Gurgone v The State of Western Australia
[2016] WASCA 9
•13 JANUARY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GURGONE -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 9
CORAM: NEWNES JA
MAZZA JA
HEARD: 17 DECEMBER 2015
DELIVERED : 13 JANUARY 2016
FILE NO/S: CACR 161 of 2015
BETWEEN: JOSEPH ANTHONY GURGONE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DERRICK DCJ
File No :IND 1500 of 2014
Catchwords:
Criminal law - Application for leave to appeal against sentence - Grievous bodily harm - 4 years 3 months' imprisonment - Manifest excess
Legislation:
Criminal Code (WA), s 294, s 297
Restraining Orders Act 1997 (WA), s 63A
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms H Muhling
Respondent: No appearance
Solicitors:
Appellant: Beau Hanbury, Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Cairns v The State of Western Australia [2015] WASCA 198
Fenton v The State of Western Australia [2015] WASCA 255
Gangemi v The State of Western Australia [2014] WASCA 39
Hobby v The State of Western Australia [2011] WASCA 197
Mercanti v The State of Western Australia [2009] WASCA 109
The State of Western Australia v Ellement [2016] WASCA 1
The State of Western Australia v Ghilardi [2015] WASCA 61
The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308
Trompler v The State of Western Australia [2008] WASCA 265
NEWNES JA: I agree with Mazza JA.
MAZZA JA: This is an application for leave to appeal against sentence.
The appellant was charged on indictment in the District Court that on 24 June 2014, with intent to maim, disfigure, disable, or do some grievous bodily harm, he did grievous bodily harm to Steven Wade Hudson contrary to s 294(1) of the Criminal Code (WA). The victim is the appellant's half‑brother. The appellant was acquitted after trial of this charge, but convicted of the alternative offence of doing grievous bodily harm contrary to s 297 of the Criminal Code.
On 21 August 2015, he was sentenced by Derrick DCJ to 4 years 3 months' imprisonment to commence from 31 May 2015 with eligibility for parole. A lifetime violence restraining order was made against the appellant pursuant to s 63A of the Restraining Orders Act 1997 (WA), as was an order for the forfeiture of the weapons used in the attack against the victim.
The appeal is only in respect of the term of imprisonment. The sole proposed ground relied upon by the appellant alleges that the sentence of 4 years 3 months' imprisonment was manifestly excessive.
For the reasons that follow, the proposed ground has no reasonable prospect of succeeding. Accordingly, leave to appeal must be refused with the consequence that the appeal is taken to have been dismissed.
Background
Facts of the offending
In or about 2010, the appellant and his former wife separated. Ultimately, they divorced. According to the appellant, he was unjustifiably prevented from having contact with his children. This situation caused him great distress.
In late 2013 or early 2014, the victim came to live with the appellant. The learned sentencing judge described the victim as having a 'chequered past' (sentencing remarks ts 3), including illicit drug addiction and a history of committing serious criminal offences. At the time that the victim came to live with the appellant, the victim had undertaken drug rehabilitation and had not used illicit drugs, other than cannabis for a number of years. Nevertheless, his lifestyle was problematic.
In the six or so months leading up to the commission of the offence, tension built up between the victim and the appellant. The victim did not follow some of the house rules the appellant had set. Three or four weeks before the date of the offence, an argument took place during which the victim made a comment to the appellant, the effect of which was that he 'should just go and cry about your children' (sentencing remarks ts 4). The appellant was upset by this comment and told the victim that he had to move out the following Monday.
The appellant's step‑father (who was also the victim's father) intervened on behalf of the victim, as a result of which the appellant told the victim that he could continue to live at the unit.
By 24 June 2014, the relationship between the appellant and the victim was, as Derrick DCJ described it, 'at best strained' (sentencing remarks ts 5). That afternoon, the appellant began drinking full-strength beer and cider. At about 4.00 pm, the victim came home from work. The victim began drinking as well. Over the next six or seven hours both men continued to consume alcohol, for the most part, in an outside courtyard.
