Gallager v The State of Western Australia
[2016] WASCA 54
•29/03/16
GALLAGER -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 54
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 54 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:74/2015 | 1 MARCH 2016 | |
| Coram: | BUSS JA MAZZA JA MITCHELL J | 29/03/16 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal against conviction refused Leave to appeal against sentence granted Appeals dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOHN KEVIN GALLAGER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against conviction Whether verdict unreasonable or not supported by the evidence Turns on own facts Criminal law Application for leave to appeal against sentence Grievous bodily harm with intent Whether sentence manifestly excessive |
Legislation: | Criminal Code (WA), s 294 |
Case References: | Abfahr v The State of Western Australia [2013] WASCA 87 Bibovic v The State of Western Australia [2016] WASCA 22 Black v The State of Western Australia [No 2] [2010] WASCA 145 Cairns v The State of Western Australia [2015] WASCA 198 EAGD v The State of Western Australia [No 2] [2014] WASCA 68 Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328 House v The King (1936) 55 CLR 499 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 M v The Queen (1994) 181 CLR 487 R v Pham [2015] HCA 39 Rolfe v The State of Western Australia [2012] WASCA 169 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Stephens v The State of Western Australia [2005] WASCA 98 Wells v The State of Western Australia [2013] WASCA 124 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GALLAGER -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 54 CORAM : BUSS JA
- MAZZA JA
MITCHELL J
- CACR 84 of 2015
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SWEENEY DCJ
File No : IND 1512 of 2013
Catchwords:
Criminal law - Application for leave to appeal against conviction - Whether verdict unreasonable or not supported by the evidence - Turns on own facts
Criminal law - Application for leave to appeal against sentence - Grievous bodily harm with intent - Whether sentence manifestly excessive
Legislation:
Criminal Code (WA), s 294
Result:
Leave to appeal against conviction refused
Leave to appeal against sentence granted
Appeals dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms A C Longden
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abfahr v The State of Western Australia [2013] WASCA 87
Bibovic v The State of Western Australia [2016] WASCA 22
Black v The State of Western Australia [No 2] [2010] WASCA 145
Cairns v The State of Western Australia [2015] WASCA 198
EAGD v The State of Western Australia [No 2] [2014] WASCA 68
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
House v The King (1936) 55 CLR 499
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen (1994) 181 CLR 487
R v Pham [2015] HCA 39
Rolfe v The State of Western Australia [2012] WASCA 169
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Stephens v The State of Western Australia [2005] WASCA 98
Wells v The State of Western Australia [2013] WASCA 124
- REASONS OF THE COURT:
Summary
1 On 20 March 2015, the appellant was convicted of one count of intentionally doing grievous bodily harm to the complainant, contrary to s 294(1) of the Criminal Code. The date of the offence was 26 March 2013. On 6 May 2015, the appellant was sentenced to 7 years' imprisonment with eligibility for parole.
2 The State's case was that the appellant attacked the complainant, with whom he was boarding, with a steak knife after the complainant had ejected the appellant from the house due to his playing loud music. The State alleged that the appellant stabbed the complainant, resulting in a punctured lung which would be likely to endanger life. The appellant admitted stabbing the complainant, but said that he did so only after the complainant attacked him with the knife and tried to strangle the appellant.
3 The appellant seeks leave to appeal against his conviction on the ground that the jury's verdict was unreasonable and not supported by the evidence.
4 The critical issue at trial was whether the State had proven beyond reasonable doubt that the appellant was not acting in self-defence when he stabbed the complainant. The complainant's evidence, if accepted, proved facts which were inconsistent with the appellant having acted in self-defence. When regard is had to the whole of the evidence at trial, it was open to the jury to be satisfied beyond reasonable doubt that, at least in its critical elements, the complainant's account of the event was accurate. On that basis, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was not acting in self-defence and intentionally did grievous bodily harm to the complainant. The totality of the evidence does not support a conclusion that the jury must have entertained a reasonable doubt as to the appellant's guilt or that it would be dangerous to permit the appellant's conviction to stand. The appeal against conviction must therefore be dismissed.
5 The appellant also seeks leave to appeal against his sentence on the ground that it was manifestly excessive. The sentence of 7 years' imprisonment imposed on the appellant was not manifestly excessive having regard to the nature and seriousness of the offence, the circumstances of the offender and all other relevant sentencing factors. The appeal against sentence must also be dismissed.
