Forrest v The State of Western Australia - [2019] WASCA 172

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   FORREST -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 172
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   10 SEPTEMBER 2019
DELIVERED          :   5 NOVEMBER 2019
FILE NO/S:   CACR 228 of 2018
BETWEEN:   NYILTJIRI NAALINA FORREST
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GOETZE DCJ
File Number             :   IND 1148 of 2018

Catchwords:

Criminal law - Appeal against sentence - Doing an act, with intent to harm, as a result of which bodily harm is caused to another - Offending occurred in a prison where the appellant and the victim were prisoners - Vigilantism - Plea of guilty - Sentence of 5 years' immediate imprisonment - Manifest excess

Legislation:

Criminal Code (WA), s 304(2)(a)

Result:

Application for an extension of time within which to appeal granted
Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms K J Farley SC & Ms N R Sinton
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Legal Aid Western Australia
Respondent	:	Director of Public Prosecutions (WA)

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Chikonga v The State of Western Australia [2017] WASCA 34
Gleeson v The State of Western Australia [2019] WASCA 100
Kaokula v The State of Western Australia [2016] WASCA 198
Lawrence v The State of Western Australia [2015] WASCA 187
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Penny v The State of Western Australia [2016] WASCA 52
Quirk v The State of Western Australia [2019] WASCA 76
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Sophiadakis v The State of Western Australia [2016] WASCA 203
Starr v The State of Western Australia [2011] WASCA 170
The State of Western Australia v Darroch [2018] WASCA 114
The State of Western Australia v Doyle [2017] WASCA 207
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465

JUDGMENT OF THE COURT:

This is an appeal against sentence.
The appellant was convicted, on her pleas of guilty, of two counts in an indictment.
Count 1 alleged that on 1 January 2018, at West Swan, the appellant, with intent to harm, did an act as a result of which bodily harm was caused to Trudi Clare Lenon, contrary to s 304(2)(a) of the Criminal Code (WA) (the Code).
Count 2 alleged that, on the same date and at the same place as in count 1, the appellant unlawfully did an act as a result of which the life, health or safety of Justine Claire Campbell was, or was likely to be, endangered, contrary to s 304(1)(b) of the Code.
On 1 November 2018, Goetze DCJ sentenced the appellant to 5 years' immediate imprisonment on count 1 and 12 months' immediate imprisonment on count 2. The sentence for count 2 was ordered to be served wholly concurrently with the sentence for count 1. The total effective sentence was therefore 5 years' immediate imprisonment. The sentences were backdated to 23 July 2018. A parole eligibility order was made.
The sole ground of appeal alleges that the sentence imposed on count 1 was manifestly excessive as to length having regard to all relevant circumstances, including those referable to the appellant personally. On 6 March 2019, Buss P and Beech JA ordered that the application for leave to appeal be referred to the hearing of the appeal.
We would grant leave to appeal. However, the ground of appeal has not been made out and the appeal must therefore be dismissed.

