Merlo v The State of Western Australia
[2018] WASCA 71
•15 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MERLO -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 71
CORAM: BUSS P
MAZZA JA
HEARD: 20 APRIL 2018
DELIVERED : 15 MAY 2018
FILE NO/S: CACR 246 of 2017
BETWEEN: PETER MERLO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 29 of 2017
Catchwords:
Criminal law - Leave to appeal against sentence - Unlawful assault occasioning bodily harm - Unlawful wounding with intent to maim - Family and domestic relationship - Whether open for sentencing judge to be satisfied beyond reasonable doubt that offending aggravated by violent history - Whether total effective sentence imposed infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 294(1), s 297(3), s 304(2), s 325
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Porter Scudds Barristers and Solicitors |
| Respondent | : | Director of Public Prosecutions for Western Australia |
Case(s) referred to in decision(s):
Fernandez v The State of Western Australia [2017] WASCA 223
Oxenham v The State of Western Australia [2015] WASCA 30
The State of Western Australia v Naumovski [2013] WASCA 215
JUDGMENT OF THE COURT:
This is an application for leave to appeal against sentence.
The appellant was charged on an indictment filed in the District Court with four offences. The alleged victim in each count was AR, a person with whom the appellant was in a family and domestic relationship. The charges on the indictment were:
•count 1 alleged that on an unknown date between 9 January 2015 and 1 February 2015, at Perth, the appellant sexually penetrated AR without her consent, contrary to s 325 of the Criminal Code (Code);
•count 2 alleged that on 9 March 2015, at Perth, the appellant, with intent to harm, did an act as a result of which the life, health or safety of AR was, or was likely to be, endangered, contrary to s 304(2) of the Code;
•count 3 alleged that on the same date and at the same place as in count 2, the appellant unlawfully assaulted AR and thereby did her bodily harm while the appellant was in a family and domestic relationship with her, contrary to s 297(3) of the Code; and
•count 4 alleged that on the same date and at the same place as in count 2, with intent to maim AR, the appellant unlawfully wounded her, contrary to s 294(1) of the Code.
The appellant pleaded not guilty to these offences. On 27 October 2017, a jury found him not guilty of counts 1 and 2, but guilty of counts 3 and 4.
On 9 November 2017, the appellant was sentenced by Troy DCJ to 18 months' immediate imprisonment on count 3 and 5 years' immediate imprisonment on count 4. His Honour ordered that these sentences be served cumulatively. Thus, the total effective sentence imposed upon the appellant was 6 years 6 months' imprisonment. The appellant was made eligible for parole and the sentences were backdated to commence on 8 October 2017.[1]
[1] ts 618.
The appellant relies upon two proposed grounds of appeal. Ground 1 alleges that it was not reasonably open for the sentencing judge to be satisfied beyond reasonable doubt that the offending was aggravated by the fact that, prior to 9 March 2015, the appellant behaved violently towards the complainant, specifically, that he had punched her in January 2015. Ground 2 alleges that the total effective sentence infringed the first limb of the totality principle.
In our opinion, neither proposed ground of appeal has a reasonable prospect of success. Leave to appeal should be refused on each ground and the appeal dismissed. Our reasons for these conclusions are as follows.
The facts
The sentencing judge made these factual findings.
The appellant and AR had been in a relationship which was described as boyfriend/girlfriend. The appellant is from Perth. AR is a United States citizen. They met in a rehabilitation facility in Thailand in late 2013. In the middle of 2014, the appellant travelled to the United States. He and AR travelled together for some time. In July 2014, they began living together in Perth.[2]
[2] ts 607 - 608.
Outwardly, they appeared to be a happy couple, but this appearance hid a darker side.[3] His Honour found that, between December 2014 and 9 March 2015, the appellant behaved in a hurtful, controlling and violent manner towards AR.[4] His Honour found that, in January 2015, the appellant punched AR to the face.[5]
[3] ts 608.
[4] ts 609.
[5] ts 609 ‑ 611.
His Honour found that by March 2015, AR was taking steps to assert some degree of independence from the appellant. However, the relationship between them remained on‑foot, at least to some extent. AR still had strong feelings for the appellant.[6]
[6] ts 611.
