Gleeson v The State of Western Australia
[2019] WASCA 100
•10 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GLEESON -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 100
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 15 MAY 2019
DELIVERED : 10 JULY 2019
FILE NO/S: CACR 180 of 2018
BETWEEN: SEAN PATRICK GLEESON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE DCJ
File Number : IND 519 of 2018
Catchwords:
Criminal law - Appeal against sentence - Appellant, with intent to harm, did an act as a result of which the life, health or safety of the complainant was, or was likely to be, endangered - Section 304(2)(b) of the Criminal Code (WA) - Plea of guilty - Appellant sentenced to 7 years' imprisonment - Manifest excess
Legislation:
Criminal Code (WA), s 304(2), s 304(3)
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr P D Yovich SC & Mr C M Townsend |
| Respondent | : | Ms K C Cook |
Solicitors:
| Appellant | : | Lewis Blyth & Hooper |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Delavale v The State of Western Australia [2009] WASCA 111
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
McKenzie v The State of Western Australia [2015] WASCA 163
Merlo v The State of Western Australia [2018] WASCA 71
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 60
Oxenham v The State of Western Australia [2015] WASCA 30
Penny v The State of Western Australia [2016] WASCA 52
Quirk v The State of Western Australia [2019] WASCA 76
The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414
The State of Western Australia v Darroch [2018] WASCA 114
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Khasay [2014] WASCA 58
The State of Western Australia v Legge [2014] WASCA 47
The State of Western Australia v Naumoski [2013] WASCA 215; (2013) 234 A Crim R 566
Thompson v The State of Western Australia [2019] WASCA 68
Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115
JUDGMENT OF THE COURT:
This is an appeal against sentence.
The appellant was convicted, on his plea of guilty in the District Court, of one count in an indictment.
The count alleged that on 18 November 2017, at Yokine, the appellant, with intent to harm, did an act as a result of which the life, health or safety of David Crothers was, or was likely to be, endangered, contrary to s 304(2)(b) of the Criminal Code (WA) (the Code).
On 6 September 2018, Goetze DCJ sentenced the appellant to 7 years' imprisonment. The sentence was backdated to 30 August 2018. A parole eligibility order was made.
The sole ground of appeal alleges that the sentence imposed was manifestly excessive. On 16 November 2018, Mazza JA granted leave to appeal on that ground.
We would dismiss the appeal. Our reasons are as follows.
The facts and circumstances of the offending
The facts and circumstances of the offending are set out in an amended statement of material facts dated 24 May 2018. The prosecutor read aloud the amended statement at the sentencing hearing. The sentencing judge incorporated the amended statement into his sentencing remarks. His Honour noted that the amended statement was accepted by defence counsel. The material facts, as set out in the amended statement, are as follows.
On Saturday 18 November 2017, at about 4.15 pm, the appellant and two of his associates went to a park in the vicinity of Dog Swamp Shopping Centre in Yokine with the intention of engaging in a previously arranged fight with a rival group. Before they arrived, the appellant and his associates went to a house in Joondanna where they armed themselves with a metal crowbar.
At the vicinity of the shopping centre the appellant and his associates fought with a large group of juveniles from the rival group. During the fight one of the appellant's associates was knocked unconscious by members of the rival group.
The appellant ran from the scene before realising that the unconscious associate was not with him. He returned and assisted the associate. The appellant then armed himself with the metal crowbar. At that stage, the rival group had dispersed and the appellant could not see them.
Next, the appellant went to the shopping centre carpark. He was still armed with the crowbar. At the carpark, he saw the rival group. They were walking through the carpark. The victim was among the rival group.
The appellant ran towards the rival group, which caused the group to run from the appellant.
The appellant chased the victim, who was armed with a 'stick‑like weapon'. When the victim was within arm's reach, the appellant swung the crowbar and struck the victim in the head. The force of the blow caused the victim to fall to the ground. The crowbar lodged in his skull. The appellant removed the crowbar and ran from the scene.
The appellant's assault on the victim was captured on CCTV footage at the shopping centre.
The appellant and his associates then returned to the house in Joondanna. On the way, they disposed of the crowbar in a drain. Later, at another location, the appellant disposed of his clothing and then attended a football match in Subiaco.
