Gurney v The State of Western Australia - [2021] WASCA 204

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   GURNEY -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 204
CORAM:   BUSS P
HEARD:   29 NOVEMBER 2021
DELIVERED          :   29 NOVEMBER 2021
FILE NO/S:   CACR 169 of 2021
BETWEEN:   EVAN JAMES GURNEY
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   RUSSELL DCJ
File Number            :   IND 895 of 2021

Catchwords:

Criminal law - Appeal against sentence - Application for bail - Whether exceptional reasons why the appellant should not be kept in custody pending the determination of his appeal

Legislation:

Bail Act 1982 (WA)
Criminal Code (WA), s 297(1)

Result:

Application for bail dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr S F Rafferty
Respondent	:	Mr T B L Scutt

Solicitors:

Appellant	:	Seamus Rafferty & Associates
Respondent	:	Director of Public Prosecutions (WA)

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

Serukai v The State of Western Australia [2020] WASCA 127

BUSS P:

The appellant was charged on indictment with one count which alleged that on 23 April 2021 at Joondalup the appellant unlawfully did grievous bodily harm to Kelly Tomlinson, contrary to s 297(1) of the Criminal Code (WA) (the Code).
The appellant was convicted, on his plea of guilty, of the charged offence.
The maximum penalty for the offence created by s 297(1) of the Code is 10 years' imprisonment.
On 16 November 2021, Russell DCJ sentenced the appellant to 14 months' immediate imprisonment. The start date for the sentence was 16 November 2021. A parole eligibility order was made.
The appellant has appealed against sentence. He has not yet filed an appellant's case. However, the appellant has indicated that he proposes to rely upon three grounds of appeal. First, the sentence of immediate imprisonment was manifestly excessive as to type. Secondly, the sentencing judge erred in finding that the victim had not committed any provocative act and, even if there had been a provocative act, that would not have made a material difference to the type of sentence imposed. Thirdly, her Honour denied the appellant procedural fairness by the manner in which she dealt with the alleged provocative act.
The facts and circumstances of the offending were, in summary, as follows. The victim was aged 25. He is about 175 cm tall and of medium build. The appellant was aged 18. He is about 190 cm tall and of medium build. The victim and the appellant were unknown to each other. On 23 April 2021, they separately attended the Sovereign Arms Pub in Joondalup. At about 10.40 pm, the victim and a friend left the Sovereign Arms Pub and went to the corner of Boas Avenue and McLarty Avenue in Joondalup. The victim crossed the road. Unknown to him, the appellant had followed him from the Sovereign Arms Pub. The appellant sprinted about 30 m towards the victim. While the victim had his back turned, the appellant lunged at him with a clenched fist, punching the victim once to the side of his face. The victim collapsed and fell awkwardly to the ground. The appellant then stood over the victim and shouted profanities while the victim lay unconscious. The appellant's friends or acquaintances moved him away from the victim and eventually they left the area. A member of the public who saw the incident attended to the victim and called an ambulance. The victim was taken to Joondalup Health Campus. A medical examination revealed that the victim had suffered two orbital fractures to his right eye socket and multiple fractures to his right ankle that required immediate surgery. The victim spent five days in hospital and required further rehabilitation for both his eye and his ankle. The victim had to wear a moon boot for about 6 weeks. He was unable to drive a motor vehicle for almost 8 weeks and was unable to walk confidently for about a month after the moon boot was removed. If medical intervention had not occurred the victim would have been left with a permanent disability.
The victim impact statement indicated that after the incident the victim had to take prolonged periods of unpaid leave. He was unable to work between April 2021 and June 2021. He had been in arrears in the payment of his rent and other expenses. The scarring on the victim's eye was a constant reminder of his ordeal. After the incident he had difficulty eating and drinking. The victim had struggled to take care of himself and felt withdrawn and self‑conscious. He had been prescribed anti‑anxiety medication.
At the sentencing hearing two disputed issues of fact arose. First, the prosecutor alleged that earlier on the evening in question the appellant had referred to the victim, who is openly gay, as a 'faggot'. Secondly, according to the appellant, the victim had spat at the appellant through a fence outside the Sovereign Arms Pub.
As to the first issue, the sentencing judge did not sentence the appellant on the basis that he had insulted the victim.
