Delavale v The State of Western Australia
[2009] WASCA 111
•6 APRIL 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DELAVALE -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 111
CORAM: OWEN JA
WHEELER JA
MILLER JA
HEARD: 6 APRIL 2009
DELIVERED : 6 APRIL 2009
PUBLISHED : 25 JUNE 2009
FILE NO/S: CACR 106 of 2008
BETWEEN: TY RONALD DELAVALE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :EM HEENAN J
File No :INS 178 of 2007
Catchwords:
Criminal law - Appeal against sentence - Doing an act likely to endanger the life, health or safety of another with intent to harm - Sentence of 7 years 6 months - Whether manifestly excessive
Legislation:
Criminal Appeals Act 2004 (WA), s 27
Criminal Code (WA), s 304(2)
Sentencing Act 1995 (WA), s 6(1)
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Mr L M Levy SC
Respondent: Mr D Dempster
Solicitors:
Appellant: David Manera
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
B v The Queen [2002] WASCA 236
Bensegger v R [1979] WAR 65
Damiani v The State of Western Australia [2006] WASCA 47; (2006) A Crim R 358
Yates v The State of Western Australia [2008] WASCA 144
OWEN JA: At the end of the hearing on 6 April 2009 the court announced that leave to appeal should be refused and the appeal dismissed. The court also announced that reasons would be published later. I have seen the reasons that Wheeler JA proposes to publish. I agree with what her Honour has written. They explain why I came to the conclusion that the appellant's application for leave could not succeed.
WHEELER JA:
Introduction
The appellant was convicted, by his own plea of guilty, of doing an act with intent to harm another, as a result of which the life, health or safety of another was or was likely to be endangered, contrary to s 304(2)(b) of the Criminal Code (WA). He was sentenced to 7 years and 6 months' imprisonment with eligibility for parole and is therefore required to serve 5 years and 6 months before he can be considered for parole. The appellant sought to appeal against this sentence on the ground that it is manifestly excessive.
These are my reasons for joining in the orders made on 6 April 2009 refusing leave to appeal.
The circumstances of the offence
The following summary of facts is taken from the sentencing remarks of EM Heenan J. The appellant and the deceased, Ms Campbell, had been a relationship from December 2004 to May 2006. The relationship was characterised by violence and serious assaults. Ms Campbell visited family in England, in order to get away from the appellant. Ms Campbell returned to Australia in December 2006 and did not contact the appellant for seven months after her return. In July 2007, she met a mutual friend who passed on a message that the appellant had sensitive photographs of her which she might want to retrieve.
Ms Campbell arranged to meet the appellant on 24 July 2007. At this meeting, arrangements were made to meet again on 27 July 2007. After the latter date, she was not heard from again by her family or friends. She was reported as missing on 30 July 2007. On 1 August 2007, Ms Campbell's body was found lying on the bathroom floor of the appellant's house, after the appellant went to a police station to report her death.
The appellant made a number of admissions in a video interview at the police station on the morning of 1 August 2007. He said he had had a bath with Ms Campbell the previous morning, because she had wet the bed. He said he had to carry her to the bath, she was not talking and he "might've" hit her while she was in the bath. He also admitted that he had choked her a few days earlier, that he had hit her in the past and that the injuries and bruises she had were caused by his hitting her while she was staying with him. He was equivocal and evasive at times during that interview; for example, he at one point suggested that he could not explain what he acknowledged to be "shocking bruises", which were "everywhere" on Ms Campbell's body, because "... she might've ... stubbed her toe or something". He stated that he tried to resuscitate her when he saw that she was not breathing, and that he did not know what caused her death, but did not believe he had caused it by hitting her.
In an interview later that day, he sought to retract his admissions, and refused to co‑operate on the basis that he was, and had been at the time of the earlier interview, "off [his] face" on drugs.
Forensic information
A pathologist's report to the coroner described the death of Ms Campbell as being caused by multiple injuries. It described the injuries as including bruises to the body surface, underlying tissue and muscle; acute subdural haematoma; multiple fractures to the ribs; and facial injuries. Damage to her hyoid bone and bruising around the neck was consistent with being choked. The injuries to her head were consistent with a punch to the face or a kick, resulting in a fall. Her brain injuries would have resulted in her lapsing into a coma and possibly in death if she did not receive medical attention. The exact cause of death is unknown, but her injuries plainly revealed, as the State submitted to the learned sentencing judge, a sustained and vicious assault, which revealed an intent to inflict significant harm. It is likely that she died at least seven hours after the assaults which caused her injuries. It was estimated that Ms Campbell had been dead for between 12 and 60 hours before the appellant attended the police station and her body was examined.
