Kathiramalai v The State of Western Australia
[2025] WASCA 16
•29 JANUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KATHIRAMALAI -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 16
CORAM: BUSS P
MITCHELL JA
HEARD: 22 JANUARY 2025
DELIVERED : 29 JANUARY 2025
FILE NO/S: CACR 96 of 2024
BETWEEN: PREMKUMAR KATHIRAMALAI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GILLAN DCJ
File Number : IND 2230 of 2020
Catchwords:
Criminal law - Sentencing - Appeal against sentence - Appellant convicted of unlawful wounding, unlawfully doing grievous bodily harm and unlawful assault causing bodily harm - Whether sentences infringe parity principle - Whether individual sentences manifestly excessive - Whether total effective sentence of 7 years' imprisonment infringes first limb of totality principle
Legislation:
Criminal Code (WA), s 297, s 301(1), s 317(1)
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bradley v The State of Western Australia [2024] WASCA 94
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Greenup v The State of Western Australia [2024] WASCA 91
Kabambi v The State of Western Australia [2019] WASCA 44
Ngo v The Queen [2017] WASCA 3
Palmer v The State of Western Australia [2024] WASCA 97
The State of Western Australia v Babakarkhil [2022] WASCA 59
JUDGMENT OF THE COURT:
Summary
On 28 June 2023, the appellant was convicted after trial by jury of three offences, all committed on 4 January 2020 at Queens Park. The three counts on the indictment charged that the appellant:
1.unlawfully wounded the first victim, who it is convenient to refer to as MA;
2.unlawfully did grievous bodily harm to the second victim, who it is convenient to refer to as SS; and
3.unlawfully assaulted the third victim, who it is convenient to refer to as FS.
On 23 August 2023, the appellant received the following sentences for this offending:
Count
Offence
Maximum penalty
Sentence
Accumulation
1
Unlawful wounding of MA
(Criminal Code (WA) s 301(1))
5 years
2 years 6 months (reduced from 3 years for totality)
Cumulative
2
Unlawfully doing grievous bodily harm to SS
(Criminal Code s 297)
10 years
4 years 6 months
Head sentence
3
Unlawful assault of FS causing bodily harm
(Criminal Code s 317(1))
5 years
2 years 8 months
Concurrent
Total effective sentence
7 years
The appellant was made eligible for parole and the sentences were backdated to 16 July 2023 to take account of time spent in custody on remand.
The appellant now appeals against his sentence on various grounds. For the following reasons, leave to appeal should be refused on the basis that none of the grounds of appeal have any reasonable prospect of succeeding.
Circumstances of offending
The trial judge made the following findings as to the circumstances of the offending.[1]
Events leading up to the offending
[1] Trial ts 913 - 916.
On 4 January 2020, the appellant was operating a second-hand furniture and money remission business at Albany Highway in Gosnells. That day, MA came to the appellant's business with two of MA's friends. The appellant knew that MA was coming as they had spoken on the phone.
There were conflicting accounts as to why MA came to the appellant's shop. MA's account was that the appellant had made a video critical of Sri Lankan women. The appellant's account was that MA was sent to the shop for the purpose of doing some violence to the appellant on behalf of a man in Sri Lanka with whom the appellant was having conflict. The trial judge found it unnecessary to resolve the conflict as to why MA came to the appellant's shop. Her Honour observed that, whatever the reason, it did not justify what happened outside the appellant's shop at MA's instigation or what happened later that night outside MA's house.
When the men arrived, the appellant went out to the front of his shop and words were exchanged between the appellant and MA before a scuffle broke out. One of MA's friends, who it is convenient to refer to as G, then continued the altercation with the appellant and blows were exchanged. The whole incident only took a couple of minutes, and when the appellant, MA and G were separated, MA left in a car with his friends. The appellant was very angry.
Thereafter, a series of telephone calls and some text messages were exchanged between the appellant, MA and SS (who was MA's brother‑in‑law who lived at MA's house). Angry words were exchanged. Eventually, it was decided that the appellant and MA would meet again that evening at MA's house for the purpose of resolving the dispute. MA arranged for his address at Queens Park to be provided to the appellant.
