Lutumba v The State of Western Australia
[2013] WASCA 172
•1 AUGUST 2013
LUTUMBA -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 172
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 172 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:254/2012 | 6 JUNE 2013 | |
| Coram: | BUSS JA NEWNES JA MAZZA JA | 1/08/13 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal on ground 3 refused Appeal allowed Appellant resentenced | ||
| D | |||
| PDF Version |
| Parties: | GUELOR LUTUMBA THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Dangerous driving occasioning death Dangerous driving occasioning grievous bodily harm Manifest excess Totality principle |
Legislation: | Criminal Law Amendment (Homicide) Act 2008 (WA), s 38 Road Traffic Act 1974 (WA), s 59(1), s 59(3) |
Case References: | Devine v The State of Western Australia [2010] WASCA 94; (2010) 202 A Crim R 1 Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259 Libri v The State of Western Australia [2013] WASCA 113 Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396 Neumann v The State of Western Australia [2013] WASCA 70 Taylor v The State of Western Australia [2009] WASCA 226 The State of Western Australia v Butler [2009] WASCA 110 The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LUTUMBA -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 172 CORAM : BUSS JA
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : IND 481 of 2012
Catchwords:
Criminal law - Appeal against sentence - Dangerous driving occasioning death - Dangerous driving occasioning grievous bodily harm - Manifest excess - Totality principle
Legislation:
Criminal Law Amendment (Homicide) Act 2008 (WA), s 38
Road Traffic Act 1974 (WA), s 59(1), s 59(3)
Result:
Leave to appeal on ground 3 refused
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr R G Wilson
Solicitors:
Appellant : Marc G Saupin Pty Ltd
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Devine v The State of Western Australia [2010] WASCA 94; (2010) 202 A Crim R 1
Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259
Libri v The State of Western Australia [2013] WASCA 113
Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396
Neumann v The State of Western Australia [2013] WASCA 70
Taylor v The State of Western Australia [2009] WASCA 226
The State of Western Australia v Butler [2009] WASCA 110
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
1 BUSS JA: This is an appeal against sentence.
2 On 18 October 2012, the appellant was convicted, following fast-track pleas of guilty in the District Court before Stevenson DCJ, of nine offences. The offences comprised four counts in an indictment and five charges in a notice under s 32 of the Sentencing Act 1995 (WA).
3 Particulars of the offences, the maximum penalties and the individual sentences imposed are as follows:
Indictment 481 of 2012
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4 The sentencing judge ordered the appellant to serve 12 months of the term imposed for count 3 on the indictment before he commenced to serve the term imposed for count 1 on the indictment. All other terms of imprisonment were ordered to be served concurrently. The total effective custodial sentence was therefore 6 years' imprisonment. In addition to the sentences of imprisonment and the fines, his Honour imposed a motor vehicle driver's licence disqualification for a total of 6 years.
5 All of the offences, except for the offence of disorderly behaviour in public (charge 5 on the s 32 notice), arose out of a single course of conduct while the appellant drove a motor vehicle on 1 January 2012.
6 The appellant challenges the individual sentence of 5 years' imprisonment for dangerous driving occasioning death (count 1 on the indictment) and the total effective custodial sentence of 6 years' imprisonment.
7 He does not challenge the individual sentences for counts 2, 3 and 4 on the indictment, the individual sentences for charges 1 and 2 on the s 32 notice, the fines or the driver's licence disqualification.
The circumstances of the offending
8 On 1 January 2012, at about 8.45 pm, the appellant drove his Holden Commodore sedan on Dunreath Drive towards Perth Airport. Dunreath Drive is a single carriageway with one lane provided for each direction of travel. The appellant was transporting four passengers, being three adults and a 6-year-old child.
9 Immediately prior to the incident in question, the appellant was seen by other road users to be travelling dangerously close to the rear of a Mercedes truck. This limited his view of oncoming traffic.
10 About 1.9 km from the airport, at the approach to a right-hand curve in Dunreath Drive, the appellant crossed double white dividing lines onto the incorrect side of the carriageway. He performed this manoeuvre in an attempt to overtake the truck, which had reduced its speed in accordance with a 'reduce speed' sign. The appellant's vehicle collided head on with an oncoming vehicle which contained a driver and a passenger.
