Black v The State of Western Australia [No 2] - [2010] WASCA 145

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BLACK -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2010] WASCA 145

CORAM: McLURE P
BUSS JA
MAZZA J

HEARD: 20 JULY 2010

DELIVERED : 30 JULY 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 DCJ
File No  :IND 1451 of 2009

Catchwords:

Criminal law - Appeal against sentence - Application for review - Whether failure to take into account appellant's attention deficit hyperactivity disorder - Manifest excess - Totality - Turns on own facts

Legislation:

Criminal Code (WA), s 294, s 301
Vocational Education and Training (General) Regulations 2009 (WA), reg 48(2)

Result:

Application for review dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A O Karstaedt
Respondent: Mr J Mactaggart

Solicitors:

Appellant: Mr M Crispe
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

King v The Queen [1999] WASCA 9
Stephens v The State of Western Australia [2005] WASCA 98
Vagh v The State of Western Australia [2007] WASCA 17
Wheeler v The Queen [No 2] [2010] WASCA 105

McLURE P: This is an appeal against sentence and an application to review the decision of Owen JA made on 12 March 2010 refusing leave to appeal on one matter. The appellant was convicted on his fast‑track plea of guilty of one count of unlawfully doing grievous bodily harm with intent to maim, disfigure, disable or do some grievous bodily harm contrary to s 294 of the Criminal Code (WA) (Code) and one count of unlawful wounding contrary to s 301 of the Code.
The appellant was sentenced to 2 1/2 years' imprisonment on the first count and 6 months' imprisonment on the second count. The sentencing judge ordered that the sentences be served cumulatively, resulting in a total effective sentence of 3 years' imprisonment. The appellant was made eligible for parole.
There are three grounds of appeal for which leave has been given. They are first, that the sentencing judge failed to take into account, or alternatively give sufficient weight to the fact that the appellant was 'inveigled' by a third party and committed the offences when the medication for his attention deficit hyperactivity order had worn off; secondly, that the individual sentences are manifestly excessive; and thirdly, that the total sentence infringes the totality principle. The review relates to the refusal of leave to appeal on ground 3(b) which is in the following terms:
3.The learned judge erred in law in overlooking the [appellant's] account with respect to certain matters material to sentencing, and in sentencing the [appellant] 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:
(b)whether the [appellant] 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 [appellant] that two people were attacking Whitmore, this being relevant to the [appellant's] account that his initial intention was only to scare off the complainants and help Whitmore out of the situation, and of mitigatory relevance.

