Gomboc v The State of Western Australia
[2023] WASCA 115
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GOMBOC -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 115
CORAM: QUINLAN CJ
MAZZA JA
HALL JA
HEARD: 14 APRIL 2023
DELIVERED : 24 JULY 2023
FILE NO: CACR 72 of 2022
BETWEEN: LUKE BOZIDAR GOMBOC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BARBAGALLO DCJ
File Number : IND 374 of 2020
Catchwords:
Criminal law – Appeal against sentence – Family violence – Offences of aggravated assault occasioning bodily harm, doing an act as a result of which the life, health or safety of a person was likely to be endangered, aggravated unlawful wounding, wilful and unlawful property damage, being armed in circumstances likely to cause fear, threat to harm and threat to kill – Whether imprisonment more onerous due to offender's mental health issues – Whether sentencing judge erred in failing to make positive finding as to prospects of rehabilitation – Whether total effective sentence of 11 years and 10 months infringed first limb of the totality principle
Legislation:
Criminal Code (WA), s 301(1), s 304(2)(b), s 317(1), s 320(2), s 338(1)(a), s 338(1)(b), s 444(1)(b)
Sentencing Act 1995 (WA), s 9AA, s 124E
Result:
Appeal allowed
Sentencing decision set aside
Appellant resentenced
Category: D
Representation:
Counsel:
| Appellant | : | G Yin |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Tehan Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Bropho v Hall [2015] WASC 50
Drage v The State of Western Australia [2021] WASCA 6
EXF v The State of Western Australia [2015] WASCA 118
Gillespie v The State of Western Australia [2016] WASCA 216
Kabambi v The State of Western Australia [2019] WASCA 44
McCoombe v The State of Western Australia [2016] WASCA 227
MHE v The State of Western Australia [2019] WASCA 133
Musca v The Queen [2021] WASCA 37
NE v The State of Western Australia [2021] WASCA 172
Newton v The State of Western Australia [2023] WASCA 7
Pedrochi v Brown [2021] WASC 81
Pennetta v The State of Western Australia [2013] WASCA 234
R v Smith (1987) 44 SASR 587
Taylor v The State of Western Australia [2022] WASCA 174
The State of Western Australia v Rayapen [2023] WASCA 55
Wong v The Queen (2001) 207 CLR 584
Table of Contents
Introduction and overview
Indictment
The appellant's pleas of guilty
Circumstances of the offending
Count 2 – aggravated assault causing bodily harm
Count 4 – threat to harm
Count 5 – doing an act endangering life, safety or health with intent
Count 6 – threat to kill
Count 7 – aggravated unlawful wounding
Count 8 – wilful damage to property
Count 9 – threat to kill
Count 10 – threat to harm
Count 11 – aggravated assault causing bodily harm
Count 12 – threat to harm
Count 13 – threat to harm
Count 15 – threat to harm
Count 19 – threat to harm
Count 22 – threat to harm
Count 23 – threat to kill
Count 26 – being armed likely to cause fear
Count 28 – threat to kill
Count 29 – threat to kill
Count 32 – threat to kill
Victim impact
Appellant's personal circumstances
Relevant aspects of the plea in mitigation
Appellant's mental health
Submissions as to the 'relationship'
Sentencing remarks
Grounds of appeal
Ground 2 – the appellant's mental health
Ground 2 – disposition
Ground 3 – prospects of rehabilitation
Ground 3 – disposition
Ground 1 – totality
Ground 1 – legal principles
Ground 1 – disposition
Resentencing
Conclusion
JUDGMENT OF THE COURT:
Introduction and overview
In about April 2014, when he was 29 years of age, the appellant, Luke Bozidar Gomboc, began a domestic relationship with a young woman of the same age. The relationship lasted for a number of years, in the course of which the appellant and his partner purchased a house together.
During the course of the relationship, the appellant subjected his partner to regular physical and verbal abuse. He punched and kicked her, strangled her, negligently wounded her with a knife, smothered her with a pillow, threw objects at her, and repeatedly threatened to kill her, and was often armed when he did so. The victim, who was left with severe anxiety and post‑traumatic stress disorder, suffered physically, mentally, emotionally and financially.
On 29 July 2022, the appellant was sentenced in the District Court by Barbagallo DCJ for 19 offences against the victim, including two counts of aggravated assault occasioning bodily harm; one count that, with intent to harm, he did an act as a result of which the life, health or safety of a person was likely to be endangered; one count of aggravated unlawful wounding; one count of wilful and unlawful property damage; one count of being armed in circumstances likely to cause fear; seven counts of making threats to unlawfully harm; and six counts of making threats to unlawfully kill.
The learned sentencing judge sentenced the appellant to a total effective sentence of 11 years and 10 months imprisonment.
The appellant now appeals the total effective sentence. He contends, by ground 1, that the total effective sentence failed to bear a proper relationship to the overall criminality of his conduct. By ground 2, the appellant contends that the learned sentencing judge erred in failing to find that imprisonment would weigh more heavily on him by reason of his mental health condition and, by ground 3, that her Honour erred in not making a positive finding as to the appellant's prospects of rehabilitation.
There is no merit to the allegations of express error (in grounds 2 and 3). There was insufficient evidence before the learned sentencing judge for her Honour to conclude that imprisonment would weigh more heavily on the appellant by reason of his mental health condition. Indeed, at the hearing before the learned sentencing judge, counsel for the appellant accepted that the information before her Honour as to the appellant's mental health condition could not support such a conclusion.
As to the appellant's prospects of rehabilitation, the learned sentencing judge found that the appellant's physical and verbal abuse in a domestic setting was 'very entrenched behaviour' and that, unless and until he addressed his attitude and behaviour, the appellant remained a risk of reoffending. It was in that context that her Honour said that she was unable to form a positive view as to the appellant's prospects of rehabilitation.
The learned sentencing judge's conclusions in this regard have not been shown to be in error and were entirely justified. Indeed, as her Honour remarked, the submissions made by counsel on the appellant's behalf at sentencing (who was not counsel on appeal), and on his instructions, served to minimise the appellant's responsibility for his offending and shift responsibility onto his victim. In the face of such submissions, the learned sentencing judge could hardly find that the appellant presently had sufficient insight into his behaviour such as to require her Honour to make a positive finding as to his rehabilitation.
In relation to the allegation of implied error (ground 1), it is clear that it was necessary that the appellant be sentenced to a very significant total effective sentence. The appellant's offending was abhorrent and sickening. Notwithstanding the appellant's pleas of guilty, his mental health issues and the otherwise high regard in which he was held by others, the persistent, callous and menacing nature of his offending required a long term of imprisonment. The threatened and actual violence used by the appellant must be denounced by the courts in the strongest possible terms. So should, we are bound to say, the submissions made by defence counsel to the learned sentencing judge, which sought to cast responsibility on the victim.
For all of that, we are driven to the conclusion that the total effective sentence imposed on the appellant did not bear a proper relationship to the overall criminality involved in all of the offences, having regard to all relevant sentencing considerations, including the appellant's personal circumstances. While there is no doubt that a long term of imprisonment was required, due proportion could not justify a term of almost 12 years imprisonment following the appellant's pleas of guilty.
We would therefore grant leave to appeal on ground 1 and allow the appeal. The appellant should be resentenced to a total effective sentence of 9 years and 6 months imprisonment.
Indictment
The indictment filed in this matter initially contained 33 charges. Ultimately, the appellant pleaded guilty to 19 charges (on two separate occasions) in satisfaction of the indictment (which was amended on 4 February 2022). The State filed notices of discontinuance in relation to the balance of the charges. The 19 charges to which the appellant pleaded guilty, together with their maximum penalties, were as follows:
Count Date/s Offence type Maximum penalty 2 Between 01.08.2015 - 31.08.2015 Aggravated assault causing bodily harm contrary to s 317(1) of the Criminal Code (WA) 7 years imprisonment 4 21.07.2016 Threat to unlawfully harm contrary to s 338B(1)(b) of the Criminal Code (WA) 3 years imprisonment 5 Between 31.07.2016 - 01.09.2017 Doing an act endangering life, safety or health with intent to harm contrary to s 304(2)(b) of the Criminal Code (WA) 20 years imprisonment 6 02.08.2016 Threat to unlawfully kill contrary to s 338B(1)(a) of the Criminal Code (WA) 7 years imprisonment 7 05.08.2016 Aggravated unlawful wounding contrary to s 301(1) of the Criminal Code (WA) 7 years imprisonment 8 19.09.2016 Wilful and unlawful damage to property contrary to s 444(1)(b) of the Criminal Code (WA) 10 years imprisonment 9 16.11.2016 Threat to unlawfully kill contrary to s 338B(1)(a) of the Criminal Code (WA) 7 years imprisonment 10 08.12.2016 Threat to unlawfully harm contrary to s 338B(1)(b) of the Criminal Code (WA) 3 years imprisonment 11 21.01.2017 Aggravated assault causing bodily harm contrary to s 317(1) of the Criminal Code (WA) 7 years imprisonment 12 26.06.2017 Threat to unlawfully harm contrary to s 338B(1)(b) of the Criminal Code (WA) 3 years imprisonment 13 08.07.2017 Threat to unlawfully harm contrary to s 338B(1)(b) of the Criminal Code (WA) 3 years imprisonment 15 14.11.2017 Threat to unlawfully harm contrary to s 338B(1)(b) of the Criminal Code (WA) 3 years imprisonment 19 26.05.2018 Threat to unlawfully harm contrary to s 338B(1)(b) of the Criminal Code (WA) 3 years imprisonment 22 31.08.2018 Threat to unlawfully harm contrary to s 338B(1)(b) of the Criminal Code (WA) 3 years imprisonment 23 09.09.2018 Threat to unlawfully kill contrary to s 338B(1)(a) of the Criminal Code (WA) 7 years imprisonment 26 04.10.2018 Being armed in circumstances likely to cause fear contrary to s 320(2) of the Criminal Code (WA) 7 years imprisonment 28 14.10.2018 Threat to unlawfully kill contrary to s 338B(1)(a) of the Criminal Code (WA) 7 years imprisonment 29 02.11.2018 Threat to unlawfully kill contrary to s 338B(1)(a) of the Criminal Code (WA) 7 years imprisonment 32 24.11.2018 Threat to unlawfully kill contrary to s 338B(1)(a) of the Criminal Code (WA) 7 years imprisonment
The appellant's pleas of guilty
As we have already observed, the indictment initially included 33 charges. The charges were committed to the District Court for trial on 19 February 2020. On 17 November 2020, prior to the trial listing hearing in the District Court, the appellant offered to plead guilty to 14 of the charges, and to five amended charges, in satisfaction of the indictment. The State rejected that offer.
