Bradley v The State of Western Australia
[2024] WASCA 94
•6 AUGUST 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BRADLEY -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 94
CORAM: BUSS P
MAZZA JA
VANDONGEN JA
HEARD: 22 MAY 2024
DELIVERED : 22 MAY 2024
PUBLISHED : 6 AUGUST 2024
FILE NO/S: CACR 31 of 2024
BETWEEN: ALEXANDER JAMES BRADLEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: HERRON DCJ
File Number : IND 263 of 2021
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of one count of assault occasioning bodily harm and two counts of stealing - Appellant sentenced to 2 years 8 months' immediate imprisonment - Whether individual sentences manifestly excessive - Whether total effective sentence infringes first limb of totality principle
Legislation:
Criminal Code (WA), s 317(1)(b), s 378, s 426(4)
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | N R Sinton |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Allen v The State of Western Australia [2017] WASCA 203
Carrick v The State of Western Australia [2017] WASCA 175
Davies v The State of Western Australia [2021] WASCA 71
Duncan v The State of Western Australia [2018] WASCA 154
Holden v The State of Western Australia [2009] WASCA 50
REASONS OF THE COURT:
This is an appeal against sentence.
On 29 January 2024, on the first day of their scheduled trial in the District Court, the appellant and his co‑offender, Raymond John Sewell, were each convicted on their pleas of guilty of one count of assault occasioning bodily harm. Some months earlier, on 21 August 2023, the appellant - but not Mr Sewell - had also been convicted, on his pleas of guilty, of two further offences on the same indictment (IND 263 of 2021).
Count 1 on IND 263 of 2021 alleged that on 4 May 2020, at an address in the suburb of Yangebup, the appellant and Mr Sewell unlawfully assaulted Matthew Walters and thereby did him bodily harm, contrary to s 317(1)(b) of the Criminal Code (WA) (Code). Counts 2 and 3 were alleged to have occurred the following day, on 5 May 2020, in Murdoch and South Lake, respectively. As will be seen, these counts were entirely unrelated to the conduct in count 1. Mr Sewell was not involved in, nor charged with, the offending on counts 2 and 3. Count 2 alleged that the appellant stole a set of vehicle registration plates, the property of Samuel Elliot. Count 3 alleged that the appellant stole fuel that was the property of Caltex Australia. Those offences were both contrary to s 378 of the Code.
On 31 January 2024, Herron DCJ sentenced the appellant to the following terms of immediate imprisonment:
Count 1 - assault occasioning bodily harm 2 years 6 months
Count 2 - stealing vehicle licence plates 2 months
Count 3 - stealing petrol 1 month
His Honour ordered that the terms of imprisonment on counts 1 and 2 be served cumulatively, and the term imposed on count 3 be served concurrently with that on count 2. Accordingly, the total effective sentence imposed upon the appellant was 2 years 8 months' immediate imprisonment. His Honour ordered that the sentences be backdated to commence on 21 February 2022, and the appellant was made eligible for parole.
The appellant relied on three grounds of appeal. In substance, ground 1 alleged that the sentence imposed on count 1 was manifestly excessive. Ground 2 alleged that the sentences imposed on each of counts 2 and 3 were also manifestly excessive. Ground 3 alleged that the total effective sentence infringed the first limb of the totality principle.
On 2 April 2024, the appellant's application for an urgent appeal hearing was granted.
On 12 April 2024, the question of leave to appeal on each of the three grounds of appeal was referred to the hearing of the appeal.
At the conclusion of the appeal hearing on 22 May 2024, the court unanimously ordered that leave to appeal on all grounds be refused and the appeal be dismissed. Our reasons for making those orders are as follows.
The facts
At the commencement of the sentencing proceedings on 29 January 2024, the prosecutor read aloud the statement of material facts. Later, on 31 January 2024, the sentencing judge incorporated the facts, as read out by the prosecutor, into his Honour's sentencing remarks.[1] The following summary of the appellant's offending is taken from those sentencing remarks.
