Clements v The State of Western Australia

[2006] WASCA 69

CLEMENTS -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 69

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 69
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:178/2005	Heard:	14 MARCH 2006
Coram:	ROBERTS-SMITH JA MCLURE JA BUSS JA	Delivered:	2/05/06
No of pages:	16	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	GRAHAM STEPHEN CLEMENTS THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Sentencing Unlawfully causing grievous bodily harm Whether term of imprisonment should have been suspended Whether sentencing Judge gave excessive weight to the seriousness of the offence including the serious injury suffered by the complainant Whether sentencing Judge gave insufficient weight to matters personal to the appellant including mitigatory circumstances
Legislation:	Criminal Code (WA), s 297 Sentencing Act 1995 (WA), s 6(4), s 76(1), s 76(2)
Case References:	Dinsdale v The Queen (2000) 202 CLR 321 Etrelezis v The Queen [2001] WASCA 327 R v Liddington (1997) 18 WAR 394 Long v Mayger (2004) 142 A Crim R 289 R v GP (1997) 18 WAR 196 Rodriguez v The Queen [2001] WASCA 394

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CLEMENTS -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 69 CORAM : ROBERTS-SMITH JA

MCLURE JA
BUSS JA

HEARD : 14 MARCH 2006 DELIVERED : 2 MAY 2006 FILE NO/S : CACR 178 of 2005 BETWEEN : GRAHAM STEPHEN CLEMENTS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WAGER DCJ

File No : IND 1332 of 2005

(Page 2)

Catchwords:

Criminal law - Sentencing - Unlawfully causing grievous bodily harm - Whether term of imprisonment should have been suspended - Whether sentencing Judge gave excessive weight to the seriousness of the offence including the serious injury suffered by the complainant - Whether sentencing Judge gave insufficient weight to matters personal to the appellant including mitigatory circumstances

Legislation:

Criminal Code (WA), s 297

Sentencing Act 1995 (WA), s 6(4), s 76(1), s 76(2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr E Carlose
Respondent : Mr K P Bates

Solicitors:

Appellant : Eapon Carlose
Respondent : State Director of Public Prosecutions

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

Dinsdale v The Queen (2000) 202 CLR 321
Etrelezis v The Queen [2001] WASCA 327
R v Liddington (1997) 18 WAR 394



(Page 3)

Case(s) also cited:

Long v Mayger (2004) 142 A Crim R 289
R v GP (1997) 18 WAR 196
Rodriguez v The Queen [2001] WASCA 394

(Page 4)

1 ROBERTS-SMITH JA: I have read the draft reasons prepared by Buss JA. I agree with those reasons and have nothing to add.

2 MCLURE JA: I agree with Buss JA.

3 BUSS JA: On 1 September 2005 the appellant was convicted, on his plea of guilty, of the offence of unlawfully causing grievous bodily harm, in contravention of s 297 of the Criminal Code.

4 The appellant was sentenced to a term of 2 years imprisonment, to be served immediately, and was made eligible for parole.

5 The appellant appeals to this Court against the sentence.

The circumstances of the offence

6 On 14 April 2005, the complainant, a registered security officer and crowd controller, was providing security for a charity function being held at the Breakwater Tavern at Hillarys Boat Harbour.

7 The complainant commenced work at the tavern at about 8.30 pm. He was working with another man who was also a registered security officer and crowd controller.

8 When the complainant commenced work there were about fifty people in the tavern. They included three young men sitting at a table drinking beer, one of whom was the appellant.

9 The complainant noticed that one of the three young men (not the appellant) was wearing a cap, in contravention of the Tavern's dress code. The appellant requested him to remove the cap. The young man initially refused, but, after a brief discussion with the complainant, complied with the request.

10 The complainant's recollection of relevant events later in the evening is described in a written statement dated 11 May 2005 which was before the learned Judge. The written statement provides, relevantly:

"At about 10.15 pm the group of three moved to the area known as Bar 1. There were bands playing and I think they moved so they could see the bands better.

They were sitting at the bar with a jug of beer and facing the band.

(Page 5)

Ever [sic] time I walked past the one who had the hat on [sic: he] made comments every time I walked past them. I tried to ignore him because it was so pathetic it wasn't worth it.

