Dodd v The State of Western Australia

[2013] WASCA 80

DODD -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 80

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 80
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:208/2012	Heard:	21 FEBRUARY 2013
Coram:	BUSS JA MAZZA JA	Delivered:	22/03/13
No of pages:	12	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	D
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Parties:	MATTHEW SHANE DODD THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against sentence Appellant convicted after trial of unlawful killing Sentence of 10 years' imprisonment Whether offending at the upper end of the range of seriousness for manslaughter offences Whether sentence manifestly excessive
Legislation:	Criminal Code (WA), s 280 Sentencing Act 1995 (WA), s 6(2)
Case References:	Colledge v The State of Western Australia [2007] WASCA 211 Hishmeh v The State of Western Australia [2012] WASCA 183 McNamara v The State of Western Australia [2013] WASCA 63 Neumann v The State of Western Australia [2013] WASCA 70 R v Churchill [2000] WASCA 230 R v Gordon [2000] WASCA 401 The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 The State of Western Australia v Munda [2012] WASCA 164 The State of Western Australia v Walley [2008] WASCA 12 Wicks v The Queen (1989) 3 WAR 372

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DODD -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 80 CORAM : BUSS JA

MAZZA JA

HEARD : 21 FEBRUARY 2013 DELIVERED : 22 MARCH 2013 FILE NO/S : CACR 208 of 2012 BETWEEN : MATTHEW SHANE DODD

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WISBEY DCJ

File No : IND 1647 of 2011

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted after trial of unlawful killing - Sentence of 10 years' imprisonment - Whether offending at the upper end of the range of seriousness for manslaughter offences - Whether sentence manifestly excessive

(Page 2)

Legislation:

Criminal Code (WA), s 280

Sentencing Act 1995 (WA), s 6(2)

Result:

Leave to appeal refused

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant : Mr S B Watters
Respondent : No appearance

Solicitors:

Appellant : Lumlan & Associates
Respondent : Director of Public Prosecutions (WA)

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

Colledge v The State of Western Australia [2007] WASCA 211
Hishmeh v The State of Western Australia [2012] WASCA 183
McNamara v The State of Western Australia [2013] WASCA 63
Neumann v The State of Western Australia [2013] WASCA 70
R v Churchill [2000] WASCA 230
R v Gordon [2000] WASCA 401
The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414
The State of Western Australia v Munda [2012] WASCA 164
The State of Western Australia v Walley [2008] WASCA 12
Wicks v The Queen (1989) 3 WAR 372


(Page 3)

1 BUSS JA: The appellant has applied for leave to appeal against sentence.

2 On 10 September 2012, the appellant was convicted, after a trial in the District Court before Wisbey DCJ and a jury, on one count in an indictment.

3 The count alleged that on or about 18 December 2010, at Spalding, the appellant unlawfully killed Shannon Lee Gail Pearce, contrary to s 280 of the Criminal Code (WA).

4 On 13 September 2012, the trial judge imposed a sentence of 10 years' imprisonment. The sentence was backdated to 4 December 2011 to give credit for time the appellant had spent in custody on remand. A parole eligibility order was made.

The facts and circumstances of the offending

5 The victim was aged 27 when she was killed. The appellant was 25.

6 About one month before 17 December 2010, the appellant contacted the victim through a social network site called 'Divas Chat'. A casual sexual relationship developed between them.

7 On 17 December 2010, the appellant travelled with the victim from Perth to Geraldton in a motor vehicle driven by Sean Minney.

8 The appellant introduced the victim to Mr Minney as 'a Pearce-Belottie dog cunt' and referred to her as a 'bloody dog cunt' on numerous occasions throughout the journey. The trial judge found that these comments indicated that the appellant had a complete lack of respect for the victim as a person, and that his only regard for her was as a potential sexual participant (ts 807).

9 His Honour said he was satisfied on the evidence that during the journey the appellant argued with the victim as a result of his consumption of alcohol (and, possibly, other substances) combined with his complete lack of respect for her (ts 807).

