De Alwis v The State of Western Australia [No 2]
[2015] WASCA 42
•10 MARCH 2015
DE ALWIS -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2015] WASCA 42
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 42 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:274/2012 | 10 DECEMBER 2014 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 10/03/15 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Applications for extension of time dismissed Appeals dismissed | ||
| B | |||
| PDF Version |
| Parties: | VIJITHA GAMINI DE ALWIS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application to set aside order dismissing conviction appeal Act as a result of which bodily harm was caused Defences of unwilled act, selfdefence and accident Refusal of adjournment Adequacy of directions by trial judge Whether conduct of trial unfair Recusal application Turns on own facts Application to set aside order dismissing sentence appeal Manifest excess Consideration of relevant and irrelevant facts Whether denial of procedural fairness Turns on own facts |
Legislation: | Criminal Code (WA) Supreme Court (Court of Appeal) Rules 2005 (WA) |
Case References: | Armstrong v The State of Western Australia [2012] WASCA 42 Bahar v The Queen [2011] WASCA 249 Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 De Alwis v De Alwis (Unreported, WASC, Library No 930439, 12 August 1993) De Alwis v Department of Housing and Works [2006] WASC 14 De Alwis v Gaffin (Unreported, WASC, Library No 970728, 8 December 1997) De Alwis v Legal Practitioners Complaints Committee [2002] WASCA 33 De Alwis v The State of Western Australia [2014] WASC 161 Delavale v The State of Western Australia [2009] WASCA 111 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Galea v Galea (1990) 19 NSWLR 263 Hill v The Queen [2003] WASCA 177 Hinkley v The State of Western Australia [2014] WASCA 122 Holden v The State of Western Australia [2009] WASCA 50 McLeod v The State of Western Australia [2009] WASCA 233 Michael v The State of Western Australia [2007] WASCA 100 Miles v The State of Western Australia [2010] WASCA 93 Re a Practitioner [2003] WASCA 172 Ryan v The State of Western Australia [2011] WASCA 7 The Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198 The State of Western Australia v BLM [2009] WASCA 88 The State of Western Australia v Munda [2012] WASCA 164 The State of Western Australia v Redman [2009] WASCA 1 The State of Western Australia v Wallam [2008] WASCA 117 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DE ALWIS -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2015] WASCA 42 CORAM : McLURE P
- BUSS JA
MAZZA JA
- CACR 275 of 2012
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WISBEY DCJ
File No : IND 1086 of 2011
Catchwords:
Criminal law - Application to set aside order dismissing conviction appeal - Act as a result of which bodily harm was caused - Defences of unwilled act, selfdefence and accident - Refusal of adjournment - Adequacy of directions by trial judge - Whether conduct of trial unfair - Recusal application - Turns on own facts
Application to set aside order dismissing sentence appeal - Manifest excess - Consideration of relevant and irrelevant facts - Whether denial of procedural fairness - Turns on own facts
Legislation:
Criminal Code (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)
Result:
Applications for extension of time dismissed
Appeals dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms A C Longden
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Armstrong v The State of Western Australia [2012] WASCA 42
Bahar v The Queen [2011] WASCA 249
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
De Alwis v De Alwis (Unreported, WASC, Library No 930439, 12 August 1993)
De Alwis v Department of Housing and Works [2006] WASC 14
De Alwis v Gaffin (Unreported, WASC, Library No 970728, 8 December 1997)
De Alwis v Legal Practitioners Complaints Committee [2002] WASCA 33
De Alwis v The State of Western Australia [2014] WASC 161
Delavale v The State of Western Australia [2009] WASCA 111
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Galea v Galea (1990) 19 NSWLR 263
Hill v The Queen [2003] WASCA 177
Hinkley v The State of Western Australia [2014] WASCA 122
Holden v The State of Western Australia [2009] WASCA 50
McLeod v The State of Western Australia [2009] WASCA 233
Michael v The State of Western Australia [2007] WASCA 100
Miles v The State of Western Australia [2010] WASCA 93
Re a Practitioner [2003] WASCA 172
Ryan v The State of Western Australia [2011] WASCA 7
The Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198
The State of Western Australia v BLM [2009] WASCA 88
The State of Western Australia v Munda [2012] WASCA 164
The State of Western Australia v Redman [2009] WASCA 1
The State of Western Australia v Wallam [2008] WASCA 117
1 McLURE P: These are applications to set aside orders dismissing the appellant's conviction appeal and his sentence appeal and for an extension of time to file an appellant's case in both appeals.
2 These appeals have a long and sorry procedural history. On 16 August 2012 the appellant was convicted after a nine day trial of an offence against s 304(2) of the Criminal Code (WA) (the Code), being that on 4 April 2011 at East Perth the appellant, with an intent to harm Liyanage Chulasubadra Perera (the complainant), did an act as a result of which bodily harm was caused to her. On 16 November 2012, Wisbey DCJ sentenced the appellant to 4 years 9 months' imprisonment for the offence.
3 The appellant filed notices of appeal against conviction and sentence on 5 December 2012. The appeal against conviction was around three months out of time. Under r 32(2)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules) the appellant was required to file his appellant's case within 35 days after the date on which the appeal notice was filed. He failed to do so.
4 Following the failure to comply with orders in both appeals made on 26 March 2013 and 17 April 2013 to file his appellant's cases, the appeals came before Mazza JA on 3 May 2013.
5 On 3 May 2013 Mazza JA ordered in each appeal that:
Pursuant to r 43(2)(g)(ii) of the [Rules] the appeal be dismissed unless the appellant files and serves the appellant's case by 4.00pm on 20 May 2013.
6 An application by the appellant for bail pending appeal was adjourned pending the filing of the appellant's case.
7 On 21 May 2013 the court ordered that, the appellant not having filed the appellant's cases by 20 May 2013 pursuant to the orders of Mazza JA on 3 May 2013, the appeals be dismissed. There is a certificate of conclusion of criminal appeal in respect of both appeals.
8 On 27 February 2014, an application was filed in each appeal for the springing order to be set aside and the appellant to be granted an extension of time (the extension applications). The extension applications are supported by an affidavit of the appellant sworn on 4 December 2013.
