Kaschull v The State of Western Australia - [2012] WASCA 245

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KASCHULL -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 245

CORAM: BUSS JA
MAZZA JA

HEARD: 24 OCTOBER 2012

DELIVERED : 29 NOVEMBER 2012

FILE NO/S: CACR 150 of 2012

BETWEEN: AARON DAVID KASCHULL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :McCANN DCJ
File No  :IND 1064 of 2011

Catchwords:

Criminal law - Application for leave to appeal against sentence - Assault occasioning bodily harm - Unlawful wounding - Whether sentence was manifestly excessive - Whether parity principle breached

Legislation:

Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 27(3)
Criminal Code (WA), s 301(1)(b), s 317(1)(b)

Result:

Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr T F Percy QC
Respondent: No appearance

Solicitors:

Appellant: Timpano Legal
Respondent: Director of Public Prosecutions (WA)

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

Barry v The State of Western Australia [2012] WASCA 175
Chan v The Queen (1989) 38 A Crim R 337
Wilson v The State of Western Australia [2010] WASCA 82

BUSS JA: I agree with Mazza JA.
MAZZA JA: This is an application for leave to appeal against sentence.
On 5 December 2010, the appellant, along with six other young men, including Nathan Anthony Pagana, were involved in a violent confrontation outside the home of Darren Bond at an address in Mirrabooka. Mr Bond and two of his friends, Nathan Casey and Rory Smithers, sustained various injuries in that confrontation. As a result, the appellant and Mr Pagana were charged with assault occasioning bodily harm on Mr Bond (count 1), assault occasioning bodily harm on Mr Casey (count 2) and unlawfully wounding Mr Smithers (count 3).
On 22 February 2012, on the first scheduled day of their trial before Sweeney DCJ and a jury, the appellant pleaded guilty to the charges. He was remanded for sentence until after the trial. The trial proceeded in relation to Mr Pagana. He was convicted as charged.
On 23 March 2012, the appellant and Mr Pagana appeared before Sweeney DCJ for sentence. Prior to that appearance, the respondent provided the court with a statement of agreed facts in relation to the appellant. The contents of that document placed Sweeney DCJ in an invidious position. The State agreed that the appellant should be sentenced on a version of the events which her Honour noted contradicted significant aspects of the evidence led by the State at the trial. The parties, in effect, proposed that the appellant be sentenced on facts which in her Honour's opinion were less serious than the evidence at trial revealed. Her Honour considered the factual concessions made by the respondent to be 'nonsense' (ts 329). Why the respondent agreed to this course is unclear and, on the face of it, difficult to justify. In the end, her Honour was compelled to take the unsatisfactory course of remanding the appellant to another judge for sentence. Her Honour then proceeded to sentence Mr Pagana.
Mr Pagana received a total effective sentence of 3 years 6 months' imprisonment with eligibility for parole. He was sentenced to 2 years' imprisonment on count 1, 18 months' imprisonment on count 2 (reduced from 2 years' imprisonment to reflect the totality principle) and 18 months' imprisonment on count 3. Her Honour ordered that the sentences on counts 1 and 2 be served cumulatively, and that the sentence on count 3 be served concurrently.

On 8 June 2012, the appellant was sentenced by McCann DCJ. His Honour sentenced the appellant to a total effective sentence of 14 months' immediate imprisonment with eligibility for parole. He received 14 months' imprisonment on count 1, 12 months' imprisonment on count 2 and 6 months' imprisonment on count 3. His Honour ordered the sentences to be served concurrently.

The proposed grounds of appeal

There are two proposed grounds of appeal.
Ground 1, in substance, alleges that each sentence was manifestly excessive, in that the wrong type of sentence was imposed. The appellant contends that for each count a suspended imprisonment order should have been made.
Ground 2 alleges a breach of the parity principle. The appellant contends that having regard to Pagana's greater involvement in the offences and other factors, there was insufficient disparity between the total effective sentences imposed upon him and Mr Pagana.

Appellate legal principles

The legal principles applicable to appeals against sentence are uncontroversial, well‑known and need not be repeated. They were accurately described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2].
The leave of this court is required for each proposed ground of appeal. Leave is not to be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding. If no proposed ground of appeal reaches this threshold, the appeal is to be taken to have been dismissed: s 27(1), s 27(2) and s 27(3) of the Criminal Appeals Act 2004 (WA).