On 21 November 2017, police spoke to the appellant at his home. Initially, he denied having been involved in the incident at the shopping centre and told the police that he had been at a football match. Subsequent inquiries by the police determined that the appellant had entered the football stadium after the incident. He was wearing different clothes from those he had worn during the incident.
Later on 21 November 2017, the appellant participated in an electronically recorded interview with police. Ultimately, he admitted having struck the victim to the head with the crowbar.
After the assault the victim was conveyed to Royal Perth Hospital. He underwent emergency surgery. Fragments of his skull were removed from his brain. The surgeons were obliged to sacrifice some of the victim's brain tissue to stop the bleeding caused by the assault. Consequently, the victim suffered partial paralysis.
The appellant's electronically recorded interview with police
During his electronically recorded interview with police on 21 November 2017, the appellant gave this account of the incident:
I chased all of them. There was about, or I chased about fifteen people, me, myself and I, with a crowbar going off my head and they skipped.
And then as I was running, the one that hit at the start who I finally hit with a crowbar hit me in the face with this wooden bat as I was running after he swung it back and it rocked me, and it pissed me off. And I was chasing him and then my brain just, like, looped it and then I hunted him. Like, I, I just followed him, followed him and followed him. He stepped, he stepped and then I just went whack, not realising I had a crowbar in my hand. And, yeah, I watched it go through, like, it went through his skull, and I pulled it out and I was thinking oh, fuck, I just done that. I need to get out of here. And then I panicked, and I got out of there and I didn't know what to do (ts 21). (emphasis added)
The sentencing judge's sentencing remarks
The sentencing judge referred in his sentencing remarks to the facts and circumstances of the offending.
His Honour found that when the appellant ran towards the rival group in the shopping centre carpark, 'the fight between the two gangs was really over and [the appellant] had become the aggressor' (ts 23).
His Honour noted that the appellant had chased the victim and struck him to the head with the crowbar. The crowbar lodged in the victim's skull. The appellant removed the crowbar from the victim's skull and then ran away.
The appellant was sentenced on the basis that, in striking the victim with the crowbar, he intended to unlawfully cause some unspecified bodily harm to the victim, but not the harm that the victim actually suffered. It was accepted by the appellant, before the sentencing judge, that the blow he struck with the crowbar caused the victim an injury which endangered his life and that the blow appears to have caused him permanent injury.
His Honour found that the appellant had not taken the crowbar to the previously arranged fight with the rival group, but the crowbar 'became available to [the appellant]' and he used it against the victim (ts 23).
His Honour characterised the offending as 'in the mid and getting up to the upper range of offending' for offences of the kind in question (ts 24). His Honour added that the victim's injuries were 'in the upper range of seriousness and luckily for [the appellant, the victim did not] die' (ts 24).
The sentencing judge referred to the appellant's personal circumstances. He was born on 15 April 1999. He was aged 18 years at the time of the offending and was 19 when sentenced. The appellant was exposed as a child to parental separation, domestic violence and illicit drug use. His education was also dysfunctional. He was suspended and expelled from schools.
More recently, the appellant had sought education in music production and had played and assisted in umpiring rugby 'at a serious level' (ts 24). However, the appellant did not have 'any real employment history other than [for] some minor periods' (ts 24). He had a plan to become involved in the music industry.
When he was sentenced the appellant had been in a relationship for about two years. He had 'some support' from his partner (ts 24).
The appellant began using cannabis at the age of six. He had used methylamphetamine, ecstasy and inhalants from the age of 10, alcohol from age 11 and LSD from age 12. He had been medicated for Attention Deficit Hyperactivity Disorder.
The appellant had a criminal record as a juvenile. He had two convictions for assault occasioning bodily harm and a conviction for common assault. He also had a conviction for aggravated armed robbery which involved striking the victim with a machete. Other offences committed by the appellant included possession of prohibited drugs and drug paraphernalia, stealing a motor vehicle and reckless driving.
The information before his Honour included a pre‑sentence report dated 22 May 2018 and a psychological report dated 18 May 2018 from Claire Lynn, a forensic psychologist.
