Holden v The State of Western Australia
[2011] WASCA 238
•3 NOVEMBER 2011
HOLDEN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 238
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 238 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:56/2011 | 15 SEPTEMBER 2011 | |
| Coram: | McLURE P BUSS JA MAZZA J | 3/11/11 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | BRYCE LESLIE HOLDEN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Grievous bodily harm by 'glassing' Whether sentence manifestly excessive Turns on own facts |
Legislation: | Criminal Code (WA), s 297(1) |
Case References: | Clements v The State of Western Australia [2006] WASCA 69 Lawrie v The State of Western Australia [2009] WASCA 45 Mercanti v The State of Western Australia [2009] WASCA 109 Powell v Tickner [2010] WASCA 224 Steel v The State of Western Australia [2010] WASCA 118 Trompler v The State of Western Australia [2008] WASCA 265 Ward v The State of Western Australia [No 2] [2010] WASCA 208 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HOLDEN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 238 CORAM : McLURE P
- BUSS JA
MAZZA J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : IND 91 of 2011
Catchwords:
Criminal law - Appeal against sentence - Grievous bodily harm by 'glassing' - Whether sentence manifestly excessive - Turns on own facts
(Page 2)
Legislation:
Criminal Code (WA), s 297(1)
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters & Ms H M Cooper
Respondent : Mr J McGrath
Solicitors:
Appellant : Justine Fisher
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Clements v The State of Western Australia [2006] WASCA 69
Lawrie v The State of Western Australia [2009] WASCA 45
Mercanti v The State of Western Australia [2009] WASCA 109
Powell v Tickner [2010] WASCA 224
Steel v The State of Western Australia [2010] WASCA 118
Trompler v The State of Western Australia [2008] WASCA 265
Ward v The State of Western Australia [No 2] [2010] WASCA 208
(Page 3)
1 McLURE P: This is an appeal against sentence. The appellant was convicted on his fast-track plea of guilty of one count of causing grievous bodily harm contrary to s 297(1) of the Criminal Code (WA). On 18 March 2011 he was sentenced by Stevenson DCJ to 4 years and 3 months' imprisonment and made eligible for parole.
2 The appellant claims the sentencing judge erred:
(1) by imposing a sentence that is manifestly excessive;
(2) in finding that the appellant struck the complainant in the face deliberately with a glass; and
(3) in characterising the offence as being at the upper end of seriousness.
3 Leave to appeal was granted on ground 1. The application for leave on grounds 2 and 3 was referred to the hearing of the appeal.
4 The facts of the offence are as follows. In the early hours of Sunday 8 August 2010 the appellant was at a nightclub in company with others, having commenced celebrating his 21st birthday the previous Saturday evening. The sentencing judge continued:
[F]or no apparent reason, you stepped from your group forward and swung your arm deliberately at the victim. You were holding a glass at the time, and you struck him in the head and the face and caused him serious physical injury.
He was completely unknown to you at the time, and he had had no communication or interaction with you or the people you were with. It was a random, senseless act of violence …
…
The force used by you was obviously considerable and that is apparent from the injuries you caused to the victim. You swung your fist in a way to impact upon the victim's head which is, obviously, a very vulnerable part of the body of any person.
5 The glass held by the appellant shattered on impact. The complainant suffered lacerations to his left cheek, neck, eyelid and to the temporal artery and jugular veins in his neck. He suffered significant blood loss and required a blood transfusion. The complainant underwent emergency surgery. He received over 80 stitches to his face and neck, running the full length of his face to his jugular vein. The complainant sustained serious nerve damage to the left side of his face and ligament
(Page 4)
- damage to his eyelid, causing it to droop. He has been left with extensive facial scarring. Further surgical intervention will be required. The extent of the physical and psychological damage suffered by the complainant are detailed in his victim impact statement.
6 At the time of the offence the appellant was extremely intoxicated and had used methylamphetamine during the evening. It was said the appellant had no recollection of the incident.
7 As previously noted, the appellant had just turned 21 at the time of the offence. He had a prior criminal record. On 17 September 2010 he was convicted in the Magistrates Court of a number of offences committed on 5 March 2010, including assault occasioning bodily harm, common assault, discharging a firearm to cause fear and being armed or pretending to be armed in a way that may cause fear. He received a global fine of $3,000. Other prior offences include reckless driving, common assault and disorderly behaviour in public. The current offence involved a very significant escalation in the seriousness of the appellant's offending.
8 The sentencing judge found that the appellant was remorseful, had genuine insight in relation to his conduct and a genuine desire to reform himself. I propose to commence with the question whether the sentencing judge made any factual error.
