McCoombe v The State of Western Australia
[2016] WASCA 227
•20 DECEMBER 2016
McCOOMBE -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 227
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 227 | |
| THE COURT OF APPEAL (WA) | 20/12/2016 | ||
| Case No: | CACR:110/2016 | 13 DECEMBER 2016 | |
| Coram: | NEWNES JA MAZZA JA | 13/12/16 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | EDWARD WARD McCOOMBE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against sentence Aggravated assault occasioning bodily harm Manifest excess |
Legislation: | Nil |
Case References: | Bropho v Hall [2015] WASC 50 Gillespie v The State of Western Australia [2016] WASCA 216 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Holden v The State of Western Australia [2009] WASCA 50 R v Brand (Unreported; CCA, SCt of WA, Library No 980590, 9 October 1998) The Queen v Kilic [2016] HCA 48 Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : McCOOMBE -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 227 CORAM : NEWNES JA
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'NEAL DCJ
File No : KUN 6 of 2016
Catchwords:
Criminal law - Application for leave to appeal against sentence - Aggravated assault occasioning bodily harm - Manifest excess
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr H Sklarz
Respondent : No appearance
Solicitors:
Appellant : Sklarz Lawyers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bropho v Hall [2015] WASC 50
Gillespie v The State of Western Australia [2016] WASCA 216
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Holden v The State of Western Australia [2009] WASCA 50
R v Brand (Unreported; CCA, SCt of WA, Library No 980590, 9 October 1998)
The Queen v Kilic [2016] HCA 48
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
Wilson v The State of Western Australia [2010] WASCA 82
- REASONS OF THE COURT:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
1 Before the court is the appellant's application for leave to appeal against sentence.
2 The appellant was charged on indictment in the District Court with four counts of aggravated assault occasioning bodily harm, contrary to s 317(1)(a) of the Criminal Code (WA) (the Code). The alleged victim in each count was his domestic partner, a woman we will refer to in these reasons as D. Bodily harm is defined in s 1 of the Code as meaning 'any bodily injury which interferes with health or comfort'. The maximum penalty for an offence contrary to s 317(1)(a) is 7 years' imprisonment. The maximum penalty for an offence of assault occasioning bodily harm which is not aggravated is 5 years' imprisonment.
3 The appellant pleaded guilty to all four counts and was duly convicted of them (ts 6). On 27 June 2016, he was sentenced by O'Neal DCJ as follows:
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4 His Honour ordered that the sentences on counts 1 and 4 be served cumulatively and the other sentences be served concurrently. Thus, the total effective sentence was 6 years 2 months' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 19 September 2015.
5 The appellant seeks leave to appeal on a single ground, which claims that the sentence of 5 years' imprisonment on count 4 was manifestly excessive.
6 For the reasons which follow, we would refuse leave to appeal on this ground, with the consequence that the appeal is taken to have been dismissed: s 27(1), (2) and (3) Criminal Appeals Act 2004 (WA).
The facts
7 The appellant is approximately 175 cm tall and of solid build. D is approximately 160 cm tall and of medium build. At the time the offences were committed, the appellant and D had been in a domestic relationship for some years. They have a young child who, at the time the appellant was sentenced, was 4 years old.
8 Count 4 took place against the background of prior episodes of domestic violence perpetrated by the appellant against D, including, as we have mentioned, counts 1, 2 and 3. Although the sentences for these offences are not challenged by the appellant, it is appropriate, in order to appreciate the context in which count 4 occurred, to describe the facts of those offences. It is also appropriate to mention at this point that on 23 July 2015 the appellant was released from prison, having served a term of 12 months' imprisonment for offences of violence towards D.
9 In respect of count 1, between 23 July 2015 and 18 September 2015, the appellant and D were together at their home in Kununurra. Following an argument between them, the appellant punched D two or three times to the face with a clenched fist, causing her eye to become swollen and bruised. Afterwards, he approached D, who was lying on her bed, and strangled her to the point where she was unable to breathe or swallow. As a consequence of this, D sustained bruising to her neck (ts 6).
10 In respect of count 2, on 7 August 2015, the appellant and D were outside their home when he became jealous of her. The appellant picked up a metal chair and swung it forcefully at D, striking her to the back of the head, as a result of which she sustained a wound that bled profusely.
11 In respect of count 3, between 31 August 2015 and 18 September 2015, the appellant and D were inside their residence when, once again, he became jealous of her. On this occasion, the appellant struck D with a plastic crate to her left leg, ribs and head. He later struck her arm with the crate. D sustained bruising to her leg and a cut to her head that bled profusely (ts 7).
12 This takes us to count 4. On 14 September 2015, the appellant once again became jealous of D. Initially, he verbally abused her. D walked into the toilet to get away from him, but he pursued her. The appellant kicked in the toilet door, as a result of which D ran to the front of their home to escape, but she was unable to open the door. As D ran to the front door, the appellant took hold of a kettle full of boiling water. When he reached her, he poured boiling water down D's back, causing second and third-degree burns. The appellant then pushed D onto a mattress and punched her to the face and kicked her body (ts 7).
