Djiagween v The State of Western Australia

[2012] WASCA 141

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   DJIAGWEEN -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 141

CORAM:   BUSS JA

MAZZA JA

HEARD:   25 JUNE 2012

DELIVERED          :   25 JULY 2012

FILE NO/S:   CACR 70 of 2012

BETWEEN:   VERNAN MARK DJIAGWEEN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STAVRIANOU DCJ

File No  :IND BRO 47 of 2011

Catchwords:

Criminal law - Application for leave to appeal against sentence - Offence of grievous bodily harm - Whether sentence imposed manifestly excessive - Alleged breach of parity principle - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 27(2), s 27(3)
Criminal Code (WA), s 297(1)
Restraining Orders Act 1997 (WA), s 63A

Result:

Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

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

Chan v The Queen (1989) 38 A Crim R 337

Etrelezis v The Queen [2001] WASCA 327

Green & Quinn v The Queen [2011] HCA 49

I (a child) v The State of Western Australia [2006] WASCA 9

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Trompler v The State of Western Australia [2008] WASCA 265

Wilson v The State of Western Australia [2010] WASCA 82

1. BUSS JA:  I agree with Mazza JA.

2. MAZZA JA:  This is an application for leave to appeal against sentence.

3. The appellant and his de facto partner, Rosemary Anne Brolga were jointly charged with doing grievous bodily harm to Lenny Manuel Sampi contrary to s 297(1) of the Criminal Code (WA). This offence carries a maximum penalty of 10 years' imprisonment.

4. On 19 March 2012, the appellant and Ms Brolga pleaded guilty as charged. On the same day, Stavrianou DCJ sentenced the appellant to 15 months' immediate imprisonment with eligibility for parole. Ms Brolga was sentenced to 15 months' imprisonment, conditionally suspended for a period of 12 months. A lifetime restraining order was made against the appellant and Ms Brolga in favour of Mr Sampi pursuant to s 63A of the Restraining Orders Act 1997 (WA).

5. The appellant does not challenge the making of the restraining order.  His appeal is against the term of immediate imprisonment that was imposed.  The appellant raises two grounds of appeal.  The first alleges that the sentence of imprisonment was manifestly excessive.  The second ground alleges a breach of the parity principle.

6. Leave to appeal is required in respect of each proposed ground of appeal. This court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding. Unless at least one of the proposed grounds attracts a grant of leave, the appeal is taken to have been dismissed: s 27(2) and (3) of the Criminal Appeals Act 2004 (WA).

7. The general principles applicable to the appellate review of sentences are well known.  They are set out in the reasons of McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2] and do not require repetition.

The facts of the offending

1. The facts of the appellant's offending are not in dispute.

2. At about 7 pm on 24 March 2011 the appellant, Ms Brolga and another drove to the victim's house in Broome with the intention of confronting a man who lived at the victim's house with respect to an alleged sexual assault on Ms Brolga which had occurred the previous

week.  Ms Brolga was in possession of an Aboriginal fighting stick made from hard wood which was approximately 1 m long and 5 cm thick.  When the appellant and Ms Brolga arrived at the victim's premises, they were told by the victim that the person that they were looking for was not at home.  The appellant began to question the victim as to his knowledge of the alleged incident involving Ms Brolga.  The appellant became suspicious of the victim and stated that he believed that the victim was involved.  The appellant then punched the victim to his face several times with a clenched fist.  Ms Brolga then hit the victim several times across the head and body with the stick.  The appellant grabbed Mr Sampi around the throat and choked him until he was pulled away.  Ms Brolga continued to hit the victim across the body and head with the stick.  She then went to the kitchen to find a knife for the purpose of threatening the victim.  The appellant instructed her not to use the knife when she returned.  The appellant and Ms Brolga then left the premises. 

1. Ms Brolga contacted the police.  The appellant and Ms Brolga assisted in locating the stick and clothing that each of them had worn at the time of the incident.  In separate video records of interview the offenders made full admissions to the incident.

2. Mr Sampi attended the Broome Hospital where he received treatment for a broken jaw and superficial bruising to his head and body.  His injuries were serious enough to warrant being flown to Perth for treatment at Royal Perth Hospital.  There, he was found to have two factures to his jaw that required the surgical insertion of titanium miniplates and screws.  Had he not been treated, the injuries to his jaw were likely to have caused a permanent injury to his health.  Mr Sampi was discharged from hospital after two or three days.  He required further treatment when he returned to Broome. 

The appellant's antecedents

1. At the time he was sentenced, the appellant was 27 years of age.  He and Ms Brolga had three children aged between 1 and 5 years.  His Honour had the benefit of pre‑sentence and psychological reports.  They revealed that the appellant had a dysfunctional childhood, that his education is limited and that his literacy skills are poor.  He was involved in a serious motor vehicle crash in 2001 which left him with permanent injuries to his right leg and pelvis.  As a result of these injuries and his limited education, the appellant has not experienced regular employment.  He does not have any issues with substance abuse or alcohol.

2. As an adult, the appellant had prior convictions for assault, burglary, making threats, disorderly conduct and traffic offences.  He had previously served terms of imprisonment, but had not committed any serious offences after April 2000.

Ms Brolga's antecedents

1. Ms Brolga was, at the time she was sentenced, 26 years of age.  Her criminal history was described as 'limited'.  She had a prior conviction for assault in 2007 which was dealt with by way of a spent conviction order.  Ms Brolga had been predominantly responsible for the care of the couple's three young children.

