Luke v The State of Western Australia

[2008] WASCA 176

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   LUKE -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 176

CORAM:   STEYTLER P

WHEELER JA
MILLER JA

HEARD:   6 AUGUST 2008

DELIVERED          :   25 AUGUST 2008

FILE NO/S:   CACR 41 of 2008

BETWEEN:   ROBERT THOMAS LUKE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :WILLIAMS DCJ

File No  :IND 114 of 2005

Catchwords:

Criminal law and procedure - Sentencing - Unlawfully doing grievous bodily harm - Whether sentence manifestly excessive - Parity with co-offender - Turns on own facts.

Legislation:

Nil

Result:

Application for extension of time refused

Category:    B

Representation:

Counsel:

Appellant:     Ms A S Rogers

Respondent:     Mr B Fiannaca SC & Ms C L Noonan

Solicitors:

Appellant:     Andrew Maughan & Associates

Respondent:     Director of Public Prosecutions (WA)

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

Gavin v The Queen (1992) 6 WAR 195

Lowe v The Queen (1984) 154 CLR 606

Narkle v The Queen (Unreported, WASCA, Library No 6108, 2 December 1985)

Postiglione v The Queen (1997) 189 CLR 295

1. STEYTLER P:  On 29 May 2006 the appellant was convicted on one count of assault occasioning bodily harm and one of unlawfully doing grievous bodily harm.  He was sentenced, on the first of those counts, to a term of 16 months' imprisonment and, on the second, to a term of 4 years and 8 months' imprisonment.  Those terms were ordered to be served concurrently.  The appellant has applied for leave to appeal against the sentences imposed.  Because his appeal notice was lodged some 20 months out of time, he requires an extension of time for that purpose. 

Circumstances of the offences

1. The appellant heard a rumour that his girlfriend was having a sexual relationship with the complainant.  A co‑offender, Mark Fray, heard a rumour that his girlfriend was having a sexual relationship with an unidentified man.  Fray lived in a block of flats in Maylands.  So, too, did a friend of his, Steven Amalphi.  Amalphi was a friend of the complainant. 

2. On 26 July 2004 the complainant went to visit Amalphi.  Amalphi was not in his flat at the time.  The complainant had previously met Fray.  He saw Fray's car outside the flats and buzzed Fray's flat to see if Amalphi was with him.  Fray invited the complainant up to his flat.  When the complainant entered the flat, Fray challenged him with having a sexual relationship with his and the appellant's girlfriends.  The appellant was present at the time.  He immediately assaulted the complainant, punching and kicking him.  Fray joined in the assault. 

3. Fray's flat was on the second floor of the block of flats.  The door to the balcony was open.  The complainant escaped through that door and jumped over the balcony.  He hung on to the balcony rail to save himself from falling some 6 m to the ground below.  Either the appellant or Fray struck the complainant across his hand, causing him to lose his grip on the rail and fall to the ground.  He was severely injured.

4. Because of his injuries, the complainant was unable to escape.  The appellant and Fray went to where he was lying on the ground.  Both kicked him as he lay there.  The two men then left.

5. The complainant's injuries were serious.  He had a fractured ankle joint and his ankle bone was broken in several places.  His pelvic joint was also fractured.  He suffered injuries to his chest.  He has been left with permanent injuries in the form of arthritis to his ankle and pain and discomfort in his pelvis. 

Circumstances relevant to the appellant

1. The appellant, who was 31 years old at the time of the offence, pleaded guilty to the charge of unlawful assault causing bodily harm, but was convicted after a trial on the offence of unlawfully doing grievous bodily harm to the complainant.  At the trial, he asserted that the complainant had jumped over the balcony on his own accord.  He denied that anyone had struck his hand.  He also asserted that he had no involvement in the altercation with the complainant inside Fray's unit.  He admitted only the assault on the ground outside.  However, the jury's verdict necessarily established that the appellant was party to the assault in the flat and that the two men had shared the common purpose of forcing the complainant to fall from the balcony.

2. The appellant had a record of previous convictions, encompassing two offences of common assault, one in March 1991 (although this was as a juvenile) and the other in August 2000.  He claimed to be remorseful for his present conduct which, he said, was contributed to by alcohol abuse.  At the time of offending, he was an alcoholic.  Some two years had passed between the time of the offence and the trial.  In that time, the respondent successfully completed an alcohol rehabilitation course conducted by the Salvation Army.  He has favourable references, including one from a prior partner who is the mother of his 6‑year‑old son.  He is described as a caring father.  He was in steady employment and had engaged in relationship counselling with the woman who was his partner at the time of the offence, bringing that relationship back 'on track'.  He had given no indication of re‑offending and the pre‑sentence report prepared in respect of him suggested that the court proceedings had caused him to reassess his priorities and goals.

Sentencing remarks

1. In his sentencing remarks, the sentencing judge mentioned that the appellant had pleaded guilty to the count of assault occasioning bodily harm.  However, he said that no remorse had been shown by him.  Apart from his reference to the plea of guilty, the sentencing judge did not refer to any matters in mitigation, save that he mentioned that the appellant claimed to have been severely under the influence of alcohol at the time of the offending.  Although he referred to the pre‑sentence report (in the context of saying that the appellant had not accepted the facts found by the jury), he said nothing to indicate that he had taken anything in that document into account by way of mitigation.  Nor did he mention that he regarded the plea of guilty to the offence of assault occasioning bodily harm as mitigatory. 