The appellant spoke with his younger brother, Thaneshkumar Kathiramalai, and told him what had happened. The appellant arranged for his brother to come with him to MA's house along with some other men. At between 9 pm and 10 pm on 4 January 2020, a group of 8 - 10 men (the appellant, the appellant's brother and other men) gathered in the street outside MA's house. Some of the men arrived with weapons, which included wooden bed slats and a hammer. The appellant, who had parked up the road from MA's house, let MA know that he was there.
Persons inside MA's house included:
1.MA;
2.SS;
3.FS, who was visiting SS and had been drinking with MA and SS;
4.MA's wife and SS's sister, who it is convenient to refer to as PM; and
5.PM and MA's 13-year-old daughter, who it is convenient to refer to as LM.
MA and SS went outside, telling PM to stay inside. Notwithstanding that, PM and LM followed the men out. A short time later, FS also came out of the house.
MA and SS each picked up a piece of wood and walked out to meet the appellant. Words were exchanged between the appellant and MA. At one stage, the appellant told MA that he had come there to kill MA and that he would break MA's legs. Members of the appellant's group took the pieces of wood from MA and SS.
Count 1
The appellant then pulled out a hammer and struck MA with it above his right eye, splitting the skin above his eye and bruising his arm. MA fell to the ground momentarily unconscious. While MA was on the ground, members of the appellant's group punched, kicked and hit him, including with pieces of wood.
MA suffered a deep laceration 5 cm in length and between 0.5 cm and 0.7 cm in depth through his eyebrow and an abrasion over his right elbow. The laceration to the eyebrow required stitching.
Count 2
SS was then hit on his head with a large rock by an unknown person in the appellant's group. SS also fell unconscious to the ground. Members of the appellant's group further assaulted SS while he was on the ground unconscious.
SS suffered a depressed fracture to his skull. He attended at the hospital where the laceration over the fracture was sutured, and he was then sent home. SS had to return to the hospital a day or so later when he was suffering considerable pain in his head and had developed weakness in his arm and leg. SS required surgery to repair the depressed skull fracture.
Count 3
FS saw what was happening and ran forward with a stick in his hand. The appellant took the wooden stick from FS's hand. FS was set upon by members of the appellant's group and he suffered a broken tooth when he was punched hard to the face.
Involvement of PM and LM
PM had been filming the incident and came closer to the appellant to film him and his car. PM told the appellant that she would be going to the police. The appellant threatened to kill her and her whole family if she did so. PM was heavily pregnant at the time.
LM witnessed this violence. She was running around trying to stop what was happening and to help her father and her uncle.
Victim impact
The trial judge made the following findings as to the impact of the offending upon the victims.[2]
[2] Trial ts 917.
MA had, at the time of sentencing, an ongoing issue with his eye, affecting his capacity to work which caused him financial stress. He still suffered from watering eyes and his eye became inflamed on occasions. He suffered from headaches.
SS had not, at the time of sentencing, been able to work because of his injuries. He suffered both shame and discomfort while being nursed. He remained uncomfortable in his life. He said he could not write and his hand had been affected and shook. His memory had been affected and he suffered from headaches and numbness.
FS was, at the time of sentencing, still dealing with the effects of his broken tooth. He required a permanent tooth replacement. At the time of preparing his victim impact statement, FS had not been able to arrange the required implant and crown due to their significant cost. This caused him to feel embarrassed and self-conscious.
Personal circumstances
The trial judge made the following findings as to the appellant's personal circumstances.[3]
[3] Trial ts 917 - 919.
The appellant was 38 years old at the time of offending and 41 years old at the time of sentencing. He was born in Sri Lanka to a large family. The appellant's father misused alcohol and abused the appellant's mother and later the appellant. The appellant's father took his own life when the appellant was quite young.
The appellant finished the equivalent of year 12 at school, did further study and worked as a pharmacist's assistant in Sri Lanka. Since coming to Australia, the appellant had worked as a chef and leading hand as well as running his own business in furniture sales.
The appellant left Sri Lanka after he became caught up in conflict there during the civil war. During that conflict, the appellant was at one time detained and tortured, which led to him leaving Sri Lanka. The appellant came to Australia as a refugee in about 2009. He was detained on Christmas Island before being granted a visa.
The appellant was divorced and has two children in their late teens. The appellant remained very committed to those children and they were supportive of the appellant. At the time of sentencing, the appellant had a more civil relationship with his former wife than had previously been the case.