The facts upon which Mr Pagana was sentenced and his antecedents

Sweeney DCJ found that not long before 5 December 2010, Mr Pagana had broken up with his girlfriend (ts 361). He was upset by the breakup and in the days that followed persistently attempted to contact her without success. Her Honour found that Mr Pagana got it into his head that his former girlfriend was possibly involved with the complainant in count 1, Darren Bond. Mr Pagana was, in fact, completely mistaken in that view.
Her Honour found that on the evening of 4 December 2010, Mr Pagana was convinced that his former girlfriend was at Mr Bond's house. Mr Pagana went to that house on three occasions looking for her. On the second of those occasions, Mr Pagana went to the house accompanied by others, including the appellant's brother, Ryan Kaschull. Mr Pagana was told in no uncertain terms by Mr Bond to leave, but Mr Pagana refused. Mr Bond then punched Mr Pagana in the face (ts 362). On the third occasion, her Honour said that Mr Pagana rode his bicycle to the house. Mr Bond confronted Mr Pagana on the verge. Mr Bond was at this point, plainly angry and fed up with Mr Pagana's behaviour. He again punched Mr Pagana in the face (ts 363).
Her Honour found that after this third visit, Mr Pagana returned to his house in a highly emotional state. Someone from the group rang the appellant who was at work and urged him to come to Mr Pagana's house. Others were also called. In all, her Honour noted, a group of seven young men assembled at Pagana's house and proceeded to Mr Bond's residence. The appellant armed himself with a baseball bat. Sweeney DCJ found that someone else in the group was armed with a sword and at least one other was armed. Sweeney DCJ was satisfied that the group went to Mr Bond's house 'to sort him out and punish him for his earlier violence towards [Pagana]' (ts 364).
Her Honour observed that Pagana was still intent on finding out whether his former girlfriend was at Mr Bond's house. She said that the violence 'which was obviously going to happen' was needed as a distraction for Mr Pagana to find out if his former girlfriend was there (ts 364). Her Honour concluded that Pagana and every member of the group went to the house with an unlawful and violent purpose in mind (ts 364).
Her Honour described what occurred at Mr Bond's house in these terms. Upon the arrival of Mr Pagana and his group, Mr Bond, Mr Casey and Mr Smithers went outside. Mr Bond armed himself with a baseball bat with the intention of preventing the other group entering his house. Mr Bond approached the appellant and asked 'What the fuck's going on?', to which the appellant responded 'Well what the fuck is going on?'
The appellant then swung his baseball bat over his head and struck Mr Bond to the forehead. Her Honour found that the appellant hit Mr Bond twice more with the baseball bat felling him. Once Mr Bond was on the ground, he was set upon in a sustained attack (ts 365). Sweeney DCJ was satisfied that while Bond was being attacked in this way, Mr Pagana held Bond and, in this way, was a party to the group attack on him.
Her Honour said that Mr Casey then came to Mr Bond's aid. Mr Casey was attacked by several people, including the appellant who struck Mr Casey with multiple blows with the baseball bat. Someone else slashed Mr Casey with what was described as a machete or sword (ts 365 ‑ 366). At this point Mr Smithers, seeing that Mr Casey was under serious attack, tried to help him. Her Honour found that an unknown member of Mr Pagana's group slashed Mr Smithers' leg with a sharp instrument (ts 366).
The incident, which was largely recorded by a neighbour's CCTV system, was over in approximately one minute. Shortly after Mr Pagana's group left, the police and an ambulance arrived.
Mr Pagana returned to Mr Bond's house on a bicycle and was stopped by the police. He denied any involvement in what had occurred. He also gave the police a false name (ts 366).
Eventually, Mr Pagana was interviewed by the police. Her Honour described his response as 'initially evasive'. Later, he falsely sought to blame the attack on 'a group of Asians' (ts 367).
Sweeney DCJ concluded that there was no direct evidence that Mr Pagana had personally inflicted any injury to anyone or that he was armed with a weapon (ts 368). Her Honour found that Mr Pagana let those who accompanied him to Mr Bond's house 'loose'. She found Mr Pagana to have counselled or procured all three offences and that he joined in the attack on Mr Bond the subject of count 1. Further, she said that Mr Pagana's presence amounted to encouragement and that he was part of 'a common purpose to assault Mr Bond and anyone else at the house who might get in the way and that the violence which followed was a probable consequence of carrying out that illegal purpose' (ts 369).
Her Honour accepted that, at the time of the offending, Mr Pagana was distraught over the loss of his girlfriend and that he was, to some extent, under the influence of alcohol and prescription drugs, although he exaggerated the extent of his intoxication to minimise his involvement (ts 373). Her Honour accepted that Mr Pagana was remorseful but his remorse was qualified by his lack of candour with the police (ts 367). Her Honour noted that Mr Pagana was 25 years of age at the time he was sentenced and had a minor and irrelevant record of offending. She accepted that the offences were out of character and unlikely to be repeated.
Sweeney DCJ noted that since the commission of the offences, Mr Pagana had participated in psychological counselling and was no longer using drugs. She described him as having a supportive family.
Her Honour found that the offences were premeditated and involved 'a high degree of violence'. She said that Mr Pagana was responsible both for his own actions and the actions of others (ts 374). She emphasised the need for general deterrence and just punishment. She considered that the seriousness of the offending 'simply overwhelmed' the matters in mitigation (ts 375).

