Kaokula v The State of Western Australia
[2016] WASCA 198
•28 NOVEMBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KAOKULA -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 198
CORAM: MAZZA JA
MITCHELL JA
BEECH J
HEARD: 2 NOVEMBER 2016
DELIVERED : 28 NOVEMBER 2016
FILE NO/S: CACR 18 of 2016
CACR 19 of 2016
BETWEEN: KASPAR KAOKULA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 20 of 2016
CACR 21 of 2016
BETWEEN :KULDAR KAOKULA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
File No :IND 800 of 2015
Catchwords:
Criminal law - Appeals against conviction - Act likely to endanger life, health or safety with intent to harm - Where appellants poured petrol onto occupied car and unsuccessfully attempted to ignite it - Whether verdicts supported by the evidence
Criminal law - Appeals against sentence - Whether sentences of 6 years 2 months' imprisonment and 5 years 8 months' imprisonment manifestly excessive
Legislation:
Criminal Code (WA), s 304(2)(b)
Result:
Leave to appeal granted
Appeals dismissed
Category: B
Representation:
CACR 18 of 2016
CACR 19 of 2016
Counsel:
Appellant: Mr D N Ryan
Respondent: Mr L M Fox
Solicitors:
Appellant: Chelmsford Legal
Respondent: Director of Public Prosecutions (WA)
CACR 20 of 2016
CACR 21 of 2016
Counsel:
Appellant: Mr D N Ryan
Respondent: Mr L M Fox
Solicitors:
Appellant: Chelmsford Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Beard v The State of Western Australia [2015] WASCA 74
Bibovic v The State of Western Australia [2016] WASCA 22
Blurton v The State of Western Australia [2014] WASCA 61
Boughey v The Queen (1986) 161 CLR 10
Delavale v The State of Western Australia [2009] WASCA 111
EAGD v The State of Western Australia [No 2] [2014] WASCA 68
Hinkley v The State of Western Australia [2014] WASCA 122
Lawrence v The State of Western Australia [2015] WASCA 187
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen (1994) 181 CLR 487
Mansell v The State of Western Australia [No 6] [2013] WASCA 120
Penny v The State of Western Australia [2016] WASCA 52
R v Pearce [1967] 1 QB 150
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Starr v The State of Western Australia [2011] WASCA 170
The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414
Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91
REASONS OF THE COURT:
Introduction
At about 4.15 pm on 12 February 2014, the complainant left his home to drive to Mount Barker to teach a martial arts class. His 3‑year‑old daughter was harnessed in a child's seat in the rear of his car.
The appellants, Kaspar and Kuldar Kaokula, stopped the complainant's car as it drove along a gravel road on the way to Mount Barker. Kasper and Kuldar are brothers from Estonia. They were on a working holiday in Australia, and had just completed renovation work on a fruit farm near Mount Barker. The complainant, who had come to Australia from Afghanistan in 2001, worked as a supervisor of fruit pickers at the farm. Kaspar's girlfriend was one of the fruit-pickers. Kaspar felt that the complainant had treated his girlfriend badly. The complainant had refused to employ her at an hourly rate of pay (which was regarded by pickers as preferable to being paid for the volume of fruit harvested). The State alleged that the brothers planned to exact revenge before they left Mount Barker.
The effect of the complainant's evidence was as follows. After a vehicle driving ahead of him was allowed past, the complainant drove up to the appellants' vehicle, which was blocking the road, and recognised Kaspar. The complainant asked Kaspar whether he had hit a kangaroo. The complainant asked whether he could help. Kaspar said 'I will show you now', and turned around and picked up a red plastic 20 litre container with a black lid. Kaspar opened the lid and poured about a litre of petrol onto the windscreen and bonnet of the complainant's car. The complainant asked Kaspar what was wrong with him, and told him to calm down and talk. Kaspar poured about another litre of petrol onto the roof of the complainant's car. Some of the petrol came into the cabin through the driver's window, which was wound three quarters down, and went into the complainant's face.