10 Mr Minney stopped the vehicle, at the appellant's request, near Greenough. The appellant dragged the victim from the vehicle and assaulted her. She suffered bruising and swelling around her eyes. The appellant then dragged the victim back into the vehicle. Mr Minney continued driving to Geraldton.

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11 In the early hours of the morning on 18 December 2010, the journey terminated at 5 Tamblyn Street, Spalding. The appellant then walked with the victim towards an area of coastal scrubland. Subsequently, her body was located in this area. The trial judge found that the victim died shortly after she and the appellant left Tamblyn Street (ts 807).

12 The victim's body was not discovered until 25 December 2010. By then her body had decomposed to a significant degree. The decomposition affected the capacity of the forensic pathologist, Dr Clive Cooke, to determine the nature and extent of the deceased's injuries and the cause of her death.

13 Dr Cooke was able to conclude, however, that the victim had suffered the following facial injuries:

(a) a fracture of the left side of the maxilla (upper jaw);

(b) a fracture of the left side of the mandible (lower jaw);

(c) fractures of the nasal bones;

(d) separation of a previously non-healed fracture which had been pinned with surgical plates; and

(e) the dislodgement of the left upper incisor teeth.

14 These injuries resulted from the application of substantial blunt force to the victim's head.

15 Dr Cooke excluded death from natural causes. It was possible for a person to die from facial injuries, if he or she was rendered unconscious, because of interference with breathing or unprotected exposure to the environment. Dr Cooke was of the view that the victim's injuries could have been caused by a kick, a punch or a blow from a blunt instrument.

16 Dr Cooke noted that the victim's clothing had been disturbed. Her jeans were unfastened and partly displaced to the mid-hip region. Her crop top was above her breasts.

17 The trial judge found, based on the state of the victim's clothing, that the appellant had attempted to have sexual intercourse with her (ts 808). He said that the victim 'no doubt rejected [the appellant's] advances' because of the manner in which the appellant had treated her during the journey (ts 808).

(Page 5)

18 His Honour then said:

I'm satisfied that you then further assaulted her and kicked her to the head causing injuries which gave rise to her death. For sentencing purposes, however, it matters little whether the blow or blows delivered were by foot or fist, the critical fact being that serious injury was rendered as a result of the application of a savage assault (ts 808).

19 The trial judge was unable to make a finding as to whether the victim died during the appellant's assault at the coastal scrubland in Spalding or shortly afterwards. He said that 'whatever the position, the assault was brutal and demonstrated [the appellant's] callous indifference to [the victim]' (ts 808). Further, the appellant abandoned the victim without taking any steps to obtain medical assistance for her.

20 The appellant inflicted grievous injuries upon a vulnerable and defenceless female. He was careless of the consequences for her and thereafter conducted himself as if nothing had occurred. It was an aggravating factor that the victim was assaulted by the appellant in the course of their relationship and in circumstances where there was no possibility of the victim defending herself or obtaining assistance (ts 809).

21 His Honour was satisfied that the appellant had not demonstrated any remorse (ts 809). Indeed, defence counsel cross-examined Mr Minney at the trial (no doubt, on the appellant's instructions) to the effect that Mr Minney was responsible for the victim's death.

22 Victim impact statements before the trial judge highlighted the devastating consequences of the offence for the victim's four young children as well as the deleterious effects on her wider family.

23 His Honour characterised the appellant's offending as at a 'very high level' of seriousness for this type of offence (ts 808). Later, he said that the case was 'at the upper end of the range of seriousness' for offences of manslaughter (ts 809).

Proposed grounds of appeal

24 The appellant relies on two proposed grounds of appeal.

25 Ground 1 alleges that the sentence of 10 years' imprisonment was manifestly excessive.

26 Ground 2 alleges that it was not reasonably open for the trial judge to find that the appellant's offending was at the upper end of the range of seriousness for manslaughter offences.