He gave me the 'finger' a couple of times and yelled 'tosser'.

I went over to the organisers and asked them if they were friend [sic] with the group. I explained I was considering removing them from the venue because they were quite annoying.

If they were friends with them I would let them talk to the group to tell them to behave.

They said they were not friends at all and they didn't know them.

I walked past them again and the same thing happened. I went up to the tall one and said, 'I'm starting to get annoyed. Why are you paying attention to me and not the band? If you don't stop it I will ask you to leave.'

He said, 'What are you going to do about it?'

I said, 'There is a lot I can do about it but one of them is remove you but I'll give you a chance to behave.'

I walked away and stood by the cigarette machine in the corner by the restaurant. I just stood there and kept an eye on them.

The other two weren't really a problem. It was the tall one who was the aggressor.

I was there for half an hour to three quarters of an hour.

I walked back past the group and there was only one there on his own. He is the shorter one wearing t-shirt and jeans.

He made some gestures to me and shouted, screamed and whistled at me, I didn't pay any attention to him.

About 11.30 the group moved to the dance floor. There is a sign that says, 'no drinks on the dance floor'. It is on both sides of the dance floor near the emergency exit.

(Page 6)

Two of the group were jumping around and spilling beer everywhere.

I went up to the tall one and said, 'You have [sic: to] calm down a bit and you can't have drinks on the dance floor.'

He had a glass and was spilling it everywhere.

He said something along the lines of, 'Just fuck off. You can't do anything about it any way. There are three of us and only one of you.'

He was really aggressive.

The tall one was coming up really close to me to try and intimidate me.

I started to pick up glasses from the dance floor. There were chairs as well. I started to stack them as well. We were due to close the bar at 11.45pm.

I had a stack of glasses and the tall one tripped me as I walked past. I didn't fall over but I stumbled. I put the glasses down on the railing.

I turned to him and said, 'That was really inappropriate. Just calm down and enjoy the rest of the concert it's almost closing.'

He said, 'Fuck off, what are you going to do about it?'

I kept trying [sic: to] calm him down and control the situation. It was just about closing time and I didn't want any confrontation.

He was standing up and in my face. The other two stood up and pushed the tall one into me.

I said, 'I have to take you out if you continue with this.'

I have [sic: had] given him plenty of warnings. I felt he was baiting me to get me to use my authority. I grabbed his left upper are [sic: arm] and I said, 'come with me, it's time to leave.'

I turned around to lead him out and he pulled back and out of my grip.

(Page 7)

At the same time, I felt a fist hitting me in the back of my head. I turned around there was fists everywhere. They were trying to hit me and my shirt was being grabbed. I tried to avoid getting hit. It lasted two to three seconds, nothing more.

Then I felt something hit my face. I saw in the corner of my eye, the shorter [sic: one] standing up beside his mate. He [sic: was] about a metre and a half away from me. I saw him throw something at me. I saw him do the throwing movement.

I covered up my face to protect it. Then I saw blood all over my white shirt. I walked off the dance floor covering my face and told the barman to call an ambulance. I then collapsed on the floor in the entrance to the restaurant.

I heard someone from the stage say, 'The bouncer has just been glassed, should we stop playing?'

I remained conscious the whole time and remembered the ambulance arriving."

11 The appellant is the "shorter" man referred to in the statement who threw the broken glass which struck the complainant's face. He was not the "taller" man referred to in the statement. The appellant did not contest the accuracy of the complainant's account of events in the statement.

The nature and treatment of the complainant's injuries

12 On 15 April 2005, after the offence was committed, the complainant was admitted to Sir Charles Gairdner Hospital. He was found to have a very swollen right eye with lacerations to the eyelids and eye. X-rays confirmed the presence of glass fragments in the right orbit. A report from Dr Niall Patton, a medical practitioner who treated the complainant at the hospital, says:

"The following morning [the complainant] was taken to theatre for attempted repair of the right eye. In theatre that morning his eyelids were repaired with suturing of extensive lacerations. Examination of his eye revealed very extensive damage with loss of uveal tissue and severe lacerations involving the cornea and sclera. The majority of the ocular contents had extruded. In view of this, it was decided that the eye was not salvageable. We did not remove the eye on that occasion and did not attempt

(Page 8)

to locate the glass fragments as they appeared to be deep in the orbit.