On 9 March 2015, AR contacted the appellant and he agreed to bring her to his apartment. The appellant consumed a quantity of methylamphetamine.[7]
[7] ts 611 ‑ 612.
His Honour found that, for reasons known only to the appellant, something happened in the apartment which caused him to fly into 'a violent, drug‑fuelled rage'.[8] The appellant 'battered'[9] AR with his fists, delivering at least 'two targeted powerful blows'[10] to AR's face, which fractured her eye sockets and right cheekbone. The blows put her in a state of semi‑consciousness so that she was unable to defend herself (count 3).[11]
[8] ts 612.
[9] ts 612.
[10] ts 612.
[11] ts 612.
The appellant then took possession of a meat cleaver and positioned AR's hand on a chopping board. He then isolated the little finger on her right hand and with a single blow of the meat cleaver almost entirely severed that finger. Later attempts to surgically reattach the finger were unsuccessful.[12]
[12] ts 614.
AR fled down eight flights of stairs from the appellant's apartment, with him in pursuit.[13]
[13] ts 614.
Fortunately for AR, a marked police vehicle was nearby and the appellant was apprehended. He was taken to hospital, where it took eight people to hold him down. At one point, the appellant yelled, 'I love her [AR], that's why I only did the pinky. I only did the pinky'.[14]
[14] ts 614.
After charges had been initially withdrawn, the appellant attempted to persuade AR, in substance, not to cooperate with his prosecution. His Honour took the view that this conduct did not aggravate the offending.[15]
[15] ts 615.
At trial, the appellant testified in his defence.[16] With respect to count 3, he claimed to have acted in self‑defence.[17] With respect to count 4, he claimed AR deliberately severed her own finger.[18] By their verdicts, the jury plainly rejected this testimony.
[16] ts 381 - 410, 412 - 443, 449 - 490.
[17] ts 437, 470.
[18] ts 404 - 405.
His Honour detailed the impact the offending has had on AR. The loss of her finger affects the manner in which she performs everyday tasks such as shaking hands, typing and brushing her teeth. She is no longer able to play the piano and her ability to play golf has been affected. The injuries to her face have left her with nerve damage and her facial appearance has been affected. The attack has left her with significant psychological deficits.[19]
[19] ts 615 ‑ 616.
The appellant's antecedents
At the time of offending, the appellant was 34 and he was a successful businessman.[20] It was clear from material provided to his Honour that he had the support of his family and others in the community. Since the commission of the offences, he has ceased using illicit drugs and has now married. The appellant has a minor criminal history. Despite this, his Honour said that he did not regard the appellant as a person of previous good character.[21]
[20] ts 607.
[21] ts 616.
The sentencing remarks
His Honour noted the disparity in size between the appellant and AR. His Honour observed that the appellant weighed between 80 and 85 kg and was of medium height. His Honour observed that AR was 'tiny'[22] and that she weighed about 45 kg.[23] His Honour found that the offences were not an 'uncharacteristic aberration'[24] and did not happen 'out of the blue',[25] although his Honour found that they were 'a dramatic escalation of [the appellant's] prior conduct'.[26]
[22] ts 607.
[23] ts 607.
[24] ts 611.
[25] ts 610.
[26] ts 610.
His Honour found that, as the appellant had stopped using drugs, the need for personal deterrence was diminished.[27] However, general deterrence remained 'an important sentencing consideration'.[28]
[27] ts 616.
[28] ts 617.
His Honour found that the offences were unprovoked and senseless, although they were not premeditated.[29]
[29] ts 617.
His Honour referred to both the so‑called one transaction rule and the totality principle. He reduced the sentence he would have otherwise imposed on count 3 for reasons of totality.[30]
[30] ts 618.
Ground 1
AR testified that, on a number of occasions prior to 9 March 2015, the appellant: damaged her laptop computer;[31] locked her out of the apartment in which they were living;[32] and assaulted her, including at an event on New Year's Eve 2014.[33]
[31] ts 69.
[32] ts 71 ‑ 73.
[33] ts 69 - 70.
