McMaster v The Queen - [2004] WASCA 52

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: McMASTER -v- THE QUEEN [2004] WASCA 52

CORAM: MALCOLM CJ
WHEELER J
MCKECHNIE J

HEARD: 10 FEBRUARY 2004

DELIVERED : 2 APRIL 2004

FILE NO/S: CCA 115 of 2003

BETWEEN: GAVIN JOHN McMASTER
Applicant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram   :ROBERTS-SMITH J
File Number             :  BUN 202 of 2002

Catchwords:

Criminal law - Sentence - Partly cumulative sentences for two counts of grievous bodily harm with intent committed at same time - Whether part of same transaction - Concession by prosecution - Extent to which Judge is bound by concession - Application to adduce fresh evidence - Events occurring after sentence - Whether admissible

Legislation:

Criminal Code (WA), s 283(1), S 294(1), s 689, s 697

Result:

Leave to appeal granted
Appeal dismissed

Category: A

Representation:

Counsel:

Applicant: Mr M J Bowden
Respondent: Mr P J Urquhart & Mr S Formby

Solicitors:

Applicant: Cannon Bowden & Co
Respondent: State Director of Public Prosecutions

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

Gavin v The Queen (1992) 6 WAR 195
Li v The Queen [2000] WASCA 340
Molin v The Queen [2000] WASCA 223
Parry v The Queen [2003] WASCA 22
Pearce v The Queen (1998) 194 CLR 610
R v Anderson (1997) 92 A Crim R 348
R v Babic [1998] 2 VR 79
R v DVG (1999) 109 A Crim R 145
R v Eliasen (1991) 53 A Crim R 391
R v Holland (2002) 134 A Crim R 451
R v Smith (1987) 44 SASR 587
R v WEF (1998) 2 VR 385
R v White [2002] WASCA 112
R v Zehir (1998) 104 A Crim R 109

Case(s) also cited:

Nil

MALCOLM CJ: In my opinion, this application for leave to appeal against sentence should be granted but the appeal should be dismissed. I have reached that conclusion substantially for the reasons to be published by McKechnie J. I only wish to add some comments of my own.
The facts are fully set out in the reasons of McKechnie J. Ground 1 of the application, as amended at the hearing, was that:
"The Learned Judge erred in the exercise of his sentencing discretion by ordering that the sentencing of imprisonment on the second count commenced to run from June 2005 in that His Honour failed to give any or any proper consideration to the totality in sentence and the fact that the two offences arose out of the one transaction, and consequently the overall sentencing of 9‑years imprisonment was disproportionate to the criminality of the conduct involved."
The particulars of that ground were:
"A.The Learned Judge erred in ordering that the second sentence be partially cumulative on the first sentence.
B.The total sentence of 9-years imprisonment was manifestly excessive having regard to the antecedents of the offender, the criminality of the conduct and the circumstances of the case."
In my opinion, it is apparent from the sentencing remarks of the learned Judge that his Honour gave careful and extensive consideration to the application in this case of the totality principle. While the State prosecutor made a qualified concession, that the sentences in respect of each of the two victims should run concurrently, his Honour made it clear that while such a concession was a factor to be taken into account in the exercise of the sentencing discretion, it did not determine the issue. It remained a matter for the Court to determine the appropriate sentence for each of the offences in all the circumstances. The learned Judge pointed out that the concession had to be looked at in the context of the submission that a head sentence between 6 and 8 years in respect of each separate offence would be disproportionately low, having regard to the seriousness of the offences. His Honour also made it clear that the sentence for each offence had to be one which was appropriate to that offence.
His Honour went on to say:
"I am also mindful of the consideration of totality as it applies in two ways: first, that the overall sentence must not be disproportionate to your overall criminality in respect of these offences, and secondly, that the combined sentence must not be so great as to be a crushing term of imprisonment.
I have concluded the appropriate overall sentence would be 9 years' imprisonment. I will achieve that by making the sentence on count 4 concurrent with that on count 2 after you have served 2 years of the sentence on count 2."
The two offences of which the applicant was convicted under s 283(1) of the Criminal Code of doing grievous bodily harm were very serious offences of their kind by reason of the circumstances which were carefully outlined by the learned Judge in his sentencing remarks. The offences were particularly serious because of the finding by the jury that the applicant fired the relevant shots intending to cause grievous bodily harm. The applicant fired at the two victims no less than five times. Two of the bullets hit their intended targets. Given the crowded location, it is surprising that others were not hit. Each of the wounds was potentially fatal. The maximum penalty for each offence under s 294(1) of the Code is 20 years. That is an indication of the seriousness with which Parliament has viewed this offence. In the present case there were two such offences committed in circumstances where grievous bodily harm was done to the two victims, but also the other patrons in the crowded nightclub venue were subjected to the risk of being hit by the bullets fired and put in terror. A third person was in fact hit with what appears to have been a fragment of a bullet.
In my opinion, there is no merit whatsoever in the submission that the learned sentencing Judge failed to give any or any proper consideration to the totality of the sentence. In my opinion, there is likewise no merit whatever in the contention that the overall sentence of imprisonment for 9 years was disproportionate to the criminality of the conduct involved. On the contrary, I consider that the result could be appropriately characterised as moderate. Both of the victims could have died from the wounds inflicted if they had not been promptly treated. In my opinion, the learned Judge clearly demonstrated that he correctly applied the totality principle. Each of the sentences of imprisonment for 7 years was a moderate sentence and the decision of the learned Judge to limit the totality of the sentences to imprisonment for 9 years produced a

