Dadswell v The Queen
[2003] WASCA 212
•9 SEPTEMBER 2003
DADSWELL -v- THE QUEEN [2003] WASCA 212
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 212 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:209/2002 | 23 JULY 2003 | |
| Coram: | ANDERSON J STEYTLER J MCKECHNIE J | 9/09/03 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | EDWARD RONALD DADSWELL THE QUEEN |
Catchwords: | Criminal law Sentencing Grievous bodily harm No tariff for such an offence Plea of guilty Not at early opportunity Relevance of statutory maximum No new principles |
Legislation: | Nil |
Case References: | Bockfuss v The Queen, unreported; CCA SCt of WA; Library No 950063; 22 February 1995 Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Colledge v The Queen (2001) 33 MVR 262 Drage v The Queen, unreported; CCA SCt of WA; Library No 990098; 8 March 1999 Ellis v The Queen, unreported; CCA SCt of WA; Library No 930602; 5 November 1993 Etrelezis v The Queen [2001] WASCA 327 Hooper v The Queen [2000] WASCA 394 Jones v The Queen, unreported; CCA SCt of WA; Library No 920406; 31 July 1992 King v The Queen [1999] WASCA 9 Minhaj v The Queen [2000] WASCA 52 Munmeri v The Queen, unreported; CCA SCt of WA; Library No 8746; 1 March 1991 Newland v The Queen, unreported; CCA SCt of WA; Library No 960333; 20 June 1996 R v Hodges [1999] WASCA 278 R v Morse (1979) 23 SASR 98 R v O'Neil, unreported; CCA SCt of WA; Library No 960172; 29 March 1996 R v Woodley & Ors, unreported; CCA SCt of WA; Library No 940708; 16 December 1994 Rogers v The Queen [1999] WASCA 239 Ronan v The Queen, unreported; CCA SCt of WA; Library No 970073; 14 February 1997 Scott v The Queen, unreported; CCA SCt of WA; Library No 990004; 15 January 1999 Thompson v The Queen (1993) 8 WAR 387 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DADSWELL -v- THE QUEEN [2003] WASCA 212 CORAM : ANDERSON J
- STEYTLER J
MCKECHNIE J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Grievous bodily harm - No tariff for such an offence - Plea of guilty - Not at early opportunity - Relevance of statutory maximum - No new principles
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Category: D
Representation:
Counsel:
Applicant : Ms G A Archer
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Legal Aid of Western Australia
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bockfuss v The Queen, unreported; CCA SCt of WA; Library No 950063; 22 February 1995
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Colledge v The Queen (2001) 33 MVR 262
Drage v The Queen, unreported; CCA SCt of WA; Library No 990098; 8 March 1999
Ellis v The Queen, unreported; CCA SCt of WA; Library No 930602; 5 November 1993
Etrelezis v The Queen [2001] WASCA 327
Hooper v The Queen [2000] WASCA 394
Jones v The Queen, unreported; CCA SCt of WA; Library No 920406; 31 July 1992
King v The Queen [1999] WASCA 9
Minhaj v The Queen [2000] WASCA 52
Munmeri v The Queen, unreported; CCA SCt of WA; Library No 8746; 1 March 1991
Newland v The Queen, unreported; CCA SCt of WA; Library No 960333; 20 June 1996
R v Hodges [1999] WASCA 278
R v Morse (1979) 23 SASR 98
R v O'Neil, unreported; CCA SCt of WA; Library No 960172; 29 March 1996
R v Woodley & Ors, unreported; CCA SCt of WA; Library No 940708; 16 December 1994
Rogers v The Queen [1999] WASCA 239
(Page 3)
Ronan v The Queen, unreported; CCA SCt of WA; Library No 970073; 14 February 1997
Scott v The Queen, unreported; CCA SCt of WA; Library No 990004; 15 January 1999
Thompson v The Queen (1993) 8 WAR 387
Case(s) also cited:
Nil
(Page 4)
1 ANDERSON J: I have read the judgment of McKechnie J and agree with it. There is nothing I wish to add to his reasons for concluding that the appeal should be dismissed except to say that this was an extremely brutal attack on a young woman which has had very tragic and entirely predictable consequences. The appropriateness of a sentence is to be judged having regard for the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender: R v Morse (1979) 23 SASR 98; Thompson v The Queen (1993) 8 WAR 387 at 391-392. The maximum penalty for this offence is 10 years' imprisonment. By objective standards the level of criminality attending the particular offence was very high, taking the criminal conduct towards the highest end of the scale of seriousness of crimes of this type. The personal circumstances of the applicant are not especially extenuating and do not call for any special leniency. Whilst the term of imprisonment which was imposed on the applicant is longer than usual and may even be without precedent I am not persuaded that the sentence was manifestly excessive so as to require the intervention of this Court.
