O'Dea v The State of Western Australia - [2023] WASCA 70

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   O'DEA -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 70
CORAM:   BUSS P
MAZZA JA
HALL JA

HEARD:   5 APRIL 2023
DELIVERED          :   11 APRIL 2023
PUBLISHED           :   5 MAY 2023
FILE NO/S:   CACR 4 of 2023
BETWEEN:   BRETT CHRISTOPHER O'DEA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BOWDEN DCJ
File Number            :   IND 2100 of 2018

Catchwords:

Criminal law - Appeal against sentence - One count of doing grievous bodily harm - Where appellant pleaded guilty to an alternative offence after successful appeal against conviction - Where appellant had opportunity to plead guilty to the alternative offence at earlier stage of proceedings - Where co‑offender sentenced to lower sentence for same offence following trial - Where culpability of appellant significantly greater - Whether sentence of 5 years 2 months manifestly excessive - Whether discount of 10% for pleading guilty too low - Meaning of word 'proceedings' in s 9AA(3) of the Sentencing Act 1995 (WA) - Whether sentence breached parity principle

Legislation:

Criminal Code (WA), s 297(1)
Sentencing Act 1995 (WA), s 9AA

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr A O Karstaedt
Respondent	:	Ms K C Cook

Solicitors:

Appellant	:	NR Barber Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Allen v The State of Western Australia [2017] WASCA 203
Bowe v The State of Western Australia [2017] WASCA 166
Garlett‑Exell v The State of Western Australia [2020] WASCA 179
Higgins v The State of Western Australia [2019] WASCA 78
Jones v The State of Western Australia [2023] WASCA 30
Kabambi v The State of Western Australia [2019] WASCA 44
Mussarri v The State of Western Australia [2018] WASCA 46
O'Dea v The State of Western Australia [2022] HCA 24
The State of Western Australia v Mackey [2017] WASCA 204
Trompler v The State of Western Australia [2008] WASCA 265
Wragg v The State of Western Australia [2013] WASCA 198

REASONS OF THE COURT:

The appellant was convicted on his plea of guilty of one count of doing grievous bodily harm, contrary to s 297(1) of the Criminal Code (WA) (Code). He was sentenced by Bowden DCJ to 5 years 2 months' immediate imprisonment with an order that he be eligible for parole. On 11 April 2023, we refused the appellant's application for leave to appeal against that sentence and dismissed the appeal. These are our reasons for making those orders.
There are three grounds of appeal. The first alleges that the sentence was manifestly excessive. The second alleges that the discount allowed for pleading guilty was too low. The third alleges that the sentence breached the parity principle, in that the sentence was significantly greater than that imposed on a co-offender such as to give rise to a justifiable sense of grievance.