[1] ts 477.
On the afternoon of Monday, 4 May 2020, the appellant and Mr Sewell were both driven to, and dropped off at, a house near to where the victim, Mr Walters, lived. The two men walked to the victim's house together, went up the driveway, and entered the open carport area. The appellant approached the meter box and turned off the power to the house. This act was captured on the victim's CCTV system, although the cameras ceased to operate upon the power being turned off.
The victim was the only person in the house that afternoon, although he ordinarily lived there with his mother and his young son. When the victim stepped outside to investigate the cause of the power failure, he encountered the appellant and Mr Sewell, both of whom he knew. The two men started shouting at the victim, demanding to know where they could find his motorbikes and threatening to take a boat motor that was sitting outside the front of the house.[2] The appellant threatened to assault the victim in the same manner as he had allegedly assaulted 'Benny', another person known to the victim. The appellant then picked up a baseball bat sitting just inside of the victim's front door. The victim, beginning to fear for his safety, turned and ran to the back door of his house. The appellant and Mr Sewell pursued him. The victim was unable to exit through the back door because it was locked. He picked up a hatchet, which had previously been left near the laundry door, to defend himself.
[2] At the commencement of the sentencing proceedings on 29 January 2024, the prosecutor alleged that the appellant and Mr Sewell demanded the victim's 'bikes and a boat motor' (ts 448). In the sentencing remarks delivered on 31 January 2024, his Honour stated that the men demanded 'his bikes and a motorbike' (ts 477). This appears to be a slip of the tongue. Nothing turns on the discrepancy and, in any event, as mentioned, his Honour formally incorporated the statement of material facts as read aloud by the prosecutor into his sentencing remarks (ts 477).
As the victim turned around to face the two men, Mr Sewell punched him in the head and then yelled for the appellant to hit the victim with the baseball bat. The appellant swung the bat at the victim's head. The victim deflected the blow with his forearm. The bat struck him first in the forearm, and then in the upper back. The appellant swung the bat a second time, striking the victim in the hip.[3] Mr Sewell tried, again, to punch the victim, but the victim defended himself from the blow by swinging the hatchet. The flat end of the hatchet struck Mr Sewell in the head, causing him to fall to the floor.
[3] ts 451.
The appellant again attempted to strike the victim with the baseball bat, but stumbled and fell over, completely missing him. The victim was then able to run past the appellant and Mr Sewell. He escaped through the front door of his house, yelling out to his neighbours for help.
As a result of the blows inflicted by the appellant and Mr Sewell, the victim sustained bruising to his left upper ribs, his hips, and the top of his right shoulder. Those injuries constituted 'bodily harm' within the meaning of that term as defined in s 1(1) of the Code.
In relation to count 2, on Tuesday, 5 May 2020 at about 2.10 pm, the appellant drove a vehicle - a blue Mitsubishi Magna bearing no registration plates - to Murdoch University. While there, he stole a set of registration plates from another vehicle in one of the university's carparks. The appellant then attached those registration plates to his Mitsubishi Magna.
As to count 3, on the same date at about 3.50 pm, the appellant drove his Mitsubishi Magna, now bearing the stolen registration plates, to a Caltex Star Mart service station in South Lake. A female co‑offender fuelled the vehicle. The appellant then drove the vehicle away without paying, or attempting to pay, for the fuel.
On 13 May 2020, the appellant was arrested and participated in an electronically‑recorded interview with police. In the course of that interview, the appellant admitted he had attended the victim's residence on 4 May 2020 with another person, although he refused to provide the other person's name. The appellant claimed that a scuffle had broken out between the victim and the other unnamed individual, and the appellant was then invited inside the house for the purpose of 'breaking up' the scuffle.[4] In essence, he painted the victim as the aggressor. He denied swinging the baseball bat at the victim. Rather, he said he picked up the baseball bat in response to the victim arming himself with a tomahawk. The appellant also made full admissions to counts 2 and 3.
