Blurton v The State of Western Australia
[2014] WASCA 61
•21 MARCH 2014
BLURTON -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 61
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 61 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:76/2013 | 19 DECEMBER 2013 | |
| Coram: | McLURE P NEWNES JA MAZZA JA | 21/03/14 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal on ground 3 refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | TRAVIS LEIGH BLURTON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Assault occasioning bodily harm Bodily harm with intent Whether parity principle breached Whether first limb of totality principle breached Turns on own facts |
Legislation: | Criminal Code (WA), s 304(2), s 317(1) Sentencing Act 1995 (WA), s 8(5), s 9AA |
Case References: | Barry v The State of Western Australia [2012] WASCA 175 Kaschull v The State of Western Australia [2012] WASCA 245 Messiha v Plaucs [2012] WASC 63 Wiltshire v Mafi [2010] WASCA 111 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BLURTON -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 61 CORAM : McLURE P
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
File No : IND 1034 of 2012
Catchwords:
Criminal law - Appeal against sentence - Assault occasioning bodily harm - Bodily harm with intent - Whether parity principle breached - Whether first limb of totality principle breached - Turns on own facts
Legislation:
Criminal Code (WA), s 304(2), s 317(1)
Sentencing Act 1995 (WA), s 8(5), s 9AA
Result:
Leave to appeal on ground 3 refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr J A Scholz
Solicitors:
Appellant : Paxman and Paxman Barristers & Solicitors
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barry v The State of Western Australia [2012] WASCA 175
Kaschull v The State of Western Australia [2012] WASCA 245
Messiha v Plaucs [2012] WASC 63
Wiltshire v Mafi [2010] WASCA 111
1 McLURE P: I agree with Mazza JA.
2 NEWNES JA: I agree with Mazza JA.
3 MAZZA JA: The appellant, along with Robert Paul Blurton and Clifton Jermaine Kickett, was jointly charged on a District Court indictment as follows:
(2) On 7 January 2012 at Caversham Travis Leigh Blurton, Robert Paul Blurton and Clifton Jermaine Kickett unlawfully assaulted Michael James Gordon and thereby did him bodily harm (s 317(1)(b) Criminal Code).
(2) On the same date and at the same place Travis Leigh Blurton, Robert Paul Blurton, and Clifton Jermaine Kickett with intent to harm, did an act as a result of which bodily harm was caused to Aubrey Fullman (s 304(2) Criminal Code).
(3) In the alternative to count (2) on the same date and at the same place Travis Leigh Blurton, Robert Paul Blurton, and Clifton Jermaine Kickett unlawfully wounded Aubrey Fullman (s 301(1) Criminal Code).
(4) On the same date and at the same place Travis Leigh Blurton, Robert Paul Blurton and Clifton Jermaine Kickett wilfully and unlawfully damaged a motor vehicle, namely a Ford Territory Ghia Turbo Sport Utility Vehicle registration number 1DLA 333 (s 444 Criminal Code).
4 These offences were all alleged to have occurred in the one incident near the Caversham Hall. Initially, each accused pleaded not guilty. A trial commencing on 2 April 2013 was allocated.
5 On 31 January 2013, Mr Kickett entered pleas of guilty with respect to counts 1, 2 and 4 (ts 72).
6 On 20 February 2013, the appellant entered pleas of guilty to counts 1 and 2 which were accepted by the State in full satisfaction of the charges in the indictment (ts 72).
7 Prior to being sentenced, both the appellant and Mr Kickett volunteered to assist in the prosecution of Mr Robert Blurton. Both made statements and both undertook to give evidence for the State (ts 75).
8 On 26 March 2013, the appellant was sentenced by Eaton DCJ to 12 months' imprisonment on count 1 and 2 years 6 months' imprisonment on count 2. His Honour ordered that the sentences be served cumulatively. Thus, the total effective sentence imposed on the appellant was 3 years 6 months' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 11 January 2012.