result which was one which made a generous allowance for the mitigating factors identified. This was achieved by making the sentence on count 4 concurrent with that on count 2 after the applicant had served 2 years of the sentence on count 2, taking into account the time spent in custody.

The approach adopted by his Honour was entirely consistent with the process of sentencing in the context of the totality principle as stated in Pearce v The Queen (1998) 194 CLR 610 at [45], per McHugh, Hayne and Callinan JJ.
WHEELER J: I have had the advantage of reading in draft the reasons for decision of McKechnie J. I agree with those reasons and have nothing to add.
MCKECHNIE J: The applicant was convicted after trial of two counts of unlawfully doing grievous bodily harm to another with intent to do so. He had been acquitted of two counts of attempted murder. The Judge described the facts as follows:
"I should say something briefly about the facts. What I do say is not intended to be in any way comprehensive. Earlier on the evening of 9 February 2002 you had been at the Esplanade Hotel, Busselton. You left that with a friend, Dale McKeag, and returned to Bunbury and to your business premises at the time, which was the Old Milwaukee Iron Workshop.
You later left there with Matthew Geldert, Dale McKeag, Wes Hollingsworth and a young girl and you all drove in your car to the Area One nightclub which is part of the Lord Forrest Hotel complex. The two victims, James Garland and Andrew Geldert, were already there and, according to the evidence, had probably been there for some hours by the time you and your group arrived between probably 2.00 and 3 am.
You and those with you were in the area of the pool table, reached from the main bar and floor area by going up a few steps. At some point after you had been there a short while, James Garland and Andrew Geldert left the bar area and came over to the bottom of the steps, just above which you and your group were. Words were exchanged between them and members of your group. There was some pushing and shoving between them and the members of your group.

What happened next surprised everyone. You pulled out a concealed, loaded 22‑calibre semi‑automatic hand gun, racked back the slide, deliberately pointed it at James Garland and Andrew Geldert and fired at them no less than five times. Two of the bullets hit their intended targets.
Garland was shot in the right lower abdomen. Geldert was shot in the upper abdomen region just below his chest. You were no more than 2 or 3 metres away from them when you shot at them. There is no doubt whatsoever that the other shots were intended to hit them. The fact that each was hit only once can be attributed to the fact that a hand gun of that type used in those circumstances is notoriously inaccurate even at such close range. There was expert evidence from Senior Constable Meeks of a rather graphic example of that.
A young lady in the nightclub who happened to be in the area behind Geldert and Garland was struck in the neck by a small bullet fragment. Notwithstanding Mr Utting's submission about this I am satisfied that was so. I appreciate of course that you are not to be sentenced for shooting or causing any injury to her. The fact goes only to the seriousness of the circumstances in which you committed the two offences of which you have been convicted. You were very lucky indeed that neither she nor any other patron was seriously wounded or killed.
After the shooting you put the gun back in your pants and left the nightclub. McKeag and Hollingsworth followed shortly after. Matthew Geldert attended to his wounded brother. Other people also assisted him and Garland, an ambulance was called, they were subsequently taken to hospital and treated. Each could have died from the wound received if they had not been given treatment."