6 More detailed reasons for reaching these conclusions follow.
Appeal against conviction
Uncontentious background
7 The appellant was taken in by the complainant as a boarder at the complainant's residence in Parmelia. On 25 March 2013, the complainant asked the appellant to leave the premises, but agreed to his staying for a further two weeks so as to have time to locate alternative accommodation. The appellant drank cider and beer, and played loud music late into the night of 25 - 26 March 2013. The complainant, who had to get up early for work the following morning, repeatedly asked the appellant to turn the volume down. The appellant did so, but after a time turned the volume up again.
Complainant's evidence
8 The complainant's account of what then transpired is as follows.
9 At about 1.00 am on 26 March 2013, the complainant got out of bed and told the appellant he had to go. The complainant took the carton of beer the appellant was drinking and placed it just outside the front door of the house. The appellant walked out to the front of the house and the complainant closed the door on him. The complainant then heard the appellant smashing things out the front, and could hear glass breaking. This went on for 5 - 10 minutes, until the complainant went out the front door and told the appellant to 'keep it down'.
10 The appellant came towards the complainant, who put his fists up to protect himself. The complainant thought the appellant punched him in the left side of his chest. The complainant then realised the appellant had a knife and that he had been stabbed. The complainant tried to get back inside to close the security door, which the appellant ripped away from him. The complainant slipped over as he went through the front door and was on his knees.
11 At this time the appellant was standing in front of the complainant, bringing a knife down on the top of his head, the left side of his chest, his left arm and his face. The complainant was trying to protect himself with his arm and trying to stop the blows.
12 The complainant was able to get up on his feet again as the appellant came towards him. The complainant was able to grab both of the appellant's arms and push him backwards into the lounge room, which was adjacent to the hallway, breaking a coffee table as he did so. The appellant landed in a chair with the complainant on top of him, which fell backwards into a window. The complainant had the appellant's hand pushed towards the floor, and was able to obtain possession of the knife.
13 The complainant, who by this time was having difficulty breathing, took the knife and ran across the road to his neighbours' house. He threw the knife to the side as he went to the neighbours' door. The appellant was following the complainant and said 'come back here, you weak cunt' a couple of times. The neighbours awoke, dragged the complainant into the house and police were called.
Appellant's evidence
14 The appellant gave evidence at trial, and described the following events.
15 The appellant and complainant were having a fight on the ground in the lounge room. The appellant did not remember how the fight started. At one point the appellant stood up by the television, and the complainant got up and went into the kitchen. The appellant heard the kitchen drawer rattle and decided to leave the house. He walked out of the lounge room to get out of the house, and saw the complainant standing in the main doorway holding a blade in his left hand and coming towards the appellant. The appellant punched the complainant to the jaw area with one hand and with his other hand grabbed the complainant by the wrist of the arm which was holding the knife.
16 The complainant then pushed the appellant. The appellant fell back landing on tiles near a Ned Kelly statue by the front door, on his back with his head towards the doorway. The appellant hit his head and blacked out. When he came to, the complainant was on top of him, straddling the appellant. The appellant's left arm was pinned down by the complainant's right knee. The appellant threw at least a dozen punches with his right hand as the complainant was strangling him. The appellant then located the knife and stabbed the complainant twice in the side and once in the neck and said 'you fucking die, get off me'.
17 The complainant then got up off the appellant and ran out of the door. The appellant went to the kitchen and got another knife and some work gloves to stop the knife slipping out of his hand. The appellant saw the complainant over the road and went there saying 'come on'. The appellant said his purpose in doing this was to make sure the complainant was not coming back.
18 The appellant then left the knife and gloves in the living room, and went outside where he drank beer and waited for the police to come. The police came when he was inside the house and arrested him. When he was arrested, the appellant said to police:
I stabbed the cunt. He fucking deserved it. Is he alright? Is he alive?
Issues at trial
19 Given the evidence of both the complainant and appellant, there was no issue at trial that the appellant stabbed the complainant. There was no challenge to evidence of a medical practitioner who treated the complainant at Royal Perth Hospital, to the effect that the appellant suffered a collapsed lung which was of such a nature as to be likely to endanger life. The live issues at trial, identified by the appellant's trial counsel in her opening address to the jury, were whether the appellant had acted in self-defence and whether he intended to occasion grievous bodily harm to the complainant.