Facts upon which the appellant was sentenced and his antecedents

McCann DCJ adopted the facts as set out in an amended statement of material facts dated 18 April 2012. The most salient parts of that document are as follows:
10.Just before 3am Pagana, [the appellant] and five other young men gathered somewhere and then headed off as a group to [Bond's house]. A number of the individuals were armed with a variety of weapons included a samurai styled sword. [The appellant] in particular was armed with a baseball bat.
11.Nathan Casey saw the offender's group approaching [Bond's house] and warned the other occupants of the house.
12.Darren Bond went outside to confront he group, having armed himself with his own baseball bat.
13.What occurred next is not precisely clear as the entire incident occurred within one minute.
14.Darren Bond confronted [the appellant]. [The appellant] essentially disarmed Bond of his own baseball bat. [The appellant] then struck Darren Bond to the head with a baseball bat that caused Darren Bond to fall to the ground.
15.Other people in the offender's group assaulted Darren Bond while he was on the ground.
16.Nathan Casey went to the aid of his friend. He was also assaulted [by] unknown individuals from the offender's group. Nathan Casey also fell to the ground and was assaulted.
17.The complainant on count 3, Rory Smithers, was a friend of Bond and Casey and was also present in the house. He also went to the aid of his two friends. During the course of the altercation he received a laceration to his leg from an individual (who was not [the appellant]) armed with a sharp weapon similar to a machete.
18.The offender and the other six members of his ground [sic] then fled the scene.
19.Darren Bond and Rory Smithers were rushed to hospital immediately after the incident.
20.The injuries suffered by Darren Bond included
20.1.lacerations around his forehead;
20.2.Bruising around his head and hip;
20.3.A minor injury to his spleen;
20.4.Fracture to his left nasal bridge; and
20.5.A head injury;
21.As a consequence of these injuries Darren Bond spend 6 nights in hospital.
22.Nathan Casey suffered a 4cm superficial laceration to his left shoulder and a fracture to the bone near his knee that required surgery. He was discharged from hospital the following day.
23.Rory Smithers took himself to hospital the following morning [sic - this is contradictory to par 19 but nothing turns on this contradiction] and was treated for a 17cm laceration to his right leg at about 1 to 2 cm deep.
24.For the purpose of sentencing [the appellant] the State accepts that the only act of violence directly attributable to [the appellant] is the [one] blow struck to Darren Bond that caused him to fall to the ground. With respect to the other acts of violence committed during the incident [the appellant] is criminally responsible by virtue of the provisions of section 8 of the Criminal Code. (emphasis added)
As a consequence of this version of the facts, the appellant was sentenced on the basis that he struck Mr Bond once and not as Sweeney DCJ found, three times. Further, it was accepted that the appellant did not strike Mr Casey although Sweeney DCJ found to the contrary.
McCann DCJ found that the purpose of the appellant's attendance at Mr Bond's house was to confront him. His Honour further found that the appellant was aware that the confrontation could turn physical which explained why he was armed. His Honour said that what occurred was a highly probable consequence of what he termed 'naïve vigilantism' (ts 3). His Honour further found that the 'high degree' of violence that occurred was started by the appellant hitting Mr Bond to the head. In respect of count 1, he concluded that the appellant was 'highly culpable' and that he 'sparked' what followed (ts 3).
Consistently with the amended statement of material facts, his Honour found that counts 2 and 3 occurred as a probable consequence of the 'criminal plan' to confront Mr Bond.
McCann DCJ characterised the attack on the victims in these terms:
This was a mob attack on hopelessly outnumbered victims who continued to be bashed after they were rendered defenceless … this was a cowardly and senseless attack in each case (ts 4).
His Honour summed up the appellant's antecedents in this way:
You have no prior criminal record and are of excellent character. These offences are entirely out of character. You come from a good, supportive family, and have an excellent relationship with your partner. You have a good employment history, and a supportive employer. These are all mitigatory matters, and there are other mitigatory factors (ts 4).
His Honour went on to refer to the following:
(1)the appellant made admissions to the police;
(2)the appellant gave an early indication of his willingness to plead guilty;
(3)the appellant displayed genuine remorse and victim empathy. The appellant was ashamed of what he had done and had assumed responsibility for his actions; and
(4)the appellant did not go to Mr Bond's house to cause bodily harm and that he was extraordinarily naïve in this sense (ts 5).
McCann DCJ expressly addressed the issue of parity. He said that the personal circumstances of the appellant and Mr Pagana were similar. However, he said there were some dissimilarities. His Honour said that Mr Pagana was the ringleader and far more culpable than the appellant. Further, there were 'very strong' mitigatory factors which were not available to Mr Pagana. In particular, his Honour referred to the appellant's pleas of guilty, admissions to police and genuine remorse (ts 7). As against these things, his Honour weighed that the appellant struck the first blow. McCann DCJ said:
[The appellant] willingly went along and struck the first blow. If Pagana organised the explosives, [the appellant] lit the fuse and [they were] both in law criminally responsible for the same harm (ts 6 ‑ 7).
Despite the mitigating factors, McCann DCJ decided that the offending was too serious to impose a suspended imprisonment order. He expressed his reasoning as follows:
The decisive factors are these. First, you willingly armed yourself and took part in an indefensible mob confrontation, and having arrived, almost immediately struck the first blow, and a highly provocative and dangerous one at that.
A baseball bat to the head of a man who was totally outnumbered but yet prepared to use his own baseball bat is a very nasty and dangerous thing to do. He was immediately disabled. And what you did incited what followed, even if the lust for violence of the co‑offenders shocked you. Next, there were three victims in the end and the injuries to two of them, particularly Bond, were very nasty.
…
But the fact of the matter is that general deterrence, punishment, public denunciation and general consistency of dispositions are important factors in this case … going armed in public with the intention of using the arms in self‑defence if required, particularly in the context of senseless violence in a mob or otherwise, is a serious matter. Youthful male violence in the streets, particularly of this totally senseless kind, is a problem and must be seriously dealt with by courts.
Last but not least, I have considered whether or not some clemency or mercy could be extended towards you. Certainly you're a good candidate for such a thing. But the bottom line is, prior good character or not, you involved yourself in a very nasty offence, and so it will have to be immediate imprisonment (ts 7 ‑ 8).

The appellant's submissions

In support of ground 1, Mr Percy QC was content to rely on his written submissions. These emphasised the mitigating factors found by McCann DCJ. It was submitted that an immediate term of imprisonment did not reflect the appellant's prospects and ran counterproductively to the aim of rehabilitation.
Mr Percy directed his oral submissions to ground 2. He submitted that the appellant acted foolishly out of a misguided loyalty towards Mr Pagana. As such, his culpability was very different to Mr Pagana who was the ringleader and orchestrator of the night's events. In addition, Mr Percy emphasised that the appellant, unlike Pagana, pleaded guilty. He asserted that the parity principle dictated that there should be a significant difference between the sentences imposed on the appellant and Mr Pagana. He further submitted that in order to properly reflect that difference, the appellant should have been sentenced to a suspended imprisonment order or a term of immediate imprisonment approximately equal to half of that imposed by McCann DCJ.

