McAllister v The State of Western Australia - [2017] WASCA 183

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: McALLISTER -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 183

CORAM: BUSS P
MAZZA JA

HEARD: 5 OCTOBER 2017

DELIVERED : 12 OCTOBER 2017

FILE NO/S: CACR 135 of 2017

BETWEEN: NEIL ALAN McALLISTER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GETHING DCJ
File No  :IND 778 of 2016

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on his late plea of guilty of unlawful detention - Appellant convicted after trial of doing an act with intent to harm as a result of which bodily harm was caused to another person - Individual sentences of 15 months' immediate imprisonment and 3 years 9 months' immediate imprisonment - Total effective sentence of 5 years' immediate imprisonment - Parity principle - Manifest excess - Totality principle

Legislation:

Criminal Code (WA), s 304(2), s 333
Sentencing Act 1995 (WA), s 9AA

Result:

Application for an extension of time to appeal dismissed
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):

Atkinson v The State of Western Australia [2017] WASCA 154
Barnden v The State of Western Australia [2014] WASCA 161
Blurton v The State of Western Australia [2014] WASCA 61
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
Henderson v The State of Western Australia [2007] WASCA 198
Hickling v The State of Western Australia [2016] WASCA 124
Hinkley v The State of Western Australia [2014] WASCA 122
Kaokula v The State of Western Australia [2016] WASCA 198
Lawrence v The State of Western Australia [2015] WASCA 187
Pureau v The State of Western Australia [2017] WASCA 115
Sophiadakis v The State of Western Australia [2016] WASCA 203
Starr v The State of Western Australia [2011] WASCA 170
The State of Western Australia v Cheeseman [2011] WASCA 15
The State of Western Australia v Tik [2009] WASCA 122

