Kere Kere v The State of Western Australia
[2016] WASCA 189
•2 NOVEMBER 2016
KERE KERE -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 189
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 189 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:79/2016 | 18 JULY 2016 | |
| Coram: | BUSS P MAZZA JA | 2/11/16 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for an extension of time to appeal dismissed Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | EDWARD TAWHARA KERE KERE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence One count of unlawfully doing grievous bodily harm Very late plea of guilty Appellant aged 35 at the time of the offending Relevant prior criminal record Sentence of 3 years' immediate imprisonment Manifest excess |
Legislation: | Criminal Code (WA), s 297(1) Sentencing Act 1995 (WA), s 6, s 7, s 8 |
Case References: | Djiagween v The State of Western Australia [2012] WASCA 141 Field v The State of Western Australia [2013] WASCA 209 Hobby v The State of Western Australia [2011] WASCA 197 Knight v The State of Western Australia [2014] WASCA 217 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Mercanti v The State of Western Australia [2009] WASCA 109 Peake v The State of Western Australia [2015] WASCA 239 Spence v The State of Western Australia [2014] WASCA 171; (2014) 244 A Crim R 337 The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308 Trompler v The State of Western Australia [2008] WASCA 265 Winmar v The State of Western Australia [2016] WASCA 62 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KERE KERE -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 189 CORAM : BUSS P
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'NEAL DCJ
File No : IND 1791 of 2015
Catchwords:
Criminal law - Appeal against sentence - One count of unlawfully doing grievous bodily harm - Very late plea of guilty - Appellant aged 35 at the time of the offending - Relevant prior criminal record - Sentence of 3 years' immediate imprisonment - Manifest excess
Legislation:
Criminal Code (WA), s 297(1)
Sentencing Act 1995 (WA), s 6, s 7, s 8
Result:
Application for an extension of time to appeal dismissed
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : No appearance
Solicitors:
Appellant : Gary Rodgers Barrister & Solicitor
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Djiagween v The State of Western Australia [2012] WASCA 141
Field v The State of Western Australia [2013] WASCA 209
Hobby v The State of Western Australia [2011] WASCA 197
Knight v The State of Western Australia [2014] WASCA 217
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mercanti v The State of Western Australia [2009] WASCA 109
Peake v The State of Western Australia [2015] WASCA 239
Spence v The State of Western Australia [2014] WASCA 171; (2014) 244 A Crim R 337
The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308
Trompler v The State of Western Australia [2008] WASCA 265
Winmar v The State of Western Australia [2016] WASCA 62
1 BUSS P: This is an application for an extension of time to appeal and leave to appeal against sentence.
2 The appellant was convicted, on his plea of guilty in the District Court, of one count in an indictment which alleged that on 21 February 2015, at Mandurah, the appellant unlawfully did grievous bodily harm to Michael Zareba, contrary to s 297(1) of the Criminal Code (WA) (the Code).
3 On 18 April 2016, O'Neal DCJ sentenced the appellant to 3 years' immediate imprisonment. A parole eligibility order was made. The sentence was backdated to 4 July 2015.
4 I would dismiss the application for an extension of time and refuse leave to appeal. My reasons are as follows.
The facts and circumstances of the offending
5 On 21 February 2015, the victim and his friend, Matthew Lincoln, were socialising at the Players Night Club in Mandurah.
6 At about 3.46 am, the victim and Mr Lincoln decided to leave the venue and return to their accommodation.
7 As the victim and Mr Lincoln exited the main bar area and entered the staircase foyer, the appellant approached Mr Lincoln in an aggressive manner and punched him once to the right side of his face. Mr Lincoln remained standing and did not retaliate.
8 The victim saw the incident. He grabbed the appellant's shirt, momentarily, at the rear shoulder area. The appellant turned and faced him.
9 The victim spoke to the appellant and endeavoured to defuse the situation. Without warning, the appellant threw a flurry of punches. He struck the victim six times in the face and head area. The victim was knocked to the ground.
10 Mr Lincoln and security staff at the night club endeavoured to stop the appellant's assault upon the victim. During this process the appellant punched Mr Lincoln in the face, knocking him to the ground.
11 The security staff ushered the appellant into the main bar area and the victim and Mr Lincoln left the night club.
12 As a result of the assault, the victim suffered two fractures to his right eye socket. His eyeball sank 3 mm deeper into the eye socket than normal. He underwent corrective surgery. A titanium plate was inserted to prevent his eyeball from retracting into the eye socket. The surgery repaired the damage and avoided permanent and residual disability.
13 At the time of the offending the appellant was aged 35, 180 cm in height and of solid muscular build. At that time the victim was aged 31, 168 cm in height and of medium build.
14 The offence in question relates solely to the assault upon the victim.
The appellant's personal circumstances and the sentencing judge's sentencing remarks
15 The appellant was born on 13 May 1979. He had a satisfactory childhood. The appellant completed year 12 at school and a university degree in agriculture. He has a good work history as a wool classer and in the construction industry.