[4] ts 478.
The pleas of guilty
The appellant and Mr Sewell were scheduled to be tried by jury on Monday, 29 January 2024 for the offence of aggravated home burglary. However, on 24 January 2024, the victim - who was one of only two prosecution witnesses to be called at the trial - was hospitalised due to 'a fairly serious condition'.[5] Consequently, on the morning of 29 January 2024, the prosecutor made an oral application for the trial to be vacated on the basis that it was unclear when the victim would be fit to give evidence. Herron DCJ made orders vacating the trial and discharging the jury.[6] Later that day, following negotiations between the prosecutor and both the appellant's and Mr Sewell's defence counsel, the charge of aggravated home burglary was discontinued. The prosecution substituted the aggravated home burglary charge with a new charge of assault occasioning bodily harm simpliciter, and the latter became count 1 on a new version of IND 263 of 2021, dated 29 January 2024. As mentioned, the appellant and Mr Sewell both pleaded guilty to this lesser charge that same afternoon.
[5] ts 428.
[6] ts 437.
On an earlier version of IND 263 of 2021, dated 17 August 2023, count 1 alleged that the appellant and Mr Sewell had committed the offence of aggravated home burglary, contrary to s 401(2) of the Code. That offence carries a maximum penalty of 20 years' imprisonment.[7]
[7] Code, s 401(2)(a).
The count of aggravated home burglary alleged that on 4 May 2020, while in the place of Mr Walters without his consent, the appellant and Mr Sewell committed the offence of unlawful assault. The aggravating circumstances were that the appellant and Mr Sewell were armed with an offensive instrument, namely a baseball bat; they were in company with each other; they did bodily harm to the victim; they knew, or ought to have known, immediately before the commission of the unlawful assault that there was another person in the place; and the place was ordinarily used for human habitation.
Prior to the trial that was due to commence on 29 January 2024, two previous trials were aborted without the jury delivering verdicts; first in April 2022, and then in August 2023. The appellant was not responsible for any of those delays to the resolution of his criminal proceedings.
After the jury was discharged in respect of the second aborted trial, in August 2023, the appellant offered to plead guilty to an offence of assault occasioning bodily harm in substitution for the count of aggravated burglary.[8] The offer was not initially accepted.
[8] ts 477.
As for counts 2 and 3, it is evident from the court record that the pleas of guilty were indicated in the Magistrates Court, before the matters were committed to the District Court.[9]
[9] ts 80 - 82.
The appellant's personal circumstances
The appellant was aged 25 years old at the time of the offending. He was 29 years old when he was sentenced.
As outlined in his Honour's sentencing remarks, the appellant was born and raised in Western Australia, in a supportive family environment. His parents remain supportive of him.
The appellant left school during year 11 and commenced an apprenticeship, which he did not complete. Later, he obtained work in the northwest of the State as a fly‑in/fly‑out worker, where he was exposed to, and began using, methylamphetamine. At the time of the commission of the offences the subject of this appeal, he was reportedly under the influence of methylamphetamine. The appellant has a long history of addiction to the drug. To his credit, he has taken various steps towards rehabilitation for his illicit drug use since being charged with the offences on IND 263 of 2021. Those steps include attending Narcotics Anonymous and abstaining from use of methylamphetamine over an extended period prior to his sentencing.
The appellant has a young daughter and was said to be 'keen to properly reconnect with her in the community'.[10]
[10] ts 480.
The appellant has what his Honour described as 'a concerning criminal and road traffic record'.[11] As an adult, the appellant has accumulated convictions for stealing, various drug‑related offences, aggravated burglary, impersonating a public officer, criminal damage, aggravated assault occasioning bodily harm, and being armed or pretending to be armed to cause fear. Further, the appellant has been convicted, on multiple occasions, of breaching various court‑imposed orders including violence restraining orders, intensive supervision orders and protective bail conditions. His Honour remarked that much of the appellant's offending appeared to be related to his illicit drug use.[12]
[11] ts 482.