The appellant suffered, at the time of sentencing, from poorly controlled diabetes, and was anxious and depressed as a consequence of the proceedings. The appellant's early life experiences, the experiences that led him to leave Sri Lanka and the criminal proceedings contributed to that anxiety and depression. The appellant did not have any substance abuse issues.
The appellant had one prior conviction for a common assault which related to a domestic violence incident in June 2019. The appellant was fined for that offence and granted a spent conviction order.
Reference letters indicated that the appellant, in his usual life, has supportive friendships and is usually of a peaceful and gentle nature. The appellant cared for his family. He was the principal breadwinner for his family in Sri Lanka, whose expenses he had met over many years. The appellant was a member of a church. He had helped fellow refugees and done charitable work, particularly for people in Sri Lanka. The trial judge accepted that the offending was out of character for the appellant, who was otherwise a 'good and hardworking man'.[4]
[4] Trial ts 919.
Sentencing of Thaneshkumar Kathiramalai
Thaneshkumar Kathiramalai was convicted on pleas of guilty of one count of unlawful wounding and two counts of assault causing bodily harm. He was sentenced by Barone DCJ.
Thaneshkumar Kathiramalai was found criminally responsible for the unlawful wounding of MA by the appellant, and an assault causing bodily harm of SS, on the basis that it was a probable consequence of carrying out a common purpose with other members of the group.[5] Thaneshkumar Kathiramalai was sentenced for the assault causing bodily harm of FS on the basis that he either committed the assault or aided another to do so.[6]
[5] Trial ts 119.
[6] Trial ts 120.
Thaneshkumar Kathiramalai, who was 30 years old at the time of the offending, and 32 years old at the time of sentencing,[7] was sentenced on the basis that it was the appellant, rather than him, who organised everyone involved and that he acted out of a misguided sense of loyalty to, the appellant, his older brother.[8] He received a 25% discount for his plea of guilty under s 9AA of the Sentencing Act 1995 (WA).[9]
[7] Trial ts 122.
[8] Trial ts 117, 121.
[9] Trial ts 124.
Thaneshkumar Kathiramalai received the following sentences of imprisonment:[10]
[10] Trial ts 126 - 127.
Count
Offence
Maximum penalty
Sentence
Accumulation
1
Unlawful wounding of MS
(Criminal Code s 301(1))
5 years
16 months
Concurrent
2
Unlawful assault of SS causing bodily harm
(Criminal Code s 317(1))
5 years
2 years 3 months
Head sentence
3
Unlawful assault of FS causing bodily harm
(Criminal Code s 317(1))
5 years
12 months
(reduced from 2 years for totality)
Cumulative
Total effective sentence
3 years 3 months
Barone DCJ determined, largely due to Thaneshkumar Kathiramalai having spent two years in immigration detention because bail conditions prevented him from requesting to be deported to Sri Lanka, that these sentences of imprisonment should be suspended for a period of two years.[11]
[11] Trial ts 127 - 128.
Trial judge's approach
The trial judge found that the appellant was the principal offender for count 1 whose striking of MA with the hammer caused the unlawful wounding.[12] The trial judge said that it was not clear who hit SS with the rock or who broke FS's tooth.[13] The trial judge held that the appellant was criminally responsible for those actions because he went to MA's house armed and with the other men in the group who were also armed with the common intention of assaulting MA, and the violence meted out on SS and FS was a probable consequence of that intention.[14]
[12] Trial ts 915, 920, 922.
[13] Trial ts 920 - 921.
[14] Trial ts 916.
The trial judge identified the following aggravating factors of the offending:[15]
1.The appellant was on bail for the domestic violence offence at the time of the present offending.
2.The offending occurred at night on a suburban street.
3.The appellant was present with many people and the victims were outnumbered.
4.Weapons were used to inflict the injuries the subject of counts 1 and 2.
5.There was an element of vigilantism in the appellant's conduct in joining with others to avenge the earlier insult and physical conflict with MA.
6.The appellant threatened to kill PM and her family when she said she was going to the police.
7.The offending occurred in front of PM and LM, as well as in the presence of another very young child who was exposed to the violence of FS being beaten on the verge by a group of men.
[15] Trial ts 916, 921, 922.