11 As a result of the collision, the rear driver's side passenger in the appellant's vehicle, a woman, suffered multiple severe injuries. She died shortly after in hospital (count 1 on the indictment). The deceased woman's partner, who was seated in the middle rear seat, was seriously injured (count 2 on the indictment). The two occupants of the oncoming vehicle sustained extensive injuries amounting to grievous bodily harm (counts 3 and 4 on the indictment). The deceased's 6-year-old son, who was seated in the rear of the vehicle, and the front seat passenger, received injuries amounting to bodily harm (charges 1 and 2 on the s 32 notice). The appellant broke his ankle in the accident.
12 When the offences occurred, the appellant was driving contrary to the conditions of his learner's permit in that he was not properly supervised and he failed to display 'L' plates. He should not have been driving in the circumstances. The appellant's vehicle was, to his knowledge, subject to a compliance notice and was therefore unfit for use on the road.
The grounds of appeal
13 The appellant relies on three grounds of appeal.
14 Ground 1 alleges that the individual sentence of 5 years' imprisonment for the offence of dangerous driving occasioning death was manifestly excessive. Ground 2 alleges that the total effective custodial sentence of 6 years' imprisonment infringed the first limb of the totality principle. Ground 3 alleges that his Honour erred 'when, because the appellant did not participate in a video record of interview, he determined not to award him the discount he would have otherwise received for his plea of guilty and for facilitating the course of justice'.
15 On 10 December 2012, McLure P granted leave to appeal on grounds 1 and 2 and referred the application for leave to appeal on ground 3 to the hearing of the appeal.
The nature and extent of the injuries suffered by the victims
16 The deceased woman, Ms Moonahi, suffered fractured ribs, a fractured sternum, collapsed lungs and tears to her spleen, liver, small bowel and large bowel.
17 The deceased woman's partner, Mr Mayavanga, sustained a fractured neck and a fractured right collarbone. He underwent surgery for the insertion of a piece of metal into his neck. At the time of sentencing, Mr Mayavanga was fitted with a head and neck brace. He had only 40% to 45% of his former strength and required ongoing assistance with the tasks of daily living.
18 The passenger in the oncoming vehicle, Mrs Skellett, suffered fractures to her back, ribs, right arm and right foot. A plate was inserted in her right foot. A right breast haematoma resulted in the breast becoming deformed. She sustained a left-sided abdominal laceration which exposed her bowel. This resulted in the partial loss of the bowel and left her with a stoma. Her stomach muscles were torn. Mrs Skellett was placed in an induced coma for 12 days after the collision. She required numerous blood transfusions. The injuries have dramatically impacted upon her life including ordinary aspects of daily living and her family relationships. At the time of sentencing, she was largely confined to a wheelchair. During her rehabilitation, Mrs Skellett suffered a prolapsed bowel which caused her continuous pain in the rectum. She requires ongoing rehabilitation and medication for pain.
19 The driver of the oncoming vehicle, Mr Skellett (Mrs Skellett's husband), suffered fractures to his left wrist and knuckles, ribs and left foot. Screws were inserted in his left foot. He also sustained a crushed right heel which required the insertion of a plate. Mr Skellett was confined to a wheelchair for an extensive period and required assistance with everyday living. At the time of sentencing, he was able to walk with the use of crutches. Mr Skellett has experienced sleep disturbance and has been required to take daily medication for his pain.
20 As I have mentioned, the other victims, one of whom was the deceased woman's 6-year-old son, sustained injuries amounting to bodily harm.
The sentencing judge's findings of fact
21 The sentencing judge made findings of fact as follows (ts 59 - 62):
(a) The appellant's deliberate actions in driving as he did were the sole direct cause of the collision.
(b) The appellant did not hold a valid motor vehicle driver's licence and was not lawfully authorised to drive at the time.
(c) The appellant's vehicle was subject to a compliance notice relating to a bald tyre, but this defect was not a cause of the collision.
(d) The appellant was not driving in accordance with the conditions imposed by his learner's permit.
(e) Immediately before the collision, the appellant was travelling at an unsafe distance behind the truck.
(f) The appellant knowingly breached a fundamental road rule by crossing the double white lines in order to overtake the truck.
(g) The manoeuvre was undertaken on a single carriageway and the double white lines were easily visible to the appellant.
(h) The victims in the oncoming vehicle were unable to take any evasive action.
(i) The appellant's view of oncoming traffic would necessarily have been impeded by his attempt to overtake on a right hand curve.
(j) The appellant sought to overtake 'suddenly and quickly', when the truck slowed down appropriately in accordance with the 'reduce speed' sign.
(k) The appellant's passengers shouted that he should not overtake the truck, but he ignored their expressions of concern.
