Houghton v The State of Western Australia

[2005] WASCA 216

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   HOUGHTON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 216

CORAM:   STEYTLER P

ROBERTS-SMITH JA
MURRAY AJA

HEARD:   1 NOVEMBER 2005

DELIVERED          :   1 NOVEMBER 2005

FILE NO/S:   CCA 8 of 2005

BETWEEN:   RONALD HOUGHTON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :HEALY DCJ

File No  :IND 1109 of 2001

Catchwords:

Criminal law and procedure - Appeal against sentence - Whether manifestly excessive - Failure to determine factual basis upon which sentence imposed - Turns on own facts

Legislation:

Sentencing Legislation Amendment and Repeal Act 2003 (WA) cl 2, Sch 1

Result:

Appeal allowed

Category:    D

Representation:

Counsel:

Appellant:     Mr R D Young

Respondent:     Mr K P Bates & Ms S Markham

Solicitors:

Appellant:     Gunning Young

Respondent:     State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Bockfuss v The Queen, unreported; CCA SCt of WA; Library No 950063; 22 February 1995

Cheung v The Queen (2001) 209 CLR 1

Dadswell v The Queen [2003] WASCA 212

Dinsdale v The Queen (2000) 202 CLR 321

Houghton v The Queen (2004) 28 WAR 399

Isaacs v The Queen (1997) 41 NSWLR 374

Lowndes v The Queen (1999) 195 CLR 605

R v Konzani [2005] EWCA Crim 706

R v Mwai [1995] 3 NZLR 14

The State of Western Australia v Strawbridge [2005] WASCA 201

1. STEYTLER P:  This is an appeal against the sentence imposed upon the appellant arising out of his conviction on 10 September 2004 for an offence of unlawfully doing grievous bodily harm.  The offence was constituted by the fact that, during 1999, the appellant, who knew that he had contracted the HIV virus, infected the complainant with that virus by having unprotected sex with her when she did not know that he had contracted it.  At his trial, the appellant raised the defence that he had an honest and reasonable, but mistaken, belief that the virus could not be transmitted if no bodily fluid was exchanged and that, by withdrawing before ejaculation, he could avoid an exchange of that kind.  By its verdict, the jury rejected that defence.

2. The appellant raises one ground of appeal against the sentence imposed upon him on 16 November 2004.  It is that the sentencing Judge erred in that the sentence of 4 years and 8 months' imprisonment imposed upon the appellant was manifestly excessive having regard to the circumstances of the offence.  The ground is supported by two particulars, only one of which need be mentioned. It is that the learned sentencing Judge failed to determine the factual basis upon which the appellant was to be sentenced, in that he made no finding on the question whether or not the verdict was to be approached upon the basis that the appellant had held an honest, but unreasonable, mistaken belief or upon the basis that he did not hold the belief which he claimed to have had at all.  His Honour, said no more, in this respect, than that it was plain from the verdict of the jury that they had accepted that the prosecution had proved that the appellant did not have an honest and reasonable but mistaken belief that he could not transmit the virus if he withdrew before ejaculation.

3. It was undoubtedly necessary for the sentencing Judge, in order to decide what was the appropriate sentence to be imposed, to form his own conclusion on the question of whether or not the belief which the appellant claimed to have held was honestly held by him, albeit unreasonably so, or not held by him at all. It seems to me that the appellant is right in his contention that the sentencing Judge did not, during the course of his reasoning, reach any conclusion on this issue and, given that the sentence of imprisonment imposed by him was one of seven years' imprisonment (which is close to the maximum which could have been imposed, allowing for the provisions of cl 2 of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA)), it is important for an appellate court, in order to assess the appropriateness of the sentence imposed, to know what conclusion was arrived at in that respect and, hence, upon what basis the appellant was sentenced.

1. It consequently seems to me, and the respondent has quite properly conceded, that the appeal must be allowed upon this ground and that the matter should be remitted to the sentencing Judge in order to enable him to express a conclusion on that issue.

2. I would consequently give leave to appeal, allow the appeal on this basis, quash the sentence imposed, and remit the matter to the sentencing Judge for reconsideration at the earliest possible opportunity.

3. ROBERTS-SMITH JA:  I agree and have nothing to add.

4. MURRAY AJA:  I agree also.