2 STEYTLER J: I have had the advantage of reading the reasons for decision of McKechnie J. I agree with them and wish only to add a few short comments in respect of that ground of appeal which contends that the sentence was manifestly excessive having regard, in particular, for the contention that the circumstances of the offence did not place it towards the top end of the scale.
3 It is important to make the point, in this context, that the maximum penalty, for any offence, is that provided for by the legislature, not by some "range" of sentences commonly imposed for offences of that kind. In this case the maximum penalty which could have been imposed was one of 10 years' imprisonment. As Anderson J has pointed out, the appropriateness of the sentence is to be judged having regard for that maximum, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender.
4 In my opinion, this was a bad case. It involved a brutal attack on a defenceless woman who was not previously known to her assailant. She was repeatedly bashed by the applicant, including by the use of his boot. As McKechnie J has pointed out, the consequence of this assault was that the complainant suffered multiple injuries with long-term consequences to
(Page 5)
- her cognitive functioning. In those circumstances, even given the mitigation provided for by the plea of guilty, and other matters referred to by counsel for the applicant, a sentence of 7 years' imprisonment was within discretion.
5 Consequently, while I, too, would grant leave, I would dismiss the appeal.
MCKECHNIE J:
Introduction
6 In the early hours of 20 October 2001 police and paramedics went to an arcade off Station Street in Cottesloe. There they found an adult female with extensive facial injuries, a laceration to the side and back of the head. She was unconscious. The applicant was in the vicinity, confrontational and aggressive. He had been drinking, but according to observation, was in control of himself. His speech was coherent. At the scene, however, the applicant made a series of contradictory statements regarding his relationship with the woman, referring to her at times as his girlfriend and at other times as his sister. He also told police at one point that he did not see any woman and did not know what they were talking about.
7 He was arrested and a few hours later in an interview recorded on video he claimed to have no memory of the event.
8 Subsequent to her admission and treatment in Sir Charles Gairdner Hospital, the complainant was diagnosed with a closed head injury, bruises around her right eye, below the left ear and on her chin. Her lips were swollen. Additional bruising was also noted in the area around her right shoulder and upper sternum. There was a laceration over the scalp on the occiput on the left side. Her stay at hospital was complicated by pneumonia. By 30 November 2001 she remained in post-traumatic amnesia, requiring assistance for transfers out of bed and mobilising with one person. She was able to feed herself on a modified soft diet and thickened fluids. Her injuries caused permanent cognitive and physical impairment.
9 The complainant was transferred to the Hampstead Rehabilitation Centre at Royal Adelaide Hospital Brain Injury Rehabilitation Service on 21 December 2001. Her family live in Adelaide. It was reported that although she was independently mobile, she required supervision walking outdoors as she had poor safety awareness for road crossing and got easily
(Page 6)
- lost. She had significant cognitive impairment, difficulties with sustained and divided attention, self-monitoring, space perception, topographical orientation, logical reasoning, dyscalculia and verbal short-term memory.
10 A very comprehensive report covering all aspects of her condition was prepared on 8 May 2002 by that Unit. Staff members of different disciplines compiled the report.
The history of the court proceedings
11 The applicant was arrested at 2.30 am on 20 October 2001 on a charge of assault occasioning bodily harm. He was committed to the District Court. On 4 February 2002 an order was made that there be an expedited trial and the trial date was set for 6 May 2002. By fresh indictment dated 6 May 2002, and delivered shortly before the trial, the prosecution preferred a count of doing grievous bodily harm with intent to do grievous bodily harm.
12 On 6 May 2002 the trial was adjourned, in part because of the late indictment, and in part due to the fact that various medical witnesses were required to give oral evidence.
13 On 21 June 2002 the trial was listed for 6 November 2002.
14 Following discussions between the applicant's counsel and the prosecution, the prosecution indicated it would accept a plea to grievous bodily harm in satisfaction of the indictment. The matter was thereupon listed before the Chief Judge on 17 October 2002 when the applicant so pleaded.