Disposition - ground 1 manifest excess

In my opinion, none of the individual sentences imposed upon the appellant could reasonably be seen as manifestly excessive.
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 offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
The maximum sentence for assault occasioning bodily harm and unlawful wounding is 5 years' imprisonment where the offence is not committed in circumstances of aggravation: s 317(1)(b) and s 301(2)(b) of the Criminal Code.
There is no need to discuss the range of sentences customarily imposed for either assault occasioning bodily harm or unlawful wounding. Although there is no tariff for either offence, none of the individual sentences were outside the range of the sentences customarily imposed and Mr Percy did not argue to the contrary.
The appellant's involvement in each offence was serious, although, his culpability in respect of count 1 was greater than in counts 2 and 3. In respect of all counts, the appellant associated himself with a group of young men who were prepared to confront others with weapons for a completely senseless and unjustified purpose. The appellant voluntarily armed himself with a baseball bat. Despite his professed reluctance, he was in the vanguard of the group and struck the first blow. The blow was administered with some force and disabled Mr Bond. That blow, and what followed, led to Mr Bond's hospitalisation. As bad as it was, the consequences could have easily been worse. The appellant's actions precipitated the events which led to the attacks on Mr Casey and Mr Smithers, and he is criminally responsible for the offences committed on them.
His Honour was correct to note that youthful violence of the sort committed by the appellant was a problem in the community and to give some emphasis to general deterrence.
It is true that the personal circumstances of the appellant were favourable and that his prospects for rehabilitation are good. It is clear that his Honour was impressed by these matters, along with the other mitigating factors such as the pleas of guilty. However, his Honour was also entitled to consider that the seriousness of the offences was such that no other sentence apart from immediate imprisonment was appropriate, notwithstanding the combined effect of all the mitigating factors in the case. The sentences of immediate imprisonment were well within the range of a sound sentencing discretion. His Honour did not err either in the type of sentence imposed or in the length of each sentence.
Ground 1 has no reasonable prospect of succeeding. Leave to appeal must be refused.

The merits of ground 2 - the parity principle

In Barry v The State of Western Australia [2012] WASCA 175, I said this about the parity principle:
The parity principle is based upon the norm of equality before the law which requires, so far as the law permits, that like cases be treated alike and that there be different outcomes where there are relevant differences: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [28] (French CJ, Crennan & Kiefel JJ).
Whether the parity principle has been infringed does not depend upon a finding that the sentence in question is manifestly excessive. It depends upon whether, objectively speaking, the disparity (or lack of it) gives rise to a justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606, 609 ‑ 610 (Gibbs CJ).
What is required is a comparison of the sentence imposed on each offender and an evaluation of their involvement in the commission of the offence and their antecedents: MGM v The State of Western Australia [2012] WASCA 24 [43] (McLure P & Buss JA agreeing) [55] ‑ [57].
In the present case, there is no relevant difference between the appellant's and Mr Pagana's antecedents.
Plainly there were significant differences between the culpabilities of the appellant and Pagana in the commission of the offences, such that the appellant was bound to receive a lesser sentence than his co‑offender. The principal points of difference are that Pagana was the ringleader and he, unlike the appellant, took the matter to trial.
The question is whether the disparity between the appellant and Pagana of 2 years and 4 months was an insufficient reflection of these differences such as to give rise to a justifiable sense of grievance on the appellant's part. In my opinion, the answer to this question is no.
To my mind, the difference of 2 years and 4 months is a significant one. It is a fair reflection of the differences between the cases. The appellant's overall involvement was significant. He was a principal offender in the attack on Mr Bond. It precipitated the attacks on the other victims. The offences were serious and his culpability substantial. I do not see how the appellant could have an objectively justifiable sense of grievance with the sentence he received compared with the sentence imposed on Mr Pagana.
In my opinion, ground 2 has no reasonable prospect of succeeding and leave to appeal in relation to it must be refused.

Conclusion and orders

I would not grant leave to appeal in respect of either ground of appeal. The following orders should be made:
(1)leave to appeal is refused; and
(2)the appeal is dismissed.