The complainant said that Kuldar, who had been standing with his arms crossed, then lifted up a cigarette lighter and flicked it on. The complainant saw the flame come out from the lighter, which was blown out by the wind. As the complainant started to drive away, he saw Kaspar with a cigarette lighter in his left hand. The complainant saw the lighter spark but did not see a flame. He accelerated away. The complainant was pursued by the appellants' vehicle, and sought refuge at the fruit farm. Police were called.
The appellants were indicted on the following charge:
On 12 February 2014 at Denbaker [the appellants], with intent to harm [the complainant], did an act as a result of which the life, health or safety of [the complainant] was, or was likely to be, endangered.
That is an offence against s 304(2)(b) of the Criminal Code (WA).
The appellants pleaded not guilty to the charge. At trial they denied that they threw petrol onto the complainant's car or attempted to set it alight. Another aspect of the defence was that, even if the events described by the complainant did occur, the State had not proven that the complainant's life, health or safety was, or was likely to be, endangered.
Both appellants were convicted of the charge after trial by jury. Kaspar was sentenced to 6 years 2 months' imprisonment. Kuldar was sentenced to 5 years 8 months' imprisonment.
The appellants now appeal against their convictions and sentences. They contend that the verdicts of guilty should be set aside because the evidence did not support the conclusion that the life, health or safety of any person was, or was likely to be, endangered. They do not contend that the evidence failed to support any other element of the charge. They accept that, if the appeal is allowed, then a judgment of conviction of an attempt to commit the offence should be substituted.
The appellants also contend that the sentences imposed on them were manifestly excessive.
For the following reasons, each appeal must be dismissed.
Appeals against conviction
Section 304(2) of the Criminal Code
Section 304(2) of the Criminal Code provides:
If a person, with an intent to harm, omits to do any act that it is the person's duty to do, or does any act, as a result of which -
(a)bodily harm is caused to any person; or
(b)the life, health or safety of any person is or is likely to be endangered,
the person is guilty of a crime and is liable to imprisonment for 20 years.
Section 304(3) defines 'intent to harm' for the purposes of s 304(2) of the Criminal Code. The State relied on a number of limbs of this definition in the present case, including intent to unlawfully cause bodily harm to, and to endanger the life, health or safety of, the complainant. Other elements of the definition of intent to harm, which are not necessarily applicable in this case, include intent to gain a benefit or cause a detriment to a person, and intent to prevent the doing of an act which a person is lawfully entitled to do.
Section 304 was introduced in substantially its current form by pt 5 of the Criminal Code Amendment Act 2004 (WA).[1] It was based on recommendations made in ch 29 of the Murray Review of the Criminal Code,[2] and was a general offence substituted for a number of specific provisions dealing with a diverse range of particular situations. The range of situations dealt with by the replaced provisions, and the issue of food contamination to which the Attorney General referred in his second reading speech, indicate that the provision was intended to apply to a broad range of different factual scenarios.
[1] Subsequent amendments have been to the applicable maximum penalties.
[2] Murray MJ, The Criminal Code: A General Review (1983); see Western Australia, Parliamentary Debates, Legislative Assembly, 3 April 2003, 6158, 6165 (Mr JA McGinty, Attorney General).
It was common ground between the parties in this appeal and at trial that the term 'likely' is used in this provision to mean a substantial or real, and not a remote, chance that the life, health or safety of the complainant would be endangered, whether the chance is above or below 50%. The appellant makes that submission by reference to the decision of the High Court in Boughey v The Queen.[3] In Boughey, the court was concerned with a provision which defined 'culpable homicide' to include homicide caused by an act 'which is commonly known to be likely to cause death or bodily harm'.
[3] Boughey v The Queen (1986) 161 CLR 10, 21.