JUDGMENT OF THE COURT: The appellant has applied for an extension of time to appeal against sentence and for leave to appeal against sentence.
The last day for appealing against sentence was 18 May 2017. The appellant did not file his appeal notice until 21 June 2017. It is convenient to consider the merits of the grounds of appeal before deciding whether an extension of time should be granted.
The appellant was convicted of two counts in an indictment.
Count 1 alleged that on 14 July 2015, at Falcon, the appellant unlawfully detained Johnnie Walker, contrary to s 333 of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and at the same place the appellant, with intent to harm, did an act as a result of which bodily harm was caused to Mr Walker, contrary to s 304(2) of the Code.
On 16 December 2016, the appellant was convicted, after a trial in the District Court before Gething DCJ and a jury, of count 2. He was convicted of count 1 on his plea of guilty entered at the commencement of the trial.
On 27 April 2017, the trial judge sentenced the appellant to 15 months' immediate imprisonment for count 1 and 3 years 9 months' immediate imprisonment for count 2. His Honour ordered that the sentences be served cumulatively. The total effective sentence was therefore 5 years' immediate imprisonment. His Honour backdated the total effective sentence to 11 February 2017. A parole eligibility order was made.
The appellant's co‑offenders, Daniel Annakin and Douglas Bowen, were convicted of the same charges as the appellant. However, both Mr Annakin and Mr Bowen entered pleas of guilty at an early stage. Mr Annakin was sentenced to 10 months' immediate imprisonment for count 1 and 2 years 10 months' immediate imprisonment for count 2. The sentences were ordered to be served cumulatively. His total effective sentence was therefore 3 years 8 months' immediate imprisonment. Mr Bowen was sentenced to 6 months' immediate imprisonment for count 1 and 2 years 8 months' immediate imprisonment for count 2. The sentences were ordered to be served cumulatively. His total effective sentence was therefore 3 years 2 months' immediate imprisonment. A parole eligibility order was made in respect of each of Mr Annakin and Mr Bowen.
The facts and circumstances of the offending, as found by the trial judge, were as follows.
The appellant and his co‑offenders, Mr Annakin and Mr Bowen, were associates. The appellant was the proprietor of a removalist business. The victim was a former employee of the appellant. The victim had ceased employment with the appellant a number of days before the offending. After the employment relationship ended, the appellant contacted the victim and indicated that he had some work available for him. As a result, the victim went to the appellant's business premises at an agreed time. When the victim arrived no‑one else was present. He decided to wait for the appellant at the premises and, while waiting, fell asleep on a chair in an office within the workshop area.
Shortly afterwards, the appellant, Mr Annakin and Mr Bowen arrived at the appellant's business premises. Mr Annakin and Mr Bowen were armed with wooden sticks. The appellant had a baseball bat. The offenders proceeded to assault the victim. The assault caused the victim to fall to the ground. The appellant behaved in an aggressive manner, pointing the baseball bat towards the victim. The appellant and Mr Annakin verbally abused the victim.
A few days previously, the appellant's business premises had been burgled. A number of items of considerable value to the appellant were stolen. Also, a mobile telephone and some tools belonging to Mr Annakin were stolen. Both the appellant and Mr Annakin believed that the victim was the offender.
During the initial assault the appellant and Mr Annakin accused the victim of being involved in the burglary. The victim denied the accusation. The appellant called the victim a liar on multiple occasions. The appellant told the victim that if he reported the offenders' actions to the police then the appellant would smash his knee caps.
Shortly after the initial assault Mr Annakin, in the presence of the appellant and Mr Bowen, used plastic cable ties to tie the victim's hands behind his back. The offenders questioned the victim as to the location of the property that had been stolen during the burglary. When the victim denied any knowledge of the property the offenders assaulted him again. While the victim was being assaulted again, the appellant called him a liar. The appellant then struck the victim on his right knee with the baseball bat while the victim was sitting on the ground.
During the episode of offending the appellant laughed and joked with his co‑offenders. The appellant held the baseball bat for most of the time. The appellant and Mr Annakin were verbally and physically aggressive towards the victim throughout the entire period. Mr Bowen appears to have been much less aggressive. At some stage Mr Annakin sprayed the victim's face, mouth and clothes with a substance the victim believed to be petrol. Mr Annakin told the victim, in the presence of the appellant and Mr Bowen, that they would set him on fire.
Eventually, the victim claimed that the appellant's property which had been stolen during the burglary was located in a different section of the appellant's business premises. The appellant left the office to check on the victim's claim. When the appellant returned he said that he had been unable to find the property and, once again, threatened the victim. The appellant feigned striking the victim to the head with the baseball bat. The victim then offered to show the offenders where he understood the property was located. He took the offenders to a garage at the premises. The appellant ascertained that the property was not in the garage and began taking the victim back to the office. At that point the victim managed to escape. The police were called.
As a result of the offending the victim sustained numerous injuries including a broken eye socket and various cuts and bruises to his face, arms and torso. After the offending the victim had difficulty talking and closing his jaw.
The appellant relies on five grounds of appeal.
Ground 1 alleges that the sentence for count 1 infringed the parity principle. Ground 2 alleges that the sentence for count 2 infringed the parity principle. Ground 3 alleges that the sentence for count 1 was manifestly excessive. Ground 4 alleges that the sentence for count 2 was manifestly excessive. Ground 5 alleges that the total effective sentence infringed the first limb of the totality principle.
The trial judge noted in his sentencing remarks a number of factors relevant to the seriousness of the appellant's offending. First, the appellant was being sentenced on the basis that when he assaulted the victim he intended to harm him. He was not, however, being sentenced on the basis that the victim was lured to the appellant's business premises with the intent that the appellant would assault him or the intent that he would harm him. Secondly, the offending involved a degree of premeditation. All of the offenders were armed with weapons when they entered the room where the victim was assaulted. Thirdly, there were three offenders against the victim. Fourthly, each of the offenders used weapons against the victim, who was at all times unarmed and, for part of the assault, had his hands tied behind his back. Fifthly, the episode of offending was sustained. It took place over a period of about 30 minutes. It involved not only multiple assaults but also restraining the victim and questioning and threatening him. Sixthly, the assaults were completely unprovoked.
Although his Honour was satisfied, on the balance of probabilities, that the appellant and Mr Annakin believed that the victim had committed the burglary at the appellant's business premises, his Honour was of the view that this factor required him to place significant emphasis on general deterrence to remind the community that vigilante behaviour will not be tolerated.
The trial judge referred to the victim's injuries and noted that he had undergone surgery to his face under a general anaesthetic. The victim has ongoing problems with his jaw locking and, at times, his face droops on the left side. He has facial scars consequent upon the assaults and the subsequent surgery. He suffers flashbacks about the incident and is hypervigilant about his safety.
