Bowe v The State of Western Australia
[2017] WASCA 166
•11 SEPTEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BOWE -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 166
CORAM: MARTIN CJ
MITCHELL JA
HALL J
HEARD: 16 JUNE 2017
DELIVERED : 11 SEPTEMBER 2017
FILE NO/S: CACR 140 of 2016
BETWEEN: GRAHAM WILLIAM BOWE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 141 of 2016
BETWEEN :GRAHAM WILLIAM BOWE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 142 of 2016
CACR 143 of 2016
BETWEEN :ROYCE DOUGLAS BOWE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 144 of 2016
BETWEEN :LUKE ANDREW BOWE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 145 of 2016
BETWEEN :LUKE ANDREW BOWE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 146 of 2016
CACR 147 of 2016
BETWEEN :JASON WILLIAM BOWE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DAVIS DCJ
File No :IND 1279 of 2016
Catchwords:
Criminal law - Appeals against conviction - Whether truncation of re-examination resulted in miscarriage of justice - Whether direction as to nature of probable consequence test in Criminal Code (WA) s 8 erroneous - Whether direction as to timing of common intention for purposes of Criminal Code (WA) s 8 erroneous - Whether evidence supported factual finding that common intention formed prior to commission of offence
Criminal law - Appeals against sentence - Whether parity relevant in decision not to suspend sentence - Whether sentence manifestly excessive - Whether sentence breached principle of parity - Whether sentence breached first limb of principle of totality
Legislation:
Criminal Code (WA), s 8
Sentencing Act 1995 (WA), s 39
Result:
Applications for leave to adduce additional evidence granted
Leave to appeal refused
Appeals dismissed
Category: B
Representation:
CACR 140 of 2016
Counsel:
Appellant: Mr S B Watters
Respondent: Mr R G Wilson
Solicitors:
Appellant: Patti Chong Lawyer
Respondent: Director of Public Prosecutions (WA)
CACR 141 of 2016
Counsel:
Appellant: Mr C J Henderson
Respondent: Mr R G Wilson
Solicitors:
Appellant: Patti Chong Lawyer
Respondent: Director of Public Prosecutions (WA)
CACR 142 of 2016
CACR 143 of 2016
Counsel:
Appellant: Mr S B Watters
Respondent: Mr R G Wilson
Solicitors:
Appellant: Kate King Legal
Respondent: Director of Public Prosecutions (WA)
CACR 144 of 2016
Counsel:
Appellant: Mr S B Watters
Respondent: Mr R G Wilson
Solicitors:
Appellant: David McKenzie Legal
Respondent: Director of Public Prosecutions (WA)
CACR 145 of 2016
Counsel:
Appellant: Mr D J McKenzie
Respondent: Mr R G Wilson
Solicitors:
Appellant: David McKenzie Legal
Respondent: Director of Public Prosecutions (WA)
CACR 146 of 2016
CACR 147 of 2016
Counsel:
Appellant: Mr A D Sullivan
Respondent: Mr R G Wilson
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Connell v The Queen [No 6] (1994) 12 WAR 133
DC v The State of Western Australia [2014] WASCA 129
Delaney v The Queen [2013] NSWCCA 150; (2013) 230 A Crim R 581
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Gurgone v The State of Western Australia [2016] WASCA 9
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Chambers (1848) 3 Cox CC 92
R v Keenan [2009] HCA 1; (2009) 236 CLR 397
R v Lavery [No 2] (1979) 20 SASR 430
R v Mossman [2017] NTCCA 6
R v Nguyen [2010] NSWCCA 331
R v Pullman [1942] SASR 262
R v Szach (1980) 23 SASR 504
Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312
Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426
The State of Western Australia v Smith [2016] WASCA 153
Trompler v The State of Western Australia [2008] WASCA 265
Winmar v The State of Western Australia [2016] WASCA 62
MARTIN CJ:
Summary
Mr Graham Bowe is the father of Royce, Luke and Jason Bowe. The four men were jointly charged on an indictment which alleged that on 7 December 2014 each unlawfully did grievous bodily harm to Mr Michael Counsel. Each of the men was convicted of that offence following trial by jury in the District Court. Varying terms of imprisonment were imposed upon each offender following his conviction.
Each of the convicted men applies for leave to appeal from his conviction. Each also applies for leave to appeal from the sentence imposed as a result of that conviction. Each application for leave to appeal has been referred to this court for determination. For the reasons which follow, each of the proposed appeals lacks substance and each application for leave to appeal, and each appeal, should be dismissed.
The State case
The State alleged that at approximately 8.00 pm on 7 December 2014, Mr Michael Counsel attended a house on Estevan Way in Ferndale, a suburb of Perth. Mr Graham Bowe lived there with his wife, his sons Royce, Luke and Jason and other members of his family.
Mr Counsel had been driven to the house by Ms Elaine Pearce in order to discuss with Mr Royce Bowe the proposition that he had failed to complete payment for the purchase of a white utility vehicle from Ms Pearce's husband.
Mr Counsel went to the front door of the house and asked to speak to Mr Royce Bowe. The two men spoke in the front yard of the property. Mr Graham Bowe was present for some of their conversation. Mr Royce Bowe suggested that Mr Counsel should go and get Ms Pearce's husband to discuss the matter with him. Mr Counsel and Ms Pearce left the property, ostensibly for that purpose.
Mr Counsel was concerned that the white utility in contention might be removed from the property while they went to collect Mr Pearce. Accordingly, he asked Ms Pearce to drop him in the next street so that he could maintain watch on the vehicle while she went to collect her husband. She did as requested and Mr Counsel returned to Estevan Way via a laneway. Mr Counsel stood under a street light across the road and two doors down from the house occupied by the Bowes in order to maintain watch on the white utility. He was drinking a Vodka Cruiser stubby that he had brought with him.
A little while later Mr Counsel saw a blue utility reverse out of the driveway at the Bowe residence. The vehicle drove past Mr Counsel. He saw that there were two people in the utility, and thought that one of them was Mr Graham Bowe. Very shortly thereafter Mr Counsel saw the blue utility drive past him in the opposite direction, back towards the Bowe residence. There was only one person in the vehicle.
On the State case the blue utility arrived back at the Bowe residence at approximately the same time as a small white sedan. Mr Royce Bowe left the blue utility and approached Mr Counsel holding a baseball bat behind his back. Mr Luke Bowe and Mr Jason Bowe got out of the small white sedan and followed Mr Royce Bowe towards Mr Counsel. On the State case they were in a position to observe the baseball bat that Mr Royce Bowe was carrying behind his back.
On the State case Mr Royce Bowe briefly engaged Mr Counsel in conversation before producing the baseball bat from behind his back. Before Mr Counsel could react to the production of the bat, he was struck from behind on the side of the head by a weapon held by Mr Graham Bowe. Mr Counsel was stunned momentarily and dropped to the ground. As he regained his feet, the State alleged that Mr Royce Bowe struck him twice on the forehead with the baseball bat, fracturing his skull and causing injuries which constituted grievous bodily harm.
According to the State, all four accused then proceeded to assault Mr Counsel, kicking him and punching him and striking him with two baseball bats and other weapons that were not clearly identified. Mr Counsel was unable to see which of the accused was striking particular blows because he was lying on the ground covering his face with his arms.
Mr Counsel moved across the road onto the front lawn of another house in Estevan Way where the assault continued until one of the occupants of that house called out 'move along please' and indicated that she was calling the police. At that point the assault upon Mr Counsel concluded. He observed four figures walking back towards the Bowe residence. Police arrived shortly thereafter.
Forensic analysis identified Mr Counsel's blood on the shoe and ankle of Mr Luke Bowe, on the foot of Mr Jason Bowe and on the shorts worn by Mr Graham Bowe.
As I have noted, the State case was to the effect that the blows which caused grievous bodily harm to Mr Counsel were struck by Mr Royce Bowe. The State asserted that all accused were guilty of the offence of causing grievous bodily harm to Mr Counsel because all had formed a common intention to prosecute an unlawful purpose in conjunction with one another, being the purpose of assaulting Mr Counsel, and the offence of causing grievous bodily harm was a probable consequence of the prosecution of that purpose, relying upon s 8 of the Criminal Code (the Code). It will be necessary to refer in more detail to that section and its proper construction and effect in due course.