13 According to D, the appellant prevented her from obtaining treatment for her burns for several days. Eventually, on 18 September 2015, she attended the Kununurra Hospital. Photographs which were part of the prosecution brief tendered at the sentencing hearing show extensive areas of skin damage down D's back. The medical report in the prosecution brief reveals that D was transferred to Fiona Stanley Hospital in Perth for further treatment. The report states that both layers of D's skin were broken. On 10 October 2015, D's wounds were assessed as healing well.
14 It is clear from the victim impact statement that was provided to the primary court that the injuries sustained by D caused her great pain and psychological distress. It is evident from this document that D harbours considerable fear of the appellant.
15 His Honour described the circumstances of count 4 as 'especially serious'. He concluded, having regard to the harm inflicted on D, that count 4 was 'in the most serious category of offending of this kind'.
The appellant's antecedents
16 The appellant was 47 years of age at the time he was sentenced. He is an indigenous Australian. His parents are now deceased, but he has positive relationships with his siblings. He has family in the Kimberley and the Northern Territory. He was educated to year 11. He was gainfully employed until 2009. Since then, he has been in receipt of Centrelink benefits. The appellant commenced drinking alcohol at an early age and has continued to do so at problematic levels since then. He does not appear to use illicit substances.
17 In addition to the child he has with D, the appellant has three children from a previous domestic relationship.
18 The appellant has a long criminal history, described by his Honour as 'one of the worst records of violent offending that I've seen'. As an adult, the appellant has been convicted of many offences involving violence, including assault occasioning bodily harm (1992, 1994, 1997, 2003), aggravated assault occasioning bodily harm (2010, 2013, 2014), grievous bodily harm (1993), unlawful wounding with intent to cause grievous bodily harm (1999), aggravated unlawful wounding (2010) and aggravated assault (2010, 2013 and 2014). He has served several substantial terms of immediate imprisonment. Disturbingly, some of these offences have been committed against his domestic partners, including D.
19 The author of the pre-sentence report observed that the appellant demonstrated little insight into his offending. It was noted that the appellant sought to 'justify' pouring boiling water on D by claiming that she had caused him to become jealous and that she 'didn't listen' when he accused her of infidelity.
20 Although the appellant appreciates the link between his alcohol consumption and domestic violence and has undertaken programs with respect to these issues, he has no strategy to reduce the risk of harm he poses when he is in the community.
The sentencing remarks
21 Given that the ground of appeal does not allege any express error on the part of the sentencing judge, it is unnecessary to refer to the sentencing remarks at any length. His Honour observed that there were few mitigating circumstances. His Honour took into account the appellant's pleas of guilty and the fact that the appellant will serve his terms of imprisonment away from his family and extended family. In respect of count 4, his Honour gave a reduction of 20%, pursuant to s 9AA of the Sentencing Act.
22 His Honour found that the appellant did not have favourable antecedents, nor could it be said that the offending was uncharacteristic of him. In respect of the appellant's previous offending he said, in substance, that, while he could not and would not be punishing the appellant again, his previous offending illuminated his moral culpability and indicated that retribution, deterrence and protection of society were important sentencing considerations in the appellant's case. His Honour's statements are consistent with the principles described by Mason CJ and Brennan, Dawson and Toohey JJ in Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477.
General principles applicable to this case
23 I respectfully adopt the statement made by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2] as to the general principles applicable to an appeal against sentence. Those principles are well-accepted and there is no need to repeat them here.
The appellant's submissions
24 It was submitted in writing that, although the offending of count 4 was undoubtedly very serious, the sentence was inconsistent with the outcome and certain statements made by this court in Holden v The State of Western Australia [2009] WASCA 50 and the outcome of R v Brand (Unreported; CCA, SCt of WA, Library No 980590, 9 October 1998), a case said to be factually analogous. The appellant's counsel pointed out that, absent the reduction for the plea of guilty, the sentence was very close to the maximum penalty. In oral submissions, counsel submitted the sentence of 5 years on count 4 was too great a leap from the sentences imposed on counts 1, 2 and 3.
Disposition of the proposed ground
25 A claim of manifest excess is a claim of implied error. The sentence must be shown to be unreasonable or plainly unjust. In determining whether such an error has been made, regard is had to the maximum penalty for the offence (7 years' imprisonment in this case), the place which the criminal conduct occupies on the scale of seriousness of the offence in question and the personal circumstances of the appellant.
26 The purpose of examining comparative cases is to provide a yardstick with the object of achieving broad consistency in sentencing, both in outcome and the application of relevant sentencing principles. However, as the High Court pointed out in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, care must be taken in applying sentences imposed in other cases [53]. The range of sentences imposed in previous cases does not fix the range of an appropriate exercise of the sentencing discretion. See also TheQueen v Kilic [2016] HCA 48 [22]. What is important is that each case be decided upon its own facts and circumstances.