There is an obvious difference between an act that is likely to cause death or bodily harm and an act that is likely to endanger life, health or safety. The former expression is concerned with the likelihood of a result occurring, while the latter is concerned with a likelihood of a risk or danger to life, health or safety arising. Despite the somewhat different context in which the term 'likely' appears in s 304(2) compared to Boughey, the parties' common submission that the term bears the same meaning may be accepted. The trial judge correctly directed the jury along these lines (ts 451, 468).
What must be 'likely' is that a person's life, health or safety is endangered. A reference to 'endangering' life, health or safety comprehends the potential for, or risk of, death or injury.[4] The term 'safety' itself denotes the absence of risk, rather than the absence of actual harm. The lowest threshold which the State needs to overcome to prove this element of an offence against s 304(2)(b) of the Criminal Code is that, as a result of the accused's act or omission, the safety of a person was likely to be endangered.
[4] See, in the context of s 279(1) of the Criminal Code, Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91 [24].
The phrase 'life, health or safety of any person is or is likely to be endangered' appears in both s 304(1)(b) and s 304(2)(b) of the Criminal Code. Both of those provisions create serious criminal offences punishable by significant periods of imprisonment. Intent to harm is an element only of the offence against s 304(2)(b) of the Criminal Code. That context indicates that the phrase 'life, health or safety of any person is likely to be endangered' is not concerned with trivialities, either as to the nature or level of the risk.
It is neither necessary nor appropriate in this case to attempt to define the outer limits of the operation of s 304, or deal with all of the different factual scenarios in which it might apply. Further, the concept of endangering safety is one which a jury, applying the ordinary meaning of those terms, can readily understand. The question of whether a person's safety is, or is likely to be, endangered so as to give rise to criminal liability under s 304 is a matter for evaluation by the tribunal of fact. It should not be assumed that juries require a judicial gloss on the statutory language of s 304(2)(b), beyond explaining the sense in which 'likely' is employed, in order to perform their function.[5]
[5] See R v Pearce [1967] 1 QB 150, 154 ‑ 155.
In the context of the present case, it was sufficient to show that, as a result of the appellants' acts, it was likely (ie there was a real and not remote possibility) that the complainant's safety would be endangered.
Unreasonable verdicts: general principles
Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) provides that:
The Court of Appeal must allow the appeal if in its opinion:
(a)the verdict of guilty on which the conviction was based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported[.]
The conclusion that a verdict is unreasonable, having regard to the evidence, is not materially different to the conclusion that the verdict is unsafe or unsatisfactory.
In considering this ground, it is necessary for this court to decide whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellants were guilty. In answering that question the court must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence. The court must not disregard or discount the consideration that the jury had the benefit of having seen and heard the witnesses.[6] As the majority noted in M v The Queen:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 ‑ 495). (footnotes omitted)
[6] M v The Queen (1994) 181 CLR 487, 492 ‑ 493.
This court must make its own independent assessment of the sufficiency and quality of the evidence, and determine whether, notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand.[7]
[7] EAGD v The State of Western Australia [No 2] [2014] WASCA 68 [35], citing SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14].
The question for this court is whether the jury must, as distinct from might, have entertained a doubt about the appellants' guilt.[8]
Appellants' submissions
[8] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]; Bibovic v The State of Western Australia [2016] WASCA 22 [34]. See also Mansell v The State of Western Australia[No 6] [2013] WASCA 120 [16] ‑ [19].
The appellants contend that the evidence led at trial did not and could not prove beyond reasonable doubt that the life, health or safety of the complainant was or was likely to be endangered. The appellants make that submission particularly by reference to the evidence of a forensic expert (Dr David DeTata), the evidence of weather and other circumstances at the time of the offence and the evidence of the complainant.
The appellants say that it is clear from Dr DeTata's evidence that the act of pouring petrol on the complainant's car would not, of itself, endanger or be likely to endanger his life, health or safety. The appellants contend that it was necessary for the State to provide evidence that there was a real or substantial chance that, in the circumstances at the relevant time, the car could have caught alight.
