JBD v The State of Western Australia - [2013] WASCA 180

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: JBD -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 180

CORAM: BUSS JA
HALL J

HEARD: 2 JULY 2013

DELIVERED : 14 AUGUST 2013

FILE NO/S: CACR 23 of 2013

BETWEEN: JBD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'NEAL DCJ
File No  :IND 571 of 2012

Catchwords:

Criminal law - Application for leave to appeal against sentence - Juvenile offender - Grievous bodily harm - Assault causing bodily harm - Whether sentence of immediate imprisonment manifestly excessive - Whether error in not suspending sentence

Legislation:

Young Offenders Act 1994 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms A S Rogers
Respondent: No appearance

Solicitors:

Appellant: Abigail Rogers
Respondent: Director of Public Prosecutions (WA)

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

Cartwright v The State of Western Australia [2010] WASCA 4
Chan (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hobby v The State of Western Australia [2011] WASCA 197
Holden v The State of Western Australia [2009] WASCA 50
JA (a child) v The State of Western Australia [2008] WASCA 70
JTP v The State of Western Australia [2010] WASCA 191
LAM v The State of Western Australia [2012] WASCA 246
Mercanti v The State of Western Australia [2009] WASCA 109
The State of Western Australia v A (A child) [2007] WASCA 115; (2007) 172 A Crim R 51
The State of Western Australia v BLN [2009] WASCA 88
The State of Western Australia v Taylor [2012] WASCA 233
Wilson v The State of Western Australia [2010] WASCA 82

BUSS JA: I agree with Hall J.
HALL J: This is an application for leave to appeal against sentence.
On 18 January 2013 the appellant was sentenced to 12 months' imprisonment for an offence of unlawfully doing grievous bodily harm to another contrary to s 297 Criminal Code (WA) and 8 month's imprisonment for an offence of assault causing bodily harm contrary to s 317(1) Criminal Code. The second sentence was made cumulative, making the total effective sentence one of 20 months' imprisonment with eligibility for parole.
There is one proposed ground of appeal. It is that the sentencing judge was in error in concluding that a suspended sentence was not appropriate. It is submitted that a number of factors justified the imposition of a suspended sentence. Those factors are said to be the appellant's youth, his limited prior record, his family background, his employment history, his relatively early plea of guilty, his cooperation with the police, his role in the offences and his efforts towards rehabilitation.

Facts

The facts of the offending were not in dispute.
At around 2.00 am on Sunday, 30 October 2011 a maxi taxi carrying the appellant, a co‑offender and a number of their friends stopped in Barrack Lane, Mandurah. The appellant had been behaving aggressively in the taxi, threatening to kill the driver and banging on the window.
At around the same time Mr Shaun Roe, his ex‑wife, Donna Shaw, and their son, Levi Roe, were trying to make their way home after a night out. They had been unsuccessful in obtaining a taxi. When they saw the appellant's taxi pull up Shaun Roe approached and offered to pay the fare of the people in the taxi if he and his family could then use it to get home. One of the girls who was in the taxi was rude to Mr Roe and verbally abused him. The appellant also joined in the abuse. This caused Mr Roe to back off, telling the occupants of the taxi, 'It's cool, it's okay, no worries'.
At about the same time the appellant and the co‑offender got out of the taxi and walked towards Levi Roe shouting abuse at him. Levi Roe tried to calm the situation but the co‑offender removed his shirt and then hit Levi Roe, knocking him to the ground. The appellant immediately

joined in with blows. Levi Roe was momentarily knocked unconscious. His mother, who was close by, was terrified and began screaming. The attack upon Levi Roe constituted the offence of assault causing bodily harm.

Shaun Roe heard the yelling, saw his son being attacked and tried to help by pulling off one of the attackers, probably the appellant. This caused both the appellant and the co‑offender to turn on Shaun Roe.
An independent witness standing on a balcony close by saw both the appellant and the co‑offender punching Shaun Roe and then kicking him after he fell to the ground. The appellant was then dragged back into the taxi by his girlfriend. The co‑offender continued to attack Shaun Roe, kicking him to the stomach, chest and back area before stomping on him. During this attack Shaun Roe was on his knees, holding his hands up and pleading for the co‑offender to stop. The attack upon Shaun Roe constituted the offence of doing grievous bodily harm.
Levi Roe suffered a swollen and bruised left eye, abrasions to his lip and abrasions to his elbows. The injury to his eye was serious enough to impair his vision for some days causing difficulty at work.
Shaun Roe's injuries were more serious. He incurred a fractured tibia of the left knee. The injury was likely to predispose him to long term osteoarthritis with increasing pain and decreasing mobility. He continues to walk with a limp. It was probable that he would require a total knee replacement. He also received multiple bruises and abrasions and was psychologically shaken.