By around 10.00 pm, both men were, to some extent, intoxicated. At this point, some of the underlying tensions between the two men surfaced. Their conversation got to the point where the two men became involved in a heated argument. Ultimately, the appellant lost his temper. He stood up and punched the victim twice, once to the face and once to the shoulder area. The two men started to grapple and struggle. During the struggle the victim, in an attempt to free himself from the appellant's hold, bit him on the right cheek, drawing blood. The bite caused the appellant to let go of the victim.
The appellant then walked inside the unit while the victim stayed outside smoking a cigarette. About a minute later, the appellant 'stormed' back outside armed with his licensed (but, as his Honour found, unloaded) .30‑30 rifle, which he had taken out of his locked gun cabinet. He then pointed the rifle straight at the victim in order to terrorise him. The victim said words to the effect of 'Hey, what are you doing? I'm your brother' (sentencing remarks ts 6). Then, in a shocked and agitated state, the victim grabbed the rifle and put the barrel of it into his mouth saying 'Shoot me. Shoot me then. Shoot me' (sentencing remarks ts 6).
After a few seconds, the victim removed the gun from his mouth. The appellant then walked inside the unit with the gun. The appellant stayed inside the unit for a period of time during which the victim remained in the courtyard in the hope that the appellant would calm down if he was left alone. Unfortunately, he did not calm down. Instead, in a very angry state, the appellant came back outside to where the victim was standing. The appellant was armed with 'a relatively large hunting knife and a machete' (sentencing remarks ts 7).
The victim put his hands up in a futile attempt to defend himself. The appellant then attacked the victim with the knife and machete, striking him with both weapons a number of times to his hands. He was also struck to his head.
The victim staggered backwards towards an outdoor setting in the courtyard. He then turned around and scrambled for the gate which led out of the courtyard and onto the front verge area of the unit complex. While the victim tried to reach the gate, the appellant struck further blows with the knife and machete. One of those blows, which was delivered either by the knife or the machete, connected with the victim's back in the region of his left shoulder area. This blow caused a serious wound which penetrated through the victim's chest cavity. It is this injury which constituted the grievous bodily harm.
When the victim got to the gate, it was shut. He initially struggled to open the gate due to his state of shock. Eventually, he managed to open it and staggered out onto the front verge area. By this time, he was bleeding profusely from his wounds. Neighbours called an ambulance, and the victim was taken to Royal Perth Hospital for treatment.
Meanwhile, the police arrived at the unit. The police officers made an attempt to persuade the appellant to give himself up. The appellant responded in an abusive and belligerent manner. Something of a stand‑off occurred. During this time, the appellant washed blood from both of the weapons that he had used to attack the victim. Eventually, the appellant was arrested.
The injuries sustained by the victim were serious. The victim suffered a number of wounds consistent with the use of the knife and machete. The most serious of these was a 12 cm-long laceration to the left side of his back which was deep enough to have penetrated his chest cavity. As a result, the victim's left lung was punctured and collapsed, and he was struggling to breathe. The victim underwent surgery to repair the pneumothorax and to close the wound. Without this surgery, the victim's left lung would not have re‑expanded and consequently, insufficient oxygen would have reached his brain, eventually leading to his death.
Even if, for some reason, the victim did not die from the collapsed left lung, the likelihood is that he would have developed, and subsequently died from, a serious infection through the opened wound. For these reasons, the laceration to the left side of the back was, in the absence of medical treatment, life-threatening.
Fortunately, the victim responded well to treatment and was discharged from hospital approximately four days after his admission.
The appellant's personal circumstances
The appellant's antecedents were largely positive. At the time of sentence, the appellant was 48 years of age. He has a positive record of employment, working in the mining industry for many years on a fly‑in/fly‑out basis. The written material before the sentencing judge indicated that the appellant was a 'hard‑working and industrious man' (sentencing remarks ts 17).