The defence case
Each of the accused denied any common intention to assault Mr Counsel and indeed denied having in any way assaulted him. They asserted that on the night in question Mr Counsel was the aggressor and that his injuries were suffered while pursuing Mr Graham Bowe, after he ran into a boat trailer parked at the front of a house neighbouring the Bowe residence. That version of events was the subject of evidence given by Mr Graham Bowe.[1] Mr Royce Bowe gave a consistent version of events.[2] Mr Luke Bowe and Mr Jason Bowe did not give evidence. By their verdict, the jury must be taken to have rejected the evidence given by Mr Graham Bowe and Mr Royce Bowe.
[1] ts 756 - 759.
[2] ts 817 - 821.
The appeals against conviction
Mr Graham Bowe
Mr Graham Bowe advances two grounds of appeal against his conviction. The first ground asserts that there was a miscarriage of justice when the trial judge directed that Mr Graham Bowe's counsel could not ask questions in re‑examination on the subject of how he felt during his recorded interview with police. The second ground asserts that the trial judge misdirected the jury in relation to s 8 of the Code in three respects.
Re-examination relating to the police interview
Mr Graham Bowe was interviewed by police between 3.33 am and 4.21 am on the morning after the events giving rise to the charge brought against him. An edited video recording of that interview was played to the jury and received in evidence.[3]
[3] ts 549 - 551.
As I have noted, Mr Graham Bowe gave evidence. He did not give any evidence in chief relating to his interview by police. When he was asked in cross‑examination if he had told the truth to police during the interview, he replied that he did not know what he had told police in the interview and that he could not remember it.[4] He acknowledged to the prosecutor that he had been provided with, and had read, a transcript of the interview prior to giving his evidence. When he was asked whether the transcript read to him 'like a pack of lies', he replied that he could remember parts of the interview but could not remember the whole.[5] Later in the course of cross‑examination, it was put to Mr Graham Bowe that particular statements he had made to police during the recorded interview were inconsistent with the evidence he had given to the jury. Mr Graham Bowe consistently responded to those questions with the assertion that he could not recall what he had said to police.[6] In that context, Mr Graham Bowe stated to the prosecution:[7]
No, I couldn't recall it. As I said that - that interview was - it was early in the morning, I'd been up since 7.00 [am] … went out with - having a good time all day, come home … you know, and then they take - they take us down there and put me under arrest and sit me all these hours and then come in and start asking me questions. I didn't know what the hell was going on. I thought at first this guy attacks me and they were going to arrest him and they turn around and arrest me and me sons and take us down the station. And then they - you know, I thought, well I don't want to say anything.
[4] ts 771.
[5] ts 771.
[6] See, for example, ts 783 - 784.
[7] ts 784.
In re‑examination, counsel for Mr Bowe reminded him that he had given evidence to the effect that he did not remember half of his interview with police and asked him why he did not remember it.[8] The trial judge asked the jury to leave the court. After the jury retired, the following exchange took place:[9]
[8] ts 809 - 810.
[9] ts 809.
DAVIS DCJ: Right. Ms McGregor, I think you probably suspect what I'm going to say to you.
If there is any suggestion about the state of Mr Bowe during the interview and whether he was in a fit state to be interviewed, that should have been a matter raised before this trial. If you wanted that record of interview excluded, an appropriate application should have been made before this trial.
Having watched that interview I do not consider Mr Graham Bowe to have been so tired as to be unable to answer the questions that police asked him.
McGREGOR, MS: No. And that's not what I'm asserting, your Honour. But I wish it to be - the witness is - - -
DAVIS DCJ: He gave answers in cross-examination, unless it's something that you need to clarify I'm not going to allow this line of questioning.
The interview is in, it was never objected to, it is all admissible - - -
McGREGOR, MS: Yes. And I - - -
DAVIS DCJ: - - - and the jury will make their own assessment.
McGREGOR, MS: I accept that but it's just the timing of it being, at some points, 4 o'clock in the morning.
DAVIS DCJ: They've seen it, it's recorded when the interview started. I think it was 3.30 [am].
McGREGOR, MS: Yes, 3.33 [am].
DAVIS DCJ: You can make submissions but you're not asking this man about how he felt when that interview is in and there was no objection to the interview brought before this trial.
Okay?
McGREGOR, MS: Yes.
DAVIS DCJ: Thank you.
Leave is sought to adduce evidence from counsel representing Mr Graham Bowe at trial with respect to the questions she would have asked and the answers she would have expected to receive if the trial judge had not intervened in the manner set out above.[10] Counsel advises that she expected Mr Bowe to give evidence to the effect that he was tired, given that the interview commenced at 3.33 am, and that he did not consider that he had committed any criminal acts while he was being interviewed - rather, he thought that Mr Counsel was going to be charged, which is why he did not tell police the full events of the night, including the occasion upon which Mr Counsel struck his head on the boat trailer.[11]
[10] Application in an appeal dated 22 February 2017, WAB (CACR 140 and 141 of 2016) 14 - 18.
[11] WAB (CACR 140 and 141 of 2016) 17.
Leave should be granted to permit this evidence to be received. In order to succeed on this ground of appeal, the appellant must establish that the direction given by the trial judge gave rise to a miscarriage of justice. In that context, the forensic purpose of the line of questioning which counsel was pursuing is relevant.
However, it is clear, as counsel for Mr Graham Bowe on the appeal conceded,[12] that trial counsel's desire to obtain evidence from Mr Graham Bowe as to his belief that it was Mr Counsel who was under investigation was not impeded by the direction given by the trial judge. That direction was limited to questions relating to the physical and mental condition of Mr Graham Bowe at the time the interview took place, and did not extend to questions directed to his belief with respect to the purpose of the interview. It follows that if any relevant miscarriage of justice is to be established in relation to this ground, it must derive from the proposition that the direction of the trial judge prevented Mr Bowe giving evidence to the effect that he was tired at the time he was interviewed by police.
[12] Appeal ts 9.
Of course, the question of miscarriage of justice only arises if it is first established that the trial judge erred by giving the direction which she gave. The permissible ambit of re-examination is relevant to that question. In Connell v The Queen [No 6],[13] the Full Court observed:[14]
It needs to be remembered that the purpose of re-examination is not merely to remove ambiguities and uncertainties. Re-examination is allowed wherever an answer in cross-examination would, unless supplemented or explained, leave the court with an impression of the facts, whether facts in issue or facts relating to credibility, which is capable of being construed unfavourably to the party calling the witness and which represents a distortion or incomplete account of the truth as the witness is able to present it.[15]
The learned author of Cross on Evidence has expressed the ambit of cross‑examination in precisely the same terms, relying upon the same authorities.[16]
[13] Connell v The Queen [No 6] (1994) 12 WAR 133.
[14] Connell v The Queen[No 6] (209 - 210) (Malcolm CJ, Pidgeon & Nicholson JJ).
[15] Relying upon R v Lavery [No 2] (1979) 20 SASR 430, 435 (Wells J), 451 (King CJ); R v Chambers (1848) 3 Cox CC 92; R v Pullman [1942] SASR 262; R v Szach (1980) 23 SASR 504.
[16] Cross on Evidence (9th Aust ed, 2013) [17605]; see also Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414 [110] (Miller JA).
In the present case the trial judge disallowed the question put by counsel in re‑examination because she considered that the purpose or effect of the question would be to undermine the admissibility of the record of interview, when no objection had been taken to its admission. With respect to her Honour, that view overlooks the distinction between evidence which would be relevant to the admissibility of a recorded interview on voir dire on the one hand, and evidence which goes to the weight properly attributed to the statements made in the interview on the other. In my respectful view, a question directed to the tiredness of Mr Graham Bowe at the time he was interviewed by police could be relevant to the weight properly attributed to the answers which he gave during the course of that interview without impugning its admissibility. Accordingly, if Mr Graham Bowe had been questioned on that topic during his evidence in chief, his answers would have been admissible and any direction preventing that line of questioning would have been in error.
However, the question was not asked during evidence in chief, but in re‑examination. There is no apparent reason why the question was not posed during evidence in chief, given that the record of interview had (of course) been played to the jury before Mr Graham Bowe gave evidence, and the inconsistencies between the statements he made to police during the interview and the evidence which he gave were obvious. Accordingly, whatever reason may have been given by the trial judge for her ruling, this ground can only succeed if the question posed by counsel during re‑examination came within the permissible ambit of re‑examination described above. Consistently with the legal principles set out above, in order to succeed on this ground, it must be established that unless evidence was led to the effect that Mr Graham Bowe was tired when interviewed, the court would be left with an impression of the facts capable of being construed unfavourably to Mr Graham Bowe and which would represent a distortion or incomplete account of the truth. The circumstances of the present case fall well short of discharging that onus.