9 On 10 April 2014, the extension applications were listed for hearing before a coram of three. During the course of the hearing, the court heard from Mr G McIntyre SC. Mr McIntyre informed the court that he was not acting for the appellant and did not have an instructing solicitor but that the appellant had been provided with sufficient legal aid for Mr McIntyre to provide an opinion on the merits of the conviction appeal (ts 36). In those circumstances, the court adjourned the hearing of the extension applications. It also ordered that the appellant file an appellant's case within 28 days.
10 On 17 April 2014, the appellant filed an appellant's case in his appeal against conviction and an appellant's case in his appeal against sentence. It appears legal aid was refused. The appellant's cases are signed by the appellant.
11 The adjourned hearing of the extension applications was listed for 3 June 2014. On 13 May 2014 the appellant filed an application to vacate the hearing on 3 June 2014. That application was supported by an affidavit sworn on 9 May 2014. After hearing from the appellant, on 15 May 2014 the court dismissed the application.
12 Subsequently, the hearing on 3 June 2014 was adjourned due to the appellant undergoing surgery. The extension applications were listed for hearing on 10 December 2014. The appellant was represented by his daughter, a legal practitioner admitted to practice in this jurisdiction, for most of the hearing. The appellant appeared in person for the balance of the hearing.
Extension of time
13 There are multiple aspects to the appellant's conduct. The first is his failure to commence the appeal against conviction within time. The second is his failure to comply with the Rules and with three court orders for the filing of the appellant's cases. The third is the delay simpliciter, which is gross. There are three periods of delay, the first ending on 20 May 2013, when the appeals were dismissed, the second ending on 27 February 2014 when the extension applications were filed, and finally the delays following the filing of the extension applications.
14 The only sworn evidence explaining the delay is the appellant's affidavit of 4 December 2013. The affidavit contains little relevant information and much irrelevant detail. In essence, the gross delay is unexplained. Accordingly, the appellant's extension applications must be dismissed unless he can establish that there has been a miscarriage of justice which would warrant the court setting aside the verdict or the sentence: Ryan v The State of Western Australia [2011] WASCA 7 [4]; McLeod v The State of Western Australia [2009] WASCA 233 [79].
15 This is not the first occasion of conduct of this character. The appellant has been a party to a number of proceedings in this court and has a long history of seeking extensions of time and/or adjournments of hearings of courts and other tribunals invariably on the basis of ill health. See TheLegal Practitioners Complaints Committee v De Alwis [2006] WASCA 198 [11], [13], [15], [26], [29], [34], [36] - [37], [40] - [47], [51], [53], [58] - [59], [61], [100] - [102]; Re a Practitioner [2003] WASCA 172 [3] - [4], [46]; De Alwis v Legal Practitioners Complaints Committee [2002] WASCA 33 [9] - [12]; De Alwis v Department of Housing and Works [2006] WASC 14 [13]; and De Alwis v Gaffin (Unreported, WASC, Library No 970728, 8 December 1997).
16 As is apparent from some of the above references, hearings have on occasions been interrupted and adjourned as a result of the appellant collapsing or otherwise exhibiting symptoms of acute ill health.
The conviction appeal - background
17 The trial also had a chequered history. It is summarised by the trial judge as follows. Originally, the appellant's trial was listed for hearing on 12 to 15 March 2012. The offender was represented at that trial by an experienced criminal barrister, Mr Ken Bates. The appellant sought an adjournment of that trial which was refused. The trial proceeded almost to the conclusion of the State case when the offender complained of cardiac difficulties and was taken to hospital. The appellant then dismissed Mr Bates, who had been assigned to him as a result of a legal aid assignment.
18 The matter was then listed for trial on 28 May 2012. On that date, another legal practitioner, Ms Monck, appeared for the appellant and indicated to the court that she had not had the opportunity to master the brief. The trial was then adjourned to 6 August 2012.
19 On 6 August 2012 the appellant was represented by Ms Monck who had briefed a barrister, Ms Prince. On that date, the appellant terminated the services of both lawyers and the trial proceeded with the appellant representing himself. He is legally qualified but has been struck off the register of legal practitioners.
20 The charge in the indictment for which he was tried was that he, with intent to maim, disfigure, disable or do some grievous bodily harm to the complainant, unlawfully wounded her contrary to s 294(1) of the Code. The appellant was found guilty of the lesser, alternative offence under s 304(2) of the Code.
21 The trial judge provided an accurate summary of the evidence at trial, commencing with that of the complainant, the appellant's wife. The complainant's evidence in the first trial was visually recorded and tendered as her evidence in the second trial. As to which, see Evidence Act 1906 (WA), s 106R(4)(c), s 106N(2) and s 106T(2). Her evidence was to the following effect. The complainant met the appellant as a result of a marriage proposal column in a Sri Lankan newspaper. The two married and the complainant came to Perth in November 2007. The appellant was very controlling and they separated on 27 October 2010 after an incident when the appellant called her, among other things, a common prostitute. The appellant's evidence was that he showed her the door. Thereafter the appellant sent the complainant many text messages and gifts. On 25 November 2010 she obtained a violence restraining order.
22 On 4 April 2011 between 7.45 am and 8.00 am the complainant was waiting outside her residence in Bishops Row, East Perth, for her lift to work when she saw the appellant running out of an undercover car park towards her, carrying a shovel above his head. She ran towards him thinking that she could grab the shovel, but he struck at her head with it and she fell to the ground unconscious. She said:
At the time that you could see that it was [the appellant], could you see his face or not?---Yes, I could see his face, very angry face. He was biting his lips and I thought he was going to kill me.
What did he then do?---And he was running fast towards me and then I had, actually, nowhere to go, and I thought - I thought I ran towards him thinking that I was able to grab the shovel before he hits me. And I was running - running this way, and - - -
How far did you get?---And I could come round here at the edge - edge of the road, maybe, close to this place. But I was too late, he hit me with the shovel on my forehead, here. And head, here; from here to here. There's a huge cut and he hit me with the shovel (ts 983).
23 In cross-examination the complainant stated that immediately before the assault she was standing on the Wellington Street side of Bishops Row and the car park from which the appellant emerged was on the other side. When she ran towards to the appellant, she met him on the car park side of Bishops Row. She denied that she ran towards him demanding the shovel and threatening to kill him. She did not observe the appellant was carrying a meat cleaver. She denied that she managed to grab the shovel and that as she did so the shovel flew up and came into contact with her forehead. The complainant agreed that there had been no prior physical violence between them, the principal problem being the appellant's accusations of her infidelity.
