Kennedy v The State of Western Australia

[2008] WASCA 185

KENNEDY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 185

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 185
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:25/2008	Heard:	6 AUGUST 2008
Coram:	STEYTLER P WHEELER JA MILLER JA	Delivered:	4/09/08
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal allowed Appellant resentenced
Category:	D
PDF Version

Parties:	BRIAN JAMES KENNEDY THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal Sentence Totality Term of imprisonment already being served
Legislation:	Criminal Code (WA), s 294
Case References:	Bell v The Queen [2001] WASCA 378 Carr v Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 Drake v The State of Western Australia [2006] WASCA 209 Henderson v The State of Western Australia [2007] WASCA 198 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Scott v The Queen (Unreported, WASCA, Library No 990004, 15 January 1999) Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KENNEDY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 185 CORAM : STEYTLER P

WHEELER JA
MILLER JA

HEARD : 6 AUGUST 2008 DELIVERED : 4 SEPTEMBER 2008 FILE NO/S : CACR 25 of 2008 BETWEEN : BRIAN JAMES KENNEDY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : KEEN DCJ

File No : IND 269 of 2007, IND 1645 of 2007

Catchwords:

Criminal law - Appeal - Sentence - Totality - Term of imprisonment already being served

(Page 2)

Legislation:

Criminal Code (WA), s 294

Result:

Appeal allowed

Appellant resentenced

Category: D

Representation:

Counsel:

Appellant : Mr S B Watters
Respondent : Mr B Fiannaca SC

Solicitors:

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

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

Bell v The Queen [2001] WASCA 378
Carr v Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1
Drake v The State of Western Australia [2006] WASCA 209
Henderson v The State of Western Australia [2007] WASCA 198
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Scott v The Queen (Unreported, WASCA, Library No 990004, 15 January 1999)
Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)


(Page 3)

1 STEYTLER P: I agree with Wheeler JA.

WHEELER JA:

The appeal

2 The appellant was convicted following a trial by jury of a count of causing grievous bodily harm to another with intent: Criminal Code (WA) s 294. On 20 December 2007, the appellant was sentenced to 4 years' imprisonment in relation to that offence. The appellant had also entered late guilty pleas in respect of two offences contained on a separate indictment; namely, one count of threatening to unlawfully kill another and one count of wilful damage to property. On 20 December 2007, he was also sentenced to 2 years' imprisonment in respect of the threat to kill and 18 months' imprisonment for wilful damage. The 2-year sentence was ordered to be served cumulatively on that for the offence of grievous bodily harm, giving rise to a total effective term of 5 years and 177 days' imprisonment; this figure was arrived at after an allowance for 188 days the appellant had spent in custody in respect of the grievous bodily harm offence. The total sentence therefore equated to one of 9 years prior to the transitional provisions. These sentences were ordered to be served cumulatively upon sentences of imprisonment which the appellant was then serving.

Circumstances of the offences

3 The sole ground of this appeal is that the learned sentencing judge erred in imposing a total effective sentence which infringed the totality principle. In written submissions, the appellant rightly concedes that the individual sentences are appropriate in the circumstances. They may properly be described as severe, but were not outside an appropriate range, having regard to the serious nature of the offending. The only question is whether his Honour should have ordered partial, rather than total, cumulation upon the sentence the appellant was already serving.

4 The facts of the relevant offences may be shortly stated. On 5 October 2005, the complainant Roberts was at his home with his wife and young children. Between 10.00 pm and 11.00 pm, he heard loud music emanating from an adjoining property where the appellant was staying. The noise was so loud that it prevented the complainant and his family from falling asleep. At approximately 11.30 pm, the complainant shouted something in response to the noise. Shortly thereafter, the complainant heard a sound outside his home. He opened the front security door and held it slightly ajar. The appellant then pulled open the

(Page 4)

door, held a replica automatic pistol several inches from the complainant's head and said, "You are going to be six foot under". The complainant was shaken and feared for his life. These facts constituted the threat to kill.

5 On 30 July 2006 at approximately 6.41 pm, the appellant returned to the complainant's home where he smashed the windscreen and headlights of a motor vehicle parked in the carport. The appellant then yelled out to the complainant, and attempted to pull the security screen door away from its frame. He then smashed a window at the front of the premises and caused damage to the window frame. This was the wilful damage offence.