The facts and circumstances of the offending

The facts and circumstances of the offending, as summarised by the sentencing judge in his sentencing remarks, were as follows.[1]
[1] ts 17 - 19.
At the time of the offending the appellant, Ms Lenon and Ms Campbell were prisoners at Bandyup Women's Prison. The appellant knew Ms Lenon by reputation and was disgusted by a crime which Ms Lenon had committed. The appellant formed an intention to harm her. The appellant heard Ms Lenon laughing while Ms Lenon was standing in a medical queue with Ms Campbell. The appellant decided to pour a cup of tea over Ms Lenon.
The appellant went into the kitchen area nearby to obtain a cup of tea. When she reached the kitchen she saw a 2 litre container and decided instead to fill that container with hot water from an urn. The appellant returned to the queue and, from behind and without warning, poured the hot water onto Ms Lenon's shoulders (count 1). Some of the water splashed onto Ms Campbell (count 2).
As a result of the appellant's attack, Ms Campbell suffered minor burns to her back and left shoulder. Ms Lenon suffered deep dermal second degree burns to 21% of her body. She sustained burns to her back, breasts, abdomen, right arm and left leg. Any burn greater in area than 15% of the body surface area is potentially life-threatening and requires specialist medical and nursing care. Fortunately, the harm suffered by Ms Lenon was ameliorated in part by the prompt response of prison staff. His Honour noted that the potential for harm was far greater than the harm that actually occurred.[2] His Honour found that, as a result of the appellant's action, Ms Lenon suffered a potentially life-threatening injury.[3]
[2] ts 19.
[3] ts 18.
After the appellant's attack, Ms Lenon was taken to hospital. She was an inpatient for about three weeks, including two days in the intensive care unit. Ms Lenon required ward based debridement, washing of her burns, the application of dressings on a daily basis and care from physiotherapists, occupational therapists, psychologists, dietetics, infectious diseases physicians, microbiologists and other specialists.[4] Her burns healed without the need for surgery. Ms Lenon will always have some degree of mild scarring and some difference in pigmentation in the areas that were burnt. She will not, however, require scar revision.
[4] ts 18.
The appellant was interviewed by police on 17 January 2018 and admitted her offending. She told the police that she had previously informed prison staff that she could not be in the same unit as Ms Lenon. She had not intended to hurt Ms Campbell.
As a result of the offending, the appellant spent 43 days in a management unit and an additional seven days in another special unit at the prison.[5]
[5] ts 19 - 20.

The sentencing judge's sentencing remarks

After summarising the facts and circumstances of the offending, the sentencing judge referred to the appellant's personal circumstances and antecedents.[6] She was born on 24 August 1982. She was aged 35 years at the time of the offending and was 36 when sentenced. She had a dysfunctional childhood and had been subjected to violence and abuse.
[6] ts 20.
The appellant attended school until the beginning of year 12. She had no recent employment history. She has six children from previous relationships, which his Honour noted were the appellant's 'primary motivating factor to improve [her] personal circumstances upon release'.[7]
[7] ts 20.
The appellant has a history of substance abuse. She used cannabis between about age 12 and age 25. She has also used amphetamines. Her use of alcohol fluctuated prior to being incarcerated.[8]
[8] ts 20.
The sentencing judge noted that the appellant suffers from various physical and mental illnesses, including vision and hearing problems, post-traumatic stress disorder, bipolar disorder and anger problems.[9] She had a heart attack approximately two years prior to sentencing. Some of the appellant's illnesses are a result of the appellant's substance abuse.[10] His Honour noted that the appellant required counselling and support programs and that she had not historically performed well when placed on community-based orders.[11]
[9] ts 20.
[10] ts 20.
[11] ts 21.
The appellant has an extensive criminal record, including previous convictions for assault occasioning bodily harm, assaulting the driver of a taxi or omnibus, common assault (multiple offences), breaches of violence restraining orders and other orders, burglary, failing to provide personal details, property damage, stealing, breach of bail, possession of prohibited drugs and obstructing police officers. His Honour said, in effect, that the appellant was not 'being punished twice for past matters', but the appellant's record prevented her from receiving the mitigation that would be given to a person of prior good character.[12]
[12] ts 22.
The information before the sentencing judge included a pre‑sentence report dated 18 September 2018 and a psychiatric report dated 6 June 2018. Those reports outlined that the appellant had limited victim empathy and had shown no remorse, except for the injuries suffered by Ms Campbell. The appellant had written a letter dated 5 October 2018 to his Honour in which she expressed a degree of remorse for her offending. His Honour decided that the appellant had recently expressed some remorse in relation to Ms Lenon.[13]
[13] ts 22.
His Honour noted the importance of personal and general deterrence as sentencing considerations. His Honour accepted the prosecutor's characterisation of the appellant's assault upon Ms Lenon as a 'vigilante' attack.[14] This aggravated the seriousness of the appellant's offending.
[14] ts 22.
The offending was also aggravated by premeditation. His Honour noted that the appellant had 'warned the authorities that something might happen' if she remained in contact with Ms Lenon.[15]
[15] ts 22.
The offending was further aggravated by the fact that the appellant was in custody for breach of community based orders in respect of other violent offending.
As to mitigating factors, the sentencing judge noted that the appellant had cooperated with police and had pleaded guilty, thereby indicating some remorse, accepting responsibility for her offending and facilitating the administration of justice.[16] His Honour afforded the appellant the maximum available discount of 25% under s 9AA of the Sentencing Act 1995 (WA) for her pleas of guilty.[17]
[16] ts 22.
[17] ts 22.
His Honour also considered that the appellant's dysfunctional and violent family background was mitigating.[18]
[18] ts 22.