On 22nd April 2005 [the complainant] underwent a right evisceration with removal of the ocular contents and removal of three large glass foreign bodies from deep within the medial orbital wall. This operation was performed by Dr Gajdatsy and myself. He also had an acrylic orbital implant inserted underneath his own sclera.

In my opinion the injury was of a serious nature. The damage to [the complainant's] eye was as a direct result of the alleged assault inflicted on him on 15th April 2005 and as a result of this assault he has lost his right eye. He has also suffered extensive scarring of his eyelids and damaged his lacrimal apparatus on the right side. If no medical intervention had been performed, it is my opinion that the nature of his injury would have led to permanent injury to health due to the severe risk of injury related to the glass foreign body that remained within his right orbit."

The appellant's submissions to the learned Judge

13 The appellant's counsel submitted to the learned Judge that a community based order should be made in respect of the appellant. Counsel submitted, in the alternative, that if her Honour decided that the appellant should be sentenced to a term of imprisonment, the term should be suspended under s 76(1) of the Sentencing Act 1995 (WA). It was submitted that various facts and considerations required that a term of immediate imprisonment not be imposed. In particular:

(a) the appellant had no previous convictions;

(b) the appellant had pleaded guilty at an early stage (fast-track plea);

(c) the appellant had returned to the scene of the offence shortly after it occurred (the appellant having initially left the scene);

(d) the appellant had readily admitted the offence to police officers and co-operated with them;

(e) the appellant had demonstrated remorse for his conduct;

(Page 9)

(f) the appellant was 22 years of age when he committed the offence and lived with his parents and two siblings;

(g) the appellant had experience as a trades assistant in the printing industry and was usually in employment; and

(h) there was no prospect of the appellant re-offending.

The learned Judge's sentencing remarks

14 The learned Judge, in her sentencing remarks, referred to the written statement of the complainant, the report of Dr Patton, and a victim impact statement of the complainant. Her Honour then said, relevantly:

"[The complainant] was a person who was doing his job as a crowd controller. There's no suggestion he was over the mark or anything of that type. He is only 34 years old and he has, as I have stated, been disabled for life. You were drunk and I fully accept that had you not been drunk this wouldn’t have occurred but that doesn't provide any excuse because you were and it occurred.

When you were apprehended, you cooperated fully. Your remorse was evident right from the start on that night and you have continued with your remorse through you [sic: your] plea of guilty and through the comments that have been made. You don't have any prior record in Western Australia. You were 22 years old and you came to Australia when you were four from the UK. You came to WA when you were 14 from Canberra.

You have had a happy childhood and you clearly have a supportive family. I have read the full references that have been provided to me and I'm aware that your family is in court today. You are in a good relationship and you are employed as a printer's assistant and you have a very promising future ahead. You yourself have been in a motor vehicle accident and you have difficulties with your knee that require surgery.

So far as alcohol is concerned, I accept that you were honest in admitting binge drinking and that that has come through in the pre-sentence report, but the fact is that if people binge drink and go out socially and make wrong decisions then this can result. So that certainly doesn't provide mitigation.

(Page 10)

You are a person of good character apart from that and you are a person who clearly now realises the seriousness of your actions but that's only one thing that I can take into account. I am left with the fact that crowd controllers are people who should be able to do their job without risking their lives. Crowd controllers should be able to carry on without losing their eye, without having their eye taken from the eye socket and being half-blinded for life. Sadly that was the result here.

I have heard what your lawyer has said. Clearly it is not a situation where you put the glass into his eye but you were only one or two metres away, so the result was always going to be something nasty. Sadly it was very nasty indeed.

For all of those reasons I do consider that a term of imprisonment is the only appropriate option and I do consider that an immediate term of imprisonment is the only appropriate option. That's because even though personally I fully accept you won't do something of this type again, the community and the law has made it very clear that it must be marked with - this sort of offence must be marked with a serious outcome and the message must be there in the community very loud and clear that behaviour of this type won't be tolerated in pubs; that glasses can't be thrown; that injuries of this type deserve an immediate term of imprisonment.