[12] ts 483.
The sentencing remarks
The sentencing judge found that the offence on count 1 was premeditated. His Honour said that the appellant and Mr Sewell engaged in a joint attack upon the victim in his own home, where he was subjected to threats, punched, and hit with a baseball bat. The sentencing judge observed that the assault only ended when the victim managed to defend himself and escape from the house; in other words, the appellant and Mr Sewell did not desist of their own volition.
His Honour found that the appellant and Mr Sewell were each equally responsible under s 8 of the Code for the offence of assault occasioning bodily harm which constituted count 1. Having concluded that the appellant and Mr Sewell were equally morally culpable for the offence on count 1, his Honour imposed sentences on both men of 2 years 6 months' immediate imprisonment on count 1.
The sentencing judge gave a discount of 15% pursuant to s 9AA of the Sentencing Act 1995 (WA) for each of the appellant's pleas of guilty. Apart from the pleas of guilty, his Honour noted there were few mitigating factors.[13]
[13] ts 479.
His Honour considered that the appellant's prior record of convictions, although not an aggravating feature, underlined the need for personal deterrence.[14] In relation to count 1, his Honour stated that an important sentencing consideration in such cases was general deterrence.[15]
[14] ts 483 - 484.
[15] ts 484.
In respect of counts 2 and 3, his Honour noted that they were separate and distinct from the offending on count 1.
His Honour considered that the circumstances of the offending were such that the only appropriate sentencing disposition was immediate imprisonment.[16] He found that, in all of the circumstances of the case, and, particularly having regard to the seriousness of count 1, it would be inappropriate to suspend the terms of imprisonment.[17]
[16] ts 485.
[17] ts 485.
His Honour ordered that the sentence imposed on count 3 be served concurrently with the sentence imposed on count 2, but that the sentence on count 2 must be served cumulatively upon the sentence on count 1. As stated, his Honour backdated the sentences to commence on 21 February 2022 to take into account the time the appellant had served in custody on remand prior to being sentenced.[18]
[18] ts 486.
General appellate principles
The general principles applicable to the grounds of appeal relied upon by the appellant are well established and have been stated by this court many times.
Sentencing is a discretionary exercise. An appellate court cannot substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion differently. An appellate court can intervene only if the appellant demonstrates either an express, or implied, material error.
Each of the grounds of appeal in this case allege implied error. In the present case, implied error will arise if the sentencing outcome is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.
By grounds 1 and 2, the appellant alleged that the individual sentences imposed on each of counts 1, 2 and 3 were manifestly excessive. In determining whether a sentence imposed in respect of an individual offence is manifestly excessive, the impugned sentence should be viewed in light of the maximum penalty for the offence; the range of sentences customarily imposed for offences of that kind; the place that the criminal conduct occupies on the scale of seriousness for offences of that type; and the offender's personal circumstances.
The totality principle, upon which ground 3 is based, comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb, which is not relied upon by the appellant in this appeal, is that the court should not impose a 'crushing' sentence.
Relevant to all three grounds of appeal is the range of sentences customarily imposed for each of the offences under consideration. Sentences imposed in comparable cases provide a yardstick, or reference point, for ensuring broad consistency in sentencing for like offences. However, it is important to bear in mind that there is considerable scope for significant variations in relevant sentencing factors, and there is no single correct sentence.
Offences of assault occasioning bodily harm may be committed in a very wide range of circumstances and may involve widely differing degrees of culpability on the part of the offender.[19] Accordingly, it has been recognised that the discretion conferred on a sentencing judge with respect to such an offence is of particular importance.
[19] Davies v The State of Western Australia [2021] WASCA 71 [47]; Duncan v The State of Western Australia [2018] WASCA 154 [30].