As usual, the police officers interviewing Mr Graham Bowe stated on the video recording the times at which the interview commenced (3.33 am)[17] and concluded (4.21 am).[18] As I have noted, the appellant gave evidence to the effect that he had been up since 7.00 am the day before.[19] He had also given evidence to the effect that he had spent the previous day picnicking with his family at Point Walter.[20] He told police that he had been drinking during the day, with his last drink being around 8.30 pm.[21] During his evidence he complained that he had been made to sit 'all these hours' before being interviewed.[22] He told the jury that he 'didn't know what the hell was going on' at the time he was interviewed[23] - he thought the police were going to arrest Mr Counsel when in fact they arrested him and his sons.[24] He also told the jury that he was 'falling asleep on the table most of the time'.[25]
[17] Transcript of EROI 2, B/GAB (CACR 140 and 141 of 2016) 135.
[18] Transcript of EROI 38, B/GAB (CACR 140 and 141 of 2016) 171.
[19] ts 784.
[20] ts 736.
[21] Transcript of EROI 3 - 4, B/GAB (CACR 140 and 141 of 2016) 136 - 137.
[22] ts 784.
[23] ts 784.
[24] ts 784.
[25] ts 791.
This evidence left no opportunity for 'a distortion or incomplete account' of Mr Graham Bowe's condition at the time of interview. The evidence established that he had been awake, continuously, for more than 20 hours and for some of that time had been outdoors and drinking. Jurors would have drawn upon their own life experience to conclude, from that evidence, that Mr Graham Bowe would have been tired at the time he was interviewed by police. Evidence of that obvious fact did not have to be given to avert the risk of a distorted or incomplete account of the facts. It follows that the question posed by counsel did not come within the permissible ambit of re‑examination, and the trial judge did not err by disallowing the question.
Further and in any event, given the evidence to which I have referred, even if the trial judge was found to have erred in disallowing the question, it is inconceivable that such an error could have given rise to any miscarriage of justice. In addition to the evidence to which I have referred, it must also be remembered that the jury had the opportunity of assessing Mr Graham Bowe's condition at the time he was interviewed by police by observing his demeanour through the video record of that interview.
For these reasons, the first ground of Mr Graham Bowe's appeal against conviction has no prospect of success.
Section 8 and the alleged misdirection
Mr Graham Bowe's second ground of appeal contends that the trial judge misdirected the jury with respect to s 8 of the Code in three respects, namely:
(a)the jury should have been told the relevant test is an objective one;
(b)the jury should have been directed as to how they were to apply an objective test in determining the culpability of the appellant; and
(c)the jury should have been told that they must have regard to whether the grievous bodily harm that happened was an offence of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.
I will deal with each of these propositions in turn.
Section 8(1) of the Code provides:
When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
There is no doubt that the question of whether the offence committed is of such a nature that its commission was a probable consequence of the prosecution of the relevant unlawful purpose is a question to be determined objectively, rather than from the perspective of the subjective views, expectations or perceptions of the participants in the unlawful purpose.[26]
[26] Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 442 (Gibbs J, Menzies & Mason JJ agreeing); R v Keenan [2009] HCA 1; (2009) 236 CLR 397 [102] (Kiefel J, Hayne, Heydon & Crennan JJ agreeing).
However, no authority has been cited, nor am I aware of any authority, to the effect that a trial judge is obliged in every case in which s 8 is raised to direct the jury that the assessment of the 'probable consequence' component of the section is to be undertaken from an objective, rather than a subjective, perspective. That is probably because it is inherently unlikely that a conventional direction to the jury by reference to the natural and ordinary meaning of the words used in the section could create the impression that the assessment of whether the offence committed was of such a nature as to be a probable consequence of the common purpose was to be undertaken by reference to the subjective views and perceptions of the accused. That proposition is best illustrated by the directions given by the trial judge in this case.
The trial judge directed the jury that:[27]
Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and, in the prosecution of that unlawful purpose, an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose, each of them is deemed to have committed the offence.
For the offence committed to be a probable consequence of the prosecution of the unlawful purpose, the commission of the offence has to be not merely possible but probable in the sense that it could well have happened in the prosecution of the unlawful purpose.
To create liability under this law of common intention to prosecute an unlawful purpose, there are three requirements the State has to prove beyond reasonable doubt.
…
The third thing the State must prove beyond reasonable doubt is that the offence of unlawfully doing grievous bodily harm was a probable consequence of the prosecution of that unlawful purpose.
[27] ts 1008 - 1009.
Directions expressed in those terms could not have induced any reasonable perception that the assessment of whether the offence committed was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose was to be undertaken from the subjective perspective of each accused. To the contrary, directions in those terms would have conveyed to the jury that the assessment of that question was a matter for them, to be undertaken as reasonable representatives of the community, consistently with the objective nature of the process required by s 8 of the Code.
In the course of her Honour's directions, the trial judge provided the jury with a written aid intended to assist their deliberations. A number of the appellants have applied for leave to adduce that aid in evidence in the appeal.[28] Leave should be granted. Even though the document is headed with the usual caution that the aid is not to be regarded as a substitute or replacement for the directions given by the trial judge, the terms of the document given by the judge to the jury as an adjunct to her Honour's directions are relevant to the assessment of whether there has been a misdirection.
[28] Application in an appeal dated 26 October 2016, WAB (CACR 140 and 141 of 2016) 5 - 12; application in an appeal dated 25 October 2016, WAB (CACR 142 and 143 of 2016) 5 - 12; application in an appeal dated 27 October 2016, WAB (CACR 144 and 145 of 2016) 5 - 12.
As would be expected, the terms of the written aid were consistent with the directions given by the trial judge. Under the heading 'common intention or purpose', the written aid provides:[29]
The law provides that where 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that unlawful purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose, each of them is deemed to have committed the offence. For the offence committed to be a 'probable consequence' of the prosecution of the unlawful purpose, the commission of the offence had to be not merely possible, but probable in the sense that it could well have happened in the prosecution of the unlawful purpose.
To create liability under this law of common intention to prosecute an unlawful purpose, there are three requirements that the State must prove beyond reasonable doubt:
…
Third that the offence of unlawfully doing grievous bodily harm was a probable consequence of the prosecution of that unlawful purpose of assault.
[29] See eg WAB (CACR 140 and 141 of 2016) 8.
Later, the written aid provides:[30]
The State's case is that all four were involved and you could be satisfied beyond reasonable doubt that they had a common intention to prosecute the unlawful purpose of assault against Mr Counsel, with the offence of unlawfully doing grievous bodily harm a probable consequence of the prosecution of that unlawful purpose.
[30] See eg WAB (CACR 140 and 141 of 2016) 10 - 11.
There is nothing in the written aid on the subject of the assessment of the probable consequences of the prosecution of the relevant unlawful purpose that could reasonably have conveyed to the jury any suggestion that the assessment was to be undertaken by reference to the subjective views and perceptions of each accused. To the contrary, the terms of the written aid, consistently with the directions given by the trial judge, would have conveyed to the jury that the assessment of the probable consequences of the prosecution of the unlawful purpose was a matter for them, consistently with the objective nature of this aspect of s 8 of the Code.
Counsel for Mr Graham Bowe submitted that the reference in the written aid to the proposition that the offence 'could well have happened in the prosecution of the unlawful purpose' might have conveyed to the jury that the consequences of the prosecution of the unlawful purpose were to be assessed from the perspective of each accused.[31] With respect, I am quite unable to see how those words could have conveyed that impression. To the contrary, in my view, posing a question in terms of whether something 'could' have happened as a consequence of something else would more naturally convey the proposition that the assessment is to be undertaken as a matter of objective fact rather than subjective perception.
[31] Appeal ts 5.
If, as is contended on behalf of the appellant, the trial judge was obliged to specifically direct the jury that the assessment of the probable consequences of the prosecution of the unlawful purpose was to be undertaken objectively, it would have been necessary for the trial judge to explain that concept to the jury. It is difficult, if not impossible, to adequately explain the notion of objective assessment to jurors who can be assumed to lack training in law or any other relevant discipline without contrasting objective assessment to subjective assessment. The obvious risk in that course is that a reference to subjective assessment would unnecessarily suggest to the jury that it would be possible to assess the probable consequences from the subjective perspective of each particular accused, when it is most unlikely that any juror would have conceived of that possibility. In most cases involving s 8 of the Code, including this case, a specific direction with respect to the objective nature of the assessment required would create a risk of confusion which is entirely unnecessary if conventional directions are given in the terms of the section.
