Greenup v The State of Western Australia

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   GREENUP -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 91
CORAM:   BUSS P
MAZZA JA
VANDONGEN JA

HEARD:   23 JULY 2024
DELIVERED          :   1 AUGUST 2024
FILE NO/S:   CACR 49 of 2023
BETWEEN:   JAMES MICHAEL GREENUP
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   VERNON DCJ
File Number            :   IND 67 of 2021

Catchwords:

Criminal law - Appeal against sentence - Grievous bodily harm - Whether sentence manifestly excessive

Legislation:

Criminal Code (WA), s 294(1), s 297(1), s 297(3)
Restraining Orders Act 1997 (WA), s 63A
Sentencing Act 1995 (WA), s 8, s 9AA

Result:

Extension of time granted
Leave to appeal granted
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	D N Ryan
Respondent	:	G N Beggs

Solicitors:

Appellant	:	Chelmsford Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Allen v The State of Western Australia [2017] WASCA 203
Bowe v The State of Western Australia [2017] WASCA 166
Fernandez v The State of Western Australia [2017] WASCA 223
Fragomeni v The Queen (Unreported, WASCA, Library No 950349, 10 March 1995)
Gurgone v The State of Western Australia [2016] WASCA 9
Jones v The State of Western Australia [2023] WASCA 30
Kabambi v The State of Western Australia [2019] WASCA 44
O'Dea v The State of Western Australia [2023] WASCA 70
R v Lobston [1983] 2 Qd R 720
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Ronan v The Queen (Unreported, WASCA, Library No 970073, 28 February 1997)
SYO v The State of Western Australia [2024] WASCA 31
The State of Western Australia v Babakarkhil [2022] WASCA 59
The State of Western Australia v Saleh [2020] WASCA 205
The State of Western Australia v Yamalulu [2019] WASCA 6
Trompler v The State of Western Australia [2008] WASCA 265
Winmar v The State of Western Australia [2016] WASCA 62

JUDGMENT OF THE COURT:

In the early hours of 21 March 2021, the appellant took three passengers in his taxi to an address in Geraldton. When one of the passengers, Charles Collard, asked to be taken to another address, an argument ensued. During the argument, the appellant produced a machete that he kept in the side compartment of the driver's door. Then, while they were both still sitting in the taxi, the appellant swung the machete at Mr Collard, and inflicted a life‑threatening neck injury. Instead of staying to help, the appellant reversed his taxi and dragged Mr Collard along the ground for a short distance. The appellant then drove away, leaving Mr Collard to fend for himself, lying on the road and bleeding profusely.
It is fortunate that Mr Collard survived.
The appellant was charged with unlawfully doing grievous bodily harm to Mr Collard, contrary to s 297(1) of the Criminal Code (WA) (Code). After a trial in the District Court, the appellant was found guilty by the unanimous verdict of a jury. He was subsequently sentenced to 6 years' imprisonment.
The appellant now seeks leave to appeal against that sentence, arguing that it was manifestly excessive.
The appellant filed a notice of appeal on 3 May 2023, over six months out of time. The reasons for the delay in commencing the appeal are sought to be explained in an affidavit of the appellant's lawyer and counsel, Darryl Norman Ryan, sworn on 3 May 2023.
Although counsel has progressed the appeal with reasonable diligence, the reasons for the lengthy delay that led to the initial grant of Legal Aid, and the subsequent lengthy delay before a grant of aid was forthcoming to proceed with the appeal, are largely unexplained. However, an extension may be granted if the court is satisfied that to deny an extension would result in a miscarriage of justice. This requires consideration of the merits of the ground of appeal.
By an order made on 11 August 2023, Buss P and Mazza JA referred the question of whether leave to appeal should be granted to the hearing of the appeal.
For the following reasons, we are of the view that while an extension of time within which to appeal should be allowed and leave to appeal should be granted, the appeal should be dismissed.

