Ellis v The State of Western Australia - [2013] WASCA 220

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ELLIS -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 220

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 1 AUGUST 2013

DELIVERED : 25 SEPTEMBER 2013

FILE NO/S: CACR 241 of 2012

BETWEEN: JOSHUA LUKE CATLEN ELLIS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEANE DCJ
File No  :IND 1335 of 2011

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted after trial of unlawfully doing grievous bodily harm - Sentence of 5 years' immediate imprisonment - Whether the sentencing judge erred by failing to make a finding as to which of the appellant or the complainant initially had possession of a knife - Whether the trial judge misapprehended the applicable standard of proof - Whether the sentence was manifestly excessive

Legislation:

Criminal Code (WA), s 297(1)

Result:

Leave to appeal granted on ground 2
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr C L Miocevich
Respondent: Mr J McGrath SC

Solicitors:

Appellant: C & G Miocevich Law Offices Pty Ltd
Respondent: Director of Public Prosecutions (WA)

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

Bomford v The State of Western Australia [2013] WASCA 153
Bruno v The State of Western Australia [2005] WASCA 149
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Clements v The State of Western Australia [2006] WASCA 69
Cotterill v The State of Western Australia [2013] WASCA 52
Djiagween v The State of Western Australia [2012] WASCA 141
Hayes v The Queen [2003] WASCA 230
Hobby v The State of Western Australia [2011] WASCA 197
Holden v The State of Western Australia [2011] WASCA 238
Hussaini v The State of Western Australia [2009] WASCA 207
Law v The State of Western Australia [2009] WASCA 193
Mercanti v The State of Western Australia [2009] WASCA 109
R v Hodges [1999] WASCA 278
R v Lobban [2001] SASC 392; (2001) 80 SASR 550
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Storey [1998] 1 VR 359
Steel v The State of Western Australia [2010] WASCA 118
The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414
The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394
The State of Western Australia v JWRL (a child) [2010] WASCA 179
The State of Western Australia v Taylor [2012] WASCA 233
Trompler v The State of Western Australia [2008] WASCA 265
Ward v The State of Western Australia [No 2] [2010] WASCA 208

McLURE P: I agree with Buss JA.
BUSS JA: This is an appeal against sentence.
The appellant was charged on an indictment which alleged two offences against s 297(1) of the Criminal Code (WA) (the Code), as follows:
(1)On 27 February 2011 at Coogee [the appellant] unlawfully did grievous bodily harm to Daniel James Tydeman.
(2)On the same date and at the same place as Count (1) [the appellant] unlawfully did grievous bodily harm to Daniel James Tydeman.
On 6 September 2012, after a trial in the District Court before Deane DCJ and a jury, the appellant was convicted on count 1 and acquitted on count 2.
On 3 October 2012, the trial judge sentenced the appellant to 5 years' immediate imprisonment. The sentence was backdated to 6 September 2012, when the appellant was taken into custody for the offence. A parole eligibility order was made.

Overview of the offending and the evidence at trial

At all material times, the appellant shared a house with Nadine Bryce. The appellant and Ms Bryce had been in a relationship for about two years.
On the night of 26 February 2011, the complainant was in a taxi with Ms Bryce and her friend, Kimberley Southgate. The complainant had met the women that night. The taxi arrived at the appellant's house. The women entered the house while the complainant waited in the taxi. Screaming by someone in the house was heard. Ms Bryce left the house, followed by the appellant, who was in an aggressive and agitated state.
Ms Southgate gave evidence that the appellant had punched her three times in the mouth and had punched Ms Bryce in the face. Ms Bryce was not called as a witness.
The taxi driver, Hassan Ahmed, gave evidence that the appellant approached his taxi and was rude and abusive to him and the complainant. Mr Ahmed said the appellant attempted to punch him.
The complainant alighted from the taxi. The taxi driver gave evidence that the complainant said to the appellant 'you're a woman

basher'. The appellant responded by punching the complainant and knocking him to the ground. The appellant then inflicted several punches to the complainant's head. He also kicked him and pushed his head into the bitumen. At some point, the appellant attempted to drag the complainant from the road.