For these reasons, the contention that the trial judge erred by not specifically directing the jury with respect to the objective nature of the relevant test in s 8 of the Code has no significant prospect of success.
On behalf of Mr Graham Bowe it is also asserted that the trial judge erred by not directing the jury with respect to the manner in which they were to apply an objective test. The written submissions provided in support of this aspect of the ground are, with respect, difficult to follow. They commence by drawing upon the decision in Stingel v The Queen,[32] a case concerning provocation, to support the proposition that the jury should have been directed to ask themselves whether it was reasonable for a person with the particular attributes of each accused to fail to recognise grievous bodily harm as a probable consequence of the prosecution of the common unlawful purpose. However, after referring to the personal attributes of each accused, the written submissions go on to advance the proposition that the jury should have been directed 'to apply their own standards in determining whether the grievous bodily harm was a probable consequence of the common unlawful purpose'.[33] The difference between these two propositions is irreconcilable.
[32] Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, 324 - 332.
[33] WAB (CACR 140 and 141 of 2016) 25.
The first proposition, derived from the law of provocation, misconceives the nature of the assessment which is required by s 8 of the Code. In the context of the law of provocation, the relevant issues are the effect which the allegedly provoking conduct would have upon an ordinary person of the accused's age and whether the accused was in fact provoked. In that context, the focus of attention, and the relevant distinction between subjectivity and objectivity, is directed to the position of the accused.
However, the question posed by s 8 of the Code is whether, objectively, the offence committed was of such a nature as to be a probable consequence of the common purpose. The focus of the inquiry is the offence committed. The assessment is one to be undertaken objectively by the jury[34] and no notion of attribution of the personal attributes of an accused is involved.
[34] Stuart (443).
The tension between the irreconcilable propositions put in support of this aspect of the ground of appeal is to be resolved by concluding that the first proposition, based upon the law of provocation, is misconceived, and the second proposition, to the effect that the assessment is a question for the jury, is correct. For the reasons I have given in relation to the first aspect of this ground, the directions given by the trial judge, and the written aid which the trial judge provided to the jury, would have unmistakeably conveyed to the jury that the assessment of the consequences of the prosecution of the unlawful common purpose was a matter for them, consistently with the proper construction and effect of s 8 of the Code.
For these reasons, the proposition that the trial judge erred by failing to direct the jury in the manner contended for on Mr Graham Bowe's behalf has no significant prospect of success.
The final aspect of this ground of appeal is that the jury should have been directed that the question which they had to assess was whether the particular harm which was suffered by the victim was of such a nature that its commission was a probable consequence of the prosecution of the relevant unlawful purpose. However, as counsel for the appellant conceded in the course of argument,[35] that proposition misconceives the decision of the High Court in Keenan. That case concerned s 8 of the Criminal Code (Qld) which is relevantly identical to s 8 of the Code. In that case the High Court allowed an appeal against a decision of the Queensland Court of Appeal to the effect that the proper application of s 8 required the jury to be directed that the specific conduct constituting the commission of the offence, as opposed to the generic offence, was a probable consequence of the prosecution of the unlawful common purpose. Hayne J, with whom Heydon, Crennan and Kiefel JJ agreed, observed:[36]
[Section] 8 is not to be read as requiring that the offence that was in fact committed (the shooting) was as probable consequence of the prosecution of the unlawful purpose. To do so would give no work to the expression 'of such a nature'.
[35] Appeal ts 7.
[36] R v Keenan [83].
This aspect of the ground of appeal is based upon a proposition which is directly contrary to the decision of the High Court in Keenan. It is misconceived and has no prospect of success. The directions given by the trial judge in this case on the subject of s 8 of the Code were entirely consistent with the decision in Keenan.
For these various reasons, ground 2 in Mr Graham Bowe's appeal has no significant prospect of success. His application for leave to appeal, and his appeal against conviction, should be dismissed.
Mr Royce Bowe
There is only one ground of appeal in Mr Royce Bowe's appeal against conviction. It is identical to the second ground of appeal in Mr Graham Bowe's appeal against conviction. For the reasons I have given, that ground of appeal has no significant prospect of success. Mr Royce Bowe's application for leave to appeal, and his appeal against conviction, should be dismissed.
Mr Luke Bowe
The only ground of appeal in Mr Luke Bowe's appeal against conviction is in identical terms to the second ground in Mr Graham Bowe's appeal and the only ground in Mr Royce Bowe's appeal. For the reasons already given, it has no significant prospect of success and Mr Luke Bowe's application for leave to appeal, and his appeal against conviction, should be dismissed.
Mr Jason Bowe
There are two grounds in Mr Jason Bowe's appeal against conviction. As explained in oral submissions,[37] the first asserts that a miscarriage of justice arose from the trial judge's failure to direct the jury to consider whether it had been established beyond reasonable doubt that Mr Jason Bowe formed a common intention to assault Mr Counsel with the other accused prior to the occurrence of the act which caused grievous bodily harm to Mr Counsel. The second ground asserts that the verdict of the jury was unreasonable and not supported by the evidence because there was no evidence capable of establishing the requisite intent by the requisite time beyond reasonable doubt.
[37] Appeal ts 10.
Counsel for Mr Jason Bowe on appeal accepts that the proposition that the evidence failed to establish that Mr Jason Bowe was a party to the common intention to assault Mr Counsel prior to the striking of the blows which caused grievous bodily harm to Mr Counsel was not put at trial, nor was any direction sought from the trial judge to the effect that the jury should focus upon the question of the particular time at which Mr Jason Bowe formed an intention to assault Mr Counsel.[38] It should not be inferred that this omission was inadvertent. There is an obvious forensic explanation for the failure of counsel for Mr Jason Bowe to take any point in relation to these matters during the trial. The line taken by all accused was to the effect that Mr Counsel was an untruthful witness and did not sustain his injuries in the manner contended by the State. It would have been entirely inconsistent with that forensic strategy to focus attention upon the particular time at which Mr Jason Bowe formed the intention to join with his brothers and father in assaulting Mr Counsel. In these circumstances, the appellant must overcome a very significant hurdle in order to establish that a miscarriage of justice arose from directions given by the trial judge which were entirely consistent with the forensic strategy adopted on behalf of Mr Jason Bowe at trial and to which no objection was taken.
[38] Appeal ts 10 - 11.
But in any event, there is no substance in either ground of appeal. In dealing with Mr Graham Bowe's appeal against conviction, I have set out part of the directions given by the trial judge with respect to s 8 of the Code. In order to deal with the first ground of Mr Jason Bowe's appeal, it is necessary to augment the portion of the directions referred to by noting that the trial judge directed the jury that the first two things of which they had to be satisfied beyond reasonable doubt were:[39]
First, there must be a common intention between the accused to prosecute an unlawful purpose. Second, an offence must be committed in the prosecution of that unlawful purpose …
[39] ts 1008.
Immediately after that direction, the trial judge told the jury that:[40]
To prove that the accused in this case had a common intention, what the State has to prove beyond reasonable doubt is that, first, the four accused men had a common intention to prosecute the unlawful purpose of assault against Mr Counsel.
…
The second thing the State has to prove beyond reasonable doubt is that while the accused were prosecuting that common purpose, the offence which is the subject of the charge and that is, unlawfully doing grievous bodily harm, was committed.
[40] ts 1008 - 1009.
A little later in her Honour's directions, the trial judge told the jury:[41]
In this case, the State is asking you to draw the inference that all four of the accused were parties to the assault of Mr Counsel in Estevan Way on this night, and that they did so with a common intention of assaulting him, and this resulted in Mr Counsel receiving the fractured skull and bleeding on his brain.
[41] ts 1011.
Further, the trial judge expressly directed the jury that they were required to look at the case of each accused separately and in this context observed:[42]
While you may not be satisfied beyond reasonable doubt that there was a common intention between all four of the accused, you may be satisfied beyond reasonable doubt that two or three of the accused acted with the common intention as alleged by the State, or you may be satisfied beyond reasonable doubt that one accused did the things which constitute the offence of doing grievous bodily harm to Mr Counsel.