On 11 December 2020, at the trial listing hearing, the appellant pleaded guilty to the 14 charges included in the offer by him made on 7 December 2020, being counts 2, 4, 6, 8, 10, 11, 12, 13, 15, 19, 22, 23, 26 and 32. The balance of the charges were listed for trial on 7 February 2022.
On 7 February 2022, being the first day of trial, the appellant pleaded guilty to an additional five charges, being counts 5, 7, 9, 28 and 29. Those five counts included amendments to the charges in the indictment as originally filed. Counts 9, 28 and 29 were charges to which the appellant had offered to plead guilty on 17 November 2020, if those charges were amended.
The balance of the charges against the appellant were discontinued.
Circumstances of the offending
The circumstances of the appellant's offending were comprehensively set out by the learned sentencing judge.
The appellant and the victim were in a domestic and intimate relationship that commenced in or about April 2014 when they were both 29 years of age. The relationship ended on or about 7 December 2018. During 2015 they resided together at the appellant's parents' home and in June 2016 they purchased a house together, where they resided.
Over almost the entirety of the relationship, the appellant verbally and physically abused the victim.
It will be apparent that, while the appellant's offending against the victim occurred over the course of a number of years and two of the offences were identified as having been committed on unknown dates within a range of dates, most of the offences were able to be particularised by reference to precise dates. That is because, in addition to having taken photographs of several of her injuries, the victim regularly made audio recordings of the appellant's offending. It was therefore possible to determine not only precisely when those offences occurred, but also, in the case of the unlawful threats, the precise words used by the appellant.
The learned sentencing judge listened to all of those recordings, as have we. It makes for extremely confronting listening. In order to provide some indication of the gravity of the offending, it is, regrettably, necessary to set out many of those recorded interactions in some detail.
As will also be seen, in relation to many of the charges of threat to harm and threat to kill, the appellant's threats were accompanied by physical violence. While it was, in each case, the threat itself for which the appellant was to be sentenced, it was accepted that any physical violence accompanying a threat was relevant to an assessment of the nature and seriousness of the threat.
The facts of the individual offences are as follows.
Count 2 – aggravated assault causing bodily harm[1]
[1] WAB 202 ‑ 203.
On a date unknown in the month of August 2015, the appellant and the victim were out together socialising and drinking. Upon their return home to the appellant's parents' house, the appellant and the victim became involved in a verbal argument, which escalated.
During the argument, the appellant struck the victim with a closed fist numerous times to her upper body and arms. At one point, the victim fell to the ground and the appellant continued to attack her, kicking and punching her all over her body. The appellant took the victim's mobile phone and drove over it with the car, causing it to break.
As a result of this offence, the victim suffered pain and multiple bruising over her body. The circumstance of aggravation was that the appellant and the victim were in a family and domestic relationship.
Count 4 – threat to harm[2]
[2] WAB 204.
On 21 July 2016, the appellant and the victim were at their home arguing. In the course of the argument the appellant yelled, screamed, abused, threatened and taunted the victim. The appellant also grabbed the jumper that the victim was wearing and yanked her forward.
At one point, the appellant threatened to hit the victim and cut her throat. He told the victim that he would laugh at her as she was 'pissing blood'. He also said 'you wonder why I hit you … If I'm going to hit you, I'll fucking hit you'.
The appellant called the victim a number of offensive names, including calling her an 'arrogant fucking cunt', a 'fucking bitch', a 'fat ugly cunt', a 'fucking piece of shit' and a 'retard'. The victim can be heard to cry and to say, 'don't hurt me'.
Count 5 – doing an act endangering life, safety or health with intent[3]
[3] WAB 204 ‑ 205.
On a date unknown between 31 July 2016 and 1 September 2017, the appellant and the victim had a verbal argument at their home.
As the argument escalated, the appellant began pushing the victim around, while she screamed at him to leave her alone.
The appellant pushed the victim into a bedroom and forced her to the ground. The victim was on her hands and knees on the floor, dressed in a dressing gown made of cotton material. While she was on the floor on her hands and knees, the appellant took the dressing gown belt and wrapped it around the victim's neck and started to tighten it, strangling the victim.
The appellant tightened the belt with such force that the victim was unable to breathe. The victim started to fall in and out of consciousness and foamed at the mouth, believing that she was going to die. Just as the victim believed she was going to die, the appellant let her go.
As the learned sentencing judge observed, by this conduct the appellant consciously and deliberately made a decision to endanger the victim's life in a very real way and demonstrated to her that he was capable of ending her life with no opportunity for her to defend herself.
Count 6 – threat to kill[4]
[4] WAB 205 ‑ 207.
On 2 August 2016, the appellant and the victim were at their home, while the victim was in the kitchen preparing food for dinner.
The appellant verbally abused the victim, apparently because he had a bad night's sleep the previous night. He said that he blamed everything on the victim. The appellant called the victim a number of offensive and derogatory names, including 'fat ugly cunt' and a 'fucking cunt'.
The appellant told the victim that he would 'belt the fuck out' of her and that he wanted 'to kick [her] fucking head in'.
The appellant then said to the victim:
I will kill you before you set me up. I fucking will.
When the victim responded, 'you're not going to kill me', the appellant said, 'it shows you don't know me'. He then picked up a knife out of the kitchen drawer, continued to yell at the victim whilst waving the knife around her. The victim tried to calm the appellant down, but it made him angrier.
At one point, the appellant had the victim backed up against the kitchen bench in the corner of the kitchen holding the knife and brandishing it very close to the victim, and said to her:
Before I run this through your fucking guts, what do you think is nothing? You fucking piece of shit.
The victim managed to get away from the appellant and leave the house.
Count 7 – aggravated unlawful wounding[5]
[5] WAB 207 ‑ 208.
On 5 August 2016, the appellant and the victim were at their home. The victim had just prepared dinner for the two of them and was carrying the food and cutlery from the kitchen into the living room.
An argument broke out and the appellant snatched a dinner knife out of the victim's hand and started pointing the knife at her in a threatening way. At that point, as it was only a dinner knife, the victim did not feel threatened and attempted to get the knife back. When she did so, the appellant pulled the knife away causing it to slice the victim's left index finger. The victim suffered a wound requiring stitches. The appellant blamed the victim, telling her that she should not have grabbed the knife.
The appellant's liability for this offence was accepted to be on the basis that he was criminally negligent in his control of the knife, pursuant to s 266 of the Criminal Code (WA). The circumstance of aggravation was that the appellant and the victim were in a family and domestic relationship.
Count 8 – wilful damage to property[6]
[6] WAB 208.
On 19 September 2016, the appellant and the victim were staying overnight at a hotel in Geraldton. During an argument between them, the appellant became physically violent, pushing the victim over, pinning her to the bed and pulling her hair. In the course of the physical violence the appellant ripped the dress that the victim was then wearing, causing irreparable damage to the dress.
Count 9 – threat to kill[7]
[7] WAB 208 ‑ 210.
On 16 November 2016, the appellant and the victim were at their home.
The appellant began verbally abusing the victim. He again called the victim a number of insulting and derogatory names, including a 'fucking cunt', a 'dumb bitch', 'stupid bitch' and 'fucking arsehole'. At one point, the appellant grabbed the victim's face and squeezed it.
The victim left the house but was not able to drive away as she did not have her car keys. She went back into the house to look for her car keys. The appellant continued to verbally abuse her. He punched her several times to her arms and belly area.
The victim begged the appellant to get off her, but he would not. He continued to yell abuse at her. He said to her:
When I look at you, I see a punching bag because you are a big over‑opinionated cunt.
The appellant pushed the victim onto the bed and pinned her down. He continued to yell threats and abuse at the victim and ignored the victim's pleas for him to get off her. He placed a pillow over the victim's face, while saying:
Do you want to die horribly?
When the victim said 'no', the appellant responded:
Too late for that, cunt. I fucking hate you so much. Right now, you are a red flag to a fucking bull.
At some point, the victim was able to escape, found her car keys and left the house.
The learned sentencing judge found that the physical violence accompanying the appellant's threats posed an immediate threat to the victim's life by restricting her ability to breathe, albeit momentarily. Her Honour said that the appellant consciously made a decision to accompany a threat to kill with an act that posed an immediate threat to the victim's life as a demonstration to her that he was capable of ending her life.