16 The appellant has a prior criminal record. His previous convictions in Western Australia include criminal damage; common assault (two offences); assault occasioning bodily harm; assaulting a public officer; obstructing public officers; failing to comply with a request to give his personal details to police; entering licensed premises contrary to a barring notice; and numerous traffic offences. His previous convictions in Queensland include common assault and committing a public nuisance (three offences). The appellant was not, however, imprisoned for any of the prior offences.
17 The sentencing judge noted, after viewing CCTV footage of the offending, that the appellant was very aggressive towards the victim and Mr Lincoln (ts 27). His Honour also noted that the appellant's offending behaviour was getting worse as he got older (ts 28).
18 His Honour said that, although the appellant's plea of guilty was mitigating, the plea was made 'as late as it could be without the trial actually starting' (ts 28). He allowed a 5% discount for the plea pursuant to s 9AA of the Sentencing Act 1995 (WA).
19 The sentencing judge said it was difficult for him to know 'what is driving this offending' and, consequently, it was difficult for him to assess the appellant's prospects of rehabilitation (ts 29).
20 His Honour concluded that there was 'not much in the way of mitigation' (ts 29).
21 The victim was 'considerably smaller' than the appellant. The appellant seriously injured the victim 'for no reason at all'. The victim never raised a fist to the appellant. The victim was 'backing up with his hands up' and the appellant 'kept after him until [he] hit him to the ground' (ts 30).
22 The sentencing judge found that the victim's injury was not 'in the more serious category of offences of grievous bodily harm', but it could not be described as 'trivial'. His eye socket was badly fractured. The multiple blows inflicted by the appellant, on a man who was 'backing up', indicated that the appellant's offending was 'at least in the middle range of offences of this kind' (ts 31).
23 His Honour concluded that, in view of the seriousness of the offence, a term of imprisonment to be served immediately was the only appropriate sentencing option.
The ground of appeal
24 The appellant relies on one ground of appeal.
25 The ground alleges that the sentence imposed was, in all the circumstances, manifestly excessive.
26 The appellant does not challenge any of the sentencing judge's findings of fact.
Counsel for the appellant's submissions
27 Counsel for the appellant contended that, having regard to the plea of guilty, the appellant's antecedents, the criminality involved and the sentences imposed in broadly comparable cases, the sentence of 3 years' immediate imprisonment was unreasonable or plainly unjust.
28 It was submitted that sentences which have been imposed for 'grievous bodily harm committed by punching to the face' demonstrate that a sentence of 3 years' immediate imprisonment is 'way beyond [the sentences] that are ordinarily given, allowing for early pleas of guilty and the like' (appeal ts 4).
29 It was argued that the sentence of 3 years' immediate imprisonment was 'one that would perhaps more reflect a grievous bodily harm caused by punching [in a] more serious category' (appeal ts 6).
30 Counsel for the appellant accepted that a term of immediate imprisonment was the appropriate penalty, but submitted that, in all the circumstances, the length of the term was manifestly excessive.
The merits of the ground of appeal
31 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of 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.
32 The discretion conferred on sentencing judges is, of course, 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. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
33 In Western Australia, the statutory sentencing principles are set out in pt 2 of the Sentencing Act. By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
34 The maximum penalty for unlawfully doing grievous bodily harm to another, if the offence is not committed in circumstances of aggravation, contrary to s 297(1) of the Code, is 10 years' imprisonment.
35 I have examined numerous cases of offending against s 297(1) including Trompler v The State of Western Australia [2008] WASCA 265; Mercanti v The State of Western Australia [2009] WASCA 109; The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308; Peake v The State of Western Australia [2015] WASCA 239; Winmar v The State of Western Australia [2016] WASCA 62; and decisions cited in those cases. I have also considered other cases cited by counsel for the appellant including Hobby v The State of Western Australia [2011] WASCA 197; Djiagween v The State of Western Australia [2012] WASCA 141; Field v The State of Western Australia [2013] WASCA 209; Spence v The State of Western Australia [2014] WASCA 171; (2014) 244 A Crim R 337; and Knight v The State of Western Australia [2014] WASCA 217. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
36 In Taylor [35] - [39], I made these remarks (McLure P and Mazza JA agreeing):
In Trompler, Wheeler JA (Buss JA agreeing) noted that there are, in general, three matters of significance in determining the criminality of an offence which involves unlawfully doing grievous bodily harm. First, there is the nature of the harm which is inflicted. Although any grievous bodily harm is necessarily serious, it may range from a permanent injury with which the complainant is able to cope, to a severe and life-threatening injury which occasions significant permanent disability. Secondly, there is the nature of the act which causes the harm. This may range from a single act, to repeated acts of violence. Thirdly, there is the background to and circumstances of the offence. This may range from a response to a provocative act of the complainant, to random and senseless violence. See Trompler [9] - [11]. See also Hussaini v The State of Western Australia [2009] WASCA 207 [23] (Wheeler JA).
