Cotterill v The State of Western Australia - [2013] WASCA 52

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: COTTERILL -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 52

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 22 NOVEMBER 2012

DELIVERED : 26 FEBRUARY 2013

FILE NO/S: CACR 42 of 2012

BETWEEN: CLINTON SHANE COTTERILL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JENKINS J
File No  :INS 22 of 2011

Catchwords:

Criminal law - Appeal against sentence - Armed assault with intent to rob - Grievous bodily harm - Manifest excess - Overlap between circumstances of aggravation for one offence and circumstances of the offending for another offence - Double punishment - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 31(5)(a)
Criminal Code (WA), s 297, s 393
Sentencing Act 1995 (WA), s 9AA, s 11(1)

Result:

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr S D Freitag
Respondent: Mr J A Scholz

Solicitors:

Appellant: Nick Lemmon
Respondent: Director of Public Prosecutions (WA)

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

Eves v The State of Western Australia [2008] WASCA 7
Forkin v The State of Western Australia [2013] WASCA 51
Johnson v The Queen (2004) 78 ALJR 616
Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396
McColgan v Scanlan (1997) 26 MVR 223
Moore v The Queen (1995) 15 WAR 87
Phillips v Carbone (No 2) (1992) 10 WAR 169
R v Cutler [2008] WASC 208
Trompler v The State of Western Australia [2008] WASCA 265

McLURE P: This is an application for an extension of time to appeal and an appeal against sentence. The delay is adequately explained and an extension of time should be granted. The appellant was convicted on his fast‑track pleas of guilty of one count of armed assault with intent to rob contrary to s 393 of the Criminal Code (WA) (Code) (count 1) and two counts of causing grievous bodily harm contrary to s 297 of the Code (counts 2 and 3).
On 2 September 2011 the appellant was sentenced by Jenkins J to a term of imprisonment of 8 years on count 1, 5 years on count 2 and 3 years 6 months' on count 3. The sentences on counts 2 and 3 were ordered to be served cumulatively, with the sentence on count 1 to be served concurrently, resulting in a total effective sentence of 8 years 6 months' imprisonment.
The appellant relies on four grounds of appeal. He claims the sentencing judge erred in (1) refusing to accept the opinion of Dr Patchett that the appellant was suffering from auditory hallucinations before and during the offending which were linked to his offending; (2) imposing a manifestly excessive sentence on count 3; (3) ordering cumulation of the sentences on counts 2 and 3; and (4) imposing a manifestly excessive sentence on count 1. Leave to appeal was granted on ground 3. The application for leave on grounds 1, 2 and 4 was referred to the hearing of the appeal.
The facts found by the sentencing judge are as follows. On 26 December 2010 the appellant and two co‑offenders, Gary Simpson and David Hall, agreed and planned to steal cash and property from a hardware store in Broome. Hall, an employee of the store, provided the appellant and Simpson with information regarding the security of the premises and the potential amount of cash that might be present after a long weekend. The appellant was aware that his offending would in all likelihood require him to confront somebody at the store.
At about 5.15 pm on 28 December 2010 the appellant and his co‑offenders drove to the hardware store. Ms Lee, the complainant in respect of count 2, was the sole employee at the store at that time. She was attending to Ms Chin, a customer, and the victim in respect of count 3. They were in the trade area of the shop. The appellant had in his possession a large maglite torch. The appellant told his co‑offenders on the way to the store that he could use the torch to threaten any person if they were disturbed whilst in the store. The sentencing judge accepted that prior to entering the premises the appellant did not intend to actually use the weapon to inflict injury.
The appellant and Simpson, who were wearing hats and sunglasses to conceal their identities, went to the trade door which was opened by Ms Lee. Both of them gave her a false name. Ms Lee had turned to walk inside the trade door when the appellant hit Ms Lee across the head with the maglite torch causing her to fall to the ground. The appellant then ran inside the store to where Ms Chin was standing. The appellant hit Ms Chin across her head with the torch three times, causing her to fall to the ground and momentarily lose consciousness. Ms Chin suffered severe blood loss from lacerations caused by the assault. The appellant then returned to Ms Lee, who was attempting to sit up, and struck her several more time across her head with the torch.
The appellant and the two co‑offenders returned to the motor vehicle and drove from the hardware store. They left without stealing any property. After changing vehicles, the appellant drove to a bush area north of Broome and burnt items of his clothing to avoid identification and to destroy possible evidence. The three co‑offenders then drove to a hotel where they were alerted to the fact that police were making inquiries and realised that they had been identified as suspects.
The three co‑offenders decided to leave Broome by car. The appellant and Hall decided to attempt to commit suicide. Simpson did not want to do so and was dropped off at the Roebuck roadhouse. He contacted police and advised them of his location.
The appellant purchased a large amount of panadol which he took. With police pursuing their vehicle, Hall crashed it into a building with the purpose of ending his and the appellant's life. The trial judge found that the appellant formed his intention to commit suicide soon after realising he was a suspect. He made full admissions to police.
The appellant caused serious injuries to Ms Lee. She suffered, amongst other things, an extensive displaced depressed skull fracture, multiple scalp lacerations, significant facial fractures and a fractured right forearm. She spent seven days in intensive care in hospital and underwent extensive surgical intervention. Thereafter, further surgery was required to restore a portion of her skull. At the time of sentencing Ms Lee still had some motor impairment and had yet to be advised whether it would be permanent.
Ms Chin received three lengthy lacerations to the top of her head, two of which penetrated to the bone. The sentencing judge found that the physical injuries inflicted by the appellant had also caused significant psychological and financial problems for both victims and concluded that their lives had been irreparably damaged by the appellant's offending.
At an earlier hearing, the same sentencing judge sentenced the appellant's co‑offenders to terms of imprisonment of 5 years on count 1, 2 years 6 months on count 2 and 2 years on count 3. She ordered that those sentences be served concurrently, resulting in a total effective sentence of 5 years' imprisonment.
The sentencing judge accepted that at the time of the offending the appellant was suffering from a depressive illness but did not accept that he was suffering from a psychosis or auditory hallucinations at that time.
The appellant was aged 23 at the time of sentencing. He attended school until the end of year 12 and was unemployed for some time before working in the security industry. The appellant was single and lived at home with his parents. He had a long history of significant alcohol and drug abuse and had continuously used anabolic steroids since he was 20. The sentencing judge found that the appellant's voluntary drug abuse contributed to his subsequent mental health problems. The appellant had no prior criminal record.
The sentencing material included psychiatric reports from Dr M Hall and Dr S Patchett and a psychological report from Mr D Summerton. Dr Hall's opinion was that the appellant had an antisocial personality disorder and an adjustment disorder with depressed mood. However he assessed the appellant as an unreliable historian and had a high degree of suspicion that the appellant had feigned some psychotic symptoms (auditory hallucinations) in order to better his position. He assessed the appellant as at a high risk of future violence without intervention.
Mr Summerton assessed the appellant as having exaggerated certain negative aspects of his functioning. By contrast, Dr Patchett's assessment was that at the time of the offending the appellant was suffering from a depressive psychosis and was hearing a dead friend's voice telling him to hit the victims.
The sentencing judge did not accept either of the conflicting opinions of Dr Hall or Dr Patchett. She sentenced the appellant on the basis that at the time of the offences he was suffering a depressive illness associated with the death of his friend. She also accepted that by the time of sentencing the depressive illness may have developed into something more serious that could be described as a psychosis which may have led to him hearing hallucinations after the offences were committed.
After stating the sentences for the individual offences committed by the appellant, the sentencing judge said:
I now turn to the question of whether those sentences should be served concurrently or cumulatively upon one another. The offences on the one hand arise out of the same incident, but counts 2 and 3 address quite separate acts of violence. There is no overlap in that sense.
I also take into account however that the facts of counts 2 and 3 are to some extent included in the facts in respect of count 1.
My judgment is that the sentences on counts 2 and 3 ought to be served cumulatively on one another making a total sentence of 8 1/2 years' imprisonment. The sentence on count 1 ought to be served concurrently with those two sentences [59] ‑ [61].

