Lam v The State of Western Australia - [2012] WASCA 246

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LAM -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 246

CORAM: McLURE P
MAZZA JA

HEARD: 9 NOVEMBER 2012

DELIVERED : 29 NOVEMBER 2012

FILE NO/S: CACR 161 of 2012

BETWEEN: LAM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :JUDGE BIRMINGHAM
File No  :JO 134 of 2012, JO 135 of 2012

Catchwords:

Criminal law - Appeal against sentence - Juvenile offender - Aggravated robbery - Grievous bodily harm - Whether sentence of immediate detention manifestly excessive - Totality - Whether sentencing judge misdirected himself as to whether sentence would be served in detention or in prison - Whether open to impose conditional release order where offender sentenced to concurrent term of immediate detention - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 27(3)
Criminal Code (WA), s 297, s 392(d)
Young Offenders Act 1994 (WA), s 101, s 178

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms K A Vernon
Respondent: No appearance

Solicitors:

Appellant: John McKenna and Associates
Respondent: Director of Public Prosecutions (WA)

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

A Child v The State of Western Australia [2007] WASCA 285
Hobby v The State of Western Australia [2011] WASCA 197
JTP v The State of Western Australia [2010] WASCA 191
Parfitt v The State of Western Australia [2007] WASCA 11
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v A Child [2007] WASCA 115
The State of Western Australia v Camilleri [2008] WASCA 217
The State of Western Australia v Munda [2012] WASCA 164
TL (a child) v The State of Western Australia [2005] WASCA 173
Trompler v The State of Western Australia [2008] WASCA 265

McLURE P: This is an application for leave to appeal against sentence.
On 14 June 2012 the appellant and a co‑offender, DC, were convicted on their own pleas of guilty of one count of aggravated robbery contrary to s 392(d) of the Criminal Code (WA) (the Code) and one count of occasioning grievous bodily harm contrary to s 297 of the Code.
The appellant was aged 17 years and 5 months at the time of the offences. He was on the cusp of turning 18 when he was sentenced. DC was aged 17 years and 10 months at the time of the offences. He had turned 18 at the time of sentencing.
On 22 June 2012 Judge Birmingham sentenced the appellant to 12 months' detention for the offence of aggravated robbery (count 1) and 15 months' detention for the offence of causing grievous bodily harm (count 2). The sentencing judge ordered that the terms of detention be served concurrently (resulting in a total effective sentence of 15 months' detention) and that the appellant be eligible for release under a supervised release order after serving 7 months' detention. On the same day, the sentencing judge sentenced DC to concurrent terms of 12 months' imprisonment on counts 1 and 2, which terms were suspended.
The appellant relies on three grounds of appeal. They are first, that the sentencing judge erred in concluding that the appellant would serve the entire sentence in a detention centre. Second, that each sentence is manifestly excessive and third, that the total sentence infringes the totality principle.
The facts of the offences are as follows. Between 2.30 am and 3 am on Sunday 15 January 2012 the victim, Timothy Doherty, was returning to his home by train after a night out in Northbridge. He sent a text message to his mother indicating he was on his way home and she should not worry that he was late. He got off the train at the Greenwood train station. Travelling on the same train were the appellant, DC and three other co‑offenders, JAR, MT and RB, all of whom were also juveniles. The group had been at a party in Carine. They had been drinking alcohol and using cannabis. The appellant, DC and the remaining co‑offenders also got off the train at the Greenwood train station and headed off in the same direction as the victim. While following behind the victim, the group discussed and agreed to steal his mobile telephone, the plan being to take the phone regardless of his resistance. RB began shouting and asking the victim if he could use his mobile phone. The group joined in and the victim picked up his pace. The group started making fun of the way the victim dressed, suggesting he looked gay. The appellant picked up a bottle from the side of the footpath and threw it in the direction of the victim. It hit the pavement nearby and smashed. The victim told the group to go away. The group then collectively commenced throwing items of rubbish, bottles and other objects in the direction of the victim. They picked up their pace and eventually caught up with the victim, surrounding him to prevent him walking. RB confronted the victim and continued to demand his mobile phone. MT called out to hit him. RB pushed the victim, causing him to take a couple of steps back. The appellant and DC stood by and watched this happen while demanding that the victim hand over his phone. He held out his phone to surrender it to the group, fearing he would be further assaulted. JAR moved forward and snatched the phone from the victim's hand.
As the victim endeavoured to move away from the group that encircled him, he accidently bumped into the appellant. The appellant pushed the victim, causing him to fall over or stumble on the road verge. As the victim got up, JAR asked for his wallet. The victim said he did not have one. The appellant then stepped forward and punched the victim once on the left side of his face with a clenched right fist. The force of that blow was such as to render the victim unconscious, causing him to fall backwards in an unprotected way, hitting his head on the road surface. DC then stepped in and took a pendant from the victim's neck, discarding it on the side of the road.
Moments later the appellant and DC ran off, leaving the victim in the middle of the road, unconscious and bleeding. RB walked off some distance but then returned, joining with others that had arrived on the scene. They, with RB, assisted the victim.
The victim's mother had sent a text message to her son's phone saying she would collect him from the train station. She was up at that time of the night attending to the victim's older, disabled brother. When she had received no response to her text messages, she was about to go and look for her son when she received a telephone call from police informing her that he had been found lying on the road in a serious state.
After the incident the appellant and DC went to the home of a friend where they contrived a story of what they would tell police if questioned about the incident. On 20 January 2012 the friend made a statement to police. On 23 January 2012 the appellant went to police and reported his involvement in the matter. The co‑offender DC made full admissions to police on 24 January 2012.
The victim suffered serious injuries including frontal lobe haemorrhaging and a skull fracture. He spent nine days in hospital. He suffered severe headaches and neck pain for 10 weeks after the attack and double vision and a wandering right eye for six weeks. He was unable to read or watch television without severe pain behind his eyes. He also suffers ongoing impairment in his concentration, short‑term memory, vocabulary and sense of smell and taste. An EEG scan to test his neurological recovery suggested background seizure activity. The victim had planned to study for a PhD at ANU in Canberra but subsequently accepted a position at ECU because of its proximity to his home. The victim says the head injuries have impaired his mental efficiency and stamina and his ability for critical thinking, disrupted his research and were causing him significant stress.
The appellant completed Year 11 and then obtained an apprenticeship. He had been using alcohol and cannabis since Year 9. He had good antecedents and strong family support. The appellant and DC both pleaded guilty on the fast‑track system.
The sentencing judge assessed the appellant's involvement in the aggravated robbery to be essentially similar to that of DC. However, the sentencing judge assessed the offence of causing grievous bodily harm, in which the appellant alone was the principal, to be the more serious offence. That is clearly the case. The blow struck by the appellant was described as 'powerful', being sufficient to render the victim unconscious; it was struck without warning to a person who was unable to protect or defend himself when falling; there was nothing in the conduct of the victim to warrant or explain the appellant's conduct, which is aptly described as involving random and senseless violence; and the victim has suffered a serious injury.