2. Although Fray had a more serious criminal record than the appellant and had pleaded not guilty to both charges (he was also dealt with on two counts of assault occasioning bodily harm, one of unlawful detention and one of threat to kill, to which he had entered late pleas of guilty), the trial judge imposed the same sentences on both men as regards the two offences of which both had been convicted.  He gave no reasons for doing so. 

Grounds of appeal

1. There are two grounds of appeal.  They read as follows:

   1.The learned sentencing judge erred in the exercise of his sentencing discretion by failing to give any weight to the various mitigating personal factors and circumstances of the Appellant, thereby imposing a term of imprisonment that was manifestly excessive in all the circumstances of the case; and

   2.The learned sentencing judge erred in the exercise of his sentencing discretion by failing to give any consideration to the various mitigating personal factors and circumstances of the Appellant, this failure preventing the determination of whether the question of parity was properly considered, this error leading to a miscarriage of justice.

Ground 1 - personal factors

1. I have said that, although the sentencing judge referred to the appellant's plea of guilty and to the pre‑sentence report, he said nothing to indicate that he had taken account of any mitigating circumstance in fixing the sentences at which he arrived.  The fact that a sentencing judge does not mention a matter expressly in the course of giving reasons does not necessarily give rise to an inference that it was not considered.  However, in this case, it does seem as though the sentencing judge attached no significance to any of the matters that had been raised in mitigation. 

2. The mitigating factors that were present were very limited. 

3. I have said that the plea of guilty to the count of assault occasioning bodily harm was made upon a basis that denied most of the appellant's offending behaviour.  Moreover, it would not be unreasonable to assume that it was influenced by the fact that his assault on the complainant, while the complainant was lying on the ground outside the unit, was observed by an independent witness.  In the circumstances, the plea could not be said to have been indicative of any real remorse.  Nor could it be given much weight as an acceptance of responsibility, in circumstances in which the more serious aspects of the offending were denied.  Also, because a trial was required on the more serious charge, the plea did little to facilitate the administration of justice.

4. Although the appellant's record of previous convictions was not particularly bad, it revealed a number of prior offences.  Apart from the two offences of common assault to which I have referred, it encompassed a range of minor offences, including drug related offences and a number of offences of break and enter with intent (although these were committed when the appellant was still a juvenile).  It consequently afforded no mitigation of any significance.  The only other factor of any significance was the appellant's seemingly successful attempt to address his alcohol problem. 

5. On the other hand, the offence of unlawfully doing grievous bodily harm was serious.  That offence carries a maximum term of 10 years' imprisonment.  In this case, the appellant and his co‑offender callously caused the complainant to fall from a substantial height, making it almost inevitable that he would be severely injured, as indeed he was.  The subsequent assault involved the brutal kicking of the complainant at a time when the offenders must have appreciated that he was so injured as to be unable to escape. 

6. Even allowing for the factors in mitigation to which I have referred, the seriousness of the offending was such that I would not have imposed any different sentence.  The term of 4 years and 8 months' imprisonment imposed on the charge of causing grievous bodily harm seems to me to have been appropriate.  The same is true of the term of 16 months' imprisonment imposed on the assault charge which, as I have said, was ordered to be served concurrently with the longer term.

Ground 2 - parity

1. That leaves the parity issue.  It would undoubtedly have been preferable if the sentencing judge had given reasons for imposing the same penalty on each of the offenders.  However, there was not a great deal to choose between them.  It is true that the appellant pleaded guilty to the lesser of the two offences whereas the co‑offender did not.  However, as I have pointed out, the plea was of very little value in the circumstances of this case.  It is also true that the appellant had taken steps to rehabilitate himself.  However, the co‑offender had done the same.  The sentencing judge was told that the co‑offender had turned his life around since the commission of these offences, that he had addressed his alcohol and drug

problem and also that he had addressed his violent behaviour.  Both offenders were able to produce favourable references.  There was little to choose between the two men concerning their role in the offending, save that it appears to have been the appellant who started the assault on the complainant.  Although the co‑offender's criminal record was significantly worse than that of the appellant, both had records that were serious enough to deny either any real mitigation.  A serious criminal record is not an aggravating circumstance.  It is the absence of a criminal record, or of a relevant or significant record, that is a matter of mitigation. 

1. In these circumstances, it seems to me that there could not be any justifiable sense of grievance arising out of the fact that both offenders were given the same sentence:  Lowe v The Queen (1984) 154 CLR 606, 623; Postiglione v The Queen (1997) 189 CLR 295. Ground 2 consequently fails.

Conclusion

1. The 20 month delay in lodging the appeal notice has not been satisfactorily explained.  The best that can be said for the affidavit purporting to explain the delay is that it reveals a serious level of inefficiency on the part of those who represented the appellant.  Moreover, there is nothing in the affidavit to suggest that the appellant did anything to encourage his legal advisers to pursue the appeal with greater vigour.  In these circumstances, and in the light of my conclusions concerning the absence of merit in the appeal, I would refuse the application for an extension of time.  No miscarriage of justice has been shown:  Gavin v The Queen (1992) 6 WAR 195, 219; Narkle v The Queen (Unreported, WASCA, Library No 6108, 2 December 1985).

2. WHEELER JA:  I agree with Steytler P.

3. MILLER JA:  I agree with Steytler P.