The pre‑sentence report noted that the appellant had 'a short, albeit intense offending history commencing in 2015'. The report recorded that the appellant attributed his previous offences to his substance abuse and a predisposition to use violence as a means to 'handle' himself. The report stated that, overall, the appellant appeared to take responsibility for his actions, but it was of some concern that the appellant had asserted that his sentence should be less severe because the victim was 'not entirely innocent'.
The psychological report referred to the appellant having been subject to neglect since his early childhood. Consequently, he was ill‑equipped 'to self‑manage generally or cope with exposures to drugs and violence'. The main factors that contributed to the appellant's risk of future violence were his violent lifestyle from a young age; negative attitudes, poor insight and a tendency to justify violent behaviour; negative peers; impulsivity; poor coping and emotional control; and substance abuse. Ms Lynn was of the view that the appellant's risk of violent recidivism was 'medium'. He presented to Ms Lynn as 'an intelligent and vocationally capable young man, whose decision to abstain from substances has provided him the opportunity to redirect his life focus'. Ms Lynn said those factors were potentially protective in minimising the risk of reoffending. However, she cautioned that the social, emotional, cognitive and behavioural processes and immaturity reflected in the appellant's current offending jeopardised the opportunities he had initiated and sought to achieve. The appellant expressed to Ms Lynn a positive attitude towards receiving any assistance available in support of his rehabilitation.
His Honour said that the appellant had frankly acknowledged the severity of his offending. However, his Honour noted that the appellant was impulsive and lacked consequential thinking, and he appeared to be complacent in relation to his history of drug abuse. His Honour elaborated:
You think that now that you're off drugs in prison, drugs are no longer of concern to you and you can dismiss drug use as a potential risk factor once you are released. You should not think that way (ts 24 ‑ 25).
The sentencing judge found that the appellant was at a medium risk of violent reoffending. However, his Honour accepted that the appellant had an awareness of and a concern as to the seriousness of his offending and the implications for the victim.
His Honour referred to a letter written by the appellant to him and a letter written by the appellant to the victim. His Honour described the letter he had received as 'well constructed' (ts 25). The letter spoke about the appellant's life history and the consequences of the offending in question and expressed his remorse. The letter written to the victim included an apology.
A victim impact statement revealed that the victim had been in a coma for almost three weeks and in hospital for five months after the assault. When the victim woke from the coma and realised he could not move the left side of his body, he wanted to die. The victim's family had moved to a new home after the assault because of the victim's need to use a wheelchair. His Honour found that the victim '[cannot] walk at all well' and requires a wheelchair when he leaves the house (ts 27). The victim has two hours of rehabilitation each day with an occupational therapist and a physiotherapist. In addition, he has prescribed exercises that he must perform each day. He continues to experience tremors in his left arm and leg. After the assault, the victim suffered from post‑traumatic stress disorder. He consults a counsellor on a weekly basis for that disorder and for depression. The victim is unable to attend TAFE. Prior to the assault, he had hoped to qualify as an electrician. That career is no longer open to him. The victim has lost friends who were embarrassed by his condition. His memory and his eyesight have been affected by the assault. The victim's impulse control has been detrimentally affected. He has panic attacks. He does not mix socially and he has lost confidence.
A report dated 2 August 2018 from Dr Dade Fletcher in relation to the victim was before his Honour. The victim was admitted to Royal Perth Hospital on 18 November 2017. His injuries included a right parietal bone fracture with traumatic brain injury and a right intraparenchymal bleed requiring a right craniotomy and subsequent craniectomy and washout due to infection. A tracheostomy tube was inserted. The victim was in post‑traumatic amnesia for 26 days until 14 December 2017. On 20 December 2017, he was transferred from Royal Perth Hospital to Fiona Stanley Hospital. At Fiona Stanley Hospital the victim received comprehensive multi-disciplinary inpatient rehabilitation with input from rehabilitation nursing, rehabilitation doctors, physiotherapy, occupational therapy, speech pathology, orthotics and social workers. He was transferred briefly to Sir Charles Gairdner Hospital between 20 February 2018 and 22 February 2018 for a planned cranioplasty. When he was discharged from Fiona Stanley Hospital on 20 March 2018, the victim had ongoing left hemiparesis and an increase in spasticity which reduced his left arm and leg function. He had ongoing sensory changes in his left arm and leg. The victim was unable to walk outside physiotherapy and used a right‑handed, single arm drive manual wheelchair independently for his mobility. As part of his gait retraining, the victim used a brace called a hinged ankle-foot orthosis to help with foot clearance. The victim continued to report some diplopia. Clinically, the victim appeared to have a lower left quadrantanopia. The victim appeared to have made a good cognitive recovery, but still experienced fatigue and, at times, low mood. Dr Fletcher was of the opinion that while the victim may continue to improve it was unlikely that he would ever fully recover from his injuries.