6 Immediately prior to the wilful damage offence, the appellant had been involved in an altercation that gave rise to the charge of grievous bodily harm. At 6.10 pm, he attended the home of his estranged father-in-law, Mr Cable, in the company of another. The appellant had recently separated from his partner and sought information about the whereabouts of his newborn son. He asked Mr Cable "Where is he? Where's my boy? I want to see my boy." When the appellant did not get the answers that he wanted, he ran at Mr Cable and started to strike him. Mr Cable defended himself with a tee-ball bat. There was evidence at trial that Mr Cable struck the appellant, causing him to fall to the ground. The person who had accompanied the appellant to the premises, then started to throw bricks and other items. Mr Cable told the appellant to leave the premises, but, instead, the appellant armed himself with a metallic object which was used to strike the complainant in the head with such force that he suffered grievous bodily harm. It was not clear whether the appellant or his co-offender was responsible for striking the complainant. As a result of the altercation, Mr Cable suffered a severely fractured skull and some brain damage.

Appellant's personal circumstances

7 The appellant's personal circumstances included the following. He was 22 and 23 years old at the time of the later offences. The learned sentencing judge noted that he had a long history of prior juvenile and adult convictions for drug offences, burglary, theft, resisting arrest, possessing weapons, criminal damage and breach of a violence restraining order. His upbringing had been dysfunctional, and included some physical abuse. He eventually became a ward of the State and developed a longstanding drug addiction.

(Page 5)

Sentencing remarks

8 His Honour's sentencing remarks included the following observations:

Moving on to the sentencing disposition, I am told in the reports that I have received that you have been placed on community based orders in the past which have not been successful and you have also breached a suspended sentence imprisonment order. It seems you did successfully complete a period of parole. However, during that period illicit drugs were detected upon you.

It seems from the report that you have completed some programs whilst in custody and I have been provided with certificates in that respect. I am told that you recognise that you have anger management problems related to substance abuse and that you wish to engage in programs to try to sort your life out. Further, I am told that you wish to become a positive role model for your son and to get to know him when you can.

…

… I must consider whether to make the sentence that I pass in respect of these matters cumulative upon your current term or concurrent … In doing so I take into account that the sentence should take into account the exponential effect of an increased term of imprisonment resulting from additional terms of imprisonment being imposed.

…

I am informed that your current term is due to expire on 4 May 2009 and that the earliest date for release is 2 August 2008. I am not prepared to backdate the new terms I am about to impose but I do reduce the term for the grievous bodily harm charge by the number of days that you have been in custody and I am told that that amounts to 188 days.

…

I have to consider whether or not to make those terms for which I am dealing with you today in themselves concurrent or cumulative. One might be tempted to say that each of the offences that occurred on 30 July 2006 were one multifaceted course of criminal conduct. However, they involve two separate incidents with two separate complainants at two separate locations. In my view, the grievous bodily harm charge should in the first instance be treated as separate from the wilful damage charge. However, I do address this further when considering the totality of the sentence.

The offence of threat to kill is clearly a separate incident, albeit against the same complainant as in the wilful damage charge. However, it was separated in time by some nine months. (AB 65 - 66, 68 - 69)

(Page 6)

9 His Honour ultimately formed the view that the sentence for threatening to kill should be served cumulatively with the sentence imposed for grievous bodily harm and that the aggregate term of 5 years and 177 days should be "on top of [the appellant's] existing term of imprisonment" (AB 69).

The basis of the appeal

10 The two limbs of the appellant's complaint about the sentence imposed upon him are really articulated at pars 20 to 22 inclusive of the appellant's written submissions. They read as follows (citations and references omitted):

20. The Appellant does not challenge the sentence of 5 years and 177 days that was imposed, but submits, so as not to offend the totality principle, there should have been partial accumulation of that sentence, and not an order it be served wholly cumulative upon the sentence that was being served.

21. As stated above, whilst the sentence itself for the grievous bodily harm with intent (4 years - post transitional provisions) was not manifestly excessive, nor were any of the other individual sentences imposed, the total effective sentence that is now to be served by Mr Kennedy is, despite his Honour's views to the contrary, one that is 'crushing' and manifestly excessive, from which error may be inferred.

22. His Honour's infringement of the totality principle is also reflected in his repeated reference to the need for general and personal deterrence (ts 304B; 305B; 306A). In so doing, his Honour failed to properly recognise the rehabilitation that had been effected during the sentence the Appellant was already serving.