24 Mr Erin James Mahoney, an eye witness to the incident, gave evidence for the prosecution. He was walking along Bishops Row in the vicinity of a multi-storey undercover car park. He said:
So I crossed and got up onto the footpath walking away. I heard a lady screaming. I turned around and saw a man running from the entrance to the undercover car park towards her. He was carrying a shovel and was wearing a yellow raincoat. He ran up to her and hit her in the head with the shovel. It's at that point I started running towards them. They were both facing me at this stage with him standing behind her and he was grabbing her from behind. I ran towards him, to my left around them and came up around behind him. I put my left arm up around his neck and my right arm up under his - his right armpit and lifted his arm up and pulled him backwards.
…
Now, you gave some evidence that he ran across and hit her with the shovel. Can you indicate how he did that?---So he was carrying the shovel across his chest and swung it and hit her on the top of the head, just near probably the hair line on the head, somewhere, you know, near the top of her head, face.
Did you hear anything?---Very loud as the shovel hit her head.
And what part of the shovel hit her head?---The blade of the shovel, the - so the back of it, so the flat part of the head of the shovel (ts 987, 989).
25 Mr Mahoney gave evidence that on the ground about a metre or two from where he and the appellant were standing there was a meat cleaver lying on the footpath with a black handle.
26 Mr Mahoney restrained the appellant pending the arrival of police. After about 20 minutes the appellant went limp and collapsed. An ambulance arrived, followed by police.
27 Another witness, Beverley Pinguet, was working at the Red Cross offices in East Perth. She was in her office when, at about 7.55 am, she heard a woman screaming from the street. She ran forward to the front office and observed a lady and a man who was dressed in a yellow T-shirt chasing the lady around a parked vehicle. The man was carrying a long-handled shovel. The blade was above head height and was being flung around. She rang police. Whilst on the telephone, she observed the lady run out into the middle of the road, her head and blouse covered with blood. Shortly thereafter, the lady ran out onto the road with a long-handled shovel and threw it onto the ground. She then observed a lady in a business suit walk the woman to an underground car park where she lost vision of them. Ms Pinguet left the building and approached the scene. She observed a young man holding the appellant who was standing with his hands by his side with his head down. She observed the meat cleaver at his feet. She then went and attended to the complainant. She subsequently returned to the appellant who was lying on the ground apparently unconscious although Ms Pinguet did not accept that to be the position.
28 Constable Robin Williams attended the scene. When he arrived, Mr Mahoney was detaining the appellant who was then lying on the ground. The appellant appeared to be depressed and crying and was saying he was sorry for what he did.
29 The appellant gave evidence in his own defence to the following effect. He was depressed and had decided to dig a grave for himself in the vicinity of the complainant's workplace. He also indicated that he had a weak arm and would not be able to strike someone with a shovel. He had a meat cleaver with him which he intended to use to cut his wrists. After finding the shovel, the appellant got the idea of digging a grave. He caught a bus, getting off near Bishops Row. He said that at the time he was very ill and earlier in the day had had a massive heart attack and should have called an ambulance but did not. He sent messages to his children advising them of his intention to commit suicide. He was standing outside the undercover car park for about 10 minutes when the complainant ran at him shouting words to the effect of 'you dirty dog. Give me that here. I will kill you'. He said she had assaulted him many times before and was a very violent person. The appellant's evidence was that he crossed the road and tried to run away but felt the complainant behind him. A struggle eventuated and he panicked, fearing that she was going to kill him. The complainant wrenched the shovel from him and it came back towards her and hit her face. They both fell to the ground, whereupon the complainant stood up and started threatening him with the shovel and prodding the shovel towards him. He observed Mr Mahoney some distance away in a position where Mr Mahoney could not have seen the shovel hit the complainant's head. Mr Mahoney came over and restrained him and while he was doing so, the complainant was prodding the shovel at Mr Mahoney and himself. Mr Mahoney tried to catch the shovel and injured his hand. The appellant's version of events was rejected by Mr Mahoney.
30 In summary, the defence case was that the appellant did not strike the complainant with the shovel; to the contrary, the complainant was the aggressor and she wrenched the shovel from him and in doing so hit her head (ts 1035).
Grounds of appeal
31 The appellant relies on seven grounds of appeal as follows:
(1) the trial judge erred in failing to direct the jury as to the defence of unwilled act in s 23A of the Code;
(2) there was a miscarriage of justice when the trial judge refused an application by the appellant to adjourn the trial;
(3) the trial judge erred in failing to direct the jury as to the defence of accident in s 23B of the Code and/or the defence of self-defence under s 248 of the Code;
(4) the trial judge erred in failing to direct the jury as to the distinction between s 304(1), s 304(2) or the application of s 304(3) of the Code;
(5) the manner in which the trial was conducted was manifestly unfair and resulted in a miscarriage of justice;
(6) the offence as described was vague, ambiguous, uncertain and unclear such that the conviction was unsafe;
(7) the trial judge should have disqualified himself upon request as the appellant was self-represented and had reasonable grounds to allege actual or apprehended bias.
Grounds 1 and 3 - unwilled act, accident, self-defence
32 Section 23A provides that a person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will.
33 Under s 23B, a person is not criminally responsible for an event which occurs by accident. The 'event' in this case is the head injury suffered by the complainant.
34 Proof of the 'fault' element of the s 294 offence with which the appellant was charged (that the appellant intended to do grievous bodily harm to the complainant) and the s 304(2) first alternative offence relied on by the State (that the appellant intended to do bodily harm to the complainant) negatives the possibility of a defence of unwilled act under s 23A of the Code and accident under s 23B of the Code. See Miles v The State of Western Australia [2010] WASCA 93 [5]; Bahar v The Queen [2011] WASCA 249 [28].
35 The second alternative offence was assault occasioning bodily harm contrary to s 317 of the Code. Although intent to harm is not an element of that offence, the trial judge tailored his directions in such a way as to ensure that the defences of unwilled act and accident must have been negatived by the State in relation to the s 294, s 304(2) and s 317 offences. In particular, the trial judge repeatedly directed the jury that they could not convict the appellant of any of the offences unless they were satisfied beyond reasonable doubt that the appellant deliberately struck the complainant with a shovel to the head (ts 977, 979 - 980, 1035 - 1037, 1048, 1049).