27 Neither of the cases cited on behalf of the appellant assist him.
28 In Holden v The State of Western Australia, the appellant pleaded guilty to one count of assault occasioning bodily harm which, as we have said, carries a maximum penalty of 5 years' imprisonment. The appellant struck the victim once to the body with a set of nunchakus. The appellant was 34 years of age and had a relatively minor record of prior offending and no prior convictions for offences of violence. The appellant was initially sentenced to 2 years' immediate imprisonment. The court reduced that sentence to 18 months' immediate imprisonment on the basis of a factual error made by the sentencing judge. The circumstances of the offending in that case were described by Owen and Miller JJA as 'somewhere near the middle range'. At [43], Wheeler JA observed that it was difficult to discern a tariff for the offence of assault occasioning bodily harm, but that a post-transitional range could appropriately include sentences from 6 months suspended imprisonment to 2 years' immediate imprisonment.
29 Holden v The State of Western Australia is factually and legally distinguishable from the present case, having regard to the less serious circumstances of the offending, the more favourable personal circumstances of the offender in that case and that he committed a lesser offence with a lower maximum penalty. Further, nothing said by Wheeler JA should be understood as suggesting a sentence outside the range she described would be erroneous.
30 R v Brand was a Crown appeal. We accept that it does have some factual similarities to the present case. There, the two respondents, who were sisters and motivated by a desire to 'pay back' the female victim, poured boiling water on her, causing third-degree burns. Each pleaded guilty to an assault occasioning bodily harm. Murray J described the offence as a gratuitous attack and that it was 'difficult to imagine a more serious form of assault occasioning bodily harm'. The Court of Criminal Appeal allowed the appeal, set aside the 2-year community based order that was imposed at first instance and resentenced each respondent to a term of 2 years' immediate imprisonment. Murray J described this outcome as lenient, but justified leniency on the basis of the now-abolished principle of double jeopardy.
31 R v Brand is not a truly apt comparator for a number of reasons. First, the outcome of one case does not dictate the outcome in all other cases. Second, unlike the present case where there was little mitigation, there were, in R v Brand, powerful mitigating factors in favour of the respondents. Third, the offence committed by the respondents was different and subject to the lesser maximum penalty of 5 years' imprisonment. Fourth, the ultimate outcome in R v Brand was affected by the now-abolished double jeopardy principle.
32 There is no challenge to his Honour's finding that count 4 fell 'in the most serious category of offending of this kind'. We note that his Honour did not describe the offence as being in 'the worst category', an expression the High Court said, in The Queen v Kilic, should be avoided [17] - [20]. Regardless of the expression used by his Honour, it is not suggested that the sentencing judge erred in his appreciation of the seriousness of the offence, its effect upon D and the antecedents of the appellant.
33 The circumstances in which count 4 was committed have already been described by us. Repetition is unnecessary. They eloquently speak for themselves. The pouring of a kettle of boiling water on D was a particularly cruel and senseless act which was plainly capable of causing very serious injuries. In the spectrum of physical injuries constituting bodily harm sustained by D, they were severe. The offence entailed an abuse of the relationship of trust which existed between the appellant and D. D was in a vulnerable position by reason of the greater physical strength of the appellant and the degree to which he had intimidated her by his past acts of violence: as to which we respectfully adopt Mitchell J's statement in Bropho v Hall [2015] WASC 50 [16], which was approved by this court in Gillespie v The State of Western Australia [2016] WASCA 216 [48].
34 Count 4 was no aberration. It was part of a pattern of serious and ongoing domestic violence against D.
35 The appellant has no real insight into his offending. He sought to justify what he did by blaming D. His antecedents are poor and it is apparent from them that, unless he changes his ways (something he has not been able to do up to date), he poses a high risk of further serious violent offending against his domestic partners. The appellant exhibits a continuing attitude of disobedience of the law. Retribution, deterrence and public protection were important sentencing factors which warranted a more severe sentence. Contrary to the appellant's argument, manifest excess is not demonstrated by a comparison of one sentence with other sentences imposed upon the offender at the same time. Further, in the present case, the sentences on counts 1, 2 and 3 may reasonably be seen as lenient and reflecting their less serious circumstances or possibly justified by reasons of totality.
36 We are acutely aware of the severity of the sentence imposed on count 4. It is true that, absent the reduction for the plea of guilty, the sentence was very close to the maximum penalty for the offence. However, when all the relevant circumstances are considered, including the appellant's plea of guilty and his antecedents, count 4 was plainly an offence of the utmost gravity of its kind. It cannot reasonably be said that the sentence was outside the range of a sound exercise of the sentencing discretion. In our opinion, it is not reasonably arguable that the sentence was manifestly excessive. We would refuse leave to appeal on the proposed ground and we would dismiss the appeal.
37 The orders we would make are:
1. Leave to appeal is refused.
2. The appeal is dismissed.
Key Legal Topics
Areas of Law
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Criminal Law
Legal Concepts
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Appeal
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Aggravated & Exemplary Damages
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Sentencing
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