The appellants submit that, while Dr DeTata agreed that the complainant's car could have been set alight with a cigarette lighter, his evidence on this point went no higher than a mere possibility. The appellants say that Dr DeTata agreed that on a very windy day there was a real possibility that there will never be a sufficient aggregation of vapour for the petrol to be ignitable. They point to evidence that it was windy on the day of the offence, and say that the effect of the complainant's evidence was that the appellants were never close enough to his car with the cigarette lighters to set the petrol alight. On that basis they submit that the evidence did not support the conclusion that the complainant's life, health or safety was or was likely to be endangered and, as a result, the verdict of guilty on which the conviction is based should be set aside.
The appellants concede that, if their convictions were to be set aside, the evidence was sufficient to prove that each of them attempted to commit an offence against s 304(2)(b) and that this court should convict them of that offence.
Expert evidence
Dr DeTata was the team leader in the forensic science laboratory of ChemCentre. He held a Bachelor of Science, a Master of Forensic Science and a PhD in Chemistry. His qualification to give evidence was not challenged.
Much of Dr DeTata's evidence was directed to the fact, and significance of, petrol not being detected on various samples taken from the scene. That aspect of his evidence is not relevant to the appeal.
Dr DeTata also gave evidence as to the mechanism of fuel burning, and the need for a form of stimulus (such as a match or cigarette lighter) and oxygen (ts 262). In his evidence in chief, he explained:
So an ignitable liquid - what's actually ignited is the fumes, the vapours that come off it. So it's actually possible to light a sample of fuel that's lying on a - for instance, a glass plate by not actually placing the lighter into the fuel. If you place it just above it, it will ignite. So if the ignition source was held at a distance that enabled those vapours to become alight, it would continue to generate vapours and continue to burn until, as I said, the fuel is consumed or oxygen is no longer present (ts 262).
In cross-examination, Dr DeTata accepted that there had to be a 'sufficient concentration of the vapour before it will ignite'. He referred to science about the concentration required, but was not asked to detail what that concentration was (ts 282 ‑ 283). He was asked the following question:
If there is a very windy day, is it fair to say that there's a real possibility that there will never be a sufficient aggregation of vapour together, for it to be ignitable?---That's correct (ts 283).
Dr DeTata accepted that a spark might, but would not necessarily, cause petrol vapour to ignite depending on the 'energy inherent' in the spark and the concentration of petrol vapour in its vicinity (ts 283). The following exchange then occurred:
Is it also right to say that a naked flame doesn't necessarily set petrol vapour alight?---Again, following the same stipulations, yes.
Yes. It's got to do with there being enough petrol vapour and enough temperature?---And - yes. Presence of oxygen, as well. Yes (ts 283).
Dr DeTata accepted that the petrol laying on the bonnet or roof of a car would not itself catch alight, but 'it's the vapour'. When asked whether vapour from a large spread of petrol would disseminate more quickly than petrol in a container, Dr DeTata agreed that surface area impacts the amount of evaporation. He also agreed that wind was going to affect the 'degree of evaporation' and the dissemination of the vapour. Dr DeTata said that he could not give a specific temperature of the flame of burning vapour (ts 284).
Dr DeTata was then asked about the risk of fuel in the tank or engine of the car igniting:
In the circumstances that have been described; windy day, petrol on an outside surface, sparks not igniting it, is it fair to say the chance of the fuel in the car being ignited is remote?---The fuel in the car wouldn't be ignited unless the fuel on the bonnet was ignited (ts 284 ‑ 285).
Dr DeTata went onto explain that, if the petrol on the exterior of the car ignited, material in the cabin could combust if it was hot enough or, more likely, the fire could cause the windows to break and then internal areas of the car to catch on fire (ts 285 ‑ 286).
Evidence of wind
The complainant was asked the following questions about the weather at the time of the alleged offence:
Was - was this a windy day?---Afternoon time, normally every time it is windy.