20 The State could prove that the appellant was not acting in self-defence if it established one or more of the following matters beyond reasonable doubt:1
1. the appellant did not subjectively believe that stabbing the complainant was necessary to defend himself from an assault by the complainant;
2. there were no objectively reasonable grounds for the appellant to believe that stabbing the complainant was necessary to defend himself from an assault by the complainant;
3. stabbing the complainant was not an objectively reasonable response by the appellant in the circumstances as he subjectively believed them to be; or
4. there were no objectively reasonable grounds for the appellant's subjective belief as to the circumstances.
Ground of appeal
21 The appellant seeks leave to appeal on the single ground that the verdict of the jury was unreasonable and was not supported by the evidence.2
22 In considering this ground, it is necessary for this court to decide whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. In answering that question the court must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence. The court must not disregard or discount the consideration that the jury had the benefit of having seen and heard the witnesses.3 As the majority noted in M v The Queen:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 - 495). (footnotes omitted)
23 It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must make its own independent assessment of the sufficiency and quality of the evidence, and determine whether, notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand.4
24 The question for this court is whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.5
25 If the jury accepted the complainant's evidence in all material respects, that evidence was sufficient to establish the intention of the appellant to cause grievous bodily harm and exclude the possibility that the appellant was acting in self-defence.
The appellant's arguments in this court
26 The appellant submits that a number of inconsistent statements made by the complainant should give rise to a reasonable doubt experienced by the court, especially when consideration is given to the location of the complainant's and appellant's injuries, and a comparison of the complainant's evidence with the photographic evidence and where blood was located at the scene.
27 The appellant's written submissions, which were prepared with the assistance of the Legal Aid Commission of Western Australia, identify a number of matters which, taken together, are said to render the verdict unreasonable.
Injuries received outside
28 The appellant points to the inconsistency between the complainant's evidence and his first statement to police in which he described receiving all of his injuries outside the house. The first statement was given by the complainant to police on 17 April 2013, just after the complainant's discharge from hospital. The complainant explained in cross-examination that he was seriously injured, and had a significant stay in hospital, which impacted on his health and memory. He said:6
I'd just got out of hospital, I was just, yes, I just about died in hospital, so, yes, I suppose there was a lot of things going through my head.
29 The complainant accepted in cross-examination that his first statement to police did not mention any stabbing occurring in the house or its front doorway.7 He denied that he 'only came up with the stabbing happening in the doorway once the police had shown you the photos'. He said:8
I was going through a lot of trauma when I did that first one, all right? That's the only reason I made mistakes in that because I just couldn't think straight or anything at that time but that did happen in the doorway. God is my witness and - and that's it.
30 The complainant's failure to mention the stabbing in the house in his first statement to police was clearly a factor which the jury could consider when assessing the credibility and reliability of his evidence. However, the jury were also entitled to take into account the fact that the complainant sustained serious life-threatening injuries in a traumatic incident, requiring an extended stay in hospital. The jury could also take account of the photographic and forensic evidence (discussed below) which pointed to a stabbing having occurred in the hallway.
Black rod
31 The appellant says that the complainant was previously asked about a black rod found near the doorway after the incident. The appellant submits that, despite this, the complainant only disclosed in cross-examination that he used the rod to strike a lounge chair on one of the earlier occasions he told the appellant to be quiet.
32 Again, this was a consideration for the jury to take into account, but it did not demand either a rejection of the complainant's evidence or a reasonable doubt as to its credibility or reliability in material respects. There was no suggestion that the rod was used in the incident in which the complainant sustained his injuries. The complainant's evidence was that he hit the rod against a chair in order to attract the attention of the appellant, who was ignoring him. Given the incidental use of the rod to attract attention at a time before the alleged attack, it was not surprising that the complainant did not think to mention its use when providing his statements to police.9
33 At one point in his evidence the complainant was asked if he knew how the black rod got outside the house. He said he did not walk out with anything.10 In that context, the trial judge asked:11
Did you, at any stage during the scuffle or before the scuffle, did you actually have that rod - - -?---No.
- - - in your possession?---No.
Did you see anyone with it in their possession?---No.
All right. So you're just trying to work out, in your own - - -?---How - how it got - - -
- - - mind what?--- - - - got outside.
34 In cross-examination, the following exchange occurred between the complainant and the appellant's counsel:12
No, her Honour asked, 'Did you have the rod?' You said, 'No'?---When I went outside.
Mm?---Yeah, well, I didn't have it when I went outside.
35 Given the context in which the trial judge asked her questions, it was not surprising that the complainant understood that he was being asked about whether he had the rod when he went outside.