The appellant was aged 47 at the time of the offending and was 49 when he was sentenced. He was born in the United Kingdom and moved to Australia when he was 9. He spent some time as a child at Fairbridge Farm. This was a traumatic experience. He was abused.
Since 1992 the appellant had been self‑employed as a removalist. His business had collapsed after his detention in custody for these offences.
The appellant has two adult children from a previous marriage. He remains close to them. The appellant is currently in a relationship. His partner is supportive. He is in good physical health. In 2015 the appellant suffered from depression for which he was prescribed medication. One of the causes of the depression was multiple burglaries at his business premises. He does not abuse illicit substances.
The trial judge was provided with three written references. The referees spoke well of the appellant. The references indicated that the appellant was a professional, efficient and reliable businessman. He was also regarded as a generous and reliable friend. The referees said that the offending was out of character. They did not consider the appellant to be a violent person.
His Honour allowed a discount of 5%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on the head sentence he would otherwise have imposed for count 1, to recognise the benefits of the late plea of guilty.
The trial judge took into account that, as recorded in a pre‑sentence report, the appellant had acknowledged the severity of the assaults perpetrated against the victim and had displayed good insight into the physical and psychological trauma that the victim had experienced and may continue to experience.
However, his Honour said that the appellant had attempted to present a version of reality that was at odds with the CCTV footage of the episode of offending and the jury's verdict. His Honour accepted that there was 'a level of remorse', but said there was not any 'significant … remorse' (ts 369).
The appellant had a prior criminal record. The offences were predominantly traffic and alcohol related. The appellant was therefore not of prior good character for sentencing purposes. However, none of the prior offending was of a violent nature.
The trial judge referred to the sentences which had been imposed on Mr Annakin and Mr Bowen and made the following comments about the relative level of culpability and parity as between the offenders:
[B]oth Mr Annakin and Mr Bowen pleaded guilty at early stages in the process.
So I'm satisfied beyond reasonable doubt that [the appellant was] the instigator and architect of these offences. It was your premises that were burgled and it was your premises at which the incident occurred. It was you who lured [the victim] to the premises with the promise of work. It was you who arranged for Mr Annakin and Mr Bowen to be present. So, as I mentioned, there's an element of vigilantism in … your conduct. So I regard you as having significantly more culpability than either Mr Annakin or Mr Bowen.
In addition to their early pleas of guilty, the mitigating factors arising from their personal circumstances are stronger than yours, so it follows that your sentence will be longer than theirs (ts 369).
The appellant's grounds of appeal do not challenge any of the trial judge's findings of fact. However, at the hearing of his application for an extension of time and for leave to appeal the appellant asserted that his Honour had made a number of factual errors.
The alleged factual errors, as asserted by the appellant at the hearing, included that:
(a)contrary to his Honour's finding, the appellant was not the instigator of the offending;
(b)Mr Annakin had a mobile telephone and tools stolen in the burglary and he believed that the victim had been involved in their theft, and Mr Annakin therefore had a motive to instigate the offending;
(c)contrary to his Honour's finding, Mr Annakin was responsible for the bulk of the assaults on the victim;
(d)contrary to his Honour's finding, Mr Bowen both restrained and assaulted the victim;
(e)the appellant had no history of violence, but Mr Annakin and Mr Bowen had prior convictions including for offences of a violent nature;
(f)contrary to his Honour's finding, the appellant was of good character;
(g)the appellant was ashamed of what he had done;
(h)contrary to his Honour's finding, the appellant was not more culpable than his co‑offenders;
(i)contrary to his Honour's finding, Mr Annakin had arrived at the appellant's business premises one hour before the appellant arrived with Mr Bowen;
(j)contrary to his Honour's findings, the appellant did not assault the victim or hit him with a baseball bat (ts 364 ‑ 365) and the appellant did not strike the victim with a baseball bat on his right knee (ts 365);
(k)on the day prior to the offending in question, the victim was assaulted by a third party and some of his injuries were attributable to that assault; and
(l)contrary to his Honour's finding, the appellant was significantly remorseful.
Although the appellant is self‑represented in this appeal, he was represented by competent and experienced defence counsel at the trial and at the sentencing hearing. The trial occurred on 14, 15 and 16 December 2016. At noon on 16 December 2016, the jury returned a unanimous verdict of guilty on count 2 (ts 287).
The State witnesses at the trial comprised Dr Matthew Jones (a medical practitioner), Ms Donelle Hancock (a nurse), the victim and Detective First Class Constable Nathan Clark. The appellant gave sworn evidence in his defence. The issue which the appellant fought at the trial concerned the nature and extent of his involvement in the offending.
At the sentencing hearing, the prosecutor stated the material facts as alleged by the State. The trial judge's findings of fact, for the purposes of sentencing, reflected the prosecutor's statement. His Honour said that the facts alleged by the prosecutor were consistent with 'the core findings of the jury at the trial' (ts 363). Defence counsel informed his Honour that the material facts as stated by the prosecutor were accepted, save for the reference to the appellant having struck the victim with the baseball bat (ts 353). Defence counsel also informed his Honour that he had read the transcript of the sentencing of the co‑offenders and had been 'through this with [the appellant]' (ts 354). His Honour put to defence counsel that the appellant's culpability was 'relatively more serious than Mr Annakin's' because the appellant was 'the instigator' (ts 360). Defence counsel accepted that the appellant was the instigator (ts 360). He then submitted that the co‑offenders had 'played a more violent role', but the appellant 'did bring them altogether' and the offending '[would not] have happened without him' (ts 361). Defence counsel accepted that the appellant's role was 'certainly more serious than that of Mr Bowen' (ts 361).
We are satisfied, on our appraisal of the trial record (including the verdict of guilty on count 2) and the transcript of the sentencing hearing, that the appellant does not have a reasonable prospect of establishing any material factual error. His Honour's findings were reasonably open to him. His Honour presided over appellant's trial; defence counsel accepted, with one exception, the statement of material facts made by the prosecutor at the sentencing hearing; defence counsel accepted that the appellant was the instigator of the offending; and his Honour had access to and had reviewed the transcript of the sentencing hearing relating to the co‑offenders. In particular, in all the circumstances, it was reasonably open to his Honour to find that the appellant's offending conduct was significantly more culpable than either Mr Annakin's or Mr Bowen's; the appellant had assaulted the victim on multiple occasions; when the appellant assaulted the victim he intended to harm him; each of the offenders (including the appellant) had used weapons (in the appellant's case, a baseball bat) against the victim; although the appellant had 'a level of remorse', he was not significantly remorseful; and, as a result of his prior criminal record, the appellant was not of prior good character for sentencing purposes.