As to the second issue, the prosecutor said that there was nothing in the prosecution brief to indicate whether the victim did or did not spit at the appellant. The prosecutor added that the State could not take the matter any further. In particular, the State did not accept that the spitting had occurred, but the State did not 'articulate otherwise' (ts 21).
The sentencing judge dealt with the allegation that the victim had spat at the appellant by stating that her Honour was not satisfied on the balance of probabilities that the victim did spit at the appellant. Her Honour then said:
In any event, I do not accept that if he did spit at you, that and the back and forth and shouting would have given rise to significant provocation so as to bring the circumstances of your offending within a rare category of case as submitted. You ran and chased down [the victim]. He was already some distance away from you. You sprinted about 30 m to catch up to him and hit him from behind when he was not looking.
Your assault on [the victim] was not a spontaneous reaction on your part to an act by him. Whatever was done or said by him through the fence, [the victim] had moved away. He was about 30 m away from you when you chased him, sprinting that distance to catch up to him and hit him from behind when, as I've said, he was not looking.
Irrespective of whether there was a provocative act by [the victim] from behind the fence, it was you that escalated the matter to a physical act of violence. Your response was out of all proportion. You did nothing to aid [the victim] after you'd knocked him to the ground. You stood over him yelling profanities before your associates moved you away from him and you left the area.
…[the victim] was particularly vulnerable. He did not see you approach him. You punched him to the side of his face while he had his back turned to you and he had no opportunity to defend himself (ts 35 ‑ 36).
Later in her remarks, the sentencing judge, in the course of considering whether the term of imprisonment should be suspended, said that she was not satisfied that 'there are exceptional circumstances or that the circumstances surrounding your offending bring this within a rare category of case in which the sentence imposed for an offence of [unlawfully doing] grievous bodily harm should be other than an immediate term of imprisonment' (ts 42).
The sentencing judge referred to and took into account a number of mitigating factors. First, the appellant pleaded guilty at the first reasonable opportunity. Her Honour afforded the appellant a 25% discount for the plea. Secondly, the appellant was aged 18 at the time of the offending and was therefore youthful. Thirdly, the appellant had evinced remorse for his offending. Fourthly, the appellant was of prior good character. He did not have a criminal record apart from two minor offences in 2020 for which he received spent conviction orders. A number of written references which attested positively to his character were tendered on his behalf. Fifthly, the appellant had not previously served a term of immediate imprisonment.
The principles relating to the granting of bail pending the determination of an appeal are well established. See, for example, Serukai v The State of Western Australia.[1]
[1] Serukai v The State of Western Australia [2020] WASCA 127 [12] ‑ [15].
I have considered the material relied upon by the appellant in support of his application for bail. I have also taken into account the oral submissions made by counsel for the appellant today.
I am not satisfied, at this stage, that the merits of the appellant's appeal, including whether a different sentence should have been imposed, are of sufficient strength to justify a grant of bail.
In particular, I am not satisfied, at this stage, that:
(a)the appellant has a strongly arguable case that a term of imprisonment to be served immediately was not within the range reasonably open to the sentencing judge on a proper exercise of her discretion; or
(b)the appellant has a strongly arguable case that, even if her Honour made the error alleged in proposed ground 2 and even if her Honour denied the appellant procedural fairness as alleged in proposed ground 3, a different sentence, namely suspended or conditionally suspended imprisonment, should have been imposed.
In all the circumstances, I am not satisfied that there are exceptional reasons why the appellant should not be kept in custody pending the determination of his appeal.
The appellant's application for bail is therefore dismissed.
The appellant has not made an application for an urgent appeal order. If an application for an urgent appeal order is made the court will consider the application when the appellant has filed his appellant's case.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AHM
Research Associate to the Hon President Buss
30 NOVEMBER 2021