Complainant going to his knees
36 The complainant accepted in cross-examination that he said in his first statement to police:
I was slipping in the tiles near the front door and I couldn't keep on my feet.
37 The complainant indicated that he intended this statement to convey that he slipped over. He agreed that he did not mention being on his knees, or being stabbed while on his knees, in that statement.13
38 The appellant says that this omission from the first police statement was inconsistent with the complainant's evidence, in which he said he was repeatedly stabbed from above while on his knees near the front door to the house.
39 The appellant's complaint about the omission of the reference to stabbing is in substance a repetition of the complaint about the absence of any reference in the complainant's first police statement to being stabbed in the house.
40 The absence of any reference in the first police statement to the complainant being on his knees does not necessarily give rise to an inconsistency between his evidence and his statement. The complainant described slipping over in his statement, and did not say what his position was after slipping. The complainant's statement that he could not keep on his feet was not necessarily inconsistent with the evidence that he fell to his knees.
Photographs of scene
41 The appellant contends that the complainant's evidence as to the appellant's conduct outside the house before the stabbing was inconsistent with photographic evidence tendered at trial.
42 The complainant's evidence as to this issue was as follows:14
All right, and what happened after you closed the front door?---Then he started smashing things out the front.
All right. Well, how soon did that – did that happen?---That was basically straight away.
All right. And when you say smashing, what were the sounds that you could hear?---Glass.
And how long did that go for?---For about five – five minutes, 10 minutes, I think.
And where were you when this was happening?---I was inside.
Whereabouts inside?---In – in my – in the lounge room.
Now, after this had been going on for the period of time that you said?---Yeah.
43 The photographs taken after the incident depicted some broken glass from a beer bottle,15 and a broken light outside the front door.16 There were also photographs of a window awning which the complainant said was torn by the appellant at this time.17 There was photographic evidence of a broken window,18 but the complainant said this occurred during the course of the struggle in the lounge room.19
44 The appellant makes the point that the photographs do not depict the volume of broken glass which would have been apparent if he had spent 5 - 10 minutes breaking glass.
45 It is far from clear that the complainant intended, in the brief passage of his evidence quoted above, to convey that the appellant had been continuously breaking glass for 5 - 10 minutes. The complainant referred to the appellant smashing 'things out front'. When he was asked what sounds he heard, the complainant responded 'glass'. That is consistent with the complainant hearing glass break among other sounds he could not identify, rather than hearing glass breaking for an extended period of time.
46 The complainant may well have been mistaken about the length of time during which the appellant was outside. The complainant would appear, from the photographic evidence, to have been mistaken if he had intended to convey that the appellant constantly broke glass for 5 - 10 minutes. However, while an error of this kind would be relevant to the assessment of the appellant's credibility and reliability, it does not demand either a rejection of his evidence or a reasonable doubt as to its credibility or reliability in material respects.
Photographs of the appellant's jeans
47 The appellant also complains that the photographs of his jeans tendered during the trial do not adequately show what he contends was the extent of bloodstaining of his jeans. The appellant did not complain about the quality of the photographs at trial, and had the opportunity to give evidence about the quantity of blood on his jeans. The alleged poor quality of the photographs does not make the complainant's evidence incredible or unreliable in any material respect.
48 The appellant contends that the blood on his jeans was consistent with him lying on his back in blood near the front door. However, the evidence was clear that the appellant was covered in the complainant's blood, including on the front of his jacket.20 The evidence was not clear as to the amount of blood on the appellant's jeans. Most of the time during which the appellant described lying on his back was prior to the stabbing of the complainant.
Complainant's injuries
49 The appellant's written submissions assert that the complainant's injuries and the medical evidence do not support the complainant's version of events.
50 That submission should not be accepted. The photographs depict stab wounds to the complainant's chest and abdomen, and significant lacerations to his head, face and shoulders. The medical evidence was that the wounds were consistent with having been caused by a steak knife, and there was no contest that a steak knife held by the appellant caused the injuries. The injuries to the complainant's head and face were more consistent with his account of the appellant stabbing him from above as he was on his knees. The appellant could not explain how those injuries were sustained.21 The defensive wounds to the complainant's arm were consistent with the complainant's account and inconsistent with that given by the appellant.22 Neither the complainant's injuries nor the medical evidence are inconsistent with the complainant's version of events.