The parties' submissions
Ground 1 contended that the sentence of 2 years 6 months' immediate imprisonment for the offence on count 1 was manifestly excessive. Counsel for the appellant submitted that the sentence was manifestly excessive as to length, although not as to type. In support of this argument, counsel submitted that the sentence was disproportionate, having regard to the relatively minor degree of bodily harm suffered by the victim; the sentencing outcomes in cases said to be comparable; and the appellant's personal circumstances.
In respect of ground 2, counsel for the appellant submitted that counts 2 and 3 involved the theft of items that had modest values; certainly, each item was worth significantly less than $1,000. Having regard to all of the mitigating factors, it was argued that sentences of the length imposed by the sentencing judge were manifestly excessive as to length although, again, not as to type.
In respect of ground 3, the appellant's complaint concerned the order for accumulation in respect of the sentences imposed on count 1 and count 2. It was submitted that the sentence of 2 months' imprisonment on count 2 should have been ordered to be served concurrently with the sentence of 2 years 6 months' imprisonment imposed on count 1.
Counsel for the respondent submitted that the sentence of 2 years 6 months' immediate imprisonment was not manifestly excessive, having regard to the seriousness of the circumstances of the offending on count 1. The respondent submitted that the sentence imposed in respect of count 2 was justified, having regard to the circumstances of the offence and the need to achieve personal deterrence. As to ground 3, the respondent submitted that some accumulation in respect of counts 2 and 3 was required to reflect that the offending involved in those counts was of a separate and distinct nature from that of count 1.
Disposition
The sentences imposed on counts 1, 2 and 3 are not manifestly excessive.
As to count 1, the maximum penalty for the offence of assault occasioning bodily harm is 5 years' immediate imprisonment.[20]
[20] Code, s 317(1)(b).
Although the bodily injuries suffered by the victim were not as serious as those suffered by victims in other cases, the offence on count 1 was nevertheless a serious example of its type when all the relevant facts surrounding its commission are considered. The offence was premeditated. It involved the appellant and Mr Sewell being in company and acting in concert. After turning off the power to the victim's house, with the effect of disabling the CCTV system, the appellant and Mr Sewell threatened and assaulted the victim, and later pursued him as he attempted to flee. The appellant armed himself with a baseball bat and proceeded, together with Mr Sewell, to physically attack the victim.
The appellant struck the victim with the baseball bat twice. There was a third attempted blow, which, fortunately for the victim, did not connect. Mr Sewell punched the victim. The relatively modest bodily injuries the victim received could have been much worse. The potential for there to have been very serious injury is obvious, especially having regard to the fact that the appellant swung the baseball bat at the victim's head. The appellant and Mr Sewell did not voluntarily desist in the attack, even after the victim attempted to escape. Rather, the two men pursued him into the house and continued the attack.
It is important to acknowledge that the State did not continue with the charge of aggravated home burglary, and the appellant was not to be punished for that offence. Nonetheless, a serious aspect of the offending on count 1 was that it occurred inside the victim's home, a place in which he was entitled to feel, and be, safe.
It is well accepted that there is no tariff for the offence of assault occasioning bodily harm. This is because there are a wide range of circumstances in which the offence may be committed. Other cases can provide only limited assistance because the outcomes in such cases are fact‑specific, in respect of both the circumstances of the offending and the personal circumstances of the offenders. Recently, in Davies, this court observed that there were discernible signs that sentences for the offence of assault occasioning bodily harm were 'firming up'.[21]
[21] Davies [59]. See also Duncan [46].
We have read the cases referred to by the parties in their written submissions, including Holden v The State of Western Australia;[22] Carrick v The State of Western Australia;[23] Allen v The State of Western Australia;[24] Duncan; and Davies. Unsurprisingly, the facts and circumstances in those cases vary widely. Although the degree of bodily harm inflicted upon the victims in those cases was generally more serious than that suffered by the victim in the present case, the aggravating circumstances of this case, referred to at [50] ‑ [52] above, make the offence on count 1 a serious example of its type. In particular, we note the appellant's use of the baseball bat; the fact the appellant was in company, and acted in concert, with Mr Sewell; and the fact that the offence occurred in the victim's home. It is criminal conduct which must be generally deterred.