36 Further, the trial judge directed the jury that in the event they accepted the appellant's evidence relating to the incident or could not reasonably exclude it, the only proper verdict would be not guilty of any offence (ts 1035).
37 Moreover, the defence case (and the prosecution case) left no scope for self-defence under s 248 of the Code. Section 248 relevantly provides:
(2) A harmful act done by a person is lawful if the act is done in self-defence under subsection (4).
…
(4) A person's harmful act is done in self-defence if -
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
39 Thus, the defence case was that the appellant did not deliberately strike the complainant and in fact did not strike her at all. There is no evidence of the appellant that addresses the subjective requirements in s 248(4). Accordingly, the appellant's evidence falls well short of satisfying the evidentiary burden of raising self-defence. As to which, see Braysich v The Queen (2011) 243 CLR 434 [17], [36].
40 Each of grounds 1 and 3 has no reasonable prospect of succeeding.
Ground 2 - adjournment
41 Before the empanelment of the jury on 6 August 2012 the appellant made a number of applications all of which were refused. The transcript tells the story:
ACCUSED: The first application is about the bias, your Honour, and then I'll be asking the court to refer that matter under the Criminal Procedure Act read with the Criminal Appeals Act to the Court of Appeal, your Honour.
WISBEY DCJ: Yes. Well, that application's refused. Have you got any other applications to make?---
ACCUSED: The next one would be for an adjournment because - - -
WISBEY DCJ: Well, that's refused also (ts 244 - 245).
42 They were not the first applications of their kind. The appellant had unsuccessfully called on the trial judge to recuse himself on the ground of bias prior to the first trial (12 March 2012, ts 72 - 90).
43 Following the adjournment of the first trial and an unsuccessful application to adjourn the trial scheduled to commence on 28 May 2012, the trial judge eventually granted a further adjournment on the application made by the appellant's then recently appointed solicitor (Ms Monck) whom he sacked at the commencement of the second trial on 6 August 2012.
44 Having regard to the history of adjournments of the appellant's trial and his habit of retaining then dismissing counsel, it was well within the proper exercise of the judicial discretion to proceed with the scheduled trial without permitting the appellant to make submissions in support of the application and without providing reasons. The appellant had had more than enough time to prepare for the twice adjourned trial and the explanation for the denial of an adjournment was patently obvious. The mere making of yet another the application was so unreasonable as to justify peremptory dismissal.
45 In any event, before and after hearing from the appellant as to the matters underlying his adjournment application (ts 243 - 244, 260 - 262), the trial judge gave the trial history as his reason for refusing it (ts 261). Having regard to the history, that was the only reasonable outcome. Ground 2 has no reasonable prospect of succeeding.
Grounds 4 and 6 - s 304 of the Code
46 Section 304 relevantly provides:
(1) If a person … unlawfully does any act, as a result of which -
(a) bodily harm is caused to any person; or
…
(2) If a person, with an intent to harm … does any act, as a result of which -
(a) bodily harm is caused to any person; or
…
(3) For the purposes of subsection (2) an intent to harm is an intent to -
(a) unlawfully cause bodily harm to any person.
48 The second aspect is the trial judge's failure to make express reference in his summing up to the requirement in s 304(3)(a) of the Code to 'unlawfully' cause bodily harm. Unlawfully in that context means not authorised or justified by law. Proof of the requirement of an intent to cause harm would, on the facts in this case, negative the defences of unwilled act and accident but leave open self-defence if there was an evidentiary basis for it. Even if, contrary to my view, there is scope for the operation of the defences of unwilled act or accident even with proof of the requirement that the harmful act be carried out with an intention to cause bodily harm, the trial judge's direction that the jury had to be satisfied that the appellant deliberately struck the complainant would negative those defences.
49 The third aspect relates to the verdict and the warrant of commitment. For the reasons given by the Chief Justice in De Alwis No 1, these claims must also fail.
Ground 5 - unfairness
50 The appellant relies on multiple matters of detail. First, he complains he was not afforded an opportunity to view or address the jury on a number of notes from the jury (par 5.1). He does not identify the specific notes to which he refers. I infer he is referring to notes from the jury to the trial judge after the jury had retired to consider the verdicts (ts 1047, 1049). The only note of substance appears to be that referred to at ts 1047. The trial judge did not disclose its contents to either of the parties and told them that it indicated he should restate to them the elements of the offences. The trial judge also advised that the note would go on file for the parties to view after the conclusion of the trial. There is nothing in the material that the appellant has put to this court to suggest any unfairness in what occurred.
51 Second, the appellant asserts that he could not cross-examine Mr Mahoney on CCTV footage which he was only able to view after the witness had given evidence (par 5.2). The matter was raised with the trial judge by Ms Prince at the commencement of the trial on 6 August 2012. She had received a copy of the CCTV footage the previous Friday and had viewed it. It did not form part of the State case but her assessment was that it had some forensic usefulness from the appellant's perspective (ts 241).
52 The CCTV footage had been provided to the appellant's former counsel, Mr Bates. Counsel for the State explained as follows:
[I]t's never been part of a State's case. What the CC Television shows it's in the underground car park of the complainant's residence. It’s a dark underground car park and looking out to the street … [b]ut it doesn't actually show the street because of the bright light outside … (ts 243).
53 The trial judge said the appellant should have the opportunity to view it over lunch time or after 4.00 pm that day. Mr Mahoney gave evidence the following day (7 August 2012). There is nothing in the transcript to indicate that the appellant had not seen the CCTV footage at that stage. Certainly there was no application in relation to it. Based on the trial judge's summing up, the CCTV footage did not figure prominently or at all in support of the appellant's evidence at trial. Unfairness is not established.
54 Third, the appellant contends he was served with a jury pack different from the one provided by the prosecution to the jury (par 5.3). The appellant seeks to make his points in this and the next claim by reference to transcript references (ts 267, 362, 926). The appellant has placed no material before this court to enable this claim to be substantiated. It is not consistent with what the prosecutor said at ts 266 which was that the appellant had a copy of what he proposed to hand out to the jury. Moreover the prosecutor does not say at ts 926 that the alternative offences were contained in the jury pack. At that transcript reference the prosecutor is referring to the alternatives in s 294 of the Code (that is, intent to maim, disfigure, or disable any person, or to do some grievous bodily harm to any person).