The offender's personal circumstances
The appellant was 25 years old at the time of the offence. The most serious aspect of his criminal history was a conviction for seven armed robberies in 2000, for which he was sentenced to 7 years' imprisonment. His family remain supportive of him, and they state that the appellant's problems stem from his drug use. The appellant's long history of drug use includes heroin, cannabis and amphetamines.
The psychological and pre‑sentence reports state that the appellant sought to minimise his responsibility for the offences, blaming Ms Campbell for attacking him prior to her death. The photographic evidence of his injuries shows a very few, very minor scratches and spots, mainly to his arms. Even if all were caused by Ms Campbell, and if it is assumed that they were not purely defensive wounds, they could not begin to justify the attack which he must have inflicted on her.
During the course of argument before us, the appellant's counsel submitted that the appellant had disclosed the offence, and had co‑operated with police. As noted above, however, she had already been reported missing. It was known that she was meeting the appellant. What he "disclosed" was that Ms Campbell was dead, and it appears to me that his only reason for doing so was to give an account of events leading to her death which put him in the best light possible in the circumstances. When, under police questioning, that task proved to be difficult, he became evasive, gave contradictory answers, and then ceased to say anything.
Sentencing remarks
The learned sentencing judge accepted that the deceased's injuries were horrific (at [38]). He considered the seriousness of the offence on the basis of the injuries caused and not on the basis of Ms Campbell's death. He said, at [39] ‑ [40]:
The prosecution specifically accepts that you cannot and must not be sentenced on the basis that you were legally responsible for Ms Campbell's death but the prosecution submits that you were morally responsible for her death because of the assault which you perpetrated and your failure to call medical assistance which was obviously badly needed. I can understand why that submission is made but I can only sentence you for the offence of which you have actually been convicted by your plea and I must be careful not to let the dreadful consequences of what you have done in producing a death lure me into treating this as a case of homicide. However, that does not mean that the consequences are not severe or the degree of criminal conduct extreme because, as I illustrated at the commencement of these reasons, that whether death follows or does not follow a particular series of assaults can, in many respects, be fortuitous and beyond any influence of the perpetrator.
The submission from the prosecution is that you should be sentenced on the basis that you perpetrated a sustained and vicious assault with intent to inflict significant harm and that, indeed, very significant harm was inflicted, as appears from the injuries suffered. Clearly, those injuries put her life in jeopardy, whatever may have been the eventual cause of death.
His Honour considered the fact that the appellant did not accept responsibility for what had occurred and accepted that there was not full remorse in this case (at [43]). Referring to the appellant's drug habit, he stated that drug‑fuelled violence was a community problem which called for general deterrence. He said, at [45]:
It is right that the community protect itself from this menace even if the protection fails to be completely effective. The prospect of random violence being committed arbitrarily and on innocent people simply because people get into a self-induced drug rage is a threat that no community can tolerate. It means that the interests of the community must prevail over the interests of the offender.
In discussing the mitigating factors of the offence, the learned sentencing judge referred to appellant's youth and his early guilty plea, as well as the transitional provisions which then required the sentence to be reduced by one‑third. His Honour concluded, at [81] ‑ [83]:
I am satisfied that in your case the offence which you have committed is very serious indeed and towards the upper end of the range of severity within this wide range. I am also conscious that despite the fact that death has followed, the prosecution had withdrawn the charge of manslaughter and substituted this charge as a recognition of a difference of a material kind.
I have reviewed a number of cases involving serious penalties for grievous bodily harm, intentionally doing an act to endanger the life and safety of another and of manslaughter. I have come to the conclusion that even for serious offences the starting point is seldom, if ever, more than a sentence of 15 years' imprisonment and I therefore select that as the starting point in this case.
I must reduce that by a factor of 25% for a plea of guilty [for] the reasons which I have already given. I am then obliged to reduce that by a further one‑third under the 2003 legislation. The effect then is to take my starting point down to 7 ½ years and that is the sentence of immediate imprisonment which I impose upon you.
Leave to appeal
Pursuant to s 27 of the Criminal Appeals Act 2004 (WA), the court must not grant leave to appeal in respect of any ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. Therefore, it is necessary to examine the merits of the appeal.
First limb of the appeal
The only ground of appeal raised by the appellant is that the sentence imposed by the learned sentencing judge was manifestly excessive. Two particulars are given in support of this contention. The first is that his Honour erred in categorising the offence as being towards the upper end of the range of severity.
It has been noted that s 304(2) encompasses a broad range of offending behaviour of varying seriousness: Yates v The State of Western Australia [2008] WASCA 144 at [102]. The kind of violence caught by the provision ranges from minor injuries caused by a scuffle to extreme and deliberate violence resulting in serious injury or death.