9 Mr Kickett was sentenced to 9 months' imprisonment on count 1, 18 months' imprisonment on count 2 and 6 months' imprisonment on count 4. The primary judge ordered that the sentences on counts 1 and 4 be served concurrently with the sentence on count 2 resulting in a total effective sentence of 18 months' imprisonment. The sentence was conditionally suspended for 12 months.
10 Mr Robert Blurton continued to maintain pleas of not guilty. However, after negotiations, on 5 April 2013 he pleaded guilty to count 2 on the indictment which the State accepted in full satisfaction of the indictment. He was sentenced by Curthoys DCJ to 18 months' imprisonment (reduced from 21 months, to take into account time spent in custody) conditionally suspended for 15 months.
11 Originally the appellant relied on three grounds of appeal. At the hearing of the appeal, the appellant abandoned ground 1 which, in effect, alleged that the sentence imposed on count 2 was manifestly excessive. Grounds 2 and 3, which were pursued by the appellant, allege infringements of the first limb of the totality principle (ground 2) and the parity principle (ground 3).
12 The appellant has leave to appeal in respect of ground 2, but the question of leave to appeal with respect to ground 3 was referred to the hearing.
13 For the reasons which follow, neither ground of appeal has been made out. Consequently, the appeal must be dismissed.
Background
14 The facts of the offending as found by the learned sentencing judge are not challenged. They may be summarised as follows.
15 On the evening of Saturday 7 January 2012, the appellant was at a family party at the Caversham Hall on West Swan Road. At about 11 pm, he became involved in an argument with his partner, Ms Williams. As a result, he left the hall. Drunk and angry, he walked onto West Swan Road and remained there, posing a hazard to himself.
16 At about 11.30 pm, the two complainants, Mr Fullman and Mr Gordon, both off-duty police officers, were passengers in a motor vehicle being driven by Mr Fullman's wife. Also in the car were Mr Fullman's 10-year-old daughter and Mr Gordon's wife. The occupants of the car were driving home after a wedding. The appellant stood in front of their vehicle on the roadway, causing Mr Fullman's wife to slow down and drive around him. As she did so and without reason, the appellant struck the vehicle several times with his fist. Consequently, Ms Fullman stopped the car.
17 Mr Fullman got out and approached the appellant. The appellant swung a number of punches at him, which missed, but eventually Mr Fullman was struck to the left side of the jaw with a clenched fist.
18 At about this point, others who had been at the party, including the co-accused Mr Kickett and Mr Robert Blurton, joined in the attack. Mr Fullman was knocked to the ground, kicked and punched by various people. Seeing what was happening to his friend, Mr Gordon got out of the car to assist. Mr Gordon told the appellant that he was a police officer and did not want to fight. Instead of walking away, the appellant approached Mr Gordon and punched him in the face. Others also attacked Mr Gordon. Mr Gordon ended up on the ground, struggling with Mr Kickett and Mr Robert Blurton. As a result of the punch, Mr Gordon sustained a 2 cm laceration to the right side of his lower lip (count 1).
19 Mr Fullman then came to Mr Gordon's aid and pushed his attackers away. The two men then retreated towards their vehicle. As Mr Fullman was retreating, the appellant and his co-accused continued to attempt to strike him. Bottles were thrown at Mr Fullman, one hitting him on the back of the head. The appellant picked up a wooden picket from the side of the road and approached Mr Fullman from behind. He then struck Mr Fullman with it to the region of the right forehead with such force that the picket snapped in two (count 2). Both victims managed to get into their vehicle.
20 Objects continued to be thrown at the car. One of those objects, a bottle, smashed the front passenger side window, hit Mr Fullman on the left side of the jaw and showered him with shattered glass (count 4).
21 Ms Fullman drove immediately to the Midland police station and later to the Swan Districts Hospital. Mr Gordon had seven stitches inserted inside his mouth. Mr Fullman suffered a 3 cm laceration to the right side of his forehead.
22 The victim impact statements tendered to the learned sentencing judge graphically illustrate the shock and fear experienced by the victims and those who were in the car.
23 On 11 January 2012, the appellant handed himself in to the police. When he was interviewed, he admitted fighting with the victims, but denied using anything as a weapon.
