Byfield v The Queen
[2002] WASCA 260
•20 SEPTEMBER 2002
BYFIELD -v- THE QUEEN [2002] WASCA 260
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 260 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:81/2001 | 22 JULY 2002 | |
| Coram: | MALCOLM CJ WALLWORK J STEYTLER J | 20/09/02 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| A | |||
| PDF Version |
| Parties: | DARIAN DAVID BYFIELD THE QUEEN |
Catchwords: | Criminal law Sentencing Attempted murder Horrific offence Victim deliberately run over by car on a second occasion Left badly injured with no assistance Whether 12 year sentence of imprisonment too severe |
Legislation: | Crimes Act 1900 (NSW), s 29 |
Case References: | Aldridge v The Queen, unreported; CCA SCt of WA; Library No 980206; 23 April 1998 Bell v The Queen (1992) 62 A Crim R 66 Brewer (1987) 9 Cr App R (S) 44 Chae Sun Lee, unreported; CCA SCt of WA, Library No 5982, 28 August 1985 Dearn (1990) 12 Cr App R (S) 527 Domican (No 3) (1990) 46 A Crim R 428 Donnelly (1983) 5 Cr App R (S) 70 Drinkald (1988) 10 Cr App R (S) 380 Grant (1992) 13 Cr App R (S) Green (1986) 8 Cr App R (S) 284 Haines (1983) 5 Cr App R (S) 58 Lawson v The Queen, unreported; CCA SCt of WA; Library No 940439; 24 August 1994 Pearce v The Queen (1998) HCA 57; 194 CLR 610 R v Kerr, unreported; CCA SCt of WA; Library No 970402; 15 August 1997 Roche v The Queen, unreported; CCA SCt of WA; Library No 6972; 15 December 1987 Rodriguez v The Queen [2001] WASCA 394 Townsend (1979) 1 Cr App R (S) 33 Lowndes v The Queen (1999) 195 CLR 665 R v Lee, unreported; CCA SCt of WA; Library No 5982; 28 August 1985 R v Millar [2001] WASCA 54 R v "VC" (A Child), unreported; CCA SCt of WA; Library No 990142; 23 March 1999 Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BYFIELD -v- THE QUEEN [2002] WASCA 260 CORAM : MALCOLM CJ
- WALLWORK J
STEYTLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Attempted murder - Horrific offence - Victim deliberately run over by car on a second occasion - Left badly injured with no assistance - Whether 12 year sentence of imprisonment too severe
Legislation:
Crimes Act 1900 (NSW), s 29
Result:
Application for leave to appeal refused
(Page 2)
Category: A
Representation:
Counsel:
Applicant : Mr J B Prior
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Unrepresented Criminal Appellants Scheme
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Aldridge v The Queen, unreported; CCA SCt of WA; Library No 980206; 23 April 1998
Bell v The Queen (1992) 62 A Crim R 66
Brewer (1987) 9 Cr App R (S) 44
Chae Sun Lee, unreported; CCA SCt of WA, Library No 5982, 28 August 1985
Dearn (1990) 12 Cr App R (S) 527
Domican (No 3) (1990) 46 A Crim R 428
Donnelly (1983) 5 Cr App R (S) 70
Drinkald (1988) 10 Cr App R (S) 380
Grant (1992) 13 Cr App R (S)
Green (1986) 8 Cr App R (S) 284
Haines (1983) 5 Cr App R (S) 58
Lawson v The Queen, unreported; CCA SCt of WA; Library No 940439; 24 August 1994
Pearce v The Queen (1998) HCA 57; 194 CLR 610
R v Kerr, unreported; CCA SCt of WA; Library No 970402; 15 August 1997
Roche v The Queen, unreported; CCA SCt of WA; Library No 6972; 15 December 1987
Rodriguez v The Queen [2001] WASCA 394
Townsend (1979) 1 Cr App R (S) 33
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Case(s) also cited:
Lowndes v The Queen (1999) 195 CLR 665
R v Lee, unreported; CCA SCt of WA; Library No 5982; 28 August 1985
R v Millar [2001] WASCA 54
R v "VC" (A Child), unreported; CCA SCt of WA; Library No 990142; 23 March 1999
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
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1 MALCOLM CJ: In my opinion, this application for leave to appeal against sentence should be refused. I have reached that conclusion for the reasons to be published by Wallwork J. I wish, however, to add some comments of my own. I agree with Wallwork J that this was an horrific offence which involved not only one but two attempts to seriously injure the victim by twice running over him, the second occasion being with the specific intention of killing him. In addition, prior to the applicant running over the victim, having seen the victim at the oval, the applicant and his accomplice, Mr Browne, went back to the applicant's house to collect a piece of wood similar to an axe handle. This was a result of them seeing the victim who was said to have been responsible for an assault on Mr Browne on an earlier date. They returned to the oval with the specific intention of assaulting the victim as an act of retaliation or revenge for the earlier incident. What then happened is adequately summarised by Wallwork J.