15 The prosecutor outlined the facts, pointing out to the Judge particular parts of the evidence which tied the applicant with the crime. The applicant claimed to have no recollection of the events until he was in police custody. The prosecutor told the Judge that forensic testing revealed that a hair wedged in the toe of the offender's left boot belonged to the complainant. Further, the accused's DNA was found mixed with that of the complainant in a sample taken from under the fingernails of the complainant's right hand and there were what appeared to be scratch marks on the applicant's head. The prosecutor also pointed to a blood splatter analysis of the scene which, she averred, suggested that at a point when the complainant was already injured, her head was struck against the glass door of the shops in the area causing a splattering of the blood up the window which was suggestive of at least two applications of force.
(Page 7)
16 Forensic evidence and photographs indicated marks on the complainant's head consistent with the sole of the applicant's boot.
17 Counsel for the applicant at sentencing (who was not counsel on the appeal) told the Judge that prior to the trial in May: "I did discuss with my learned friend for the Crown the possibility of a guilty plea." He asserted that the case was entirely circumstantial. He pointed out evidence which suggested that the applicant was severely intoxicated at the time of the offence and the offence was not premeditated, and no weapon was used.
18 In the course of his submissions, the Judge directed counsel's attention to the allowance which might be made for the plea of guilty:
"… you are submitting that of course credit should be allowed to the accused for his plea at this stage. I'm giving you the opportunity to address that further because, as I sit here, it is very difficult to see why - he is not penalised, must not be penalised in any way for the conduct of the matter to date; it becomes a question of the allowance of a credit. As I sit here, I find it difficult to see that and you are at liberty to address that if you wish."
19 Immediately following this observation by the Judge the accused interjected and said:
"Because I did not have a recollection of the totality of the event, I therefore had to have it proven to myself that I actually had done this.
…
Therefore, I couldn't say guilty to something that I could not remember doing, and therefore I had to explore it myself before I could come to any conclusion."
20 Counsel then continued:
"… there were discussions prior to or in a perhaps minute way but there were discussions with regard to a guilty plea. There were discussions prior to the trial; that is, prior to the date of trial which was 5 May last year, or there were discussions but I did not want to place myself in that position. …"
21 In due course in response the prosecutor said:
(Page 8)
- "… I should also make very clear that, at the time the matter was listed - in May - for trial, the crown made it very clear to the offender's legal representatives that the crown would accept a plea to a grievous bodily harm - was always willing to accept a plea to grievous bodily harm. …"
22 The Judge adjourned sentencing to 30 October 2002 when he delivered detailed sentencing remarks. He noted that in his view "the case against the offender is extremely strong and is buttressed by DNA evidence which would seem impossible to overlook". He specifically found:
"… he obviously imprinted his boot into her face by way of stomping upon her head and the evidence of that is undeniable from the photographs. …"
23 He noted the likelihood that the applicant was affected by alcohol and also that there was no evidence of any provocation by the complainant. In the course of his sentencing remarks the Judge made a reference to a letter written to him by the applicant on 21 October 2002 detailing his background and his problems with alcohol. The Judge detailed the applicant's record, noting significantly a conviction for assault occasioning bodily harm in February 1994 and in September 1994 a further offence of occasioning bodily harm. Each of those convictions was dealt with by fine. In 1996 the applicant was convicted in the District Court of unlawful wounding, assaulting a public officer, deprivation of liberty and resisting arrest for which he received a total sentence of 18 months imprisonment. In addition he had a series of alcohol related traffic offences.
24 The Judge specifically adverted to the plea of guilty and the time at which it was made. He said:
"The accused for his part makes it clear that they were at all times prepared to plead guilty to the alternative or lesser offence than grievous bodily harm. The offender says that he needed time and evidence to convince himself that he had committed this terrible offence. I am still not able to see why the medical evidence appeared to cause some difficulty, particularly in the light of the injuries suffered by the victim. Notwithstanding that, however, the offender is entitled to some consideration by virtue of his eventual plea.
(Page 9)
- I do note, however, that one of the medical reports from South Australia speaks of the concern that the victim had when she expected to have to be brought back to Western Australia for the trial to re-live the incident. She has now been in suspense for a period of one year."
25 The Judge concluded his sentencing remarks as follows:
"I am dealing with an offence for which the maximum term of imprisonment that can be imposed is that of 10 years. This offending is close to the top of the range, but I do make an allowance for the eventual plea of guilty. At the end of the day, therefore, after due consideration of these matters and all matters raised in mitigation as far as the offender is concerned, whether made previously or today, I reach the conclusion that this offence is of such gravity that a term of 7 years' imprisonment is necessarily to be imposed."