[22] Holden v The State of Western Australia [2009] WASCA 50.
[23] Carrick v The State of Western Australia [2017] WASCA 175.
[24] Allen v The State of Western Australia [2017] WASCA 203.
The most significant mitigating factor were the appellant's pleas of guilty, for which his Honour gave a significant discount of 15% pursuant to s 9AA of the Sentencing Act. The appellant has a lengthy record of criminal convictions, which shows a concerning disregard for the law. Against this, the appellant has not committed any further offending since 2020, and it is clear from the character references and the other materials provided to the sentencing judge that the appellant has the support of his parents and other members of the community. It also appears that he has taken some steps to deal with his illicit drug use. Despite these factors, personal deterrence remained a relevant sentencing consideration, as his Honour recognised in the sentencing remarks.
When all the relevant circumstances are taken into account, it cannot reasonably be said that the sentence of 2 years 6 months' immediate imprisonment imposed on count 1 was unreasonable or plainly unjust. Implied error has not been demonstrated. Ground 1 has not been made out. Leave to appeal was therefore refused.
We now turn to ground 2. The maximum sentence for an offence of stealing is 7 years' imprisonment.[25] Where the value of the property stolen is less than $1,000 the offence may be dealt with summarily, in which case the summary conviction penalty is a fine of $6,000.[26] However, this is a jurisdictional limit which applies only where the stealing offence is a summary conviction. A 'summary conviction' is defined by the Code as a 'conviction otherwise than on indictment'.[27] In the present case, where the appellant was convicted of counts 2 and 3 on IND 263 of 2021 in the District Court, the summary conviction penalty does not apply.
[25] Code, s 378.
[26] Code, s 426(4).
[27] Code, s 1(1).
Although the set of stolen registration plates may not have had great monetary value, their loss undoubtedly led to considerable inconvenience for the victim, Mr Elliot. More importantly, registration plates are frequently stolen to facilitate the commission of other offences. Indeed, after the theft of the registration plates in the present case, the appellant fitted them to his own motor vehicle and drove to a service station, where he proceeded to steal the fuel the subject of the offending on count 3. Given the routine presence of CCTV cameras at service stations, it may have been thought by the appellant that by having false registration plates on his vehicle, he would evade responsibility for his theft or, at least, avoid drawing any attention to his vehicle that might result from having no registration plates at all on the vehicle. Deterrence, both personal and general, were significant sentencing factors.
The submissions in support of ground 2 focused on the length of the terms of imprisonment imposed for the stealing offences on counts 2 and 3. In all of the relevant circumstances, it cannot reasonably be said that the terms of 2 months' imprisonment and 1 month's imprisonment, respectively, were unreasonable or plainly unjust. Inferred error has not been demonstrated. Ground 2 has not been made out. Accordingly, leave to appeal was refused.
This takes us to ground 3. The appellant's submissions in respect of ground 3 focus on the order, made by his Honour, for the sentence on count 2 to be served cumulatively upon the sentence for count 1. In our opinion, the offending the subject of count 2 - and, indeed, the offending the subject of count 3 - was, as the respondent submits, separate and distinct from that on count 1, it having occurred on a different day and in completely different circumstances. Some additional punishment was appropriate. The total effective sentence of 2 years 8 months' immediate imprisonment properly reflected the overall criminality involved in all three of the appellant's offences, and paid due regard to his personal circumstances. It cannot reasonably be said that the total effective sentence was unreasonable or plainly unjust. It did not infringe the first limb of the totality principle. Ground 3 has not been made out. Accordingly, leave to appeal was refused.
As leave to appeal was refused on all grounds, the appeal was dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ST
Associate to the Honourable Justice Mazza
6 AUGUST 2024
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