Okay. How much wind was there?---Wind is - what?
Was there a lot of wind?---I was in the car and not that wind to blow everything's apart but it is windy. Normally summertime, that area is very windy (ts 109).
The complainant also gave evidence that the wind blew out the flame of Kuldar's cigarette lighter (ts 60, 110 ‑ 111, 156 ‑ 157).
Constable Spaanderman was one of the police officers who attended the complainant's house at about 6.00 pm on 12 February 2014 to take a statement from the complainant. In cross‑examination he accepted that it was windy when he attended the property and that, when he took a statement from the complainant, it was 'quite windy and it might even have started raining' (ts 214 ‑ 215).
Video of the complainant's vehicle at his house and at the scene of the incident at around 6.00 pm shows some wind, but it is hardly blowing a gale. Vegetation at the sides of the road at the scene of the incident is quite heavy and could have had some sheltering effect from the wind.[9]
[9] Exhibit 5.
Other witnesses who were asked could not recall the weather on 12 February 2014. Kaspar did not address the issue of wind in his evidence.
The complainant's evidence
The transcript of the complainant's evidence does not make it clear precisely where the appellants were standing when they tried to light the cigarette lighters they were holding. This is in part due to the complainant's limited English, and the difficulty in comprehending evidence given by reference to plans and distances in the courtroom when relying only on the transcript. The appellants were at least close enough for Kaspar to pour petrol over the complainant's car and converse with the complainant, and for the complainant to see the flame of Kuldar's lighter.
During cross-examination, the complainant said that Kaspar was close to his bonnet the first time he poured fuel on the car and was close to his right windows on the second occasion (ts 107). On the second occasion, the complainant said 'I was right very close, and then it splashed and this guy walk from here and light the lighter' (ts 108). The complainant said:
The flame come out of his lighter when he flame it. The flame, I saw clearly on the lighter. When he walked to my car, one, two step, and the wind blew, that flame come off and he still keep flicking (ts 110).
The complainant had provided a statement to police which, contrary to his evidence, said that the petrol caught alight briefly. The complainant was asked about this statement in cross-examination, obviously with a view to attacking his credit. In the course of that cross examination, the following exchange occurred:
So if your statement says that the petrol caught alight briefly, that's not true?---Did the petrol get light briefly?
Yes. It's written that the petrol caught alight briefly on your car. That's not true, is it?---I can't understand briefly. Now, that's all I want to say the car didn't get alight. When he was flinging the lighter, I saw the flame in the lighter clearly then wind blew them out. They didn't reach me to put in my car (ts 111).
The appellants contend that the effect of this last sentence is that they were not close enough to the complainant's car to set the petrol alight. We do not accept that submission. The complainant is here saying that the appellants did not put the flame 'in my car'. We do not read this evidence to say that the appellants were so far away from the car that they could not have lit the petrol Kaspar poured onto the exterior of the car.
Taken as a whole, we understand the complainant's evidence to be that the appellants were standing close to his car at the time they flicked their cigarette lighters. It was open to the jury to infer that the appellants were close to the complainant's car when they flicked the cigarette lighters from the following circumstances:
1.The events all occurred on a narrow country road blocked by the appellants' vehicle, so that the space in which events occurred was confined.
2.Kaspar was close enough to the complainant for them to be able to speak to each other without any reported difficulty.
3.The complainant used the term 'drop' to describe Kaspar putting fuel on his bonnet, windscreen and roof (ts 58, 59, 60). He said that Kaspar was 'pouring fuel' and estimated that he poured 'roughly about a litre or maybe a bit more' onto the bonnet and windscreen (ts 107). When asked about the roof in a question which used the phrase 'second splash', the complainant said that about the same amount was put on the roof (ts 108). The complainant subsequently referred to the fuel being splashed (ts 154), and also referred to Kaspar 'throwing' fuel (ts 58, 59, 108, 109, 169). Some of the fuel came into the complainant's face (ts 59). Kaspar had one hand on the handle of the container and one hand on the bottom (ts 58 ‑ 59). The volume of fuel placed on the car, the fact that most went on the roof and some went in the car and the manner in which the appellant generally described the action indicated that Kaspar must have been standing close to the complainant's car when the fuel was poured.