His Honour was plainly correct to describe this as a case towards the upper end of seriousness. The forensic reports and photographs show severe injuries all over the deceased's body, including a number of fractures, deep and extensive bruising, and multiple brain haemorrhages. The violence towards the deceased prior to her death could only be described as extreme. The severity of the offence is increased further by the fact that, having caused these life‑threatening injuries, the appellant did not call an ambulance or seek medical attention for Ms Campbell, but, on his account, simply left her alone in a bathtub, if not comatose, then at very least unresponsive. He did not call an ambulance even after it became apparent that she had stopped breathing.
One submission advanced on behalf of the appellant to lessen the seriousness of his behaviour was that the appellant's "amphetamine induced rage" reduced his criminal culpability. A similar argument was rejected by this court in Damiani v The State of Western Australia [2006] WASCA 47; (2006) A Crim R 358. In that case, an appellant argued that the fact that his offences were committed while suffering from an amphetamine‑induced psychotic episode was a mitigatory factor. Roberts‑Smith JA stated at [3] that:
Self‑induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice: R v Henry (1999) 46 NSWLR 346, 383; Douglas v The Queen (1995) 56 FCR 465, 470; Talbot v The Queen (1992) 34 FCR 100, 105 ‑ 106; Hinchliffe v The Queen [2001] WASCA 15.
McLure JA at [41] reached a similar conclusion:
Where a condition is self‑induced, it is not generally to be regarded as mitigating the offence because the offender may be regarded as morally responsible for his or her condition: Hinchliffe v The Queen [2001] WASCA 15 at [24] citing R v Redenbach (1991) 52 A Crim R 95 at 99.
Her Honour went on to say at [42] that drug intoxication could, in some circumstances, be an aggravating factor calling for a higher sentence:
From a victim's perspective, to be confronted by a drug crazed or affected offender would in ordinary circumstances exacerbate the fear and trauma of the event. Further, the significant incidence of such drug-related crime in this State requires that significant weight be given to general deterrence in the sentencing process.
The fact that the appellant was in an "amphetamine induced rage" is not a mitigating circumstance which would lessen the appellant's culpability. A circumstance of that kind may have some mitigatory force where, for example, drug use has caused or contributed to behaviour which may be seen as out of character, the offender recognises that fact, is remorseful, and has taken steps to overcome drug use. In such a case, it may be thought that the need for personal deterrence and community protection is less than it might otherwise be. This is not such a case; the appellant was an habitual drug user, had a record which included past violent offending which was drug‑related, displayed minimal, if any, remorse and demonstrated no acceptance of responsibility. No error has been shown in the sentencing judge's reasoning in this regard.
Second limb of the appeal
The second limb of the appellant's appeal was that the learned sentencing judge erred in selecting a starting‑point of 15 years' imprisonment before taking into account mitigating factors and the reduction required by the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). The Sentencing Act 1995 (WA) (Sentencing Act) requires a judge to impose a sentence which is commensurate with the seriousness of the offence: s 6(1). The "starting point" is not the proper subject of an appeal, but I understand the submission to be that, in effect, this was not a "worst case".
It appears to me that this is essentially the same point discussed earlier. It is well established that where offences are close to the top of the range of seriousness and culpability they ought to attract as a starting‑point the maximum sentence available: B v The Queen[2002] WASCA 236 at [27], referring to Bensegger v R [1979] WAR 65 at 68.
As I have noted, it was open to regard the offence as one towards the upper end of the range. The sentence imposed was consistent with that evaluation.
The appellant acknowledges that there is no established range of penalties for the offence of intentionally doing an act with intent to harm that is likely to endanger the life, health or safety of another, as the offence is a relatively new one. However, the appellant goes on to suggest that the range of sentences imposed in serious cases of manslaughter shows that the learned sentencing judge's starting point was excessive. If, as some of the appellant's submissions suggest, it is asserted that even a "worst case" offence - either of manslaughter or pursuant to s 304 - can attract, at most, a term of 15 years' imprisonment, that suggestion is clearly wrong.
The proposition that the maximum penalty is reserved for a worst case is well established, as I have noted. It necessarily follows that in a worst case, it is open to impose the maximum sentence. The statutory maximum in this case is 20 years, not 15.
Notwithstanding that his Honour at one point described these assaults as "at the extreme end of severity", he began his calculation from a point which was only 75% of the maximum available. That, presumably, was because there was no demonstrated intent to endanger Ms Campbell's life, although the assaults had that effect in fact. It may be arguable that the offence was more serious than his Honour considered it, having regard to the nature of the injuries, the conclusion which those injuries compel about the nature of the assault, and the failure to seek help for the deceased. As this was an appeal by the offender, not the State, that question was not the subject of full argument. In my view, if there is any arguable error in the sentence, it is an error in favour of the appellant, rather than adverse to him. It follows that the appeal has no prospect of success.
MILLER JA: I agree with Wheeler JA.
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