(l) The appellant was aware of the risks inherent in his manner of driving, which effectively invited disaster.
(m) The appellant felt under some pressure to arrive at the airport with his passengers a sufficient time before the scheduled departure of their aircraft at 9.50 pm.
(n) The appellant did not attempt to brake or avoid the oncoming vehicle.
The merits of ground 1
22 The appellant asserts in ground 1 that the individual sentence of 5 years' imprisonment for count 1 on the indictment was manifestly excessive.
23 The maximum penalty for the offence of dangerous driving occasioning death, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) (the Act), is 10 years' imprisonment if, as in the present case, the offence is not committed in circumstances of aggravation. See s 59(3).
24 There is no tariff for offences of this kind because of the great variation that is possible in the circumstances of the offending and the offenders. See The State of Western Australia v Butler [2009] WASCA 110 [7] (Wheeler JA). The sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum penalty. It is important, however, in deciding whether a particular sentence is manifestly excessive, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary.
25 It is essential, in examining previous sentencing decisions, to bear in mind that the maximum penalty for dangerous driving occasioning death, where the offence is not committed in circumstances of aggravation, was increased from 4 years' imprisonment to 10 years' imprisonment, with effect from 1 August 2008, by s 38 of Criminal Law Amendment (Homicide) Act 2008 (WA).
26 I have considered numerous cases with at least some features comparable to the appellant's offending. See Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259; Taylor v The State of Western Australia [2009] WASCA 226; Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396; The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269; and Libri v The State of Western Australia [2013] WASCA 113. It is unnecessary to reproduce the facts and circumstances or the sentences imposed in these cases. In Olive, I reviewed relevant sentencing patterns [74] - [84].
27 During the hearing of the appeal, counsel for the appellant and counsel for the State referred in particular to Devine v The State of Western Australia [2010] WASCA 94; (2010) 202 A Crim R 1. I will consider this decision in detail.
28 In Devine, the offender was convicted after a trial of one count of aggravated dangerous driving occasioning death (count 1) and one count of aggravated dangerous driving occasioning grievous bodily harm (count 2). The trial judge imposed a sentence of 5 years 6 months' imprisonment for count 1 and 1 year 6 months' imprisonment for count 2. His Honour made the sentence for count 2 cumulative on the sentence for count 1. The total effective sentence was therefore 7 years' imprisonment. A parole eligibility order was made. The maximum penalty for count 1 was 20 years' imprisonment and the maximum penalty for count 2 was 14 years' imprisonment. This court unanimously dismissed the offender's appeal against the individual sentence of 5 years 6 months for count 1 but allowed his appeal against the total effective sentence of 7 years. The majority (Buss JA, Jenkins J agreeing) substituted a total effective sentence of 6 years' imprisonment.
29 The salient facts and circumstances of the offending in Devine, as summarised in my reasons in that case, were these:
On 13 April 2008, at about 8.30 pm, the [offender] was driving his recently acquired Holden Commodore motor vehicle on a country road, namely, Pederick Road, Neerabup. Pederick Road is about 2.6 km in length. It is an unmarked carriageway. There are no lines on the road and no lights. It has concrete edging and a speed limit of 110 km an hour. Pederick Road terminates at Old Yanchep Road/Pinjar Road, which is marked with black and white chevrons.
There were three passengers in the [offender's] vehicle. His girlfriend, Casey Anderson, was in the front passenger seat. Hayley Morrison and Gary Press were in the rear passenger seats.
The [offender] accelerated his vehicle along Pederick Road. His average speed while travelling on the road was about 171 km an hour, but his speed at certain points over the distance used to calculate the average speed was higher.
The [offender] lost control of his vehicle and smashed into a power pole. The pole was about 65 m from the intersection of Pederick Road with Old Yanchep Road/Pinjar Road. Ms Morrison suffered fatal injuries. Mr Press was severely injured, and these injuries constituted grievous bodily harm.
Mr Press suffered a head injury, facial injuries and a fractured arm. He was in a coma for about eight days. He underwent surgery and other medical procedures. Mr Press has no memory of the accident. His permanent disabilities comprise a loss of strength in his arm, short-term memory loss, loss of feeling above the right eye, headaches and loss of teeth [30] - [34].
30 The trial judge in Devine made the following findings:
(a) The offender intended to test the limits of the vehicle's performance and his driving at a grossly excessive speed was premeditated and intentional.
(b) Very shortly before the accident, the offender refused to comply with a request from Ms Anderson to slow down.
(c) The offender's conduct had a devastating effect on the family of the passenger who died and on the passenger who suffered grievous bodily harm.