So the elements of the charge need to be considered for each accused.
[42] ts 1012.
The written jury aid which the judge provided to the jury contained instructions in substantially the same terms. It provided:[43]
[43] See eg WAB (CACR 140 and 141 of 2016) 8, 10 - 11.
To create liability under this law of common intention to prosecute an unlawful purpose, there are three requirements that the State must prove beyond reasonable doubt:
·First that the accused had a common intention to prosecute the unlawful purpose of assault against Mr Counsel.
·Second that while they were prosecuting that common purpose the offence of unlawfully doing grievous bodily harm was committed.
·Third that the offence of unlawfully doing grievous bodily harm was a probable consequence of the prosecution of that unlawful purpose of assault.
…
Remember you must look at each accused separately. The State's case is that all four were involved and you can be satisfied beyond reasonable doubt that they had a common intention to prosecute the unlawful purpose of assault against Mr Counsel, with the offence of unlawfully doing grievous bodily harm a probable consequence of prosecution of that unlawful purpose.
While you may not be satisfied beyond reasonable doubt that there was a common intention between all four of the accused, you may be satisfied beyond reasonable doubt that two or three of the accused acted with the common intention as alleged by the State. Or you may be satisfied beyond reasonable doubt that the one accused did the things which constitute the offence of unlawfully doing grievous bodily harm to Mr Counsel.
In summary, the trial judge expressly directed the jury on several occasions that the relevant offence, of causing grievous bodily harm, had to be the probable consequence of the prosecution of the unlawful purpose of assaulting Mr Counsel and that it was for the jury to determine which one or more of the accused had that purpose. In those circumstances, no reasonable juror could possibly have concluded that Mr Jason Bowe could be criminally liable for injuries sustained by Mr Counsel before Mr Jason Bowe had any intention to join in the purpose of assaulting him. No express direction negativing that possibility was required. This ground of appeal has no significant prospect of success.
The second ground of appeal asserts that the conviction of Mr Jason Bowe was unreasonable and not supported by the evidence. It is clear from the submissions advanced in support of this ground that it is limited to the proposition that there was no evidence capable of sustaining the conclusion that Mr Jason Bowe had formed an intention, in common with his brothers and father, to assault Mr Counsel prior to Mr Royce Bowe striking the blows which caused grievous bodily harm to Mr Counsel.
There was ample evidence capable of satisfying the jury beyond reasonable doubt that Mr Jason Bowe had the intention of assaulting Mr Counsel, in common with his brothers and father, prior to Mr Counsel being struck by Mr Royce Bowe. Mr Counsel's evidence, given in cross‑examination by counsel for Mr Jason Bowe, was to the effect that the men who alighted from the white hatchback - who, on the State case, were Jason and Luke Bowe - were carrying objects, which he later saw were baseball bats with which they struck him.[44] During his evidence in chief he had stated that he was assaulted by a large number of men - at first he thought there were seven or eight, using bats and another weapon which scratched and stabbed him.[45]
[44] ts 269 - 270.
[45] ts 152 - 155.
Mr Counsel's evidence was to the effect that Mr Royce Bowe got out of the blue utility and walked toward him, followed by the two men who had alighted from the white hatchback vehicle. Mr Royce Bowe had one arm behind his back.[46] According to Mr Counsel, the area was well-illuminated by a street light.[47] After Mr Royce Bowe spoke to him, he pulled his arm from behind his back revealing a baseball bat, which he described as a shiny silver aluminium bat - perhaps a darker silver or charcoal colour.[48] After Mr Royce Bowe struck him with the bat, according to Mr Counsel, he was 'assaulted by all of them at once'.[49]
[46] ts 147 - 148.
[47] ts 149.
[48] ts 150.
[49] ts 152.
On this evidence it was open to the jury to find that Mr Jason Bowe alighted from the white hatchback and walked towards Mr Counsel carrying a weapon, in company with his brother Luke, who was also carrying a weapon, and that both men were in a position to see the baseball bat which Mr Royce Bowe was holding behind his back, as he was walking in front of them towards Mr Counsel. It was also open to the jury to conclude that Mr Jason Bowe was in a position to see Mr Graham Bowe strike Mr Counsel from behind, before he was struck by Mr Royce Bowe, and before all men joined in the assault upon Mr Counsel.
The evidence was quite capable of sustaining beyond reasonable doubt the conclusion that Mr Jason Bowe intended to assault Mr Counsel, in common with his brothers and father, as he walked towards him and before any blow was struck. Ground 2 has no significant prospect of success.
As neither of the grounds of appeal of Mr Jason Bowe's appeal against conviction have any significant prospect of success, the application for leave to appeal, and the appeal against conviction, should be dismissed.
The appeals against sentence
For the purposes of sentence, the trial judge found facts which were generally consistent with the State case. She observed that Mr Counsel had not acted aggressively towards any of the accused and was not at any time involved in any physical altercations with any of the accused before he was attacked. She expressed the view that to the extent that his visit to the home of the accused on a Sunday evening in order to collect a debt (which the judge found was in fact owing) might be seen as some kind of affront, any provocation arising from Mr Counsel's visit could only be considered slight.[50]
[50] ts 1258.
The judge found that Mr Royce Bowe and Mr Graham Bowe were the principal offenders - Mr Graham Bowe striking the first blow against Mr Counsel and Mr Royce Bowe then striking the blow or blows which caused the grievous bodily harm.[51] The judge did not accept that either Mr Luke Bowe or Mr Jason Bowe were there only as backup and found that they both followed Mr Royce Bowe when he first approached Mr Counsel and must have seen the baseball bat behind his back. She also found that each of Mr Luke Bowe and Mr Jason Bowe participated in the physical attack upon Mr Counsel.[52]
[51] ts 1258.
[52] ts 1258.
The judge found that two baseball bats were used in the assault upon Mr Counsel, and that Mr Royce Bowe had one of them, although she was unable to find which other of the accused also used a baseball bat. She also found that a piece of wood was used in the assault upon Mr Counsel, which explained the splinter later found in his arm.[53] The judge set out in detail the various other injuries sustained by Mr Counsel, which were significant and sustained to most parts of his body. The injuries included a fractured skull which caused bleeding on the brain which, without medical treatment, would have threatened his life. As a result of the bleeding on his brain, he suffered brain damage to the part of his brain involved with language, causing him to develop a stutter. He was unable to operate a motor vehicle for three months following his release from hospital and was unable to return to full‑time employment for six months.[54]
[53] ts 1259 - 1260.
[54] ts 1260 - 1263.
The judge categorised the offences committed by the offenders as a serious example of grievous bodily harm, although not the most serious or worst case of its kind.[55]
[55] ts 1263.
The judge also found that none of the offenders had shown any remorse.[56] In response to submissions which had been put in relation to the impact which imprisonment of some of the accused might have upon their families, the judge observed that generally hardship caused to an offender's family is not a mitigating circumstance, unless the hardship is exceptional, which was not the case in respect of any of the offenders.[57] The judge then referred to the parity principle in conventional terms.[58]
[56] ts 1273.
[57] ts 1273 - 1274.
[58] ts 1274.
After referring to the individual circumstances of each offender, the judge imposed the following sentences:
Mr Graham Bowe - imprisonment for 3 years and 8 months;[59]
Mr Royce Bowe - imprisonment for 4 years;[60]
Mr Luke Bowe - imprisonment for 3 years;[61]
Mr Jason Bowe - imprisonment for 3 years.[62]
[59] ts 1276 - 1277.
[60] ts 1274 - 1276.
[61] ts 1279 - 1282.
[62] ts 1277 - 1279.
All offenders were made eligible for parole. In the case of Mr Royce Bowe, the offence for which he was convicted was committed during the 12 month period a term of 7 months imprisonment which had been suspended. That sentence was imposed in the Magistrates Court for driving offences. The judge did not consider that there were any circumstances that would make it unjust for Mr Royce Bowe to serve the entire 7 months sentence and she ordered him to do so, cumulatively upon the term of 4 years imprisonment she had imposed.[63]
Mr Graham Bowe
[63] ts 1275 - 1276.
There are three grounds in Mr Graham Bowe's appeal against sentence. First, it is asserted that the judge erred when taking into account the issue of parity when deciding not to suspend the term of imprisonment imposed. Second, it is asserted that the sentence of 3 years and 8 months imprisonment to be immediately served was manifestly excessive. Third, it is asserted that the sentence imposed offended the principle of parity when compared to the terms imposed on the other offenders. I will deal with each ground in turn.