Ground 1

There is no merit in ground 1. The appellant bore the onus of establishing that he was suffering psychotic symptoms (ie auditory hallucinations) before and during the offending. There was conflicting expert evidence on that subject. Moreover, as the sentencing judge noted, the appellant gave a frank account to police of what happened and why he offended which did not include any reference to auditory hallucinations [25]. Leave to appeal on this ground should be refused.

Ground 2

The appellant must establish that the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess depends upon establishing the implication of an error from the sentence itself.
The maximum penalty for the offence of doing grievous bodily harm is 10 years' imprisonment. Sentences customarily imposed for that offence where there has been a plea of guilty range from 8 months to 5 years 4 months' imprisonment: Trompler v The State of Western Australia [2008] WASCA 265 [38].
Having regard to all the circumstances of the offending, the sentence of 3 years 6 months' imprisonment is not manifestly excessive. The appellant struck Ms Chin on the skull repeatedly with a weapon which caused her to suffer severe blood loss and which endangered her life. The offence was committed in the course of an intended robbery. The appellant had taken the torch with him as a weapon to threaten any person if they were disturbed in the hardware store. The appellant's conduct was not responsive to anything but the victim's mere presence in the hardware store. The sentencing judge found that the appellant's offence caused significant psychological and financial problems and that the victim's life had been irreparably damaged as a result. Further, the appellant destroyed evidence to avoid detection.
Although the sentence is at the upper end of the sound discretionary range, it cannot be characterised as manifestly excessive. Ground 2 has no reasonable prospect of succeeding and leave to appeal should be refused.