Facts of the offence

The admitted facts were as follows.
At about 2.30 am on Sunday, 20 January 2018, the victim of the offence, Mr Alimamy Koroma, was working at the Manning Bowling Club as a cleaner. He was disturbed by a woman, Tamara Dimer, who was committing a burglary at the bowling club. Ms Dimer fled the premises with Mr Koroma in pursuit yelling, 'Thief, thief', as he was running.[1]
[1] ts 1105.
Ms Dimer ran towards a house on Griffin Crescent in Manning. As she approached the house she screamed loudly and yelled for help. The appellant and a co‑offender, Jacob Webb, were present in the house. On hearing Ms Dimer's screaming, the appellant armed himself with a hockey stick. He and Mr Webb then walked out the front door. A struggle was in place between Ms Dimer and Mr Koroma, close to the front entrance of the house.[2]
[2] ts 1106.
Ms Dimer approached the appellant and Mr Webb and said something to them. The appellant then raised the hockey stick as he walked towards Mr Koroma. He swung the hockey stick and hit Mr Koroma, knocking him to the ground. Whilst Mr Koroma was lying on the ground, he was kicked and punched to his body and head by both the appellant and Mr Webb.[3]
[3] ts 1106.
Mr Koroma managed to sit up and the appellant kicked him to the face, causing him to fall back down to the ground. The appellant then raised the hockey stick above his head and hit Mr Koroma by swinging it in a downward motion. The appellant then dropped the hockey stick and punched Mr Koroma at least 10 times to the face and head with a clenched fist whilst Mr Webb was holding Mr Koroma down.[4]
[4] ts 1106.
The appellant then dragged Mr Koroma from the driveway onto the grass verge near the street kerb. The appellant caused Mr Koroma's head to slam down on the ground by pushing his chest, before punching him in the head twice whilst he was rolling on the ground. The second punch caused Mr Koroma's head to bounce on the ground. Mr Webb was standing next to the appellant at this time.[5]
[5] ts 1106.
Ms Dimer had been watching the attack but at this point began walking down the street. She was told to return by the appellant. Ms Dimer approached Mr Koroma who was being held by Mr Webb. She reached over Mr Koroma's body, grabbing at his torso and waist before rummaging through his pockets. She grabbed a lanyard from around his neck and pulled it in an attempt to steal it. She pulled the lanyard with such force that Mr Koroma's body moved.[6]
[6] ts 1106.
Mr Koroma managed to get himself into a sitting position. Mr Webb then grabbed him from behind and dragged him with force onto a neighbouring driveway. Mr Webb slammed Mr Koroma onto the concrete driveway, causing his head to hit the driveway with force. Both Mr Webb and the appellant then circled Mr Koroma whilst he was sitting on the ground.[7]
[7] ts 1106.
Mr Koroma attempted to stand up to leave, and the appellant then struck him to the right ankle with the hockey stick. This was done with sufficient force to fracture Mr Koroma's ankle and cause him to fall to the ground in the road. Mr Koroma got up and took several steps, before falling again. He eventually got up again and walked away in the direction of the bowling club. The appellant and Mr Webb followed him down the road and caught him near the intersection of Griffin Crescent and Challenger Avenue.[8]
[8] ts 1107.
Sometime later, police attended the scene and located Mr Koroma being held by the appellant and Mr Webb. Mr Koroma was taken to hospital in an ambulance. He was not able to speak due to his injuries.[9]
[9] ts 1107.
When questioned by police in the early morning of 20 January 2018, the appellant claimed he had stopped Mr Koroma from attacking a girl. He also suggested that Mr Koroma received his injuries from falling down. The appellant was not initially arrested. Following further enquiries, police reattended Griffin Crescent the next day and arrested the appellant.[10]
[10] ts 1107.
Mr Koroma was treated for a traumatic brain injury with subarachnoid haemorrhage, left frontoparietal extradural haematoma and contusion with skull and facial bone fractures, including a nasal bone fracture and displaced fractures to the left side of his jaw. He also suffered a fractured right ankle. He required a period of comprehensive multidisciplinary inpatient rehabilitation with physiotherapy, occupational therapy, speech pathology, rehabilitation, nursing and medical oversight.[11]
[11] ts 1107.
Mr Koroma has residual cognitive and speech‑related deficits which have precluded him from returning to work. He has required ongoing therapy intervention and was admitted to a residential rehabilitation facility for individuals with an acquired brain injury in October 2018. In October 2019, the State Administrative Tribunal appointed a public trustee as Mr Koroma's administrator due to his inability to manage his own affairs.[12]
[12] ts 1107.
The grievous bodily harm referred to in the charge was the traumatic brain injury. Whilst there was no doubt that the injury was a result of the violent attack on Mr Koroma, it was not possible to determine precisely which application of force by which offender had caused that injury. The medical evidence was consistent with the brain injury being the result of a single blow or a combination of blows to Mr Koroma's head. The agreed facts were that the appellant was liable for the grievous bodily harm on the basis that he and Mr Webb formed a common intention during the incident to prosecute an unlawful purpose, namely to assault Mr Koroma with a significant level of violence and including the use of a weapon. The offence of doing grievous bodily harm was committed in the prosecution of the unlawful purpose. The commission of that offence was a probable consequence of the prosecution of the common unlawful purpose.[13]
[13] ts 1108.

Victim Impact

Mr Koroma prepared a victim impact statement in November 2019.
Mr Koroma stated that he could not begin to describe the feelings of terror that he felt at the time of the offence. He thought that he was going to die. He struggles to discuss the events as it triggers terrible memories for him.
Mr Koroma sustained a brain injury, facial fractures and a fractured ankle. He was required to wear a supportive boot and to use crutches for many weeks. He required support to shower and dress. This made him feel helpless.
Mr Koroma stated that his ability to communicate had been impaired. He suffers from dysphasia, an inability to formulate language, and apraxia, the loss of the ability to speak due to messages not being correctly transmitted from the brain. He says that this has caused him frustration and distress. He needs assistance to make telephone calls. When attending shops he needs a therapist to write down what he needs because he cannot convey information well enough to be understood. He has suffered daily headaches and tiredness. This has adversely affected his rehabilitation program.
Mr Koroma states that due to his injuries his relationship with his partner broke down. That meant that he lost the opportunity to live with his 6-year-old son on a full-time basis. He has also lost the ability to work. This meant the loss of his business. His inability to provide financially for himself and his family causes him great stress.
Mr Koroma states that he feels an immense sense of grief and loss when he thinks of how much his life has changed. He feels sad and lonely. He becomes upset when thinking of the night of the attack and has nightmares and problems sleeping. He has difficulty planning for the future because he does not know whether the effects of the brain injury will be permanent. He is terrified of being attacked again.