Counsel for the appellant's submissions

Counsel for the appellant acknowledged that the potential for harm was significant and exceeded the harm actually done to Ms Lenon.[19] Counsel also acknowledged that the seriousness of the offending was increased by the fact that it occurred in a custodial setting, thereby undermining the good order of the prison.[20]
[19] AB 13.
[20] AB 13.
However, counsel argued that the combination of the appellant's disadvantaged background, mental health issues, cooperation with police and plea of guilty, as well as the fact that the appellant had already received a degree of extra curial punishment by having been confined in the management unit and the other special unit in the prison, meant that, when compared with sentences imposed in other cases, the sentence for count 1 was manifestly excessive.[21]
[21] AB 13.
Counsel for the appellant cited a number of cases which she argued demonstrated that the appellant's sentence was manifestly excessive, including Starr v The State of Western Australia,[22] Penny v The State of Western Australia,[23] Kaokula v The State of Western Australia,[24] Sophiadakis v The State of Western Australia[25] and Chikonga v The State of Western Australia.[26] However, counsel accepted at the hearing of the appeal that the appellant's commission of the offence in a custodial setting meant that none of those cases were truly comparable.[27]
[22] Starr v The State of Western Australia [2011] WASCA 170.
[23] Penny v The State of Western Australia [2016] WASCA 52.
[24] Kaokula v The State of Western Australia [2016] WASCA 198.
[25] Sophiadakis v The State of Western Australia [2016] WASCA 203.
[26] Chikonga v The State of Western Australia [2017] WASCA 34.
[27] Appeal ts 10.
Counsel for the appellant drew a parallel between the appellant's 'lived trauma as a child' and what the appellant had discovered about Ms Lenon's offending.[28] In his plea in mitigation, the appellant's defence counsel told the sentencing judge that 'at the age of five [the appellant] was helping her father to bury a body in the backyard'.[29] The body of the victim of Ms Lenon's offending was found buried in Ms Lenon's backyard. In his plea in mitigation, the appellant's defence counsel did not draw a connection between the appellant's experience and her reaction to Ms Lenon's offending. However, counsel for the appellant argued at the hearing of the appeal that the similarities were such that '[a] connection [cannot] really be avoided'.[30]
[28] Appeal ts 11.
[29] ts 11.
[30] Appeal ts 11 - 12.

