Moran v The State of Western Australia - [2011] WASCA 137

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MORAN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 137

CORAM: McLURE P
NEWNES JA
HALL J

HEARD: 11 MAY 2011

DELIVERED : 28 JUNE 2011

FILE NO/S: CACR 4 of 2011

BETWEEN: TONY MORAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STONE DCJ
File No  :IND 940 of 2010

Catchwords:

Appeal against sentence - Unlawful wounding - Whether manifestly excessive - Whether suspended imprisonment appropriate - Consistency in sentencing - No miscarriage of sentencing discretion - Turns on own facts

Legislation:

Criminal Code (WA), s 294, s 297, s 301
Sentencing Act 1995 (WA), s 39(2), s 39(3), s 76, s 81

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr L M Levy SC
Respondent: Mr J McGrath

Solicitors:

Appellant: Michael Tudori & Associates
Respondent: Director of Public Prosecutions (WA)

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

Chan (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hili v The Queen [2010] HCA 45; (2010) 78 ATR 11
Hobbs v The Queen [2001] WASCA 104
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Messaoui v The Queen (Unreported, CCAWA, Library No 92101, 4 December 1991
Powell v Tickner [2010] WASCA 224
R v Barbis & Rouse [2003] WASCA 107
R v Liddington (1997) 97 A Crim R 400; (1997) 18 WAR 394
Scolaro v Shephard [No 2] [2010] WASC 271
Smith v The State of Western Australia [2010] WASCA 176
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302
Vagh v The State of Western Australia [2007] WASCA 17
Wheeler v The Queen [No 2] [2010] WASCA 105

McLURE P: I agree with Hall J.
NEWNES JA: I agree with Hall J.
HALL J: This is an appeal against a sentence of 14 months' imprisonment imposed for an offence of unlawful wounding contrary to s 301(1) of the Criminal Code (WA). The appellant asserts that the sentence is manifestly excessive because he says that the sentence of imprisonment should have been suspended in the circumstances of this case.

Background

The facts, which were admitted, are as follows. At the time of the offence the appellant was 44 years old and residing with his de facto partner in Koondoola. The complainant was the 16‑year‑old son of the appellant's partner.
The complainant was a ward of the State but on 5 November 2008 he had absconded from his accommodation and returned to live with his mother and the appellant. At about 7.50 pm on 23 November 2008 the appellant and the complainant had an argument that became physical and spilled out onto the front lawn of the house.
A small knife was produced by one of the parties. At some stage the appellant had possession of the knife and used it to inflict multiple wounds on the complainant. A medical report referred to eight wounds, seven of which were penetrating. There were two wounds to the complainant's chest, one above his right ear, one lateral to his right eye, three wounds to his back and a significant penetrating wound to his left thigh. The thigh wound was deep, extending almost to the femur. The appellant also received a laceration to his forehead and several small lacerations to his hands.
The altercation was broken up by the appellant's partner and neighbours. Both the appellant and the complainant were taken by ambulance to hospital and treated for their injuries. The complainant underwent exploratory surgery under general anaesthetic and his wounds were debrided and sutured.
Whilst the prosecution did not assert that the appellant had introduced the knife, it did not concede that any other person had done so. It did not follow from this that the complainant must have produced the knife. The prosecution's position was simply that it was not known who

had introduced the knife but that the appellant was to be sentenced on the basis that at some point he came into possession of it and inflicted the wounds on the complainant. This factual basis was accepted on behalf of the appellant.

In mitigation, the appellant's counsel submitted that nine months prior to the offence the appellant had been the victim of a violent home invasion. He had received a number of serious injuries as a consequence and had been hospitalised. A psychologist's report stated that the appellant had suffered post‑traumatic stress disorder as a consequence of the home invasion. It was submitted that this had contributed to what was described as his huge overreaction in committing the offence. As the appellant's counsel put it 'once he got the knife in his hand he went too far' and 'lost it' (ts 21).
The prosecution submitted that the objective seriousness of the offence and the need to demonstrate condemnation for offences of this kind required that a term of immediate imprisonment be imposed. As regards the post‑traumatic stress disorder, the State noted that insofar as this predisposed the appellant to impulsive or aggressive reactions it increased the risk of re‑offending and heightened the need for community protection.