Procedural history

The appellant was initially charged by police with the offence of doing grievous bodily harm, contrary to s 297(1) of the Code. Subsequently, that charge was upgraded to one of doing grievous bodily harm with intent to do such harm, contrary to s 294 of the Code. The appellant and Mr Webb were jointly tried on that charge in October 2019. The appellant was convicted, but the jury was unable to reach a verdict in respect of Mr Webb.[14]
[14] ts 1134.
On 9 December 2019 the appellant was sentenced to 6 years and 3 months' immediate imprisonment for the offence of doing grievous bodily harm with intent to do such harm, with an order that he be eligible for parole. That sentence was backdated to 13 October 2019 to take into account time spent in custody prior to sentencing.[15]
[15] ts 1134.
In 2020 Mr Webb was retried on the original charge. He was found not guilty of grievous bodily harm with intent, but guilty of the statutory alternative of doing grievous bodily harm (simpliciter). Mr Webb was sentenced to 3 years 2 months' immediate imprisonment backdated to 29 September 2020. The details of Mr Webb's sentencing will be referred to in more detail shortly.
The appellant appealed his conviction and that appeal was allowed by the High Court on 10 August 2022. The conviction for doing grievous bodily harm with intent to do such harm was set aside and a retrial was ordered: O'Dea v The State of Western Australia.[16] After his appeal against conviction was allowed, the appellant was released on bail on 25 August 2022 pending the retrial. The retrial was listed to commence on 30 January 2023.[17]
[16] O'Dea v The State of Western Australia [2022] HCA 24.
[17] ts 1134.
On 30 October 2022 the appellant made a written offer to plead guilty to the statutory alternative of doing grievous bodily harm contrary to s 297 of the Code in discharge of the indictment. That offer was accepted by the State and on 24 November 2022 the appellant entered a plea of guilty to the alternative offence, which was accepted by the State in discharge of the indictment. Sentencing took place on 20 December 2022.[18]
[18] ts 1134.

Personal circumstances of the appellant

The appellant was aged 44 at the time of the offence. He was born in Western Australia and is the middle of three children. His parents separated when he was about 6 years old. He remained with his mother as his father worked away in various regional locations. He describes his childhood as mediocre due to his father's absence, his mother's lack of support and some exposure to physical violence. His parents are now deceased. He is estranged from his brother but enjoys a supportive relationship with his sister.[19]
[19] ts 666.
The appellant was in a relationship from the time he was aged 21. That relationship produced four children, who are now all adults. The relationship ended after thirteen years. The appellant maintains contact with his children. He commenced another relationship with a woman who has two children of her own. That relationship was a continuing one at the time of sentencing.[20]
[20] ts 666.
The appellant attended school to year 10. His academic achievements were average, though he did better at sport. He was expelled for fighting. He commenced work as a kitchen hand at the age of 16. At 18 he obtained a qualification to drive heavy machinery and has been employed as a mobile plant operator from that time until losing his licence in 2018.[21]
[21] ts 666 - 667.
The appellant commenced consuming alcohol at 15. He progressed to methamphetamine use at 18. He has described a pattern of heavy drinking. He did not perceive this to be problematic despite losing jobs on three occasions due to positive tests. He had subsequently reported that he had ceased drinking.[22]
[22] ts 667.
The appellant has a criminal record which commenced when he was aged 18. He has convictions for traffic offences, public nuisance, violence, the use of weapons and possession of illicit drugs. The penalties for most of those offences have been fines. In 2009 he was convicted of an offence of assault occasioning bodily harm for which he received a spent conviction.[23]
[23] ts 667.
A pre-sentence report in 2019 noted that the appellant committed the offence in circumstances where he believed that the young woman in his driveway was being assaulted. He claimed that he thought he was protecting the woman from further harm and detaining Mr Koroma until police arrived. He expressed regret for not asking questions to clarify the situation. He said that he also regretted the injuries caused to Mr Koroma and would like to be able to apologise in person. By the time of the sentencing hearing in 2019 the appellant had written a letter of apology to Mr Koroma.[24]
[24] ts 668; ts 1140.
The appellant relied on character references prepared in 2019. They included letters from his current partner, a neighbour, and a number of friends. The references referred to the writers' knowledge of the appellant's good qualities and a belief that the offending was out of character.[25]
[25] ts 1114.
After the appellant was imprisoned in 2019 he took advantage of educational opportunities available within the prison. Certificates were provided that showed that he had attained skills in computing, budgeting, numerical information, food safety, community-based health and first aid. He had also done courses in agriculture.[26]
[26] ts 1113 - 1114, 1139.
After being released on bail in August 2022 the appellant had obtained full-time employment. A letter from his employer confirmed that he had commenced employment on 8 November 2022 as a scraper/loader operator. The employer stated that the appellant was a hard worker who was always on time and that he was prepared to employ him in the longer term.[27]
[27] ts 1141.