11 These submissions require consideration of the term in fact being served by the appellant. At the hearing of the appeal, the appellant sought to place before us a letter from the Sentence Information Unit of the Department of Corrective Services, setting out in some detail the more recent sentencing history of the appellant, together with calculations as to a variety of dates for his release. There was some difficulty with those calculations, and, with the consent of the parties, the court therefore sought from the Sentence Information Unit a further letter with more detail of the relevant calculations. Further subsequent correspondence corrected that second letter. Ultimately, the position seems to be as follows.

12 The appellant was sentenced in the Perth Magistrates Court on 5 February 2007 for a number of offences with a total sentence of

(Page 7)

18 months with parole eligibility. Although it is not entirely clear, it appears that there were two counts of breach of bail, one of criminal damage, and one of burglary. On 6 March 2007, he was sentenced in the Perth Children's Court for burglary and received a concurrent term of 3 months' imprisonment. On 17 April, he was sentenced in the District Court for reckless driving and received a sentence of 12 months' imprisonment with parole eligibility, concurrent with the February sentence. In June, he appeared in the Midland Magistrates Court on a charge of reckless driving and received a term of 6 months' imprisonment, without parole eligibility, and cumulative upon the term which he was then serving. At that time, sentences would have expired on 4 February 2009 and his earliest parole eligibility date was 5 May 2008.

13 On 12 July, the appellant was served with a variety of fine default warrants totalling 89 days. At the time of execution of those warrants, they were to be served cumulatively. That resulted in the maximum and parole eligibility dates referred to by his Honour. However, the effect of retrospective legislation passed after the appellant was sentenced by his Honour was to require that the fine default days were to be served concurrently with earlier sentences. Taking into account the retrospective recalculation of the relevant dates, the sentence imposed by his Honour would then take effect upon a pre-existing term which was as set out in the preceding paragraph.

14 Disregarding the fine default days, which ultimately had no practical effect, the imposition of the term of 5 years and 177 days, with parole eligibility, as imposed by his Honour, has the result that the appellant's earliest date for release would be 31 July 2014, and his earliest eligibility date for parole would be 31 July 2012.

Totality: "crushing" term

15 The short answer to the "crushing" limb of the appellant's argument is that a term of imprisonment which will terminate at the latest in July 2014 could not be regarded as "crushing" in the sense of destroying any reasonable expectation of a useful life after release. The appellant will be relatively young when released from prison and with some effort on his part will be capable of becoming a contributing and law abiding member of society should he wish to do so: Carr v Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [6], [8] (McLure JA).

(Page 8)

Totality: other issues

16 In Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999), Anderson J said:

… [T]here is now a long line of authority to the effect that the totality principle must be applied, as best the court can … wherever a prisoner is being sentenced for an offence whilst he is still serving a sentence for some other offence about which the Court might not know very much. As Badgery-Parker J himself said in Larsen [(1989) 44 A Crim R 121 (126)]:

'The principle of totality must always inform the sentencing process when a prisoner comes to be sentenced for an offence at a time when he is already serving another sentence. When cumulative sentences are to be imposed, the appropriateness of each sentence has to be assessed by having regard to the ultimate aggregate sentence that results from the adoption of that course of action. The totality of the sentence imposed on the offender must bear a proper relationship to the overall criminality involved in the various offences being dealt with.'

…

I think it is also recognised (and this may be simply another aspect of the totality principle) that when a second sentencing court is considering the imposition of a cumulative sentence, there are mitigating factors arising out of that circumstance itself … [T]he second sentencing court may see (or assume) that the prisoner has made progress towards rehabilitation during the term of the first sentence. In addition, there is not the same demand for retribution where the prisoner has already suffered loss of liberty and where there has already been an 'emphatic denunciation by the community' of his or her criminal behaviour and attitude. (8 - 10)

17 In the present case, there was material suggesting that the appellant had taken steps to rehabilitate himself during the time that he had spent in prison. The learned sentencing judge noted in this regard (AB 64 - 66):

I have read the pre-sentence report on you, which suggests that you do have a certain amount of empathy for Mr Cable. You are quoted as saying, 'If I could change things I would.' However, you are reluctant to admit all of the events involved in the police statement of materials facts and the report does suggest that you have some remorse for the offence.

You are currently a serving prisoner and I am told that while in prison you have taken a number of courses to try to address your problems, particularly anger management. I am told that you have kept yourself fit and clean of drugs while in prison, despite being able to obtain them …

It seems from the [pre-sentence] report that you have completed some programs whilst in custody and I have been provided with certificates in

(Page 9)

that respect. I am told that you recognise that you have anger management problems related to substance abuse and that you wish to engage in programs to try to sort your life out. Further, I am told that you wish to become a positive role model for your son and to get to know him when you can.