The facts

The following is based on the sentencing judge's unchallenged findings of fact made after trial.
On 20 March 2021, Mr Collard had been socialising with some old friends in Geraldton. He had been at the races, before going on to the Freemasons Hotel later that day. Mr Collard left the Freemasons Hotel when it closed at midnight and went to wait outside the hotel for a taxi to go home. Mr Collard waited for a taxi for over an hour and a half.
Mr Collard met two people who were also waiting for a taxi. They struck up a conversation and agreed to share a taxi.
The appellant had been a taxi driver for about eight months. He was driving a taxi on the night of 20 March 2021. At about 1.40 am, the appellant pulled up in his taxi in front of the Freemasons Hotel. The sentencing judge found that the appellant was asked to take the two people who had been talking to Mr Collard to some apartments in Geraldton. She also found that it was likely there was some discussion about Mr Collard also travelling in the taxi and then continuing on to his home. However, her Honour was not prepared to make any positive finding in that regard, and she accepted that if it did occur, the appellant may not have heard that discussion.
Mr Collard sat in the front passenger seat of the taxi. The other two people sat in the rear passenger seats. The appellant drove to the apartments. When he arrived at about 1.45 am, he pulled into a driveway. The three passengers then got out and said goodbye to each other, and the couple paid the fare.
Mr Collard got back into the front passenger seat of the taxi. As he sat down, the appellant said words to the effect of, 'Mate, what are you doing?' Mr Collard replied by saying that he was carrying on to the suburb in which he lived. The appellant then said, 'Well, you didn't say that', to which Mr Collard replied, 'Well, I did. But you mightn't have heard me', or words to that effect.
There was then a discussion about the fact that the appellant had stopped the fare. Mr Collard told the appellant, politely and calmly, to just restart the fare and to take him home. Without warning, the appellant then shouted at Mr Collard, saying words to the effect of, 'Get the fuck out of my cab, you cunt'.
Mr Collard opened the front passenger door of the taxi and twisted to face the appellant. Mr Collard was not keen to get out of the taxi. It was very late, the battery in his mobile telephone was flat and he did not think he would be able to get another taxi. Mr Collard hoped the appellant would change his mind and asked him what his problem was. The appellant responded by saying something like, 'Get the fuck out of my cab, you cunt, or I will make you piss'.
Mr Collard replied by saying, 'You and who?', to which the appellant said, 'Me and my mate', before he reached down and grabbed the handle of a machete that was in the side compartment of the driver's door. The appellant then said, 'Meet my mate, Mr Machete', and he swung the machete at Mr Collard.
The appellant was not able to fully swing the machete backwards and then towards Mr Collard because of the limited space in the taxi. The sentencing judge appeared to accept Mr Collard's evidence that the appellant used the machete in a motion 'more like a chop'.
The appellant hit Mr Collard with the machete on the left side of his neck.
When Mr Collard felt blood, he pulled down the passenger sun visor. He was not seated at this time, but was half in and half out of the taxi. When he looked in the mirror on the back of the sun visor, he saw blood spurting out of his neck. He said to the appellant, 'What did you do?' According to Mr Collard, the appellant's eyes were wide open, and he looked shocked.
The appellant then reversed the taxi quickly out of the driveway. As he did this, Mr Collard was dragged along with the taxi. When the appellant put the taxi into drive and moved forward, Mr Collard was flung out of the car, and he landed on the road. Mr Collard suffered grazed knees and a broken nose as a result.
The period that elapsed between when Mr Collard re‑entered the taxi, and when the appellant drove away, was about one minute and 48 seconds.
After the appellant had left, Mr Collard got up off the road and put his fingers in the wound in his neck to stem the flow of blood. He then went to find assistance. Mr Collard was eventually able to raise the attention of someone in a nearby house. Emergency services were called, and they provided instructions to Mr Collard about how to stem the flow of blood before an ambulance arrived a few minutes later.
The sentencing judge found that the appellant knew immediately that he had wounded Mr Collard. She also found that the appellant knew that Mr Collard was only partially in the taxi as it reversed, and that Mr Collard had been flung from the car when the appellant drove forward again.
The sentencing judge said that the appellant had shown a callous disregard for Mr Collard's welfare.
The sentencing judge said that she was not able to make a finding about why the appellant had a machete in his taxi. She did, however, reject the appellant's contention that it was because he had been repeatedly assaulted by passengers. She said that the most likely explanation was that the machete was in the taxi to intimidate people who he thought were not going to pay their taxi fares, and to deal with badly behaving passengers.
Her Honour further remarked:
It may also be, in light of your conduct in the court when you were remanded in custody on 8 September, where you made a racial slur against Indigenous people that you were quicker to take offence from an Indigenous person, although I note that you have apologised through your counsel for that comment and the State accepts that it was indicative of your anger and distress at the moment.
Ultimately, the sentencing judge said that it did not really matter why the appellant had the machete in the taxi, because
[i]f you had left it where it was, none of this would have happened. The use of a large and very dangerous weapon is aggravating. The machete was 64 centimetres in length. It was clearly sharp, given that it cut through Mr Collard's neck. You swung the machete at Mr Collard suddenly and without warning and he had no opportunity to get out of the way or defend himself.
The sentencing judge found that Mr Collard had suffered a laceration to his internal jugular vein on the left side of his neck, a fracture to his nasal bones, and abrasions to both knees. The laceration to Mr Collard's jugular vein was of such a nature as to endanger or to be likely to endanger life. This is because of the potential for life‑threatening blood loss. Her Honour also found that the injury could have caused permanent injury to Mr Collard's health by potentially damaging his voice. However, she ultimately concluded that Mr Collard's longer‑term issues were 'largely psychological'.

Victim impact statement

The sentencing judge took into account a victim impact statement written by Mr Collard.
Mr Collard was 56 or 57 years old at the time of the incident. In his statement, he wrote about being reasonably fit before the attack. However, he felt that he could no longer engage in certain physical activity for fear of bursting the repaired blood vessel. Mr Collard had to take eight weeks off work to recover from his injuries, and felt that he returned to work too soon. Since the attack, he has experienced difficulties with sleep, anxiety and irritability. This has, in turn, affected his productivity at work.
In his statement Mr Collard wrote about a meeting he had with the surgeon who operated on him after the attack, during which he was told that the surgery 'could have gone either way'.
Mr Collard continues to suffer from pain and other sensations at the site of his wound. The scar left by the wound and the 28 staples that were used to repair it are still visible, which makes Mr Collard paranoid. The ongoing effects of the appellant's assault also adversely affected Mr Collard's relationship with his partner of 40 years, and has placed strain on his broader family, including his five children.