The trial Judge was of the opinion that each offence called separately for a sentence of 7 years' imprisonment. No challenge is made to that finding.
The Judge partly accumulated the two sentences to make a total of 9 years' imprisonment achieved by making the sentence on count 4 concurrent with count 2 after serving 2 years of the sentence on count 2. He made a parole eligibility order.
The ground of appeal is:
"The Learned Judge erred in the exercise of his sentencing discretion by ordering that the sentencing of imprisonment on the second count commence to run from June 2005 in that His Honour failed to give any or any proper consideration to the totality in sentence and the fact that the two offences arose out of the one transaction, and consequently the overall sentencing of 9 years imprisonment was disproportionate to the criminality of the conduct involved."
It is wrong to say, as the ground asserts, that the Judge "failed to give any or any proper consideration to the totality in sentence". It is clear from his Honour's remarks that he gave the matter extensive consideration.
At the trial the State prosecutor made a qualified concession that the sentences in respect of each victim should run concurrently. The Judge was not prepared to follow that concession. Nor was he obliged to follow it. What he said was:
"As to the qualified concession, I do not consider that a correct approach in that it tends to imply a higher sentence for each offence predicated on the fact two offences were committed, so that each individual sentence reflects the overall criminality involved in both. I consider that to be wrong in principle. The sentence for each offence is and can only be the sentence for that offence. It must be appropriate to that offence.
If concurrent sentences do not then reflect your overall criminality, the appropriate way to achieve a sentence which does achieve that would be by way of total or partial accumulation. In the circumstances of these offences it would not be appropriate to make the sentences wholly concurrent. That would not reflect the seriousness of your criminal conduct on that occasion.
I am also mindful of the consideration of totality as it applies in two ways: first, that the overall sentence must not be disproportionate to your overall criminality in respect of these offences, and secondly, that the combined sentence must not be so great as to be a crushing term of imprisonment."
This is patently right: Pearce v The Queen (1998) 194 CLR 610.
In sentencing a judgment must be made to balance the principle that one transaction generally attracts concurrent sentences with the principle that the overall criminal conduct must be appropriately recognised, and that distinct acts may attract distinct penalties: R v White [2002] WASCA 112.
In this case there were two distinct shootings resulting in harm to different people. I am unable to detect any error of approach in the exercise of the sentencing discretion to make the sentences partially cumulative. Nor, as a separate question, do I consider that the total sentence of 9 years is so far beyond a proper sentencing discretion as to manifest error of itself.
I would not uphold the ground of appeal.

The basis of the application to receive fresh evidence

The applicant applies for additional evidence to be received by the Court and applies for a reduction in the sentence of imprisonment imposed upon him.
The circumstances giving rise to this application are, thankfully, unusual. The admission of this evidence is in issue but it is necessary to set it out in order to explain the ground of appeal. The applicant deposes:
"2.Since the date of my sentencing being the 24th June 2003 my personal circumstances have changed materially. In particular I wish to draw to the Courts attention the following:
(i)On or about the 26th June 2003 (two days after I was sentenced) at approximately 11.55 hours I was in the Education Centre of Casuarina Prison (room 9) when I was attacked by another prisoner [who] threw a flammable liquid over me and set me alight.
(ii)Subsequently, I was admitted to the Burns Unit at Royal Perth Hospital where I remained until approximately 28th August 2003.
(iii)I have since my discharge from Royal Perth Hospital on the 28 August 2003 regularly attended the Royal Perth Hospital for further medical treatment.
(iv)I suffered burns to approximately 60% of my body surface particularly to the back, face and chest. Now marked with the letter "A" is a copy of a medical report from Royal Perth Hospital dated the 1st December 2003. I verily believe my Solicitors have subpoenaed photographs of my burns from the Prisons Department and the hospital, which hopefully will be made available at the Appeal hearing in this matter."
The applicant deposes to the fact that imprisonment is a greater burden on him for a series of reasons, including the fact that he is unable to receive medical treatment as and when he requires it, although he is able to receive medical treatment at a time convenient to the prison authorities and doctors. Medication cream is applied twice a day whereas he would apply it first thing in the morning. His prison cell, notwithstanding the best efforts, cannot be kept as clean as his house would be kept, and the general prison population has a significantly less demanding standard of hygiene. In the prison system he is only able to use two exercise machines whereas at a gym he would be able to use free weights which would help him develop more control of his muscles, which is important to help overcoming scarring. Due to the nature of the attack he is confined to an isolation ward in the prison mainly with sex offenders. He cannot access a computer which would help him develop more motor skills. Finally, his mental distress has grown following the attack. Subsequent to the hearing of the appeal counsel advised that the applicant is now in a self‑care unit.
A report dated 13 Jauary 2004 from Dr Fiona Wood, Director of the Burns Unit of Royal Perth Hospital, describes the burns as follows:
"With respect to his major burn injury this gentleman will have scars that are permanent. He will therefore have a permanent disability with respect to scarring. In addition to the surface scarring, he also has compromise to this function of his hands in particular. This is currently under treatment and will improve slowly over the coming months to years.
He is able to receive physiotherapy and is able to wear his pressure garments whilst in prison. It is my understanding that this has been taking place.
His main problem with (sic) be that of heat control and if he is in an environment where extremes of heat are experienced then he will have an increased hardship from this as he has less ability to control his temperature."