(Page 6)

27 It is convenient to deal with ground 2 in the course of considering ground 1.

The appellant's submissions

28 As to ground 1, counsel for the appellant emphasised the nature and extent of the criminality involved in the offending, sentences imposed in what he asserted were broadly comparable cases and the appellant's personal circumstances and antecedents.

29 As to ground 2, counsel relied on the following contentions:

(a) the absence of any evidence at trial as to the specific cause of death;

(b) no 'weapon' was involved;

(c) no 'depravity' was involved;

(d) the absence of any evidence as to 'the degree of suffering by the deceased prior to death';

(e) the absence of any evidence as to 'anything done post-death by the appellant to aggravate the offence'; and

(f) the evidence at trial did not support a finding beyond reasonable doubt that the deceased died as a result of a 'savage' assault.

Ground 1: its merits

30 At the material time, the maximum penalty for the offence of manslaughter was 20 years' imprisonment. Since the commencement of the Manslaughter Legislation Amendment Act 2011 (WA) on 17 March 2012, the maximum penalty has been life imprisonment. The applicable maximum for present purposes is, of course, 20 years.

31 There is no sentencing tariff for manslaughter because of the great variation that is possible in the circumstances of the offending and the offenders. Each case must be decided on its own facts. See Wicks v The Queen (1989) 3 WAR 372, 379 - 380 (Malcolm CJ); Colledge v The State of Western Australia [2007] WASCA 211 [17] (Wheeler JA, Owen and Miller JJA agreeing).

32 The great variation in these circumstances explains the difficulty in discerning sentencing patterns for manslaughter. As Wheeler JA noted in Colledge:

(Page 7)

A person convicted of manslaughter may have had an intent to kill or do grievous bodily harm, but have formed it in circumstances where there was provocation; or may be acting in self-defence, although excessively; may have been so affected by substances of one kind or another as to be incapable of forming any clear intention; may suffer from a mental illness falling short of insanity; or may have been culpably negligent in the management of either a motor vehicle or some other thing. That list is by no means exhaustive, but one can see why there is much variation in sentencing. The University of Western Australia Crime Research Centre Report (UWA Crime Research Centre, Crime and Justice Statistics for Western Australia (2004) table X, p 73) demonstrates that, between 1996 and 2004, there was considerable variation in the median sentence for manslaughter; in 1998, it was as low as 4 years, while, in 1997, it was 8 years [18].

33 Sentences for manslaughter should, however, reflect the value which the Parliament has placed upon human life. See The State of Western Australia v Walley [2008] WASCA 12 [32] (Wheeler and Miller JJA).

34 In The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, the majority (Wheeler & Pullin JJA, Owen JA agreeing) said, in summary, that the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), which repealed cl 2 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), had the following effects:

(1) In cases falling within the 'worst category' it enables the imposition of the statutory maximum penalty, or something approaching it. Whether, in any particular 'worst category' case, a sentencing judge will be required to impose a penalty at or near the statutory maximum will depend not upon the Amendment Act, but upon established sentencing principle.

(2) In cases not falling within the worst category, and where there is an established range of sentences capable of affording comparison, it requires a sentencing judge to have regard to the minimum terms which would have been required to have been served under that range of sentences, and to tailor the sentence to be imposed so as to avoid unjustifiable disparity in respect of the minimum custodial period.

(3) It facilitates the development of sentencing ranges which change over time, by reason of factors such as prevalence or other relevant matters.

(4) Where new offences are created, it makes it clear that the court is not to discount sentences imposed in respect of those offences by one-third.

(Page 8)

This list may not be exhaustive, but it is sufficient for the purposes of the present case [43]. (original emphasis)

35 In the present case, the trial judge did not decide that the appellant's offending was in the 'worst category' for the purposes of the majority's decision in BLM [42] - [43].

36 Counsel for the appellant referred to numerous cases including The State of Western Australia v Munda [2012] WASCA 164; Colledge; Walley; R v Gordon [2000] WASCA 401; and R v Churchill [2000] WASCA 230.