Parity in decision not to suspend sentence
In addition to the general observations made by the judge with respect to the principles of parity in her introductory remarks, she made the following observations on the subject in the course of sentence Mr Graham Bowe, in response to a submission from his counsel to the effect that any term of imprisonment imposed should be suspended. Her Honour observed:[64]
The discretion to suspend is unfettered. All matters relevant to whether a term of imprisonment should be imposed are also relevant to whether to suspend the sentence. I have reminded myself that immediate imprisonment is a sentence of last resort.
Having regard to my findings about the circumstances of this offence and your role and weighing again the aggravating and mitigating factors, I have concluded that if I were to place you on a suspended sentence, that would simply fail to reflect the seriousness of the offence.
I am positively satisfied that it would be inappropriate to suspend. In addition, if I were to suspend your term, it would create a disparity between your sentence and Royce's which would be unjustified. It is true that your criminal record is not as bad as Royce's and your other personal circumstances provide more mitigation than Royce's do.
I will take the matters your counsel has mentioned into account when I'm setting the term of your imprisonment, but those mitigating factors could never justify the suspension of your term in the circumstances of this case and your principal role in this offending.
[64] ts 1276 - 1277.
The passage I have set out above reveals a fundamental impediment to the success of this ground of appeal. It is clear from her Honour's observations that the dominant reason she had decided not to suspend any term of imprisonment imposed upon Mr Graham Bowe was that the seriousness of the offence which he had committed precluded that course. It is clear that her Honour's reference to parity with the sentence imposed upon Mr Royce Bowe was a supplementary or additional reason for arriving at the conclusion at which she would have arrived in any event. It follows that even if the judge did err in taking parity into account when deciding whether or not to suspend the sentence imposed upon Mr Graham Bowe, such an error did not occasion any miscarriage of justice as she would not have suspended the term of imprisonment in any event.
This conclusion is reinforced by the general remarks which her Honour made before turning to deal with the individual offenders. Addressing all of the appellants, prior to fixing Mr Royce Bowe's sentence, the judge observed:[65]
What personal and general deterrence means is that the message must be sent home to all of you and to all those in the community that the use of violence for any reason is not acceptable. Having regard to the circumstances of your offending, as I have found, in my view this offence is so serious that the only appropriate sentence is a term of imprisonment to be served immediately. The offence is just too serious to suspend. In my view it would be totally inappropriate to suspend.
That is a matter conceded by counsel for Royce. Your counsel, Graham, Jason and Luke, have each asked that I either suspend your sentence or, in the case of Luke, place you on a pre-sentence order. For more detailed reasons I will give in a moment when I come to sentence each of you, I simply cannot do that. I am not going to do that and you must all serve a term of immediate imprisonment.
[65] ts 1273.
However, her Honour did not err by referring to the principles of parity in the context of deciding whether or not to suspend the term of imprisonment imposed upon Mr Graham Bowe. It is submitted on his behalf that the error derives from s 39(3) of the Sentencing Act 1995 (WA) (the Act) which, in effect, provides that in deciding whether to impose a term of immediate or suspended imprisonment, the court is to have regard to 'Division 1 of Part 2' of the Act. It is submitted that because there is no reference to the principles of parity in div 1 of pt 2 of the Act, they cannot be taken into account when deciding whether or not to suspend a term of imprisonment.
That submission must be rejected for the reasons enunciated by McLure P in Beins v The State of Western Australia [No 2]:[66]
There is no express reference in the Sentencing Act to many of the common law principles of sentencing, including general deterrence and parity to name two. However, there can be no doubt that those two common law sentencing principles are part of the law of Western Australia. Whether that is because the Sentencing Act accommodates the application of common law principles of sentencing, in the same way as the Crimes Act 1914 (Cth), as explained in Hili v The Queen (2010) 242 CLR 520 [25], or because the Sentencing Act is not intended to cover the field to the exclusion of common law principles which apply unless expressly or impliedly excluded.
In determining whether the Sentencing Act expressly or impliedly excludes a common law sentencing principle, the statutory construction principle of 'legality' would come into play. That requires clear and unambiguous statutory language (or a test to like effect) in order to exclude the common law sentencing principles in whole or in part: Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290, 298; Electrolux Home Products Pty Ltd v The Australian Workers' Union (2004) 221 CLR 309, 328 - 329.
In my view, the proper construction of s 6 of the Sentencing Act is the same, with or without the benefit of the principle of legality. A sentence must be commensurate with the seriousness of the offence. The seriousness of an offence must be determined by taking into account, among other things, any mitigating factors. Mitigating factors go beyond matters that inform the culpability of the particular offender to include factors that decrease the extent to which the offender should be punished. The latter accommodates the application and operation of the common law parity principles to reduce a sentence. More generally, the Sentencing Act does not unambiguously or at all manifest an intention to exclude or modify the common law parity principle which is rooted in fundamental notions of fairness and equality before the law.
[66] Beins v The State of Western Australia [No 2] [2014] WASCA 54 [45] - [47].
It follows that the express imposition of an obligation to consider div 1 of pt 2 of the Act by s 39 does not exclude consideration of the principles of parity which, as McLure P noted, are 'rooted in fundamental notions of fairness and equality before the law'. Accordingly, there is no reason to suppose that the parity principle has any less application to the decision as to whether a sentence of imprisonment should be suspended than to any other part of the sentencing process.
Of course, this does not mean that parity required that Mr Graham Bowe's sentence not be suspended simply because Mr Royce Bowe's sentence was not suspended. As the judge observed in her general observations on the subject of parity, the principle requires offenders to be treated equally if all relevant circumstances are equal. However, if the relevant circumstances of individual offenders differ, they should be treated differently in the sentencing process, to that extent. It is clear from the remarks of the judge which I have set out above that she was taking that approach - identifying in her specific remarks on the topic of parity relating to Mr Graham Bowe the relevant differences between his case and that of his son Royce, but concluding, in effect, that those differences did not justify a different conclusion on the subject of suspension of imprisonment because of the seriousness of the offence. That approach is entirely consistent with principle and authority.
The foundation of the parity principle is the legal norm of equality before the law. That legal norm, which is an aspect of the rule of law, requires that, so far as the law permits, like cases are treated alike and differential treatment is accorded to persons according to relevant differences between them.[67] The parity principle is a basic principle which must be applied both at first instance and on appeal.
[67] Green v The Queen[2011] HCA 49; (2011) 244 CLR 462 [28] - [30] (French CJ, Crennnan & Kiefel JJ).
One particular aspect of the broader parity principle may arise where a judge sentences an offender whose co-offender has already been sentenced by a different judge. In those circumstances the parity principle may lead the sentencing judge to reduce the sentence which he or she would otherwise regard as commensurate with the seriousness of the offence. Such a reduction may be made to avoid a disparity (or lack thereof) between the sentences imposed on the different offenders giving rise to a justifiable sense of grievance by the offender before the court.[68]
[68] See Lowev The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 - 610 (Gibbs CJ), 611 - 612 (Mason J), 623 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson & Gaudron JJ); Green [31] (French CJ, Crennan & Kiefel JJ).
However, the parity principle does not operate to justify a court increasing a sentence which would otherwise be appropriate.[69] That is, it would be an error of principle for a sentencing judge to impose a more severe sentence than he or she would otherwise regard as commensurate with the seriousness of the offence because to fail do so would give rise to a justifiable sense of grievance in an already sentenced co-offender. In such a case, the remedy to avoid disparity is for the co-offender to appeal against his or her sentence on parity grounds.
[69] See R v Nguyen [2010] NSWCCA 331 [62] (Simpson J, Hall & Garling JJ agreeing); Delaney v The Queen [2013] NSWCCA 150; (2013) 230 A Crim R 581 [69] (Hoeben CJ at CL, Harrison & Beech‑Jones JJ agreeing); R v Mossman [2017] NTCCA 6 [67] - [72].
The particular aspect of the broader parity principle discussed above does not arise where two or more co-offenders are sentenced by the same judge at the same time. That is because the sentence which is imposed on each offender will be fixed having regard to the sentencing judge's view of the circumstances of the offence, any aggravating factors and any mitigating factors. Any difference, or lack thereof, in the criminality of the offenders will be reflected in differences, or lack thereof, in the sentences which the judge considers to be commensurate with the seriousness of the offence. In that manner, the sentencing judge will deal with co-offenders being sentenced by the judge in a manner that gives effect to fundamental notions of fairness and equality before the law.