55 Fourth, the appellant claims the trial was unfair because his 'jury pack' was refused on a number of occasions (par 5.4). At ts 550 the appellant informs the trial judge that he is preparing a jury pack himself. At ts 648 the appellant attempted to put to a witness a photograph of a bus stop. The trial judge was not satisfied as to its relevance. At ts 656 the appellant sought to tender two photographs of a bus stop and a Transperth sign to show what buses stopped there. The trial judge did not permit the tender because the witness had no relevant connection with the photographs.
56 At ts 698 the prosecutor informed the trial judge that the appellant had requested assistance in preparing a jury pack. The State indicated it would object to the tender of most of the documents the appellant wanted included in the pack on the grounds of relevance. As the trial judge correctly observed, relevance can only be determined at the time the appellant sought to tender the documents, if indeed he did so.
57 At ts 838, the appellant tried to tender photographs without success. It is apparent that relevance was the issue. At ts 854, the appellant indicated he wanted to provide a jury pack to the jury. In response to the judge's question as to what he wanted to produce, he referred to a number of photographs which were in due course tendered in evidence (ts 855). At ts 858, the appellant again referred to a jury pack but it is clear he wanted to show a photograph that in fact had become an exhibit, which he was permitted to do.
58 The appellant appears to be of the view that evidentiary documents in a jury pack can be provided to the jury whether or not they can and will in due course be adduced in evidence at trial through the appropriate witnesses. His understanding is wrong.
59 Fifth, the appellant repeats in substance the matters the subject of ground 4 (par 5.5). The substance of his detailed complaints have no merit for the reasons given by the Chief Justice in De Alwis No 1.
60 Sixth, the appellant relies on the trial judge's refusal to permit him to file summonses to witnesses (par 5.6). The appellant applied for the issue of witness summons, inter alia, to the Department of Immigration and Citizenship, Centrelink and psychologists and medical practitioners who had treated the appellant. It is apparent that the appellant's request to his former legal advisers to issue the summons had not been acted on (ts 317). The appellant identifies in par 5.6.5 of his written submissions the summonses 'that could have been issued' and the nature of the evidence he was seeking. The trial judge was not satisfied that the issues which the appellant sought to pursue were relevant. Nor am I.
61 Seventh, the appellant relies on what he describes as 'cultural considerations' (par 5.7). There is no merit in the appellant's claim that he was disadvantaged by reason of language difficulties or the other religious or cultural matters referred to in this context.
62 Eighth, the appellant relies on a miscellany of matters including his circumstances in custody during the trial, his mental and physical health, and the admission of relationship evidence adduced by the prosecution but not by the appellant (for example, the appellant wanted to tender documents said to establish reasonable grounds for his belief as to the complainant's infidelity) (par 5.8 - 5.10). The trial judge's rulings on relevance referred to in par 5.10 are correct.
63 Ninth, the appellant complains that the trial judge's summing up was not balanced (par 5.11). The trial judge has a duty to put the respective cases of the prosecution and the defence to the jury in a fair and balanced way: Hill v The Queen [2003] WASCA 177 [85]. I am not persuaded of the merit of the appellant's claim that the summing up was unfair or unbalanced. I infer the appellant's perceptions are informed by a deficient understanding of relevance both in its technical meaning and its persuasion potential.
64 Tenth, the appellant identifies alleged errors in the trial judge's directions to the jury (par 5.12). A number of the matters relied on relate to the admissibility of evidence. The trial judge's rulings were correct. The balance of the complaints relate to the failure to direct on accident, unwilled act, self-defence and the directions relating to s 304. These grounds are without merit for the reasons stated above.
65 Lastly, the appellant raises numerous matters of detail relating to alleged inconsistencies in the evidence of certain witnesses (par 5.13) The submissions are argumentative in character and do nothing to cast any reasonable doubt on the prosecution case or buttress the defence case. There is much to be said for the State's characterisation of the appellant's account of the incident as 'fanciful'.
66 The alleged errors the subject of ground 5 do not, individually or collectively, establish a reasonably arguable claim that the trial was unfair.
Ground 7 - bias
67 It appears the appellant's claim is of actual and apprehended bias. In the case of apprehended bias, the test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: The Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198 [64].
68 The apprehension of bias principle involves two steps. First, it requires the identification of what it is said might lead a judge or juror to decide a case other than on its legal and factual merits. Second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [8].
69 As in all criminal trials, the trial judge ruled on all questions of law and interlocutory applications. The facts and verdict were for the jury alone.
70 In judging whether there is a reasonable apprehension of bias, it should be assumed that the lay observer would base his or her opinion on a fair assessment of the judge's conduct in the context of the trial as a whole: Galea v Galea (1990) 19 NSWLR 263. Kirby A-CJ said in Galea:
A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges, like witnesses, are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. While patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings and the avoidance of unnecessary delay, including to other litigants awaiting their hearing (279).
71 It will often be necessary with a self-represented litigant for a trial judge to intervene in order to stop irrelevant matters being raised and to prevent unnecessary delays or disruptions: Michael v The State of Western Australia [2007] WASCA 100 [65]; De Alwis v De Alwis (Unreported, WASC, Library No 930439, 12 August 1993). Greater robustness is permissible when the litigant in person has legal qualifications and significant courtroom experience. In this case the appellant was more assertive, persistent and much harder to control than a litigant in person who knew that they did not know what they were doing.
72 In a jury trial, there is a distinction between comments or interventions by the trial judge in the presence of the jury and comments or interventions in their absence: Michael [78].
73 The first matter relied on is the trial judge's refusal to let the appellant elaborate on his application at the commencement of the trial for the trial judge to recuse himself and the failure to give reasons. As noted above, that was not the first occasion on which a recusal application was made.
74 I infer from the appellant's written submissions that the basis of the bias application at the commencement of the second trial was the trial judge's involvement in the first trial. If that is what was intended, it is entirely unmeritorious.