Material facts and review

The prosecution stated the facts as follows. On 26 January 2009, the first complainant (JA) held an Australia Day party at his home in Bibra Lake. The second complainant (RR), was present at the party. Between 5.00 pm and 6.00 pm, a person named Samuel Whitmore drove past the address. Whitmore had two passengers in the vehicle, a man and a woman. The vehicle stopped at the front of JA's house where a verbal argument occurred. The vehicle left the scene and Whitmore dropped his passengers off at their homes.
Whitmore then contacted three friends, including the appellant. They all met Whitmore at a primary school where they discussed attending the party and sorting out the guests. Whitmore told them he had been assaulted and the female passenger had been punched in the face. That information was false.
At about 10.40 pm, Whitmore and his three friends including the appellant, returned to JA's address with the intent of assaulting the guests. Whitmore got out of the vehicle and approached a guest at the party who was about to leave and was standing next to his vehicle. A verbal argument started between them when JA approached Whitmore and pushed him in the chest and told him to leave. The appellant had also come from the vehicle and approached the group. The appellant had earlier armed himself with a knife and as he approached, RR came from the front lawn of his house which was situated next door. The appellant produced the knife and swung it at RR, causing a 12 cm cut to the left side of his chest, penetrating the chest cavity and cutting an artery inside his chest. It also damaged three ribs. A second injury was sustained on RR's left middle finger; a tendon was severed and required plastic surgery.
The appellant also injured JA during the incident with a stab wound to his left side which was 4 cm deep and 3 cm wide. The complainants were treated for and recovered from their physical injuries.
The appellant fled the scene with the three other males and drove to a park in Leeming. They left the vehicle and walked across the park, swapping shirts in an effort to conceal their identity, before splitting up.
What follows is the oral explanation provided by the appellant's counsel. The appellant had spent the day in question (Australia Day) at a barbeque. He had returned to his home and was in bed when Whitmore knocked on his window and requested him to accompany Whitmore to an address in Bibra Lake, misinforming the appellant about what had occurred. The appellant went with Whitmore out of loyalty.
The appellant went with Whitmore in his car to a primary school where Whitmore picked up two other friends. When they reached the location of the incident, Whitmore got out of the car and the appellant stayed in the car. Within seconds, however, because it was dark, the appellant noticed there appeared to be two people who suddenly had come upon the scene. The appellant, who was sitting in the back seat of the vehicle and looking back, noticed this and at this stage decides to go over there. He previously noticed there was a knife in the bottom of the car; he picked up the knife and 'really the intention was to go over there and scare them … So there was no intention to start with … He notices what appears to be two people suddenly come upon his friend [Whitmore] and the next minute there was a struggle and we hear that there's a scream, et cetera. He'd previously noticed the knife on the floor so he picks it up, jumps out and his initial intention was to use it to scare these people off'.
Counsel continued (ts 9):
He did it and he raised it roughly head high but initially as he moves towards where the incident was ‑ as he got closer, his intention was to get [Whitmore] out of it somehow, but unfortunately these things are not pre‑scripted. It's a fluid situation.
Unfortunately he's armed himself with a knife and he makes a deliberate movement in front of him as the person came towards him and he didn't feel anything. He didn't feel he'd made any contact, but that's neither here nor there. The movement was roughly at about waist or chest height so that's probably the first injury.
In relation to JA, the defence case was that the appellant had the knife at a 45 degree angle 'and he just moved it over to [JA], I suppose, intending the person to back off. Again he didn't feel contact' (ts 10).
After defence counsel had completed his submissions, the sentencing judge made the following statement:
What I intend to do is I will recite the facts because there seems to be some issue about it. When I sentence, I'll recite the facts. If they're not the agreed facts, then I can be told (ts 14).
The trial judge's findings on the relevant matters are as follows:
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 become 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 which penetrated his chest cavity and cut an intercostal vessel …
[JA] was injured during the incident and he had a wound to the left side which was about four centimetres deep, three centimetres wide and required some stiches (ts 20).
At the conclusion of the sentencing remarks, neither counsel for the appellant nor counsel for the prosecution informed the sentencing judge that there was any relevant error or omission in his statement of the facts.
The sentencing judge did not sentence the appellant on the basis of the facts asserted by the State, namely that the appellant went to the address to assault the guests and had armed himself, left the vehicle and had joined Whitmore when RR came towards the scene. The focus on RR seems to be misplaced. The State and the appellant agreed that Whitmore was with two people, a guest about to leave and JA, when JA pushed Whitmore in the chest. The crux of the appellant's version was that it was not until he saw Whitmore with two people and involved in a struggle that he picked up the knife, got out of the vehicle, went towards the group and stabbed RR. The sentencing judge's statement of facts is not inconsistent with the appellant's version.
Moreover, notwithstanding the judge's invitation, the appellant's counsel made no complaint about the sentencing judge's statement of facts nor did he seek a trial of issues. That is likely to be for good reasons.
It is an element of the offence to which the appellant pleaded guilty that he intended to maim, disfigure, disable, or do some grievous bodily harm to RR. The appellant's counsel was walking a very fine line in attempting to put the facts in a way that was most favourable to the appellant without venturing into matters inconsistent with the plea of guilty. I am not sure he was entirely successful in that regard. The sentencing judge was alive to the problem. There were sound forensic reasons for not requiring a trial of issues. It can and should be inferred that the defence had no complaint with the sentencing judge's findings of fact.
Owen JA was correct to conclude that ground 3(b) had no reasonable prospect of succeeding. The application for review will be dismissed.

The appellant's personal circumstances

The appellant was aged 21 at the time of the offences and 22 at the time of sentencing. He was still living at home with his parents at the time of the offending and had no relevant prior convictions.
The appellant completed year 12 and became an apprentice electrician. His training contract with his employer has been suspended for 12 months commencing on 27 November 2009. Under the Vocational Education and Training (General) Regulations 2009 (WA), a training contract cannot be extended for longer than 12 months without approval of a government official (reg 48(2)). The appellant is not eligible for parole until 18 months from 12 November 2009.
The appellant was diagnosed with attention deficit hyperactivity disorder (ADHD) when he was around 10 years of age and has been prescribed dexamphetamine from that time. According to the appellant's treating psychiatrist, the prescribed treatment for the appellant's ADHD lasts from 6.30 am to 5.00 pm each day and he would have been distracted, inattentive, hyperactive and impulsive by 10.00 pm.

The appellant's ADHD

I understand the challenge to be that the sentencing judge failed to take into account the fact that the appellant responded to the misinformation provided by Whitmore and committed the offences because his medication for ADHD had worn off which caused him to be distracted, impulsive and hyperactive.
This ground is without merit. The sentencing judge expressly referred to the factual matters on which the appellant relies (ts 19) and Dr Carter's report. He also accepted what was reported in the pre‑sentence report, namely that the appellant's involvement stemmed in part from characteristics associated with his ADHD.
The claim that the sentencing judge did not give 'due weight' to these considerations does not raise an appealable error enlivening the court's power to intervene: Vagh v The State of Western Australia [2007] WASCA 17 [7]. That is a claim more appropriately dealt with when addressing manifest excess and totality.