McLure JA made these comments in Trompler about the broad range of sentences (post-transitional) for unlawfully doing grievous bodily harm:
'The sentences actually imposed for offences of this type have a post-transitional range of 8 months (Camilleri) to 5 years and 4 months (Bruno v The State of Western Australia [2005] WASCA 149). I have reviewed many of the cases in between (including R v Hodges [1999] WASCA 278; Hayes v The Queen [2003] WASCA 230; Clements v The State of Western Australia [2006] WASCA 69; Etrelezis v The Queen [2001] WASCA 327) [38].'
In each of The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394, Bruno v The State of Western Australia [2005] WASCA 149, R v Hodges [1999] WASCA 278, Hayes v The Queen [2003] WASCA 230 and Clements v The State of Western Australia [2006] WASCA 69, the offender entered a plea of guilty.
In Trompler, Wheeler JA observed:
'I would note that in Camilleri (The State of Western Australia v Camilleri [2008] WASCA 217), I reviewed a number of cases involving offences of grievous bodily harm. They reveal that, as one would expect, serious offences of the kind inevitably attract sentences of imprisonment of some severity and that, prior to the increase in the maximum penalty from 7 years to its current maximum of 10 years, relatively serious examples of that kind of offence would result in a range of sentences (pre-transitional) of 3 to 5 years. Allowing for the effect of the transitional provisions and the effect of the increase in the maximum, one would expect a post-transitional range of 3 to 5 years for those offences which are towards the upper end of the range, although not of the most serious kind [19].'
In Mercanti, Miller JA (Wheeler & Pullin JJA agreeing) held that the general range established in cases of unlawfully doing grievous bodily harm is between 8 months and 5 years 4 months, but more like 3 to 5 years for offences towards the upper end of the range [35]. His Honour added that these ranges were 'post-transitional' and, in view of the decision of the majority in The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, this was the appropriate range to apply [36]. See also Djiagween v The State of Western Australia [2012] WASCA 141; Holden v The State of Western Australia [2011] WASCA 238; Hobby v The State of Western Australia [2011] WASCA 197; Steel v The State of Western Australia [2010] WASCA 118; Ward [No 2].
37 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.
38 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.
39 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.
40 In the present case, the appellant's offending was serious. He inflicted numerous forceful blows to the victim's face and head. The victim was knocked to the ground. The violence was gratuitous and senseless. The victim did not, in any sense, provoke the attack. Indeed, he was retreating. The victim's injury required surgery. He appears to have made a full recovery, but the appellant's behaviour had the potential to result in a more serious injury than was in fact suffered.
41 I am not persuaded that the sentence of 3 years' immediate imprisonment was beyond the range of sentences which have been imposed in cases with at least some features comparable to the present case. The sentence imposed by his Honour was not outside the range of sentences where, in similar circumstances, grievous bodily harm of comparable seriousness has been caused either by repeated and forceful punching of the victim or otherwise.
42 As the sentencing judge rightly commented, there was 'not much in the way of mitigation' (ts 29). The plea of guilty was mitigating, but was not entered until the first day of the scheduled trial. The appellant's good work history and some of his other personal antecedents were mitigating.
43 However, the appellant did not have the mitigation of youth. His prior criminal record, and any failure of previous sentences to achieve the purpose for which they were imposed, did not, of course, aggravate the current offending, but his record demonstrated that he was not of prior good character. His Honour was unable to assess reliably the appellant's prospects of rehabilitation.
44 Personal deterrence and general deterrence were of importance. A term of imprisonment to be served immediately was the only appropriate sentencing option.
45 In my opinion, it is not reasonably arguable that the length of the sentence of 3 years' immediate imprisonment was manifestly excessive. In other words, when the sentence is viewed from the perspective of the maximum penalty (10 years' imprisonment), and after taking into account all relevant facts and circumstances and all relevant sentencing factors, including:
(a) the seriousness of the offence;
(b) the vulnerability of the victim in that he was 'considerably smaller' than the appellant (ts 30);
(c) the nature and extent of the victim's injury;
(d) the general pattern of sentencing for offences of this kind;
(e) the importance of personal and general deterrence as sentencing factors; and
(f) the limited mitigating features,
it is not reasonably arguable that the length of the term of imprisonment was unreasonable or plainly unjust.
46 The sentence of 3 years' immediate imprisonment was commensurate with the seriousness of the offence and was within the range open to the sentencing judge on a proper exercise of his discretion.
47 The ground of appeal is without merit.
Conclusion
48 The ground of appeal does not have a reasonable prospect of success. I would therefore dismiss the application for an extension of time to appeal. Leave to appeal should be refused and the appeal dismissed.
49 MAZZA JA: I agree with Buss P.
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