(d) The offender lied to the police about his speed in an interview after the accident, he pleaded not guilty, and he maintained his denials of culpability to the author of his pre-sentence report.
(e) On the night before the accident the offender drove, with passengers, at a speed of about 190 km - 200 km an hour on another unlit country road. This incident was relevant to culpability.
31 The offender in Devine:
(a) was aged 21 when he committed the offences and 22 at the time of sentencing;
(b) broke his collarbone while endeavouring to free his passengers from the vehicle after the accident;
(c) had struggled with nightmares, anxiety attacks and depression since the accident, which culminated in a suicide attempt;
(d) had a prior criminal record, but the nature of the offending was not significant;
(e) was not affected by alcohol or drugs when he committed the offences;
(f) made some admissions which shortened the trial and avoided the need for some witnesses, who may have been distressed, to give evidence;
(g) was a young man with close family ties and a continuous work history after completing an apprenticeship in bricklaying; and
(h) had expressed some contrition to the author of the pre-sentence report.
32 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 disposition does not, of itself, fix the upper limit of the range. See Neumann v The State of Western Australia [2013] WASCA 70 [30] (Buss JA, McLure P & Pullin JA agreeing).
33 The appellant in the present case was aged 29 at the time of the offending and when sentenced. He was born in the Democratic Republic of Congo. He arrived in Western Australia in 2009, as a refugee, accompanied by his mother and two siblings.
34 The appellant's early life was traumatic. His environment was disrupted by ongoing fighting in the First and Second Congo Wars and widespread disease and famine. He saw his father and his brother killed.
35 Since arriving in Western Australia, the appellant has been in full-time employment. He has financially supported his mother. His former partner, who was pregnant with their unborn son, remained in the Congo when he relocated to Western Australia. In early 2012, the son died from malnutrition.
36 The material before the sentencing judge included a report dated 17 August 2012 from a psychologist, Cinzia Zuin, and a pre-sentence report dated 20 March 2012. Ms Zuin said in her report:
[The appellant] is a 29 year old African man with very limited English skills. He appears to be depressed due to concern for the future of his family, albeit that he is also very sorry for the impact of the accident on all victims concerned, including the deceased female passenger. He impresses as a highly religious man who puts his faith in God and in doing so focuses his attentions on practical considerations for supporting his family …
There is no evidence to suggest that [the appellant] intended for the accident to occur or that he was under the influence of alcohol or illicit drugs at the time. Rather, it appears that a series of poor decisions and judgments were made which had a tragic outcome. Other than feeling anxious about getting his friends to the airport when he did not want to drive in the first instance there is unlikely to have been any other aspects of his mental health that played any part.
37 The appellant does not have a prior criminal record in Western Australia.
38 In my opinion, the sentence of 5 years' imprisonment for count 1 was unreasonable or plainly unjust. His Honour's exercise of the sentencing discretion in relation to this count miscarried. My reasons for these conclusions are as follows.
39 First, it must be acknowledged that the appellant's dangerous driving was very serious. The consequences of his deliberate action in breaching a fundamental road rule were devastating. One victim died and others suffered atrocious injuries. However, the appellant's criminal conduct was not in the upper range of seriousness for offences of dangerous driving occasioning death, where the offence is not committed in circumstances of aggravation.
40 Secondly, there were a number of mitigating factors. The appellant pleaded guilty on the fast-track system. He was sentenced before the commencement of s 9AA of the Sentencing Act. In the circumstances, his plea of guilty at the first reasonable opportunity should have attracted a discount of not less than 25%. The appellant appears to have been contrite and remorseful for his offending and its impact on the victims. His early life was marred by the horrific events of the First and Second Congo Wars. Nevertheless, since his arrival in Western Australia he has been in full-time employment and he has financially supported his mother. He has no previous convictions in this State. It was not suggested that he had a criminal record in any other jurisdiction. The appellant does not appear to abuse alcohol or consume illicit drugs.
41 Thirdly, bearing in mind the increase in the maximum penalty, with effect from 1 August 2008, it is apparent from my scrutiny of earlier sentencing decisions that the term of 5 years' imprisonment is outside the range available on a proper exercise of the sentencing discretion. For example, the criminality of the offender in Devine was significantly greater than the criminality of the appellant in the present case. In Devine, the offender was sentenced to 5 years 6 months' imprisonment for aggravated dangerous driving occasioning death. The maximum penalty was 20 years' imprisonment compared to the maximum penalty of 10 years' imprisonment in the present case. Also, unlike the appellant in the present case, the offender's dangerous driving was premeditated. Further, the offender's dangerous driving was more prolonged than in the present case, and his culpability was exacerbated by his having driven in a similar manner on the day before the commission of the offence. Unlike the appellant in the present case, the offender went to trial and therefore did not have the benefit of the mitigation that a plea of guilty would have brought.