Count 10 – threat to harm[8]
[8] WAB 210 ‑ 211.
On 8 December 2016, while the appellant and the victim were at home, he began to verbally abuse the victim.
The victim walked to her car at the rear of the property and said to herself under her breath 'useless prick'. The appellant immediately attacked the victim and asked her to repeat what she had said. The State alleged that the appellant armed himself with a large wooden axe handle and threatened to beat the victim with it. During the incident, he grabbed the victim's hair and pulled her to the ground. He told her that he had the 'upper hand'.
The appellant denied having a wooden axe handle in his possession or touching the victim but admitted that he had threatened the victim with his fists. The learned sentencing judge did not consider that the production of an axe handle as opposed to threatened use of a fist in the context of a threat to harm would result in a different sentence and did not make a finding as to which had occurred. Nevertheless, her Honour did find that the appellant physically attacked the victim and that he had expressed his superior position over the victim by saying to her that he had the 'upper hand'.
Count 11 – aggravated assault causing bodily harm[9]
[9] WAB 211 ‑ 212.
On the morning of 21 January 2017, the appellant and the victim were at their home arguing, during which he verbally abused the victim. The appellant threw a large bottle lid at the victim, hitting her and causing a laceration above her left eye. The appellant sought to blame the victim, repeatedly asking her 'why do you push?'
The circumstance of aggravation was that the appellant and the victim were in a family and domestic relationship.
Count 12 – threat to harm[10]
[10] WAB 212.
On 26 June 2017, the appellant and the victim were in a car. The appellant said to her:
I will fucking kick the shit out of you. How does that sound?
Count 13 – threat to harm[11]
[11] WAB 212 ‑ 213.
On 8 July 2017, between 10.00 pm and 11.30 pm, an argument broke out between the appellant and the victim as the appellant was going to bed. They both exchanged insults, in the course of which the appellant said to the victim:
You're getting very close to me beating the living fuck out of you. …
I'm going to fucking beat you black and blue if you get in this fucking bed, I swear to God and you'll be screaming until I break your fucking jaw.
Count 15 – threat to harm[12]
[12] WAB 213.
On 14 November 2017, the appellant and the victim had an argument at their home.
During the argument, the appellant said to the victim, while he was holding a metal hard‑drive in the air:
I'm going to put it right through your fucking skull, you fucking little cunt.
When the victim asked the appellant to put down the hard‑drive, he said to her:
No, I'm trying to stop myself from breaking your fucking head off.
Following further requests from the victim, the appellant eventually put down the hard‑drive.
Count 19 – threat to harm[13]
[13] WAB 213 ‑ 215.
On 26 May 2018, the appellant and the victim had an argument at their home, initially about money and finances. During the argument, the appellant verbally abused the victim, calling her a number of offensive and derogatory names including a 'stupid fat‑headed cunt'.
At one point the appellant yelled at the victim:
Don't scream out the fucking door. If you do, I'll be coming and knocking you the fuck out.
The appellant hit the victim with a bunch of keys, picked up a glass terrarium off the coffee table and held it above the victim's head, and threatened to put the glass terrarium through her head.
The appellant kicked the victim in the stomach, knocking her backwards. The appellant said to the victim:
If you don't leave me alone, I swear that I'm going to cut you until you bleed out all over this lovely carpet, you cunt.
Shortly after this, the appellant left the house.
Count 22 – threat to harm[14]
[14] WAB 215 ‑ 216.
On 31 August 2018, the appellant and the victim were at their home as the appellant prepared a pizza for dinner. The appellant was initially calm and apologetic until an argument developed over the toppings on the pizza.
The appellant was holding a small, sharp knife that he had been using to prepare the dinner. During the argument, the appellant brandished the cooking knife in the victim's face, saying to her:
You have said your piece. Now shut the fuck up or I'm going to end up putting a hole in you. …
I am. I really am.
The appellant yelled abuse at the victim, calling her a 'fucking cunt'. The victim told the appellant to put the knife away, to which the appellant responded:
I would not fucking make a sudden fucking move if I was you.
The victim said, 'you are holding a knife in my face', to which the appellant responded:
In my head, the knife's in your fucking neck so shut the fuck up.
The victim asked the appellant why he was coming at her with a knife, to which he responded:
Because you won't shut the fuck up.
The victim said that the appellant should be apologising to her and not coming at her with a knife. He responded by yelling:
You should be thanking me for not killing you, you fucking nosey cunt.
Count 23 – threat to kill[15]
[15] WAB 216 ‑ 217.
On the morning of 9 September 2018, the appellant and the victim were at their home discussing their regular Sunday morning breakfast, which the victim usually cooked.
The victim asked the appellant to cook breakfast and an argument developed very quickly. The appellant called the victim a 'fat, fucking, bleak cunt'. He yelled at her, calling her a 'stupid bitch' and a 'stupid cunt'.
The appellant and the victim ended up in the dining room area where he continued to verbally abuse her. The victim noticed that a wall‑hanging candle holder that was precious to her was no longer where it should be. She found that the candle holder had been thrown onto the floor in the spare bedroom and became upset with the appellant.
The appellant picked up a knife and held it to the victim's neck. When the victim said, 'get that knife away from me', the appellant responded:
Nah, nah, this knife is protecting me. …
Ah, cunt, this is going to be the end of you.
The appellant continued to yell at the victim. She told him to get the knife out of her face to which the appellant responded:
It's going in your fucking neck.
The victim again told the appellant to get the knife out of her face. He responded:
Are you going to fucking annoy me or are you just going to leave me alone? …
I swear to God that it is so fucking hard not to fucking want to drive [this] thing into your fucking neck.
The appellant and the victim continued to yell at each other. When the victim threatened to call the police, the appellant denied that he was being violent. He then said to the victim:
I'll cut you and I'll cut me and you won't fucking win, bitch. …
I hate you that fucking much. I want you fucking dead. I want you out of my life.
As he repeated mocking the victim, the appellant said:
You are pushing me. You are fucking pushing me. You are going to fucking die. …
You are a fucking user and you are going to die for it. You are going to die for but not at my fucking hand. I'm going to have you fucking dead.
During the argument, the appellant punched the victim several times.
Count 26 – being armed likely to cause fear[16]
[16] WAB 219.
On 4 October 2018, the appellant and the victim had an argument at their home. During the argument the appellant verbally abused the victim. He taunted her about not being able to carry a child.
The victim was in the kitchen preparing food when the appellant armed himself with two large kitchen knives, saying to the victim:
I want to stab something because you have got me to this point where I want to cut something now. Let me cut something. I don't care what it is. …
I don't know how to get out of it [a reference to their relationship] without real shedding real fucking blood. …
Do you know that most murders are in the fucking kitchen? Do you know why? So many knives. You know, domestic murders. So many fucking knives.
The victim told the appellant to put the knives down but he continued to walk around with them.
Count 28 – threat to kill[17]
[17] WAB 219 ‑ 222.
On 14 October 2018, the appellant and the victim were at their home, arguing.
The appellant verbally abused the victim, calling her a 'fucking dumb bitch', 'fucking annoying fat cunt', 'fucking retard'. During the argument, which included reference to the victim's inability to conceive a child, the victim responded and made reference to the appellant's mother.
The appellant attacked the victim and forced her to the ground. He straddled on top of the victim and, using his bare hands, began to strangle her, causing her to be unable to breathe.
The victim asked the appellant to 'please stop', to which he responded 'I tell you what I please will do'. He repeated this several times to mock the victim. He said to her:
If you ever bring this shit up again, I will fucking break your fat fucking neck.
After the victim responded by saying 'okay' the appellant said:
You say okay but it's not okay so I know exactly what's going to happen. When I get off you, you will still carry on. I know you are. Fuck, I know you are. I know you are. I regret it every time. I regret it every fucking time. Now, think what you want but mention my mother again and I will snap your fat – your fucking fat neck. I don't give a fuck, okay. It will happen quicker. It will happen so fast you will not get a sentence out of your mouth, okay.
As a result of this attack, the victim sustained cuts to her neck.
The appellant initially claimed that the pressure to the neck of the victim had occurred inadvertently, however he later withdrew that claim. The learned sentencing judge found that, having listened to the recording of this incident, she was satisfied that the appellant deliberately had his hands around the victim's neck as he threatened to kill her.
The appellant also claimed that the victim had initiated the argument by making a comment about his mother. The learned sentencing judge rejected this, finding that the appellant was the first person to speak in a derogatory manner about the victim's inability to conceive.
Count 29 – threat to kill[18]
[18] WAB 222 ‑ 225.
Between 5.00 pm and 8.00 pm on 2 November 2018, the appellant and the victim were at their home. The victim asked the appellant whether he had had a good day. The appellant responded by verbally abusing the victim.
During the ensuing argument, the victim went to the bedroom and the appellant joined her, saying:
Have some magic, bitch, and shut your fucking mouth.
When the victim said to the appellant, 'why can't you be a nice person?', he physically attacked her by pushing her onto the bed and pushing her face into a pillow, in such a way that the victim was not able to breathe. The appellant said:
You want to fear for your life again, cunt? …
Actually, you know what? I might not let you fucking get up. Okay? So you can suck that fucking pillow. Okay, bitch?
At some point the appellant released the pillow or the victim was able to move so that she could breathe. The appellant said to the victim:
Shut the fuck up or I'm going to fucking break your fucking neck.
The appellant started hitting the victim by punching her to the upper arm. The victim told the appellant to get off her. The appellant told the victim that she had to listen and continued to yell, threaten and abuse her.
