Knight v The State of Western Australia
[2014] WASCA 217
•21 NOVEMBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KNIGHT -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 217
CORAM: MAZZA JA
HALL J
HEARD: 3 NOVEMBER 2014
DELIVERED : 21 NOVEMBER 2014
FILE NO/S: CACR 18 of 2014
BETWEEN: EDWARD WILLIAM KNIGHT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DAVIS DCJ
File No :IND ALB 82 of 2012
Catchwords:
Criminal law and procedure - Application for extension of time to appeal - Application for leave to appeal against sentence - Appellant convicted after trial of aggravated burglary, grievous bodily harm and assault causing bodily harm and sentenced to a total effective sentence of 5 years' imprisonment - Whether sentence infringed the parity principle - Whether alleged express errors made - Whether sentence infringed the totality principle - Turns on own facts
Legislation:
Criminal Code (WA), s 297, s 317(1), s 401(1)
Sentencing Act 1995 (WA), s 6, s 7, s 8, s 39
Result:
Extension of time granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
Roffey v The State of Western Australia [2007] WASCA 246
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
Walgar v The State of Western Australia [2007] WASCA 241
Wilson v The State of Western Australia [2010] WASCA 82
MAZZA JA: This is an application for an extension of time to appeal and, if an extension is granted, for leave to appeal against sentence.
The appeal was filed approximately six weeks out of time. The delay is attributable, in part, to the appellant's then counsel (the appellant now acts in person) being on leave during the Christmas period. In the circumstances, I would grant an extension of time.
The appellant and his son, Nicholas William Knight (Nicholas), were charged on indictment in the District Court as follows:
(1)On 17 June 2012 at Centennial Park Edward William Knight and Nicholas William Knight entered the place of Ashley Peter Herbert without his consent, with intent to commit an offence therein
And that Edward William Knight and Nicholas William Knight were armed with an offensive instrument
And that Edward William Knight and Nicholas William Knight were in company with others
And that Edward William Knight and Nicholas William Knight immediately before the commission of the offence knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
(2)On the same date and at the same place Edward William Knight and Nicholas William Knight unlawfully did grievous bodily harm to Ashley Peter Herbert.
(3)On the same date and at the same place Edward William Knight and Nicholas William Knight unlawfully assaulted Ronald James Cockman and thereby did him bodily harm.
(4)On the same date and at the same place Edward William Knight and Nicholas William Knight and [sic] unlawfully assaulted Fraser David Heatherington and thereby did him bodily harm.
Count 1 is contrary to s 401(1)(a) of the Criminal Code (WA), count 2 is contrary to s 297 of the Criminal Code and counts 3 and 4 are contrary to s 317(1) of the Criminal Code. The maximum penalties for these offences are: count 1, 20 years' imprisonment; count 2, 10 years' imprisonment; and counts 3 and 4, 5 years' imprisonment.
On 23 October 2013, after a trial before Davis DCJ and a jury, the appellant was convicted of counts 1, 2 and 3 and acquitted of count 4. His son was convicted of counts 1 and 2 and acquitted of counts 3 and 4.
On 15 November 2013, the appellant was sentenced as follows:
• Count 1 - 3 years' imprisonment concurrent
• Count 2 - 3 years 6 months' imprisonment, head sentence
• Count 3 - 18 months' imprisonment cumulative.
Thus the total effective sentence imposed upon the appellant was 5 years' imprisonment. The appellant was made eligible for parole.
The appellant's son was sentenced on count 1 to 2 years 4 months' imprisonment suspended on conditions for a period of 2 years.
The proposed grounds of appeal
The appellant's proposed grounds of appeal, in substance, allege:
(1)that the sentence imposed upon him for the aggravated burglary, when compared to the sentence imposed on his son, infringed the parity principle (ground 1);
(2)the learned sentencing judge erred in her treatment of the appellant's criminal history (ground 3); and
(3)that the total effective sentence infringed the first limb of the totality principle as to the type of sentence imposed or, alternatively, as to its length (grounds 2 and 4).