Specifically, in evidence‑in‑chief, AR testified that the appellant punched her to the face, giving her a bruised and swollen cheekbone and a black eye.[34] She said that, a few days later, at the end of January 2015, she took a number of photographs of her injuries which she showed to her mother during a Skype call.[35] These photographs were tendered as an exhibit. AR testified that the appellant punched her 'very hard. I saw stars'.[36] She said that prior to this incident, while he had hit her on the side of her head, he had never struck her 'directly to the face'.[37] She said that after he punched her, she ran out of the apartment and collided with the stairwell door.[38] The appellant caught up with her and covered her mouth to stop her screaming. Eventually a man entered the stairwell and told the appellant to 'let go of her'.[39]
[34] ts 82.
[35] ts 82 - 83.
[36] ts 84.
[37] ts 84.
[38] ts 84.
[39] ts 85.
In cross‑examination, defence counsel challenged AR's account of these events. By reference to the date stamp on the photographs of AR's injuries, AR accepted that the photographs had been taken on 8 January 2015. AR also accepted that her evidence that the assault occurred, and that the photographs were taken, in late January 2015 was incorrect. AR explained the discrepancy by saying, 'I got my dates - times of when he abused me wrong. I apologise'.[40] When she was asked by defence counsel whether she was upset because she had been 'caught out',[41] AR responded, 'No. I'm upset because there were many instances where he assaulted me'.[42]
[40] ts 180.
[41] ts 180.
[42] ts 180.
The appellant testified, in substance, that he had not ever physically assaulted her, although in early January 2015 his relationship with AR was 'rocky'.[43] He said that, after the New Year's Eve 2014 event, she went missing for a few days and that when she returned she had a bruised eye and scratches on her arms. He said when he asked her what had happened, AR told him that she had been drinking and that she did not remember what had occurred. He said that he told her to take photographs and make a police report. The appellant testified that, despite his reminders, she did not report the matter to the police. The appellant said that he saw the photographs of AR's injuries in the first or second week of January 2015. He denied causing the injuries.[44]
[43] ts 393.
[44] ts 394.
In cross‑examination, the State prosecutor challenged the appellant's testimony and put to him that the injuries shown in the photographs had been caused by him. The appellant maintained his denials.[45]
[45] ts 418 ‑ 419.
At the sentencing hearing, his Honour sought submissions from counsel as to whether his Honour should find, beyond reasonable doubt, that there had been an instance or instances of physical violence by the appellant towards AR prior to 9 March 2015.[46] Counsel made submissions on the point.[47]
[46] ts 593.
[47] Prosecutor, ts 594 ‑ 595; defence counsel, ts 597.
In the sentencing remarks, his Honour found that the photographs of AR's facial injuries were taken on 8 January 2015 and that the injuries depicted in them occurred between 31 December 2014 and that date.[48] His Honour said that, having observed AR testify before the jury for a day and a half, he found her, in general terms, a compelling and convincing witness.[49] His Honour said that the fact that the episode of violence occurred earlier rather than later in January 2015, did not make the allegation 'more objectively improbable'.[50] His Honour rejected the appellant's evidence to the effect that AR had gone out for two or three days and returned, having been punched by a stranger.[51] His Honour was satisfied beyond reasonable doubt that the only person who had caused the injuries shown in the photographs was the appellant and his Honour concluded, based on that finding, that the offence committed by the appellant on 9 March 2015 was not an uncharacteristic aberration.[52]
[48] ts 608 - 609.
[49] ts 609.
[50] ts 610.
[51] ts 610.
[52] ts 610 ‑ 611.
In arriving at the finding that the appellant had previously assaulted AR, his Honour expressly excluded from his deliberations the allegation the subject of count 1.[53]
[53] ts 611.
The submissions in support of proposed ground 1 allege, in essence, that it was not reasonably open to the trial judge to be satisfied beyond reasonable doubt that the relationship between the appellant and the complainant was 'one of ongoing violence'.[54] This submission does not accurately represent his Honour's finding. The finding made by his Honour was that the offending on 9 March 2015 was not an uncharacteristic aberration. Ground 1 should be understood in this light.