A neighbour, Warwick Martin, gave evidence that the appellant then returned to the appellant's house. The appellant emerged a minute or two later and shouted at the complainant, who was still on the ground. Mr Martin said he heard a scuffle and thuds.
Another neighbour, Ian Myles, gave evidence that the appellant punched and kicked the complainant while the complainant was on the ground. The appellant also banged the complainant's head into the bitumen with some force.
When neighbours attended to the complainant they saw he had a bloody face, closed eyes and a stab wound to his abdomen.
Count 1 on the indictment related to head injuries sustained by the complainant as a result of his having been punched, kicked and pushed into the bitumen. Count 2 related to the stab wound.
The appellant gave sworn evidence at trial. He denied having assaulted Ms Southgate but admitted having struck Ms Bryce three times to the body. The appellant denied attempting to punch Mr Ahmed. Initially, he denied being rude or abusive to Mr Ahmed, but later admitted it. The appellant said that, after approaching the taxi, he saw the complainant alight. He heard the complainant say he was a 'woman basher'. The appellant claimed the complainant had a knife. He said that, in fear and not believing he could escape, he punched the complainant, possibly to the face. They fell to the ground while he was attempting to remove the knife from the complainant's grasp. According to the appellant, they wrestled on the ground. He conceded he may have struck the complainant several additional blows. The appellant denied having banged the complainant's head on the bitumen. He said that, after taking possession of the knife, he stood up and kicked the complainant to the shoulder area while he was lying on the ground. He may possibly have connected with the complainant's head. The appellant asserted he was afraid the complainant may have had another weapon and would continue his attack if he stood up. After taking the knife, the appellant left the scene. He said he may have attempted to drag the complainant from the road before leaving. He could not explain how the complainant suffered the stab wound. The appellant denied having a knife when he first approached the complainant.
The complainant gave evidence that, although his memory of the incident outside the appellant's house was unclear, the only knife he had at that time was one he used in connection with his work. Police later found this knife in a backpack at the complainant's residence.

The appellant's admissions and defences at trial

At the commencement of the trial, defence counsel admitted, on the appellant's behalf, that the complainant's head injuries, the subject of count 1, and his knife wound, the subject of count 2, constituted grievous bodily harm.
At trial, the appellant raised the defence of self‑defence in relation to counts 1 and 2 and the further defence of accident in relation to count 2.

The grounds of appeal

The appellant relies on two grounds of appeal.
Ground 1 alleges that the trial judge erred by failing to make a finding of fact as to whether the appellant or the complainant had possession of the knife when the incident began.
Ground 2 alleges that the sentence of 5 years' immediate imprisonment was manifestly excessive.
On 16 January 2013, Mazza JA granted leave to appeal on ground 1 and referred the application for leave to appeal on ground 2 to the hearing of the appeal.