Personal circumstances

The appellant was just over 17 years old at the time of the offences and was 18 years old when he came to be sentenced. His parents separated when he was a year old and he had had no further contact with his biological father. His mother had remarried when the appellant was about 7 years old. Despite some past difficulties with his step‑father they enjoyed a good relationship at the time of sentencing. He was said to have positive family supports and was continuing to live at home with his parents.
The appellant had finished school in Year 10 and started pre‑apprenticeship training. He had since been employed in a variety of jobs. He had recently completed a Certificate in Outdoor Recreational Studies and was enrolled to complete a third level of that programme.
The sentencing judge noted that a feature of the offending was the extent to which the appellant was intoxicated by alcohol. When interviewed by the police the appellant said that he had had violent episodes previously when drinking. Despite knowing of this capacity the appellant had drunk heavily prior to the offences. This included nine cans or bottles of beer and a quantity of vodka punch. After being charged with these offences the appellant had sought counselling for alcohol issues. However, this had involved only three one hour sessions.
The appellant had a record of prior offending. However, it was mostly limited to traffic offences. There was, however, an offence of driving under the influence of alcohol and also a conviction for stealing a motor vehicle in December 2011.

Sentencing Remarks

The sentencing judge found that the co‑offender was the more aggressive of the two attackers. He also found that it was probable that it was the co‑offender who had fractured Shaun Roe's knee. However, he considered that an injury of the kind suffered by Shaun Roe was a foreseeable result of the common purpose which both offenders had in carrying out the attacks.
The sentencing judge referred to a number of aggravating features of the offending that he considered were established beyond reasonable doubt. First, that the attacks were entirely unprovoked and senseless. Neither victim had given any offence and both tried to avoid confrontation. Secondly, that this was a joint attack, the two offenders joining together to assault each victim individually and to prevent Shaun Roe from coming to his son's assistance. Thirdly, the attacks were sustained and were done in a public place, including in the presence of Ms Shaw. They continued despite the efforts of a number of people to stop the assaults. His Honour found that both offenders were deliberately trying to inflict injury on Shaun Roe. Fourthly, the attack upon Shaun Roe resulted in very serious consequences, including likely long term disability.
The sentencing judge acknowledged that the appellant had pleaded guilty and that was a significant factor in mitigation. It was accepted by the State that pleas of guilty were made at the first reasonable opportunity. In these circumstances, his Honour allowed a reduction of 25% from the sentence that he would otherwise have imposed: s 9AA Sentencing Act 1995 (WA). His Honour also recognised that the appellant had expressed a degree of remorse and had been cooperative with the police, though this was limited to telling the police that he could remember little about what had occurred.
His Honour referred to the fact that the appellant did not have a record of violent offending, though given his record of other offending he could not be considered to be a person of prior good character. He also accepted that the appellant had a reasonable work history.
In respect of both the appellant and the co‑offender, his Honour referred to youth being an important mitigating factor. His Honour correctly recognised that youth ordinarily holds out a greater prospect of reform. He also noted that even in cases where no other sentence but one of imprisonment is appropriate, youth may justify a lower sentence than would otherwise be warranted. These statements reflect both statutory requirements when sentencing young offenders and well known sentencing principles: See s 6, s 7 and s 46 of the Young Offenders Act 1994 (WA), The State of Western Australia v A (A child) [2007] WASCA 115; (2007) 172 A Crim R 51 [16] (Steytler P, McLure JA & Miller AJA).
The sentencing judge concluded that whilst the appellant had taken a somewhat blasé approach to drug and alcohol counselling, he had reasonable prospects of rehabilitation. That was a factor that his Honour said must be given particular weight in sentencing. His Honour noted that it was not appropriate to impose a custodial sentence unless he was satisfied that there was no other way to dispose of the matter and having regard to the significance of rehabilitation in respect of a youthful offender.
His Honour concluded that in view of the seriousness of the offences, the random and senseless nature of the attacks, the consequences for the victims and the need to send a strong message of deterrence, a term of imprisonment was the only appropriate disposition. His Honour reduced the sentences that he would otherwise have imposed on the appellant having regard to the discount for the plea of guilty and to take into account totality. The total effective sentence imposed on the appellant was 20 months' imprisonment. That imposed on the co‑offender was 3 years' imprisonment. This reflected both their different ages, roles and the fact that the co‑offender was convicted after a trial.
His Honour gave specific consideration to whether the appellant's sentence should be suspended. He concluded that the seriousness of the offending did not justify suspending the sentence of imprisonment.