So taking into account all of your personal circumstances and taking into account your early plea, I consider the appropriate term to be one of three years which is reduced further to two years' imprisonment in light of the transitional provisions. That will be with an eligibility for parole. So I'm sentencing you to two years' imprisonment with an eligibility for parole and that will commence now. …"

Grounds of appeal

15 The appellant contends that the learned Judge erred, as follows:

"1. [in] failing to consider, at all or sufficiently, whether it was appropriate to suspend that term - after having concluded that a term of imprisonment was appropriate for offences of this nature and

2. in placing excessive or undue weight upon

(Page 11)

(i) the seriousness of the offence and the need for general deterrence,

(ii) the consequences of the injury to the complainant and the contents [sic: of] his victim impact statement and

(iii) the fact that the Appellant was 2m away when he threw the glass - inferring by that that he intended the actual consequences when he was not charged with intentionally causing bodily harm and it was conceded by the prosecution that he did not intend the actual consequences,

without considering at all or giving sufficient weight to

(iv) the Appellant's conduct in returning to the scene of the incident,

(v) his admissions to, and co-operation with the police, shortly after the incident,

(vi) his early guilty plea and his remorse and,

(vii) his age and character and the absence of any prior convictions,

(viii) the unlikelihood of the appellant re-offending,

(ix) the character references submitted on his behalf and the contents of the pre-sentence report called for by the Magistrate [sic] on his [sic] own volition,

(x) the submission that his conduct in throwing the glass was totally out of character and the consequences of his conduct unintended and

(xi) the adverse effects of a prison sentence upon the appellant, in particular his employment, and his supportive family and the social stigma that would follow."

(Page 12)

Ground 1

16 By s 6(4) of the Sentencing Act:

"A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it."

17 Section 76(1) of the Sentencing Act provides:

"A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months."

18 By s 76(2), suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

19 In Dinsdale v The Queen (2000) 202 CLR 321, at 348 [85], Kirby J made the following observations in relation to s 76(1) and (2) of the Sentencing Act:

"Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term (Thomas, Principles of Sentencing, 2nd ed (1979), pp 244-245; R v P (1992) 39 FCR 276 at 285). This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy (cf R v Shueard (1972) 4 SASR 36 at 43; R v Prindable (1979) 23 ALR 665 at 669; R v Davey (1980) 2 A Crim R 254 at 259-260). On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term

(Page 13)

of imprisonment should be suspended is reconsideration of 'all the circumstances'. This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment (R v Liddington (1997) 18 WAR 394 at 402, per Ipp J)."

20 The factors to be considered when considering whether or not to suspend a sentence of imprisonment were referred to by Steytler J (as his Honour then was) in R v Liddington (1997) 18 WAR 394. His Honour said, at 406:

"Amongst the factors which should be considered, in addition to the prospect of rehabilitation taken together with the personal deterrence provided by the threat of activation of the suspended sentence, are the perceived seriousness and intrinsic character of the particular offence (see Wood v Samuels (1974) 8 SASR 465; R v Kruger (1977) 17 SASR 214 at 221; R v Causby (at 62-67); R v Kirk (1984) 6 Crim App R (S) 231; GP, per Malcolm CJ (at 220), Murray J (at 234) and Steytler J (at 243), whether there is any element of persistence (see Wood v Samuels (at 468); R v Kruger (at 221)); general deterrence (Causby (at 62); factors personal to the offender including mitigating circumstances which, while no doubt already taken into account in arriving at the decision to impose imprisonment of a particular term, may have to be considered again as regards the question whether or not to suspend the period of imprisonment so arrived at (see R v P (1992) 39 FCR 276 at 285; R v Locke (1973) 6 SASR 298 at 302; Jarrett v The Queen (1992) 58 SASR 457 at 459; Scott v SA Police (1994) 61 SASR 589 at 592; cf R v Percy (at 72-73); the need to demonstrate the condemnation of the community for offences of that kind (Causby (at 62); GP, per Malcolm CJ (at 220); and reasons militating in favour of an exercise of mercy (R v Osenkowski (1982) 30 SASR 212 at 212-213; R v P (at 285); GP, per Murray J at 234).

That list is, of course, not exhaustive. There can, in the very nature of the exercise which must be undertaken, be no comprehensive list of specific criteria (cf Wood v Samuels (at 468)) and the factors to be taken into account, and their relative importance in any given case, will necessarily vary with the differing circumstances of each case."