Sentencing of the co-offender Mr Webb

As noted earlier, the co‑offender Mr Webb was convicted following a retrial of the statutory alternative offence of doing grievous bodily harm, that is, the same offence of which the appellant has now been convicted. He was sentenced by Prior DCJ for that offence on 4 November 2020.[28]
[28] ts 1061.
Mr Webb was sentenced on the basis that his offending was significantly less serious than that of the appellant.[29]
[29] ts 1075.
Prior DCJ made a finding that 'on the evidence I've seen and heard I'm not satisfied you struck Mr Koroma yourself other than when you slammed his head in the ground. You aided [the appellant] by holding and restraining Mr Koroma and providing encouragement to [the appellant] when he was assaulting Mr Koroma'.[30] Later, his Honour made the following finding:[31]
[The appellant's] criminal behaviour was much more serious than yours. He was armed and used a weapon, a hockey stick. He struck a number of blows to Mr Koroma with his fist by kicking him and using the hockey stick. I will sentence you on the basis that you aided [the appellant] in relation to committing the offence of unlawful grievous bodily harm. Although your role was not as significant as [the appellant's], by restraining Mr Koroma you allowed [the appellant] to commit a frenzied and brutal assault on Mr Koroma.
[30] ts 1074.
[31] ts 1075.
Mr Webb's personal circumstances were that he was 42 years of age at the time of sentencing and 40 when he committed the offence. He was single, having been involved in two prior serious relationships. He grew up in Western Australia and retains the support of his family. He has a 21‑year‑old daughter with whom he had recently connected at the time of sentencing.[32]
[32] ts 1075.
Mr Webb completed year 12 at a boarding school and then went on to undertake certificates and qualifications, acquiring various employment skills. He worked in the crayfishing industry for many years and then as a casual labourer, tradesman and a swimming pool renderer. He commenced a landscaping business, but had difficulties with that business. He worked in a plumbing and gas business on a casual basis for about six months.[33]
[33] ts 1076.
Mr Webb had a history of alcohol abuse and that had resulted in periods of unemployment and some previous offending. Mr Webb had no physical or mental health issues, and there was no suggestion that he had previously suffered from anxiety or depression. He had used illicit drugs, prescription drugs and alcohol to self‑medicate when he was feeling stressed. Primarily, his problem was alcohol abuse. Reports indicated that he had poor insight and self‑awareness. He was assessed as being at a high likelihood of offending in a similar way in the future if he abused alcohol significantly.[34]
[34] ts 1076.
Mr Webb had prior convictions for assault occasioning bodily harm and aggravated armed robbery. He had also been convicted of drug, property, dishonesty, breach of bail and road traffic offences. That record extended over approximately 20 years and he did not, therefore, have the benefit of prior good character.[35]
[35] ts 1076.
The sentencing judge found that Mr Webb's offending demonstrated poor judgment and a lack of consequential thinking. He found that Mr Webb had limited remorse for his offending behaviour. To some extent, Mr Webb sought to blame the appellant and Ms Dimer. However, his Honour accepted that the appellant's behaviour was much more serious than that of Mr Webb, and that it was the appellant who had started the incident.[36]
[36] ts 1078.