Ground 1: the trial judge's remarks

The sentencing hearing was held on 3 October 2012.
On 1 October 2012, defence counsel filed and served written sentencing submissions. In the submissions, it was asserted that various findings of fact relevant to sentence should be made, and that the proposed findings were consistent with the jury's verdicts and the evidence adduced at trial. The findings of fact contended for by defence counsel included, relevantly, that the complainant (and not the appellant) had possession of the knife when the incident began:
(c)While the [appellant] was in an aggressive frame of mind when he approached the taxi occupied by the complainant, he was not at that point in possession of a knife or any other weapon;
(d)The complainant was holding a knife when he emerged from the taxi and this was obvious to the [appellant];
(e)The knife in question was later found on a nearby road and recovered by police;
(f)The complainant emerged from the taxi intending to confront the [appellant];
(g)The complainant sustained the wound to his abdomen as a result of coming into contact with the knife during a physical confrontation with the [appellant] some short time after the complainant had exited the taxi;
(h)The complainant sustained the wound to his abdomen while he (the complainant) was still in possession/control of the knife [4]. (emphasis added)
In his written submissions, defence counsel cited Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1. He referred to the reasons of Gleeson CJ, Gummow and Hayne JJ at [14] ‑ [15] and the reasons of Callinan J at [165]. Defence counsel submitted that 'findings of fact made against an offender [at a sentencing hearing] must be arrived at beyond reasonable doubt' [3].
At the sentencing hearing, defence counsel indicated, at the commencement of his opening submissions, that he relied on his written sentencing submissions (ts 645). The trial judge then debated the issue of the knife with defence counsel:
DEANE DCJ:     So in relation to the knife, clearly there was a knife because the evidence established there was a knife and the knife was found and it had some of the complainant's blood on it.
LEMMON, MR: Yes.
DEANE DCJ:     Now, there's not a great deal that, I think, one can say about the knife. Your client denied that it was his or that he'd seen it before. You'll be familiar with his version of events. [The complainant] said it was not his knife. He does possess a knife for work purposes but that was elsewhere and returned to him.
Now, in relation to the defence of self-defence, with respect to the count on which your client was convicted, the jury obviously found beyond a reasonable doubt that the defence of self-defence was negatived by the State. So it's a little - I really am in a position where I can't make terribly many concrete findings about the knife other than it was there. I don't - because your client's version was that the complainant advanced upon him with the knife and he then acted in self-defence. That was rejected, so I don't really know whether the jury found that [the complainant] didn't have a knife or that he didn't advance upon your client or that your client had no need to defend himself or, certainly, they found he had no need to defend himself.
LEMMON, MR: Yes. There's also the issue of whether accident played a role in the acquittal.
DEANE DCJ:     Yes. That's in relation to the stabbing incident, yes.
LEMMON, MR: I think the evidence, I think, establishes some fairly clear things which provide some background to what your Honour is discussing.
DEANE DCJ:     Yes. I haven't probably put it all that elegantly but you can see the difficulty that I have. I can't really make a positive finding that [the complainant] advanced upon your client with a knife.
LEMMON, MR: Well---
DEANE DCJ:     I just don't know, in essence, who had the knife (ts 646). (emphasis added)
After defence counsel completed his opening submissions, her Honour made these comments to the prosecutor:
DEANE DCJ:     Well, it's difficult, because - and I don't want to speculate. I mean, Mr Ahmed didn't see anything, but then that doesn't necessarily mean that [the appellant] didn't have the knife. I can't find really whether he did or he didn't.
WHITE, MS:    No.
DEANE DCJ:     There was a knife. And I can't really find whether [the complainant] did or didn't. As I say, in the end, I'm not sentencing for the stabbing count (ts 651). (emphasis added)
A little later, the following exchange occurred between the trial judge and the prosecutor:
WHITE, MS:    ... the State says that your Honour should not look to the encounter at the taxi, as Mr Lemmon is asking you to do, as though [the appellant] is still a man afraid, or responding to a man that had a knife. Indeed, firstly, your Honour is unable to say that [the complainant] had the knife, equally that [the appellant] had the knife.
DEANE DCJ:     No. Well, I certainly would not see the presence of the knife as an aggravating factor in sentencing [the appellant] - - -
WHITE, MS:    Certainly not. And the State is not asking - - -
DEANE DCJ:     - - - because I cannot find that he had one.
WHITE, MS:    No.
DEANE DCJ:     And I really can't find that [the complainant] had the knife either. It's very frustrating, but I just - and I would have to make a finding beyond a reasonable doubt - - -
WHITE, MS:    That's right. And - - -
DEANE DCJ:     - - - and I just don't have the material before me. I certainly accept that [the appellant] approached the taxi in an aggressive frame of mind for whatever reason.
WHITE, MS:    And that indeed, from the State's point of view, goes against the argument. But I won't take that any further.
DEANE DCJ:     No. Well, it doesn't necessarily mean he [the appellant] had a knife (ts 652). (emphasis added)
There was a further exchange between her Honour and the prosecutor concerning the knife towards the end of the prosecutor's submissions:
WHITE, MS:        ... the State ... does not say that your Honour can say that [the appellant] had the knife. That was our case at trial.
DEANE DCJ:       No, I certainly can't say that.
WHITE, MS:        That's right. But we accept that whilst you can't say [that] about [the complainant], you equally can't say that about [the appellant]. It's at the door effectively for the sentencing exercise, and that's the State's position.
DEANE DCJ:       Well, that was my initial feeling (ts 654). (emphasis added)
At the commencement of defence counsel's submissions in reply, the trial judge made the following statement:
And I think really, Mr Lemmon, that's where I'm at. It's certainly not a situation where the presence of a knife is a factor which is aggravating as far as your client's position is concerned. But by virtue of the conviction in relation to the count in question, the jury obviously rejected that he was - the defence that he was defending himself (ts 654).
An exchange between her Honour and defence counsel then ensued:
LEMMON, MR:    Yes. I'm, of course, asking your Honour to go further than not sentencing [the appellant] on the basis of an aggravating feature, being that he had the knife, but positively that [the complainant] had the knife. And as I see the way the burden of proof operates in this context, that is an appropriate approach in this case, and that's why I took the trouble of quoting in particular Callinan J's - - -
DEANE DCJ:       Yes.
LEMMON, MR:    - - - characterisation of the way that the burden of proof operates in this context, because - and I say that - I'm sorry, I'm repeating what I've already said before. But - - -
DEANE DCJ:       No, no. I understand the point.
LEMMON, MR:    - - - the logic of it derives from the only finding that your Honour can make, which is that one of the two men must have had the knife. But I'm not sure I can advance it any further.
DEANE DCJ:       No. Thank you. And - - -
LEMMON, MR:    And - sorry, your Honour.
DEANE DCJ:       No. I understand the point that you make but it's complicated by the fact that in a sense the knife is out the door in - in - as Ms White described it. Your client approached the taxi; he was in an aggressive frame of mind for whatever reason. Now, obviously [the complainant's] remark to him heightened the situation and it went from there. But in terms of your client assaulting [the complainant], as I've said, the jury have rejected that he was acting in self defence. So even if [the complainant] had the knife the jury did not see that as being relevant to your client's conduct.
LEMMON, MR:    No, well, not legally relevant.
DEANE DCJ:       No, not - yes.
LEMMON, MR:    But, see, I suppose what I'm trying to advance is that ‑ ‑ ‑
DEANE DCJ:       You're making a distinction between the, I suppose, the practical situation.
LEMMON, MR:    Yes.
DEANE DCJ:       And the overall context of the circumstances that existed and a rather strict legal approach in terms of self defence.
LEMMON, MR:    Well, in fact what I would essentially [say] is that the assault that led to the injury - the head injuries [were] provoked. It was provoked in two ways by the comment made by [the complainant] and by the fact that he had a knife and tried - and at least brandished it as he emerged from the taxi. And I use provoked, obviously, in the general sense, not in the legal sense.
DEANE DCJ:       Yes, not in the legal sense.
LEMMON, MR:    Because it doesn't apply in this case. So - and I say that has a bearing upon how your Honour judges and characterises the assault for which he - or the acts for which he was found guilty. So that's really - that's why I say it's important.
DEANE DCJ:       That's your - yes.
LEMMON, MR:    Yes. Can I just correct - I'm not sure I can say anymore than that, your Honour, that's my point (ts 654 ‑ 655). (emphasis added)
So:
(a)The prosecutor did not submit that her Honour should find that the appellant had the knife when the incident began; indeed, the prosecutor maintained that her Honour was unable to make a finding as to whether the appellant or the complainant initially had the knife.
(b)On the other hand, defence counsel submitted that her Honour should make a positive finding that the complainant initially had the knife.
The trial judge summarised in detail, in her sentencing remarks, the evidence given by each of the principal witnesses at trial.
Her Honour made the following observations:
[T]he evidence at trial clearly pointed to the fact that you had consumed alcohol that evening and that you were behaving in a somewhat aggressive and somewhat out‑of‑control manner.
...
I accept that this offence was not premeditated in the strict sense and was marked by a degree of spontaneity on your part. But it was comparatively sustained, according to the observations of a number of eyewitnesses, and, further, it was vicious.
The evidence of Mr Ahmed, the taxi driver, does not particularly support a view that the complainant, Mr Tydeman, was behaving towards you in a very threatening or provocative manner. Regrettably, the complainant himself has little or no memory of that aspect of the incident. And it does appear that the incident happened comparatively quickly (ts 687, 690).
The trial judge did not, however, make a finding, in her sentencing remarks, as to whether the appellant or the complainant had possession of the knife when the incident began. Her comments about the knife were, relevantly, confined to the following:
Your attack upon [the complainant] was, on the evidence of a number of witnesses, somewhat sustained and he clearly was in no position when he was on the ground to ward off your attack or defend himself. On your version of events, once you had retrieved the knife from the complainant - if that is what occurred - there was absolutely no sound reason why you had to continue your attack upon him when he was so defenceless and so vulnerable (ts 693). (emphasis added)