Sentencing

The sentencing judge said that:
Whilst the State does not concede that any party other than you produced the knife, the State and the defence are in agreement that the basis for sentence is that a party produced the knife and that you had possession of it at some point. So I will sentence you on that basis and not on the basis that you introduced the knife into the fight. However, you used the knife to inflict multiple wounds on the complainant (ts 36).
His Honour referred to the number and serious nature of the wounds inflicted on the complainant. In particular, he noted that the thigh wound could have had very serious consequences. His Honour considered that use of a weapon was an aggravating factor.
His Honour then noted the appellant's personal factors, including the earlier home invasion and the resultant post‑traumatic stress disorder. He accepted that that disorder had contributed significantly to the offending. He also accepted that the appellant had good personal references and that he had not been previously convicted of any serious offence. He also accepted that the appellant had pleaded guilty at an early opportunity and that this demonstrated remorse and an acceptance of responsibility.
His Honour concluded that in view of the seriousness of the offence a term of imprisonment was the only appropriate disposition. He came to the view that a 14 month sentence was appropriate, which reflected reductions to take into account the plea of guilty, mental health issues and other mitigating factors.
His Honour then went on to consider whether it was appropriate to suspend the sentence. He considered all of the relevant factors again, as he was obliged to do: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. However, he concluded that given the nature and gravity of the offending, suspension of the sentence was not warranted. His Honour said in this regard:
In all the circumstances, after having revisited all the relevant factors, I am not persuaded, given the nature and gravity of your offending, that suspension would be warranted notwithstanding your mental and physical health issues and that you did not introduce the knife into the altercation.
The offence, in my view, is just too serious to allow for suspension. The objective seriousness of the offending, eight stab wounds with a knife which was used as a weapon, and the need to protect the community from this type of offending make a term of imprisonment to be served immediately the only appropriate sentencing option. There is a need for general deterrence (ts 44).