26 The Judge backdated the sentence to the time of arrest and made the offender eligible for parole.
The appeal
27 The applicant seeks leave to appeal on three grounds, two of which relate to errors said to have been made by the Judge and the third on the basis that the sentence was manifestly harsh and excessive having regard to all the circumstances. That ground was not particularised. We were invited to treat par 23 of the written submissions as particulars. That paragraph reads:
"… the circumstances of the offence did not place it towards the top end of the scale."
28 In the circumstances I will do so, although this is not a satisfactory way of proceeding but is becoming common. The particulars should be in the pleaded grounds of appeal.
The delay in pleading guilty leaving the victim living in suspense
29 It is asserted that the sentencing discretion miscarried because the Judge took into account the delay in pleading guilty, which left the victim to live in suspense when in fact she was not a witness listed on the indictment and was not to be called as a witness.
(Page 10)
30 I have referred to the passage set out by the Chief Judge. It immediately follows an acceptance by him that the applicant was entitled to some consideration by virtue of the eventual plea. The reference made by the Judge was to the report of 8 May 2002 from the Hampstead Rehabilitation Centre. Under the heading "FINANCE/LEGAL" prepared apparently by a social worker, the author notes:
"Detective Jason Leach from Perth CIB … has continued to update information about the progress of Meredith's case in the judicial system. Detective Leach has been in regular contact with Hampstead and Meredith's family. He has reported that the alleged assailant had pleaded not guilty and a trial date for the 6th of June 2002 in the Perth District Court has been arranged and this is expected to continue for a week. An earlier trial set for 6 May was aborted. He has advised that the alleged assailant is still in custody and that he is hoping for a plea of guilty. If this does not eventuate between now and 6 June 2002 it may be that Meredith will need to attend the trial. Meredith is very fearful of this and has stated that she is dreading going over the details of the assault."
31 The applicant submits that any stress caused to the complainant was as a result of misinformation supplied by the investigating officer and therefore there is no reason to reduce the mitigating effect of the plea of guilty.
32 Although the complainant was not named on the indictment, while there was a prospect of a trial, there remained a possibility that she may nevertheless be called as a witness. This may have been a reasonable possibility in this case. It appears that there had been an agreement for evidence from medical practitioners to be read without the necessity of their attending to give evidence. That agreement was withdrawn on 6 May 2002 when defence counsel indicated that the prosecution would be put to proof on the issue of grievous bodily harm. In these circumstances, the effect on the complainant of a prospective trial may well have caused stress. A more timely plea of guilty would have removed the possibility of stress. In any event, read in context, I do not consider the Judge gave this factor undue weight.
(Page 11)
Failure to give adequate credit to the applicant's guilty plea
33 The second specific error which is asserted is that the Judge failed to give adequate credit to the guilty plea and remorse thereby causing the sentencing discretion to miscarry.
34 I have set out the course of the litigation leading to the eventual plea. The principles relating to a reduction of sentence in response to a plea of guilty have been recently stated in Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339.
35 It must be accepted that this was not a plea at the earliest available opportunity entitling the applicant to the maximum reduction which such an early plea may have justified. Nor, in the circumstances, can it be regarded as a plea made "at the door of the court". The Judge was not obliged to assign a specific amount by way of reduction for the plea. The applicant was unable to plead to the new indictment until such time as the Crown indicated they were prepared to accept that plea in satisfaction of it. On the information available to the Judge, the Crown had been prepared to accept such a plea in May 2002.
36 The only reason which appears to have been advanced for the delay from then is the need for the applicant to come to terms with the consequences of his actions. This comes out clearly in the letter he wrote to the Judge on 21 October 2002 where he states that he asked his lawyer to communicate with again the DPP in early September. The delay is understandable in those terms, however, the reality is that, for whatever reason, there was no plea entered for some considerable period after arrest.
37 The Judge specifically noted that the applicant would not be penalised for a late plea and that he was entitled to consideration by virtue of the plea.
38 In the circumstances, I am not persuaded that the applicant has established any error by the trial Judge on this ground.
The sentence was manifestly excessive because the circumstances of the offence did not place it towards the top end or the scale
39 In advancing this aspect of the case, counsel for the applicant referred to a number of authorities of this Court she suggested established some degree of tariff for the offence of grievous bodily harm, that tariff being between 3 and 5 years.