In the present case it would have been an error of principle if the judge had considered a suspended sentence to be otherwise commensurate with the seriousness of the offence committed by Mr Graham Bowe, Mr Luke Bowe or Mr Jason Bowe, but declined to impose a suspended sentence because to do so would give rise to a justifiable sense of grievance by Mr Royce Bowe, who her Honour had already sentenced to a term of immediate imprisonment. The fact that Mr Royce Bowe had been sentenced to a term of immediate imprisonment was not a reason for declining to impose a suspended sentence on other offenders if a suspended sentence was otherwise commensurate with the seriousness of the offence committed by the other offenders. However, for the reasons explained above, that is not what the sentencing judge did.
For these reasons, the first ground of Mr Graham Bowe's appeal against sentence has no prospect of success.
Manifest excess
Turning now to the ground based upon the assertion of manifest excess, the frequency with which that ground of appeal is invoked has resulted in the frequent citation of the well‑established principles which apply to it.[70] It is unnecessary to repeat them in this case. The breadth and range of conduct which can cause grievous bodily harm to another, and the circumstances in which the offence can be committed, have resulted in a similar breadth of the range of sentences customarily imposed. However, more serious examples of the offence generally attract terms of imprisonment of between 3 and 5 years.[71] Obviously sentences for cases falling within the most serious category would fall outside this range, and would come closer to, if not equal, the maximum penalty of 10 years imprisonment.
[70] Those principles can be found in many cases, including, for example, DC v The State of Western Australia [2014] WASCA 129 [39] - [41] (Mazza JA).
[71] The State of Western Australia v Smith [2016] WASCA 153 [93] (Mitchell JA); Winmar v The State of Western Australia [2016] WASCA 62 [66] - [69] (Buss JA); Gurgone v The State of Western Australia [2016] WASCA 9 [38] (Mazza JA).
It is now well established that generally speaking, three factors are significant to the assessment of the culpability involved in any particular case. The first factor is the nature of the harm inflicted (although, of course, all grievous bodily harm is inherently serious). The second factor is the nature of the act which caused the injury, including the question of whether or not a weapon was used. The third factor concerns the background to and circumstances of the offence.[72]
[72] Trompler v The State of Western Australia [2008] WASCA 265 [9] - [10] (Wheeler JA).
Her Honour addressed these factors in her observations at the time of sentence. She expressed the view that the seriousness of the offending was aggravated by the premeditation involved, the fact that the crime was perpetrated by four men against one, by the use of weapons including at least two baseball bats and a piece of wood, and by the sustained nature of the assault which continued even after Mr Counsel had been knocked to the ground, and even after he had moved across the road in an attempt to escape his attackers, and by the serious nature of the injuries sustained by Mr Counsel.[73] In relation to Mr Graham Bowe, as I have noted, the judge found that he was one of the principal offenders, having struck the first blow upon Mr Counsel - a blow struck to the head from behind, taking Mr Counsel by surprise and depriving him of any capacity to defend himself from a vicious and unprovoked attack by four men using weapons.[74]
[73] ts 1263.
[74] ts 1276.
The judge clearly took into account Mr Graham Bowe's personal circumstances, including the very lengthy period since his last criminal conviction (other than some traffic matters) in 1982.[75] However, it must also be noted that the judge expressly found that none of the offenders was remorseful and, of course, none were entitled to any discount for a plea of guilty.
[75] ts 1264 - 1265.
The written submissions filed in support of this ground refer to a significant number of specific cases which are said to be more or less comparable.[76] As might be expected, there are points of similarity and points of difference between those cases and this. Little purpose would be served by specifically identifying the points of similarity and difference in each of those cases because, as I have noted, the range of sentences customarily imposed for cases falling within the more serious category is well established. The judge was correct to find that all these cases fell within that category. Taking into account all the circumstances specific to Mr Graham Bowe, including his significant role in the commission of the offence, the sentence of 3 years and 8 months imprisonment was clearly within the range of sentences open to the judge in the sound exercise of the discretion conferred upon her Honour.
[76] WAB (CACR 140 and 141 of 2016) 93 - 101.
For these reasons, ground 2 of Mr Graham Bowe's appeal against sentence has no significant prospect of success.
Parity with sentence imposed on other offenders
The third ground of Mr Graham Bowe's appeal against sentence asserts that the sentence imposed upon Mr Graham Bowe infringed the parity principle, when compared to the sentences imposed upon Mr Luke Bowe and Mr Jason Bowe (3 years imprisonment). In the course of oral argument, counsel for Mr Graham Bowe expanded the ground to include an assertion that the principle was infringed by comparison with the sentence imposed upon Mr Royce Bowe (4 years imprisonment) without objection from the State.[77]
[77] Appeal ts 33.
The principles applicable to a ground of this kind are well-established. The question to be addressed is whether the disparity in the sentences imposed gives rise 'to a justifiable sense of grievance, or in other words, to give the appearance that justice has not been done'.[78] In Green v The Queen, the majority observed that:[79]
The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.
[78] Green v The Queen [31] (French CJ, Crennan & Kiefel JJ), citing Lowe v The Queen (609) (Gibbs CJ).
[79] Green v The Queen [31].
In the present case, the differing sentences imposed upon the offenders were entirely justified by the differing levels of culpability found by the judge. She found that Mr Royce Bowe and Mr Graham Bowe were the principal offenders who had planned the attack upon Mr Counsel. Although Mr Graham Bowe struck the first blow from behind, it was Mr Royce Bowe who struck the blows which caused grievous bodily harm to Mr Counsel, and his most significant injuries. Those differences justify the imposition of a sentence upon Mr Royce Bowe which was four months longer than that imposed upon Mr Graham Bowe.
On the other hand, the roles played by each of Mr Luke Bowe and Mr Jason Bowe were less significant, although each participated in the assault upon Mr Counsel to some extent. The differences in their level of participation in the attack upon Mr Counsel justify the lower sentences of 3 years imprisonment imposed upon each.
This ground of appeal is entirely without substance. As all of Mr Graham Bowe's proposed grounds of appeal against sentence have no significant prospect of success, his application for leave to appeal against sentence, and his appeal, should be dismissed.
Mr Royce Bowe
There is only one ground in Mr Royce Bowe's appeal against sentence. It asserts that the sentence imposed infringed the first limb of the principle of totality, because the sentence imposed was not adjusted to reflect the fact that the term of suspended imprisonment ordered to be served as a consequence of Mr Royce Bowe's conviction was ordered to be served wholly cumulatively upon the sentence imposed for the offence of grievous bodily harm.
The sentence of 7 months imprisonment, suspended for 12 months, was imposed upon Mr Royce Bowe in the Fremantle Magistrates Court on 13 March 2014 as a result of his conviction on two counts of driving without authorisation. As the offence of grievous bodily harm of which he was convicted was committed on 7 December 2014, that conviction triggered the term of suspended imprisonment.
The argument advanced in support of this ground was at times, with respect, difficult to follow. At times it was suggested that although the sentence of four years would have been appropriate but for the term of suspended imprisonment, totality required the sentence to be reduced so that the total effective sentence on both matters was four years.[80] At other times it was suggested that the error lay in ordering that the term of suspended imprisonment be served wholly cumulatively upon the term imposed on the offence of grievous bodily harm.[81] The common thread in the submissions was to the effect that, however the result was engineered, the total effective term for all offences should have been a term of four years. The general effect of the submissions was that the sentences should have been structured in such a way that no additional time was served as a result of the triggering of the term of suspended imprisonment.
[80] Appeal ts 24.
[81] Appeal ts 25.
This proposition must be rejected. Significantly, it is not submitted that, viewed in isolation from the term of suspended imprisonment, the term of 4 years imprisonment was outside the range available to the sentencing judge in the sound exercise of her discretion. In such a circumstance it is impossible to see how the fact that Mr Royce Bowe's conviction triggered a liability to serve a term of suspended imprisonment imposed in respect of unrelated offences committed on an entirely different occasion can take the sentence imposed in respect of the offence of grievous bodily harm outside the range available to the judge in the sound exercise of her Honour's discretion.