Mr Webb had taken some steps to rehabilitate himself. In particular, he had contacted Next Step Drug and Alcohol Services and reduced his alcohol consumption.[37]
[37] ts 1078.
The sentencing judge said that the principal considerations in sentencing Mr Webb were punishment, personal and general deterrence and rehabilitation. His Honour found that it was relevant to take into account that Mr Webb was not the person who struck the blows but was aiding the appellant. Mr Webb aided the appellant by restraining Mr Koroma and encouraging the appellant by his actions. Mr Webb had also slammed Mr Koroma's head into the ground when he was in a vulnerable state. His Honour then said, 'I'm satisfied [the appellant] was the principal offender and that you aided him. You certainly played a lesser role in the attack on Mr Koroma but you played a significant role.'[38]
[38] ts 1081; WAB 110.
Mr Webb was sentenced to 3 years 2 months' immediate imprisonment backdated to 29 September 2020. An order was made that he be eligible for parole.

Sentencing of the appellant

As noted earlier, the appellant was sentenced on 20 December 2022. Bowden DCJ commenced his remarks by referring to the maximum penalty, the procedural history and the admitted facts. His Honour then turned to the seriousness of the offence:[39]
Now, the State has said, as far as grievous bodily harm is concerned, it would fall towards the upper end of the scale of seriousness, and it's not disputed by your lawyer that the harm suffered by Mr Koroma was in fact severe. The State rightly points out there are a number of features of aggravation. Mr Koroma was outnumbered, that is that there were two of you and, on occasion, Ms Dimer as well. There were two persons, yourself and Mr Webb. He was defenceless after he had fallen to the ground. He was struct multiple times. It was unprovoked and unnecessary, and a weapon, being the hockey stick, was used.
[39] Sentencing ts 1136; WAB 83.
His Honour noted the appellant's prior record, including a conviction in 2009 for assault occasioning bodily harm and a conviction in 2017 for possession of a controlled weapon. His Honour recognised that the prior offending was not an aggravating factor and the appellant did not fall to be judged again for those offences. Rather, the record represented an absence of previous good character, which would have been a mitigating factor.[40]
[40] ts 1140.
The sentencing judge then turned to the victim impact statement and noted that Mr Koroma had provided details of how the incident had impacted and changed his life. His Honour noted that although the victim impact statement had been provided in November 2019, in May of 2021 the State Administrative Tribunal had declared that Mr Koroma was unable to make reasonable judgments in respect of matters relating to some of his financial and personal affairs and was in need of an administrator.[41]
[41] ts 1137.
The sentencing judge noted that the appellant had pleaded guilty to doing grievous bodily harm on the basis of s 8 of the Code, in that the offence of grievous bodily harm was a probable consequence of the prosecution of an unlawful common purpose to assault the victim with a significant level of violence. In this regard, his Honour said:[42]
It's important you understand, [appellant], that I'm not sentencing you on the basis that one of your particular blows caused the grievous bodily harm. The State is not able to show which particular blow or which particular person caused the grievous bodily harm in the common sense of the word, but under section 8 of the Criminal Code, both you and Mr Webb are considered to be liable for the grievous bodily harm that was undoubtedly caused during the incident. Mr Webb, as I have said originally, the jury was hung on his verdict. He went to retrial. He was convicted at the retrial of grievous bodily harm and sentenced to three years two months' imprisonment. He was sentenced on the basis that he had played a lesser role in the attack.
[42] ts 1137 - 1138; WAB 84 - 85.
In regard to the appellant's plea of guilty, his Honour noted that the plea was entered after a trial date had been set. The plea was entered in November, the trial date having been set in August 2022. His Honour recognised that Mr Koroma would not have been required to give evidence at the re-trial because his evidence was recorded. The plea had been entered prior to the State commencing the re-proofing of witnesses. His Honour then said:[43]
Having said that, the fact that you pleaded guilty means we didn't have to have a trial. Jurors weren't required to attend. Witnesses didn't have to come to the court, and I'm entitled to reduce the sentence because of that plea of guilty. It's pointed [sic] by the State that, in fact, you were originally charged with grievous bodily harm, and could have pleaded guilty to that earlier in the Magistrates Court and didn't. Whilst Mr Koroma's evidence was prerecorded, the mere trauma, in my view, or knowing that the trial's coming up again must also be taken into account.
In my view, the appropriate reduction or discount to provide under section 9AA of the Sentencing Act is a 10 per cent reduction from the head sentence that I would have otherwise [have] imposed.
[43] Sentencing ts 1138; WAB 85.
His Honour then turned to the question of parity as regards the co‑offender Mr Webb. His Honour recognised that consideration must be given to the sentence imposed on Mr Webb, and then said:[44]
[I]n my view, your offending was significantly more serious than his.
You instigated the attack, you swung the hockey stick which propelled him to the ground. While he was on the ground, he was kicked or punched by both of you to the body and the head. When he managed to sit up, you kicked him in the face, causing him to fall down, struck him again with the hockey stick, punched him at least 10 times in the face with a clenched fist while Mr Webb was holding him down, dragged him from the driveway to the grass verge, causing his head to slam onto the ground when you pushed his chest, punched him in the head twice while he was rolling on the ground. And later, you struck him in the right ankle with the hockey stick.
In my view, your criminal culpability is far more serious than Mr Webb's.
[44] Sentencing ts 1138 - 1139; WAB 85 - 86.
His Honour then referred to the appellant's personal circumstances, including the character references. He noted that the appellant had been employed during his period on bail in an earthmoving business. He also noted the various courses that the appellant had undertaken whilst in prison. His Honour accepted that during the time that the appellant had been in custody he had made his best endeavours to improve himself.[45]
[45] ts 1139.
His Honour accepted that at the commencement of the incident the appellant had heard a noise whilst he was in bed, armed himself with hockey stick and gone outside because he was concerned for his own protection. He accepted that the appellant had initially honestly believed that Ms Dimer was being attacked. However, he did not accept that in the circumstances that was a reasonable belief. He said that on any view the force used amounted to beating Mr Koroma senseless. His Honour made a finding that 'the acts that [the appellant] carried out weren't acts that were in restraint of the victim, but clearly, do have an element of vigilantism to them'.[46]
[46] ts 1139 - 1140.
His Honour made the following finding in regard to remorse:[47]
Insofar as remorse is concerned I have no doubt you're sorry for the significant injuries that you caused Mr Koroma. And if you had your time again, I accept that you would have asked more questions and ascertained exactly what was going on before you intervened in such a violent manner.
[47] ts 1140; WAB 87.
His Honour concluded that personal deterrence, whilst still a relevant factor, did not loom large in the appellant's case. However, general deterrence remained a dominant consideration. His Honour noted, 'People simply must learn that you can't take the law, in effect, into your hands and react with violence to a situation such as this'.[48]
[48] ts 1140.
His Honour accepted that after having spent time in custody then being released on bail, the imposition of a sentence of imprisonment that required the appellant to return to jail represented a significant hardship. However, he concluded that the appropriate sentence to impose was a period of immediate imprisonment. In coming to that conclusion, he said that the need for general deterrence was so high that an immediate sentence of imprisonment, rather than a suspended sentence, was the only appropriate disposition.[49]
[49] ts 1141.
His Honour imposed a sentence of 5 years 2 months' immediate imprisonment. An order was made that the appellant be eligible for parole. The sentence was backdated to 6 February 2020, to take into account the time spent in custody.[50]
[50] ts 1141.

