Carrick v The State of Western Australia

[2017] WASCA 175

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   CARRICK -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 175

CORAM:   BUSS P

MAZZA JA
HALL J

HEARD:   15 AUGUST 2017

DELIVERED          :   22 SEPTEMBER 2017

FILE NO/S:   CACR 128 of 2017

BETWEEN:   TRAVIS NOEL CARRICK

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :GOETZE DCJ

File No  :IND BUN 80 of 2016

Catchwords:

Criminal law - Appeal against sentence - Assault occasioning bodily harm - Whether sentencing judge made express error of fact

Legislation:

Criminal Code (WA), s 317
Sentencing Act 1995 (WA), s 9AA

Result:

Appeal allowed

Category:    D

Representation:

Counsel:

Appellant:     Ms N R Sinton

Respondent:     Mr J A Scholz

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

The State of Western Australia v Martinac [2017] WADC 59

1. JUDGMENT OF THE COURT: This is an appeal against sentence. The appellant and two others, Aaron Clifford Pierotti and Rhannan Ngaire Martinac, were charged that on 21 February 2016 at Redcliffe they did grievous bodily harm to Mark Anthony Waghorn, contrary to s 297(1) of the Criminal Code (WA) (the charge).

2. On 18 April 2016 in the Bunbury Magistrates Court, Ms Martinac entered a plea of guilty to the charge.  She was remanded for sentence to the District Court on 18 July 2016.[1]  In the District Court, she applied to change her plea.  That application was dismissed:  The State of Western Australia v Martinac [2017] WADC 59. Ms Martinac is yet to be sentenced.

   [1] The State of Western Australia v Martinac [2017] WADC 59 [6].

3. Meanwhile, the appellant and Mr Pierotti entered pleas of not guilty to the charge. A trial was listed in the District Court to commence on 16 May 2017. On that day, the appellant pleaded not guilty to grievous bodily harm, but guilty to the lesser offence of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code.  The State accepted the plea in satisfaction of the charge in the indictment.[2]  The sentencing judge accordingly entered a judgment of conviction.[3]  The appellant, through his counsel, indicated that he was prepared to give a witness statement to the prosecution and testify for the State against Mr Pierotti.  A statement was taken from him and disclosed to Mr Pierotti's counsel.[4]  On 17 May 2017, Mr Pierotti was arraigned.  Like the appellant, he pleaded not guilty to grievous bodily harm, but guilty to assault occasioning bodily harm.  This plea was accepted by the State in satisfaction of the charge on the indictment and his Honour accordingly entered a judgment of conviction.[5]

   [2] ts 293.

   [3] ts 294.

   [4] See also ts 50.

   [5] ts 304.

4. On 2 June 2017, the appellant and Mr Pierotti were sentenced for the offence of assault occasioning bodily harm.  The appellant was sentenced to 2 years' immediate imprisonment commencing on 2 June 2017 with eligibility for parole.  Mr Pierotti was sentenced to 2 years and 4 months' immediate imprisonment with eligibility for parole backdated to commence on 5 May 2016 to take into account two periods he spent in custody on remand.[6]

   [6] ts 352.

5. The appellant relies on two grounds of appeal.  Ground 1 alleges, in substance, that his Honour made an express error as to the factual basis on which he sentenced the appellant.  Ground 2 alleges that the sentence was manifestly excessive.  Leave to appeal was granted in respect of these grounds.[7]  The grounds have been conceded by the respondent.[8]

   [7] Order Mazza JA, 4 July 2017.

   [8] Respondent's submissions, par 1.

6. For the reasons that follow, the appeal should be allowed and the appellant resentenced.  We would impose upon the appellant a term of immediate imprisonment of 14 months to commence on 2 June 2017 with eligibility for parole.

The facts

1. In the days leading up to 20 February 2016, Mr Pierotti and Ms Martinac were temporarily residing at an address in Redcliffe which was occupied by Mr Pierotti's mother, Ms Rosemary Walker (the Redcliffe house).  The victim, Mr Waghorn, was an acquaintance of Ms Walker.  He was also staying at the Redcliffe house.

2. On the afternoon of 20 February 2016, Ms Walker, Mr Pierotti and Ms Martinac got into an argument.  As a result, Ms Walker told Mr Pierotti and Ms Martinac that they were not to return to the Redcliffe house.[9]

   [9] ts 329 ‑ 330.

3. That evening, Mr Pierotti and Ms Martinac went to the appellant's house in Bayswater.  While there, Mr Pierotti and the victim exchanged a series of text messages.  It appears that the victim thought that Mr Pierotti had taken some of his property from the Redcliffe house.[10]   Mr Pierotti sent a text message to the victim, threatening to '… come over and fuck you up'.  The victim replied, 'I'll fuck you up too …'[11]

   [10] ts 330.

   [11] ts 330.