The appellant's personal circumstances

The appellant was 52 years old at the time of sentencing. He was born in New South Wales and is the youngest of 10 children. From the age of 6 months old until he was 12 years old, the appellant lived in care in various boys' homes, as did several of his siblings, because his parents were unable to look after them.
When the appellant was 12 years old, he returned to live with his parents. His home life was marred by neglect and violence. The appellant's father was an alcoholic who was violent towards his mother and his sisters. The appellant witnessed this violence on occasions. The appellant was petrified by his father's violence, although it was not directed at him. The appellant felt guilty about not being able to stand up to his father.
The appellant cut ties with his family when he came to Western Australia at the age of 32. Although the appellant was once engaged to a partner for some time, he had led a solitary existence before being remanded in custody.
The appellant had a connection with the Church of Latter-day Saints in Geraldton through his former fiancée. Although he had not had any recent connection with the church, the appellant said that he intended to reconnect with the church in the future.
The appellant had been continually employed throughout his life. Immediately before trial he was working as a labourer.
The sentencing judge observed that the appellant had some history of violent offending. Relevantly, the appellant was convicted of carrying a controlled weapon likely to cause fear in 2008, and of common assault in 2008 and 2009. The appellant was also convicted of making a threat to kill and assaulting a public officer in 2010, as well as breaching violence restraining orders in 2010 and 2011.
There was then a gap in the appellant's offending until he was convicted of obstructing a public officer in February 2015. The appellant was also convicted of various driving offences in 2016 and 2017.

Sentencing remarks

Given the ground of appeal relied on by the appellant asserts that error should be inferred from the length of the sentence of imprisonment imposed, it is unnecessary to summarise the sentencing judge's remarks in detail.
The sentencing judge recognised that the appellant was not charged with the more serious offence of unlawfully doing grievous bodily harm with intent, contrary to s 294(1) of the Code, which would have attracted a maximum sentence of 20 years' imprisonment. In that context, her Honour observed that immediately after he had committed the offence, the appellant appeared to be shocked at what he had done. However, her Honour also concluded that the appellant's act of brandishing the machete and moving it towards Mr Collard's neck in the enclosed area of the front cabin of the taxi was 'dangerous', as the appellant 'must have been aware'. She said that the appellant had been 'reckless as to Mr Collard's safety'.
When read as a whole, these conclusions amount to a finding that although the appellant did not intend to cause any grievous bodily harm to Mr Collard, when he swung the machete the appellant did something that he knew was dangerous, without caring about whether he might cause a serious injury that endangered Mr Collard's safety.
The sentencing judge concluded that the attack was unprovoked, and that Mr Collard had not acted unreasonably when the appellant suddenly and unexpectedly demanded that he get out of the taxi. Her Honour also noted that Mr Collard was entitled to expect that he would be safe inside the appellant's taxi. Instead of being taken home, he was attacked with a dangerous weapon and found himself lying on the road, late at night, grievously injured and vulnerable.
Her Honour said that it was fortunate that Mr Collard had the presence of mind to put pressure on his wound and the good fortune to find somebody who could, and was willing to, help him. As the sentencing judge said, the outcome might have been much worse had Mr Collard not acted as he did, and had he not received the swift assistance that was forthcoming.
The sentencing judge was not prepared to find that the appellant was remorseful, although she noted that his counsel had said that the appellant was sorry for the injuries he had caused to Mr Collard, and that he wished that it had not occurred.
Submissions were made on behalf of the appellant that he would be likely to have a more difficult time in custody because he needed to be kept away from the general prison community due to threats that had been made to him. However, her Honour said that it was difficult for her to accept those submissions without some corroborative evidence because of the adverse view she had formed of the appellant's credibility and honesty having seen and heard him give evidence.
The sentencing judge did, however, accept that the appellant had suffered from significant disadvantages as a child while growing up in care and then in a household where he was neglected and exposed to violence. She said that the appellant appeared to have grown up in an environment in which violence was used dysfunctionally to resolve conflict. Her Honour took those disadvantages into account. However, she also noted that she was required to balance all of those matters against the various sentencing factors, including the need for personal and general deterrence, as well as the seriousness of the offence.
The sentencing judge said that the appellant's previous criminal record was not an aggravating factor, but that it could not be said that the offence was out of character. However, she noted that the offence was more serious than anything he had done before, and that he had never been sentenced to a term of immediate imprisonment.
Ultimately, the sentencing judge concluded that a term of imprisonment was the only appropriate disposition, having regard to the seriousness of the offence. Her Honour decided to impose a sentence of 6 years' imprisonment, which was backdated to commence on 8 September 2022 to account for the time the appellant had already spent in custody.
An order was made that the appellant is eligible to be considered for release on parole, and a lifetime violence restraining order was made protecting Mr Collard, pursuant to s 63A of the Restraining Orders Act 1997 (WA).

Ground of appeal

The appellant relies on one ground of appeal, which is in the following terms:
The learned sentencing judge erred in law by imposing a sentence of 6 years' immediate imprisonment in relation to the offence of unlawfully doing grievous bodily harm, s 297(1) of the Code, that was so excessive as to manifest error, having regard to:
(a)the maximum penalty for the offence;
(b)the standards of sentencing customarily observed for such offences;
(c)the seriousness of the offence; and
(d)the personal circumstances of the appellant.

Merits of ground of appeal

Relevant principles

The legal principles that apply in considering an allegation that an individual sentence is manifestly excessive were discussed by this court in Kabambi v The State of Western Australia.[1] Those principles are well known and have been restated on many occasions. Relevantly:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
…
(4)The range of sentences customarily imposed for a crime does not establish the range 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 is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
[1] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