For the reasons that follow, none of the proposed grounds of appeal have a reasonable prospect of succeeding. Accordingly, the appeal is taken to have been dismissed.
The facts
Her Honour's findings as to the circumstances of the offending have not been challenged and may be summarised in this way. The appellant has two sons, Vincent and Nicholas. Vincent shared a house with Ashley Peter Herbert, the complainant in counts 1 and 2.
On 17 June 2012, while Mr Herbert was out, an altercation took place at the house involving Vincent and others. Somehow, damage was done to the front door. Mr Herbert discovered the damage when he returned home and, after finding out what occurred, asked Vincent to move out.
Later on that day, a group of men called in to visit Mr Herbert, among them the complainant in count 3, Mr Cockman. During the course of packing up, Vincent made a lot of noise. Mr Herbert went to investigate. He and Vincent started to fight. They ended up in Vincent's bedroom, with Mr Herbert holding Vincent down on the bed by his throat, assisted by one of the men. Eventually, Vincent was let go and he left the house through the bedroom window.
A short time later, Vincent found the appellant at a nearby service station. The appellant took Vincent to hospital. After that, the appellant collected his eldest daughter's partner, René Godomski, who armed himself with a bat. The appellant then picked up a friend of his, Martin Adams, who brought with him a wooden picket. Lastly, he collected Nicholas. All four men then drove to Mr Herbert's house. Initially, Nicholas had no intention to go to Herbert's house to assault the occupants. However, in the car he found out that Vincent had been injured and by the time he arrived there, in common with the others, he had formed the intention to assault its occupants.
Upon his arrival at the house, the appellant picked up a metal weights bar from the outside front porch. Nicholas, followed by the appellant, Godomski and Adams, then forced their way into the house.
Immediately after they entered the house, Mr Herbert and two of his friends who had been sitting in the lounge room were set upon. The appellant started striking Mr Herbert with the metal bar. Mr Herbert jumped out of the lounge room window, but, noticing others outside, he re‑entered the house. The appellant continued to strike or attempt to strike him with the metal bar. Mr Herbert again jumped out the window to the front of the house, where he was restrained by Nicholas. The appellant then struck Mr Herbert again before he managed to escape through the rear of the house. The appellant also struck Mr Cockman at least twice with the metal bar to the leg.
Mr Herbert suffered a left tension pneumothorax, bruising to his right ankle and shin, and a laceration to his right knee. If not for medical assistance and treatment, the pneumothorax was likely to have endangered his life. Mr Cockman sustained a fractured right ankle and bad bruising and swelling on his thigh.
Her Honour accepted that it had taken Mr Herbert months before he could breathe properly again and that he has been left with a scar on his knee and problems with his ankle. He was unable to work for a period of months.
Mr Cockman, too, had ongoing problems as a result of his injuries. At the time the appellant was sentenced, Mr Cockman's ankle was 'still not back to normal'.
In addition to their physical injuries both men also suffered psychologically.
Her Honour found that the appellant's attack upon the victims 'was a violent and senseless attack' born out of anger from what had occurred earlier to Vincent. She also found that the attack was a premeditated and planned 'act of retribution or revenge'.
With respect to Nicholas, her Honour found that, apart from the physical altercation with Mr Herbert at the front of the house, he did not attack anyone. Her Honour said that she was satisfied that, after this altercation, he withdrew from what was occurring and played no further role.
The appellant's personal circumstances
The appellant was 55 years of age on the date he was sentenced. He is the father of four children. He has a constant work record. The appellant has a history of cannabis and amphetamine use. He has a criminal record, including a conviction in the District Court in 2010 for possession of methylamphetamine with intent to sell or supply for which he was imprisoned for 18 months, and a conviction in 2005 in the District Court for possession of cannabis with intent to sell or supply for which he was fined $2,500. He has other convictions of a less serious nature including for firearms, traffic and drug possession offences.