The trial judge accepted that the offending was very out of character for the appellant. While the appellant did not 'seem to fulsomely accept responsibility for' his actions, the trial judge did not consider that there was a 'really significant risk' of the appellant continuing to offend in the future.[16] This was because the offending was so out of character for the appellant whose previous life had been a law abiding and successful one.[17]
[16] Trial ts 919.
[17] Trial ts 919.
The trial judge acknowledged that any sentence of imprisonment would visit a hardship on the appellant's family in Sri Lanka, particularly his mother. The trial judge gave this some weight as a factor which would make the appellant's time in custody more difficult than it might otherwise have been. The fact that English was not the appellant's first language and the limited family support the appellant had in Western Australia would also make his time in custody more difficult.[18]
[18] Trial ts 920.
The trial judge referred to the sentencing of the appellant's brother, Thaneshkumar Kathiramalai, by Barone DCJ on 25 March 2022. Her Honour noted that Thaneshkumar Kathiramalai pleaded guilty after reaching an arrangement with the State and was sentenced on a different basis than the appellant. The trial judge noted that Thaneshkumar Kathiramalai was sentenced for the unlawful wounding in count 1 on the basis that he had nothing to do physically with that wounding. Count 2 was a different lesser offence.[19] The trial judge found that Thaneshkumar Kathiramalai was just as culpable as the appellant in relation to count 3. The trial judge observed:[20]
So that means that on count 1 and count 2, I've got to treat you independently of what the sentence he was given but it seems to me that the sentence that he was given on count 3 which would have been two years' imprisonment but reduced for totality to one year, is something that I need to take into account and I need to adjust that sentence for the fact that he was given a discount for pleading guilty but that really sets the level of that sentence appropriately.
[19] Trial ts 921 - 922.
[20] Trial ts 922.
The trial judge concluded that sentences of immediate imprisonment were the only appropriate sentencing option in the appellant's case, and imposed the sentences noted at [2] above.
The appeal to this court
On 9 September 2024, the appellant filed an appeal notice in this court appealing against his sentences. As the appellant filed the appeal notice almost a year after the time for doing so expired, he requires an extension of time in which to appeal. On 17 December 2024, the application for an extension of time was referred to the hearing of the appeal.
The appellant is self-represented, and the grounds of appeal do not comply with the requirements of the Supreme Court (Court of Appeal) Rules 2005 (WA).
Many of the grounds (expressed as 'draft grounds') either seek to challenge the appellant's conviction of the charges or in effect contend that he should have been sentenced on a basis (such that he was acting in self-defence) which is inconsistent with the jury's guilty verdicts. Plainly, this court cannot deal with an appeal against sentence on the basis that the appellant is not guilty of the charged offences.
Putting aside the matters referred to in the previous paragraph, and making allowance for the fact that the appellant is an unrepresented prisoner for whom English is a second language, the grounds of appeal appear to be directed to raising the following issues:
1.The trial judge erred in fact in sentencing the appellant on the basis that the offending was premeditated.
2.The sentences imposed on the appellant infringed the parity principle.
3.The individual sentences were manifestly excessive, and the total effective sentence infringed the first limb of the totality principle.
Giving considerable latitude to the appellant, we will treat the grounds of appeal as raising these issues.
Finding of premeditation
The appellant submits that 'the evidence demonstrates that there is no grounds to assume premeditation'.[21]
[21]Amended Appellant's Case filed on 16 January 2025, submissions for ground 4.
There does not appear to have been any issue at trial that the appellant and MA were involved in a violent altercation at the appellant's shop on 4 January 2020, or that the appellant telephoned his brother after that altercation. The appellant then arrived at MA's home address with about 7 ‑ 9 other armed men that evening. The inference that they arrived with the common purpose alleged by the State - to confront MA outside of his home and to do some violence to him[22] - is compelling.
[22] See trial ts 841.
The trial judge's reasoning on the issue of premeditation was expressed in the following terms:[23]
Now, I do find that you arranged for your brother to come with you to [MA's] house along with some other men. It was put on your behalf that you did not arrange for your brother to be there or for the others to be there, but I can't accept that given that you all arrived at the same time and that they arrived with some weapons.
Nothing in the appellant's grounds or submissions provides any proper basis for doubting the correctness of that conclusion.