4.The complainant expressly gave evidence that, on the first occasion Kaspar poured fuel, he was close to the complainant's bonnet and, on the second time, he was close to the complainant's right windows (ts 107).
5.The complainant's evidence was that, when he parked his car next to the appellants', Kuldar was standing between the 'driver door and back door' of their vehicle with his arms crossed (ts 153 ‑ 154).
6.The complainant was able to clearly see the flame on Kuldar's cigarette lighter (ts 110, 111, 156).
7.The events happened very quickly, with Kuldar lighting his cigarette lighter 'as soon as' Kaspar poured the second volume of fuel (ts 59, 159). The complainant saw Kaspar's cigarette lighter spark as he was accelerating away (ts 61).
8.As the appellants' appeal counsel accepted, it was open to the jury to find, that the appellants were attempting to light the fuel. The jury could further infer that, when the appellants attempted to light the fuel, they were standing in a position from which they thought it was possible to do so and, insofar as they were moving, they were moving towards the complainant's car.
Further, in light of the manner in which the complainant's evidence was given and transcribed, any doubt about whether the appellants were standing close enough to the car to be able to set it alight is capable of being resolved by the jury's advantage in seeing and hearing the complainant's evidence. For example, the complainant was asked to demonstrate the action by which fuel was put on his car, and did so in a way that showed Kuldar 'walk from here and light the lighter' (ts 108). The complainant was also asked to demonstrate the point at which Kaspar picked up the fuel container (ts 154). He demonstrated how Kaspar was 'throwing, holding the drum - I don't know what you call it' while pouring the fuel (ts 155). The gestures and expressions which the complainant made when giving evidence could also have assisted the jury's comprehension. The jury were at a very significant advantage over this court in assessing the evidence about the position of the appellants in relation to the complainant's car when they attempted to ignite the fuel.
Disposition
The evidence enabled the jury to be satisfied of the following facts beyond reasonable doubt. The appellants poured about two litres of petrol over the complainant's car, causing petrol to go into the interior of the car and onto the complainant. They did so when the complainant was seated in the car with his child restrained in a safety harness behind him. The fact that his young child was restrained meant that the complainant could not simply flee from his car if the fuel ignited, as he would need to attempt to free his daughter. The appellants, while standing close to the car, flicked cigarette lighters, resulting in Kuldar's lighting briefly and Kaspar's sparking. In our view, having found these facts, the jury could reasonably have been satisfied that the appellants' acts endangered, or were likely to endanger, the complainant's life, health or safety.
Dr DeTata's evidence was that a flame or spark could cause petrol to ignite. The effect of propositions accepted by Dr DeTata was that, on a 'very windy day', there is a 'real possibility' that there would never be a sufficient aggregation of vapour to ignite. The appellants' counsel did not explore what Dr DeTata meant by 'very windy'. The evidence about wind did not show the wind to be so strong as to necessarily prevent a dangerous aggregation of petrol vapour such that there was no real or significant likelihood of ignition.
Further, the State did not need to prove that the petrol would ignite. The danger to the safety of the complainant posed by the appellants flicking cigarette lighters close to a vehicle onto which Kaspar had poured two litres of petrol was obvious. There was at least a real or substantial chance, as distinct from a mere possibility, that the complainant's safety would be endangered as a result of those acts.
Our review of the evidence has left us in no doubt that the complainant's life, health and safety was likely to be endangered as a result of the appellants' acts of pouring petrol onto the exterior and interior of the car and the complainant, and then attempting to light cigarette lighters while standing close to the car. We are also satisfied that the appellants intended to endanger the complainant's life, health or safety by those actions. It was open to the jury to be so satisfied. We would dismiss both appeals against conviction.