In The State of Western Australia v Babakarkhil,[2] Buss P and Mitchell JA made the following observations about the sentencing principles and customary sentencing practices for offences of unlawfully doing grievous bodily harm, contrary to s 297(1) of the Code:[3]
[2] The State of Western Australia v Babakarkhil [2022] WASCA 59, citing The State of Western Australia v Saleh [2020] WASCA 205.
[3] Babakarkhil [80].
1.The three factors which are of general significance when assessing an offender's level of criminality for an offence of unlawfully doing grievous bodily harm are:
(a)the nature of the harm which results;
(b)the nature of the act which caused the injury; and
(c)the background to and circumstances of the offence.
2.The dominant sentencing considerations for offences where grievous bodily harm is done are personal and general deterrence. The courts must be seen to stand firmly against alcohol‑fuelled violence in public entertainment areas.
3.The circumstances in which the offences of unlawfully doing grievous bodily harm and assault occasioning bodily harm can occur vary widely. Ordinarily a term of immediate imprisonment is the only appropriate penalty for an offence of unlawfully doing grievous bodily harm. It has been noted that the range for offences of unlawfully doing grievous bodily harm, which are towards the upper end of the range of seriousness but not of the most serious kind, is between 3 and 5 years' imprisonment. Whilst there have been some cases of unlawfully doing grievous bodily harm where suspended sentences have been imposed, they have almost invariably involved unusual circumstances, such as significant provocation. (footnotes omitted)

The parties' submissions

On behalf of the appellant, it is accepted that the offending was serious. However, it is submitted that a single action resulted in the harm caused to Mr Collard, and the appellant's conduct was not sustained, prolonged or repetitive. It is also contended that the offending was less serious than it might otherwise have been because the appellant acted spontaneously and impulsively, and because the victim did not suffer from any permanent injury.
The appellant also refers to several previous cases decided by this court, including Allen v The State of Western Australia;[4] Bowe v The State of Western Australia;[5] Winmar v The State of Western Australia;[6] and Gurgone v The State of Western Australia,[7] in support of a submission that the standards of sentences customarily imposed for offences of unlawfully doing grievous bodily harm demonstrate that the sentence imposed on the appellant was unreasonable or plainly unjust.
[4] Allen v The State of Western Australia [2017] WASCA 203.
[5] Bowe v The State of Western Australia [2017] WASCA 166.
[6] Winmar v The State of Western Australia [2016] WASCA 62.
[7] Gurgone v The State of Western Australia [2016] WASCA 9.
The appellant places particular reliance on the case of Fernandez v The State of Western Australia.[8] In that case, leave to appeal was refused in relation to a sentence of 5 years and 6 months' imprisonment imposed after trial for the more serious offence of unlawfully doing grievous bodily harm with intent to maim, disfigure, disable or to do some grievous bodily harm, contrary to s 294(1) of the Code. The appellant submits that the sentence imposed in that case strongly suggests that the sentence imposed on the appellant was manifestly excessive. In that regard, the appellant draws attention to the fact that a lesser sentence was imposed in Fernandez for an offence that he says was broadly comparable to the offending in this case, but where the maximum penalty for the offence was 20 years' imprisonment.
[8] Fernandez v The State of Western Australia [2017] WASCA 223.
The respondent, on the other hand, submits that an extension of time within which to appeal should not be granted. It is submitted that the reasons for the delay in commencing the appeal have not been adequately explained and that, in any event, the ground of appeal is without merit.
The respondent submits that the offence committed by the appellant was a very serious example of unlawfully doing grievous bodily harm contrary to s 297(1) of the Code. The respondent draws particular attention to the fact that the appellant struck Mr Collard in the neck with an inherently dangerous weapon in an unprovoked attack, lacerating the jugular vein and creating the very real risk of death. The appellant then dragged Mr Collard along the road as he reversed his taxi out of the driveway before driving away, having caused further injuries. In that regard, the respondent emphasised that the appellant showed a callous disregard for his victim's welfare.
The respondent also submits that what the appellant did was aggravated by the fact that it occurred late at night, in circumstances in which there were reduced prospects that Mr Collard might obtain assistance. Further, the respondent notes that the offence was committed by a taxi driver in whom trust is reposed by members of the public.
The respondent accepts that the sentence of 6 years' imprisonment is higher than other sentences considered by this court for offences involving grievous bodily harm, where the victim has not suffered a life‑threatening injury, or where the victim has suffered a life‑threatening injury but was not at an immediate risk of succumbing to the injury or left to their fate. The respondent also submits that although the sentence imposed is more severe than those imposed in some cases involving the more serious offence of unlawfully doing grievous bodily harm with intent, contrary to s 294(1) of the Code, the sentence imposed on the appellant was justified because there was a greater need for specific deterrence. The respondent ultimately submits that while the sentence falls towards the upper end of the appropriate range of the sentencing discretion, it does not evince that the sentencing discretion miscarried.
The respondent also refers to the cases of Jones v The State of Western Australia[9] and to The State of Western Australia v Yamalulu[10] in support of the contention that the sentence imposed on the appellant was not manifestly excessive.

The merits of the ground of appeal

[9] Jones v The State of Western Australia [2023] WASCA 30.

[10] The State of Western Australia v Yamalulu [2019] WASCA 6.