A review of the authorities since 1997

Section 689(3) of the Criminal Code provides that:
"On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict or which the appellant or an accused person stands convicted (whether more or less severe) in substitution therefor as they think ought to have been passed and in any other case shall dismiss the appeal."
In a case where the sentence is shown to be in error, no difficulty arises and the Court may receive fresh evidence to determine the sentence which ought to have been passed.
However, different considerations apply where, as here, the sentence imposed was not attended by error. In that case, the pre-emptory words of s 689(3) are that the Court "shall dismiss the appeal".
There is to be discerned in the authorities a difference between facts known at the time of sentence and facts which arise subsequently. There are many authorities on the issue whether the Court of Criminal Appeal has power to intervene in a sentence in circumstances such as presently arise. In this State they were gathered together and analysed by Steytler J in R v Anderson (1997) 92 A Crim R 348. Consequently, I do not need to refer to cases before then in any detail. In Anderson's case, before the applicant was sentenced to 3½ years' imprisonment for fraud, the youngest of his three children developed leukaemia but the illness was in remission at the time of sentence. Two months after the applicant was sentenced, the seriousness of the child's condition was diagnosed. The Crown conceded that the hardship constituted exceptional circumstances. The judgments display a difference of approach. At 349 Malcolm CJ said:
"I agree that, as a matter of general policy, there is much to be said for the proposition that the review of a sentence in the light of subsequent events is a matter for the Executive Government and the exercise of the Royal Prerogative rather than the Court of Appeal. Much, however, will depend upon the circumstances of the particular case and the proximity in point of time of the subsequent events to the imposition of the sentence in question. In the present case the time factors involved were such that the Court of Criminal Appeal was in a position to hear and determine the matter with much greater expedition than would have been possible had the matter been dealt with by the Executive.
In my opinion, in an appropriate case, there is no reason why the basic principle applicable to the admission of and acting upon fresh or new evidence should be any different on an application for leave to appeal against sentence than that which is applicable to an appeal against conviction. A court of criminal appeal should quash a verdict of guilty if the material presented to it shows the applicant to be innocent, or raises such a doubt about his guilt in the mind of the court that the verdict should not be allowed to stand. In either case, the verdict should be quashed even though the material presented to the court comprises new evidence which was not fresh evidence which was not available to the accused at the trial, or which could not have been available to him by the exercise of reasonable diligence in the preparation of his case: Ratten (1974) 131 CLR 510 at 518 per Barwick CJ."