Appeals against sentence
Trial judge's findings
The circumstances of the offending are described above, consistently with the findings of the trial judge.
The trial judge was satisfied that the appellants' actions in fact endangered the complainant's life, health or safety (ts 558). Later the trial judge observed:
The potential for injury if one spark had caught was very great. There is every reason to think that at the very least the victim would have been seriously burnt, and that his injuries could easily have been very grave. That is what you were trying to achieve. That properly describes your intent. There is no reason to think that you cared what happened beyond that (ts 564).
The trial judge identified a number of aggravating factors:
1.The offending was carefully planned and agreed between the appellants well in advance of the offending, involving Kaspar picking up his brother after speaking to one of the witnesses in a pub just after 2.00 pm, ensuring fuel was available and going to the road where the appellants waited for the complainant (ts 559).
2.The complainant's 3‑year‑old daughter was strapped in her car seat in the back of the car. While the trial judge did not find the appellants to be aware of her presence, he was satisfied:
that neither of you cared to look to see who else might be in the car and that you were both indifferent in that respect and the daughter was put at risk for that reason (ts 560).
3.The complainant was in a vulnerable position, trapped on a lonely road by two large men armed with a jug of petrol and lighters, and encumbered by the fact that his daughter was strapped in a child's seat in the back of the car (ts 560).
4.The appellants were in company (ts 560).
The trial judge noted that the offending had very significant negative psychological consequences on the complainant and his family. As a result of the offending, the complainant was fearful, vigilant and distrustful of others. The complainant's wife was fearful of strangers and of being separated from the complainant. The complainant's daughter 'was terrified for some time but I'm told is okay now' (ts 561).
The trial judge noted that Kaspar was 26 years old and Kuldar 31 years old at the time of sentence. Both had unremarkable upbringings, were single without dependants, and neither had any record of prior offending. Neither demonstrated any remorse or acceptance of responsibility for what they had done. The trial judge had regard to the fact that the appellants' difficulties with the English language and distance from home and family would result in imprisonment being more onerous for them than would ordinarily be the case. In the case of Kaspar, the trial judge said that there was 'a slight degree of youth available to you as mitigation' (ts 563).
The trial judge observed:
Although the culpability of Kaspar is greater, he has the mitigation … of at least a slight element of youth, which is not available to Kuldar. The objective criminality of both of you is very high. This is objectively very serious offending, both in respect of your intention and the degree of danger to which you exposed [the complainant] and coincidentally his daughter, plainly with the intention that [the complainant] should be seriously harmed (ts 567).
After having regard to relevant sentencing principles, the trial judge sentenced Kaspar to 6 years 2 months' imprisonment and Kuldar to 5 years 8 months' imprisonment. Each appellant was made eligible for parole and the sentences were backdated (to 2 January 2015 for Kaspar and 8 September 2015 in the case of Kuldar) to take account of time spent in custody.
Manifest excess: general principles
As noted above, the sole ground on which each appellant seeks leave to appeal is that the sentence imposed was manifestly excessive. The general principles governing appeals on the ground of manifest excess are well established:
1.A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2.The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate the sentence imposed to be unreasonable or plainly unjust.
3.The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
4.A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
5.When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
Disposition
The maximum penalty for the offence of which the appellants were convicted is 20 years' imprisonment.
The appellant referred to a number of cases dealing with sentences imposed for offences against s 304(2) of the Criminal Code, where sentences ranging from 18 months' - 7 years 6 months' imprisonment were imposed in a variety of different circumstances.[10] In Penny v The State of Western Australia,[11] McLure P summarised the cases other than Starr v The State of Western Australia (where multiple counts meant considerations of totality intruded). None of those cases can be regarded as directly comparable with the present, as all have distinguishing features. In considering whether a case is relevantly comparable for consistency purposes, it is important to recognise that s 304(2) covers a wide variety of conduct of widely differing seriousness.