The maximum penalty for an offence of unlawfully doing grievous bodily harm, contrary to s 297(1) of the Code, is 10 years' imprisonment.
Common sense dictates that the injury the appellant inflicted on Mr Collard was extremely serious. Even in the absence of medical evidence, it is easy to understand why the laceration to Mr Collard's jugular vein endangered his life. There was the obvious potential for catastrophic blood loss. The medical evidence also established that Mr Collard was at risk of suffering from permanent damage to his voice. As the sentencing judge found, the consequences for Mr Collard could easily have been far worse had he not had the presence of mind to stem the flow of blood, nor had he been the beneficiary of a nearby neighbour's willingness to assist him. He was also very fortunate to receive timely medical treatment.
It is true, as the appellant submits, that Mr Collard does not appear to have suffered from any permanent serious physical injury. However, as is evident from the victim impact statement, the appellant's criminal conduct has had, and is likely to continue to have, adverse psychological effects on Mr Collard.
In any event, the fact that Mr Collard may not have suffered from a permanent injury to his health is not a mitigating factor for the purposes of s 8 of the Sentencing Act 1995 (WA).
It has long been established that the question of whether a person has suffered from an injury that amounts to grievous bodily harm is to be determined by reference to the nature of the injury before any medical intervention. In Ronan v The Queen,[11] Murray J (with whom Pidgeon & Wallwork JJ) agreed, said:[12]
[I]t is the nature of the injury received, considered in the light of its potential or likelihood as events might develop without medical intervention to endanger life or to cause permanent injury to health, to which regard may need to be had in considering whether an injury, as received, constitutes grievous bodily harm as defined by the Code.
[11] Ronan v The Queen (Unreported, WASCA, Library No 970073, 28 February 1997).
[12] Ronan (16), citing Fragomeni v The Queen (Unreported, WASCA, Library No 950349, 10 March 1995) and R v Lobston [1983] 2 Qd R 720.
Similarly, when assessing an offender's level of criminality for an offence of unlawfully doing grievous bodily harm, it is the nature of the injury, considered in light of the actual and potential consequences of that injury to the life and health of a victim without medical intervention, that is significant. The fact that a victim of an offence of unlawfully doing grievous bodily harm may have, like Mr Collard, avoided a permanent injury to their health by taking steps to mitigate the effects of their injuries and by then being a recipient of timely and competent medical assistance, will not decrease the culpability of the person who inflicted those injuries or otherwise reduce the extent to which they should be punished.
On the other hand, if an injury amounting to grievous bodily harm does have a permanent or long-term, adverse effect on a victim, this will plainly be a relevant sentencing factor. Not only will it be relevant to an assessment of the nature of the resulting injury and the nature of the act that caused the injury, it will also be relevant to the impact on the victim. The fact that a victim has actually suffered a permanent or long-term injury to their health will ordinarily amount to an aggravating factor.
In an unprovoked act of violence, and in an entirely disproportionate response to a mild disagreement with Mr Collard, the appellant suddenly, and without warning, produced a large and sharp machete. He then swung the machete at Mr Collard in a chopping motion, when Mr Collard was vulnerable, as he was sitting in the front passenger seat of the appellant's taxi with no real opportunity to defend himself.
Her Honour found that what the appellant did was dangerous, and that he must have known that it was dangerous. She also found that the appellant was reckless as to Mr Collard's safety. As has already been explained, the effect of those findings is that although the appellant did not intend to maim, disfigure, or disable Mr Collard, or to do him grievous bodily harm, when he swung the machete he knew that swinging the machete was dangerous, but did not care whether he might cause a serious injury that endangered Mr Collard's life and health.
Mr Collard was entitled to feel safe in the appellant's taxi, and he reposed a degree of trust in the appellant when he sought to use his services as a taxi driver. Instead, Mr Collard was subjected to a brutal assault with a dangerous weapon, which resulted in him suffering from an injury that endangered his life.
Immediately after he struck Mr Collard with the machete, the appellant knew that Mr Collard had been wounded. However, instead of staying to render assistance, as he should have, the appellant reversed out of the driveway while Mr Collard was still only partly in the front passenger seat of the taxi, dragging him along the road for a short distance. When the appellant then began to drive the taxi forwards to leave the scene, Mr Collard was flung onto the road. Mr Collard suffered from grazed knees and a broken nose as a result.
After the appellant drove away, Mr Collard remained lying on the road. It was the early hours of the morning, and it was dark. Based on the CCTV footage adduced at the appellant's trial, there were no other people around, and no one came to Mr Collard's assistance until he was able to get the attention of a nearby resident.
The manner of the appellant's driving, and the injuries suffered by Mr Collard as a result, were not the subject of any separate charges. The appellant was also not charged with any offence because of his failure to stop to make sure that Mr Collard received all the assistance, including medical aid, that was necessary and practicable in the circumstances. However, all those factors form part of the circumstances of the offence and are relevant to assessing the seriousness of the appellant's criminal conduct.
The appellant's use of a dangerous weapon to inflict a life‑threatening injury was significantly aggravated by his subsequent manner of driving which immediately placed Mr Collard in further danger and caused him further injuries. The appellant's culpability was also increased when he left the scene without rendering any assistance, in circumstances in which he knew that Mr Collard was badly injured. As the sentencing judge said, the appellant showed a 'callous disregard' for Mr Collard's welfare.