Legal principles

This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess depends upon establishing the implication of error from the individual sentence itself. A claim of breach of the totality principle depends upon establishing the implication of error from the total effective sentence.
The leave of this court is required for each proposed ground of appeal. Leave cannot be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding. If no proposed ground of appeal satisfies this threshold, the appeal is to be taken to have been dismissed: Criminal Appeals Act 2004 (WA), s 27(3).

Detention or prison

The appellant claims in substance that the sentencing judge misdirected himself that the appellant would serve the duration of his detention in a juvenile detention centre instead of an adult prison.
After referring to a total sentence of 15 months' detention, the sentencing judge said:
You will be serving … a period of detention for the first time and I'm mindful that you are a very young man and when considering the total criminality involving a sentence of 15 months, I have regard to the extent to which, if it is to be served immediately, whether that would be crushing. In my view, for a young man of 17 to go to prison where he will be required to serve a substantial portion of that term in an adult institution, following you turning 18, I think ‑ I note your date of birth is the ‑ I'm just looking for it.
YOO, MR: 8 August 1999.
HIS HONOUR: Yes, 8 August, so within a little over six weeks you will turn 18 and you will be required to serve it in an adult institution.
CARSON, MS: No, your Honour. If [the appellant] is sentenced to a term of detention, he will remain in a juvenile facility unless an affidavit is prepared on behalf of the superintendent where he pose a security risk or he himself made the request, he would remain in a juvenile facility.
HIS HONOUR: He will remain there. Very well then, yes. Thank you for that, Ms Carson. In circumstances then where it's to be served in detention as opposed to service in an adult institution, I do not consider that to serve a period of 15 months' detention would be crushing (ts 28).
The sentencing judge made these observations in the context of the proposed length of the period of detention. He then turned his attention to the question of whether the sentence of detention should be suspended.
The appellant contends that the information given by the prosecutor to the sentencing judge concerning where the term of detention would be served was wrong. There is no merit in that claim. The information provided was substantially and practically accurate.
Section 178 of the Young Offenders Act 1994 (WA) deals with the transfer of an offender from detention to prison. If an offender is in a detention centre serving a sentence of detention, that will continue unless the Chief Executive Officer of the relevant Department applies to the Children's Court and obtains a direction under subsection (3): s 178(1). Subsections (3) and (4) of s 178 relevantly provide:
(3)On an application under subsection (1), the Court may direct that the offender be transferred to a prison … to serve the unserved portion of the sentence in a prison.
(4)A direction under subsection (3) can only be made -
(a)…
(b)in the case of an offender who has reached the age of 18 years and is serving a sentence of detention -
(i)if the offender has a substantial period of the sentence of detention to serve; or
(ii)if the court is satisfied that the offender should be transferred to a prison because of any of the factors referred to in paragraph (a).
The factors referred to in par (a) of s 178(4) include where the offender's behaviour in the detention centre is or has been a significant risk to the safety or welfare of other people in custody in, or of the staff of, the centre and the offender's antecedents.
No application under s 178 has been made in relation to the appellant. At the time of the hearing of the application for leave he had served nearly five months in detention. There is nothing in the material to suggest that an application under s 178 would be made in the future.

