Garlett v The State of Western Australia

[2009] WASCA 44

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   GARLETT -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 44

CORAM:   OWEN JA

WHEELER JA
MILLER JA

HEARD:   12 FEBRUARY 2009

DELIVERED          :   27 FEBRUARY 2009

FILE NO/S:   CACR 83 of 2008

BETWEEN:   VERNON JADE GARLETT

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :JOHNSON J

File No  :INS 104 of 2007

Catchwords:

Criminal law - Appeal against sentence - Attempted murder - Very serious example - Whether sentence of 10 years manifestly excessive

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     Mr P D Yovich

Solicitors:

Appellant:     Thames Legal

Respondent:     Director of Public Prosecutions (WA)

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

Mills v The State of Western Australia [2007] WASCA 118

1. OWEN JA:  I agree with Wheeler JA. 

2. WHEELER JA:  This is an appeal against a sentence of 10 years' imprisonment imposed on the appellant by Johnson J on 19 May 2008 following his conviction, after trial, for attempted murder.  The sentence was ordered to be served cumulatively on one of 9 months the appellant was serving for offences including assault occasioning bodily harm.  On 13 June 2008, Miller JA granted an extension of time in which to appeal.  On 30 July 2008, I granted leave to appeal in relation to grounds 1 and 2, and refused leave on ground 3.  There is no application to review that refusal.

The offence

1. On Saturday 3March 2007, the complainant in this matter, Paul Anthony Connell, had his extended family at his home to celebrate the return of his wife and newborn son from hospital.  Mr Connell realised he needed cash for the following day, so he went to an ATM at Nollamara shopping centre.  Mr Connell stopped his vehicle, parked his car directly outside the ATM and walked towards it.

2. The appellant, Vernon Jade Garlett, had that day been drinking with friends at his sister's house.  The appellant's partner decided to spend the evening at her mother's house, as she was unhappy with the appellant's drinking.  They walked to the Nollamara shopping centre, where the appellant's partner was to catch the bus.  Once there, the appellant went to the liquor store, purchased a couple of bottles of port and continued drinking.  While sitting on a bench at the shopping centre drinking, the appellant and his friends were swearing at and abusing passers‑by.  At one point, the appellant requested a cigarette from a man on his way to a nearby delicatessen, and when told by this man that he did not have any cigarettes, the appellant walked away stating "[f]uck, I'll stab the next white cunt I see" (AB 108).

3. The group moved to a seat near the ATM later approached by Mr Connell.  As Mr Connell approached, the appellant's partner walked away from the group.  The appellant walked up behind Mr Connell and asked him "[i]f I put a pickaxe through your brains would you live?" (AB 108).  The ATM beeped, Mr Connell turned to look at it, and the appellant stabbed him in the neck with a knife with a 16 cm blade.  Mr Connell asked the appellant why he had stabbed him and the appellant claimed that Mr Connell had referred to him as a "black bastard", a claim the trial judge unreservedly rejected on the basis of surveillance footage, the evidence of the appellant's partner and the "inherent improbability" of

anyone in Mr Connell's circumstances making a racist remark to one of a group of four intoxicated adult Aboriginal people.

1. The appellant then calmly walked away from Mr Connell and threw the knife into a tree.  Mr Connell staggered toward a nearby shop calling for help and an ambulance.  At some stage, the appellant laughed at Mr Connell's distress.  Mrs Connell was called, and accompanied her husband to hospital, where his injuries were found to be serious - the knife had cut through the chest wall and underlying veins, muscles and nerves and penetrated the lung, which filled with blood and collapsed.  The trial judge found that without the assistance provided at the scene and treatment received in the hospital Mr Connell would undoubtedly have died.  As a result of his injury, Mr Connell has lost all feeling in the top right quadrant of his chest and neck area, aggravated by everyday actions such as dressing, wearing a seatbelt, and contact with his children.  In addition to his physical injuries, Mr Connell has been diagnosed with a severe case of post‑traumatic stress disorder.

2. Shortly after the offence, the appellant and his partner left Perth for Adelaide, from where he was later extradited.  The appellant also shaved his head, but claimed these things were not done in an attempt to avoid apprehension; a claim the trial judge had understandable difficulty in accepting.

Sentencing

1. The appellant's trial counsel made a number of submissions at sentencing.  First, that the appellant was in a "disinhibited" state as a result of his consumption of alcohol.  Second, that he was depressed for two reasons - his partner was going to leave him because of his drinking, and there was a rumour circulating in his community that he was involved in a murder.  These two matters must be seen against the appellant's very long record of offending.  His offences are often violent, and are often alcohol‑related.  He, nevertheless, continues to drink heavily.  It is, therefore, hardly mitigating that alcohol was involved in his offending; rather, that factor suggests an ongoing need to protect the community from him.