The argument then turned to a text exchange between the appellant and the victim that had occurred earlier that day. The appellant accused the victim of baiting him and then said:
I'm winding up. I'm winding up. You shut the fuck up or I'm really going to lose my fucking plot.
Later in the incident the appellant continued to verbally abuse the victim. She pleaded with him to stop, but he did not. The victim accused the appellant of being violent and aggressive, after which he reacted by placing a pillow over her face, restricting her breathing. The appellant said:
I'm going to suffocate you.
The victim asked the appellant to go to another room, but he refused. The appellant said to the victim that he 'hate[d] what you make me do' and that she took no responsibility.
When the victim again accused the appellant of being violent and aggressive, he responded:
If I hear that again, I will show you what violence is.
The appellant continued to abuse and threaten the victim. He armed himself with a knife and said to the victim:
I literally feel like slitting my throat, but not before yours. …
I will fucking attack you like you have never been attacked, cunt.
Count 32 – threat to kill[19]
[19] WAB 225 ‑ 227.
Late on 24 November 2018 and into 25 November 2018, the appellant and the victim were at their home, arguing.
During this argument the appellant verbally abused and threatened the victim. At one point the victim said, 'I hope you die'. The appellant went to the kitchen, armed himself with a knife and confronted the victim in the bedroom, holding the knife to her face and neck. He said to the victim:
Where would you like it? Where would you fucking like it? Right in the fucking – here? …
I'm going to enjoy cutting you fucking up.
The appellant assaulted the victim by making small cuts to her face, neck and finger with the knife. The victim repeatedly told the appellant to get away from her.
The victim managed to remove the knife from the appellant. He went back to the kitchen, counted to five, and returned with a larger knife, saying to the victim that his knife was bigger than hers. When the victim put down the knife she had earlier taken from the appellant, he took that knife and continued to threaten the victim with both knives. Eventually the victim was able to remove both knives from the appellant.
The appellant admitted that he had a knife in his hand at the time the injuries were caused to the victim but claimed that the injuries were caused by the victim fighting back, rather than as a result of deliberate and intended acts on his part. The learned sentencing judge, having listened to the audio recording of this incident, found that at the time the injuries were caused the appellant was placing the knife so close to the victim's face and neck that it was inevitable that she would be injured.
Victim impact
The impact of the appellant's offending on the victim was, and is, profound. The victim provided a lengthy victim impact statement, which we have read. Out of respect to the victim, the learned sentencing judge did not repeat in detail the victim impact statement. Nor will we.
It is sufficient to record that the victim impact statement set out the significant and adverse impact of the appellant's offending on her life: physically, mentally, emotionally and financially. She described being unable to erase the harrowing memories she is left with from the appellant's offending against her over many years and said that she was no longer the happy, fearless, carefree, confident woman she was when she first met the appellant. The appellant had worn down the victim's confidence, self‑esteem and self‑worth. She described a cycle of manipulation and coercive control that kept her trapped in the relationship for as long as she was.
As a result of the appellant's offending, the victim was left with severe anxiety and post‑traumatic stress disorder which required daily medication and ongoing therapy.
Appellant's personal circumstances
The appellant was born in 1984. He was between 31 and 34 years old when he committed the offences and 38 years old at the time of sentencing. He was an only child and had a positive upbringing with supportive parents. The appellant's parents remained supportive of him.
The appellant completed school to year 12. He experienced verbal and physical bullying at school.
After completing school, the appellant enrolled in the Australian Army. He did two tours of Malaysia and Thailand. He left the Army in 2009 after seven years of service. After leaving the Army, the appellant obtained qualifications, and worked, as a scaffolder.
The appellant had a previous relationship with a young woman with whom he became engaged in 2008. Following his relationship with the victim in this matter from April 2014 to December 2018, the appellant commenced a new romantic relationship in late 2021. That partner, who has known the appellant since 2009, remained supportive of the appellant and provided a written reference to the learned sentencing judge.
While the appellant was in good physical health, he had a significant history of mental health problems, including being hospitalised around six times because of mental health crises and risk of suicide, spending periods of up to a month as an inpatient.
Dr Leighton Chadwick, consultant psychiatrist, who had treated the appellant since December 2013 provided a report dated 20 March 2022.[20] The appellant has had three psychiatric admissions under Dr Chadwick's care.
[20] WAB 297 ‑ 299.
Dr Chadwick diagnosed the appellant as suffering from Post‑Traumatic Stress Disorder (PTSD), Major Depressive Disorder and Poly‑substance Misuse Disorder (Cannabis and Alcohol). Dr Chadwick identified the appellant's PTSD as having arisen during his time in military service with the Australian Army. In his opinion the appellant's Major Depressive Disorder and Poly‑substance Misuse Disorder are secondary to his PTSD.
The symptoms associated with the appellant's PTSD were persistently elevated arousal, anxiety and vigilance. Associated with those symptoms were a persistent sense of unease, vivid dreams and disturbed sleep generally. His depressive disorder caused discrete periods of severe depressive illness and his poly‑substance misuse was characterised by periods of weeks to months of heavy alcohol and cannabis use.
It was Dr Chadwick's opinion that the appellant's PTSD was, at least in part, causal of his offending, because of emotional regulation difficulties. These difficulties are evident as very low frustration tolerance and easy arousal into anger with mild provocation. The appellant was, in Dr Chadwick's opinion, more easily triggered into an angry emotional state than the average person due to his PTSD.
Dr Chadwick was particularly asked to comment on whether a term of imprisonment would be more onerous on the appellant because of his diagnosis. He responded:[21]
This is a difficult question to answer definitively as it involves considering many factors that may be in play and acting on a person during a term of imprisonment, and I am not overly familiar with the living environment and related factors within prisons in Australia. I only have colloquial knowledge of the particular stressors and other potentially onerous conditions within an Australian prison. Suffice to say that should someone with Mr Gomboc's diagnosis and associated vulnerabilities be exposed to episodes of violence within a prison system, this could certainly exacerbate his PTSD and/or exacerbate his Major Depressive Disorder significantly.
[21] WAB 299.
The learned sentencing judge also received reports from Holyoake (dated 13 August 2021) and the Fresh Start Recovery Programme (dated 14 January 2022), which reported favourably on the appellant's completion of programs at those organisations. The program at Fresh Start was a 10‑month residential program between February and December 2021.
The appellant had a limited criminal history, including driving offences and convictions for unlawful damage and a simple drug offence, in relation to both of which the appellant received a spent conviction. Most significantly, the appellant had a previous conviction for common assault committed on his then fiancée in 2008. On that occasion the appellant pushed the victim to the ground and was swearing, yelling and acting aggressively towards her. The appellant was fined for that offence and a spent conviction order was made.
Finally, in relation to the appellant's personal circumstances, the learned sentencing judge received personal references from a close family friend (who is also a senior lawyer),[22] the family accountant[23] and the appellant's current partner.[24]
[22] WAB 303.
[23] WAB 305.
[24] WAB 304.
Those personal references speak of the appellant being a 'quietly spoken, well‑mannered and respectful young man',[25] and a 'level headed, hardworking individual who has strong family values'.[26] Perhaps foreshadowing a number of submissions in mitigation made on the appellant's behalf (which we have referred to below), those references refer to the offending arising from 'domestic problems' and arising out of an 'ill‑fated domestic relationship'. As we will come to, these references reflect the regrettable tendency in the submissions in mitigation to blame 'the relationship' (and thereby the victim) for the appellant's offending, rather than the appellant himself.
[25] WAB 303.
[26] WAB 305.
The appellant's current partner, while being aware of the appellant's offending, describes a person very different from the person who offended against (and can be heard offending against) the victim. The appellant's current partner described the appellant showing her that 'he harbours good intentions and has a caring nature' and that his interactions with her and her family have always been healthy.
Relevant aspects of the plea in mitigation
To put the sentencing remarks and the grounds of appeal in context, it is necessary to make specific reference to aspects of the plea in mitigation made on the appellant's behalf before the learned sentencing judge. Those submissions concern the impact of the appellant's mental health issues on his imprisonment (ground 2) and his insight into his offending, a matter relevant to his prospects for rehabilitation (ground 3).
Appellant's mental health
We have set out, at [123] above, Dr Chadwick's comment in relation to whether the appellant's mental health diagnoses would make a term of imprisonment more onerous for him.
Following production of that report, at the hearing before the learned sentencing judge on 31 May 2022, defence counsel (who was not counsel on appeal), alluded to the prospect that imprisonment might be more onerous to the appellant on account of his mental health condition. She immediately made clear, however, that the material then before her Honour could not support a finding to that effect. Counsel submitted:[27]
Your Honour, before you can deal with that submission of mine, will really need to consider more about his condition and know a little more perhaps. But I think it's just – for a start, it's an obvious point to make, that anyone in our current prison system with mental health problems will find it harder than people without those mental health problems, just because –
[HER HONOUR]: Well, to be fair, that's probably most of the prison population.
[DEFENCE COUNSEL]: That's what I was going to say. So, that's the starting point. …
But, what your Honour needs to know if to what extent the difficulties for the accused might be, a bit bigger than that, a bit harder than that, and that's where I can't take it further than the materials that we've got at the moment.
And that's where – another point to which those additional materials might assist, because it seems to be implied, without explained, that he would find it difficult to function in the prison environment, and I can't elaborate on that without the further materials.
[27] WAB 166 ‑ 167.
The prosecutor agreed that there was 'really not enough information' in relation to that issue.[28]
[28] WAB 174.
