Hansen v The State of Western Australia
[2019] WASCA 170
•1 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HANSEN -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 170
CORAM: BUSS P
MAZZA JA
HEARD: 25 OCTOBER 2019
DELIVERED : 1 NOVEMBER 2019
FILE NO/S: CACR 118 of 2019
BETWEEN: KYLE ANTHONY HANSEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BOWDEN DCJ
File Number : IND 505 of 2019
Catchwords:
Criminal law - Appeal against sentence - Aggravated unlawful assault occasioning bodily harm - Aggravated grievous bodily harm - Alleged implied error - Totality principle
Legislation:
Criminal Code (WA), s 297(3), s 317(1)
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Baker v The State of Western Australia [2018] WASCA 15
Bowe v The State of Western Australia [2017] WASCA 166
Hansen v The State of Western Australia [2014] WASCA 229
Kabambi v The State of Western Australia [2019] WASCA 44
Lawrence v The State of Western Australia [2015] WASCA 187
Mercanti v The State of Western Australia [2009] WASCA 109
Merlo v The State of Western Australia [2018] WASCA 71
The State of Western Australia v Ghilardi [2015] WASCA 61
Trompler v The State of Western Australia [2008] WASCA 265
JUDGMENT OF THE COURT:
This is an application for leave to appeal against sentence. The appellant was convicted in the District Court on his pleas of guilty of two offences contained in an indictment, both of which were alleged to have occurred on 16 June 2018, at Swan View. Count 1 alleged that the appellant unlawfully assaulted A and thereby did her bodily harm, in circumstances where the appellant was in a family relationship with A, contrary to s 317(1) of the Criminal Code (WA) (Code). This offence carries a maximum penalty of 7 years' imprisonment. Count 2 alleged that the appellant unlawfully did grievous bodily harm to a second victim, T, who was, at the time, of or over the age of 60 years. This offence is contrary to s 297(3) of the Code and carries a maximum penalty of 14 years' imprisonment. T was, at the time of the offence, 67 years old.[1]
[1] ts 6 - 7.
On 26 July 2019, Bowden DCJ sentenced the appellant to 2 years 6 months' imprisonment on count 1, and 4 years' imprisonment on count 2. His Honour ordered that the sentences be served cumulatively. Thus, the total effective sentence was 6 years 6 months' imprisonment. The appellant was made eligible for parole.[2]
[2] ts 27 - 28.
The appellant does not challenge the individual sentences that were imposed upon him. The single ground of appeal that he advances alleges that the total effective sentence infringed the first limb of the totality principle. For the reasons set out below, the ground has no reasonable prospect of succeeding. Accordingly, the appeal must be dismissed.
The facts
At the time of the offending, the appellant was 31 years of age. He is approximately 185 cm tall. The victim of count 1, A, was 36 years of age, 152 cm tall and of slim build.[3] She was approximately 40 kg lighter than the appellant.[4] It was possible that she was in the early stages of pregnancy. A had known the appellant all her life; however, they had been in a family relationship for six months prior to the offending. The victim of count 2, T, was, at the time of the offending, a 67‑year‑old male. He is approximately 177 cm tall and of medium build. He lived next door to the appellant.[5]
[3] ts 7 - 8.
[4] ts 23.
[5] ts 7 - 8.
Between 8.00 pm and 8.30 pm on 16 June 2018, the appellant and A were walking along a street, having been to a bottle shop. The appellant began making abusive and derogatory comments towards A, and as a result, she walked away from him. He ran up to her from behind, grabbed her hair and punched her in the face and to the back of her head, causing her to fall to the ground. While A was on the ground, the appellant stood over her, continued to punch her to the body and then kicked her in the ribs. As he did so, he racially insulted her.[6]
[6] ts 8.
Several residents heard the commotion and came out of their houses, pleading for the appellant to stop the assault. Fearing for A's safety and welfare, T armed himself with a wooden implement, similar to the handle of a shovel, and approached the appellant. T yelled for him to get off A, whom the appellant was still assaulting on the ground.[7]
[7] ts 8.
As T approached, the appellant threw a single punch which struck T to the jaw. The punch had sufficient force to knock T unconscious, causing him to fall backwards in an uncontrolled manner, hitting the back of his head on the roadway.[8]
[8] ts 8.