[23] Trial ts 914.
Further, the prosecution case against the appellant in respect of counts 2 and 3 relied solely on s 8 of the Criminal Code, and the existence of the common purpose noted above.[24] Given the way the case was left to them, the jury must have been satisfied that the appellant formed that common purpose with the other men before arriving at MA's address to have found him guilty of counts 2 and 3. The trial judge was bound by the jury's determination of that issue presented to the jury for decision by verdict.[25]
[24] See trial ts 841 - 843, 846, 850.
[25] Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [5].
Parity
The parity principle was summarised in the following terms by Buss P (Mazza JA agreeing) in Ngo v The Queen:[26]
[26] Ngo v The Queen [2017] WASCA 3 [36] - [39].
The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance.
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question.
In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:
(a)the parity principle is based upon the norm of 'equality before the law' [28];
(b)equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and
(c)equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].
Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co‑offender has played in the relevant criminal conduct or enterprise [31].
(Some citations omitted).
As noted at [42] above, the trial judge was cognisant of and applied the parity principle. The only charge for which the trial judge regarded the responsibility of the appellant and his brother to be comparable was count 3. The trial judge imposed a sentence of 2 years 8 months' imprisonment for that offence, for which Thaneshkumar Kathiramalai would have received a 2-year sentence before reduction for totality. The difference between the sentences for count 3 is broadly explicable by the application of the totality principle and the 25% discount which Thaneshkumar Kathiramalai received for his plea of guilty.
The difference between the appellant's sentence for count 1 of 2 years 6 months' imprisonment (reduced from 3 years for totality) and Thaneshkumar Kathiramalai's sentence of 16 months' imprisonment for count 1 is explained by the appellant's greater level of culpability for that offence. The appellant was the person who actually struck MA with the hammer, whereas Thaneshkumar Kathiramalai was liable only under s 8 of the Criminal Code. Further, the appellant was the principal instigator of the offending while Thaneshkumar Kathiramalai was sentenced on the basis that he acted out of misguided loyalty to his older brother. Further, Thaneshkumar Kathiramalai pleaded guilty and the appellant was on bail at the time of the offending.
The difference between the appellant's sentence of 4 years 6 months' imprisonment for the offence of unlawfully doing grievous bodily harm to SS and Thaneshkumar Kathiramalai's sentence of 2 years 3 months for assault of SS causing bodily harm reflects the different offences, with significantly different maximum penalties, of which they were convicted, Thaneshkumar Kathiramalai's plea of guilty to the offence of which he was convicted and the appellant having been on bail at the time of the offending.
The difference in the total effective sentences - 7 years for the appellant and 3 years 3 months for Thaneshkumar Kathiramalai - is explained by the greater culpability of the appellant for the offences charged in counts 2 and 3, particularly the more serious offence charged in count 2, Thaneshkumar Kathiramalai's pleas of guilty to the offences of which he was convicted and the appellant having been on bail at the time of the offending.
The most significant difference between the sentences imposed was between the suspended sentence imposed on Thaneshkumar Kathiramalai and the sentence of immediate imprisonment imposed on the appellant. The length of the appellant's total effective sentence meant that suspension was not available.[27] Further the principal factor in Barone DCJ's decision to suspend the sentences of imprisonment imposed on Thaneshkumar Kathiramalai was the time he had spent in immigration detention as a result of the charges. Whether or not immigration detention was properly taken into account (a matter which is unnecessary for us to decide), it provides the explanation for the suspended sentence received by Thaneshkumar Kathiramalai.
[27] See Sentencing Act, s 76(1). See also s 81(1) in respect of a sentence of conditional suspended imprisonment.
In all the circumstances of the present case, including those personal to the offenders, the differences between the sentences imposed on the appellant and those imposed on Thaneshkumar Kathiramalai do not give rise to an objectively justifiable sense of grievance. There has been no arguable infringement of the parity principle.
Inferred error
As was noted in Kabambi v The State of Western Australia,[28] the general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[28] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
In The State of Western Australia v Babakarkhil,[29] we summarised the general principles and customary sentencing practice for the offence of doing grievous bodily harm contrary to s 297(1) of the Criminal Code in the following terms:
[29] The State of Western Australia v Babakarkhil [2022] WASCA 59 [80], recently adopted in Greenup v The State of Western Australia [2024] WASCA 91 [54].