Murray J said:
"In other words, if the additional evidence shows that there has been a miscarriage of justice, even though there was no error on the part of the sentencing judge on the facts as originally presented, the Court orf Criminal Appeal should be prepared to interfere. In this context, in Smith (1987) 44 SASR 587; 27 A Crim R 315, King CJ (with whom Cox and O'Loughlin JJ were in agreement) drew a distinction between cases in which fresh evidence was given of facts which were in existence at the time of sentencing or which put facts which were before the sentencing judge in a new light, on the one hand, and fresh evidence of subsequent events, on the other. Evidence of the latter was said to be not receivable.
…
Viewed in that light it seemed to me that the new evidence could properly be received by this Court pursuant to the powers provided in that regard by the Criminal Code (WA), s 697, even having regard to the cautious approach to the receipt of such evidence which the court has traditionally adopted. In that regard I do not dissent to any degree from what has been said by Malcolm CJ upon this subject."
He also applied Criminal Code s 697 to conclude that the Court had power to receive new evidence whenever thought necessary or expedient in the interests of justice.
Steytler J said at 358:
"There is now a body of authority in which courts have been prepared to receive additional material on appeal, even if that material relates to matters which have occurred since the passing of sentence, where, if known at the tune of sentencing, that evidence might have led to the imposition of a different sentence even in circumstances in which the learned sentencing judge's discretion has not miscarried."
Having carefully analysed the many authorities, Steytler J concluded at 363:
"While the matter is not free from difficulty I was prepared to accept, albeit the question has not fully been argued, that this is a case in which the court is empowered to receive the evidence placed before it. That evidence does not deal with any new illness suffered by the applicant's youngest son. Rather, it sheds new light on a deterioration in that pre-existing illness, which deterioration had already occurred at the tune of sentencing, albeit that had not then been confirmed and nor had its consequences been made known to the learned sentencing judge."
As indicated, Anderson reflected a difference of approach between the Judges. Malcolm CJ was prepared to apply the normal rules governing the introduction of fresh evidence in an appropriate case. Murray J considered the Court could receive new evidence to prevent a miscarriage of justice although his support for this view by reference to Criminal Code s 689(3) and s 697 may not accord with the decision in Gavin v The Queen (1992) 6 WAR 195 at 209.
Steytler J's approach was more conservative, allowing the evidence in on the basis that it shed more light on circumstances which existed at the time of sentence but which had not been made known to the Judge. His approach seems analogous to the application of the rules relating to new evidence.
Anderson was decided in early 1997. Since that time there have been further decisions in this and other States. In R v Babic [1998] 2 VR 79 Brooking JA, Winneke P and Ashley AJA agreeing, said:
"The present case concerns evidence of events after sentence. Evidence of an event occurring after sentence which is said to make the sentence passed excessive will not be received, the correct analysis being, in my view, not that the evidence will not be received as a matter of discretion, but that it will not be received because it is not admissible.
The suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is a matter for consideration by the Executive in the exercise of the prerogative of mercy, not by an appellate court: R. v Munday [1981] 2 N.S.W.L.R. 177 at 178; R. v Cartwright (1989) 17 N.S.W.L.R. 243 at 257 per Hunt and Badgery-Parker JJ.; R. v Many (1990) 51 A. Crim. R. 54 at 61-2; R. v Maslen and Shaw (1995) 79 A. Crim. R. 199 at 206-7. So it was laid down in R. v Dorning (1981) 27 S.A.S.R. 481 that evidence of a prisoner’s marked psychological reaction to imprisonment cannot be used to show that the sentence is manifestly excessive, the significance of that event occurring after sentence being a matter for the Executive, not the appellate court…"