Merit of the proposed ground

The appellant's argument is that the sentencing judge erred by failing to suspend the sentence of imprisonment. The implication is that the sentencing judge must have failed to properly exercise the sentencing discretion because a suspended sentence was not imposed. In effect, the ground seeks to establish that the imposition of a sentence of imprisonment to be immediately served was not properly open to the sentencing judge having regard to all of the relevant facts and circumstances. In essence this is a claim that the sentence imposed was manifestly excessive.
The general principles applicable to appeals against sentence are conveniently summarised in Wilson v The State of Western Australia [2010] WASCA 82 [2]. To determine whether a sentence is manifestly excessive it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentences customarily observed in respect to the crime, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342.
The maximum penalty for the offence of doing grievous bodily harm (other than in circumstances of aggravation or in prescribed circumstances) is 10 years: s 297(1) Criminal Code. The maximum penalty for the offence of assault causing bodily harm (other than in circumstances of aggravation) is 7 years: s 317(1)(a) Criminal Code.
It is not contended that the length of the individual sentences is in error. No such claim could be reasonably made having regard to the standards of sentencing customarily observed for offences of these types. In this regard, for the offence of doing grievous bodily harm see Mercanti v The State of Western Australia [2009] WASCA 109; The State of Western Australia v BLN [2009] WASCA 88; Hobby v The State of Western Australia [2011] WASCA 197; The State of Western Australia v Taylor [2012] WASCA 233. The range of sentences customarily imposed on non‑juveniles for this offence range between 8 months and 5 years 4 months: LAM v The State of Western Australia [2012] WASCA 246 [26] (McLure P). In regard to the offence of assault causing bodily harm see Holden v The State of Western Australia [2009] WASCA 50.
In this case the appellant was required to be sentenced in accordance with the principles under the Young Offenders Act. Those principles were summarised in The State of Western Australia v A [16]. They require that a young person only be given a custodial sentence as a last resort and, if required, it only be for as short a time as necessary. The Act places significant emphasis on the sentencing objective of rehabilitation.
A court must not impose a term of immediate imprisonment unless satisfied that it is not appropriate to impose any lesser penalty, including a term of suspended imprisonment. The sentencing judge must be positively satisfied that it is not appropriate to suspend a term of imprisonment: see s 39(2) of the Sentencing Act and Cartwright v The State of Western Australia [2010] WASCA 4.
In considering whether a suspended sentence is appropriate it is necessary to consider all factors relevant to sentence, not merely those that relate to prospects of rehabilitation: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. Whilst rehabilitation is an important factor in regard to young offenders, this does not mean that other factors can be ignored.
There can be no doubt that in this case the sentencing judge took into account all of the relevant facts and circumstances. He specifically considered those facts and circumstances in regards to whether the sentence of imprisonment could be suspended. Whilst there were a number of factors personal to the appellant which could be seen as favouring a suspended sentence those factors could not be viewed in isolation. The seriousness of the circumstances of the offending was a significant and important factor.
Although personal and general deterrence will generally have a lesser role in the sentencing of young offenders, they may be more significant factors where, in a particular case, the rehabilitation of the offender appears unlikely, the offending is serious, or the character and personal circumstances of the offender justify it: JA (a child) v The State of Western Australia [2008] WASCA 70 [29] ‑ [30] (Wheeler JA, Martin CJ & Miller JA agreeing). The seriousness of an offence and the circumstances of its commission can require the imposition of an immediate custodial term upon a young offender in an appropriate case: JTP v The State of Western Australia [2010] WASCA 191 [13] ‑ [14] (McLure P, Buss & Mazza JJA agreeing). A point will be reached where the seriousness of a crime will override the mitigating factor of being a juvenile of prior good character: LAM [28].
In the present case the sentencing judge gave significant weight to the seriousness of the circumstances of the offending. In my view, he was correct to do so. He rightly described the offences as acts of senseless and random violence. He said that the conduct of the offenders was shocking not only to the victims and the witnesses who were present but to anyone with knowledge of exactly what occurred. The offences were aggravated by being committed in company and at night on victims who offered no provocation or resistance. Serious injuries were inflicted, with long‑term consequences for one of the victims. These conclusions applied with equal force to the appellant as the co‑offender notwithstanding that the co‑offender persisted with the assault on Shaun Roe for longer.
His Honour was correct to conclude that the circumstances of the offending made a suspended sentence inappropriate. The youth of the appellant and his prospects of rehabilitation were appropriately reflected in the length of the terms imposed.
In my view, the ground of appeal is not reasonably arguable. Accordingly, leave to appeal should be refused and the appeal dismissed.