Manifest excess and totality

In considering whether a sentence is manifestly excessive, regard is had to the maximum penalty for the offence, the standards of sentencing customarily imposed for offences of that type, the seriousness of the circumstances of the offence and the offender's antecedents. Regard is had to sentences customarily imposed in order to ensure broad consistency in the sentencing of offenders who have committed similar types of offences.
However, in this case the appellant was required to be sentenced in accordance with the principles under the Young Offenders Act. The principles were summarised in The State of Western Australia v A Child [2007] WASCA 115 in the following way:
The principles and considerations to be applied to the sentencing of young offenders are contained in s 7, s 47 and s 120 of the Act. It is unnecessary to detail them here save to note that detaining a young person in custody for an offence must only be used as a last resort and, if required, is only to be for as short a time as is necessary (s 7(h)). The Act places significant emphasis on the sentencing objective of rehabilitation: WO (a child) v Western Australia (2005) 153 A Crim R 352 at 362. As stated in that case, underlying the emphasis on rehabilitation is the long established understanding that the community is best protected by determined efforts to effect the rehabilitation of young offenders. Although retribution, punishment and general deterrence are also relevant sentencing objectives under the Act, they are ordinarily given significantly reduced weight particularly when the offender is still a child [16].
In proper circumstances, the seriousness of an offence and the circumstances of its commission can require the imposition of a sentence of detention: A Child v The State of Western Australia [2007] WASCA 285; TL (a child) v The State of Western Australia [2005] WASCA 173; JTP v The State of Western Australia [2010] WASCA 191.
It is appropriate to start with the most serious of the offences, being the grievous bodily harm caused to Mr Doherty. The maximum penalty for the offence is 10 years' imprisonment. Reference was made on behalf of the appellant to a number of cases including The State of Western Australia v Camilleri [2008] WASCA 217, Trompler v The State of Western Australia [2008] WASCA 265 and Hobby v The State of Western Australia [2011] WASCA 197. The sentences imposed in those cases for the offence of causing grievous bodily harm ranged from 8 months' imprisonment to 20 months' imprisonment. None involved juveniles. However, the sentence of 8 months in Camilleri (a State appeal against sentence to which different principles apply, see The State of Western Australia v Munda [2012] WASCA 164) was characterised as lenient and at the very bottom of the sentencing range. The range of sentences customarily imposed on non‑juveniles for the offence range between 8 months and 5 years 4 months.
In determining the criminality involved in an offence of causing grievous bodily harm regard is had, inter alia, to the nature and seriousness of the harm inflicted and the nature of the act which caused the harm. The circumstances of the offence in this case are toward the higher end of the scale of seriousness. The offence was committed by multiple offenders against a vulnerable victim who did nothing to provoke or explain the offending which was a cowardly, random, senseless act of violence that caused the victim serious injury. The circumstances of the appellant's offending are more serious than that in the cases relied on.
There comes a point at which the seriousness of a crime will override the mitigating factor of being a juvenile of prior good character. Further, the older the juvenile offender, the more responsible and accountable they must be for their actions. The community in this State is now frequently confronted with juveniles and youths engaging in alcohol and/or drug‑fuelled anti‑social and violent group behaviour. The dangers of such behaviour would not be lost on a 17‑year‑old. The appellant has no reasonable prospect of establishing that the sentence of 15 months' detention for the offence of causing grievous bodily harm is manifestly excessive.
It is incorrect to characterise the aggravated robbery as at the lowest end of the scale of seriousness. The offence was committed in company, in the early hours of the morning when the victim was alone and vulnerable. A sentence of detention was appropriate. Moreover, it could not have been the subject of an intensive youth supervision order with a sentence of detention under s 101 of the Young Offenders Act. A conditional release order under s 101 requires that the offender be released from detention under the sentence as soon as the sentence would have commenced if there was no conditional release order: s 101(2). That is not possible where, as in this case, the appellant was sentenced to detention for the offence of grievous bodily harm and the sentences for the two offences were ordered to be served concurrently. See Parfitt v The State of Western Australia [2007] WASCA 11 [40].
The appellant has no reasonable prospect of succeeding in his claim that the sentence of 12 months' detention for the offence of aggravated robbery is manifestly excessive.
The claim of breach of the totality principle also has no reasonable prospect of succeeding. The sentences for the offences were ordered to be served concurrently. If, as I have concluded, the sentence of 15 months for the offence of grievous bodily harm is not arguably manifestly excessive, the total effective sentence cannot infringe the first limb of the totality principle. Moreover, there is no reasonable basis to claim that the sentence is 'crushing', in the sense of destroying any reasonable expectation of a useful life after release. See Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26].

For these reasons, I would refuse leave to appeal on all grounds and dismiss the appeal.
MAZZA JA: I agree with McLure P.