2 The applicant was convicted of the offence of attempted murder for which he was sentenced to imprisonment for 12 years reduced from 16 years on account of his pleas of guilty at the earliest opportunity. A concurrent sentence was imposed of imprisonment for 5 years in respect of the assault with intent to cause grievous bodily harm.
3 The applicant was aged 19 at the time of the offence and the pre-sentence report noted that he was remorseful for his conduct. But for the plea of guilty, the sentence for the attempted murder would have been imprisonment for 16 years. An order was made that the applicant be eligible for parole.
4 I agree with Wallwork J that there is no "broad tariff" of between 7 to 10 years for sentences in the case of attempted murder. In this context counsel referred to four cases in this Court. The first was Aldridge v The Queen, unreported; CCA SCt of WA; Library No 980206; 23 April 1998. In that case, the offender was sentenced to imprisonment for the attempted murder of a woman with whom he had previously been living, but who had broken off the relationship. The sentence imposed for the attempted murder was 9 years. He was also sentenced to imprisonment for 7 years to be served concurrently for entering the home of the victim without her consent and with intent to commit an offence therein while armed with a dangerous weapon, namely, a knife. The sentence imposed for that offence of aggravated burglary was directed to be served concurrently with the sentence imposed in respect of the first count. The third count was that the applicant had unlawfully assaulted the victim with intent to do her grievous bodily harm. The sentence imposed for that offence was
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- imprisonment for 3 years of which 2 years were directed to be served concurrently with the other sentences. It was contended that the total of the sentences imposed was manifestly excessive because the learned Judge placed too much emphasis on the gravity of the offences and too little emphasis on the applicant's mental condition at the time, his plea of guilty, his evident remorse and prior good character. But for the fact that the victim strongly resisted the attempt and the knife used by the offender broke, he may well have succeeded in killing the victim. An application for leave to appeal against the sentences was refused.
5 The second case upon which the applicant relied was Bell v The Queen (1992) 62 A Crim R 66. That case was set against a similar factual background to Aldridge. Mr Bell was convicted of breaking into his estranged wife's house and attempting to murder her by stabbing. The sentencing Judge found that the attack had been planned, calculated and clearly pre-meditated by Mr Bell who appreciated that if he killed his wife, their children would suffer the consequences. The principal submission on appeal was that attempted murder in a domestic situation fell into a special category and that the sentence imposed fell outside the pattern or range of sentence ordinarily imposed for this kind of offence. There was expert evidence that the applicant displayed no signs of mental disturbance of a psychotic nature although the sentencing Judge remarked that the conduct was "perhaps an aberration and out of character". This had to be set against the planned nature of the offence and the applicant's past history of violence toward his wife. Ipp J (with whom Malcolm CJ and Owen J agreed) reviewed a number of English and Australian cases involving husbands or partners who attempted to murder their wife or partner, namely, Townsend (1979) 1 Cr App R (S) 33 in which the sentence was 15 years reduced on appeal to 10 years; Haines (1983) 5 Cr App R (S) 58 where the sentence was 12 years upheld on appeal; and Donnelly (1983) 5 Cr App R (S) 70 in which the offender attacked his wife with a hammer causing injury to her head and hand in which a sentence of imprisonment for 9 years was varied to 7 years on appeal.