The sentencing judge said that the appellant's offending was aggravated by his having been on a supervised release order when he committed the offence. His Honour added that the assault upon the victim arose from the earlier 'gang attack' and involved the use of a weapon (that is, the crowbar) (ts 27). His Honour commented that 'street fighting is something which really is totally abhorrent to our society, especially in gangs and with weapons' (ts 29).
As to mitigating factors, his Honour referred to the appellant's plea of guilty. His Honour afforded the appellant a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA). His Honour noted that at the time of the offending the appellant was aged about 18 years 6 months and that his youth would be a 'heavy burden for [him] in custody' (ts 28). His Honour found that the appellant was remorseful. The appellant had developed some insight into his offending. He was abstinent from illicit drugs during the two month period he was in the community after his supervised release began in September 2017. The appellant had performed 'rather well' during his detention in custody after he committed the offence in question (ts 28). He had successfully undertaken a number of courses in prison and was living in self-care. The appellant had been well-behaved in custody.
His Honour mentioned that the appellant had been in custody since 21 November 2017. His supervised release order was suspended on 29 November 2017 and cancelled on 18 April 2018. As such, between 29 November 2017 and the date of sentencing for the offence in question, the appellant was continuing to serve the sentence resulting from the cancellation of the order. His Honour recognised that the sentence he imposed should take into account the time the appellant had spent in custody in consequence of the cancellation of the order.
The CCTV footage of the incident
We have watched the CCTV footage at the shopping centre that captured the appellant's assault on the victim.
The CCTV footage was captured by two cameras. We will refer to them as the north-west camera and the west camera.
The north-west camera depicts about 17 young males and two young females walking in a line along a boundary fence which separates the carpark from residential premises. Initially, the young males walk along the side of the carpark. Some of the young males then begin to run onto the carpark road. The victim, who was wearing a dark hooded jumper, appears to be carrying a stick-like implement.
The young males and the young females disappear from the view of the north-west camera. Moments later, however, they can be seen running back, through the carpark, in the direction from which they had come. The victim can be seen running from the appellant. The appellant is a few metres behind the victim and is chasing him. The victim is still holding the stick-like implement. He turns briefly to look at the appellant as he continues to run from him. The appellant is holding the crowbar as he chases the victim. The appellant briefly raises the crowbar while he runs. The victim and the appellant round a corner of the shopping centre and disappear from the view of the north‑west camera.
The west camera shows the young males and the young females running through the carpark. The appellant can be seen chasing the victim. Both of them are running fast. The appellant catches up to the victim and strikes him to the head with the crowbar. The victim falls to the ground next to the wall of the shopping centre. The appellant turns and runs in the direction from which he had come. The victim gets to his feet and jogs in the opposite direction from the appellant. The victim still holds the stick‑like implement.
The north-west camera also shows the appellant jogging away after he has struck the victim with the crowbar. The camera shows the appellant turning the corner of the shopping centre. He is still carrying the crowbar.
The CCTV footage does not show the victim striking the appellant with the stick-like implement. At one point, the victim appears to swing the implement behind him as a defensive measure. However, the victim's focus appears to have been upon escaping from the appellant and any swinging of the implement was insignificant and wholly ineffective.
Counsel for the appellant's submissions
Counsel for the appellant submitted that the sentence of 7 years' imprisonment was manifestly excessive, taking into account the maximum penalty for the offence, the place of the offence in the scale of seriousness of offences against s 304(2)(b) of the Code, the standards of sentencing customarily observed and the appellant's mitigating factors.