There was nothing that reduced the appellant's culpability for the offence, and little that decreased the extent to which he should have been punished. The only mitigating factor of any significance was the fact that, as the sentencing judge found, the appellant had suffered from significant childhood disadvantages. In that context, the trial judge said that the appellant appeared to have grown up being exposed to violence and that violence was used as a means of resolving conflict. However, there was no suggestion that the appellant's moral culpability was reduced because his childhood experiences significantly impaired his capacity to control his actions, to understand that he should not engage in unlawful conduct or to mature and learn from experience.[13]
[13] SYO v The State of Western Australia [2024] WASCA 31 [72].
The sentencing judge was understandably not attracted to the proposition that the appellant's belated expressions of remorse were particularly mitigating. Further, her Honour was not prepared to accept that the appellant's time in custody was likely to be more difficult when compared to other members of the prison population.
In determining whether the sentence imposed on the appellant was manifestly excessive, it is necessary to have regard to the customary sentencing standards for offences of unlawfully doing grievous bodily harm.
In Allen, this court said, in summary:[14]
(1)There is no tariff for the crime of unlawfully doing grievous bodily harm contrary to s 297(1) of the Code. However, as a matter of fact, immediate imprisonment is ordinarily imposed.
(2)The general range established by cases of unlawfully doing grievous bodily harm is between 8 months' imprisonment and 5 years and 4 months' imprisonment, with relatively serious examples of that offence attracting sentences of 3 to 5 years' imprisonment. A sentence in the range of 3 to 5 years' imprisonment will commonly be imposed in cases involving the use of weapons.
(3)The fact that a sentence falls outside the range of sentences commonly imposed for an offence of unlawfully doing grievous bodily harm does not establish that it is manifestly excessive or inadequate. While customary sentencing practice is an important consideration in assessing whether a sentence is manifestly excessive or inadequate, a conclusion in a particular case that error has, or has not, been established neither permits nor requires setting the bounds of the range of sentences within which the sentence should, or could, have fallen.
(4)As French CJ, Keane and Nettle JJ observed in R v Pham,[15] the consistency in sentencing that is sought by this court in exercising its appellate jurisdiction is consistency in the application of relevant legal principles. As their Honours noted:[16]
Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.
(5)Whether the result of the sentencing exercise drives the appellate court to the conclusion that there has been some misapplication of principle will depend on whether the result can be characterised as unreasonable or plainly unjust.
[14] Allen [61] - [66].
[15] R v Pham [2015] HCA 39; (2015) 256 CLR 550.
[16] Pham [28].
More recently, in O'Dea v The State of Western Australia,[17] this court noted that although the general range of sentences established by cases of unlawfully doing grievous bodily harm has been referred to with approval in a number of cases, the origin of that range was the judgment of Wheeler JA (with whom Buss JA, as he then was, agreed) in Trompler v The State of Western Australia.[18] It was noted that Trompler was decided in 2008, and that it represented sentencing patterns as at that time, and earlier.
[17] O'Dea v The State of Western Australia [2023] WASCA 70 [71] - [72].
[18] Trompler v The State of Western Australia [2008] WASCA 265.
Both parties referred to several cases in their written submissions and in oral submissions at the hearing of the appeal.
In Allen, the three appellants, Allen, Gastarov and Marsandi, were all convicted after pleading guilty to offences arising out of their involvement in a joint assault on a male victim who had sought to retrieve a car from a carpark. Only Marsandi was convicted of unlawfully doing grievous bodily harm, contrary to s 297(1) of the Code.
Marsandi and his co‑appellants were at the carpark. Marsandi claimed to have an interest in the victim's car. Marsandi used a baseball bat that was in the car to repeatedly hit the victim in the head. The victim ran away, but was further assaulted by all three of the appellants. Only the injuries inflicted by Marsandi during the initial assault with the baseball bat amounted to grievous bodily harm. Those injuries comprised various facial fractures, which were life‑threatening, and a fracture to the back of the victim's skull.
Marsandi was sentenced to 6 years and 4 months' imprisonment. However, after a successful appeal, Marsandi was resentenced to 5 years' imprisonment, after a 10% discount was applied in accordance with s 9AA of the Sentencing Act.
In Winmar, the two appellants were convicted after trial of three offences, namely one count of unlawfully damaging a car and two counts of unlawfully doing grievous bodily harm to the same victim. One of the appellants was sentenced to a total of 4 years and 6 months' immediate imprisonment. The other appellant was sentenced to 4 years' immediate imprisonment. Leave to appeal was refused in relation to both of those sentences.
Animosity already existed between the appellants and the victim, and the victim tried to further antagonise the appellants by doing a burnout on the road in front of their home. The appellants tried to seek retribution from the victim, after arming themselves and then driving around to look for him. Over a sustained period, several violent incidents occurred. During one of the incidents, one of the appellants threw a metal bar at the victim, which hit the victim on his leg, causing a significant open wound and fracture of the lower left leg. This injury amounted to grievous bodily harm. The appellants also damaged the victim's car using a variety of weapons.
A second incident occurred, during which the appellants chased the victim in their car. On occasions the car was driven at the victim. The appellants eventually caught the victim. While he was lying on the road the appellants hit him several times with baseball bats or similar implements. One of the blows caused a laceration to his scalp, and the victim was rendered unconscious for a short period of time. The trial judge was satisfied beyond reasonable doubt that the appellants intended to cause significant physical harm. During the combined assault the victim suffered an injury to his left middle finger, which amounted to grievous bodily harm.