6 In Green (1986) 8 Cr App R (S) 284, Lord Lane CJ remarked at 287 that Donnelly should consider himself lucky. In Green, a man who had left his wife and who was involved in a custody dispute attempted to murder her by cutting her throat with a knife to the degree that she required 14 stitches in the wound. He was sentenced to imprisonment for 15 years for attempted murder. On appeal, Lord Lane CJ referred to Townsend, Haines and Donnelly and said at 287:
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- "Had it not been for those authorities, we would have been content to leave the sentences as they are. But in the light of the authorities we feel … that we are obliged to reduce the sentence in respect of the attempted murder to a term of 10 years imprisonment."
7 In Brewer (1987) 9 Cr App R (S) 44 the appellant attempted to murder a woman he had known for some years and with whom he had lived for some time in the past. She came to his flat to spend the evening. He attacked her with a knife. Although the victim continued to regard the appellant with affection and desired to help him, an appeal against a sentence of imprisonment for 10 years was dismissed.
8 In Drinkald (1988) 10 Cr App R (S) 380 the appellant had attempted to murder his former wife by stabbing her with a knife and axe. The Court of Appeal reduced the sentence of 8 years to imprisonment for 6 years on the ground that there could have been "a soundly based defence of substantially diminished responsibility".
9 In Dearn (1990) 12 Cr App R (S) 527 the appellant attempted to murder a young woman with whom he was in a relationship by tying flex around her neck and strangling her for a minimum of 5 minutes. This resulted in severe brain damage and a total ruin of her life. Alliott J, delivering the reasons of the court and being bound by the earlier decisions in Green, Townsend and Donnelly, said at 529:
"Respectfully adopting that approach of the learned Chief Justice this court feels that without reference to authority there could be no complaint in principle to the sentence of 15 years passed by the learned Judge in the light of the truly appalling consequences of this attempted murder."
10 The court was obviously constrained by the earlier authorities to reduce the sentence to one of imprisonment for 12 years. In Grant (1992) 13 Cr App R (S) 4 the offender made carefully planned attempts to murder his wife and baby son by setting them on fire. The motive was his infatuation with another woman. In that case, the domestic background was not considered to be of special relevance to the length of sentence and the court confirmed a total sentence of imprisonment for 16 years.
11 After referring to these cases, Ipp J said in Bell at 71:
"It is difficult to discern a definite range from these cases. It can perhaps be said that, in England, for serious cases of
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- attempted murder arising out of domestic relationships, a term of imprisonment of not more than 10 years will usually be imposed. But this is not an inflexible rule as is apparent from Haines, Dearn, and, to a degree, Grant. Further, it should be said, that the limitation on the term of imprisonment has not been brought about by any application of principle but simply because of a pattern of sentencing that has developed. It should also be noted that in those cases where a lesser sentence has imposed, the offender has generally acted in the heat of the moment or under a degree of diminished responsibility."
12 In Chae Sun Lee, unreported; CCA SCt of WA, Library No 5982, 28 August 1985, which was a case of attempted murder, but not one arising out of a domestic situation. Burt CJ said:
"The offence of attempted murder or, more accurately under the Code the offence of attempted wilful murder is under all circumstances a very serious offence, central to it being the intention to cause death. More often than not it is an offence committed within an established relationship the most common example being an attack by a husband upon a wife. And in those cases the crime is generally committed without planning in the heat of the moment and under some provocation. In those cases it is said by D A Thomas, Principles of Sentencing (2nd ed, 1979), p91 that:
'The usual bracket of sentencing appears to be between 5 and 7 years' imprisonment.'