Counsel argued that the most serious aspect of the offence was the harm actually suffered by the victim. However, the appellant did not intend to cause an injury of the seriousness actually suffered by the victim. It was submitted that none of the other features of the offence aggravated the offending to any significant degree. In particular, counsel emphasised that the appellant struck 'only' a single blow, he was not in company and his pre-meditation was 'minimal' compared to the pre-meditation in many other cases involving a serious assault.
Counsel for the appellant pointed out that since the current iteration of s 304(2) was inserted in the Code in 2004, the appellant's sentence in the present case has been exceeded in only two other cases that have come before this court, namely Delavale v The State of Western Australia[1] and The State of Western Australia v Darroch.[2] Counsel acknowledged that in both of those cases the offenders received substantially longer sentences than the appellant, but submitted that both of those cases involved offending 'far more serious' than the appellant's offending.
[1] Delavale v The State of Western Australia [2009] WASCA 111.
[2] The State of Western Australia v Darroch [2018] WASCA 114.
Counsel also pointed to another group of cases where shorter sentences than the appellant's sentence were imposed, namely Kaokula v The State of Western Australia,[3] Penny v The State of Western Australia[4] and The State of Western Australia v BLM.[5] All of those offenders ultimately received sentences of or close to 6 years' imprisonment. Similarly, in Lawrence v The State of Western Australia,[6] the offender received a sentence of 5 years' imprisonment for an offence against s 304(2) of the Code and a sentence of 12 months' imprisonment, to be served cumulatively, for another serious assault. In Kaokula, Penny, BLM and Lawrence the sentences were imposed after trial. Counsel contended that although none of the victims in those cases suffered harm as serious as that suffered by the victim in the present case, all involved offending conduct and other features that were more serious than the offending conduct and other features in the present case.
[3] Kaokula v The State of Western Australia [2016] WASCA 198.
[4] Penny v The State of Western Australia [2016] WASCA 52.
[5] The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414.
[6] Lawrence v The State of Western Australia [2015] WASCA 187.
Counsel for the appellant also referred to the sentences that have been imposed for offences against s 294(1) of the Code which, like offences against s 304(2), carry a maximum penalty of 20 years' imprisonment. Counsel referred, in particular, to the sentences imposed in The State of Western Australia v Naumoski[7] and Oxenham v The State of Western Australia.[8] In Naumoski, the offender ultimately received a sentence of 7 years' imprisonment, after taking into account a 25% discount for his plea of guilty. In Oxenham, the offender received an overall sentence of 7 years 6 months' imprisonment, after taking into account a 15% discount for his plea of guilty. Counsel contended that the offences committed in Naumoski and Oxenham were significantly more serious than the offence committed in the present case, and that the sentencing outcomes in Naumoski and Oxenham reinforced the appellant's submission in the present case that his sentence was manifestly excessive.
[7] The State of Western Australia v Naumoski [2013] WASCA 215; (2013) 234 A Crim R 566.
[8] Oxenham v The State of Western Australia [2015] WASCA 30.
Counsel sought to advance the appellant's case by referring to sentences imposed for manslaughter before the maximum penalty for that offence was increased on 17 March 2012 from 20 years' imprisonment to life imprisonment.
Counsel urged this court to conclude that, in all the circumstances and having regard to all relevant sentencing factors, the sentence of 7 years' imprisonment imposed upon the appellant was unreasonable or plainly unjust, despite the seriousness of the harm he had caused to the victim.
The merits of the ground of appeal
The appellant does not challenge any of the trial 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 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 of the offender.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending 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 the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences 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 of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
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 the 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;[9] The State of Western Australia v Doyle.[10]
[9] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[10] 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.[11]
[11] 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 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.[12]
[12] 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 Darroch [34], 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.
In Quirk v The State of Western Australia,[13] Buss P and 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 (Kaokula v The State of Western Australia [2016] WASCA 198 [63]). 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 (Kaokula [62]; Darroch v The State of Western Australia [2018] WASCA 114 [34]). 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.
[13] 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 [33] - [40] (McLure P). See also Lawrence [36] and Quirk [57].