The appellant's antecedents
24 At the time of the offending, the appellant was 26 years of age. When he was sentenced he was 27 years.
25 The appellant and his partner have five young children.
26 The appellant has a relevant criminal history. In 2005, he was convicted in the Supreme Court of two counts of armed robbery and one count of deprivation of liberty, for which he was placed on an intensive supervision order. In 2006, he was convicted in the Midland Magistrates Court for two counts of common assault, one count of breach of bail and one count of unlawful damage. For these offences he was given a global fine of $1,500. In 2009, he was convicted of various drug offences in the Midland Magistrates Court and placed on another intensive supervision order. It cannot be said that the appellant is a stranger to violent offending. Further, it cannot be said that he is a person of good character.
27 The appellant told the author of the pre-sentence report that in the two weeks prior to the commission of the offences he had been consuming large amounts of alcohol and had been smoking methylamphetamine. The appellant said that on the night of the offences he was intoxicated and angry. As a result, he lashed out at the victims whom he perceived (wrongly) to be interfering.
28 The author of the pre-sentence report noted that the appellant showed little victim empathy.
The sentencing remarks
29 The learned sentencing judge said that it was to the appellant's credit that he had voluntarily handed himself in to the police and that he had undertaken to give evidence against Mr Robert Blurton at his trial. In this regard, his Honour noted the statement that the appellant had made to police and he accepted that his future cooperation might lead to 'some degree of retribution from others' (ts 75). His Honour did not specify the discount he gave for future cooperation as required by s 8(5) of the Sentencing Act 1995 (WA), but there is no ground of appeal directed to this point. In any event, it is clear his Honour took the offer of future cooperation into account as a mitigating factor as he did with Mr Kickett.
30 His Honour took into account the appellant's pleas of guilty which he said had 'come late in the piece' (ts 78). Pursuant to s 9AA of the Sentencing Act, his Honour reduced the sentence by 'one third of the maximum allowance provided for in that section' (ts 78). As the maximum allowance under s 9AA is 25%, the reduction was 8.33%.
31 His Honour found that the appellant was the principal offender. He said that the appellant was, in effect, the leader of the attacks on the victims which he described as 'unprompted and unprovoked violence'. He said that the blow to Mr Fullman with the picket was 'particularly violent' because he struck him to the temple with considerable force which could have had 'disastrous consequences' (ts 79).
32 A reading of the sentencing remarks as a whole reveals that his Honour imposed a different sentence on Mr Kickett because:
1. he played a lesser role in the offending. On counts 1 and 2 he aided and encouraged the appellant. His role in count 4 was that he was one of those who threw objects at the vehicle;
2. at the time he was sentenced, he was 21 years of age;
3. he has a borderline to moderate intellectual disability (ts 75).
The general principles applicable to this appeal
33 The general appellate sentencing principles are well known and were accurately and succinctly described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. It is unnecessary to repeat them here.
Ground 2 - Did the total effective sentence infringe the totality principle?
34 The totality principle comprises two limbs. The appellant only relies on the first limb, which provides that the total effective sentence imposed upon an offender who has committed more than one offence must bear a proper relationship to the overall criminality of the offences viewed in their entirety and having regard to all of the circumstances of the case, including those referable to the offender personally.
35 One of the manifestations of this principle is the so-called one transaction rule. However, the appellant does not rely upon this so-called rule.
36 It was submitted for the appellant that notwithstanding the seriousness of the offences, the injuries inflicted upon the victims were minor. It was further submitted that on the night in question, the appellant was 'not looking for trouble'. Counsel emphasised the appellant's pleas of guilty and that he had not committed a violent offence for some years prior to the current offences.