More recent cases in the Court of Appeal, Townsend, Haines and Donnelly, would suggest that the author, even for the offence when committed in those circumstances is on the low side. The author says (at p92) that:
'It may be that the upper limit of the scale for attempted murder would be in the range of 14 years, and that a sentence of this level would be reserved for a deliberate attempt at murder with no real provocation.' "
" … considered that Chae Sun Lee was very close to being at the upper limit of the scale. After giving credit for the time
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- spent by the respondent in custody, the Court of Criminal Appeal increased the respondent's sentence which was effectively imprisonment for 5 years to 9½ years. In considering the degree to which Chae Sun Lee assists in establishing a pattern of sentencing, it must be borne in mind that this was a Crown appeal and that that no doubt had a bearing on limiting the term of imprisonment imposed. Further, the court was influenced by the reported English cases as at 1985, and a less lenient trend may be discerned from cases such as Green, Brewer, Dearn and Grant."
14 In Roche v The Queen, unreported; CCA SCt of WA; Library No 6972; 15 December 1987 there was, as appears from the judgment of Ipp J in Bell at 72 – 73, a suggestion that a sentence of 10 years' imprisonment where no minimum term had been fixed was above the tariff for crimes of this kind and a sentence of imprisonment for 7 years was imposed for the offence of manslaughter, a verdict reached on the basis that the appellant had committed the offence in the heat of passion caused by sudden provocation before there was time for his passion to cool. While this was not a defence to a charge of attempted murder, it was a substantial mitigating factor for the purpose of sentencing.
15 In R v Kerr, unreported; CCA SCt of WA; Library No 970402; 15 August 1997 a sentence of imprisonment for 8 years imposed for the attempted murder by the offender of his de facto wife, who shot her in the head with a bullet from a rifle held four inches away from her head causing loss of sight in one eye and brain damage to the victim, a sentence of imprisonment for 8 years was increased to a sentence of imprisonment for 10 years, taking into account the special circumstances applicable to a Crown appeal. In Lawson v The Queen, unreported; CCA SCt of WA; Library No 940439; 24 August 1994, a sentence of imprisonment for 14 years was imposed for an attempted murder by stabbing cumulative upon sentences for a total of 7 years imposed in respect of a series of violent sexual assaults and deprivation of liberty of a second victim following the attempted murder. There was a direction that on serving the finite term of imprisonment the applicant be detained at the Governor's pleasure.
16 In R v White [2002] WASCA 112 McKechnie J (with whom Wallwork and Murray JJ agreed), allowed a Crown appeal against sentences imposed in the Supreme Court for four offences committed on 18 June 2001 for which the respondent was sentenced as follows:
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- Count 1 - unlawful wounding with intent to do grievous bodily harm – 8 years.
Count 2 - attempted murder – 13 years.
Count 3 - sexual assault (vaginal penetration) – 9 years.
Count 4 - sexual assault (anal penetration) – 9 years.
17 Each sentence was directed to be served concurrently making a total effective sentence of imprisonment for 13 years with effect from 21 June 2001. In each case, an order for eligibility for parole was made. It was conceded that each of the offences was a crime in the worst category. The complainant was five years old who was staying in a bush camp near Kununurra. At about 9 pm the offender took the child about a kilometre away from the camp to the place in which the offences took place. The offender smashed a rock against the child's skull, tried to strangle her with a rope until she lost consciousness and penetrated her both anally and vaginally. Later he took the critically injured child to the Kununurra District Hospital. The Crown did not contend that each individual sentence was outside the range of a reasonable sentencing discretion but the total of the sentences was said to fail adequately to reflect the total criminality of the offending behaviour. The sentences imposed reflected a discount of between 25 to 35 per cent.
18 In that case, the issue concerning concurrency or cumulation of the sentences had to be considered in the light of the totality principle: Pearce v The Queen (1998) HCA 57; 194 CLR 610. McKechnie J said at [19] – [24]:
"19 In R v O'Rourke (1997) 1 VR 246 the offender had been conviction of rape, threats to kill, intentional injury and two indecent assaults. The Court of Appeal held that in the circumstances it was not open to the sentencing Judge to write off the impact of these later offences by saying they were part of one relatively short continuous episode for to do so was to undervalue the gravity of the respondent's conduct and the impact of that conduct upon his victim. After examining authority, the Court concluded at 253:
'What is necessarily required in every case, even cases of sexual and violent offenders, is a sound discretionary judgment as to whether there should be cumulation and, if so, whether such cumulation should be in relation to some
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- or all of the counts and whether it should be in whole or in part.