The appellant picked up the wooden implement and resumed his assault upon A, hitting her to the ribs with great force.[9] Later, in an audio‑visual record of interview with police, the appellant admitted that he hit A as hard as he could with the intention of breaking her ribs.[10]
[9] ts 8.
[10] ts 9.
Eventually, after members of his family intervened, the appellant fled the scene. He was arrested a short time later.[11]
[11] ts 9.
A was taken to hospital, where she was treated for pain in her back and ribs. She sustained abrasions to her right wrist, the right side of her chest and her left knee. Fortunately, A suffered no fracture to her ribs.[12]
[12] ts 9.
T was taken to Royal Perth Hospital, where it was determined that his injuries were of such a nature as to cause, or be likely to cause, permanent injury to his health. T was treated for fractures to his nose, left cheekbone, the base of his skull and for bleeding on his brain. The majority of his injuries were treated non‑operatively, however, he was required to undergo surgery for his facial injuries. T was later transferred to Fiona Stanley Hospital for rehabilitation.[13] T's victim impact statement, dated 24 April 2019, sets out the adverse effects the injuries have had on him and his immediate family. They include:[14]
(a)poor short‑term memory;
(b)disruption to his senses of taste and smell;
(c)chronic headaches;
(d)the medical suspension of his driver's licence;
(e)inability to walk long distances;
(f)inability to enjoy the company of large groups of family and friends;
(g)sensitivity to loud noise; and
(h)that he is now subject to a regime of regular medical check‑ups and medication.
[13] ts 9.
[14] ts 26.
The appellant's personal circumstances
As we have said, the appellant was 31 years of age at the time of the offence. He had a happy childhood, which was described by Ms Cinzia Zuin in a psychological report dated 29 March 2019 as being reasonably stable, secure and devoid of abuse.[15] He completed year 12. After completing high school, he worked in mostly labouring positions, although in recent times, citing a back injury, he has been unemployed.[16]
[15] Psychological report, page 2; ts 25.
[16] Psychological report, page 3; ts 25.
There is evidence that the appellant has epilepsy and has suffered seizures since being remanded in custody, for which he is being treated.[17]
[17] Psychological report, page 3; ts 13.
The appellant has a history of methylamphetamine and alcohol abuse, which he has a tendency to minimise.[18]
[18] Psychological report, page 4; ts 25.
A personality and diagnostic assessment undertaken by Ms Zuin suggested the presence of narcissistic personality traits. Test findings also suggested that the appellant is acutely paranoid with irrational thoughts, is emotionally detached, and has difficulty establishing personal relationships.[19] According to Ms Zuin, he exhibits pro‑violence attitudes and beliefs, and has limited insight regarding his violent behaviour. In Ms Zuin's opinion, the appellant is at a high risk of violent reoffending.[20]
[19] Psychological report, page 4.
[20] Psychological report, page 6.
The appellant has a lengthy criminal history, including for offences of violence. He has convictions in the Magistrates Court for assault occasioning bodily harm in 2012 and 2016, common assault in 2016, and assaulting a public officer in 2014.
The sentencing judge's approach
The sentencing judge took into account the following as mitigating factors:
(a)the appellant's pleas of guilty, for which the appellant was given a 20% reduction pursuant to s 9AA of the Sentencing Act 1995 (WA);[21]
(b)the appellant's cooperation with police 'in the sense of advising them of exactly what had taken place';[22] and
(c)the appellant's regret and remorse as expressed to the court through defence counsel.[23]
[21] ts 23, 26.
[22] ts 26.
[23] ts 26.
His Honour characterised the appellant's overall behaviour as 'extremely violent', and said that the appellant had subjected the victims to 'a terrifying ordeal'.[24] His Honour referred to the persistent nature of the assault on A, and to the physical and psychological consequences the offending has had on T.[25]
[24] ts 26.
[25] ts 26 - 27.
His Honour pointed out to the appellant that his assault on T had the potential to result in T's death.[26]
[26] ts 25.
His Honour referred to a pre‑sentence report and the report written by Ms Zuin. He noted that defence counsel had urged him to view some of the comments made by the appellant in the pre‑sentence report with some caution because of difficulties counsel said the appellant had expressing himself.[27]
[27] ts 25.
His Honour acknowledged that the offences occurred over a relatively brief period of time, but involved two victims in two separate attacks.[28]
[28] ts 27.