The sentencing hearing on 31 May 2022 was adjourned, in part, for further information and a further report to be obtained from Dr Chadwick.[29] It was clear from the submissions as a whole that the further information and report to be sought was also (if not primarily) for the purpose of addressing whether there was a causal connection between the appellant's PTSD and his offending.[30]
[29] WAB 177.
[30] WAB 157 ‑ 161.
When the sentencing hearing resumed on 29 July 2022, while there was further information provided, and submissions, addressing whether there was a causal connection between the appellant's PTSD and his offending, the prospect that imprisonment might be more onerous to the appellant on account of his mental health condition was not the subject of any further reports or submissions.
Submissions as to the 'relationship'
At the hearing on 31 May 2022, defence counsel made a series of submissions in mitigation as to the role of the victim and the 'relationship' in the appellant's offending. While counsel prefaced those submissions with 'there is nothing to suggest that the victim is therefore to blame for what happened to her', she immediately turned to 'the context of two people who are often bad for each other'.[31]
[31] WAB 147.
In that context, defence counsel's submissions included:[32]
[32] WAB 148 ‑ 152.
The relationship was functional for quite some time until, of course, at some point it became dysfunctional. From his perspective, when he started to get angry, or upset, or stressed – it was more feelings of stress than anger that would start – instead of walking away, the complainant would remain and then start saying things back to him.
From his perspective, she would start to taunt him, and on many occasions, she would say things to him, from his perspective, making fun of the fact that he had depression, that he couldn't sleep, that he was – that he had to sometimes resort to substances.
…
And in those recordings, one of the features is there's very seldom any violence at the start. The violence only would come down the track in the – as the argument built to a progression. And it was unfortunate that the complainant didn't learn earlier to perhaps walk rather than engage at times when it was clear Mr Gomboc was building to a point where he could no longer control his actions.
…
The complainant didn't leave, she chose to stay; not only chose to stay, but I do make this observation because it's very difficult. We tend to stereotype domestic violence.
We talk about the domestic violence victim and the domestic violence accused. And the one thing your Honour knows and I know is there's no such thing as a stereotype. Every relationship has its unique circumstances.
…
It's a pity the complainant didn't leave. And she wasn't a person who couldn't have left, because she did have the supports and the capacities, and the independence and the previous life, unlike many women in these situations, to leave but she didn't. It doesn't make here therefore a – you know, somehow justify the fact that this happened after she chose to stay, but it does mean that a dysfunctional relationship kept going.
…
The reality is that it was a relationship where they treated each other badly but he treated her criminally. And it is that criminal aspect of his treatment that needs to be dealt with today.
But the point that Mr Gomboc has wanted me to really make sure that your Honour knows – and I know for his parents this is important too, your Honour – is that for all the bad things that have been said about Mr Gomboc and will be said, and what the prosecutor has said last time and this time, this was not a case where there was only one person in a relationship who at all times behaved badly while the other one stood innocently by.
As will be seen, the learned sentencing judge referred to aspects of these submissions in her sentencing remarks, to which we now turn.
Sentencing remarks
Having set out the applicable maximum penalties, the facts of the appellant's offending, the impact on the victim and the appellant's personal circumstances, the learned sentencing judge addressed the discount for the appellant's pleas of guilty.
The learned sentencing judge recognised the significance for the victim and other witnesses from the appellant's pleas of guilty and the saving to the State of a lengthy trial. Her Honour recognised that the pleas of guilty were a willingness to accept responsibility and to facilitate the course of justice.[33]
[33] WAB 234.
In relation to those counts to which the appellant offered to plead guilty in November 2020 and did plead guilty, her Honour stated that she had reduced the sentence she would otherwise have imposed by 18%. In relation to the remaining counts her Honour stated that she had reduced the sentence she would otherwise have imposed by 8%.[34]
[34] WAB 235.
The learned sentencing judge turned to the appellant's prospects of rehabilitation (and, conversely, his prospects of reoffending).
Her Honour referred to the submissions made to the effect that the appellant's offending only occurred in the context of the particular intimate relationship with the victim. The learned sentencing judge characterised this as 'victim blaming'.[35]
[35] WAB 235.
The learned sentencing judge referred in detail to the appellant's history of mental illness and to the reports provided by Dr Chadwick.[36] In relation to any causal relationship between the appellant's illness and his offending, her Honour concluded that, while she accepted that the diagnosis of PTSD may have resulted in the appellant having a lower threshold or tolerance with stress, she did not accept that it inhibited or impaired his ability or capacity to regulate his physical responses on the separate and distinct occasions of his offending.[37]
[36] WAB 230.
[37] WAB 237.
In that regard, the learned sentencing judge observed that at no time did the appellant take stock of what he was doing and take steps to prevent it from happening again, even though he was receiving treatment during the period of the offending. Her Honour observed that, as the appellant was under the care of a psychiatrist during the entire relationship with the victim, it must have been clear to him that if his mental state was such that he could not tolerate a stressful situation that would require him to exercise restraint and self‑control, then it was for him to extract himself from those situations.[38]
[38] WAB 238.
The learned sentencing judge said that while the appellant had taken steps to address many aspects of his life that were present at the time of his offending (including his substance abuse and mental health) and was otherwise well regarded by members of the community, he was yet to address the very nub of his offending, being his attitude towards intimate partners and his use of verbal and physical abuse to control them. Her Honour described the appellant's physical and verbal abuse in a domestic setting as 'very entrenched behaviour'.[39]
[39] WAB 239.
In support of that conclusion the learned sentencing judge specifically referred to the submissions made by defence counsel, which reflected the appellant's own instructions, to the effect that it was unfortunate that the complainant did not leave. Her Honour referred to the submissions as 'frankly offensive', for two reasons. First, that they completely misunderstood the effect of being a victim of domestic violence. Secondly, that they completely took away the appellant's responsibility to act appropriately and served to shift responsibility to the victim to do something to accommodate his bad behaviour.[40]
[40] WAB 239.
The learned sentencing judge concluded this portion of the sentencing remarks with the passage challenged by ground 3 of the appeal. Those remarks bear repeating in full:[41]
The submissions give rise to concerning attitudes you hold as a perpetrator of domestic violence and highlight the need for you to address those attitudes.
Unless and until you address this entrenched behaviour head‑on, then in my view, you will remain a risk of re‑offending, a real risk of re‑offending, in a similar manner as your current offending. At this time, I am unable to form a view about your prospects of rehabilitation.
[41] WAB 240.
The learned sentencing judge turned to the issue of remorse. Referring to the efforts the appellant had made to address factors in his life, and to the positive changes described by his current partner, her Honour said that, while he had a long way to go to understand the true nature of his offending, she took into account the limited remorse that the appellant had demonstrated.[42]
[42] WAB 240 - 241.
The learned sentencing judge referred to a number of decisions of this Court in relation to the significance of general deterrence in offences involving intimate partner violence including Bropho v Hall[43] and Drage v The State of Western Australia.[44]
[43] Bropho v Hall [2015] WASC 50 (Bropho v Hall).
[44] Drage v The State of Western Australia [2021] WASCA 6 (Drage).
Her Honour then identified a number of serious features of the appellant's offending as a whole, including:[45]
(a)the offending persisted, and the victim was subjected to the appellant's conduct, for three and a half years;
(b)there were 19 separate and distinct offences over that period of time, in which the appellant had time to reflect on his conduct and choose not to do it again, but did not;
(c)most of the 19 offences were, in and of themselves, persistent sustained events;
(d)on numerous occasions the appellant deployed a number of methods and weapons to clearly communicate to the victim that he could end her life at his hands and very quickly, so as to make the victim fearful of him;
(e)the size difference between the appellant and the victim. The appellant was physically stronger than the victim, who was vulnerable to his physical violence;
(f)the fact that all this offending was in the context of a domestic relationship, in which the appellant should have been the person the victim could have relied on for being safe and happy and cared for. While some of the offences were, by the wording of the charge, committed in circumstances of aggravation, all of the offences were nonetheless aggravated by having been committed in the context of a domestic relationship;
(g)the fact that the appellant's threats to kill or harm the victim were often accompanied by the presence of weapons and physical violence, which no doubt had the effect of elevating the fear of harm or death the victim experienced on each occasion, and the accumulated sense of fear that she must have felt. Her Honour found in relation to many of the offences involving threats that the use of weapons or physical violence demonstrated the appellant's present ability to make good on his threat; and
(h)the fact that the appellant's offending routinely incorporated statements designed to degrade and humiliate the victim, such as taunts about her fertility and her weight.
[45] WAB 242 ‑ 243.
In all of the circumstances the learned sentencing judge imposed a total effective sentence of 11 years and 10 months imprisonment. The sentences for the individual offences (together with their concurrency or cumulacy) were as follows:
Count 2
10 months imprisonment
Cumulative
Count 4
12 months imprisonment
Concurrent
Count 5
4 years and 6 months imprisonment
Head sentence
Count 6
3 years imprisonment
Concurrent
Count 7
12 months imprisonment
Concurrent
Count 8
10 months imprisonment
Concurrent
Count 9
3 years imprisonment
Concurrent
Count 10
14 months imprisonment
Concurrent
Count 11
2 years and 2 months imprisonment
Concurrent
Count 12
10 months imprisonment
Concurrent
Count 13
12 months imprisonment
Concurrent
Count 15
14 months imprisonment
Concurrent
Count 19
16 months imprisonment
Concurrent
Count 22
16 months imprisonment
Concurrent
Count 23
3 years imprisonment
Concurrent
Count 26
18 months imprisonment
Concurrent
Count 28
3 years imprisonment
Concurrent
Count 29
3 years and 6 months imprisonment
Cumulative
Count 32
3 years imprisonment
Cumulative
In ordering that a number of the terms of imprisonment be served concurrently, the learned sentencing judge expressly referred to considerations of totality. In addition, her Honour stated that she had reduced the individual sentence for count 2 from 3 years imprisonment for totality reasons.