Evidence of Probationary Constable Godsell
51 The appellant relies on a statement which Dale Godsell, who was a probationary constable at the time of the incident, recalled the complainant making to him. Mr Godsell's evidence was that he found the complainant lying on the floor of his neighbour's house with blood all over him and having difficulty breathing. He remembered the complainant saying that he was in his bed trying to sleep and his flatmate came in and stabbed him.23 The complainant's evidence was that he could not remember saying this or speaking to police at all.24
52 Given the circumstances, it is not surprising that the complainant could not recall his discussion with police. The account the complainant might provide in those circumstances could not be expected to be comprehensive and may not be completely reliable. There was significant potential for miscommunication between the complainant and a very junior police officer in those stressful circumstances. The evidence, while relevant to an assessment of the credibility and reliability of the complainant's evidence, did not demand either its rejection or a reasonable doubt as to its credibility or reliability in material respects.
How the complainant got the knife from the appellant's hand
53 During the course of cross-examination, the complainant said that he put his thumb into the inner aspect of the appellant's wrist to try and loosen his grip on the knife, as he had the complainant pinned to the chair in the lounge room.25 He had not given this evidence previously, or described the move in his statements to police. However, there was nothing to indicate that the complainant was previously asked to describe his motions at this time in that degree of detail. This aspect of this evidence was not necessarily inconsistent with the complainant's prior evidence and statements.
Location of blood at the scene
54 The appellant contends that if the complainant's evidence is correct there would be far more blood in the lounge room as opposed to the hallway where something clearly happened. However, the presence of more blood in the hallway than the lounge is consistent with the complainant's account that he was stabbed multiple times in the hallway.
55 On the appellant's account, the complainant did not go into the lounge room after he had been stabbed. On the appellant's version of events, the only blood in the lounge room should have been that transferred by the appellant as he went into the lounge after fighting with the bleeding complainant. The photographic evidence depicts a larger volume of blood than would be expected by mere transference from the appellant's clothing.26 Further, the presence of a bloody handprint on the couch, which the complainant said was tipped over as he obtained the knife from the appellant, was consistent with the complainant's account.27
56 In his oral submissions, the appellant noted that there was no evidence of bloody footprints in the lounge room carpet, which he says would be expected if the complainant's account were correct. However, the carpet is generally dark in colour and it is far from clear that footprints would be visible. There is no evidence as to the amount of blood on either man's shoes, and on both versions of events at least one person moved into the lounge room from the hallway where more blood was evident.
57 The appellant also submitted that there was no blood on the coffee table. The complainant's evidence was that the appellant broke the coffee table as he went over it when the complainant pushed the appellant towards the chair in the lounge room.28 That event would not necessarily have resulted in significant amounts of blood on the coffee table.
Appellant's injuries
58 The appellant's injuries were few and minor, particularly when compared to those suffered by the complainant. However, the appellant says that the swollen lip, bruising on his back and abrasion on his hand support the appellant's case. The appellant notes that the complainant did not explain how the appellant came to suffer a swollen lip. However, the appellant was also unable to explain how he got a swollen lip.29 In the context of the violent struggle which clearly occurred between the two men, it is unsurprising that neither recall how such a minor injury was caused.
59 It was open to a jury to take the view that, in the context of the evidence as a whole, a comparison of the injuries sustained by the appellant with the injuries (including defensive injuries) sustained by the complainant made it clear that the complainant was attacked with a knife, and the appellant was the aggressor.
Evidence tending to support the complainant
60 In assessing the impact of the matters referred to above on the credibility of the complainant's evidence, it is also appropriate to have regard to evidence which tends to support the complainant's version of events. This supporting evidence includes:
1. The broken light, smashed beer bottle and beer located outside the complainant's front door, and the slashed awning, were consistent with the complainant's account. The appellant's explanation of bringing beer to drink outside after the fight seems implausible.
2. The significant injuries suffered by the complainant were consistent with his being stabbed from above, and were serious in comparison to the much more minor injuries which the appellant sustained.
3. The defensive wounds on the complainant's arms were consistent with the account he gave of having been attacked with a knife.
4. The presence of a significant amount of blood in the lounge room was consistent with the complainant's evidence that he pushed the appellant into the lounge room and struggled with him there after being stabbed.
5. The broken lounge room window confirms the complainant's account of having pushed the appellant and a lounge chair back into the window, and could not be explained by the appellant.
6. According to the complainant's neighbours, the appellant pursued the complainant onto their property either shouting 'come on' or 'come on you weak cunt'.