The learned sentencing judge said that he had reduced the individual sentences for totality reasons.[29]
[29] ts 27.
General appellate principles
The general sentencing principles applicable to this appeal are well known and do not need to be repeated. They were recently described in Kabambi v The State of Western Australia.[30]
[30] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Disposition
In his written submissions, the appellant expressly conceded that neither of the individual sentences that were imposed upon him was manifestly excessive, but he asserted that the accumulation of the two terms of imprisonment resulted in a total effective sentence which infringed the first limb of the totality principle. In support of his submissions, the appellant pointed to a number of cases which he asserted dealt with significantly more serious offending, some of which were imposed after trial, that resulted in similar or lower sentences to those imposed upon him.
The appellant was convicted of aggravated offences of assault occasioning bodily harm and grievous bodily harm, which attract the maximum penalties referred to in [1] of these reasons.
Having regard to their circumstances, which we will not repeat, each offence was plainly a serious offence of its type. The appellant's actions were borne out of anger and were completely unjustified. The offences were committed in an ordinary suburban street, in the view of householders. Both victims were vulnerable. A was no physical match for the appellant, and T was much older than him. The attack on A was brutal, sustained and merciless. The appellant punched her to the head and face. He kicked her when she fell to the ground. After despatching T, he resumed his attack on A, hitting her with the wooden implement to the ribs, intending to break them. To the appellant's knowledge, A may have been pregnant.
While it is true that the offence committed against T involved a single punch, the punch was delivered to T's face with such force as to cause facial fractures and immediately render him unconscious. It cannot be overlooked that T had acted to protect A by attempting to prevent the appellant's continuing assault upon her. Instead of desisting in his attack upon A, the appellant escalated the situation and punched T. The consequences to T, both physical and psychological, have been very significant. The appellant's offending behaviour could have caused even more serious harm to the victims than, in fact, occurred.
Apart from the pleas of guilty, there was little by way of mitigation. The appellant's personal circumstances do not assist him. He has a record of violence which, while not aggravating the current offences, increases the need to impose a sentence that properly reflects the sentencing objectives of personal deterrence and public protection. The evidence before the sentencing judge indicated that the appellant has disturbing attitudes and beliefs about violence, and has limited insight into his offending behaviour.
We have considered the cases cited by the appellant, including Trompler v The State of Western Australia;[31] Mercanti v The State of Western Australia;[32] Hansen v The State of Western Australia;[33] The State of Western Australia v Ghilardi;[34] Lawrence v The State of Western Australia;[35] Bowe v The State of Western Australia;[36] Baker v The State of Western Australia[37] and Merlo v The State of Western Australia.[38] It is unnecessary to examine these cases in detail. The varying outcomes in these cases reflect the variable circumstances in which violent offences of the kind committed by the appellant can be committed, and of the offenders who commit them. Allowing for these variations, the cases cited by the appellant do not indicate that the total effective sentence imposed in the present case infringed the first limb of the totality principle.
[31] Trompler v The State of Western Australia [2008] WASCA 265.
[32] Mercanti v The State of Western Australia [2009] WASCA 109.
[33] Hansen v The State of Western Australia [2014] WASCA 229.
[34] The State of Western Australia v Ghilardi [2015] WASCA 61.
[35] Lawrence v The State of Western Australia [2015] WASCA 187.
[36] Bowe v The State of Western Australia [2017] WASCA 166.
[37] Baker v The State of Western Australia [2018] WASCA 15.
[38] Merlo v The State of Western Australia [2018] WASCA 71.
Although the two offences occurred in the one incident, they were nevertheless separate and involved two victims, the second of whom was acting as a Good Samaritan. In our opinion, total or partial concurrency of the individual sentences imposed by his Honour, as submitted by the appellant, would not have properly reflected the appellant's overall criminality.
In our opinion, the total effective sentence of 6 years 6 months' imprisonment bore a proper relationship to the overall criminality involved in the offences, viewed in their entirety, and having regard to the circumstances of the case, including those referable to the appellant personally. The outcome was not unreasonable or plainly unjust. The total effective sentence imposed by the sentencing judge was entirely appropriate, having regard to all of the relevant circumstances and all of the relevant sentencing factors. The ground has no reasonable prospect of succeeding.
Orders
The orders that we would make are:
1.Leave to appeal is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DT
Associate to the Honourable Justice Mazza1 NOVEMBER 2019
5
9
1