Grounds 3 and 4

An element of the count 1 offence was that the appellant and his co‑offenders used violence in order to steal. The circumstances of aggravation were that the appellant was armed with an offensive instrument, was in company with Hall and Simpson and did bodily harm to Ms Lee and Ms Chin. Although a circumstance of aggravation is that the appellant did bodily harm to both victims, he would ordinarily be sentenced for the actual harm inflicted. Counts 2 and 3 were that on the same date and at the same place the appellant and his co‑offenders unlawfully did grievous bodily harm to Ms Lee and Ms Chin respectively.
The appellant contends that the 8‑year sentence on count 1 is manifestly excessive. The respondent defends what it describes as the severe sentence on count 1 by reference to the circumstances of the offending as a whole, including, in particular, the circumstances relevant to counts 2 and 3. That includes the nature, extent and effect of the violence inflicted by the appellant on Ms Lee and Ms Chin. The respondent is correct in its submission that all of the circumstances of the offending relating to counts 2 and 3 overlap with the circumstances relevant to the sentencing on count 1. Indeed, the sentence on count 1 would be manifestly excessive if it excluded any of the circumstances of the offending the subject of counts 2 and 3. On my reading of the reasons, in particular [60], the sentence of 8 years on count 1 reflected some but not all of the circumstances relating to counts 2 and 3. That being the case, I am satisfied it is manifestly excessive.
Moreover, the sentence on count 3 would also be manifestly excessive if all of the circumstances relating to the count 1 offence were ignored. There is also a significant commonality of relevant circumstances informing the appropriate sentence to be imposed on counts 2 and 3.
What emerges from this analysis is that very significant care had to be taken to avoid any double (or more) punishment in sentencing for these offences. There is no single correct mechanism for avoiding double punishment. It may be done, for example, by reducing the otherwise appropriate term or ordering partial or total concurrency: Johnson v The Queen (2004) 78 ALJR 616; Eves v The State of Western Australia [2008] WASCA 7; Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396.
I would infer from the length of the individual sentences that none was reduced to reflect all of the factual overlap. I am satisfied that the individual sentences imposed on the appellant reflect a level of double punishment that is impermissibly carried over in the total sentence by the order for cumulation. Accordingly, I would uphold grounds 3 and 4. The express errors enliven this court's jurisdiction to intervene and to set aside the individual sentences and the orders for cumulation and concurrence. This court has the necessary materials to re‑sentence the appellant.
The parties accept that s 9AA of the Sentencing Act 1995 (WA) applies to the resentencing of the appellant under s 31(5)(a) of the Criminal Appeals Act 2004 (WA).
As to the scope and effect of s 9AA, see Forkin v The State of Western Australia [2013] WASCA 51 [17] ‑ [23]. The respondent accepted that the appellant entered his pleas of guilty at the first reasonable opportunity.
It can be assumed, as the parties did, that s 11(1) of the Sentencing Act 1995 (WA) has no application. As to which, see R v Cutler [2008] WASC 208 [6] ‑ [8]; Phillips v Carbone (No 2) (1992) 10 WAR 169; Moore v The Queen (1995) 15 WAR 87; McColgan v Scanlan (1997) 26 MVR 223; Longbottom [39] ‑ [41].
As the sentencing judge identified, the appellant's offending was significantly mitigated by his fast‑track pleas of guilty, cooperation with police, relative youth, prior good character, mental illness and subsequent efforts in custody to address that illness.
However, the offences committed by the appellant are very serious and do require the imposition of a lengthy period of imprisonment. I

would take into account all the circumstances of the offending relevant to all offences in sentencing on count 1. Bearing in mind the need for parity with the sentences imposed on the co‑offenders, I would impose a term of imprisonment of 7 years 6 months on count 1. As to counts 2 and 3, I would impose sentences of imprisonment of 4 years 6 months and 3 years respectively, with all the sentences to be served concurrently. The head sentence for each offence has been reduced under s 9AA(2) for the plea of guilty to the extent of 25%.

Accordingly, I would grant an extension of time within which to appeal, refuse leave to appeal on grounds 1 and 2 and allow the appeal on grounds 3 and 4. I would set aside the orders made by the sentencing judge and in lieu thereof sentence the appellant to imprisonment for a term of 7 years 6 months on count 1, 4 years 6 months on count 2 and 3 years on count 3, the sentences to be served concurrently. The total sentence of 7 years 6 months is to commence on 29 December 2010. The appellant will be eligible for parole after serving 5 years 6 months.
BUSS JA: I agree with the orders proposed by McLure P. I agree with her Honour's reasons for allowing the appeal. I also agree with her Honour's proposed resentencing of the appellant.
MAZZA JA: I agree with McLure P.