In the present case, the count in the indictment pleaded that the appellant 'with intent to harm' did an act as a result of which 'the life, health or safety of [the victim] was, or was likely to be, endangered', contrary to s 304(2)(b).
As we have mentioned, the appellant was sentenced on the basis that his 'intent to harm' was an intent to unlawfully cause some unspecified bodily harm to the victim, but not the harm which the victim actually suffered. It was accepted by the appellant, before the sentencing judge and this court, that the blow he struck with the crowbar caused the victim an injury which endangered his life and that the blow appears to have caused him permanent injury.
It was necessary, in determining the appellant's sentence, to evaluate, amongst other things, the nature and seriousness of the appellant's 'intent to harm', the nature and seriousness of the 'act' the appellant did, and the nature and seriousness of the 'bodily harm' caused to the victim as a result of the appellant's 'act'.
The egregiousness of the appellant's offending is apparent from our summary of the facts and circumstances of the offending and the sentencing judge's sentencing remarks.
The actions of the appellant in chasing and striking the victim to the head with the metal crowbar were gratuitous acts of revenge. As the appellant said in his electronically recorded interview with police, he 'hunted' the victim. The appellant was not responding to any perceived threat to himself or his associates. The victim was retreating from the appellant (as were other members of the rival group). The victim had his back to the appellant. The sentencing judge found that 'the fight between the two gangs was really over and [the appellant] had become the aggressor' (ts 23). His Honour did not make any finding that the victim had struck the appellant with the stick-like implement. Any action by the victim, while he was being chased or 'hunted' by the appellant, in swinging the stick-like implement behind him was a desperate and futile endeavour to protect himself from the appellant, who was armed with the crowbar and committed to chasing or 'hunting' the victim. The victim's conduct did not mitigate the appellant's offending.
A photograph of the crowbar indicates that it was a very heavy metal object. His Honour did not make a finding that, when the appellant struck the victim with the crowbar, the appellant did not realise he had a crowbar in his hand. The unspecified bodily harm which the appellant intended to cause to the victim must be viewed in the context of the crowbar being a very heavy metal object. The appellant's action in striking the victim with the crowbar involved a very high degree of endangerment to the victim. The likely outcome of a forceful blow to the victim's head with the crowbar was a very serious injury.
The appellant's action in striking the victim to the head with the crowbar had the potential to cause catastrophic harm, if not death, to the victim. As we have recounted, the victim in fact suffered devastating injuries and significant emotional trauma. His life has been severely impacted. It is unlikely that the victim will ever fully recover from his injuries. He has been deprived, at a very young age, of numerous opportunities (including opportunities of a personal, social, educational and employment character) which are available to and taken for granted by most people.
His Honour noted, correctly, the existence of a number of aggravating factors. First, the appellant was on a supervised release order when he committed the offence. Secondly, the appellant's assault upon the victim arose from an earlier 'gang attack' in a public place. Thirdly, the appellant used a weapon (that is, the crowbar).
The sentencing judge also identified a number of mitigating factors. First, the appellant's plea of guilty. Secondly, the appellant's youth. He was aged about 18 years 6 months at the time of the offending and was 19 when sentenced. Thirdly, the appellant's remorse and his development of some insight into his offending. Fourthly, the appellant's performance and behaviour in custody. We add, to those factors, the appellant's dysfunctional childhood.
As to the appellant's youth, in Ugle v The State of Western Australia,[14] Buss JA (Pullin JA agreeing and Mazza JA relevantly agreeing) said:
Ordinarily, an offender's youth is a significant mitigating factor. This reflects the view that the interests of the community are best served by determined efforts to rehabilitate a youthful offender (including a very young adult). A very young adult may be impressionable, impulsive and less cognisant of the seriousness of particular offending than an older person. Also, a lengthy term of imprisonment will ordinarily be a heavier burden on a very young adult. However, youth must be weighed against the facts and circumstances of the offences which have been committed. A substantial custodial sentence may be required in an appropriate case, despite the offender's youth, in order properly to reflect the need to protect the public or a section of it, and the need for personal and general deterrence. See Ainsworth v D (a child) (1992) 7 WAR 102, 117 (Malcolm CJ, Franklyn & White JJ agreeing).