7. The statement made by the appellant to the police officer on his arrest, to the effect 'I stabbed the cunt, he deserved it'.
61 This evidence tended to confirm the complainant's account and show that it was the appellant who was the aggressor who attacked the complainant with a knife.
Conclusion as to appeal against conviction
62 Some of the matters raised by the appellant provide grounds on which a jury might possibly have entertained doubt as to the credibility or reliability of at least some of the complainant's evidence. However, when all of the evidence at trial is considered it cannot be said that the jury must have had a reasonable doubt about the appellant's guilt.
63 It is not surprising that the account given by a victim of a traumatic sustained attack resulting in such serious injury is not perfectly consistent over time. Nor is it surprising that such a victim recalls additional facts when reflecting on the situation or when asked questions by different persons in different ways in different settings. Inconsistencies must be examined, but the existence of inconsistencies does not, of itself, mean that the account given is not generally correct or not correct in material respects.
64 In this case, the jury enjoyed a considerable advantage over this court in assessing the impact of inconsistencies between accounts given by the complainant in light of the whole of the evidence at trial. Neither the complainant nor the appellant appear to have been particularly articulate witnesses. Both men, the appellant in particular, tended to describe events by making gestures which counsel then attempted to describe. The manner in which they gave their evidence could have been an important factor in the jury's assessment of the credibility and reliability of their evidence.
65 Having regard to the all of the evidence led at trial, it was open for the jury to be satisfied beyond reasonable doubt that, in all material respects, the complainant's account was accurate. On that basis, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was not acting in self-defence and that he intended to cause grievous bodily harm to the complainant. We have reviewed and weighed all of the evidence. The totality of the trial record does not support a conclusion that the evidence was not sufficient to support the jury's verdict, or that the jury must have had a doubt as to the appellant's guilt, or that it would be dangerous to permit the appellant's conviction to stand.
66 For these reasons, leave to appeal against conviction should be refused and the appeal against conviction dismissed.
Appeal against sentence
Trial judge's approach
67 The trial judge found that, after the complainant came outside the house, the appellant came at him and stabbed the complainant just outside his front door. She found that the complainant slipped onto his knees and the appellant continued to stab the complainant with the knife as he stood over him. She found that adrenaline kicked in and the complainant managed to scramble to his feet and push the appellant back into the lounge room. She found that the appellant and complainant struggled in the lounge room ending up against a chair and a window. The trial judge found that the complainant was able to get the knife off the appellant and ran to his neighbours' house. She found that the appellant followed shouting 'come on, you weak cunt' or words to that effect.
68 The trial judge found that the appellant was attempting to provoke a physical confrontation when he was turning up the volume of his music, and armed himself with a knife because he wanted to be prepared in case there was such a confrontation. The trial judge found that the appellant intended to do grievous bodily harm to the complainant, and that his intention to do so arose when the appellant attacked the complainant at his front door.
69 The trial judge referred to the complainant's victim impact statement and the appellant's antecedents. She concluded that the offence was objectively very serious, although not at the highest end of the scale for seriousness. It involved stabbing the complainant multiple times with a knife in circumstances where the appellant was goading the complainant in the hope that there would be some sort of physical confrontation between them. The complainant's injuries were life threatening, and the appellant had stabbed him in the face, head, the top of his shoulder and the area of his lungs and vital organs.
70 After referring to the appellant's serious criminal record revealing a tendency to violence and a disregard for the rights of others, and the appellant's dysfunctional childhood, the trial judge observed:30
Your past record, however, makes it plain that there is a real need to impose a sentence that deters you from resorting to violence. And there is a need to send a message to others in the community that those who assault others with knives because of some conflict, will be met with serious punishment. I have of course taken into account other similar sorts of offences and the types of sentences which are usually imposed in this sort of case.
71 She then imposed a sentence of 7 years' imprisonment, and made the appellant eligible for parole.
Ground of appeal
72 The appellant seeks leave to appeal against that sentence on the ground that it was manifestly excessive, having regard to the circumstances of the offence and sentencing standards.
General principles
73 An allegation of manifest excess is an allegation of implied error. Such an error may be inferred where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.31
74 Appellate intervention on the ground of manifest excess or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.32
75 To determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standards of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender.33
Maximum penalty
76 The maximum penalty for intentionally causing grievous bodily harm is 20 years' imprisonment.34
77 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 one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. But 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.