Ground 1: the appellant's submissions

Counsel for the appellant developed ground 1 at the hearing. He submitted that the exchange between the trial judge and the prosecutor in relation to the knife, which I have set out at [28] above, reveals that her Honour was under a misapprehension as to the standard of proof applicable in determining whether the complainant initially had the knife. According to counsel, her Honour appears to have been of the view that the standard was beyond reasonable doubt and not on the balance of probabilities. Counsel argued that it was open to her Honour to find on the balance of probabilities that the complainant had possession of the knife when the incident began. It was acknowledged by counsel that '[it] may be that her Honour could not be satisfied on the balance of probabilities as to whether [the complainant] had the knife'. However, counsel submitted that her Honour made no such finding and 'it is unknown what test she ... applied'.

Ground 1: its merits

A trial judge must make findings of fact, for the purposes of sentencing, on the evidence adduced at trial and any additional information received during the sentencing process. See, generally, s 15 of the Sentencing Act 1995 (WA), which provides that, to decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.
In The State of Western Australia v JWRL (a child) [2010] WASCA 179, Martin CJ (Buss JA relevantly agreeing) referred to some of the established principles of law governing the fact-finding process for the purposes of passing sentence [9]:
Where the offender to be sentenced has been found guilty following trial by jury, the judge must determine the facts relevant to the sentencing process: see Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [5] and [36]. Although the facts found by the sentencing judge must be consistent with the verdict of the jury, it is the trial judge who must find those facts, rather than speculate about the facts that may or may not have been found by the jury: Cheung [9] - [11]. '[P]rovided the facts found by a sentencing judge are not inconsistent with the jury's verdict, a sentencing judge may well make an assessment of an offender's degree of culpability which would not be supported by all, or perhaps any, members of the jury': Cheung [36].
So, the facts implicit in a verdict of guilty after a trial before a judge and jury cannot be controverted during the sentencing process. The trial judge must sentence according to those facts, whatever his or her personal views may be about the verdict. Usually, the facts implied by the verdict will be clear. See R v Storey [1998] 1 VR 359, 366 (Winneke P, Brooking & Hayne JJA & Southwell AJA).
An aggravating circumstance is a fact or other circumstance likely to result in a more severe sentence than would otherwise be the case. A mitigating circumstance is a fact or other circumstance likely to result in a less severe sentence than would otherwise be the case. The prosecution must establish an aggravating circumstance beyond reasonable doubt and the offender must establish a mitigating circumstance on the balance of probabilities. See Storey (371); R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [24], [25], [27] (Gleeson CJ, Gaudron, Hayne & Callinan JJ); Law v The State of Western Australia [2009] WASCA 193 [25] ‑ [34] (Buss JA, McLure & Pullin JJA agreeing).
If the trial judge is not persuaded of the existence of a particular fact, whether mitigating or aggravating, the absence of that fact does not prove the converse fact, adverse to or in favour of the offender, as the case may be. Where the trial judge is not persuaded of the existence of a fact, the fact does not exist for the purposes of sentencing. See R v Lobban [2001] SASC 392; (2001) 80 SASR 550 [32] (Martin J, Mullighan & Bleby JJ agreeing); Bomford v The State of Western Australia [2013] WASCA 153 [22] (Buss JA, Mazza JA agreeing).
In the present case, it is necessary to read the trial judge's sentencing remarks in the context of her interaction with the prosecutor and defence counsel throughout the sentencing hearing.
It is apparent, in my opinion, that her Honour was unable to make a finding as to which of the appellant or the complainant initially had possession of the knife. My reasons are as follows.
First, the trial judge emphasised during discourse with the prosecutor and defence counsel that she would not speculate about who had possession of the knife when the incident began (ts 651). Secondly, her Honour informed defence counsel, in the context of the jury's finding beyond reasonable doubt that the appellant did not act in self‑defence, that she could not make 'many concrete findings about the knife other than it was there'; she could not make 'a positive finding that [the complainant] advanced upon [the appellant] with a knife'; and she '[did not] know, in essence, who had the knife' (ts 646). Thirdly, her Honour informed the prosecutor that she '[could not] find whether [the appellant] did or [did not have the knife]'; and she '[could not] find whether [the complainant] did or [did not have the knife]' (ts 651). Fourthly, her Honour reiterated to the prosecutor, later at the sentencing hearing, that she '[could not] find that [the appellant] had [the knife]' and she '[could not] find that [the complainant] had the knife either' (ts 652). Fifthly, her Honour informed the prosecutor, towards the end of the prosecutor's submissions, that the prosecutor's contention that her Honour could not find whether it was the appellant or the complainant who initially had possession of the knife reflected her Honour's 'initial feeling' about the matter (ts 654). Sixthly, her Honour did not make a finding, in her sentencing remarks, as to which of the appellant or the complainant had possession of the knife when the incident began. She did not state, in her sentencing remarks, that she was unable to make a finding. However, her comment to the effect that, on the appellant's version of events, 'once [the appellant] had retrieved the knife from the complainant - if that is what occurred - there was absolutely no sound reason why [the appellant] had to continue [his] attack upon [the complainant]' is consistent with and reflects her Honour's inability to make a finding on the point (ts 693) (emphasis added).
Her Honour's observation to the prosecutor that she 'would have to make a finding beyond a reasonable doubt' must be evaluated in the context of the exchange in which it occurred (ts 652). I have set out the relevant passage at [28] above. I have also listened to the audio recording of this passage. The observation was made in the course of a discussion between her Honour and the prosecutor about her Honour's view that the knife was not an aggravating factor in the sentencing of the appellant. Her Honour explained that she could not find that the appellant had the knife. She interposed, as an aside, that she could not find that the complainant had the knife either. Her Honour then referred to having to make a finding beyond reasonable doubt in the context of:
(a)not having the material before her to enable such a finding to be made;
(b)accepting that the appellant approached the taxi in an aggressive frame of mind; and
(c)her view that this state of mind did not necessarily mean that the appellant had the knife (ts 652).
I am satisfied that the trial judge's reference to having to make a finding beyond reasonable doubt was confined to the finding of an aggravating circumstance against or adverse to the appellant. I am not persuaded that her Honour, a trial judge with very substantial criminal law experience, made a basic error in relation to the standard of proof applicable to the establishment by an offender of a mitigating circumstance.
Her Honour was not bound to make a finding as to which of the appellant or the complainant had possession of the knife when the incident began. She did not make an error of fact in being unable, in the circumstances, to make a finding on this issue.
Ground 1 fails.

