Bruno v The State of Western Australia
[2005] WASCA 149
•4 AUGUST 2005
BRUNO -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 149
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 149 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:80/2005 | 4 AUGUST 2005 | |
| Coram: | STEYTLER P WHEELER JA ROBERTS-SMITH JA | 4/08/05 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence quashed New sentence imposed | ||
| D | |||
| PDF Version |
| Parties: | PHILLIP JAMBAJIMBA BRUNO THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Sentencing Grievous bodily harm Whether sentence was manifestly excessive Appropriate allowance for early plea of guilty |
Legislation: | Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 22, Sch 1, cl 2(1) |
Case References: | Little v The Queen [2001] WASCA 87 Lowndes v The Queen (1999) 195 CLR 665 R v Abela (2002) 134 A Crim R 392 Radebe v The Queen (2001) 162 FLR 313 Cameron v The Queen (2002) 209 CLR 339 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BRUNO -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 149 CORAM : STEYTLER P
- WHEELER JA
ROBERTS-SMITH JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : YEATS DCJ
File No : KUN 3 of 2005
Catchwords:
Criminal law and procedure - Sentencing - Grievous bodily harm - Whether sentence was manifestly excessive - Appropriate allowance for early plea of guilty
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Legislation:
Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 22, Sch 1, cl 2(1)
Result:
Appeal allowed
Sentence quashed
New sentence imposed
Category: D
Representation:
Counsel:
Appellant : Mr C L J Miocevich
Respondent : Mr B Fiannaca
Solicitors:
Appellant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Little v The Queen [2001] WASCA 87
Lowndes v The Queen (1999) 195 CLR 665
R v Abela (2002) 134 A Crim R 392
Radebe v The Queen (2001) 162 FLR 313
Case(s) also cited:
Cameron v The Queen (2002) 209 CLR 339
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1 STEYTLER P: This is an application for leave to appeal against sentence. The appellant pleaded guilty to one count of doing grievous bodily harm and was sentenced to a term of 6 years' imprisonment.
2 The offence took place on 22 July 2004 at the Balgo Aboriginal Community. The appellant had been in a relationship with his de facto partner for some months and in the early hours of the morning the two of them were sitting near a campfire drinking alcohol. The appellant became angry at the complainant because she wanted to go to sleep. He punched her in the face with a clenched fist, stood up and began repeatedly kicking her in the face and ribs. He hit her repeatedly on the back of the head with a piece of wood which he obtained from a nearby tree. Notwithstanding that the complainant was crying out for help and asking the appellant to stop, the appellant took her by the hair and pulled her down into the campfire. He held her head in the flames as she screamed in pain. He then pulled her from the flames, threw her on some bedding and brought coals from the fire which he spread and scraped underneath her bare legs and buttocks, forcing her to endure extreme pain.
3 The relatives of the complainant called the police. The complainant was taken away and treated immediately and then flown to the intensive care unit in a hospital in Perth. She suffered burns to 15 per cent of her body surface as well as a fracture to her left foot and her arm. She required surgery and skin grafts and was still being treated in April 2005 at the time at which the appellant was sentenced.
4 The appellant had previously been imprisoned on a charge of aggravated assault committed on 21 January 2002. On 27 December 2003 he had committed the offence of assault occasioning bodily harm by using a broken broomstick to assault his present de facto, the complainant in this case. Then, on 19 June 2004, about a month prior to the commission of this offence, he pleaded guilty to a count of unlawful wounding arising out of his infliction of deep head lacerations on the same complainant by means of hitting her with a piece of wood.
5 It is accepted by the respondent that the appellant pleaded guilty to this offence at the first reasonable opportunity.