75 As to the basis for the bias claim in the appeal, the appellant relies on the fact that the trial judge did not allow him to complete his opening address, his evidence-in-chief or his closing address, issue summonses and had imposed a manifestly excessive sentence (a claim dealt within the sentence appeal). The conduct does not establish bias, actual or apprehended. The trial judge did what was required and appropriate in the circumstances in order to retain control, and manage the conduct, of the trial. There was no alternative but to put some limits on the appellant's conduct of his defence at trial. A trial which should ordinarily have not exceeded two or three days took nine days. That is solely attributable to the conduct of the appellant. He was given more than enough latitude to run his case.
76 The appellant has provided transcript references for the bias claim. The first category of claim is that the trial judge made a number of references to the appellant feigning illness.
77 The statements on which the appellant relies, all of which were in the absence of the jury, indicate that the trial judge was not prepared to accept at face value the appellant's statements (by words or other conduct) as to his health at any particular time including when it resulted in a forced adjournment of court proceedings.
78 The trial judge's scepticism was reasonably based on his experience of the appellant's conduct in and connected with the repeated attempts to try the appellant for the offence with which he was charged. Further, the statements were made in contexts in which the issue was relevant. It cannot be actual or apprehended bias for the trial judge to put to a litigant in person matters that are relevant to and appropriately inform procedural decisions for or in the course of trial.
79 The appellant also relies on a number of general comments. During an interlocutory hearing on 29 May 2012 in the context of discussion about what the State relied on in its case, the trial judge said 'I think they're relying more heavily on the fact that she got hit over the head with a shovel' (ts 237). That was merely an observation as to the State case.
80 In the absence of the jury on 6 August 2012, in response to a request by the appellant that he be allowed to address the trial judge, he said '[n]ot if you ramble on [but that] if you address the point you make' (ts 254). This is a fair response to the appellant's manner and style of advocacy. A greater level of robustness is permissible in circumstances where the litigant in person has legal qualifications and experience and misplaced confidence in his skill and judgment.
81 The appellant also complains of the statement made by the trial judge, in the absence of the jury, that 'this is your third trial' (ts 258). That is substantially true as the trial scheduled for 28 May 2012 had to be adjourned.
82 The next statement occurred in the course of a discussion at 4.15 pm about whether a witness, Mr Hackett, could be called after Dr Kendrick. The trial judge said:
Perhaps depending upon the doctor, you can call Mr Hackett and I'll ask Mr De Alwis whether he has any questions after you. And if there is any problem about it - well I shouldn't use the term 'problem'. If he has extensive questions, I'll release the jury and then continue tomorrow (ts 285).
83 That is incapable of supporting a claim of bias. It is a reference to whether Dr Kendrick should be released at the end of her examination-in-chief or after cross-examination.
84 After the jury retired, the appellant made a submission that something was very relevant for his case, to which the trial judge responded:
Well, you say it is. That's because you don't know what relevance is (ts 318).
85 Based on the appellant's conduct of his defence, that was a fair statement made to a person who is a former legal practitioner.
86 It is unnecessary to go through all of the matters on which the appellant relies. I have paid special attention to statements relied on that were made in the presence of the jury (ts 306, 372, 374, 583, 688, 709, 751, 1012 - 1013). The statements relied on by the appellant do not, individually or collectively, establish any arguable claim of bias.
87 The appellant also relies on a number of the trial judge's decisions in the course of the trial concerning relevance and other matters, none of which establish bias.
88 Finally, the appellant relies on alleged culturally insensitive statements, the appellant's linguistic difficulties and other miscellaneous matters.
89 The claim of actual bias is meritless. As to apprehended bias, if a reasonable disinterested bystander had heard the matters complained of in the context of the trial as a whole, he or she would only have concluded that the appellant's continually frustrating conduct had on the odd occasion succeeded in irritating and frustrating the judge. The appellant in this case had sorely tested the trial judge's patience and he showed very significant restraint.
90 The bias claim must fail.
Conclusion
91 Having regard to all relevant matters, including the merits of the appellant's grounds, I would dismiss the appellant's extension application in his conviction appeal.
Appeal against sentence
92 At the end of the trial on 16 August 2012 the trial judge fixed 8 November 2012 for the date for sentencing.
93 At a directions hearing on 30 October 2012, Mr MA Holgate appeared for the appellant on a grant of legal aid. The purpose of that hearing was to ensure sentencing was on track for the scheduled date. Although the appellant was represented by legal counsel, he made a number of applications personally. Those applications concerned some of the matters raised in the conviction appeal.
94 On 8 November 2012, the day fixed for sentencing, Mr Holgate appeared for the appellant. However, the appellant made three applications in person. The first was for an adjournment, the second was for the trial judge (now the sentencing judge) to disqualify himself for actual and apprehended bias and the third was a claim that the judge had no jurisdiction to continue the sentencing.
95 During the hearing, the appellant withdrew Mr Holgate's instructions to represent him in the sentencing proceedings. Before departing, Mr Holgate handed to the sentencing judge a book of documents containing medical notes and references provided to him by the appellant's daughter.
96 There then followed an exchange between the judge and counsel for the prosecution as to whether any further psychiatric or psychological reports were required.
97 During the hearing, the appellant behaved in a highly florid, intemperate and emotional manner. He was out of control. The sentencing judge adjourned to peruse the book of papers provided by Mr Holgate. It appears that during the adjournment the appellant was taken to hospital. When the court reconvened, there was the following exchange between counsel for the State and the sentencing judge:
PUTT, MR: Your Honour, I understand from your Honour's acting associate that Mr De Alwis may not be in a position to proceed.
WISBEY DCJ: No, he's - I think this is - well, it's certainly at least the second time, when he doesn't [get] an adjournment, that he has heart problems and heads off to hospital. The matter is absurd. He's had Legal Aid and three different practitioners. It's just got to be remanded off to a date where it will go on whether or not he's present (ts 1086).
98 At this point, the appellant's daughter spoke on behalf of her father.
99 Counsel for the State saw no alternative but one last adjournment. The sentencing judge said:
Well, quite frankly, in respect of his health situation, the situation is that every now and again when he wants an adjournment, he suddenly has cardiac problems (ts 1088).
100 The sentencing was adjourned until 16 November 2012. On that date, the appellant represented himself. Once again, he had three applications to make. It appears from the appellant's lengthy, meandering oral submissions that he was seeking yet another adjournment. During these submissions the sentencing judge made it clear he had read the material handed up by Mr Holgate at the hearing on 8 November 2012 (ts 1096).