2. Third, it was submitted that the appellant was of the belief that the complainant had made a racist comment toward him.  As to this submission, her Honour considered that either it was a "figure of [the appellant's] alcohol‑fuelled imagination" (and therefore not mitigating) or a deliberate lie.  Her Honour rejected as inaccurate the next submission which was that the appellant showed remorse.  Finally, it was said that the

appellant was taken from his home as a child and identifies himself as a member of the stolen generation.

1. Her Honour noted that the appellant had appeared to be making progress on certain courses undertaken in custody, but noted also that the completion of previous courses had not reduced his offending.  There was, in the result, almost nothing by way of mitigation.

2. The appellant appeals on two grounds, ground 1 claiming that the sentence imposed was manifestly excessive and ground 2 claims a breach of the totality principle.

Ground 1 - manifest excess

1. So far as the claim of manifest excess is concerned, the submissions made on behalf of the appellant appear to be based upon the misconception that her Honour regarded this offence of attempted murder as falling within the "worst category" of such offences.  The State conceded that it did not appear to fall into that category.  As I understand it, that concession was based upon the limited degree of premeditation and the lack of persistence (albeit in circumstances where the victim was plainly seriously injured and bleeding profusely from a single blow). 

2. The State submits, and it seems that counsel for the appellant accepts, that it was, albeit not a "worst category" attempted murder, a very serious example of such an offence.  There was a degree of premeditation, even if for only a short time, indicated by the appellant's announcement of his intention to stab someone and the attack was a random one upon an unsuspecting, and therefore effectively defenceless, passer‑by.  Further, the appellant's conduct immediately following the attack was callous in the extreme.  He made no attempt to assist Mr Connell and laughed at his distress.  It was her Honour's view, which seems to have been well open to her, that, although the appellant mouthed words indicative of remorse at one point during the police interview, he, in fact, lacked any remorse. 

3. The appellant's counsel appears to submit that her Honour must have regarded the offence as falling within the worst category of cases, because the sentence which she would have imposed, but for the transitional provisions, was one of 15 years' imprisonment.  However, the maximum penalty for attempted murder is life imprisonment.  For a "worst category" case, where there are, as here, really no mitigating factors, and where there was a trial (so that the appellant was not entitled to any discount for a plea of guilty) one might reasonably expect that the penalty imposed would be the maximum, or would, in any event, be one greater than the 15 years which her Honour adopted as a starting‑point. 

4. The starting‑point of 15 years was one appropriate to an offence of this seriousness, having regard to the circumstances of this offender.  Almost all of the comparative cases to which the appellant refers in support of the plea of manifest excess are cases in which there had been a plea of guilty.  In some of those cases, there were, in addition, other mitigating factors such as favourable antecedents, or at least some degree of remorse.  Further, some are State appeals.  None is truly comparable to the present case.  Ground 1 therefore must fail.

Ground 2 - totality

1. This ground is concerned with the imposition of the sentence for attempted murder cumulatively upon a term of 9 months' imprisonment which the appellant was already serving.  That sentence related to his conviction on 27 December 2007 for an assault in January of that year upon his de facto wife.  She had been sleeping alone in a bedroom when the appellant, without provocation, punched her to the right side of the face and then, once she was awake, swung an iron bar at her, striking her on the arm she was using to protect herself so that the arm broke. 

2. The totality principle applies, not only to terms of imprisonment imposed on one occasion, but also where a term of imprisonment is imposed upon an offender already serving a term of imprisonment:  Mills v The State of Western Australia [2007] WASCA 118 [9].

3. In my view, there was no requirement for any degree of concurrency n this case.  The additional term of 9 months which the appellant will be required to serve plainly is not so long as to have the effect, together with the sentence imposed by her Honour, of destroying any useful expectation of life upon release, so that that aspect of the totality principle does not apply.  Considering whether the aggregate sentence to be served by the appellant is justly proportionate to the totality of his offending, it seems to me that the assault upon his de facto wife, which I have described, is one of such seriousness that it would not be appropriate to reduce the impact of that 9‑month term by ordering any degree of accumulation of sentence.  Nor can it be said in the present case, despite the appellant having made some progress in programmes in which he was engaged, that it could be assumed with any degree of confidence that any of the objectives of sentencing which relate to personal deterrence and rehabilitation had already been served by that part of the 9‑month sentence which he had

served at the time at which her Honour came to sentence him for attempted murder.  Ground 2 therefore must fail.

1. I would dismiss the appeal.

2. MILLER JA:  I agree with Wheeler JA.