In the result affidavits evidencing an injury which occurred subsequent to sentence were held to be inadmissible.
Babic appears to run counter to the principles in R v Eliasen (1991) 53 A Crim R 391 at 394. Brooking JA in the course of his judgment in Babic distinguished one principle of Eliasen as inapplicable to the facts but did not specifically deal with other principles in Eliasen.
In Eliasen the applicant, subsequent to sentence, was found to be HIV positive. The Court held there was no error by the Judge when determining the appropriate sentence nor were the sentences, or effective head sentences, manifestly excessive. Crockett J, McGarvie and Phillips JJ agreeing, said at 394:
"This Court accedes very sparingly to applications of this kind. Applications for leave to appeal are dealt with on the basis that, unless the sentencing judge has been shown to have erred in the exercise of his sentencing discretion, this Court will not intervene in the matter. The question as to whether error has occurred is to be determined by a reference to the matters available to be considered by the judge at the time that he determines upon the sentence.
However, it is plain that authority now establishes that this Court may, if it considers the case an appropriate one so to do, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court's reconsidering the matter in the light of that additional evidence. It must follow that, if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge's sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention.
It has been said by this Court that if, on the material placed before it for the hearing of an application for leave to appeal against sentence, it considers that the sentence imposed was not an appropriate sentence, then the application may be allowed and a different sentence passed in lieu of that imposed below: see Prior [1966] VR 459; Tutchell [1979] VR 248; Martin (unreported, Court of Criminal Appeal, Vic, 19 March 1990).
Upon the application being made to us, we considered that in all the circumstances it was appropriate in this case to allow the additional evidence sought to be placed before us to be admitted in evidence. No opposition to the adoption of that course was raised by the Crown."
The principle in Babic was underlined in R v WEF (1998) 2 VR 385, although Winneke P (Charles, Hampel JA agreeing) recognised a rare exception to the otherwise fundamental rule. The exception he noted is in similar terms to that formulated by Steytler J in Anderson. Babic was followed in R v Holland (2002) 134 A Crim R 451.
In R v DVG (1999) 109 A Crim R 145 the Court of Criminal Appeal in South Australia indicated that it continues to apply R v Smith (1987) 44 SASR 587 where King CJ held at 588:
"A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence.
…
It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence, The Queen v O'Shea (1982) 31 SASR 129 and fresh evidence is therefore not receivable to establish the occurrence of such events ."
Li v The Queen [2000] WASCA 340 is an example of fresh evidence being received which shed light on factors present at the time of sentence.
In Parry v The Queen [2003] WASCA 222, Anderson J held at [56], (McKechnie J agreeing):
"It is therefore not open to the Court of Criminal Appeal to intervene on the basis of events which have occurred since the imposition of the sentence…"
Malcolm CJ who agreed generally with Anderson J noted at [8]:
"…it is not open to the Court to intervene on the basis of subsequent events…"
For completeness, I should mention Molin v The Queen [2000] WASCA 223 where Ipp J held at [6] that the Court would only receive additional evidence in appeals against sentence in exceptional circumstances or in the exercise of the sentencing discretion afresh once it has been shown by other evidence to have miscarried.