[54] Appellant's submissions, par 41.
The appellant submitted that the acquittals on counts 1 and 2 signify that the jury did not accept AR as a credible and reliable witness unless her testimony was corroborated.[55] The appellant submitted that that should have been his Honour's approach.[56]
[55] Appellant's submissions pars 45, 48.
[56] Appellant's submissions, pars 51 - 52.
The legal principles applicable to the duty of a trial judge to determine the facts relevant to sentencing are uncontroversial. Provided the facts found by a sentencing judge are not inconsistent with the jury's verdict, it is the duty and responsibility of a sentencing judge to make his or her own findings of fact for the purpose of sentencing. There is no general requirement that a sentencing judge must sentence an offender upon a view of the facts consistent with the verdict which is most favourable to the offender. However, where a fact for the purpose of sentencing is disputed (or a sentencer indicates they are not prepared to accept a submission as to a finding of fact), and where the finding is in respect of an aggravating factor, the prosecutor must satisfy the sentencer of that fact beyond reasonable doubt. Where the matter is a mitigating factor, the fact must be established on the balance of probabilities.
In our opinion, it was well open to his Honour to be satisfied beyond reasonable doubt that the offences the appellant committed on 9 March 2015 were not uncharacteristic aberrations. In particular, it was open to his Honour to be satisfied beyond reasonable doubt that the appellant assaulted AR in the period between 31 December 2014 and 8 January 2015.
The issue for the sentencing judge was not whether AR suffered an assault in January 2015. The photographs that were tendered in evidence showed that someone had assaulted her. The question was who was the assailant? His Honour had an advantage over this court in having seen both the appellant and AR testify and be cross‑examined. It is clear from the sentencing remarks that his Honour found AR to be a credible and reliable witness. It was open to his Honour to accept AR's testimony and to reject the appellant's testimony.
AR's testimony on the alleged assault was detailed, clear and was not shifted under close cross‑examination. It is apparent that her testimony as to when the assault occurred was wrong. However, as his Honour effectively found, that did not mean that an assault at the hands of the appellant did not occur.
We do not accept the submission made on behalf of the appellant that, by reason of the acquittals on counts 1 and 2, his Honour was obliged to find that AR's testimony on the assault in January 2015 required corroboration. The fact of the acquittals does not compel this conclusion.
Ground 1 has no reasonable prospect of succeeding. Leave to appeal on ground 1 should be refused.
Ground 2
Ground 2 is an allegation of implied error. The general principles applicable to such a ground are uncontroversial. This court cannot substitute its own opinion for that of the sentencing judge merely because it would have exercise the discretion differently. The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to reasonably comparable cases and the circumstances of the case, including those referable to the offender personally.
As we have noted, a relevant factor in the consideration of ground 2 is the range of sentences imposed in comparable cases. Such cases are a yardstick against which the sentence in question may be compared. However, the range of sentences customarily imposed does not mark out the boundaries of the sound exercise of the sentencing discretion in an individual case. In other words, the guidance that is afforded by comparable cases is flexible rather than rigid. Ultimately, each case must be decided on its own facts and circumstances.
In support of ground 2, counsel for the appellant focussed his oral submissions upon the proposition that the sentences for the two offences committed by the appellant should have been ordered to be served either wholly or partly concurrently. In support of this submission, the appellant sought to invoke the so‑called 'one transaction rule'. It was also submitted on behalf of the appellant that, having regard to the outcomes in The State of Western Australia v Naumovski,[57] Oxenham v The State of Western Australia,[58] and Fernandez v The State of Western Australia,[59] this court should infer error and impose a lesser total effective sentence.
[57] The State of Western Australia v Naumovski [2013] WASCA 215.
[58] Oxenham v The State of Western Australia [2015] WASCA 30.
[59] Fernandez v The State of Western Australia [2017] WASCA 223.
The maximum penalty for count 3 is 7 years' imprisonment and for count 4, 20 years' imprisonment.