As to the appellant's criminal history, her Honour said that it was not an aggravating factor, but it did show that the appellant had a disregard for the law and was not of good character (ts 292). She observed that he had no prior convictions for violence. There was no evidence before her Honour of remorse with respect to the offences for which he was being sentenced. Indeed, he continued to justify his actions to the author of the pre‑sentence report.
Nicholas Knight's personal circumstances
Nicholas was 21 years of age when he came to be sentenced. He left school at year 11 and since that time has worked in various occupations. His use of cannabis is problematic. He has a criminal history. On 17 November 2011, he was convicted in the Albany Magistrates Court of a number of offences, the most serious of which was possession of cannabis with intent to sell or supply for which he was fined $1,000. On 25 July 2013, he was convicted in the same court of possession of amphetamine and a traffic offence for which he was fined a total of $750.
Her Honour described the pre‑sentence report in relation to Nicholas as 'really positive'. She appears to have accepted the author's opinion that the appellant's son presented with 'an ability to lead a law‑abiding lifestyle'. Nicholas' risk of reoffending was considered to be medium to low and his risk of violent offending was considered to be low.
The sentencing remarks
It is clear that her Honour approached the sentencing of the appellant in accordance with the general sentencing principles set out in ss 6, 7 and 8 of the Sentencing Act 1995 (WA) and in accordance with s 39(2) and (3) of that Act.
Her Honour found that the appellant was the principal offender. She said that an aggravated burglary which involved, as it did in this case, a home invasion committed with weapons and with an intent to intimidate the occupants was a serious offence of its kind.
Her Honour said that the gravamen of the offending was the appellant's use of violence committed in the context of a home invasion. She said the seriousness of what the appellant did was 'marked by the grievous bodily harm and assault occasioning bodily harm'.
With respect to all of the offences, her Honour emphasised the need for both personal and general deterrence and said that these factors outweighed matters personal to the appellant.
In imposing the sentence of 3 years and 6 months' imprisonment for the offence of grievous bodily harm, her Honour expressly took into account the life‑threatening nature of the pneumothorax.
In addressing issues of totality, her Honour had regard to a number of factors, including the so‑called one transaction rule, but decided that there should be some cumulacy because the assaults were committed upon two different victims. She addressed the question of parity.
Her Honour observed that Nicholas was to be sentenced only for the offence of aggravated burglary. She found that he played a lesser role than the appellant and only knew the true nature of the visit to Mr Herbert's house just before entering the house, 'probably in the car on the way there'. She noted that, unlike the appellant, Nicholas was not armed with a weapon and that he withdrew from the offending after his altercation with Mr Herbert at the front of the house. Her Honour said that Nicholas' personal circumstances were 'very different from [his] father's'.
She emphasised Nicholas' youth and his prospects for rehabilitation.
In imposing a conditionally suspended sentence upon Nicholas, her Honour said:
The following factors tip the balance in favour of a suspended sentence for you. The first is your youth. It is a serious step to send a young person to prison. The second thing is your different role in the offending - in the aggravated burglary as compared to your father.
The third reason is the very favourable pre‑sentence report and the fact that that report tells me you are suitable for a community based program. And the final factor is that the indications I have received from counsel for the State today is that a term of imprisonment need not necessarily be immediately served (ts 298).
General appellate sentencing principles
The general principles which apply to this appeal were accurately and succinctly stated by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2].
Did the sentence for aggravated burglary imposed on the appellant infringe the parity principle?
The appellant submits that the disparity between the sentence for aggravated burglary imposed upon him and the sentence imposed upon Nicholas infringed the parity principle.
The parity principle is founded on the norm of equality before the law. Parties to the commission of the same offence should, if other things are equal, receive the same sentence. However, things are not always equal. This court cannot interfere when disparity is justified by differences between co‑offenders such as age, background, criminal history, general character and the part each has played in the criminal conduct: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 and Green v The Queen [2011] HCA 49; (2011) 244 CLR 462.