The principles for the admissibility of fresh evidence in sentence appeals

The observations in the cases to which Steytler J refers, together with the decision in Anderson, the decisions in the cases subsequent, to which I have made reference, and the cases referred to in Babic, but not specifically cited here, lead me to formulate what I regard as the appropriate principles for the introduction of fresh evidence by a Court of Criminal Appeal on a convicted person's application for leave to appeal against sentence:
(a)If the fresh evidence relates entirely to events which have occurred since the sentence, it may only be receivable if there has been an error in sentencing discretion by the Judge.
(b)If there is no error, the evidence is inadmissible, and under Criminal Code s 689(3) the Court "shall dismiss the appeal".
(c)In consequence, if subsequent events have made a sentence, appropriate when passed, manifestly excessive, that is a matter for the Executive and the prerogative of mercy, not the Court of Criminal Appeal.
(d)Fresh evidence may be admitted in discretion to bring before the Court facts which were in existence at the time of the imposition of the sentence but were not known to the sentencing Judge.
(e)Fresh evidence may be admitted in discretion to explain facts which were before the sentencing Judge so as to put them in a new light.
(f)Even when the discretion to admit fresh evidence is enlivened, the discretion will only be exercised in exceptional or unusual cases.

The resolution of this case

With those principles in mind, I return to the evidence in the present case.
The evidence sought to be tendered on appeal and in fact received was: Exhibit 1 ‑ Affidavit of the applicant dated 21 January 2004. I have quoted the relevant parts. Exhibit 2 ‑ Bundle of 12 photographs of the applicant's burns. Exhibit 3 ‑ Report of Dr Fiona Wood dated 13 January 2004, which I have also set out.
Although these exhibits were received, the State's position was that only material relevant to the exacerbation of the applicant's panic disorder and his post‑traumatic stress disorder was admissible.
As there is no error in the sentence, I consider the evidence as to burns and disfigurement comes under (b) above and is inadmissible.
Evidence as to the panic disorder and post‑traumatic stress disorder comes under (e) and the question arises whether that evidence should be considered.
The trial Judge had information about the applicant's mental state which he summarised as follows:
"So far as your health is concerned, you have been consulting Dr Kay since 1994. You told the community corrections officer that you had been diagnosed with panic disorder with agoraphobia and chronic post‑traumatic stress disorder. You have taken prescribed medication since the 1990s. You report that when you cease medication you are more prone to irritability, skin rashes, headaches, a worsening of anxiety attacks, lethargy, low motivation and increased sleep disorders. You told the community corrections officer that although you became a member of the Rebels motorcycle group, you ceased being a member of that club as of early 2003.
…
I mentioned earlier Dr Kay's report. That is dated 17 March 2003. He confirms that you have been a patient of his since your initial referral to him by your general practitioner in January 1994. He confirms that you suffer from a definite case of panic disorder with agoraphobia and in particular you find it difficult to tolerate confined or crowded places, and you also have a diagnosis of a chronic post‑traumatic stress disorder as a result of military imprisonment during your service with the army.
Dr Kay relates in his report the treatment regime which is basically a medical regime which you have undertaken. So far as your prognosis is concerned, he states that your condition is chronic but you responded well to treatment. He makes the observation that in his opinion your post‑traumatic stress disorder, panic disorder or ADHD do not affect your suitability for parole.
The most pertinent comment in Dr Kay's report, it seems to me, is his concluding opinion that your psychiatric condition in general is stable and he does not believe it had a significant bearing on you intentionally causing grievous bodily harm to the two victims. In his opinion, that matter, as he puts it, is entirely independent of your psychiatric conditions. I take your mental and psychological condition into account, however, in that those diagnosed conditions will mean imprisonment is likely to be more severe for you than for those persons who do not suffer from them."
The applicant deposes in Exhibit 1:
"(g)I have recurring flashbacks and nightmares and hallucinations relating to the attack upon me particularly in view of the offender apparently having carried out the assault upon me at the bequest of a bikie gang.
(h)My post traumatic stress disorder and panic disorder has worsened and the symptoms of these disorders such as the rashes on my forearms, constant panic attacks, more frequent and disturbing flash back, reoccurring nightmares disturbed sleep, constant insecurity has cause[d] me to become distressed and depressed. The Severity of my panic disorder and my post traumatic stress disorder have increased as a result of this attack upon [me]."
In a report dated 12 January 2004, and obviously subsequent to the date of sentence, Dr Oleh Kay notes:
"I was asked to review Mr McMaster whilst he was an in‑patient at Royal Perth Hospital and found him to be significantly depressed, tearful and complaining of panic attacks. I advised recommencement of his anti‑depressant medication. I reviewed Mr McMaster again, in the section of Casuarina Prison in which he is resident and continuing to receive care for his burns. I noted that he was on appropriate anti‑depressant medication, but despite this, he was having continued problems with depressive symptomatology and panic attacks, as a result of the need to be kept separate from the general prisoner population and the special care he was receiving for his burns and, aggravation of his Post‑Traumatic Stress Disorder by being in the environment in which he was burnt."
There is some degree of overlap between the mental condition and the assault subsequent to sentence but I am nevertheless prepared to treat the evidence I have just set out as fresh evidence. The Judge knew of, and took account of, the mental condition but did not know of any exacerbation of that condition as a result of the assault. That said, I do not consider that the evidence of exacerbation constitutes circumstances of such significance as to interfere with the sentence. The Judge's summary is accurate and the fresh evidence adds little to the issue.
I consider that the evidence of the burns and their effect is inadmissible. However, in case I am wrong about that, I have considered the evidence in combination with the Judge's sentencing remarks.
There is no doubt that the assault on the applicant in prison was horrific. It has led to a medical regime that would have been unnecessary otherwise. The management of that regime is a matter for the prison authorities. In R v Zehir (1998) 104 A Crim R 109 the lack of a special diet which seriously endangered the applicant's health was not a sufficient factor to take the case out of the normal rule that the Court will not interfere to adjust a sentence in respect of matters properly the province of the Executive. Dr Wood's report does not suggest the applicant's treatment in prison is unmanageable.
There remains for consideration of course the physical and mental effect of the attack. While this is a factor of significance in mercy, I would not in mercy alter an otherwise appropriate sentence in the circumstances of this case. To do so would be a distortion of sentencing principles and is a matter more appropriate for consideration by the Executive.
Although I would grant leave, I would nevertheless dismiss the appeal.