101 In due course the appellant said he wanted an adjournment because he wanted to retain a lawyer. The sentencing judge said:
But if you listen, I'll answer that question. You are not granted an adjournment. You have had three lawyers. You have dismissed each one of them at the start of the proceedings and enough is enough (ts 1099).
102 The appellant then raised the same bias application he relied on at the commencement of his first trial on 12 March 2012. Some 17 minutes after the commencement of the hearing, during the majority of which the appellant held the floor, the sentencing judge said he would give him one last opportunity to say what he wanted to say in mitigation (ts 1100).
103 The appellant's response was to continue with his claim of actual bias, referring to a client for whom he had acted in the High Court. I infer the appeal involved a first instance decision of the sentencing judge.
104 The sentencing judge asked the appellant again whether he wished to say anything in mitigation to which the appellant answered 'No' (ts 1102).
105 With the appellant continuing to speak over him, the sentencing judge asked for a third time whether the appellant wanted to say anything in mitigation (ts 1103). The appellant continued with what in substance is a rant, interspersed with inquiries from the sentencing judge as to whether the appellant wished to say anything in mitigation (ts 1104 - 1109). At 10.05 am the sentencing judge requested the sheriff's officer to take the appellant to a remote room. The appellant continued with his florid remarks at which stage the sentencing judge said he would adjourn until the appellant was in the remote room (ts 1111).
106 At 11.10 am the court reconvened and the sentencing judge informed counsel for the State that he did not propose to hear from him. However, counsel for the State wished to raise one matter, being the appellant's possible psychiatric or psychological condition and the applicable sentencing principles in connection therewith.
107 The sentencing judge asked the appellant, who was in the remote room, whether he wished to comment on the cases to which the State had referred the sentencing judge. In response, the appellant made submissions relating to his lack of knowledge of the alternative offences at trial, his health, alleged assaults on him while he was in prison and the court's jurisdiction to sentence (ts 1116 - 1117).
108 The sentencing judge proceeded to sentence. He commenced by giving reasons for refusing the appellant's application to adjourn his sentencing. He referred to the long history of delays and the revolving door of legal representatives and continued:
Although I was then [at the conclusion of the trial] in a position to address the issue of sentence, the offender wished the matter to be put off so that he could get certain material, and the sentence was remanded, or sentencing was put off until 8 November, a considerable delay, but to facilitate the offender’s request.
On 8 November, the offender was represented by Mr Holgate who had been assigned to him by Legal Aid for the purpose of a plea in mitigation. He dismissed the services of Mr Holgate, sought an adjournment, and when that was refused, developed cardiac problems and was taken by ambulance to hospital overnight and sentencing was put off until today.
It is against that background that the matter now proceeds. I have given the offender every opportunity to make submissions in mitigation. He has not done so, and that is his entitlement. I now propose to proceed to sentence (ts 1118).
109 The sentencing judge made findings of fact, as he is required to do. They are as follows. The complainant is a 50-year-old public servant. The appellant met her through an introduction facility in Sri Lanka, they commenced living together in October 2006 and were subsequently married. They came to Australia in November 2007.
110 Subsequent to the marriage, the appellant became very jealous, suspicious and controlling of the complainant. He was at times threatening and abusive towards her and made accusations that she was unfaithful and promiscuous. The appellant effectively evicted the complainant from the matrimonial residence and she shifted into a unit in Bishops Row, East Perth. Following the separation, the appellant made a number of attempts to contact her or enter into dialogue with her, at times seeking to resume cohabitation with her. As a result she sought and obtained a violence restraining order.
111 At about 8.00 am on 4 April 2011 the complainant was standing alone outside her unit in Bishops Row waiting for a lift to work. The appellant emerged from under a multi-storey car park wearing a bright yellow jacket and brandishing a long-handled shovel and meat cleaver.
112 The appellant ran towards the complainant, striking her on the top of the head with the shovel causing a significant laceration through the skin and the soft tissue to the bone. Fortunately a pedestrian, Mr Mahoney, was in close proximity, observed the appellant's actions and intervened, grasping the appellant in a headlock and restraining him until the arrival of police.
113 The sentencing judge said:
It needs to be said immediately emphatically that your conduct which was premeditated, violent and potentially life-threatening is such that imprisonment to be immediately served is the only disposition that appropriately responds.
It is an aggravating factor that you sought out the complainant to carry out the assault in contravention of the provisions of the violence restraining order (ts 1119).
114 The appellant was born on 20 November 1945. He was born in Sri Lanka and has two adult children from an earlier marriage. He obtained legal qualifications in Sri Lanka and later in Australia.
115 The sentencing judge had regard to a pre-sentence report and information obtained about the appellant during the course of the trial. He also had several psychological/psychiatric reports which were available at trial on the subject of the appellant's fitness to plead.
116 The sentencing judge found that the appellant had a total absence of remorse, lack of judgment and no insight into his offending behaviour. The sentencing judge continued:
In a report dated 19 April 2011, the consultant psychiatrist, Dr Schineanu, gave a diagnosis or made a diagnosis of delusional disorder. It is stated that you presented as grandiose and paranoid and lacking judgment and insight, characteristics which were amply demonstrated during proceedings leading up to and at the trial. Dr Schineanu concluded the report by saying … :
I consider that Mr De Alwis is fit to plead to his charges, but I do not consider him fit to be discharged into the community at the present time(ts 1120).
118 The sentencing judge indicated that he had read the medical material provided relating to the appellant's medical conditions and noted that the appellant denied any psychological problems.
119 The sentencing judge found that the appellant's mental condition was not causative of the offending but was a contributing factor to an extent which was difficult to quantify. However, he concluded that it justified some reduction in the sentence that would otherwise be applicable.
120 Having regard to all relevant sentencing factors, the sentencing judge imposed a term of imprisonment of 4 years 9 months to commence from when the appellant was taken into custody (4 April 2011).
Grounds of appeal
121 The appellant relies on six grounds. They are that the sentence is manifestly excessive (ground 1); that the sentencing judge took into account irrelevant material including the reports of Dr Petch and Dr Schineanu and the pre-sentence report (ground 2); the sentencing judge failed to take into account relevant facts (ground 3); there had been, in effect, a denial of procedural fairness (ground 4); the sentencing judge made adverse findings of fact that were not open on the evidence (ground 5); and the sentence did not reflect the jury's finding that the appellant was not guilty of the offence against s 294 of the Code (ground 6).