Manifest excess and totality

This court cannot intervene unless the appellant establishes that the sentencing judge made an express or implied material error of fact or law. A claim that an individual sentence is manifestly excessive or that a total sentence infringes the totality principle depends on error being implied from the result itself.
I start with the challenge to the individual sentences. The maximum penalty for the offence of doing grievous bodily harm with intent contrary to s 294 of the Code is 20 years' imprisonment. As stated by the Court of Criminal Appeal in King v The Queen [1999] WASCA 9 [90], an offence under s 294 is in a substantially higher category of seriousness than the offence of causing grievous bodily harm contrary to s 297 of the Code which has no requirement for proof of any intention. Moreover, a review of the sentences customarily imposed for a breach of s 294 of the Code (converted to post‑transitional sentences for comparison purposes) reveals that they are very significantly higher than the sentence imposed on the appellant: Stephens v The State of Western Australia [2005] WASCA 98 [18] ‑ [20].
The review also demonstrates that the seriousness of the circumstances of offending under s 294 can be highly variable. The length of the sentence imposed on the appellant for causing grievous bodily harm with intent is broadly consistent with the sentences customarily imposed for the less serious offence of causing grievous bodily harm absent any intent. Thus, it can be inferred that significant weight was given to all the mitigating factors in this case including the appellant's fast‑track plea of guilty, his youth and his employment record.
The fact that the appellant's actions on the night in question occurred when his ADHD symptoms were not controlled by his medication is a relevant factor but is not, in the circumstances of this case, deserving of significant weight. The evidence does not justify a finding that the appellant was 'inveigled' to accompanying Whitmore. The misinformation supplied by Whitmore did not provide a reasonable basis for the appellant (even with his symptoms) to accompany Whitmore and others to confront a group of total strangers at their party. The most favourable inference is that the appellant set out knowing that his group's actions had the very significant potential to cause a violent confrontation. When the obvious potential was realised, the appellant picked up a knife and whatever his intention at that stage, by the time he stabbed RR, he did so with the intent to cause some grievous bodily harm. The medical

evidence adduced by the appellant does not justify a finding that his ADHD symptoms materially ameliorate his culpability for the offending. Were it otherwise, there would be serious questions about the risk of re‑offending, with adverse consequences for the appellant in the sentencing process: Wheeler v The Queen [No 2] [2010] WASCA 105 [7] ‑ [10].

The appellant's conduct in producing and using a knife was entirely without justification and grossly disproportionate to the situation. The use of a weapon significantly increases the risk of serious injury or death and the seriousness of the offending.
A weighty sentencing consideration in this case is the need for general deterrence. Having regard to the prevalence of offending of this nature in our community, it is necessary to attempt to deter others, and young people in particular, from engaging in violent behaviour especially with a weapon such as a knife. I am not satisfied that the sentence of 2 1/2 years imposed for causing grievous bodily harm with intent is manifestly excessive.
There is no arguable basis to claim that the sentence of 6 months' imprisonment for the unlawful wounding of JA was manifestly excessive.
The appellant contends the trial judge erred in ordering that the sentences for the two offences be served cumulatively. In particular, he claims the total sentence of 3 years does not bear a proper relationship to the overall criminality involved in the offending in its entirety and having regard to the circumstances of the case including those referable to the appellant. The two offences involve the infliction of violence and injury on two individuals and thus do not fall within the one transaction rule. Moreover, the individual sentences are not at the high end of the sentencing range. The sentencing judge was entitled in the circumstances to order cumulation. This court would be intervening without proper cause if it accepted the proposition that the total sentence is 6 months too long.

Conclusion

I would dismiss the application for review and the appeal.
BUSS JA: I agree with McLure P.

MAZZA J: I agree, for the reasons expressed by McLure P, that this appeal against sentence must be dismissed.
In the hearing of the appeal a matter which was given some emphasis by Mr Karstaedt was that when the appellant was 15, he was severely bashed by a large group of people which left him with a fear of violent situations and that fear, in part, caused him to behave in the way that he did on the night in question. Mr Karstaedt referred to a report by a psychologist, Ms Cinzia Zuin, to this effect, which was before the learned sentencing judge.
On the facts in this case, I accept that the psychological effect of what occurred to the appellant when he was 15 is mitigatory. However, it cannot be said that the sentencing judge was not aware of it, or that he did not give it mitigatory weight. At ts 21 he said:
Now, as Mr Crispe outlined to me, you did have that difficulty a number of years ago where there was an assault and when you were set upon by a group, and I take that into account in relation to this matter.
Overall, his Honour identified all relevant mitigating factors in this case, which I think were compelling. There is no doubt in my mind that his Honour took all of the mitigating factors into account and that the sentences he imposed were properly within his discretion.
What cannot be lost in this case, is that the appellant used a knife and deliberately inflicted serious injuries upon RR and then unlawfully wounded JA. The use of a knife is a serious aggravating circumstance. The potential for serious or fatal injury is increased when a knife is produced and used in a situation of conflict. While the appellant is young, there appears to be a growing tendency amongst some young people to use a knife when confronted by conflict, notwithstanding the obvious risks that creates. His Honour gave due weight to general deterrence in this case. He was right to do so.