18 It seems to me plain that the submission that his Honour "failed to properly recognise" the appellant's rehabilitation cannot be made out. However, in my view, the totality principle did require some partial concurrency with the earlier sentences.

19 In Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, the High Court held that the proper test for determining whether a sentence is manifestly excessive having regard to the fact that the offender is serving an existing sentence is "to ask what would be likely to have been the effective head sentence imposed if the applicant had … been sentenced at one time" (66).

20 In applying this test to the present case, it is necessary to have regard to authorities concerning offences broadly similar to those the subject of the present appeal.

21 In Bell v The Queen [2001] WASCA 378, the appellant pleaded guilty to aggravated burglary, assault with intent to facilitate the commission of a crime, assault occasioning bodily harm and unlawful detention. The offences were all committed on one occasion against a single complainant after the appellant broke into the complainant's home while she was asleep. The appellant was armed with a knife and punched the complainant several times to the head before throwing her against a wall. The appellant was also found guilty of one count of threatening to kill. Not all of the pleas were entered at the earliest possible opportunity. At the time of sentencing, the appellant was 30 years old and had a very long criminal record, albeit not one for violent offending. Psychological and psychiatric reports placed before the court disclosed little by way of mitigation, although there was evidence of regret and remorse. The total effective sentence which amounted to 5 years' imprisonment (post-transitional) was not disturbed on appeal.

22 In Henderson v The State of Western Australia [2007] WASCA 198, following a trial by jury, the appellant was convicted of one count of aggravated burglary, three counts of unlawful detention, one count of stealing a motor vehicle and one count of unlawful assault occasioning bodily harm resulting from a punch to the complainant's head. The offences were committed in an attempt to enforce a drug debt and

(Page 10)

occurred over the space of three hours. The appellant was 27 years of age at the time of the offences, had no prior record and came to the court with an excellent employment record. His total effective sentence of 4 years' imprisonment was not disturbed by the Court of Appeal.

23 Drake v The State of Western Australia [2006] WASCA 209 concerned an appellant who entered fast track pleas of guilty to three counts of aggravated burglary and two counts of assault occasioning bodily harm against two separate complainants. The bodily harm comprised mostly of soft tissue injuries and lacerations to the complainants' faces. The appellant was 38 at the time of sentencing and had relevant prior convictions. A psychiatric report made the point that the appellant had reflected on her recent behaviour and shown remorse for her actions. An aggregate sentence of 2 years and 2 months' imprisonment was imposed on appeal; however, it was pointed out that terms of between 4 years and 7 years' imprisonment are generally an appropriate range for home invasions committed with intent to intimidate the occupants (Roberts-Smith JA at [61] - [63], Martin CJ at [1]).

24 In Scott v The Queen (Unreported, WASCA, Library No 990004, 15 January 1999), the appellant entered fast-track pleas of guilty to one count of aggravated burglary and one count of grievous bodily harm. The offences arose out of a single episode in which the appellant and his co-offenders entered the complainant's home and, using both fists and an iron bar, struck approximately 40 to 50 blows to the complainant's body. The complainant sustained numerous lacerations, fractures, swelling and extensive bruising. The appellant was in his late twenties with a good employment record and no previous convictions. He was assessed as being unlikely to reoffend and was sentenced to an aggregate term equivalent to 2 years and 4 months' imprisonment under the current system.

25 Of course, the cases to which I have referred each involve offences committed in different circumstances from those in the present case. The offences of assault occasioning bodily harm (in Bell, Henderson and Drake) and grievous bodily harm (in Scott) were committed in conjunction with the offence of aggravated burglary. In the present case, although the burglary was not committed in circumstances of aggravation, it was completely separate from the offences that formed the subject of this appeal. Further, there were multiple episodes of offending, of various kinds, which resulted in the earlier terms of imprisonment. Calculating a "proportionate" total cannot be carried out with precision.

(Page 11)

26 However, I am satisfied that, having regard to the indications of the appellant's rehabilitation, and having regard to the fact that none of the earlier offences were offences of violence, an allowance should have been made for the term already being served by the appellant. In lieu of his Honour's order for cumulation of sentence, I would order that the term of 5 years and 177 days imposed in respect of these offences be served partly concurrently with the term the appellant was serving on 20 December 2007, so that the term of 5 years 177 days commences when the appellant has served 9 months of that former term.

27 MILLER JA: I agree with Wheeler JA.