- 20 This approach was specifically adopted by this Court in Oldham v The Queen [1999] WASCA 304. Oldham had been convicted of two counts of aggravated sexual assault and one count of murder in respect of the same woman. The offences occurred over a short period of time.
21 The trial Judge imposed cumulative sentences of imprisonment for each count of aggravated sexual assault, to be served concurrently, with a mandatory sentence of life imprisonment for murder. Murray J said at 35:
'These were separate offences and transactions, although close in time. They were individually of the utmost gravity. They merited separate punishment ...'
22 In Pieri v The Queen [2001] WASCA 357 this Court considered the question of cumulative or concurrent sentences. Einfeld AUJ, with whom Wallwork J agreed, quoted Thomas' "Principles of Sentencing", 2nd ed, 1979 at p 53:
'Where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive.'
23 At par 41 Einfeld AUJ distilled the essence of the rule as follows:
'The essence of the one transaction rule thus appears to be that consecutive or cumulative sentences are inappropriate when all the offences taken together constitute a single invasion of the same legally protected interest ...'
24 Roberts-Smith J dissented on this point. He analysed the authorities at par 14 to par 16 before concluding that the trial Judge had made no error in accumulating sentences for offences of two armed robberies and one attempted armed robbery occurring over period of a week, 'commonly rooted in the applicant's desperate, personal and financial circumstances'. I acknowledge the assistance I have received from the judgments
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- in Pieri as each judgment conducts an analysis of the relevant cases in the area."
19 After referring to the decision in Pearce v The Queen (1998) HCA 57; (1998) 194 CLR 610, McKechnie J said at [29] – [32]:
"In responding to this appeal, counsel for the respondent points to the mitigatory circumstances to establish that the sentences imposed should not be disturbed in any event.
30 It seems that the plea of guilty was taken into account by the sentencing Judge in setting the length of the sentences. A discount of the order he suggests – 25 to 35 per cent – would put a sentence for attempted murder, before the reduction, at around 17 years. The sentences for the sexual assaults would start at around 12 years. The starting point, together with a similar starting point for the offence of unlawful wounding with intent, is well within the range of a sound sentencing discretion having regard to the extreme nature of the crimes committed against the child.
31 The Judge also took into account the significant mitigation in the respondent taking the child to hospital. She referred specifically to this event and the sentence reflects an acknowledgement of it.
32 Had he not so acted, a sentence of life imprisonment for the crime of attempted murder committed with the attendant circumstances may well have been imposed."
20 Given the seriousness of the offence, the extent to which aspects of personal mitigation can be given practical recognition is limited: cfRodriguez v The Queen [2001] WASCA 394 at [54] per Olsson AUJ. In my opinion, his Honour gave due weight to the applicant's background and personal circumstances including the psychological report which outlined the difficulties that the applicant had encountered in the course of his schooling as well as his co-operation with the author of the pre-sentence report. His Honour expressly noted that the applicant had no prior convictions and that the behaviour associated with the offences was out of character. In my view, due allowance was given for the youth and antecedents of the applicant.
21 Domican (No 3) (1990) 46 A Crim R 428 provides an example of a case which would be regarded as in the worst category of attempted
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- murder. At trial, Roden J sentenced Mr Domican to imprisonment for 14 years with a non-parole period of 10 years. As in the case of Western Australia, the maximum penalty for the offence of attempted murder under s 29 of the Crimes Act 1900 (NSW), s 29 is life imprisonment. Mr Domican had a record stretching back to 1964. The Crown submitted that the offence called for the maximum sentence available as the case fell within the worst category of offences of its kind. As Kirby ACJ said at 454, the Crown submitted that the case fell within the worst category of offences of this kind and called for the maximum sentence available. The attempt was carried out pursuant to a "contract to kill". The offence was made more serious because both the intended victim's wife and daughter were in the near vicinity when a large number of shots were fired from a powerful automatic rifle. The attempt was unsuccessful. Reference was made to a number of cases where life imprisonment had been imposed even where no person had been injured. While Kirby ACJ considered that there was force in the Crown's submission, he concluded that the Court should not disturb the sentence imposed of imprisonment for 14 years with a non-parole period of 10 years.