The merits of the appeal

As we have mentioned, the appellant's sole ground of appeal asserts that the sentence imposed for count 1 was manifestly excessive as to length having regard to all relevant circumstances, including those referable to the appellant personally. It was accepted that the seriousness of the offending on count 1 was such that a term of immediate imprisonment was necessary.[31]
[31] AB 15.
There is no challenge to the sentence for count 2.[32]
[32] AB 13.
The appellant does not challenge any of the sentencing judge's findings of fact or allege that his Honour made any other express error.
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances and antecedents of the offender.
A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is a yardstick for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. Consistency in sentencing means that like cases must be treated alike and different cases must be treated differently. See R v Pham.[33] However, the scope for material differences in each case in relation to relevant sentencing factors, and the weight to be given to them, must be borne in mind. The limits of the guidance afforded by comparable cases are therefore flexible rather than rigid.
[33] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28] (French CJ, Keane & Nettle JJ).
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 upper or lower limit of a sentencing range.
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is or is not manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. See Munda v The State of Western Australia;[34] The State of Western Australia v Doyle.[35]
[34] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[35] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[36]
[36] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
In the present case, the sentencing judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act.
The statutory principle embodied in s 6(1) of the Sentencing Act that a sentence must be commensurate with the seriousness of the offence reflects the common law principle which requires that a sentence be proportionate to the offence. See Veen v The Queen [No 2].[37]
[37] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson & Toohey JJ), 484 - 486 (Wilson J), 490 - 491 (Deane J).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[38]
[38] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
At the material time, s 304(2) and s 304(3) of the Code provided:
(2)If a person, with an intent to harm, omits to do any act that it is the person's duty to do, or does any act, as a result of which -
(a)     bodily harm is caused to any person; or
(b)the life, health or safety of any person is or is likely to be endangered,
the person is guilty of a crime and is liable to imprisonment for 20 years.
(3)For the purposes of subsection (2) an intent to harm is an intent to -
(a)     unlawfully cause bodily harm to any person; or
(b)unlawfully endanger the life, health or safety of, any person; or
(c)     induce any person to deliver property to another person; or
(d)     gain a benefit, pecuniary or otherwise, for any person; or
(e)cause a detriment, pecuniary or otherwise, to any person; or
(f)prevent or hinder the doing of an act by a person who is lawfully entitled to do that act; or
(g)compel the doing of an act by a person who is lawfully entitled to abstain from doing that act.
The term 'bodily harm' is defined in s 1(1) of the Code to mean, unless the context otherwise indicates, 'any bodily injury which interferes with health or comfort'.
In The State of Western Australia v Darroch,[39] Mazza and Beech JJA and Allanson J noted:
(a)the structure of s 304(2) reveals that potential harm may be as significant as actual harm, and cases cannot be approached with a singular focus on the presence and extent of physical injuries;
(b)however, where the potential for harm inherent in an offender's conduct eventuates and the victim suffers serious injuries, that will be a significant factor in determining the appropriate sentence.
[39] The State of Western Australia v Darroch [2018] WASCA 114 [34].
In Quirk v The State of Western Australia,[40] Buss P, Mitchell and Pritchard JJA made these comments in relation to s 304(2):
[T]he offence created by s 304(2) does not require that bodily harm is actually caused to any person. It is sufficient that the life, health or safety of any person is, or is likely to be, endangered, by the act of the offender (Criminal Code s 304(2)(b)). The factors relevant to sentencing for an offence under s 304(2) of the Criminal Code thus include the nature and seriousness of the offender's intent to harm; the nature and seriousness of the bodily harm caused to a particular victim, or the severity and other circumstances of the actual or likely endangering of the particular victim's life, health or safety; and the potential (as distinct from the actual) consequences of the offender's conduct. Moreover, the structure of s 304(2) reveals that the potential risk to life, health or safety may be equally as important as the actual harm caused by the person's act done with the intent to harm. If injury does occur, that may aggravate the offending. Where the potential for harm inherent in the offender's conduct materialises and the victim suffers serious injuries, that will be a significant factor in the determination of the appropriate sentence. However, the absence of any injury does not detract from the seriousness of the offending by virtue of the risk to the life, safety or health of any person. (citations omitted)
[40] Quirk v The State of Western Australia [2019] WASCA 76 [55].