[14] Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115 [71].
In the present case, the appellant's offending was, as the sentencing judge noted, 'in the mid and getting up to the upper range of offending' (ts 24). The victim's injuries were 'in the upper range of seriousness' (ts 24). The degree of objective seriousness of the appellant's offending required that the mitigating effect of his youth be reduced substantially in deciding upon the appropriate sentencing outcome. The appellant was not of prior good character; in particular, he had a history of violent behaviour toward people, including one incident of violence with a weapon. His Honour found that the appellant was at a medium risk of violent reoffending. Personal and general deterrence were important sentencing factors.
The fact that the appellant inflicted one blow to the victim and not multiple blows was not mitigating. At best, it could only be regarded as indicating the absence of an aggravating factor. In any event, the single blow produced a shocking outcome. The crowbar lodged in the victim's skull. The appellant had to remove the crowbar from the victim's skull. The appellant then fled without endeavouring to provide or obtain any assistance for the victim.
We have examined a number of appeals against sentence decided by this court which have involved offending contrary to s 304(2) or s 294(1) of the Code. The cases we have examined include those referred to by counsel for the appellant.
As to offending against s 304(2) see, in particular, Penny and the cases reviewed in Penny [33] - [40] and Darroch and the cases reviewed in Darroch [40] - [42]. See also Quirk.
As to offending against s 294(1) see, in particular, Naumoski and the cases reviewed in Naumoski [25] - [40]. See also The State of Western Australia v Legge;[15] The State of Western Australia v Khasay;[16] Oxenham; McKenzie v The State of Western Australia;[17] Merlo v The State of Western Australia;[18] and Thompson v The State of Western Australia.[19]
[15] The State of Western Australia v Legge [2014] WASCA 47.
[16] The State of Western Australia v Khasay [2014] WASCA 58.
[17] McKenzie v The State of Western Australia [2015] WASCA 163.
[18] Merlo v The State of Western Australia [2018] WASCA 71.
[19] Thompson v The State of Western Australia [2019] WASCA 68.
There is no hierarchy of seriousness as between offences against s 304(2) or offences against s 294(1). The seriousness of each case depends upon its own facts and circumstances.
Sentences imposed for manslaughter before the maximum penalty for that offence was increased from 20 years' imprisonment to life imprisonment are of very little assistance as comparable cases in the context of offending against s 304(2).
It is unnecessary to reproduce the facts and circumstances of each of the cases we have examined or the sentencing outcomes in those cases. It is sufficient to note that there are some comparable features between some of them and the present case and there are also some distinguishing features.
We are satisfied that the sentence of 7 years' imprisonment imposed on the appellant was within the general range of sentences that have customarily been imposed for offences, contrary to s 304(2) of the Code, committed in circumstances reasonably comparable to those of the present case.
In our opinion, the sentence of 7 years' imprisonment was not manifestly excessive. In particular, when the sentence is viewed from the perspective of the maximum penalty (20 years' imprisonment), and after taking into account all relevant facts and circumstances and all relevant sentencing factors, including:
(a)the objective facts and circumstances of the offence;
(b)the egregiousness of the offending;
(c)the vulnerability of the victim and the impact of the offending upon him;
(d)the aggravating factors referred to by his Honour;
(e)the relevant general sentencing pattern;
(f)the mitigating factors mentioned by his Honour, including the appellant's plea of guilty and his youth;
(g)the appellant's detention in custody between 21 November 2017 and the date of sentencing for the offence in question; and
(h)the appellant's personal circumstances and antecedents,
we are satisfied that the sentence was not unreasonable or plainly unjust.
The sentence imposed was commensurate with the seriousness of the offence. No error of principle can be inferred from the sentencing outcome.
The ground of appeal has not been made out.
Finally, we note that the State made an application in the appeal dated 10 May 2019 for leave to adduce additional evidence in the appeal in the event that this court were to allow the appeal and resentence the appellant. It is unnecessary, in the circumstances, to recount the proposed additional evidence. The application will be dismissed.
Conclusion
The appeal must 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 Buss10 JULY 2019
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