In Bowe, four men were convicted after trial with offences of unlawfully doing grievous bodily harm, contrary to s 297(1) of the Code. The victim was involved in a dispute with one of the appellants about payments for the purchase of a car. The dispute escalated and became physical when the victim was set upon by the four appellants, one of whom was armed with a baseball bat. The victim was struck with the baseball bat on several occasions, and he was also kicked and punched. Other weapons were also used to assault the victim, including another baseball bat. The victim suffered from a fractured skull which caused bleeding on the brain which, without medical treatment, would have threatened his life. As a result of the bleeding, the victim suffered brain damage to the part of his brain involved with language, causing him to develop a stutter. He was unable to operate a motor vehicle for three months following his release from hospital and was unable to return to full‑time employment for six months.
Leave to appeal against sentences imposed that ranged between 3 and 4 years' immediate imprisonment was refused in relation to all four appellants.
In Gurgone, leave to appeal was refused after the appellant sought to challenge a sentence of 4 years and 3 months' immediate imprisonment imposed after trial for a conviction for an offence of unlawfully doing grievous bodily harm, contrary to s 297(1) of the Code.
The relationship between the appellant and his victim in Gurgone was strained. One night, when both men were intoxicated, tensions between them came to the surface and they fought. At one point, the appellant threatened to shoot the victim with a rifle. The appellant armed himself with a large hunting knife and a machete, and then attacked the victim, striking him with both weapons several times to his hands and to his head. As the victim tried to get away, the appellant struck him with the knife and machete. One of the blows caused a serious wound that penetrated through the victim's chest cavity and punctured his left lung. This injury amounted to grievous bodily harm.
In Yamalulu, the respondent pleaded guilty to an offence of doing grievous bodily harm in circumstances of aggravation, contrary to s 297(1) of the Code, read with s 297(3). This offence carries a maximum penalty of 14 years' imprisonment. The respondent in Yamalulu was afforded a 25% discount for his plea of guilty and was sentenced, at first instance, to 3 years and 8 months' immediate imprisonment. On appeal, that sentence was increased to 7 years and 6 months' imprisonment.
The respondent in Yamalulu was in a relationship with the victim of the offending, although that relationship had ended at the time of the offence. There had been a history of domestic violence, and a violence restraining order was in force at the time of the offence, prohibiting the respondent from contacting the victim. The respondent violently assaulted the victim when he found her having sex with his brother. The respondent threw the victim to the ground and repeatedly jumped on her chest, legs and head, despite her screaming and pleading with him to stop. The respondent did not render first aid or seek any medical assistance, and he fled when he saw a police car arriving.
The victim suffered very serious injuries including a broken right mandible, a subdural haematoma, cervical and thoracic spinal injuries, significant bruising and contusions, strangulation bruising around her neck, broken ribs and a broken clavicle. The most serious injury suffered was the subdural haematoma, which resulted in quadriplegia.
In Jones, the appellant was convicted after trial of one count of unlawfully doing grievous bodily harm to another, contrary to s 297(1) of the Code. Leave to appeal against a sentence of 5 years' immediate imprisonment was refused.
The appellant and an acquaintance visited a service station to buy cigarettes. There, they came across the victim who was visibly intoxicated and unsteady on his feet, and he accidentally bumped into them. Later, the appellant and his acquaintance again encountered the victim. The appellant was standing behind the victim, as the victim was standing and talking to the acquaintance. The victim was not behaving in any threatening way.
Without warning, the appellant leaned backward, took a stance and readied himself to hit the victim. He then deliberately stepped forward and swung his right arm, which was encased in a cast, connecting with the victim's head. The victim became immediately unconscious and fell forward onto the pavement. The blow was unprovoked. The appellant and his acquaintance paid no heed to the victim as he lay on the ground, and they walked away.
The victim was hospitalised for six days. He suffered a fractured vertebra and a ruptured disc. Without medical intervention those injuries were likely to cause permanent injury to health, being paralysis or parathesis in his arms with associated loss of strength and use of his arms.
To the cases referred to by the parties should be added the decision of O'Dea. In that case the appellant pleaded guilty to an offence of unlawfully doing grievous bodily harm, contrary to s 297(1) of the Code, and was sentenced to 5 years and 2 months' imprisonment, after a discount of 10% was allowed pursuant to s 9AA of the Sentencing Act. Leave to appeal against sentence was refused.
The factual basis on which the appellant was sentenced in O'Dea began during the early hours of the morning, when the victim was working at a bowling club as a cleaner. He was disturbed by a woman who had broken into the bowling club and, when she fled the premises, he took off after her. The woman ran to a nearby house and yelled for help. The appellant and his co‑appellant then carried out a sustained and brutal attack on the victim, apparently under the misapprehension that he had been attacking the woman. During the assault a hockey stick was used to strike the victim, and he was repeatedly kicked and punched. The victim's head also struck the ground on several occasions during the assault on him.
The victim was eventually taken to hospital. He was not able to speak due to his injuries. He suffered a traumatic brain injury, skull and facial bone fractures, and a fractured right ankle. The grievous bodily harm referred to in the charge was the traumatic brain injury. The victim has residual cognitive and speech‑related deficits and was unable to return to work. He required ongoing therapy intervention and was admitted to a residential rehabilitation facility for individuals with an acquired brain injury. A public trustee was appointed to administer the victim's affairs as he was unable to do so on his own.
None of these cases support a conclusion that the sentence imposed on the appellant was manifestly excessive. Leave to appeal was refused in Winmar, Bowe, Gurgone, Jones, and O'Dea. Accordingly, it was concluded in those cases that it was not even reasonably arguable that the sentences imposed were unreasonable or plainly unjust. All that can be said about those cases is that the court was far from persuaded that the sentences imposed were outside the range of the proper exercise of the sentencing discretion.
The sentence of 5 years' immediate imprisonment imposed after a successful appeal in Allen took into account a 10% reduction on account of a plea of guilty, and the fact that the appellant in that case did not have any convictions for offences of violence, amongst other matters. Neither of those factors were available to be taken into account in the present case.