The offence created by s 304(2) may be committed in a wide range of circumstances and, consequently, a wide range of sentences have been imposed for offences against s 304(2). The correctness of that proposition is confirmed by the review of the authorities undertaken in Penny.[41] There is no hierarchy of seriousness as between offences against s 304(2). The seriousness of each case depends upon its own facts and circumstances. There is no sentencing tariff.
[41] Penny [33] - [40] (McLure P). See also Lawrence v The State of Western Australia [2015] WASCA 187 [36]; Quirk [57].
It is necessary, in evaluating the objective seriousness of the appellant's offence against s 304(2)(a), to have regard to, amongst other things, the nature and seriousness of the appellant's 'intent to harm', within s 304(2); the nature and seriousness of the appellant's 'act', within s 304(2); the nature and seriousness of the actual 'bodily harm', within s 304(2)(a), which the appellant's 'act' caused to Ms Lenon; and the inherent potential of the appellant's 'act' to have caused Ms Lenon more serious 'bodily harm'.
We have considered a number of appeals against sentence decided by this court which have involved offending contrary to s 304(2) of the Code. The cases we have considered include those cited by counsel for the appellant and, also, the cases reviewed in Penny [33] - [40], Darroch (and the cases reviewed in Darroch [40] - [42], Quirk, Gleeson v The State of Western Australia[42] and Vander Waide v The State of Western Australia.[43] However, as counsel for the appellant accepted, there are no decisions of this court that have involved truly comparable offending because the appellant committed her offence in a prison.
[42] Gleeson v The State of Western Australia [2019] WASCA 100.
[43] Vander Waide v The State of Western Australia [2019] WASCA 148.
The appellant's offending was very serious. The offending was unprovoked and motivated by vigilantism. It involved some premeditation. The appellant poured the hot water onto Ms Lenon from behind and without warning. The assault occurred in a custodial setting where prisoners are vulnerable to attack by other prisoners. Ms Lenon suffered significant injuries. She was an inpatient at a hospital for about three weeks, including two days in the intensive care unit. The appellant's offending had the potential to cause Ms Lenon a life‑threatening injury.
The appellant was aged 35 when she committed the offence. She was not youthful or inexperienced for sentencing purposes.
The appellant's prior criminal record did not aggravate the seriousness of the offence. The appellant was not to be punished again for her past offending. However, her prior criminal record demonstrated that the appellant was not entitled to leniency on the ground that she was a first offender or that committing a criminal offence was an uncharacteristic aberration. The appellant's prior criminal record underscored the importance of personal deterrence as a sentencing factor. General deterrence was also of importance.
The principal mitigating factors were the appellant's plea of guilty (for which she received a 25% discount); her cooperation with the police; her belated expression of some remorse; and her dysfunctional and violent family background.
The appellant's confinement in the management unit and the other special unit in the prison involved internal disciplinary action by the prison authorities arising from the appellant's conduct. No evidence was placed before his Honour or this court about the conditions of the appellant's confinement. In the circumstances, the appellant's confinement in those units was not a mitigating factor of any significance.
There was no evidence before the sentencing judge as to any connection between the appellant's traumatic childhood and the nature of Ms Lenon's offending. Indeed, the issue was not raised before his Honour. In the circumstances, the alleged connection should be treated on appeal as an aspect of the mitigation to be found in the appellant's dysfunctional and violent family background. That is how we have dealt with the matter.
We are not persuaded that the sentence of 5 years' immediate imprisonment for count 1 was manifestly excessive. The sentence was commensurate with the seriousness of the offence after taking into account the maximum penalty of 20 years' imprisonment, the facts and circumstances of the offending, the vulnerability of Ms Lenon in a custodial setting, the sentencing dispositions in previous cases with at least some features comparable to the present case, the appellant's personal circumstances and antecedents (including her physical and mental health difficulties), and all aggravating and mitigating factors. The sentence was reasonably open to his Honour on a proper exercise of his discretion. The sentence was not unreasonable or plainly unjust. Error cannot be implied from the sentencing outcome.

Conclusion

The appellant requires an extension of time within which to appeal. Her appeal notice was filed one week out of time. On 12 March 2019, Buss P referred the appellant's application for an extension of time to the hearing of the appeal. The State does not oppose the granting of an extension.[44] In the circumstances, the appellant's application for an extension should be granted.
[44] AB 20.
We would grant the appellant leave to appeal. However, the ground of appeal has not been made out and the appeal must therefore be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KL
Associate to the Honourable Justice Buss
5 NOVEMBER 2019