(Page 12)
40 There are a number of things which might be said about this submission. The first is that there was an alteration to the penalty provisions in 1998. The maximum penalty was increased from 7 years to a term of 10 years. Authorities prior to the amendment must therefore be viewed with caution. Moreover, the courts must recognise the legislative intention to increase the range of sentences.
41 In Jones v The Queen, unreported; CCA SCt of WA; Library No 920406; 31 July 1992 Owen J (Malcolm CJ and Ipp J agreeing) said:
"There is no tariff for this offence and neither, in my opinion, should there be. The facts relevant to any particular act of grievous bodily harm will be pivotal in reaching a decision as to the relative seriousness of the crime. For these reasons, reference to other sentences and other cases will be of limited utility."
42 Owen J examined a number of authorities before concluding at 15:
"In my opinion it is quite impossible to extract from these authorities anything resembling a tariff. Each case depends on its own particular circumstances. The most that can be said is that a sentence in the range of 3 to 5 years is not inconsistent with the standards of sentencing customarily observed for the crime of unlawfully doing grievous bodily harm. "
43 In the event the Court of Criminal Appeal imposed a sentence of 4 years on Jones. That decision was before the expanded maximum penalty.
44 With respect, I agree with the views expressed by Owen J which I note were cited with approval by Malcolm CJ (Wallwork and Templeman JJ agreeing) in Etrelezis v The Queen [2001] WASCA 327.
45 The word "tariff" is apt to confuse. The most that might be said is that there is a range of sentences ordinarily imposed for the offence of grievous bodily harm. This recognises that there may be sentences beyond the common range whether above or below, due to particular circumstances. The fact that a sentence falls outside the common range does not, without more, make that sentence manifestly wrong. There must also be something in the circumstances which indicates that the Judge's discretion has miscarried in the resulting sentence.
(Page 13)
46 Notwithstanding the limitations on examination of other sentences and the caution against examining sentences for a range prior to 1998, I have nevertheless read the decisions to which counsel for the applicant has referred, namely Jones v The Queen; R v O'Neil, unreported; CCA SCt of WA; Library No 960172; 29 March 1996; R v Hodges [1999] WASCA 278; Colledge v The Queen (2001) 33 MVR 262 and Etrelezis. In addition, I have referred to Drage v The Queen, unreported; CCA SCt of WA; Library No 990098; 8 March 1999; Rogers v The Queen [1999] WASCA 239; Minhaj v The Queen [2000] WASCA 52; Hooper v The Queen [2000] WASCA 394; King v The Queen [1999] WASCA 9; Bockfuss v The Queen, unreported; CCA SCt of WA; Library No 950063; 22 February 1995; Munmeri v The Queen, unreported; CCA SCt of WA; Library No 8746; 1 March 1991; Ronan v The Queen, unreported; CCA SCt of WA; Library No 970073; 14 February 1997; Ellis v The Queen, unreported; CCA SCt of WA; Library No 930602; 5 November 1993; Newland v The Queen, unreported; CCA SCt of WA; Library No 960333; 20 June 1996; Scott v The Queen, unreported; CCA SCt of WA; Library No 990004; 15 January 1999; R v Woodley & Ors, unreported; CCA SCt of WA; Library No 940708 and 16 December 1994.
47 It is unnecessary to set out the detailed facts and circumstances of each case. Suffice to say that the cases do not suggest a particular pattern of sentences but confirm the view expressed that there is no tariff for this offence. As much as can be discerned, there is a trend to higher sentences where the grievous bodily harm results in long-term and significant injury. The other matter which can be discerned from a review of the authorities of this Court is that the present sentence of 7 years is longer than was previously imposed for an offence of doing grievous bodily harm.
48 The Judge characterised this offending "as close to the top of the range". By that I consider he regarded the particular circumstances of the offence of assault which included stomping on her head of a stranger late at night, causing multiple injuries and the long-term consequences to the cognitive functioning of the complainant such that the case was approaching the worst case in its category. Nevertheless, he took into express account to some extent the plea of guilty and matters of mitigation.
49 The sentence imposed is 70 per cent of the maximum sentence allowable.
50 While recognising immediately that the sentence was a severe sentence, I am unable to conclude that the sentence is so manifestly
(Page 14)
- excessive as to demonstrate error in the exercise of the discretion entrusted to the Judge. While I would grant leave, I would nevertheless dismiss the appeal.
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