42 Fourthly, the appellant's very limited English skills will increase the burden of his time in custody.
43 Ground 1 has been made out.
The merits of ground 2
44 The appellant asserts in ground 2 that the total effective custodial sentence of 6 years' imprisonment infringed the first limb of the totality principle.
45 This principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
46 In Longbottom, Steytler P considered the application of the totality principle in the case of an offender who was convicted, after a trial, of two counts of dangerous driving causing death. The maximum penalty for each offence was, relevantly, 4 years' imprisonment. After drinking alcohol, and notwithstanding that his driver's licence had been disqualified, the offender drove his vehicle, with three passengers in it, at a speed that was excessive in the circumstances. Despite one of his passengers asking him, twice, to slow down, he did not do so. He lost control of the vehicle and there was an accident. Two of his passengers died. The offender's blood alcohol level at the time of the accident was 0.089%. The sentencing judge imposed a term of immediate imprisonment of 1 year 8 months in respect of each count and ordered that the sentences be served cumulatively. The total effective sentence was therefore 3 years 4 months' imprisonment.
47 The offender appealed on the ground that the order for total accumulation was an error because it necessarily had the result that he was punished twice for the commission of common elements of each offence (the dangerous driving arising out of the offender having driven at an excessive speed and with a blood alcohol level in excess of the statutory limit). This court (Steytler P, Wheeler & Miller JJA) dismissed the appeal.
48 Steytler P said there is no inflexible rule which requires an order for partial concurrency in a case of the kind before the court. Also, his Honour said there was nothing in either of the majority judgments in Eves that suggested otherwise [9]. A little later, Steytler P said:
Although the sentencing judge in the present case did not say (as, with respect, it would have been preferable for him to do) that he had reduced each sentence in order to take into account elements that were common to both offences, it seems to me that that is what he did. It is difficult, otherwise, to understand why the individual sentences should have been as low as they were. Notwithstanding the youth of the appellant, his offers to plead guilty to the offences of which he was convicted, his remorse and the other matters raised in mitigation, each offence called for a penalty closer to the maximum of 2 years and 8 months' imprisonment then provided by s 59 of the Road Traffic Act 1974 (WA), after allowing for the operation of the transitional provisions enacted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA). As I have said, the appellant was driving with a blood/alcohol level well over the prescribed limit (having previously had his licence disqualified for just such an offence) and at an excessive speed notwithstanding that he had twice been asked to slow down [10].
49 Longbottom is authority for the proposition, relevantly, that a sentencing judge will not necessarily make an error, in the application of the totality principle or otherwise, by ordering that individual sentences for multiple counts of dangerous driving occasioning death, which arise out of one transaction or continuing episode, be served wholly cumulatively.
50 In the present case, the consequences of the appellant's dangerous driving were, as I have mentioned, devastating. In addition to the death of one victim (Ms Moonahi), Mr Mayavanga, Mrs Skellett and Mr Skellett suffered very severe injuries and they continue to experience ongoing physical and emotional trauma. Also, the 6-year-old child has lost his mother.
51 It was appropriate, in the circumstances, for the seriousness of the appellant's offending, and the consequences for multiple victims, to be recognised by some accumulation of the individual sentences of imprisonment. However, when the total effective sentence of 6 years' imprisonment is evaluated in the context of the maximum penalties for the offences for which individual sentences of imprisonment were imposed, the objective seriousness of the offending, the vulnerability of the victims, the sentencing dispositions in comparable cases and the appellant's personal circumstances and antecedents (including his fast-track pleas of guilty and the absence of any prior criminal record), the only conclusion reasonably open is that the sentencing outcome infringed the first limb of the totality principle. I infer error because, in my opinion, the total effective custodial sentence does not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and having regard to all of the circumstances of the case, including those referable to the appellant personally.
52 Ground 2 has been made out.
The merits of ground 3
53 The appellant asserts in ground 3 that the trial judge erred 'when, because the appellant did not participate in a video record of interview, he determined not to award him the discount he would have otherwise received for his plea of guilty and for facilitating the course of justice'.