[10] Penny v The State of Western Australia [2016] WASCA 52; Lawrence v The State of Western Australia [2015] WASCA 187; Beard v The State of Western Australia [2015] WASCA 74; Hinkley v The State of Western Australia [2014] WASCA 122; Blurton v The State of Western Australia [2014] WASCA 61; Starr v The State of Western Australia [2011] WASCA 170; Delavale v The State of Western Australia [2009] WASCA 111; The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414.
[11] Penny [33] - [40]. McLure P also referred to the decisions in The State of Western Australia v Wallam [2008] WASCA 117 and Yates v The State of Western Australia [2008] WASCA 144.
The appellants' submissions emphasised the absence of actual physical harm in this case, in contrast to several of the cases in which substantially similar sentences were imposed.[12] However, an offence against s 304(2)(b) involves endangering life, health or safety and does not necessarily involve bodily harm. The structure of s 304(2) reveals that the potential risk to life, health and safety may be equally as important as the actual harm caused by the person's act done with intent to harm. As we have said, s 304(2) covers a wide variety of conduct. In this light, it is wrong to place a singular emphasis on the presence or absence of physical injuries.
[12] For example, Delavale; Lawrence and BLM.
The following factors have been identified as relevant to sentencing for an offence under s 304(2) of the Criminal Code:[13]
1.The nature and seriousness of the offender's intent to harm.
2.The nature and seriousness of the bodily harm caused to a particular victim, or the severity and other circumstances of the actual or likely endangering of the particular victim's life, health or safety, as the case may be.
3.The potential (as distinct from the actual) consequences of the offender's conduct.
[13] Penny [32]; Lawrence [37]; Hinkley [18]; BLM [134] - [137].
The present case was a serious example of the offence. The appellants executed a plan to stop the complainant's vehicle on a remote road, and to set his car alight using petrol and lighters. The unchallenged finding of the trial judge was that the appellants intended to endanger the life, health and safety of the complainant and intended that he would be seriously burnt. They did not care what consequences flowed beyond that. That intention is a significant aggravating feature of the appellants' offence which, in contrast to many of the decided cases, involved a troubling degree of planning and preparation.
The risk to the life, health and safety of both the complainant and his daughter was very high. About two litres of petrol was poured onto and into the car, some onto the complainant. The fulfilment of the appellants' plan to ignite the petrol would probably have seriously burnt the complainant and his daughter, and created a real and substantial chance that they would be killed. While the appellants may not have been aware of the presence of the complainant's daughter in the back of the car, they did not bother to check if anyone was with him. The fact that the petrol did not ignite was not for any want of trying on the appellants' part.
While the petrol did not actually ignite, and there was no physical injury to anyone, the offence psychologically traumatised the complainant and his family.
The appellants did not have the mitigating effect of a plea of guilty, or any remorse or acceptance of responsibility. Their prior good character was mitigating, as was the impact of language and remoteness from home on the service of their prison sentences. Kaspar's age at the time of committing the offence (24 years) may also be regarded as having some mitigating effect. However, those mitigating factors must be weighed against the seriousness of the offending and the need for a deterrent sentence which signalled to the appellants and the community at large that violent conduct of this kind will not be tolerated. Punishment, personal deterrence and general deterrence were predominant sentencing considerations in this case.
Taking all of the relevant circumstances into account, the sentences imposed in the present case were broadly consistent with the sentences imposed in the cases referred to above.
Having regard to all relevant circumstances and sentencing principles, the sentences imposed on the appellants were not unreasonable or plainly unjust. No error of principle can be inferred from the sentences imposed in this case. We would dismiss the appeals against sentence.
Orders
For the above reasons, we would make the following orders in each appeal:
1.Leave to appeal on the sole proposed ground of appeal is granted.
2.The appeal is dismissed.
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