as follows (ts 20):
At about 20 to 11 you went back to the house with the other men. Whitmore got out of the car and he approached a guest at the party, an argument developed and then [JA] approached Whitmore and pushed him in the chest and told him to leave.
By this stage you had picked up a knife that was in the car and you became involved in the incident. You had the knife in your hand and as a result of contact between the knife and [RR] he had a 12‑centimetre cut to the left side of his chest.
The appellant submits that the true version of events as put in submissions by his counsel (ts 9) was that the appellant was in the car when he saw two people (presumably JA and RR) suddenly 'come upon his friend'. It was at that stage that he picked up the knife, left the car and became involved in the altercation.
In my view it is not possible to construe the sentencing judge's comment as a finding that the appellant was already involved before RR arrived on the scene. The sentencing judge has said nothing about that question. At the conclusion of the sentencing remarks his Honour asked both counsel whether there was anything further they wished to say. Neither counsel responded to the invitation. While that is not, of course, determinative, it supports the view that counsel then appearing for the appellant saw nothing untoward in the way the facts had been described.
In my view, there was no error as alleged in particular 3(b) and as a discrete ground of challenge it has no prospect of success. Of course, the appellant's version of events could be taken into account as one of the circumstances of the offences under grounds 4 and 5.
Leave to appeal on ground 3 is refused.
Grounds 4 and 5
In my view grounds 4 and 5 are reasonably arguable and leave will be granted.
Conclusion
As a provisional determination (see Supreme Court (Court of Appeal) Rules r 19):
(a)leave to amend the grounds of appeal as per the appellant's minute dated 5 March 2010 is granted;
(b)leave to appeal on proposed grounds 1 and 3 is refused;
(c)leave to appeal on grounds 2, 4 and 5 is granted; and
(d)within 7 days after this provisional determination becomes final the appellant is to file an amended appellant's case containing the amended grounds of appeal and amended submissions (if any).
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