Ground 3 of the appeal

As to ground 3, 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.
The maximum penalty for count 1 is 10 years' imprisonment.
No 'tariff' exists for the offence because of the great variation that attends its commission. The sentence to be imposed in a particular case depends on the individual facts and circumstances of the offence, having regard to the maximum penalty and the offender's personal circumstances. See Henderson v The State of Western Australia [2007] WASCA 198 [61]; The State of Western Australia v Tik [2009] WASCA 122 [45]. We have examined numerous sentencing decisions involving the offence of unlawful detention. See, in particular, The State of Western Australia v Cheeseman [2011] WASCA 15; Pureau v The State of Western Australia [2017] WASCA 115; Atkinson v The State of Western Australia [2017] WASCA 154; and the unlawful detention cases referred to in those decisions.

The appellant asserted in oral submissions to this court that upon completion of his sentence he will be deported and that prior to sentencing he had wanted to engage in mediation with the victim and tell him that he was remorseful.
It is well established in this State that the prospect of an offender being deported is not a mitigating factor. See Hickling v The State of Western Australia [2016] WASCA 124. In any event, the material before the trial judge and this court does not indicate that there is a real possibility that the appellant may be deported or that the appellant would suffer hardship if he were to be deported. Defence counsel did not mention possible deportation at the sentencing hearing. Further and in any event, a different sentence should not have been imposed even if his Honour should have given weight to the possibility of the appellant's deportation as a mitigating factor.
The victim was not obliged to engage in mediation with the appellant. The appellant's asserted desire to engage in mediation does not indicate that the trial judge's finding that the appellant had 'a level of remorse', but was not significantly remorseful, was erroneous.
We are satisfied that it is not reasonably arguable that the sentence of 15 months' immediate imprisonment for count 1 was manifestly excessive. That is, 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;
(c)the general pattern of sentencing for offences of this kind;
(d)the importance of general deterrence as a sentencing factor; and
(e)the late plea of guilty and the other mitigating features referred to by his Honour,
it is not reasonably arguable that the length of the term of imprisonment was unreasonable or plainly unjust.
The sentence of 15 months' immediate imprisonment was commensurate with the seriousness of count 1 and was within the range open to the trial judge on a proper exercise of his discretion.
Ground 3 is without merit.