4. In the early hours of 21 February 2016, Mr Pierotti, Ms Martinac and the appellant travelled to the Redcliffe house by taxi.  When they arrived there, the victim, Ms Walker and another person, Mr Kelvin Chalkley, were together socialising in a shed at the end of the driveway.  Out of fear, the victim armed himself with an ornamental samurai sword and walked onto the driveway. 

5. Mr Pierotti, Ms Martinac and the appellant made their way through a closed (but not locked) high double gate at the front of the driveway.  They picked up various objects in the vicinity, including glass bottles, and threw them at the victim.  He tried to parry the objects away with the sword.  As he did so he backed into the shed. 

6. The appellant pursued the victim into the shed and punched him in the face approximately five times using both hands.[12]  The victim fell to the ground after the first punch.  As a result of the blows struck by the appellant, the victim suffered relatively minor injuries to his nose and mouth which bled.  These injuries constituted the bodily harm the subject of the offence committed by the appellant.[13]

   [12] ts 331.

   [13] ts 331.

7. Subsequently, Ms Martinac threw an object which struck the victim in the face, causing a severe laceration to the victim's lip, as a result of which he was hospitalised and left with a scar.  He also suffered a fracture to one of his facial bones.  It is these injuries which constituted the grievous bodily harm.[14]

   [14] ts 331.

8. Soon after, Mr Pierotti, Ms Martinac and the appellant went into the house where Mr Pierotti and Ms Martinac collected some of their belongings.  Mr Pierotti and the appellant told the occupants not to call the police.

9. Eventually, Mr Pierotti, Ms Martinac and the appellant left the house on foot.[15]  The appellant was arrested on 13 March 2016.  The appellant admitted to the police that he hit the victim five or six times.  He said that he did so to prove that he was not scared of the victim coming at him with a sword.[16]

   [15] ts 332.

   [16] ts 332.

The State's case as to the basis upon which the appellant was to be sentenced

1. The prosecutor made it clear to his Honour that the State's case was that the appellant (and, for that matter, Mr Pierotti) was not criminally responsible for the grievous bodily harm suffered by the victim.  The State's case was that Ms Martinac was solely criminally responsible for those injuries and that the appellant was to be sentenced on the basis of the relatively minor injuries he inflicted when he punched the victim approximately five times. 

The appellant's personal circumstances

1. The appellant was 21 at the time of the commission of the offence.  He was sentenced on the day before his 23rd birthday.[17]  He is the father of three children.  His current partner is pregnant with his fourth child.[18]  In his plea in mitigation, defence counsel said that the appellant was 'a stay at home dad', looking after all three children.[19] 

   [17] Appeal ts 2.

   [18] ts 348.

   [19] ts 339.

2. The appellant was educated to year 10.  Defence counsel explained that the appellant's education was interrupted by periods of detention as a result of offences he committed as a juvenile.  After he completed his last period of detention at the age of 19, the appellant performed some seasonal work and was a commercial fisherman.[20]

   [20] ts 339.

3. The appellant is a user of illicit drugs.  He was described by his counsel as having a 'drug habit'.[21] 

   [21] ts 339.

4. The appellant has a relatively short record of offending as an adult.  That record includes offences of property damage, stealing, behaving in a violent manner on a train and various driving offences. 

The sentencing remarks

1. His Honour found that although the appellant's plea of guilty was not entered until the first day of the trial in the face of a strong State case, it nevertheless facilitated the administration of justice. His Honour gave a discount, pursuant to s 9AA of the Sentencing Act 1995 (WA), of 17.5%. In addition to the plea of guilty, his Honour found that the appellant was remorseful.[22]  He gave mitigating weight to the appellant's youth and the support he has from his family. 

   [22] ts 350.

2. With respect to the circumstances of the offending, his Honour found Mr Pierotti, Ms Martinac and the appellant were all 'equally culpable' for the injuries suffered by the victim.[23]  We will say more about this in dealing with ground 1. 

   [23] ts 347.

3. In the end, his Honour decided that the only appropriate penalty was a term of imprisonment.  Having regard to the seriousness of the offence, he declined to suspend the term he imposed, either with or without conditions.[24]

   [24] ts 351 ‑ 352.

Appellate sentencing principles

1. The general legal principles applicable to appeals against sentence are well known and uncontroversial.  An appellate court can only intervene if the appellant demonstrates either an express or implied material error.  Express error usually involves mistaking the law or facts or taking into account an irrelevant factor.  Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.  Ground 1 alleges an express error.  Ground 2 alleges an implied error. 