22 In my opinion, it could not be said that the sentence of imprisonment for 12 years reduced from a starting point of 16 years on account of the pleas of guilty at the earliest opportunity was beyond the range of a sound discretionary judgment.
23 For these reasons, as well as the reasons expressed by Wallwork J, I consider that this application for leave to appeal against sentence should be refused.
24 WALLWORK J: On 30 April 2001 the applicant was sentenced to two terms of imprisonment, one of 5 years and the other for 12 years. Both the sentences were ordered to be served concurrently. The applicant now applies for leave to appeal against the sentence of 12 years' imprisonment which was imposed for the offence of attempted murder. The 5 year sentence was for an assault with intent to cause grievous bodily harm. That offence had preceded the offence of attempted murder and was against the same person.
25 When sentencing the applicant the learned Judge said that but for a significant discount which he gave the applicant because of his pleas of guilty at the earliest opportunity, the head term would have been one of 16 years' imprisonment as against the 12 year term imposed.
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Background
26 The attempted murder for which the applicant was sentenced to 12 years' imprisonment was an horrific offence. The learned Judge said that on 18 October 2000, which was one month after the applicant's 19th birthday, the applicant and another offender, Mr Browne, had been at the Gosnells Football Oval with other people. It was Mr Browne's birthday. At the oval they saw the victim who allegedly had been responsible for an assault upon Mr Browne on an earlier date. The applicant and Browne went back to the applicant's house and obtained a piece of wood similar to an axe handle. They returned to the oval with the intention of assaulting the victim as retaliation for the earlier incident.
27 The Judge said that at the oval Browne had stopped his vehicle in front of the victim. The offenders had then alighted from the vehicle. Browne struck the victim with the piece of wood on the left side of his head, causing him to fall to the ground unconscious. Browne then struck the victim with a piece of wood a second time whilst the victim lay on the ground. His Honour said that it appeared that one of those blows had caused the victim to suffer a fractured skull.
28 The Judge said that after that attack the applicant and Browne had returned to the vehicle. Browne had then deliberately driven the vehicle over the victim who was lying unconscious on the ground. His Honour said it was likely that the victim's legs were fractured at that time. Browne then drove out of the carpark and circled the oval. There had been some discussion between the applicant and Browne. Following that discussion the two offenders had decided to return to the oval to make sure the victim was dead.
29 His Honour accepted that neither the applicant or Browne knew whether they had killed the victim. He said:
"So Browne, at your suggestion, then returned to the oval where the complainant was still lying on the ground, not moving and with a large amount of blood coming from him. Browne then deliberately accelerated again over the complainant at a speed of somewhere near 60 kph and left the area without taking steps to seek assistance for him."
30 His Honour said that he was sure that the applicant was aware that the victim had been extremely fortunate to live. He had been in a coma at
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- the Royal Perth Hospital for 2 months on life support. He was then in the Shenton Park Rehabilitation Hospital for 2 months.
31 A medical report dated 16 January 2001 reveals that the victim suffered a fractured base of the skull with an associated severe head injury; also multiple facial fractures and chest trauma with multiple fractured ribs and bi-lateral pneumothoraces. He underwent surgical repair of his extensive facial injuries.
32 Three months after he received his injuries the victim's left arm remained moderately weakened and reduced in function. He displayed significant residual cognitive impairments affecting his concentration span, short term memory, judgment and insight. He was left with a significant cosmetic disfigurement due to his extensive facial fractures. He had limited movements of his right eye due to multiple cranial nerve lesions.
33 At the time the applicant was sentenced, which was approximately 6 months after he had taken part in the attack, the victim was unable to drink water but only milk or orange juice. He had to have his food cut up for him. He was able to walk slowly but was not steady on his feet. He had only 50 per cent movement on the left side of his body. He said he had no social life. The learned Judge said that the victim would never be able to work again.