1.The three factors which are of general significance when assessing an offender's level of criminality for an offence of unlawfully doing grievous bodily harm are:
(a) the nature of the harm which results;
(b) the nature of the act which caused the injury; and
(c) the background to and circumstances of the offence.
2.The dominant sentencing considerations for offences where grievous bodily harm is done are personal and general deterrence. The courts must be seen to stand firmly against alcohol-fuelled violence in public entertainment areas.
3. The circumstances in which the offences of unlawfully doing grievous bodily harm and assault occasioning bodily harm can occur vary widely. Ordinarily a term of immediate imprisonment is the only appropriate penalty for an offence of unlawfully doing grievous bodily harm. It has been noted that the range for offences of unlawfully doing grievous bodily harm, which are towards the upper end of the range of seriousness but not of the most serious kind, is between 3 and 5 years' imprisonment. Whilst there have been some cases of unlawfully doing grievous bodily harm where suspended sentences have been imposed, they have almost invariably involved unusual circumstances, such as significant provocation.
(citations omitted)
The nature of the harm suffered by SS was very serious. Despite medical treatment, the effects of the injury were ongoing at the time of sentencing over three and a half years after the commission of the offence. It had prevented SS from returning to work. The striking of SS was unprovoked - he was not involved in the earlier altercation at the appellant's shop. The individual sentence imposed for this offence was within the range of sentences commonly imposed for an offence of this kind.
As to the offence of unlawful wounding, in Palmer v The State of Western Australia,[30] this court recently observed:
[T]he offence of unlawful wounding can be committed in a very wide range of circumstances, and by offenders who possess very different personal circumstances. In that context, it is understandable why it has been said that there is a significant variation in the sentences imposed for offences of unlawful wounding. Nevertheless, it has long been accepted that unlawful wounding is a serious offence. No doubt this is because wounding requires that there be a break or cut of all layers of the skin, and it is obvious that an injury of that nature may threaten the health and safety of a victim of such an offence. (citations omitted)
[30] Palmer v The State of Western Australia [2024] WASCA 97 [46].
In the present case, the appellant struck MA on the head with a hammer, which was an act highly likely to cause serious injury. While the unlawful wounding in this case was far from the most serious kind which may be the subject of the charge, it was still having an ongoing effect at the time of sentence.
As to the offence of assault causing bodily harm, it is also established that there is no tariff for that offence. This is because there are a wide range of circumstances in which the offence may be committed. Other cases can provide only limited assistance because the outcomes in such cases are fact-specific, in respect of both the circumstances of the offending and the personal circumstances of the offenders. Recently, this court has observed that there were discernible signs that sentences for the offence of assault causing bodily harm were 'firming up'.[31]
[31] See the discussion in Bradley v The State of Western Australia [2024] WASCA 94 [53].
The bodily harm caused in this case was of a moderately serious type, involving a broken tooth which required a permanent tooth replacement, which the victim had been unable to afford, that was causing ongoing issues for the victim.
The circumstances of each offence involved a large group of armed men attending at the address where MA and SS lived. The striking of SS on the head with a rock was highly likely to cause grievous bodily harm and was a probable consequence of the common purpose of attending the premises to do violence to MA. The offending occurred in the aggravating circumstances noted at [39] above. There were few mitigating circumstances, and the appellant did not have the benefit of a plea of guilty to the offences. We do not accept the appellant's oral submission to the effect that he did not appreciate his conduct was unlawful due to cultural differences and language difficulties. Nor do we accept that ignorance of the law, if established, would be a significant mitigating factor in this case. In all the circumstances, and having regard to all relevant sentencing principles, it is not reasonably arguable that any of the individual sentences imposed on the appellant were unreasonable or plainly unjust.
Further, in the circumstances of the present case which involved significant injuries to multiple victims, some degree of accumulation was required in order to reflect the overall criminality involved in all of the offending. It is not reasonably arguable that the total effective sentence of 7 years' imprisonment imposed in the present case infringes the first limb of the totality principle.
Orders
For the above reasons, none of the appellant's grounds of appeal has any reasonable prospect of succeeding. The appropriate orders are:
1.Leave to appeal is refused on all grounds of appeal.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
29 JANUARY 2025
0
8
1