Ground 4 of the appeal

As to ground 4, the maximum penalty for count 2 is 20 years' imprisonment.
Given the wide variety of circumstances in which the offences are committed, and of the offenders who commit them, there is no 'tariff' for offences against s 304(2) of the Code. See Lawrence v The State of Western Australia [2015] WASCA 187 [36] ‑ [37]. As this court noted in Hinkley v The State of Western Australia [2014] WASCA 122 [18], factors which are relevant to sentencing for an offence against s 304(2) include the nature and seriousness of the offender's intent to harm; the nature and seriousness of the bodily harm caused to the particular victim, or the severity and other circumstances of the actual or likely endangering of the particular victim's life, health or safety, as the case may be; and the potential (as distinct from the actual) consequences of the offender's conduct. We have examined numerous sentencing decisions involving offending contrary to s 304(2). See, in particular, Starr v The State of Western Australia [2011] WASCA 170; Blurton v The State of Western Australia [2014] WASCA 61; De Alwis v The State of Western Australia [No 2] [2015] WASCA 42; Lawrence; Kaokula v The State of Western Australia [2016] WASCA 198; Sophiadakis v The State of Western Australia [2016] WASCA 203; and the cases concerning s 304(2) referred to in those decisions.
The appellant was, of course, entitled to proceed to trial on count 2. However, he did not have the mitigation that a plea of guilty would have brought.
In our opinion, it is not reasonably arguable that the sentence of 3 years 9 months' immediate imprisonment for count 2 was manifestly excessive. That is, when the sentence is viewed from the perspective of the maximum penalty (20 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;
(c)the nature and extent of the victim's injuries occasioned by the offending;
(d)the general pattern of sentencing for offences of the kind in question;
(e)the importance of general deterrence as a sentencing factor; and
(f)the mitigating features referred to by his Honour,
it is not reasonably arguable that the length of the term of imprisonment was unreasonable or plainly unjust.
The sentence of 3 years 9 months' immediate imprisonment was commensurate with the seriousness of the offence and was within the range open to the trial judge on a proper exercise of his discretion.
Ground 4 is without merit.

Grounds 1 and 2 of the appeal

It is convenient to consider grounds 1 and 2 together.
In Barnden v The State of Western Australia [2014] WASCA 161 [55] ‑ [59], this court summarised the parity principle. It is unnecessary to repeat the summary.
There were a number of distinguishing features between the sentencing factors applicable to the appellant, on the one hand, and those applicable to Mr Annakin and Mr Bowen, on the other.
First, the trial judge found, and was entitled to find, that the appellant was the instigator of the offending. The appellant lured the victim to the appellant's business premises with a promise of work, the appellant arranged for Mr Annakin and Mr Bowen to be present and there was an element of vigilantism in his conduct. Secondly, the appellant entered a very late plea of guilty on count 1 and went to trial on count 2 whereas Mr Annakin and Mr Bowen entered early pleas of guilty on both counts.
There does not appear to have been a significant difference between the personal circumstances of the appellant, on the one hand, and those of Mr Annakin and Mr Bowen, on the other. None of the offenders had the mitigation of youth. At the time of the offending the appellant was, as we have mentioned, aged 47. Mr Annakin and Mr Bowen were of mature years.
We are satisfied, after evaluating all relevant facts and circumstances and all relevant sentencing factors concerning the appellant, Mr Annakin and Mr Bowen, that it is not reasonably arguable that the disparity between the appellant's individual sentences and total effective sentence, on the one hand, and those of Mr Annakin and Mr Bowen, on the other, infringed the parity principle or the principle of equal justice. The disparity between the sentences was not such as to give rise to a legitimate or justifiable sense of grievance on the appellant's part, or to give the appearance in the mind of an objective observer that justice was not done as between the appellant, Mr Annakin and Mr Bowen or generally.
Grounds 1 and 2 are without merit.

Ground 5 of the appeal

The first limb of the totality 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 reasonably comparable cases.
The appellant's overall offending was serious. It was necessary for the trial judge to order that the individual sentence for count 1 be served cumulatively upon the individual sentence for count 2 in order properly to mark the serious character of the offending on counts 1 and 2 as a whole.
We are satisfied, after taking into account the maximum penalties for the offences; the circumstances of the offending viewed as a whole; the total effective sentences imposed in previous cases with at least some features comparable to the appellant's offending; the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind; the appellant's personal circumstances; the mitigating factors referred to by his Honour; and all relevant sentencing objectives, that it is not reasonably arguable that the total effective sentence of 5 years' immediate imprisonment was beyond the range open to his Honour on a proper exercise of his discretion.
The total effective sentence bears a proper relationship to the overall criminality involved in both of the offences, viewed in their entirety, having regard to all relevant facts and circumstances (including those personal to the appellant) and all relevant sentencing principles. It is not reasonably arguable that error should be inferred from the sentencing outcome.
Ground 5 is without merit.

Conclusion

None of the grounds of appeal has a reasonable prospect of success. The application for an extension of time to appeal should be dismissed, leave to appeal should be refused and the appeal must be dismissed.