37 The maximum penalty for count 1 is 5 years' imprisonment and for count 2, 20 years' imprisonment.
38 The appellant's counsel was correct to concede that the offences were serious. As his Honour rightly said, the offences were unprompted and unprovoked by the victims. The appellant assaulted both men out of anger brought on by self-induced intoxication, a factor which affords no mitigation. He assaulted Mr Gordon, even though he had told the appellant that he was a police officer and did not want to fight. The appellant assaulted Mr Fullman with a weapon from behind as he was retreating. While the physical injuries he inflicted on the victims were relatively minor, the shock and fear caused to the victims was substantial and cannot be ignored. Nor can it be ignored that the appellant's actions had the potential to cause greater harm than that which eventuated.
39 The pleas of guilty were entered relatively late in the proceedings. It is not suggested that the discount that his Honour gave pursuant to s 9AA of the Sentencing Act was in any way erroneous. His Honour plainly took into account the appellant's cooperation in the prosecution of Mr Robert Blurton, although it must be said that its utility was limited. In the statement the appellant gave to the police, he identified Robert Blurton as being present, but he told the police that he did not see him hit or punch anyone or throw any object (AB 99 - 100).
40 The appellant's antecedents were unfavourable. He had a relevant and quite recent history of violent offending. Personal deterrence was an important sentencing consideration, as were general deterrence and public protection.
41 It is relevant when considering the question of totality to have regard to comparable cases to ensure broad consistency. However, the cases cited by the appellant, namely this court's decisions in Kaschull v The State of Western Australia [2012] WASCA 245; Wiltshire v Mafi [2010] WASCA 111 and a single judge decision in Messiha v Plaucs [2012] WASC 63, are insufficient in number to provide any real assistance. In any event, the differences in their factual circumstances to the present case mean they are of no real assistance.
42 In assessing the appellant's criminality it is relevant that, as a result of his actions, others joined in. He did nothing to prevent this, nor did he desist when it occurred. The victims were, in effect, set upon and outnumbered.
43 Having regard to the overall criminality of the offences and having regard to all of the circumstances of the case, I have not been persuaded that the total effective sentence imposed by the learned sentencing judge infringed the first limb of the totality principle. It was within the ambit of a sound sentencing discretion.
44 Ground 2 has not been made out.
Ground 3 - Did the sentence infringe the parity principle?
45 The appellant relied upon his written submissions in support of this ground. The appellant submitted that the sentence imposed upon him, when compared to the sentence imposed upon Mr Kickett, infringed the parity principle. It is submitted that the disparity is such as to give rise to a justified sense of grievance on the appellant's part. The appellant does not submit that the sentence imposed on Mr Robert Blurton gives rise to such a sense of grievance.
46 In Barry v The State of Western Australia [2012] WASCA 175, I explained the parity principle in this way:
The parity principle is based upon the norm of equality before the law which requires, so far as the law permits, that like cases be treated alike and that there be different outcomes where there are relevant differences: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [28] (French CJ, Crennan & Kiefel JJ).
Whether the parity principle has been infringed does not depend upon a finding that the sentence in question is manifestly excessive. It depends upon whether, objectively speaking, the disparity (or lack of it) gives rise to a justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606, 609 - 610 (Gibbs CJ).
What is required is a comparison of the sentence imposed on each offender and an evaluation of their involvement in the commission of the offence and their antecedents: MGM v The State of Western Australia [2012] WASCA 24 [43] (Mazza JA, McLure P & Buss JA agreeing) [55] - [57].
47 The sentences imposed on the appellant and Mr Kickett are markedly different. However, as the respondent submitted, there were clear differences between the appellant and Mr Kickett which justified the different sentences. Those differences being the ones referred to in [32] of these reasons. It is relevant to add that Mr Kickett had, in the year following the commission of the offences, engaged in residential rehabilitation and substance abuse counselling, and appeared to have done well. Circumstances of this kind were not present in the appellant's case.
48 In all of the circumstances, the appellant can have no objective sense of grievance because of the different sentences that were imposed upon Mr Kickett.
49 Ground 3 has no reasonable prospects of success. I would not give leave to appeal in relation to it.
Conclusion and orders
50 None of the grounds of appeal have been made out. Accordingly, the appeal must be dismissed.
51 The orders I would make are as follows:
1. Leave to appeal on ground 3 is refused.
2. The appeal is dismissed.
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