Ground 2: its merits

Section 297(1) of the Code provides that any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 10 years. This offence is to be compared to and contrasted with the offence created by s 294 of the Code. By s 294(1), relevantly, any person who, with intent to do some grievous bodily harm to any person, unlawfully does any grievous bodily harm to any person by any means whatever, is guilty of a crime, and is liable to imprisonment for 20 years. As I have mentioned, the appellant was charged with and convicted of the offence contrary to s 297(1).
In Trompler v The State of Western Australia [2008] WASCA 265, Wheeler JA (Buss JA agreeing) noted that there are, in general, three matters of significance in determining the criminality of an offence which involves unlawfully doing grievous bodily harm. First, there is the nature of the harm which is inflicted. Although any grievous bodily harm is necessarily serious, it may range from a permanent injury with which the complainant is able to cope, to a severe and life‑threatening injury which occasions significant permanent disability. Secondly, there is the nature of the act which causes the harm. This may range from a single act, to repeated acts of violence. Thirdly, there is the background to and circumstances of the offence. This may range from a response to a provocative act of the complainant, to random and senseless violence. See Trompler [9] ‑ [11]. See also Hussaini v The State of Western Australia [2009] WASCA 207 [23] (Wheeler JA).
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. 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.
McLure JA made these comments in Trompler about the broad range of sentences (post‑transitional) for unlawfully doing grievous bodily harm:
The sentences actually imposed for offences of this type have a post‑transitional range of 8 months (Camilleri) to 5 years and 4 months (Bruno v The State of Western Australia [2005] WASCA 149). I have reviewed many of the cases in between (including R v Hodges [1999] WASCA 278; Hayes v The Queen [2003] WASCA 230; Clements v The State of Western Australia [2006] WASCA 69; Etrelezis v The Queen [2001] WASCA 327) [38].
In each of The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394, Bruno v The State of Western Australia [2005] WASCA 149, R v Hodges [1999] WASCA 278, Hayes v The Queen [2003] WASCA 230 and Clements v The State of Western Australia [2006] WASCA 69, the offender entered a plea of guilty.
In Trompler, Wheeler JA observed:
I would note that in Camilleri (The State of Western Australia v Camilleri [2008] WASCA 217), I reviewed a number of cases involving offences of grievous bodily harm. They reveal that, as one would expect, serious offences of the kind inevitably attract sentences of imprisonment of some severity and that, prior to the increase in the maximum penalty from 7 years to its current maximum of 10 years, relatively serious examples of that kind of offence would result in a range of sentences (pre‑transitional) of 3 to 5 years. Allowing for the effect of the transitional provisions and the effect of the increase in the maximum, one would expect a post‑transitional range of 3 to 5 years for those offences which are towards the upper end of the range, although not of the most serious kind [19].
In Mercanti v The State of Western Australia [2009] WASCA 109, Miller JA (Wheeler & Pullin JJA agreeing) held that the general range established in cases of unlawfully doing grievous bodily harm is between 8 months and 5 years 4 months, but more like 3 to 5 years for offences towards the upper end of the range [35]. His Honour added that these ranges were 'post‑transitional' and, in view of the decision of the majority in The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, this was the appropriate range to apply [36].
I have considered numerous prior cases of offending against s 297(1) of the Code. In addition to Trompler, Hussaini, Camilleri, Bruno, Hodges, Hayes, Clements and Mercanti, I have examined Cotterill v The State of Western Australia [2013] WASCA 52; The State of Western Australia v Taylor [2012] WASCA 233; Djiagween v The State of Western Australia [2012] WASCA 141; Holden v The State of Western Australia [2011] WASCA 238; Hobby v The State of Western Australia [2011] WASCA 197; Ward v The State of Western Australia [No 2] [2010] WASCA 208; and Steel v The State of Western Australia [2010] WASCA 118.
The appellant's offending was very serious. In particular:
(a)The appellant inflicted several punches to the complainant's head. He also kicked the complainant and pushed his head into the bitumen.
(b)The appellant's attack was vicious and sustained. He continued to assault the complainant when the complainant was unconscious, vulnerable and unable to defend himself.
(c)The complainant's comment that the appellant was a 'woman basher' was, in the context of his aggression towards Ms Bryce and Ms Southgate, an insignificant slight.