The sentencing remarks

1. His Honour regarded the assault as very serious because of the injuries that were caused to the victim in circumstances where the offenders had taken the law into their own hands.  He did not differentiate between the offenders in terms of their culpability, but he noted that Ms Brolga was younger than the appellant and had 'significantly better antecedents' than him.  It also appears from the sentencing remarks in relation to Ms Brolga, that his Honour was to some extent influenced by the need for Ms Brolga to care for the offenders' children.

2. His Honour plainly took into account, so far as the appellant was concerned, his plea of guilty, his cooperation with the police and his remorse.  These matters were considered not only in the decision to impose a term of imprisonment, but again, in deciding whether the term of imprisonment could be suspended. 

3. The learned sentencing judge decided that notwithstanding the mitigating factors, a term of immediate imprisonment was the only appropriate disposition.  His Honour emphasised 'the nature, gravity and extent of the offending' in arriving at this conclusion.

Ground 1 - was the sentence manifestly excessive?

1. The appellant submitted that in light of the following factors, the sentence of immediate imprisonment was manifestly excessive because:

   (1)the appellant did not use a weapon on the victim;

   (2)although the victim suffered a broken jaw, he did not suffer any permanent disability; and

   (3)the appellant cooperated with the police, pleaded guilty and was genuinely remorseful.

2. Whether a sentence is manifestly excessive requires a consideration of the statutory maximum penalty, the place which the conduct occupies in the scale of seriousness of offences of this type, the standards of sentencing customarily observed and the personal circumstances of the offender:  Chan v The Queen (1989) 38 A Crim R 337, 342.

3. I have already referred to the maximum penalty for the offence of grievous bodily harm. 

4. The circumstances of the offence were undoubtedly serious.  The appellant and his co‑offender together attacked the complainant, causing him to suffer a broken jaw which required surgery.  It occurred in the victim's home, in circumstances where the appellant decided, without any justification, that the victim had been involved in a sexual assault upon Ms Brolga.  This kind of offending, which his Honour correctly viewed as the appellant and his co‑offender taking the law into their own hands, requires general and specific deterrence. 

5. The range of sentences customarily imposed for the offence of grievous bodily  harm was considered by this court in Trompler v The State of Western Australia [2008] WASCA 265. In that case, McLure JA identified the post‑transitional range of 8 months to 5 years and 4 months' imprisonment. All but one of the cases analysed by her (Etrelezis v The Queen [2001] WASCA 327), involved early pleas of guilty. Wheeler JA, with whom Buss JA agreed, said that the post‑transitional range for offences towards the upper end of the range, although not of the most serious kind, was between 3 to 5 years' immediate imprisonment.

6. The appellant placed some reliance upon Trompler v The State of Western Australia.  The facts of that case were somewhat unusual.  The appellant was sentenced at first instance to 2 years' imprisonment for stabbing the victim in the abdomen, in circumstances where the victim confronted the appellant and punched him twice to the chest.  The appellant had tried to walk away from the confrontation but the victim persisted.  The appellant pleaded guilty, albeit at a late stage and had good antecedents.  The victim made a complete recovery from his injuries.  The appeal was allowed by the majority and a term of 16 months' imprisonment was imposed.

7. It is very rare for two cases to be alike.  Consequently, a comparison of the sentence imposed in one case with a sentence imposed in another is not of much use.  While it might be argued that the injury in Trompler was more serious than the injury in the present case, that does not mean that the sentence imposed in the present case is manifestly excessive.  The circumstances of the offending in Trompler, having regard to the conduct of the victim in that case, were different from the circumstances in the present case.  Further, the appellant's antecedents in Trompler were more favourable than the appellant's antecedents here.

8. I have already referred to the personal circumstances of the appellant.  They did not give rise to much mitigation.  The onus is on the appellant to demonstrate that the sentence of 15 months' immediate imprisonment was so unjust and unreasonable as to manifest error.  I have not been persuaded that it is reasonably arguable that his Honour erred in the exercise of his sentencing discretion. 

9. This ground has no reasonable prospect of succeeding.

Ground 2 - did the sentence infringe the parity principle?

1. The parity principle was explained by Gibbs CJ in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606:

   It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken  into account (609).

   See also Green & Quinn v The Queen [2011] HCA 49 [28] and I (a child) v The State of Western Australia [2006] WASCA 9 [65] ‑ [71].

2. What is required before this court can intervene, is that any disparity gives rise to an objectively justifiable sense of grievance or an appearance that justice has not been done.  The fact that an appellant feels a sense of grievance is not determinative:  Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301, 338.

3. Here, there were clear differences between the case of the appellant on the one hand and his co‑offender, Ms Brolga, on the other.  As the learned sentencing judge pointed out, Ms Brolga was younger and had better antecedents than the appellant.  Additionally, she had the care of the couple's three very young children.  These differences were such that the disparity could not objectively give rise to a justifiable sense of grievance on the appellant's part.

4. Ground 2 does not have any reasonable prospect of succeeding. 

Conclusion

1. Neither of the grounds of appeal have a reasonable prospect of succeeding.  Leave to appeal must be refused on each ground.  The appeal must be dismissed.

Orders

1.Leave to appeal on each ground is refused.

2.The appeal is dismissed.