54 His Honour noted in his sentencing remarks that the appellant had pleaded guilty 'at the outset from the very beginning' and that he had 'never suggested that [he] would otherwise contest any part of the charges against [him]' (ts 62). His Honour described these circumstances as 'mitigating' (ts 62).
55 His Honour also said that it was to the appellant's credit that he had accepted 'the upgrading of one of the charges from bodily harm to grievous bodily harm at the time that [he] did so' and that this was a mitigating circumstance which his Honour had 'taken into account for the purpose of imposing sentence' (ts 62).
56 Later in his remarks, the sentencing judge said:
I note you did not participate in a video record of interview in the days following the incident. That of course is your right and you do not receive any mitigation therefore for facilitating the course of justice by so participating (ts 63).
57 In my opinion, contrary to the appellant's assertion, a fair reading of the sentencing remarks as a whole indicates that his Honour did allow the appellant a discount for his pleas of guilty and for facilitating the course of justice. His Honour did not state the amount of the discount for the pleas but, under the law as it then stood, he was not obliged to.
58 After the sentencing judge completed his remarks, he invited submissions from the prosecutor and defence counsel as to whether there was 'anything arising out of the sentencing disposition' (ts 69). The following exchange occurred between defence counsel and his Honour:
SAUPIN, DR: Your Honour, there was just one point that arose. You made mention of the fact that [the appellant] didn't participate in a video record of interview.
STEVENSON DCJ: Yes.
SAUPIN, DR: I take it your Honour didn't look adversely upon that in terms of sentencing.
STEVENSON DCJ: No. As I said at the time, that's his right.
SAUPIN, DR: Yes.
STEVENSON DCJ: His legal right, but what he doesn't get is any mitigation for facilitating the course of justice.
SAUPIN, DR: (Indistinct) sir.
STEVENSON DCJ: And that probably doesn't mean much in this case because he has pleaded guilty in the circumstances that I've indicated.
SAUPIN, DR: Thank you, sir.
STEVENSON DCJ: Certainly the answer is no (ts 70).
59 It is apparent, in my view, that his Honour told the appellant, in substance, that:
(a) his fast-track pleas of guilty were a mitigating factor for which he would receive credit in the sentencing process; and
(b) he would also receive some credit for facilitating the course of justice, but the extent of that credit was limited by his decision to exercise his legal right not to cooperate with the police by making admissions immediately following his arrest.
60 The sentencing judge did not make the error attributed to him in ground 3.
The resentencing of the appellant
61 I would refuse leave to appeal on ground 3, but allow the appeal on the other grounds.
62 This court has the information necessary to resentence the appellant.
63 The sentencing judge's sentencing decision in relation to count 1 on the indictment, and his Honour's orders in relation to the accumulation and concurrency of the individual sentences of imprisonment, should be set aside.
64 The individual sentences for counts 2, 3 and 4 on the indictment, and the individual sentences for charges 1 and 2 on the s 32 notice, were not challenged. Accordingly, and solely for that reason, I would not interfere with those sentences. I emphasise that it should not be assumed that the individual sentences for counts 2, 3 and 4 and charges 1 and 2 were within the range open to his Honour on a proper exercise of the sentencing discretion.
65 In my opinion, the appellant's criminality would be appropriately marked, and all relevant sentencing principles would be satisfied, by a sentence of 3 years 6 months' immediate imprisonment for count 1 on the indictment and a total effective custodial sentence of 4 years 6 months' immediate imprisonment. I would structure the individual terms of imprisonment by ordering that:
(a) the individual sentences for counts 2, 3 and 4 on the indictment, and the individual sentences for charges 1 and 2 on the s 32 notice, be served concurrently with each other; and
(b) the new individual sentence for count 1 on the indictment commence upon the appellant having served 12 months of the individual sentence for count 3 on the indictment.
66 The individual sentences for counts 2, 3 and 4 on the indictment, and the individual sentences for charges 1 and 2 on the s 32 notice, should be taken to have taken effect on 18 October 2012, being the date on which the appellant was taken into custody for the offences.
67 The appellant should remain eligible for parole. He will be eligible for release on parole upon having served 2 years 6 months' imprisonment calculated from 18 October 2012.
68 Finally, I note that I have reduced the 'head sentence' (as defined in s 9AA(1) of the Sentencing Act) for count 1 on the indictment by 25% in order to recognise the benefits to the State, and to any witness to the offence, resulting from the plea of guilty.
69 NEWNES JA: I agree with Buss JA.
70 MAZZA JA: I agree with Buss JA.
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