34 His Honour noted that the applicant had pleaded guilty at the very earliest opportunity. He said the attempted murder offence carried a maximum term of life imprisonment. The other offence had a maximum term of 20 years' imprisonment.
35 His Honour said he had taken into account the contents of the pre-sentence report and the psychological report; also that the applicant had expressed considerable remorse for his conduct. His Honour took into account that the applicant's conduct may have been influenced by the cocktail of drugs and alcohol he had consumed on that night. His Honour said he was not sure exactly what drugs the applicant had consumed but they seemed to have included at least amphetamines, cannabis, alcohol and may be even other drugs.
36 The learned Judge said that the applicant had a problem with alcohol. He had also involved himself in the consumption of illegal drugs. He noted that to the applicant's credit, whilst he had been in custody he had taken a course which included exploring the impact of substance abuse on the individual, the process of change and harm minimisation. He said that
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- obviously the applicant was doing something towards his own rehabilitation which was to his credit. He said that the applicant had turned 19 years of age on 15 September 2000 and that the pre-sentence report had expressed the view that he was remorseful for his conduct.
37 The Judge noted that the applicant had no prior convictions and that his offences had been out of character. His Honour said that in his view there was no distinction to be drawn between the applicant's position and that of his co-offender Browne. His Honour expressed the view that but for the plea of guilty the head term for the attempted murder would have been 16 years' imprisonment instead of the 12 years imposed. He ordered that the applicant would be eligible for parole and that the sentences should run from the day he was taken into custody, being 19 October 2000.
38 It should be noted that the learned Judge allowed the applicant a deduction of 25 per cent of the sentence he would otherwise have imposed due to his plea of guilty at the earliest time. Counsel described the pleas as defacto fast track pleas of guilty. This can be accepted.
On Appeal
39 Counsel for the applicant stressed that when the applicant was sentenced he was 19 years of age. He had no previous convictions. The crimes were totally out of character for him. Counsel referred to the considerable number of very excellent character references, most of which speak of the applicant being normally kind and courteous. He had not apparently exhibited any tendencies towards violent behaviour on previous occasions. He was described by people who knew him as being a pleasant and soft-hearted person.
40 Counsel for the applicant stressed that the learned Judge had commenced with a sentence of 16 years' imprisonment which he had then reduced to 12 years' imprisonment because of the early plea of guilty. Counsel suggested that there was a broad tariff of between 7 to 10 years for sentences in the case of attempted murder. He referred to four cases in Western Australia where sentences had previously been imposed.
41 In my opinion, there is no broad tariff of 7 to 10 years immediate imprisonment for the crime of attempted murder. Carter's Australian Sentencing Digest (Law Book Co Ltd) reveals that sentences for the offence of attempted murder range from life imprisonment downwards.
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- The appropriate sentence will always depend on the facts of the particular offence.
42 Leaving aside for the moment the fact that the applicant was obviously affected by drugs, in my view the offence in this case can be described as being close to the worst offence of its type. Not only did the applicant and his co-offender twice run over the victim in the motor vehicle, on the last occasion with the intention of killing him, but they then left him in a badly injured condition without any assistance.
43 Although the applicant was a young man at the time of the offence he was not a child. His co-offender was approximately the same age. The co-offender also had no previous record. He received the same sentence as the applicant.
44 In essence it was submitted for the applicant that the learned sentencing Judge commenced his consideration of the sentence at too severe a level when he referred to the fact that he would have sentenced the applicant to 16 years' imprisonment but for his earliest possible plea of guilty.
45 The applicant has taken positive steps towards his rehabilitation. Prior to these offences he was a young man with no prior convictions and apparently of good character. However, from the community's point of view, this offence was towards the worst end of the scale. The victim received life threatening injuries which have left him severely handicapped for the rest of his life.
Conclusion
46 Having regard to all the relevant considerations, it is my view that it can not be said that the effective sentence of 12 years' imprisonment which the applicant received for the offence of attempted murder was too severe.
47 The application should be dismissed.
48 STEYTLER J: I have had the advantage of reading the reasons for decision of the Chief Justice and of Wallwork J. I agree with each of them. There is nothing I wish to add.
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