(Page 14)

21 Counsel for the appellant, in the case under appeal, submitted to the learned Judge that any sentence of imprisonment should be suspended.

22 In my opinion, the learned Judge, first, considered whether a term of imprisonment should be imposed and, having decided to impose a term of imprisonment, then considered whether the term should be suspended. Her Honour, in determining whether to suspend, revisited adequately the considerations that were relevant to the imposition of the term of imprisonment. I consider that her Honour examined adequately all the matters relevant to the circumstances of the offence, in addition to those personal to the appellant. Her Honour referred to the circumstances of the offence, the seriousness of the offence, the impact of the offence on the complainant, the requirement of general deterrence, the appellant's fast-track plea of guilty, and numerous matters personal to the appellant including mitigating circumstances. Her Honour said:

"For all of those reasons I do consider that a term of imprisonment is the only appropriate option and I do consider that an immediate term of imprisonment is the only appropriate option … "

23 In my opinion, the appellant has not established ground 1.

Ground 2

24 Before this Court, counsel for the appellant said, in relation to the 2 year term of imprisonment:

" … I concede the term of imprisonment is within the range of discretion and within a range of sentences in a case where a glass is thrown and I also concede that a broken glass was thrown and I also concede that it is a serious offence which resulted in a serious injury …"

25 Counsel's written submission was that in deciding whether to suspend the sentence, the learned Judge failed to give any or sufficient weight to the following:

"(a) factors personal to the [appellant] including a plea of guilty at an early opportunity, remorse, the absence of prior convictions

(b) the contents of the pre-sentence report and the character references,

(Page 15)

(c) the prospects of rehabilitation taken together with the personal deterrence provided by the threat of activation of a suspended sentence,

(d) the fact of steady continuing employment or good prospects of education or employment and

(e) whether the conduct appeared to be wholly out of character and carried consequences beyond what had been intended by the [appellant]".

26 In my opinion, the learned Judge did not fail to give proper consideration to those considerations. Further, her Honour did not give undue or excessive weight to the seriousness of the offence, the need for general deterrence, the consequences of the injury to the complainant, the contents of his victim impact statement, or the fact that the appellant was only 1 to 2 metres from the complainant when he threw the glass. The offence was, without doubt, serious, in that:

(a) the complainant was merely carrying out his duties as a crowd controller;

(b) a crowd controller is vulnerable to assault;

(c) the appellant joined in the confrontation between his friend and the complainant even though he was not involved in the matter in dispute;

(d) the appellant admitted in a videotaped record of interview with police officers that when he picked up the glass to throw it at the complainant, he knew the glass was broken;

(e) the appellant threw the glass at the complainant from a distance of 1 to 2 metres; and

(f) the complainant lost his right eye, and that has had a major impact on his ability to carry on his business and support his family.

27 The fact the appellant knew the glass was broken when he threw it at the complainant from a distance of 1 to 2 metres is an especially serious feature of the case.

(Page 16)

28 Counsel for the appellant referred to Etrelezis v The Queen [2001] WASCA 327. In Etrelezis the Court of Criminal Appeal allowed an appeal against a term of imprisonment of 3 years, to be served immediately, for an offence of unlawfully causing grievous bodily harm. The Court held that the sentence was manifestly excessive and ordered that, while the term of imprisonment should remain, the term should be suspended for a period of 1 year. In my opinion, Etrelezis is distinguishable on the facts. In that case, the applicant was at a hotel in Scarborough. The complainant squeezed past a group of people and accidentally bumped the applicant, causing him to spill his drink onto a girl with whom he was having a conversation. There was an argument between the applicant and the complainant. The complainant head-butted the applicant. The applicant, in retaliation, punched the complainant in the eye with the hand that was holding his glass. By contrast, in the case under appeal, the complainant did not, in any sense, provoke the appellant's attack, and the appellant knew the glass was broken when he threw it at the complainant.

29 In my opinion, the learned Judge gave appropriate weight to all relevant considerations, whether favourable or unfavourable to the appellant. Her Honour's sentencing discretion did not miscarry. The sentence imposed on the appellant was not manifestly excessive. Ground 2 has not been made out.

Conclusion

30 The appeal should be dismissed.