There is plainly a disparity between the sentences imposed upon the appellant and Nicholas for count 1. However, the disparity is justified. There were substantial differences which favoured Nicholas over the appellant. The appellant was the principal offender who took on an active and leading role in the burglary and in all that occurred in its execution. On the other hand, Nicholas's role in the offence was subservient to that of his father. He was not armed with a weapon and did not inflict the kind of violence that the appellant did. Nicholas withdrew from the offence. In contrast to the appellant, Nicholas' personal circumstances, including his age, criminal history and prospects of rehabilitation, were favourable.
Ground 1 has no reasonable prospects of success.
Did the learned sentencing judge err in her treatment of the appellant's criminal history?
The appellant submitted that her Honour did not have regard to the fact that he had not previously been convicted of an offence involving violence.
In Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 477, Mason CJ, Brennan, Dawson and Toohey JJ explained why an offender's criminal history is a relevant sentencing consideration and how it may be taken into account in this way:
[T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences … The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instance offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind (citations omitted).
Her Honour's treatment of the appellant's criminal history was in accordance with these principles.
In her consideration of the appellant's criminal history, her Honour weighed the absence of any prior convictions for violence. But that did not mean that her Honour was not entitled to take the criminal history into account. The history showed that the appellant was not entitled to any mitigation for good character. Moreover, as her Honour correctly pointed out, it showed a continuing attitude of disobedience to the law which undermined any claim to leniency based on the offending being a momentary and uncharacteristic aberration. Further, the appellant's criminal history justified greater weight being accorded to personal deterrence.
Her Honour did not err as alleged. Ground 3 has no reasonable prospects of success.
Did the total effective sentence infringe the totality principle?
The appellant does not complain about the individual sentences on counts 2 and 3. The appellant's essential complaint is that her Honour erred in making the sentences cumulative. In substance, he asserted that the offences were committed in the one transaction or continuing episode and should have attracted concurrent sentences.
There is no need to discuss in any detail either the so‑called one transaction rule or the totality principle: as to the so‑called one transaction rule see R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [26] ‑ [28]; as to the totality principle see Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26].
With respect to the 'one‑transaction rule', it is sufficient to note that it is no more than a rule of thumb and that there is no sentencing principle that requires concurrent sentences to be imposed for multiple offences constituting one transaction or a continuing episode. This is because wholly concurrent sentences may not properly reflect the total criminality of the offending. The guiding principle is whether the punishment imposed upon an offender reflects the total criminality of what he or she did: Walgar v The State of Western Australia [2007] WASCA 241 [9].
In my opinion, it is not reasonably arguable that the total effective sentence of 5 years infringed the totality principle. The facts of the individual offences speak for themselves. They were self‑evidently serious. The appellant was the ringleader. The burglary was planned. Violence was contemplated. Three out of the four men who entered the house, including the appellant, were armed. The appellant inflicted grievous bodily harm on one victim and significant bodily harm on
another. He acted out of revenge. His personal circumstances were unfavourable. He did not have the mitigating benefit of a plea of guilty or remorse. Personal deterrence was a relevant sentencing consideration. The need to deter others from acting as the appellant did was a powerful sentencing factor.
In order to reflect the total criminality of what the appellant did, some cumulacy was required. Bearing in mind that her Honour ordered that the sentence on count 1 should be served concurrently, cumulative sentences on counts 2 and 3 were justified. Having regard to all of the circumstances of the case, including those personal to the appellant, a total effective sentence of 5 years' imprisonment was a proper reflection of the appellant's overall criminality. It was neither disproportionate nor crushing.
The appellant submitted that her Honour erred by not imposing a suspended term of imprisonment. Her Honour made no such error. The seriousness of the offending made the imposition of a suspended imprisonment order of any kind inappropriate.
Grounds 2 and 4 have no reasonable prospect of success.
Conclusion and orders
None of the proposed grounds of appeal have reasonable prospects of success. Accordingly, leave to appeal must be refused, in which event the appeal is taken to be dismissed. The orders I would make are:
1.An extension of time is granted.
2.Leave to appeal is refused.
3.The appeal is dismissed.
HALL J: I agree with Mazza JA.
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