37 It is unnecessary to review the relevant facts or the sentencing dispositions in Colledge, Walley, Gordon or Churchill. In my reasons in Munda I examined various cases involving sentencing for manslaughter [105] - [123].

38 In Munda, the respondent and the deceased woman had been in a relationship for about 16 years. They had four children. The respondent and the deceased were traditional Aboriginal persons. On the day in question, the respondent and the deceased returned to the house where they were staying after drinking at a local tavern. They were, to some extent, affected by alcohol. During the evening, the respondent and the deceased were in their bedroom. An argument developed which culminated in the respondent assaulting the deceased. The argument and the assault were prolonged. The respondent threw the deceased around the bedroom. He pushed her into the fibro concrete walls. He punched her twice in the face, causing her to fall. When the deceased was on the ground, the respondent stood over her and punched her several times in the face.

39 The respondent in Munda told police that the reason he assaulted the deceased was 'to keep her quiet'. After he had ceased assaulting her, the respondent and the deceased went to sleep. He awoke the following morning and had sexual intercourse with her. Later, he left the house to get some tea. When he returned, he discovered that the deceased had stopped breathing. The respondent attempted some basic first aid and then called for medical assistance. He became distressed when he realised that she was dead. Relatives arranged for the attendance of an ambulance. The cause of the deceased's death was traumatic brain injury, with bilateral and recent subdural haemorrhage and recent contusions. The deceased also had a fractured jaw and fractures to five of her ribs.

(Page 9)

40 The respondent in Munda was aged 32 at the time of the offending and was 33 when sentenced. He had a significant prior criminal record including previous convictions for violent offending against the deceased and other women. The principal mitigating factors were the respondent's plea of guilty at the first opportunity, his cooperation with the police and his expression of remorse and contrition. The State's case was, however, very strong. The primary judge imposed a sentence of 5 years 3 months' imprisonment. This court allowed the State's appeal on the ground that the sentence was manifestly inadequate. A sentence of 7 years 9 months' imprisonment was substituted.

41 In the present case, although the appellant's offending was not in the 'worst category', in recent years sentences for the offence of manslaughter (with the maximum penalty of 20 years' imprisonment) have, in general, tended to increase. See Munda; Hishmeh v The State of Western Australia [2012] WASCA 183; McNamara v The State of Western Australia [2013] WASCA 63.

42 None of the cases cited by counsel for the appellant is truly comparable to the appellant's offending. For example, Munda has some comparable features but there are also matters of distinction. On the one hand, the offender in Munda had a history of violence towards the deceased and other women and his prior criminal record was worse than the present appellant's. On the other, the offender in Munda pleaded guilty at the first opportunity, cooperated with the police and expressed remorse and contrition, whereas the present appellant did not have the mitigation that a plea of guilty would have brought and he evinced no remorse or contrition.

43 The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. These propositions are well-established by the case law.

44 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the

(Page 10)

upper limit of the range. See Neumann v The State of Western Australia [2013] WASCA 70 [30] (Buss JA, McLure P & Pullin JA agreeing).

45 In the present case, the appellant's offending was, no doubt, very serious. The trial judge correctly characterised the offending as at a 'very high level' and 'at the upper end of the range of seriousness' (ts 809) for offences of manslaughter. As I have mentioned, his Honour did not hold that the offending was in the 'worst category' for the purposes of the majority's decision in BLM [42] - [43]. Accordingly, his Honour's characterisation of the appellant's offending is not a matter of particular importance in the appeal. What is important, in evaluating the sentence, is the seriousness of the offence committed by the appellant, as determined by taking into account the maximum penalty, the circumstances of the commission of the offence including the vulnerability of the victim, the aggravating factors and the mitigating factors. See s 6(2) of the Sentencing Act 1995 (WA). Any comparable cases must also be taken into account.