The appellant has a relatively minor record of prior adult convictions and, although it cannot be said that he is a first offender, he has been a law‑abiding citizen for the past 23 years. Character references spoke well of him.
The court‑ordered psychological report revealed that the appellant had no significant mental health issues and there was nothing to suggest that, at the time of the offence, he was suffering from any mental illness or mental health problems that materially contributed to his offending behaviour (sentencing remarks ts 19).
Although the appellant was intoxicated at the time of the offence, and that his intoxication contributed to his offending behaviour (sentencing remarks ts 18), the appellant did not, according to the author of the psychological report, regard his drinking as problematic.
The authors of the pre‑sentence and psychological reports both observed that the appellant had little victim empathy and tended to minimise and justify his actions.
The victim impact statement
As a result of the offence, the victim's employer was unable to keep his position open for him and consequently, he lost his job. The victim has had to rely on Centrelink benefits and financial help from his father. He feels that he has been a burden to his father. He has, since the offence, suffered from depression and anxiety and, for the first few months after the offence, he suffered constantly from flashbacks. He has experienced difficulty sleeping and a loss of confidence. He felt that the progress that he has made getting his life back on track before the offence has been taken away from him.
It is clear that the commission of the offence has caused the victim to suffer adverse consequences, not only to his financial position; but also, to his emotional wellbeing, and that this is likely to impact him so for some time yet (sentencing remarks ts 13).
The sentencing remarks
As the appellant does not allege any express error on his Honour's part, it is unnecessary to canvass in detail the sentencing remarks. They are comprehensive and detailed.
His Honour assessed the injuries caused to the victim as 'falling in the middle of the range of seriousness for injuries amounting to grievous bodily harm' (sentencing remarks ts 13). As to the nature of the acts which caused the injuries, his Honour noted that the appellant struck the victim a number of times to various parts of his body with two potentially lethal weapons. He considered the seriousness of the appellant's conduct as being aggravated by the fact that the most serious of the injuries was inflicted when the victim had his back to the appellant and was trying to escape from him. His Honour noted that the victim was, at this point, 'completely and utterly vulnerable and unable to offer any form of defence' (sentencing remarks ts 14). His Honour characterised the nature of the acts which caused the injuries to the victim as falling 'towards the higher end of the range of seriousness of acts causing grievous bodily harm' (sentencing remarks ts 14).
As to the background to the offence, his Honour took into account that the appellant had the best of intentions when he invited the victim to live with him, and that he had a genuine desire to help his half‑brother. He accepted that the appellant had acted as a 'good Samaritan' in relation to the victim and that, at times, perhaps with some justification, he felt frustrated by the victim's behaviour (sentencing remarks ts 15). Nevertheless, his Honour considered that these matters did not provide any reasonable justification or explanation for 'the very significant and largely unprovoked gratuitous violence' with which the appellant committed the offence (sentencing remarks ts 15).
His Honour expressly took into account the fact that the victim bit the appellant earlier in the altercation. However, the bite was delivered as a result of the appellant punching the victim and, in any event, there was a reasonably significant time‑lapse between the biting and the attack upon the victim with the knife and machete.
His Honour regarded the overall circumstances of the offence as 'very serious' (sentencing remarks ts 15). He assessed the offence 'as being between the middle and the higher range of seriousness of offences of this type' (sentencing remarks ts 15).
His Honour was not prepared to make a finding that the appellant was remorseful or that he accepted responsibility for his conduct. He was satisfied that the appellant largely believed that the victim 'very much got what he deserved' (sentencing remarks ts 22). It is clear that his Honour regarded the appellant's antecedents as mitigating. He found that the appellant represented a low risk of reoffending.
The appellant's submissions
It was submitted on the appellant's behalf that the sentence of 4 years and 3 months' imprisonment was manifestly excessive having regard to:
(a)the background to and circumstances of the offence;
(b)the appellant's largely positive antecedents;
(c)the low risk of the appellant reoffending;
(d)the fact that the victim suffered no permanent injury;
(e)the offence having occurred over an allegedly short space of time; and
(f)the outcomes in comparable cases; in particular, The State of Western Australia v Ghilardi [2015] WASCA 61.