The learned sentencing judge ordered that the appellant be eligible for parole and the sentences were ordered to have commenced on 7 February 2022, on account of the time the appellant had spent in custody.
The learned sentencing judge also declared that the appellant was a Serial Family Violence Offender, pursuant to s 124E of the Sentencing Act 1995 (WA). The appellant was also made subject to a lifetime Family Violence Restraining Order in favour of the victim.
Grounds of appeal
The grounds of appeal are admirably concise. They are:
1.The sentencing Judge erred in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct having regard to all relevant circumstances including those referable to the offender personally.
2.The sentencing Judge erred by failing to make a finding that a term of imprisonment would weigh more heavily on the appellant on account of his mental health issues.
3.The sentencing Judge erred by failing to make a positive finding about the appellant's prospects of rehabilitation.
Grounds 2 and 3 allege express error on the part of the learned sentencing judge. It is appropriate to deal with those grounds first.
Ground 2 – the appellant's mental health
Ground 2 contends that the learned sentencing judge erred by failing to make a finding that a term of imprisonment would weigh more heavily on the appellant on account of his mental health issues.
The appellant submitted that the material and submissions before her Honour compelled the conclusion that imprisonment would weigh more heavily on the appellant than a person without his mental health issues and that her Honour erred by not moderating the total effective sentence for that reason.[46]
[46] Appellant's Submissions [63] (WAB 17).
In its submissions, the respondent submitted that the parties had accepted before the learned sentencing judge on 31 May 2022 that there was insufficient evidence before her Honour to make a finding that imprisonment would weigh more heavily on the appellant by reason of his mental health issues; and that no further evidence was adduced after that time.[47] The respondent also submitted that there was no evidence that the appellant's mental health could not be adequately treated within the prison system.[48]
Ground 2 – disposition
[47] Respondent's Submissions [32] (WAB 39).
[48] Respondent's Submissions [37] (WAB 40).
There is no merit in ground 2.
An offender's physical and mental health is, of course, always a relevant sentencing consideration. There is no suggestion in the present case, however, that the learned sentencing judge did not have regard to the appellant's physical and mental health. Her Honour clearly did so, referring at length to the evidence from Dr Chadwick as to the appellant's mental health diagnoses.
The complaint in ground 2 is more specific; namely, that her Honour ought to have found that prison would be more onerous to the appellant because of his mental health issues.
In that context, the onus was on the appellant to establish that some hardship would arise sufficient to justify a specific reduction in sentence. The principles in that regard, most recently confirmed by this Court in NE v The State of Western Australia,[49] are those set out by King CJ in R v Smith:[50]
The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.
[49] NE v The State of Western Australia [2021] WASCA 172, [44] (Quinlan CJ, Mazza & Mitchell JJ).
[50] R v Smith (1987) 44 SASR 587, 589 (King CJ; Cox & O'Loughlin JJ agreeing).
While the appellant's mental health had a general mitigatory effect, there was no evidential basis to find that prison would have a gravely adverse impact on his health or that imprisonment would pose a substantially greater burden on the appellant by reason of his health.
The material produced by the appellant from Dr Chadwick did not support such a conclusion. On the contrary, as appears at [123] above, the most that Dr Chadwick could offer was that if the appellant was exposed to episodes of violence within a prison system, that could exacerbate his conditions. Given the caution referred to by King CJ in R v Smith, Dr Chadwick's comment in this regard was a far cry from providing a sound basis for concluding that prison would be more onerous on the appellant by reason of his illness.
In that regard, defence counsel was correct to recognise that the material before her Honour in Dr Chadwick's report did not provide a sufficient basis to conclude that the appellant would suffer some particular hardship by reason of his mental health issues.
None of which is to suggest that the appellant's mental health conditions were not a matter of significance for him. They were clearly a matter that required significant attention in his life and, like many prisoners (as the learned sentencing judge recognised) needed to be properly addressed in the prison environment. Nevertheless, there was no reason for her Honour to conclude that those conditions could not be adequately addressed within prison. Indeed, insofar as the material before her Honour was concerned, defence counsel submitted that, after a number of months in prison the appellant had 'adjusted quietly and well'.[51]
[51] WAB 165.
We would refuse leave to appeal on ground 2.
Ground 3 – prospects of rehabilitation
Ground 3 contends that the learned sentencing judge erred by failing to make a positive finding about the appellant's prospects of rehabilitation.
The appellant submitted that there were a number of factors that suggested that he had positive prospects for rehabilitation, including:[52]
[52] Appellant's Submissions [66] (WAB 22 - 23).
(a)his positive upbringing and supportive parents;
(b)his military service and previous good work history;
(c)his new and supportive relationship;
(d)his past issues with alcohol and cannabis, which he had addressed with treatment;
(e)his limited criminal history, which had only previously included penalties in the form of fines;
(f)his pleas of guilty;
(g)his completion of the residential drug and alcohol program with Fresh Start between February and December 2021;
(h)his completion of the drug and alcohol program with Holyoake;
(i)his profitable time spent while in prison awaiting sentence; and
(j)his favourable references from members of the community.
The appellant submitted that, ordinarily, these factors would be indicative of an offender who has strong prospects of rehabilitation and that the learned sentencing judge essentially put the appellant's rehabilitation to one side in arriving at the sentence that she did.[53]
Ground 3 – disposition
[53] Appellant's Submissions [69] ‑ [71] (WAB 24 - 25).
We would not uphold ground 3.
Again, it is necessary to focus on the precise nature of the complaint in the ground. It is that the learned sentencing judge did not make a positive finding as to the appellant's prospects of rehabilitation; that is, that her Honour erred in not finding that the appellant had, for example, 'good', 'sound' or 'strong' prospects of rehabilitation.
As the contention that the appellant has positive prospects of rehabilitation was a mitigating factor, the appellant bore the onus of establishing that fact on the balance of probabilities.[54] The learned sentencing judge was, evidently, not satisfied that the appellant had discharged that onus. Ground 3 therefore challenges a failure to make a finding in relation to which the appellant bore the onus.
[54] Taylor v The State of Western Australia [2022] WASCA 174 [57] - [58] (Quinlan CJ, Mitchell & Beech JJA).
To be clear, the learned sentencing judge did not make a finding that the appellant had no, or limited, prospects of rehabilitation. A finding in those terms may have been difficult to make. It would be a rare case that a court could find that an offender had no prospects of rehabilitation, particularly in a case such as the present case, where the offender had never previously been subject to a term of imprisonment and for whom his commission of domestic violence had never previously been the subject of targeted intervention. As the learned sentencing judge remarked during the course of the plea in mitigation, the criminal justice system proceeds, at least upon the 'hope that people can be rehabilitated'.[55] Given the appellant's initial efforts at reform in relation to his substance abuse issues, there was reason to think that, if the appellant's offending was the subject of targeted intervention, that hope would not be misplaced in his case.
[55] WAB 153.
Nevertheless, it is a different matter for the learned sentencing judge to positively be satisfied, so early on, that the appellant's prospects of rehabilitation were good, or as contended in the appellant's submissions on appeal, 'strong'. In that regard, there were two matters which her Honour considered stood in the way of such a finding.
First, while the appellant had addressed his substance abuse, her Honour concluded that he was yet to address his attitude towards intimate partners and his use of verbal and physical abuse to control them. There was ample basis for her Honour to reach that conclusion. Addressing substance abuse is not the same as addressing underlying character traits and attitudes. Indeed, as this Court said in The State of Western Australia v Rayapen,[56] to attribute all, or most, of an offender's responsibility for his offending to substance abuse – thereby externalising that responsibility – runs the risk of avoiding, or eliding, the kind of deep examination of conscience required for genuine remorse. The same may be said of the need to examine underlying character traits and attitudes for the purposes of rehabilitation.
[56] The State of Western Australia v Rayapen [2023] WASCA 55 [162] (Quinlan CJ, Mazza & Hall JJA).
In that regard, on any view, the impetus for the appellant to face up to the real causes of his offending was relatively recent. Other than what might have been gleaned from his conviction for common assault against his fiancée in 2008, the appellant's obvious capacity for serious violence against an intimate partner remained hidden until these offences came to light. Tragically, that is one of the features of offending such as this. Nevertheless, it highlights the fact that the appellant's evidently disordered approach and attitude to intimate relationships had gone unacknowledged and unaddressed for some considerable time.
That leads to the second, related, matter referred to by the learned sentencing judge, namely that the appellant's behaviour and attitude to domestic violence were 'entrenched'. In that context, her Honour referred to the submissions made by defence counsel that took away the appellant's responsibility to act appropriately and served to shift responsibility to the victim to do something to accommodate his behaviour.[57] Her Honour characterised those submissions as offensive. Indeed, they were. Not only did those submissions fail to appreciate the impact of domestic violence on victims generally, defence counsel's submission, in relation to the victim in this case, that 'she wasn't a person who couldn't have left' was comprehensively refuted by the victim impact statement, which poignantly described precisely why the appellant's victim considered that she 'couldn't leave'.
[57] WAB 239.