Merits of the appeal

To determine whether a sentence is manifestly excessive it is necessary to examine it from the perspective of the maximum sentence prescribed by law for the offence, the types of sentence customarily imposed 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: Chan (1989) 38 A Crim R 337, 342.
A sentence may be excessive because the wrong type of sentence has been imposed: Dinsdale [6]. In the present case the appellant submits that the sentence of 14 months' imprisonment to be immediately served was unreasonable or unjust because the sentencing judge should, in the circumstances of this case, have made an order pursuant to either s 76 or s 81 of the Sentencing Act 1994 (WA) suspending the sentence of imprisonment.
A court must not impose a sentence of immediate imprisonment unless satisfied that it is not appropriate to impose suspended imprisonment: Sentencing Act s 39(2) and s 39(3). The factors to be taken into account in deciding whether a sentence can be suspended include the seriousness of the offence, whether there was any element of persistence, general deterrence, factors personal to the offender, the need to reflect condemnation of the conduct, the prospect of rehabilitation and any reasons militating in favour of an exercise of mercy. That list is not exhaustive: R v Liddington (1997) 97 A Crim R 400; (1997) 18 WAR 394, 406 (Steytler J). The objective features of an offence may, in a particular case, outweigh considerations of rehabilitation and mercy and require that a prison sentence be immediately served, despite mitigating personal considerations: Dinsdale [86] (Kirby J).
An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion differently: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. A ground of appeal that asserts manifest excess relies upon it being established that the sentence imposed was so clearly beyond the range of discretionary sentences available as to show that some error must have been made though it cannot be identified: Vagh v The State of Western Australia [2007] WASCA 17 [47].
The maximum sentence for the offence of unlawful wounding without circumstances of aggravation, when dealt on indictment, is 5 years' imprisonment. A higher maximum of 7 years is applicable where there are circumstances of aggravation, but no such circumstances were alleged here. The seriousness of the offence of unlawful wounding was referred to in Messaoui v The Queen (Unreported, CCAWA, Library No 92101, 4 December 1991:
A conviction for unlawful wounding need not necessarily attract a sentence of imprisonment. This is not to say that unlawful wounding is anything less than a serious offence. It is a serious offence: see Robinson v The Queen, unreported; CCA Sup Ct of WA; Library No. 7867; 27 September 1989 per Pidgeon J at 5. It is an offence which may be committed in circumstances which stop only barely short of more serious consequences. The threat to life and health posed by the offender's action and the possibility of more serious harm is a relevant sentencing consideration: Campbell v The Queen, unreported; CCA Sup Ct of WA; Library No. 7828; 6 September 1989 per Malcolm CJ at 3 – 4 (12).
The sentences imposed for offences of this type vary significantly given the wide variety of circumstances in which the offence can be committed and the differing personal circumstances of those who commit such offences. Sentences of imprisonment exceeding that imposed in this case have been imposed in some cases. However, a sentence of imprisonment to be served immediately is not invariably imposed. Accordingly, when considering other cases of unlawful wounding care must be taken to identify all of the relevant circumstances of those cases before drawing any conclusion as to whether the sentence at issue is manifestly excessive: Scolaro v Shephard [No 2] [2010] WASC 271 [163]. Nonetheless, it is appropriate to review other sentences for unlawful wounding in an attempt to achieve consistency in sentencing: The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [19]; Hili v The Queen [2010] HCA 45; (2010) 78 ATR 11 [53].
Limited assistance can be derived from cases where, although involving injuries inflicted with a weapon, a more serious charge was preferred. For example, the doing of grievous bodily harm with intent to maim, disfigure, disable or do grievous bodily harm to another, which has a maximum penalty of 20 years' imprisonment: Criminal Code s 294. Similarly, the doing of grievous bodily harm without specific intent has a maximum penalty of 10 years' imprisonment or 14 years in circumstances of aggravation: Criminal Code s 297. The different elements applicable to those offences as compared to unlawful wounding and the significant differences in maximum penalties make such sentence comparisons unhelpful.
As to cases involving the offence of unlawful wounding, a recent review of sentences imposed where the injuries were caused by a glass was undertaken by Buss JA in Powell v Tickner [2010] WASCA 224 [57] ‑ [80]. All of the cases considered (other than those for more serious offences) were dealt with initially in the Magistrates Court and resulted in sentences of imprisonment, ranging from 6 months and 1 day to 12 months, though in a number of cases the sentence was suspended. Bearing in mind that these cases were a relatively small sample that only related to a specified type of unlawful wounding, they do not necessarily indicate the discretionary range available for the offence in this case. Furthermore, the range of sentences customarily imposed for a particular offence does not establish the range for sound sentencing discretion: The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [71] (McLure JA).
In Powell a prosecution appeal against a suspended sentence of 18 months was allowed and a sentence of 15 months to be immediately served was substituted. The fact that the appellant in that case had intentionally used a glass as a weapon and had caused serious injuries led to a conclusion that a term of immediate imprisonment was the only appropriate option. It was also accepted that the frequency with which offences of that nature and seriousness were occurring justified giving increased weight to general deterrence.
As regards cases where a knife was used to commit an offence of unlawful wounding, in Messaoui the Court of Criminal Appeal considered that a sentence of 2 years was appropriate in the circumstances of that case (equivalent to 16 months post‑transitional). In that case, seven knife wounds had been inflicted in the course of a fight. None of the wounds were deep enough to be a significant danger to life. The appellant in that case had been convicted of two offences following a trial; assault causing bodily harm and unlawful wounding. The trial judge had imposed sentences of 12 months for the assault and 2 years cumulative for the unlawful wounding. On appeal the sentence for the assault was reduced to 6 months and made concurrent on totality grounds. The 2 year sentence for the unlawful wounding was not varied.
In Hobbs v The Queen [2001] WASCA 104 an appeal against a sentence of 2 years imposed following a trial was dismissed. In that case the 18‑year‑old appellant had been involved in a street fight with a number of other young males. He had inflicted a single knife wound to the chest of the complainant at a time when he knew that the complainant had been wounded by others. Despite the appellant's youth and lack of criminal record the court concluded that the sentence of 2 years, whilst severe, properly reflected the seriousness of the offence.
In R v Barbis & Rouse [2003] WASCA 107 the prosecution appealed against sentences imposed upon co‑offenders who had each pleaded guilty to aggravated burglary and unlawful wounding. The circumstances of the offence was that the co‑offenders were confronted by a homeowner during the course of a burglary. One of the co‑offenders inflicted a single knife wound to the homeowner after he had armed himself with a wooden plank and whilst he was being held by the other co‑offender. Barbis was sentenced to 12 months' imprisonment on the burglary count and 8 months' imprisonment concurrent for unlawful wounding. Rouse was sentenced to 12 months' imprisonment for the burglary and 2 years and 6 months cumulative for the unlawful wounding but the total sentence of 3 years and 6 months was suspended for a period of 2 years. Both offenders had pleaded guilty at an early opportunity and had received significant discounts on their sentence due to their youth and other mitigating factors. The prosecution appeal was dismissed.
In Smith v The State of Western Australia [2010] WASCA 176 the appellant was convicted on his plea of guilty of one count of unlawful wounding in circumstances of aggravation. The circumstance of aggravation was that the appellant was in a family or domestic relationship with the complainant. In consequence, the maximum penalty was 7 years' imprisonment: Criminal Code s 301(2)(a) . The appellant was 18 years at the time of the offending and had no prior convictions. The appellant had been at home with his mother and the complainant when the offence was committed. He used a kitchen knife to stab the complainant, who was his mother's partner, in the throat. No major arteries were cut and the injuries were deemed not to be life threatening or likely to cause permanent injury to health. The sentencing judge found that the appellant's psychiatric illness had contributed to the commission of the offence but that the need for specific and general deterrence, protection of the public and punishment was such that immediate imprisonment was the only appropriate sentencing disposition. Buss JA said that if not for the mitigating factors the appellant would likely have received a term of imprisonment much closer to the statutory maximum. He was not persuaded that the sentence of 2 years' imprisonment to be served immediately was in error.