Ground 1 - express error

1. At ts 347, his Honour said:

   Now, it seems to me that the three of you went there for a common purpose and the three of you really are equally culpable for the consequential injuries that Mr Waghorn suffered, but I'm not dealing with Ms Martinac today.  Mr Waghorn received some injuries, a fractured facial bone.  His lip wasn't merely a split lip.  It was cut and almost severed and had to be sewn back on or back into place and he also received a wound to his arm and, it would seem, a bloodied face.  (emphasis added)

2. It is clear from this passage in the sentencing remarks that the appellant was sentenced on the basis that he was culpable for the injuries suffered by the victim, which constituted grievous bodily harm, being the fractured facial bone and the severely lacerated lip.  This finding was not open to his Honour, in light of the appellant's plea of guilty to the lesser charge of assault occasioning bodily harm and the State's express position that the appellant was not criminally responsible for the grievous bodily harm suffered by the victim.

3. The error alleged in ground 1 has been established.  The error was material to the exercise of the sentencing discretion because it resulted in the appellant being sentenced on a more serious basis than he should have been.  Ground 1 has been made out.  This court's discretion to resentence the appellant has been enlivened. 

Ground 2 - implied error

1. As ground 1 has been made out, it is unnecessary to decide ground 2. 

Resentencing

1. This court has all the materials required to resentence the appellant. 

2. The maximum penalty for assault occasioning bodily harm, in circumstances not involving aggravation or racial aggravation, is 5 years' imprisonment. 

3. There were a number of serious aspects to the offence committed by the appellant:

   1.The appellant had no legitimate reason to be at the Redcliffe house. Any dispute between Ms Walker, on the one hand, and Mr Pierotti and Ms Martinac, on the other hand, was none of his concern. 

   2.He entered onto the premises in company and in circumstances where he and the co‑accused were plainly not welcome. 

   3.The victim offered no provocation to the appellant. 

   4.The appellant's assault on the victim was preceded by him throwing objects at the victim.

   5.The appellant effectively backed the victim into the shed, limiting his options to escape, thus increasing his vulnerability.

   6.The appellant punched the victim, not once, but five times.  The appellant continued to punch the victim after he fell to the ground.

   7.The victim suffered injuries to his nose and mouth which bled.

4. There were mitigating factors. The appellant pleaded guilty. While the plea was entered to a lesser charge, there is nothing to suggest that it could not have been offered at a much earlier stage in the proceedings. The appellant does not submit that it was entered at the first reasonable opportunity. Indeed, as we have already noted, it was entered on the first scheduled day of trial. We note that the learned sentencing judge gave a discount of 17.5% for the plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA). This court is not bound by that assessment. In our view, having regard to the late entry of the plea and that it was entered in the face of what appears to have been a strong prosecution case, we would give a discount of 10% for the plea of guilty.[25] 

   [25] Appeal ts 10.

5. An additional substantial mitigating factor is the appellant's cooperation in the prosecution of Mr Pierotti.  Specifically, it is mitigatory that the appellant gave a statement implicating Mr Pierotti which, the State conceded at the hearing of the appeal, led to Mr Pierotti's plea of guilty. 

6. With respect to the appellant's personal circumstances, the appellant was 21 years of age at the time of the commission of the offence.  Thus he has youth on his side.  However, it cannot be said that he is a person of good character in light of his record of offending.  We note that he is the father of three children, with a fourth child to be born soon.  It is unfortunate that the responsibilities that he has to his family did not result in him desisting from committing the offence for which he is to be resentenced. 

7. The sentencing judge made unchallenged findings that the appellant was remorseful and has the support of his family.

8. The appellant has encountered some difficulties in his life which may explain his use of illicit substances.  Hopefully, the appellant will undertake counselling to deal with this and other personal issues that he had.

9. General deterrence is a matter of importance in this case.  This was, in essence, an unprovoked and serious assault.  It did not occur on the spur of the moment and there is nothing whatever to have justified the appellant's presence in company at the Redcliffe house.  Having regard to the seriousness of the offence and notwithstanding the mitigating factors that we have identified, we are satisfied that only a term of imprisonment can be justified in this case.  In our opinion, the appropriate sentence to be imposed is 14 months' imprisonment. 

10. The appellant's counsel has submitted that this court should suspend any term of imprisonment it imposes.  The submission focused on the mitigating factors and, in particular, the plea of guilty and the appellant's cooperation.  We have taken into account afresh all of the relevant circumstances, including all of the mitigating factors.  Having done so, in our opinion it would be inappropriate to suspend the term of imprisonment either with or without conditions, having regard to the serious circumstances in which the offence was committed and the need to provide appropriate general deterrence.

11. Accordingly, the appellant should be resentenced to 14 months' immediate imprisonment for the offence of assault occasioning bodily harm.  That sentence should be backdated to commence on 2 June 2017.  The appellant is to be eligible for parole.  He will be eligible to be considered for release on parole on and from 2 January 2018.

Orders

1. The orders we would make are as follows:

   1.The appeal is allowed.

   2.The sentence imposed by Goetze DCJ on 2 June 2017 is set aside.

   3.In lieu thereof, the appellant is sentenced to 14 months' immediate imprisonment backdated to commence on 2 June 2017, with eligibility for parole.