(d)The complainant suffered a brain injury with three points of trauma to his head, consistent with his head having been punched or kicked or forced onto a hard surface. The brain injury was primarily on the front right area of the brain and involved bruising, swelling and bleeding. The pressure in the brain was released and the injury was then managed by medication. The complainant was placed in an induced coma. He was intubated at Royal Perth Hospital on 27 February 2011 and was extubated on 3 March 2011. When he awoke, he was reported to have post‑traumatic amnesia. On 14 March 2011, the complainant was transferred to a rehabilitation unit. Upon release from hospital, about one month after admission, the complainant was required to remain under medical supervision because of the nature and extent of his injuries. The complainant's brain injury endangered or was likely to endanger his life and was of such a nature as to cause or be likely to cause permanent injury to health. In addition to the brain injury, he suffered abrasions, a full thickness laceration above his left eye and a swollen ear, and one of his front teeth was shattered at its base. Also, he has lost his sense of smell and his sense of taste has been impaired. Neither is likely to be recovered.
(e)The complainant's victim impact statement reveals that the appellant's conduct has had a profound and debilitating impact upon him. Prior to the incident, he was a happy person with a fulfilling life. He had many friends, a good job and a bright future. He was physically active, engaged in hobbies and socialised with friends. The time he spent in hospital after the incident was extremely depressing and quite frightening for him. He has been unable to resume his previous employment and he has become socially withdrawn and solitary. His memory has been adversely affected. He suffers from vertigo and dizziness. He has ongoing headaches and difficulty with sleeping. The complainant has been prescribed with strong medication for the ongoing headaches. He has been advised that, as a result of the head injuries, he is at risk of suffering seizures. As a consequence, he has had to restrict his physical activities. The complainant has suffered financial loss as a result of his inability to return to his former lucrative employment.
The appellant was born on 4 July 1988. He was 22 at the time of the offence and 24 when sentenced. When he offended he was a relatively young man for sentencing purposes. At the time of sentencing, the appellant had been in a relationship with a woman for about 18 months. He was to become a father for the first time in March 2013. He had a consistent work history and some people had spoken well of him in written references. The appellant appears to have been a competent and reliable employee.
The appellant had a dysfunctional upbringing. He has an entrenched history of alcohol and drug abuse and an inability to control his emotions and impulsivity. The appellant's offending against the complainant was driven, in part, by alcohol and, in part, by anger stemming from his irritation and annoyance with Ms Bryce's behaviour earlier in the evening.
The author of the pre‑sentence report noted that the appellant has had 'a long standing problem with alcohol, cannabis and amphetamine use from 16 years of age'. He experiences difficulties with relationships and uses substances to 'self soothe'. He tends to minimise the level of his substance abuse and has rejected previous attempts at rehabilitation.
The author of the pre‑sentence report made this assessment as to the appellant's risk of reoffending:
[The appellant] has a history of violent offending behaviour from an early age. He appears to have unresolved issues of abandonment and difficulty in his relationships with women. [The appellant] has poor emotional regulation skills and is prone to self soothe with alcohol, amphetamine and cannabis during periods of stress. He has previously been violent towards members of his family that include his mother and partners. Whilst these issues may be addressed through his engagement in programmatic interventions [the appellant] is considered to have little insight towards the triggers of his offending behaviour and has resisted previous intervention attempts.
The appellant did not have the mitigation that a plea of guilty would have brought. Also, he demonstrated a lack of remorse for his offending. Any apparent remorse was attributable to the consequences for him of the offending, rather than empathy for the complainant and genuine contrition.
The appellant was not of good character. He had a prior criminal record. His previous convictions included possession of a prohibited drug, criminal damage (multiple offences), assault occasioning bodily harm, numerous traffic offences, common assault, unlawful assault with circumstances of aggravation (multiple offences), breach of a police order, breach of a community based order (multiple offences) and breach of protective bail conditions. The trial judge made the following comments about the appellant's recent offending history and his response to parole and community based orders:

You were released to parole on 9 May 2007, which was to expire on 8 November that year, following a term of imprisonment for offences of burglary, damage and assault occasioning bodily harm. Apparently, you satisfied the requirements of your parole order, but urine analysis results conducted during that period indicated ongoing drug use. And during the period, you were charged with an offence of no MDL.
You were placed on a nine-month community-based order and ordered to complete 100 hours of community service work on 29 September 2009, following convictions for driving without a licence and damage. Initially, you responded poorly to your obligations under the order but subsequently, you satisfied the requirements of the order.
Community-based orders imposed on you on 9 November 2010 and 25 May 2011 were breached both by omission and recidivism. The pre‑sentence report states that the issues considered to underlie your offending behaviour at this point in time remain largely unresolved (ts 689).

The principal sentencing considerations were appropriate punishment and personal and general deterrence. The appellant's offending is properly to be characterised as towards the upper end of the range of seriousness for offences against s 297(1) of the Code, but not in the worst category.
In my opinion, the sentence of 5 years' immediate imprisonment was high. It was, nevertheless, commensurate with the seriousness of the offence. After taking into account the maximum penalty (10 years' imprisonment), the circumstances of the offending (including the vulnerability of the complainant), the standards of sentencing customarily observed with respect to the offence in question, the place which the appellant's criminal conduct occupies on the scale of seriousness of offences of this kind, the appellant's personal circumstances and antecedents and all aggravating and mitigating factors, I am satisfied that the sentence was not manifestly excessive. The sentence did not exceed the limits of a sound exercise of the sentencing discretion. It was not unreasonable or plainly unjust.
Ground 2 fails.

Conclusion

I would grant leave to appeal on ground 2. However, neither ground of appeal has been made out. The appeal must therefore be dismissed.
MAZZA JA: I agree with Buss JA.