Appellate sentencing principles
This court can only intervene if it is satisfied that a material error has been made by the primary court. An error may be express or implied. A claim of manifest excess is an allegation of implied error. A ground of appeal relying upon manifest excess (or manifest inadequacy) cannot succeed unless the appellant demonstrates that the sentence imposed was unreasonable or plainly unjust. To determine whether a sentence is manifestly excessive, regard is had to the maximum sentence prescribed for the offence (in this case, 10 years' imprisonment); the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on the scale of seriousness of offences of that type; and the personal circumstances of the offender.
The range of sentences customarily imposed provides a yardstick against which to measure the sentence under consideration with the aim of ensuring broad consistency in outcomes. However, it does not mark the boundaries within which the sentencing discretion is to be exercised. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect: Fenton v The State of Western Australia [2015] WASCA 255 [17] (McLure P).
Disposition of the appeal
There are many sentencing cases of this court (and its predecessor) regarding the offence of doing grievous bodily harm. Some of those cases were collected in the recent case of The State of Western Australia v Ellement [2016] WASCA 1 [39]. There is no need to repeat all of what was said in that case. Although there is no tariff for the crime of doing grievous bodily harm contrary to s 297(1) of the Criminal Code, the general range of sentences is between 8 months to 5 years 4 months' immediate imprisonment, with cases falling to the upper end of the range attracting sentences in the order of 3 to 5 years' imprisonment: see Trompler v The State of Western Australia [2008] WASCA 265 [38] (Wheeler JA); Mercanti v The State of Western Australia [2009] WASCA 109 [35] (Miller JA); Hobby v The State of Western Australia [2011] WASCA 197 [23] (Buss JA) and The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308 [36] ‑ [39] (Buss JA). This range was confirmed in The State of Western Australia v Ghilardi [48] ‑ [52] (Mazza JA). It is clear that the sentence imposed by his Honour was within the range of sentences customarily imposed for serious offences of the type committed by the appellant. That the sentence imposed in The State of Western Australia v Ghilardi was the same as the sentence imposed in the present case does not establish error. This is because there is no one correct sentence. Thus, the outcome in one case does not dictate the outcome in another: Gangemi v The State of Western Australia [2014] WASCA 39 [5] (McLure P) and Cairns v The State of Western Australia [2015] WASCA 198 [33] (reasons of the court).
In Trompler, Wheeler JA referred to three factors which are generally of significance when assessing an offender's criminality involved in an offence of grievous bodily harm, namely:
(a)the nature of the harm inflicted upon the victim;
(b)the nature of the act which causes the injury; and
(c)the background to and circumstances of the offence.
The appellant inflicted life‑threatening injuries upon the victim. Although the victim has largely recovered from the physical effects of those injuries, the economic and psychologic effects are ongoing.
The act which caused the injury was a persistent and relentless attack by the appellant with two potentially lethal weapons. His Honour was right in characterising the appellant's actions as falling towards the high end of the range of seriousness of acts causing grievous bodily harm.
His Honour was also correct when assessing the background to and circumstances of the offence to conclude that there was no reasonable justification or explanation for the violence perpetrated upon the victim.
The overall circumstances of the offence fell very much between the middle and higher range of seriousness of offences of this type.
The appellant was not entitled to any leniency for his plea or remorse; however, his personal circumstances afforded some mitigation, which his Honour appropriately acknowledged. In any event, the weight that could be given to this factor is limited, having regard to the seriousness of what the appellant did.
I am far from persuaded that the sentence imposed upon the appellant was manifestly excessive. Having regard to all of the relevant sentencing considerations, I do not regard the sentence that was imposed as unreasonable or plainly unjust. I would not give leave to appeal. The appeal must be dismissed.
The orders that I would make are as follows:
1.Leave to appeal is refused.
2.The appeal is dismissed.
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