The sentence imposed by this court after a State appeal in Yamalulu is also of no assistance to the appellant. The sentence of 7 years and 6 months' imprisonment was imposed for an offence of aggravated grievous bodily harm, contrary to s 297(1) read with s 297(3) of the Code, after a 25% discount was taken into account for a plea of guilty entered at the first reasonable opportunity.
In our view, the sentence imposed on the appellant is broadly consistent with the sentences imposed in reasonably comparable cases. Any differences between the sentence imposed on the appellant, and the sentences passed in the cases to which reference has been made, are explicable and do not lead to the conclusion that there must have been some misapplication of principle.
None of the cases that we have referred to support the appellant's contention that the sentence of 6 years' imprisonment was unreasonable or plainly unjust such that it must be inferred that the sentencing judge made a material error in the exercise of her sentencing discretion. Although the sentence of 6 years' imprisonment is at the upper end of the range of sentences that could have been imposed on the appellant, in the proper exercise of the sentencing discretion it is not unreasonable or plainly unjust.
In his oral submissions at the hearing of the appeal, counsel for the appellant submitted, in effect, that sentences imposed for offences of unlawfully doing grievous bodily harm must accommodate the significant difference between the maximum penalty of 10 years' imprisonment for an offence contrary to s 297(1) when compared to the maximum penalty for the more serious offence contrary to s 294(1) of the Code, namely 20 years' imprisonment. So much may be accepted. However, counsel placed considerable reliance on a sentence imposed in a single case, Fernandez, for an offence contrary to s 294(1), to support an argument that the sentence imposed in this case was manifestly excessive.
In Fernandez the appellant was convicted after trial of unlawfully doing grievous bodily harm to her estranged husband with intent to do grievous bodily harm, contrary to s 294(1) of the Code. Leave to appeal against a sentence of 5 years and 6 months' imprisonment was refused. This court said that the sentence was well within the range of a proper exercise of the sentencing discretion.
The appellant in Fernandez was married to the victim. She did not have a criminal record, she had an excellent work record, and was a person of prior good character. The trial judge described her as intelligent, well‑educated, and hardworking, and found that her risk of reoffending was low. She had been in dispute with the victim about the custody of their children. The appellant met the victim at a park for the handover of their young child. After some discussion occurred about the handover, and as the victim was walking back to his car, the appellant produced a knife and stabbed him in the stomach in the presence of children. The appellant then stabbed the victim again in the chest.
One of the stabs lacerated the victim's small bowel. While the victim was on the ground, and the appellant was on top of him, he grabbed hold of the knife, which caused a severe injury to his left palm. There was a 'full thickness' wound to the victim's chest of about 10 cm in length. Without medical intervention, it is very likely that the victim would have died. The trial judge was not satisfied beyond reasonable doubt that the appellant formed the intention to use the knife earlier than shortly before the stabbing occurred.
The length of the sentence imposed in Fernandez was less than the sentence imposed on the appellant. Further, the sentence in that case was imposed for an offence that carried a far greater maximum penalty than the 10‑year maximum sentence that was applicable in the appellant's case. However, there are several reasons why the decision in Fernandez does not assist the appellant.
Firstly, little assistance can be derived from the customary sentencing practices that may be revealed by examining sentences imposed for other offences.
Secondly, error cannot be inferred simply because a sentence imposed in one case was found not to have been manifestly excessive. In any event, leave to appeal was refused in Fernandez.
Thirdly, the circumstances of the offending in Fernandez were very different to the circumstances of the offending in the present case. While it could not excuse or mitigate her conduct, it may be inferred that the appellant in Fernandez committed her offence in circumstances of heightened emotion caused by issues relating to the custody of her children. In this case, the appellant caused a life‑threatening injury to a stranger who just wanted to be taken home.
Fourthly, after committing the offence, the appellant drove in a manner that further endangered Mr Collard and left him lying on the road at night, bleeding and highly vulnerable. Both the appellant and Mr Collard were very fortunate that he did not succumb to his injuries.
Fifthly, while the appellant did not have an intention to do grievous bodily harm, when he struck Mr Collard with the machete, the appellant was reckless about Mr Collard's safety. This was a particularly serious feature of the appellant's conduct, carrying with it a high degree of culpability in the context of an offence contrary to s 297(1).
Sixthly, unlike the offender in Fernandez, the appellant did not have favourable antecedents, and there was no finding made that he presented a low risk of reoffending.
What the appellant did was highly blameworthy. In an unprovoked attack he used a dangerous weapon to inflict a life‑threatening injury on a defenceless man, not caring whether he was endangering his safety. He then compounded what he had done by causing further injuries and placing Mr Collard in further danger, before then leaving him to fend for himself.
What the appellant did was deserving of condign punishment.
While the sentence imposed was undoubtably high, after taking into account:
(a)the maximum penalty of 10 years' imprisonment that is prescribed for the offence;
(b)the appellant's use of a dangerous weapon in an unprovoked and disproportionate attack on a defenceless passenger, in response to a minor disagreement;
(c)the fact that the appellant was reckless about Mr Collard's safety when he struck him with the machete;
(d)the life-threatening nature of the injury suffered by Mr Collard as a result of being struck with a machete, and the longer‑term physical and psychological effects of the attack on him;
(e)the appellant's conduct immediately after the commission of the offence, including his manner of driving, the further injuries suffered by Mr Collard as a consequence of that driving, and the appellant's complete and callous failure to provide any assistance to Mr Collard, who he had rendered highly vulnerable to the risk of death;
(f)the lack of any significant mitigation; and
(g)the need for general deterrence and, given the appellant's criminal record, a sentence that personally deterred him from engaging in similar conduct in the future,
we are not driven to conclude that a sentence of 6 years' imprisonment is unreasonable or plainly unjust. That sentence is not so excessive that it must be inferred that the sentencing judge made a material error in the exercise of her sentencing discretion.
While we would allow an extension of time, and grant leave to appeal, we would dismiss the appeal.

Orders

The orders are:
1.The application for an extension of time within which to appeal is allowed.
2.Leave to appeal is granted.
3.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Associate to the Honourable Justice Vandongen
1 AUGUST 2024

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