Conclusion

The attribution of weight to the various factors that arise for consideration in sentencing is at the heart of discretionary judgment: Vagh [47]. In the present case the sentencing judge placed particular emphasis on the seriousness of the offending and the importance of general deterrence. In my view, it could not be said that he was in error to do so. On the admitted facts the appellant stabbed the complainant eight times whilst in possession of a knife. Whilst it was not alleged that the appellant had introduced the knife into the fight, the use of such a clearly dangerous weapon in committing the offence was an aggravating feature. At least one of the wounds was deep and dangerous. The multiple wounds spread across various parts of the complainant’s body were indicative of a sustained attack. It was clear, and indeed it was accepted, that the appellant had inflicted the wounds whilst angry. These circumstances amply justified a sentence of imprisonment to be served.
The sentencing judge gave appropriate consideration to the factors personal to the appellant. These included his plea of guilty and post‑traumatic stress disorder. The extent to which the post‑traumatic stress disorder reduced moral culpability and might therefore have justified a lower sentence was offset because, as the sentencing judge rightly observed, it made him more liable to overreact to perceived threats of harm and thereby re‑offend: Wheeler v The Queen [No 2] [2010] WASCA 105 [7].
A consideration of sentences imposed for other cases of unlawful wounding does not lead to a conclusion that the sentence in this case was outside the range of sentences customarily imposed. Indeed, it is difficult to discern such a range. Each of the cases turned significantly upon its particular facts and the differing personal circumstances of the offender.

In the circumstances, I am unable to conclude that the sentence imposed by the sentencing judge was so clearly excessive as to manifest error. In my view, it was open to impose this sentence in all of the circumstances. Accordingly, the sentencing discretion has not miscarried and I would dismiss the appeal.