78 The seriousness of the facts and circumstances of offending against s 294 can be highly variable.35
Customary sentencing standards
79 This court recently reviewed sentences commonly imposed for intentionally causing grievous bodily harm in Oxenham v The State of Western Australia.36 In that case Martin CJ, with whom Buss and Mazza JJA concurred, observed:
The offence of causing grievous bodily harm with intent contrary to s 294 of the Criminal Code (WA) can be committed in a wide variety of facts and circumstances. Consequently, the range of sentences customarily imposed for that offence is broad, and the point at which any particular case will fall within that range depends very much upon the particular facts and circumstances of that case. In such a context, manifest excess will not ordinarily be established by pointing to one or two cases in which lesser sentences were imposed in circumstances which were arguable comparable, or by pointing to one or two cases in which comparable sentences were imposed for offences which were arguably more serious. Rather, manifest excess will only be established if it can be said that the sentence imposed was unreasonable or unjust, having regard to all relevant facts and circumstances, including customary standards of sentencing to be gleaned from previously determined cases viewed as a whole and the other matters I have mentioned which the court must take into account.
To the extent that a range can be discerned from the previously determined cases, as this court observed in The State of Western Australia v Jeffries,37 analysis in Stephens v The State of Western Australia38 suggested that sentences of between 7 and 12 years imprisonment (prior to the transitional provisions) were not uncommon. That range equates approximately to a range of between 4½ and 8 years under the current sentencing system. More recently, this analysis was cited with apparent approval in this court in The State of Western Australia v Khasay.39 Further, in Zhang v The State of Western Australia,40 Mazza JA41 observed that his analysis of the previously decided cases revealed that in serious cases of offences contrary to s 294 of the Criminal Code and which were not in the worst category of cases, the range of sentences customarily imposed after trial had not exceeded 8 years imprisonment. That observation must be viewed in light of the fact that in Zhang, the appellant, whose offence was described as 'extremely serious' was re-sentenced by this court to a term of 8 years and 6 months imprisonment. Nevertheless, taking the upper limit of the previous range identified by Mazza JA, after allowing for a 15% reduction for Mr Oxenham's plea of guilty, a sentence of 8 years imprisonment after trial equates to a sentence of approximately 6 years and 10 months after plea [36] - [37].
80 The sentence of 7 years' imprisonment imposed after trial falls well within the approximate range of between 4½ and 8 years identified in Oxenham.
81 The appellant's written submissions refer to a number of cases where offenders against s 294(1) of the Criminal Code received sentences of less than 7 years' imprisonment. Those cases are generally distinguishable from the present:
1. Stephens v The State of Western Australia,42 in which the offender was sentenced to 6 years' imprisonment after trial, involved a serious example of the offence in which the victim was dragged under Stephens' car for about 30 m. However, Stephens was much younger than the appellant and only had a record of 'minor convictions'.
2. Wells v The State of Western Australia,43 in which the offender was sentenced to 6 years 6 months' imprisonment after trial, was similar in many respects to the present case. The 38-year-old offender with a poor prior record attacked the victim causing serious head injuries. However, the offender in that case suffered mental health issues which are not identified in the appellant. Further, the sentence was only 6 months shorter than the sentence imposed on the appellant in the present case.
3. Abfahr v The State of Western Australia,44 in which the 50-year-old offender was sentenced to 5 years' imprisonment after trial, involved the offender driving at and striking his wife with a motor vehicle in breach of a violence restraining order. The circumstances of this offence and the offender were different, and the injuries sustained by the victim less serious than in the present case. The offence was impulsive and did not involve the sustained violence found in the present case.
4. Oxenham, in which the offender was sentenced to 6 years' imprisonment following a plea of guilty, involved a serious and sustained attack on the victim with a significant degree of premeditation. No weapon was involved, and the 6 year sentence formed part of a total effective sentence of 7 years 6 months' imprisonment. Issues of totality mean that some caution is required in comparing the sentence imposed for intentionally causing grievous bodily harm in Oxenham with that imposed in the present case.
5. Rolfe v The State of Western Australia,45 in which the 43-year-old offender with a substantial relevant criminal history was sentenced to 5 years' imprisonment, involved a serious attack by the offender and others on the victim in collection of a drug debt. However, the offender pleaded guilty at the first reasonable opportunity and the sentence was imposed as part of a total effective sentence of 8 years 4 months' imprisonment after taking the totality principle into account.