Of course, a court should be slow to attribute what may be offensive or inappropriate submissions on the part of counsel to his or her client. In the present case, however, as the learned sentencing judge observed, counsel directly quoted from remarks the appellant had made to her. Counsel went as far as to say that the appellant 'has wanted me to really make sure that your Honour knows ‑ and I know for his parents this is important too, … this was not a case where there was only one person in a relationship who at all times behaved badly while the other one stood innocently by'.[58]
[58] See [136] above.
In those circumstances, notwithstanding the factors identified in the appellant's submissions on appeal, it was open to the learned sentencing judge to conclude that the appellant had 'entrenched' behaviour and concerning attitudes that he needed to address before a positive view could be formed as to his prospects of rehabilitation.
For these reasons ground 3 must fail. We would refuse leave to appeal.
Ground 1 – totality
Ground 1 contends that the learned sentencing judge erred in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct having regard to all relevant circumstances including those referable to the offender personally. Thus, the appellant invokes the first limb of the totality principle.
In contending that the total effective sentence did not reflect the overall criminality, the appellant did not challenge any of the individual sentences imposed by the learned sentencing judge and counsel for the appellant readily accepted that the overall criminality of the appellant's offending was very significant.[59] Counsel submitted that there were no truly comparable cases against which to compare the total effective sentence, although he did submit that the case was unusual in that the appellant had never had the 'benefit' of a charge or conviction (other than a fine and a spent conviction order). By this counsel meant that some earlier contact with the criminal justice system might have addressed his offending behaviour at an earlier stage,[60] a matter that we referred to above in the context of ground 3.
[59] Appellant's Submissions [31] (WAB 13).
[60] Appeal ts 13.
The respondent also submitted that there were no truly comparable cases. It submitted that the total effective sentence was not disproportionate to the overall criminality involved in the appellant's offending, highlighting the aggravating factors identified by the learned sentencing judge.[61]
Ground 1 – legal principles
[61] Appeal ts 14.
The legal principles governing appeals contending that the total effective sentence infringes the first limb of the totality principle are well known.[62]
[62] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
The range of sentences imposed in other cases does not establish the bounds of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important are the unifying principles which sentences imposed in comparable cases reveal and reflect.
In cases concerning totality, there are particular difficulties associated with 'comparable' cases. As Hall J (as his Honour then was) observed in Pennetta v The State of Western Australia:[63]
Where, however, it is only claimed that there has been a breach of the totality principle and no challenge is made to the individual sentences the utility in comparing the total effective sentence with total sentences in other cases is more limited. This is because the total effective sentence is not one imposed for a single offence. It is often difficult enough to compare sentences imposed in different cases with different factual circumstances and different personal circumstances where the offences (sic offending) relates only to a single offence. The fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult. Nonetheless it is important to ensure that there is broad consistency in sentences. (authorities omitted)
[63] Pennetta v The State of Western Australia [2013] WASCA 234 [39] (Hall J; Mazza JA agreeing).
In a case such as the present case, which involve a sustained course of domestic violence, the relevant sentencing principles recognise a number of important matters. In Bropho v Hall, for example, Mitchell J (as his Honour then was) identified the significant breach of trust and exploitation of vulnerability involved in such offending:[64]
The fact that the aggravated assault occurred in a domestic setting is a significant aggravating factor of the offence. An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner.
[64] Bropho v Hall [16] (Mitchell J).
Similarly, in cases of intimate partner violence, it is important that proper regard is had to the patterns of behaviour often revealed by the offending, which include control, manipulation and gaslighting, and the often 'sentinel' nature of such offending (namely, that certain types of offending behaviour which is serious, in itself, can also provide an early warning of even more serious offending in future).[65]
[65] Pedrochi v Brown [2021] WASC 81 [62] – [64] (Quinlan CJ).
Both Parliament and the courts, for example, have recognised the particular dangers associated with offences involving non‑fatal strangulation and with the role they play in cases of intimate and family violence. As the sentences imposed by the learned sentencing judge in this case reveal, the specific instance of strangulation of the victim by the appellant (count 5) was the most serious offence, in an already appalling catalogue of offences.
As the Court recognised in Drage,[66] each of these factors make clear the importance of general deterrence in sentencing for offences involving violence by men on vulnerable victims (mostly women) with whom they are in domestic relationships.
Ground 1 – disposition
[66] Drage [42] (Buss P & Vaughan JA).
None of the important sentencing considerations we have identified above were overlooked by the learned sentencing judge in the present case. Her Honour rightly recognised that the totality of the appellant's offending was extremely serious and called for a very substantial term of imprisonment. It was necessary that a total effective sentence be imposed for the appellant's abhorrent and sickening offending that properly punished him and denounced offending like it in the strongest possible terms. While the victim (remarkably) appears not to have suffered any permanent physical injury, the ongoing psychological, emotional and social impact on her will no doubt continue well into the future.
Nor, in light of our conclusions in relation to grounds 2 and 3, did the learned sentencing judge make any error in her comprehensive sentencing remarks, which appropriately identified all relevant aggravating and mitigating factors. The only issue raised by ground 1 concerns the difficult and complex task of distilling 'an answer which reflects human behaviour in the time … units of punishment'.[67] In other words, a number.
[67] Wong v The Queen (2001) 207 CLR 584 [77] (Gaudron, Gummow & Hayne JJ).
In those circumstances, it would be tempting to dismiss an appeal such as this out of hand, lest any other response be thought, in any way, to downplay the seriousness of the offending or the profound impact of that offending upon the victim. As Quinlan CJ observed in the context of sexual offending against children in MHE v The State of Western Australia,[68] it may seem strange to some for the Court to embark on a process of placing a particular offender's conduct within a scale of severity of such conduct generally, all of which is deplorable.
[68] MHE v The State of Western Australia [2019] WASCA 133 (MHE) 133 [4] (Quinlan CJ).
Nevertheless, that is what the law requires this Court to do. As with the learned sentencing judge, the Court's duty requires it to carefully consider all relevant sentencing principles, together with whatever guidance may be afforded by consideration of comparable cases, in assessing whether the total effective sentence reflects the overall criminality involved. That task is to be carried out objectively and dispassionately; and must be characterised by temperance and balance.
In the circumstances of this case, for the reasons that follow, and notwithstanding the necessity that the appellant be sentenced to a long term of imprisonment, we cannot avoid the conclusion that the total effective sentence imposed on the appellant did not bear a proper relationship to the overall criminality involved in all of the offences.
First, notwithstanding that a number of the pleas were entered late, the appellant ultimately pleaded guilty to all of the offences for which he was convicted. As required by s 9AA of the Sentencing Act, the learned sentencing judge identified the reduction afforded by the utilitarian effects of the guilty plea for each individual sentence. No complaint was made by the appellant as to those reductions. Nevertheless, in arriving at the total effective sentence, the appellant's pleas of guilty remained an important consideration.
In the present case, the appellant's acceptance of criminal responsibility included those offences for which evidence in addition to that of the victim was either limited or absent, and for which the evidence of the victim would have been essential to any conviction following trial. Those offences included the most serious offences for which the appellant was to be sentenced, such as count 5. While the learned sentencing judge found that the appellant's attitude and behaviour were deeply entrenched, his acceptance of responsibility for that offending was of real benefit in avoiding the risk of further trauma and psychological harm to the victim. It was also an important first step in addressing those entrenched behaviours.
Secondly, and relatedly, while the appellant had not yet addressed his attitude towards intimate partners and his use of verbal and physical abuse to control them, as we observed at [175] above, there was reason to think that, if the appellant's offending was the subject of targeted intervention, those attitudes could reasonably be addressed over the course of what would inevitably be a long period of imprisonment. The learned sentencing judge did give the appellant credit for the limited remorse that the appellant had demonstrated and thereby recognised that he was not a person incapable of insight into his criminality.
In that context, one of the particularly unfortunate features of the present case was that, up to and including the sentencing hearing,[69] the people around the appellant appeared to foster (or at least reinforce) the appellant's view that 'the relationship' (and thereby the victim), rather than the appellant himself, bore much of the responsibility for the appellant's offending. The courts' denunciation of the appellant's conduct, by a significant term of imprisonment, could be expected to have an important role in dislodging or dispelling that view. While the learned sentencing judge was not, at the time of sentencing, able to make a positive finding as to the appellant's prospects of rehabilitation, there is now going to be a long period of time within which those prospects might reasonably be expected to improve.
[69] See [127], [136] above.
In relation to comparable cases, both parties submitted that there was no truly comparable case. We accept that to be the case. Nevertheless, and notwithstanding the real difficulties in doing so, an attempt must be made to place the appellant's offending in a much broader context of offending involving intimate violent offending, and which is characterised by significant breaches of trust.
In relation to physical and verbal violence against a domestic partner, the appellant referred to McCoombe v The State of Western Australia,[70] a case involving violence over a three‑month period. While the offender in McCoombe was convicted of significantly fewer offences over a shorter period of time, the physical violence used by the offender in that case was more serious than in the present case and led to more significant physical injury.
[70] McCoombe v The State of Western Australia [2016] WASCA 227 (McCoombe).
On one occasion the offender in McCoombe punched the victim multiple times to the face with a clenched fist, causing her eye to become swollen and bruised. He then strangled her to the point where she was unable to breathe or swallow, sustaining bruising to her neck. On another occasion, the offender struck the victim to the back of the head with a metal chair causing it to bleed profusely. On a third occasion the offender struck the victim with a plastic crate to her left leg, ribs and head, causing bruising and profuse bleeding from her head.