6 The sentencing Judge said, with ample justification, that this was one of the worst cases of grievous bodily harm that she had been forced to deal with. She also said that the appellant's history of violence was serious and that, while his excessive use of alcohol might explain it, it could not excuse it. She said that the legislature had provided a maximum
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- penalty for an offence of this kind of 10 years' imprisonment and that this case was one which went "near the maximum". Taking into account the early plea of guilty, the appellant's abuse of alcohol, his remorse and the provisions of s 22 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) read with cl 2(1) of Sch 1 thereof (to which I shall refer as "the transitional provisions"), the sentencing Judge sentenced the appellant to a term of 6 years' imprisonment commencing on 22 July 2004, the day upon which he was taken into custody. She ordered that he be eligible for parole.
7 There is only one ground of appeal, which is to the effect that the sentencing Judge erred by imposing a sentence that was manifestly excessive, particularly having regard to the maximum sentence of 10 years' imprisonment, the early plea of guilty and the effect of the transitional provisions.
8 Counsel for the respondent has conceded not only that the application for leave to appeal should be acceded to, but also that the appeal itself should be allowed. He does so because, when the effect of the transitional provisions is allowed for, the sentence of 6 years' imprisonment which was imposed by the sentencing Judge necessarily reflected her conclusion that, absent those provisions, a sentence of 9 years' imprisonment was appropriate, only 1 year less than the maximum. Given that her Honour had said that the offence was so serious as to go "near the maximum", and given that she also took into account the fact that the appellant had been involved in excessive alcohol use as a result of issues affecting Aboriginal people and the fact of his remorse once sober, he conceded that there must necessarily have been an inadequate allowance for the early plea of guilty; that allowance having been something less than 1 year or less than 10 per cent of the total sentence imposed. He said that this must be accepted as having been manifestly inadequate when compared with the usual deductions for early pleas of guilty of between 20 per cent and 35 per cent: see, for example, Little v The Queen [2001] WASCA 87 at [13] where Malcolm CJ, Wallwork and Anderson JJ said that such discounts usually fall between 25 per cent and 35 per cent, depending on the circumstances; Radebe v The Queen (2001) 162 FLR 313 at 317 to 318; and R v Abela (2002) 134 A Crim R 392 at 403, where Malcolm CJ, with the concurrence of Wallwork J, observed that it had been said that it would be unusual if a fast-track plea did not result in a reduction of sentence of at least 25 per cent.
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9 I would not wish to lend my support to the suggestion that there can never be a deduction for an early plea of guilty of less than 20 per cent or, indeed, any other arbitrarily selected percentage. Moreover, the proper percentage or overall allowance for mitigation in general is a matter for the discretion of a sentencing Judge, taking into account all of the circumstances and, as the High Court has said in Lowndes v The Queen (1999) 195 CLR 665 at 672, the discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice. However, given what has been said in the cases as to the importance of making a proper allowance for an early plea of guilty, reflecting, as it does in this case, at least an acceptance of responsibility and a willingness to facilitate the course of justice, I am prepared to accept the contention of both parties that the discount allowed was so low as to manifest error in the exercise of the sentencing Judge's discretion.
10 There remains the question of what sentence should now be imposed. I can see no reason why, given the horrific nature of this offence, the starting point should not be the maximum period of imprisonment allowed for by the legislature, being, as I have said, a period of 10 years' imprisonment. Given that the plea of guilty seems to me to have been made in the face of overwhelming evidence against the appellant, I would allow a discount of only 20 per cent for that and for the other matters to which I have referred. I would consequently have imposed a sentence of 8 years' imprisonment were it not for the operation of the transitional provisions. Once those provisions are taken into account, that sentence must be reduced by one-third to a term of 5 years and 4 months' imprisonment.
11 I would consequently grant leave to appeal, allow the appeal, quash the sentence imposed by the sentencing Judge and substitute, in lieu, a sentence of 5 years and 4 months' imprisonment, commencing on 22 July 2004. I would not disturb the trial Judge's order that the appellant be eligible for parole.
12 WHEELER JA: I agree with the orders proposed and with the reasons given by the President.
13 ROBERTS-SMITH JA: I also agree and have nothing to add.
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