82 These cases do not show the sentence imposed on the appellant to be unreasonable or plainly unjust. As the court noted in Oxenham, manifest excess will not ordinarily be established by pointing to one or two cases in which lesser sentences were imposed in circumstances which were arguably comparable, or by pointing to one or two cases in which comparable sentences were imposed for offences which were arguably more serious. Further, all of the cases referred to in the previous paragraph involved the dismissal of the offender's appeal against sentence in circumstances where there was no appeal by the prosecution. The court in those cases merely decided that the sentences imposed were not manifestly excessive. These decisions do not establish an upper limit to the sentence that may be imposed in comparable cases.
Circumstances of offending
83 The circumstances of the appellant's offending are described above. In considering the relative seriousness of an offence of intentionally causing grievous bodily harm, it is relevant to consider the nature of the harm which results from the injuries inflicted, the nature of the acts which cause the injuries, and the background and circumstances of the offence.46
84 The injuries sustained in the present case were serious, and would probably have caused the death of the complainant had medical assistance not been available. The injuries involved multiple stab wounds to the head and chest area, a significant period of hospitalisation and ongoing psychological trauma for the complainant. The injuries were caused by a sustained attack with a knife, after the appellant had tried to provoke a physical confrontation in a manner which led to him being ejected from the complainant's house. The attack occurred at the complainant's home.
Appellant's personal circumstances
85 The appellant was 34 years old at the time of sentence, and had incurred a number of convictions for offences involving serious violence. He had a dysfunctional childhood and had a sporadic employment history interfered with by periods of imprisonment. He presented as socially isolated. The appellant did not demonstrate any remorse, and psychological testing suggested that he was easily angered and prone to conflict in relationships. There was little mitigation to be found in the appellant's antecedents.
86 The appellant's past history of violent offending gave rise to a particular need in the present case to impose a sentence which would have a personally deterrent effect.
Conclusion as to appeal against sentence
87 Having regard to all of the above considerations, the sentence of 7 years' imprisonment imposed on the appellant was not manifestly excessive having regard to the nature and seriousness of the offence, the circumstances of the offender and all other relevant sentencing factors.
88 For these reasons, leave to appeal against sentence should be granted, but the appeal against sentence should be dismissed.
Orders
89 For the above reasons the application for leave to appeal against conviction should be refused, the application for leave to appeal against sentence should be granted and the appeals should be dismissed.
1 Section 248(4) of the Criminal Code; see also Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328.
2 See s 30(3)(a) of the Criminal Appeals Act 2004 (WA).
3M v The Queen (1994) 181 CLR 487, 492 - 493.
4EAGD v The State of Western Australia [No 2] [2014] WASCA 68 [35], citing SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14].
5Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]; Bibovic v The State of Western Australia[2016] WASCA 22 [34].
6 ts 155 - 156.
7 ts 193 - 195.
8 ts 196.
9 ts 171 - 172.
10 ts 118.
11 ts 119.
12 ts 165.
13 ts 221 - 222.
14 ts 97.
15 Exhibit E photo 70B; ts 140.
16 Exhibit A2; ts 145.
17 Exhibit A1; ts 145.
18 Exhibit E, photo 72A.
19 ts 140.
20 Exhibit E, photo 76A.
21 ts 377.
22 Exhibit E, photo 8.
23 ts 256 - 258.
24 ts 210 - 211.
25 ts 224.
26 Exhibit E photos 43B, 45A - 47A.
27 Exhibit E photo 46B; see also ts 130, 133 - 134.
28 ts 103, 175, 179, 186.
29 ts 364.
30 ts 485.
31House v The King (1936) 55 CLR 499, 505.
32R v Pham [2015] HCA 39 [28].
33Cairns v The State of Western Australia [2015] WASCA 198 [25].
34 Section 294(1) of the Criminal Code.
35 See Black v The State of Western Australia [No 2] [2010] WASCA 145 [28].
36Oxenham v The State of Western Australia [2015] WASCA 30.
37 [2007] WASCA 255 [12] (Steytler P, McLure & Miller JJA agreeing).
38 [2005] WASCA 98.
39 [2014] WASCA 58 [34] (Buss JA, Pullin & Mazza JJA agreeing).
40 [2013] WASCA 121 [61].
41 (McLure P & Buss JA agreeing).
42Stephens v The State of Western Australia [2005] WASCA 98.
43Wells v The State of Western Australia [2013] WASCA 124.
44Abfahr v The State of Western Australia [2013] WASCA 87.
45Rolfe v The State of Western Australia [2012] WASCA 169.
46Oxenham [30].
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