On the final occasion, the offender in McCoombe poured a kettle full of boiling water down the victim's back, causing second and third‑degree burns and then punched her to the face and kicked her body. The offender prevented the victim from obtaining treatment for the burns for several days and she suffered extensive areas of skin damage.
The offender in McCoombe was sentenced, following pleas of guilty, to a total effective sentence of 6 years and 2 months imprisonment. This Court refused leave to appeal. The appellant's offending in the present case included many additional offences involving threats and occurred over a longer period of time and could be expected to require a greater total effective sentence than in McCoombe. Nevertheless, it is notable that the total effective sentence imposed in this case was markedly more severe than that in McCoombe and approached twice the total effective sentence in that case.
In Gillespie v The State of Western Australia[71] the appellant was convicted of a series of offences of violence against his partner on separate occasions over a relationship of approximately 18 months. Those offences involved physical violence that bore some resemblance to the violence committed by the appellant in the present case.
[71] Gillespie v The State of Western Australia [2016] WASCA 216 (Gillespie).
The offender in Gillespie was convicted of a number of offences of aggravated assault of his partner, who at the time of the first series of offences was 21 weeks pregnant. Those offences included punching the victim in the jaw, climbing on top of her and injuring her shoulder, pulling out a clump of the victim's hair and striking her on the head with a hard object and striking her to the nose with the back of his hand. The offender in that case also grabbed the victim's throat, constricting her airways, causing her to lose consciousness.
On another occasion the offender in Gillespie threw two washing baskets at the victim, causing her to fall to the ground. When she was on the ground, the offender pinned her down with the legs of a chair, shouting at her and threatening to put the chair through her head. The offender struck her several times to the face and body causing bruising to her arms.
The offender in Gillespie was sentenced, following pleas of guilty to 11 charges (which also included drug offences and an attempt to pervert the course of justice), to a total effective sentence of 4 years imprisonment. This Court refused leave to appeal on totality grounds. Clearly, while the nature of the physical violence was similar to that in the present case, the appellant's offending in this case included many additional offences involving threats and occurred over a longer period of time. It would therefore be expected that the total effective sentence imposed on the appellant would be significantly higher than that in Gillespie. Nevertheless, is notable that the total effective sentence in the present case was almost triple that in Gillespie.
Drage was also a case concerning significant violence by the offender against his de facto partner over the course of their relationship. While there were far fewer offences than in the present case, the offences in Drage were nevertheless separated by more than 22 months. The individual instances of violence in Drage may also be characterised as more serious than in the present case. On one occasion, over the course of two days, the offender in Drage punched the victim in the face numerous times causing significant swelling, bruising and soft tissue injuries to her eyelids. He also punched and kicked the victim on several parts of her body, including her vagina, causing swelling, bruising and tenderness, ripped her hair and made her walk around like a dog. The appellant also used a weapon, a small knife, to cause a puncture wound to the victim's inner thigh and threatened her life.
For this and offending on another occasion, the offender in Drage was sentenced, following pleas of guilty, to a total effective sentence of 7 years and 6 months imprisonment. Leave to appeal was refused by this Court. Again, while the appellant's offending in this case included many additional offences involving threats and occurred over a longer period of time, the total effective sentence was markedly more severe.
In relation to each of these cases, as we have said, the longer duration and greater number of individual offences in the present case was such that it would be expected that the total effective sentence imposed would be greater. Nevertheless, the degree of disparity between the total sentence imposed in those cases and in the present case (sometimes running to multiples of the total effective sentence), is in our view, more than would reasonably be expected by a consistent application of underlying principle. To that extent, in our view, those cases provide some support for the contention that the totality principle was infringed in the present case.
As we have also observed, none of these cases is comparable in terms of the duration of the offending by the offender. Neither party identified a previous example of threats and actual violence over a period such as that in the present.
Serious offending over such periods and involving many more offences is, however, not infrequently seen in cases involving sexual offending against children.
In EXF v The State of Western Australia,[72] for example, the offender pleaded guilty at a very late stage to 14 counts reflecting a course of offending over about six years against his three stepdaughters. This Court dismissed an appeal against the imposition of a total effective sentence of 11 years and 6 months imprisonment. In MHE the offender pleaded guilty to 92 offences committed against his three de facto children over the course of a year. Following a successful appeal on totality grounds, the offender in MHE was sentenced by this Court to a total effective sentence of 10 years imprisonment. More recently, in Newtonv The State of Western Australia,[73] the offender pleaded guilty to 43 offences arising from his sexual abuse of a young girl over a period of four and a half years. The only mitigation available to that offender was in his pleas of guilty. This Court upheld a total effective sentence of 12 years and 6 months imprisonment, describing it as at the upper end of the range of sentences customarily imposed following pleas of guilty for offending of that type.
[72] EXF v The State of Western Australia [2015] WASCA 118.
[73] Newtonv The State of Western Australia [2023] WASCA 7.
None of this is to suggest that there is any equivalence to the offending in those kinds of cases and in the present case. To attempt to do so would be as distasteful as it would be futile. Nevertheless, they do provide a broad‑brush picture of the kind of sentences imposed for serious offending of an intimate nature committed over sometimes longer periods of time, and which causes significant psychological trauma. In a case such as the present, where there are no clearly comparable cases, such a picture in our view provides something of a signpost for achieving the broad consistency in sentencing to which the law must aspire.
Placed within that broad‑brush picture, together with what may be gleaned from decisions such as McCoombe, Gillespie and Drage, in our view the total effective sentence of 11 years and 10 months was so high as to manifest error. As appalling as the appellant's offending was, having regard to all of the circumstances of the case (including the pleas of guilty), that total effective sentence did not reflect the overall criminality.
In our view, this is truly one of those cases when the metaphor of taking one 'last look at the total, just to see whether it looks wrong' is apt.[74] And when we take a last look at the sentence of almost 12 years, in light of the appellant's pleas of guilty and such potential for rehabilitation as he has, the sentence looks wrong.
[74] See Musca v The Queen [2021] WASCA 37 [56] ‑ [59] (Quinlan CJ, Buss P & Mazza JA).
Ground 1 must be upheld.
Resentencing
This Court has the necessary material to enable it to resentence. In addition to the material before the learned sentencing judge, the appellant filed an affidavit from Fiona Margaret Hugo dated 28 April 2023 as to the appellant's progress while in prison. We would grant leave to adduce that affidavit, which establishes that the appellant completed a Domestic and Family Violence Treatment Readiness Program on 18 January 2023. That program is intended to increase motivation to change, alter negative perceptions and to begin to acknowledge violent and controlling behaviours. The appellant's participation was described as positive. He has since enrolled in a further course addressing family violence and a Pathways drug and alcohol course. The appellant also attends a weekly religious course.
The appellant's steps to begin addressing his perceptions, attitudes and behaviours towards domestic and family violence are encouraging. Nevertheless, as we have set out at length above, the persistent, callous and menacing nature of his offending required a long term of imprisonment. Offending of this kind must be denounced by severe penalties.
In our view, having regard to all relevant sentencing considerations, the total effective sentence necessary to reflect the overall criminality involved in all of the offending is a total term of imprisonment of 9 years and 6 months imprisonment.
There was no challenge to the individual sentences imposed by the learned sentencing judge. Those sentences were, in our view, appropriate, and we would impose the same sentences as the learned primary judge, save that we would not reduce for totality the sentence on count 2, which we would restore to the initial sentence imposed by the learned sentencing judge of 3 years imprisonment.
To achieve the total effective sentence of 9 years and 6 months imprisonment, we would order that the sentence on count 5 (4 years and 6 months imprisonment) be the head sentence and that the sentences for count 26 (18 months imprisonment) and count 29 (3 years and 6 months imprisonment) be served cumulatively on the sentence imposed for count 5. We would order that all other sentences be served concurrently.
As with the learned sentencing judge, we would order the sentence be back dated to commence on 7 February 2022 and that the appellant be eligible for parole.
The declaration that the appellant is a Serial Family Violence Offender, and the lifetime Family Violence Restraining Order made in favour of the victim will remain unaffected.
Conclusion
In light of the foregoing, we would make the following orders:
(a)Leave to appeal on ground 1 is granted.
(b)Leave to appeal on grounds 2 and 3 is refused.
(c)The appeal is allowed and the sentence imposed on 29 July 2022 is set aside.
(d)The application in the appeal to adduce additional evidence dated 28 April 2023 is granted.
(e)The appellant is resentenced to the following sentences:
Count 2
3 years imprisonment
Count 4
12 months imprisonment
Count 5
4 years and 6 months imprisonment
Count 6
3 years imprisonment
Count 7
12 months imprisonment
Count 8
10 months imprisonment
Count 9
3 years imprisonment
Count 10
14 months imprisonment
Count 11
2 years and 2 months imprisonment
Count 12
10 months imprisonment
Count 13
12 months imprisonment
Count 15
14 months imprisonment
Count 19
16 months imprisonment
Count 22
16 months imprisonment
Count 23
3 years imprisonment
Count 26
18 months imprisonment
Count 28
3 years imprisonment
Count 29
3 years and 6 months imprisonment
Count 32
3 years imprisonment
(f)The sentences on counts 5, 26 and 29 are to be served cumulatively on each other.
(g)The remaining sentences are to be served concurrently with the sentences on counts 5, 26 and 29 and with each other.
(h)The total effective sentence is 9 years and 6 months imprisonment.
(i)The sentence is backdated to commence on 7 February 2022.
(j)The appellant is eligible for parole.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KT
Associate to the Honourable Chief Justice Peter Quinlan
24 JULY 2023
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