The appellant's criminal behaviour involved two distinct acts, albeit that they were committed close together in time. The first was punching AR to the face. It is clear from the injuries that were inflicted and from the medical evidence that was led at trial that the appellant struck her with considerable force. He did so without any justification. His actions fractured her eye sockets and a cheekbone. AR was already vulnerable, being much smaller and nowhere near as strong as the appellant, but his actions left AR weakened and semi‑conscious. While AR was in this state, the appellant committed count 4.
The appellant's actions in taking a meat cleaver and deliberately severing part of the appellant's little finger on her right hand was a particularly senseless, cruel and violent act. To take AR's hand, place it on a chopping board and wield the meat cleaver as he did was terrifying and pitiless. While not life-threatening, the loss of the finger is unsightly and painful, and has deprived AR of pursuits she once enjoyed. Her injury will be a permanent reminder of what the appellant did to her.
The appellant's overall offending left AR traumatised. The offences committed by the appellant have also left her with significant and ongoing physical and mental scars.
The appellant does not have the mitigation of youth or pleas of guilty. His Honour did not give him credit for good antecedents. While the appellant, it appears, has taken measures to address his illicit substance use and has support in the community, those factors cannot afford much mitigation when weighed against the serious nature of the offending. The fact that the appellant committed the offences while under the influence of methylamphetamine is in no way mitigatory. This case illustrates the serious consequences that can follow from the use of this illicit drug.
As Martin CJ observed in Oxenham v The State of Western Australia, the offence of causing grievous bodily harm with intent contrary to s 294(2) of the Code can be committed in a wide variety of facts and circumstances.[60] Consequently, the range of sentences customarily imposed for the offence is broad. His Honour went on to say, as to the range which can be discerned from the cases:[61]
To the extent that a range can be discerned from the previously determined cases, as this court observed in The State of Western Australia v Jeffries, analysis in Stephens v The State of Western Australia suggested that sentences of between 7 and 12 years imprisonment (prior to the transitional provisions) were not uncommon. That range equates approximately to a range of between 4½ and 8 years under the current sentencing system. More recently, this analysis was cited with apparent approval in this court in The State of Western Australia v Khasay. Further, in Zhang v The State of Western Australia, Mazza JA [McLure P & Buss JA agreeing] observed that his analysis of the previously decided cases revealed that in serious cases of offences contrary to s 294 of the Criminal Code and which were not in the worst category of cases, the range of sentences customarily imposed after trial had not exceeded 8 years imprisonment. That observation must be viewed in light of the fact that in Zhang, the appellant, whose offence was described as 'extremely serious' was re‑sentenced by this court to a term of 8 years and 6 months imprisonment. Nevertheless, taking the upper limit of the previous range identified by Mazza JA, after allowing for a 15% reduction for Mr Oxenham's plea of guilty, a sentence of 8 years imprisonment after trial equates to a sentence of approximately 6 years and 10 months after plea, which, of course, exceeds the sentence imposed upon Mr Oxenham. (citations omitted)
[60] Oxenham [36].
[61] Oxenham [37].
The appellant's reliance on the three cases referred to earlier in these reasons was not of much assistance because it was, in effect, an exercise in attempting to 'cherry‑pick' the outcomes in only three cases rather than to refer to a broader analysis of the cases such as was undertaken in Oxenham v The State of Western Australia.
In our opinion, this is not a case where the one transaction rule should be applied. As this court has made clear time and time again, the 'one transaction' or 'continuing episode' rule is not a rule at all. It is a guideline. The rule should not be applied where to do so would result in the imposition of a total sentence which does not properly reflect the overall criminality of the offending.
In our opinion, having regard to all of the relevant circumstances of the case, including the separate and distinct acts committed by the appellant, and that his Honour adjusted the individual sentence on count 3 for totality reasons, it would have been inappropriate to apply the so‑called one transaction rule so that the sentences were either partially or totally concurrent.
In our view, ground 2 has no reasonable prospect of success. It is not reasonably arguable that the total effective sentence imposed upon the appellant, of 6 years 6 months' imprisonment, offended the first limb of the totality principle.
Orders
The orders we would make are as follows:
1.Leave to appeal is refused on proposed grounds 1 and 2.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICES MURPHY & MAZZA11 MAY 2018
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