Following Mr Royce Bowe's conviction of the offence of causing grievous bodily harm, it was necessary for her Honour to direct that he serve the term of suspended imprisonment unless satisfied that it would be unjust to do so.[82] It was clearly open to her Honour to find that there was no injustice in directing that Mr Royce Bowe serve the sentence previously imposed upon him, and it is not contended that she erred in making that finding. Given that the offence for which that sentence was imposed was entirely unrelated to the offence of grievous bodily harm, there was no reason why her Honour should not have directed the sentence to be served cumulatively. The imposition of the additional term of 7 months imprisonment could not be said to contravene the first limb of the totality principle given the culpability of Mr Royce Bowe's conduct, and the fact that the total effective sentence of 4 years and 7 months imprisonment was in any event within the range available to the judge in the sound exercise of her discretion in respect of the offence of grievous bodily harm alone.
[82] Act s 80.
Mr Royce Bowe's appeal against sentence has no significant prospect of success. His application for leave to appeal, and the appeal, should be dismissed.
Mr Luke Bowe
There are two grounds of appeal in Mr Luke Bowe's appeal against sentence. They are identical to the first two grounds of Mr Graham Bowe's appeal against sentence, although, of course, the circumstances to which the grounds apply are different.
On the subject of parity, while specifically sentencing Mr Luke Bowe, the judge reiterated that all matters relevant to the question of whether a term of imprisonment should be imposed were relevant to the exercise of her discretion to suspend any term imposed.[83] Her Honour then observed:[84]
I have weighed, again, the aggravating factors against the mitigating factors in your case, as raised by counsel. I have concluded that if I were to place you on either a pre-sentence or a suspended sentence, on conditions, that would fail to reflect the seriousness of this offence.
The circumstances of your offending, as I have found them, and the need for general deterrence, means that the only appropriate sentence is a term of imprisonment to be immediately served. For the reasons which I have discussed when looking at this issue when sentencing Jason, those cases where a suspended term of imprisonment has been imposed, are distinguishable from your case.
And again, as in the case of your father and brother Jason, there is another reason why I cannot suspend and that is because of the principle of parity. While your role is a lesser role than that of Royce and your father's which justifies a lesser term of imprisonment, it cannot justify a suspension of that imprisonment.
To suspend your term would create a disparity between your sentence and that of each of Royce's, Graham's and Jason's, which would be unjustified. I am positively satisfied it would be inappropriate to suspend or put you on a pre-sentence order. So the term I'm going to fix must be immediately served.
[83] ts 1279 - 1280.
[84] ts 1281.
So, as in the case of Mr Graham Bowe, it is clear that the predominant reason the judge decided against the suspension of any term of imprisonment was her Honour's conclusion that the offence committed by Mr Luke Bowe was too serious to enable that course. In those circumstances, even if she was in error to refer to parity, as her Honour's consideration of parity would not have altered the sentence imposed in any event, it cannot have occasioned a miscarriage of justice. But, in any event, for the reasons I have already given, it was entirely appropriate for her Honour to take the principle of parity into account when deciding whether or not to suspend the term of imprisonment imposed upon Mr Luke Bowe noting, as she did, the differences between the circumstances of his case and the circumstances of the other offenders.
The second ground in Mr Luke Bowe's appeal against sentence asserts that the sentence imposed upon him was manifestly excessive. In support of that ground, reliance is placed upon the fact that Mr Luke Bowe suffers from schizophrenia.[85] However, as the judge noted, the psychiatrist who reported upon Mr Luke Bowe's mental condition observed that it played no part in his commission of the offence, in the sense that it might have caused him to do something he otherwise would not have done.[86] Nor, as the judge also observed, was there any evidence that Mr Luke Bowe's mental condition would have the consequence that a term of imprisonment would cause him greater hardship.[87] It follows that Mr Luke Bowe's mental condition was not significant to the proper exercise of the sentencing discretion, as the judge correctly found.
[85] Appeal ts 35.
[86] ts 1270.
[87] ts 1270 - 1271.
As Mr Luke Bowe's mental condition was not significant to the sentencing process, it follows from the observations I have made with respect to the equivalent ground in Mr Graham Bowe's appeal that Mr Luke Bowe's appeal cannot succeed. The trial judge was correct to find that all offences committed were serious. None of the offenders were remorseful and none was entitled to any discount for a plea of guilty. The sentence of 3 years imprisonment was at the lower end of the range of sentences customarily imposed for serious offences of grievous bodily harm. It is well established that the mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. However, in all of the circumstances of the present case, it cannot be seriously contended that a sentence at the lower end of the relevant range was manifestly excessive.
Neither of Mr Luke Bowe's grounds of appeal against sentence has any significant prospect of success. His application for leave to appeal, and the appeal, should be dismissed.
Mr Jason Bowe
The only ground of Mr Jason Bowe's appeal against sentence is similar to the first ground of each of Mr Graham Bowe and Mr Luke Bowe's appeals, and concerns the observations made by the judge with respect to parity in relation to the suspension of any term of imprisonment imposed.
In the case of Mr Jason Bowe, in addition to the general observations made by the judge with respect to the parity principle, she made the following specific observations in the context of the sentence imposed upon him. After reiterating that the same factors relevant to the decision as to whether a term of imprisonment was justified were relevant to the question of whether any term imposed should be suspended, her Honour observed:[88]
[88] ts 1278 - 1279.
I've reminded myself that immediate imprisonment is a sentence of last resort. Having done that, I have concluded I cannot suspend and there are a number of reasons why, in your case.
The first is that your counsel's submission was made, primarily, on the basis that you did not actively participate in the attack and were there only as back up or support. As I have explained, I'm not able to make that finding.
The second is that, while there are some mitigating circumstances in your personal circumstances, there is certainly nothing sufficiently mitigating which would outweigh the aggravating circumstances of the offence. You are not young. You are not a first offender and you have been to prison before. Although, I do take into account that you have no previous conviction for any assault like this.
Your counsel has submitted that you have the capacity to get back in the community and make a positive contribution by working and that you are on top of your substance abuse issues. However, this offence did not have anything to do with drugs, not to my knowledge, in any event.
The third reason I have concluded I can't suspend, relates to the principles of parity which I've already explained. If I were to suspend the term of imprisonment for you, that would give rise to a justifiable sense of grievance to both Royce and Graham who have each received immediate terms of imprisonment.
There have been cases where a suspended term of imprisonment has been imposed, where the co-offender has played a lesser role and the principal offender received an immediate term.
…
In each of those cases, the term was suspended for the co-offender who was young and who had other mitigating factors which are not present in your case.
…
While your role is … a lesser role than that of Royce and your father's which does justify a lesser term of imprisonment, it does not justify a suspension of your sentence. If I were to suspend, as I've already said, it would create a disparity between your sentence and that of Royce and Graham which would be unjustified.
In conclusion, having regard to my findings about the circumstances of this offence and your role consistent with the jury's findings and weighing again the aggravating and mitigating factors, I have concluded that if I were to place you on a suspended sentence, even with conditions, that would fail to reflect the seriousness of the offence. Once again, I am positively satisfied that it would be inappropriate to suspend. So for these reasons, the term I fix must be immediately served.
It is clear from these observations that the judge took full account of all possible differences in circumstances between Mr Jason Bowe and his co‑offenders in order to assess whether those differences justified a different conclusion with respect to suspension of any term imposed. However, after taking all those circumstances into account, the judge concluded that the seriousness of the offence precluded suspension of the sentence to be imposed. Although, in that context, she referred to the principles of parity, it is clear that they were an additional consideration, of less significance, in her Honour's conclusion that a term of suspended imprisonment was not appropriate.
So, as in the cases of Mr Graham Bowe and Mr Luke Bowe, it is clear that the judge would not have suspended the term of imprisonment she imposed upon Mr Jason Bowe even if she had excluded the principle of parity from consideration. Accordingly, even if she had erred in that respect, it would not have occasioned any miscarriage of justice. However, for the reasons I have already given, her Honour did not err in referring to, and appropriately applying, the principle of parity in deciding whether or not to suspend the term of imprisonment imposed upon Mr Jason Bowe.
Mr Jason Bowe's appeal against sentence has no significant prospect of success. His application for leave to appeal against sentence, and his appeal, should be dismissed.
Summary and conclusion
For these reasons, none of the grounds of appeal against conviction or sentence in any of the appeals have any significant prospect of success. All applications for leave, and all appeals, should be dismissed.
MITCHELL JA: I agree with the Chief Justice.
HALL J: I agree with the Chief Justice.
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