Ground 2
9 In sentencing submissions advanced on behalf of the appellant, it was contended that it was not open to the sentencing judge to find beyond reasonable doubt that it was the appellant's intention to use the glass as a weapon. The prosecutor did not clearly and unequivocally challenge the accuracy of that proposition nor seek a trial of the issue. It is apparent from the care with which the sentencing judge crafted his reasons that he did not find that the appellant intended to use the glass as a weapon. He found that the appellant swung his arm deliberately at the complainant with the objective consequence that he used the glass he was holding at the time as a weapon (ts 70, 74). The appellant was sentenced on that basis. There is no merit in ground 2.
Grounds 1 and 3
10 It is more appropriate to treat ground 3, which involves an evaluative judgment not a finding of fact, as a particular of ground 1. The appellant must establish that the sentencing judge made an error, express or implied,
(Page 5)
- in the exercise of the sentencing discretion. Manifest excess relies on an implication of error. The appellant does not challenge the type of sentence imposed. Rather he contends the sentence of 4 years and 3 months' imprisonment is too long. In considering whether a sentence is manifestly excessive, regard is had to the maximum penalty for the offence, the standards of sentencing customarily imposed for offences of that type, the seriousness of the circumstances of the offence and the offender's personal antecedents.
11 The maximum penalty for the offence of causing grievous bodily harm is imprisonment for 10 years. As noted in Powell v Tickner [2010] WASCA 224, the use of a glass to cause injury is not itself a discrete offence. It can be a circumstance of a wide variety of different offences, the seriousness and maximum penalty for which vary greatly [12]. For example, the appellant in Powell v Tickner was convicted of unlawful wounding, the maximum penalty for which is 5 years' imprisonment.
12 In Powell v Tickner Buss JA undertook a survey of sentences imposed in this State for 'glassing' injuries [57] - [80]. I do not propose to repeat the details here. It is sufficient for present purposes to note that the sentence of 4 years and 3 months' imprisonment is very significantly higher than any sentence previously imposed for such an injury. It is apparent that the sentencing judge's assessment as to where the circumstances of this offence fell on the scale of seriousness was by reference to other cases of glassing. That assessment was clearly open notwithstanding the absence of a finding that the appellant intended to use the glass as a weapon. That is only one relevant circumstance. The seriousness of the appellant's offending is aggravated by the fact that it was a wholly random, unprovoked, violent attack on an innocent, unsuspecting passer-by causing life-threatening injuries.
13 Moreover, when considering sentences customarily imposed it is appropriate to widen the survey to consider penalties imposed for causing grievous bodily harm generally. As has been noted more than once, sentences of imprisonment for the offence of grievous bodily harm range between 8 months to around 5 years and 4 months: Ward v The State of Western Australia [No 2] [2010] WASCA 208. However, it does not follow that because the sentence imposed falls somewhere within that range, it cannot be manifestly excessive. The assessment is much more nuanced and time consuming. Regard is had to sentences customarily imposed in order to ensure broad consistency in the sentencing of offenders who have committed similar types of offences. Broad
(Page 6)
- consistency is assessed by reference to all relevant sentencing considerations.
14 I have, in addition to the glassing cases, reviewed other cases relating to grievous bodily harm, with particular reference to those most comparable, including: Steel v The State of Western Australia [2010] WASCA 118; Ward v The State of Western Australia [No 2]; Trompler v The State of Western Australia [2008] WASCA 265; Clements v The State of Western Australia [2006] WASCA 69; Mercanti v The State of Western Australia [2009] WASCA 109; and Lawrie v The State of Western Australia [2009] WASCA 45. That survey satisfies me that the sentence of 4 years and 3 months' imprisonment imposed on the appellant is well outside the range of sentences imposed in comparable cases and that, having regard to all relevant sentencing considerations, is manifestly excessive.
15 This court has the necessary materials to re-sentence the appellant. In mitigation is his fast-track plea of guilty and his youth, remorse and insight into the cause of his offending. Although he has relevant prior convictions they were dealt with by way of fine. However, the current offence together with the circumstances of its commission and its consequences are very serious and require a sentence towards the higher end of the range. I would impose a term of 3 years' imprisonment.
16 For these reasons, I would allow the appeal and set aside the sentence imposed by the sentencing judge. In lieu thereof, I would impose a sentence of 3 years' imprisonment to commence from 25 August 2010. The appellant will be eligible for parole after serving 18 months' imprisonment.
17 BUSS JA: I agree with McLure P.
18 MAZZA J: I agree with McLure P.
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