46 The very serious nature of the appellant's offending is demonstrated by the following:

(a) The appellant committed an unprovoked and savage attack upon a vulnerable, unarmed and defenceless woman.

(b) The savage nature of the attack is apparent from the victim's injuries, including a fracture of the left side of the upper jaw, a fracture of the left side of the lower jaw, fractures of the nasal bones and the dislodgement of the left upper incisor teeth.

(c) The only reasonable inference to be drawn from the nature of these injuries, in the context of the appellant's treatment of and attitude towards the victim during the journey from Perth to Geraldton, is that the appellant intended that the victim should suffer some significant bodily harm.

(d) After his attack upon her, the appellant demonstrated callous indifference to the victim and her plight. This is consistent with his treatment of and attitude towards the victim during the journey. He made no attempt to obtain medical assistance for her or to inform the authorities or her family about what had happened to her.

(Page 11)

47 These factors, in combination, support his Honour's characterisation of the offending as at a 'very high level' and 'at the upper end of the range of seriousness' for offences of manslaughter.

48 As to counsel for the appellant's contentions in the context of ground 2:

(a) Dr Cooke's inability to determine the specific cause of death, and the absence of any evidence as to 'the degree of suffering by the deceased prior to death', are not inconsistent with his Honour's characterisation of the offending and did not preclude his Honour from making that characterisation.

(b) The fact that no 'weapon' was involved, and that no 'depravity' was involved (beyond that revealed by the known circumstances of the offence), merely shows that the offending could have been worse than it was. It does not diminish the very serious nature of the actual offending.

(c) The appellant's attack on the victim was aggravated by his abandonment of her while she lay dead or dying and his failure to obtain medical assistance for her. Once again, the absence of any other aggravating factors arising from 'anything done post-death by the appellant' merely shows that the offending could have been worse than it was. It does not diminish the very serious nature of the actual offending.

(d) His Honour was entitled to describe the appellant's attack on the victim as a 'savage' assault. The adjective 'savage' was a fair description of what the appellant did to the victim in the context of the overall facts and circumstances.

49 The appellant was aged 25 at the time of the offending and was 27 when sentenced. He was not youthful or inexperienced for sentencing purposes.

50 As I have mentioned, the appellant did not have the mitigation that a plea of guilty would have brought and he evinced no remorse or contrition. However, defence counsel conducted the trial efficiently and, as a result, there was some reduction in its length.

51 The appellant was not of good character. He had a prior criminal record. It must be acknowledged, however, that he had not previously been sentenced to imprisonment or detention and that his convictions as

(Page 12)

an adult were for relatively minor offences. He did not have any previous convictions for violence.

52 The trial judge described the appellant as 'an urbanised rather than [a] traditional Aboriginal' (ts 810). The appellant retained the support of his family (his father, mother, sister and some extended family members) and was anxious about his children growing up without him. He has two sons who live with their mother (N) and a daughter who lives with her mother (T). At the time of sentencing, another woman (P) was carrying his unborn child.

53 The main sentencing factors were appropriate punishment and personal and general deterrence.

54 In my opinion, the sentence of 10 years' imprisonment was commensurate with the seriousness of the appellant's offence. After taking into account the maximum penalty (20 years' imprisonment), the circumstances of the commission of the offence (including the vulnerability of the victim), the aggravating factors and the mitigating factors, I am satisfied that the appellant has no reasonable prospect of contending successfully that the sentence was unreasonable or plainly unjust. It did not exceed the limits of a sound exercise of the sentencing discretion. It was not manifestly excessive.

55 Ground 1 is without merit.

Ground 2: its merits

56 As I have mentioned, when considering ground 1, the trial judge correctly characterised the appellant's offending as 'at the upper end of the range of seriousness' for offences of manslaughter.

57 Ground 2 is without merit.

Conclusion

58 Leave to appeal should be refused because neither of the proposed grounds of appeal has a reasonable prospect of success. The appeal must therefore be dismissed.

59 MAZZA JA: I agree with Buss JA.