122 I propose to start with the procedural fairness ground.
Ground 4 - procedural fairness
123 The appellant contends the sentencing hearing was conducted in a manner whereby he was not provided with an opportunity to respond, had not received any submissions from the State, had no opportunity to respond to the State's submissions and the sentencing judge erred in refusing his request to grant an adjournment.
124 The sentencing judge was correct, for the reasons he gives, to refuse the appellant's application for an adjournment. The appellant had had a very lengthy period in which to prepare for sentencing. He had made it clear that he did not want the sentencing to proceed and by his conduct sought to achieve that end. The State made very limited submissions on sentencing to which the appellant was given the opportunity to respond.
125 Despite being provided with many opportunities to make sentencing submissions, the appellant refused to do so. The appellant by his (mis)conduct waived his right to be heard on sentencing. Ground 4 is without merit.
Ground 2 - irrelevant considerations
126 The psychiatric assessments and reports of Dr Petch and Dr Schineanu were indeed relevant. It is clear the sentencing judge was able to, and did, make an assessment as to their continuing relevance based on the appellant's conduct before, during and after the second trial. There is no merit in ground 2.
Ground 3 - relevant considerations
127 There is no merit in ground 3. It was the appellant's conduct after the breakdown of the relationship that was the proper focus in the sentencing exercise. It is of no significance that the appellant's breaches were of interim orders rather than final violence restraining orders.
128 I do not intend to address all of the matters of detail. It is sufficient to note that the adverse findings made by the sentencing judge (referred to in par 4 of the appellant's written submissions) were clearly open on the evidence at trial (see the complainant's evidence at ts 97 - 105 concerning occasions when she was threatened and abused); the sentencing judge did not make a general finding that there was a history of violence in the appellant's relationship with the complainant; the appellant cannot rely on mitigating facts not sought or established (or accepted as correct by the prosecution) by him on the balance of probabilities. The appellant cannot use this appeal to make the plea in mitigation he refused to make below.
Ground 5 - findings of fact
129 It is the case that the evidence did not support a finding that the appellant was 'brandishing' a meat cleaver. However, the appellant admitted that at relevant times he was holding both the shovel and the meat cleaver. The error is not material.
130 The sentencing judge's finding that the appellant ran to the complainant is the only finding open on the evidence. It is not inconsistent with the complainant's evidence that she also ran towards the appellant. It is clear the appellant's version of events was positively rejected by the jury.
131 I turn now to the nature and extent of the complainant's injuries. Mr Mahoney's evidence was that the appellant swung the shovel and struck the complainant with a significant amount of force on the head (ts 326). She was seen by Dr Kendrick at Royal Perth Hospital who says she had a laceration to her forehead which was about 8 cm long and cut through all layers of skin and fat down onto the bone or the skull (ts 286). Dr Hendrick gave evidence that the injury could have been life-threatening without medical treatment (ts 287).
132 I would not uphold ground 5.
Grounds 1 and 6
133 It is apparent from the sentencing judge's reasons that he sentenced the appellant for the offence of which he was found guilty, not the charged offence of which he was acquitted. Ground 6 is, in essence, a claim that the sentence of 4 years 9 months' imprisonment is more appropriate for the charged offence than an offence against s 304(2) of the Code. That is, in effect, a particular of the appellant's claim that the sentence is manifestly excessive.
134 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error from the sentence itself. The sentence must be shown to be unreasonable or unjust, it being outside the range of a sound sentencing discretion.
135 In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on a scale of seriousness and the personal circumstances of the offender.
136 The maximum penalty for the offence committed by the appellant is 20 years' imprisonment.
137 Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope and significant variations in relevant sentencing factors: The State of Western Australia v Munda [2012] WASCA 164.
138 The appellant relied on Armstrong v The State of Western Australia [2012] WASCA 42; Delavale v The State of Western Australia [2009] WASCA 111; The State of Western Australia v Redman [2009] WASCA 1; Holden v The State of Western Australia [2009] WASCA 50; The State of Western Australia v BLM [2009] WASCA 88. Also relevant are The State of Western Australia v Wallam [2008] WASCA 117 and Hinkley v The State of Western Australia [2014] WASCA 122. The sentences range from a low of 20 months in Armstrong (a not guilty plea) to a high of 7 years 6 months in Delavale (also a not guilty plea).
139 Having regard to all relevant sentencing considerations, the sentence imposed on the appellant is broadly consistent with sentences customarily imposed for an offence under s 304(2) of the Code. Save for the mitigation arising from the appellant's mental condition, there are no mitigating factors in this case. Of significant concern are the findings that the appellant was unremorseful, lacked judgment and had no insight into his offending, all of which underscore the need for protection of the public and for personal deterrence. Although the sentence is at the high end of the sound sentencing range, it is not manifestly excessive.
Conclusion
140 Having regard to all relevant matters, including the merits of the appellant's grounds, I would dismiss the appellant's extension application in his sentence appeal.
Other matters
141 After the hearing on 10 December 2014, the appellant filed an application seeking 14 orders including the following:
2. [t]hat the court not publish Reasons, Orders or the Judgments in this application to reinstate the Appeal until further order;
3. [t]hat a hearing be held urgently to enable the applicant to make an urgent application that the Honourable the President of the Court of Appeal - Hon Justice Carmel McClure recuse herself from hearing, determining and deciding this matter;
4. [t]hat a hearing be held urgently to enable the applicant to make an urgent application that the Honourable the Hon Justice Mazza recuse himself from hearing, determining and deciding this matter;
5. [t]hat this matter be listed to be heard by three judges from Supreme Court/s of another State/s; that this matter be referred to the Honourable the Chief Justice urgently to make an urgent order in that regard;
6. that this matter be attended to by a registry of a Supreme Court in another State.
142 Leave to reopen is required but is not sought by the appellant. Subject to two matters, leave should be refused. The two matters relate to the appellant's application that two members of the coram recuse themselves. Separate consideration has been given by those judges to the application affecting them. They have been dismissed for reasons to be published concurrently with these reasons.
143 BUSS JA: I agree with McLure P.
144 MAZZA JA: I agree with McLure P.
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