Grounds of appeal

The grounds of appeal are as follows:[51]
1.The sentence imposed was manifestly excessive having regard to the maximum sentence prescribed by law for the crime, the nature and circumstances of the appellant's offending, the place on the scale of seriousness of offending of that type, rehabilitation or totality considerations by reason of the time already served in custody, and the personal circumstances and antecedents of the appellant.
2.The learned Judge erred in allowing too low a reduction in sentence pursuant to s 9AA of the Sentencing Act for the appellant's plea of guilty.
3.The learned Judge erred in imposing a sentence on the appellant that infringed the principle of parity, in that the degree of disparity between the sentence imposed on the appellant and the sentence which had been imposed on the co‑accused was unreasonable and unjust such as to give rise to a legitimate or justifiable sense of grievance.
[51] WAB 6.

Ground 1 - appellant's submissions

In his written submissions, the appellant sought to draw a comparison with the sentence imposed in 2022 and the sentence that had been imposed for the more serious offence following the trial in 2019. The submission was that the sentence imposed in 2022 (that is the subject of this appeal) could be viewed as excessive when compared to the sentence originally imposed for the more serious offence that carried a higher maximum penalty.[52]
[52] WAB 15.
Whilst the appellant accepted that there was not necessarily a direct relationship between the maximum penalties and the sentence that would be expected to be imposed, the appellant submitted that the lower maximum penalty for the offence of grievous bodily harm should have resulted in an appreciably lower sentence than that which was imposed. The appellant submitted that the sentence imposed was close to that which might have been expected had the appellant pleaded guilty to the original charge under s 294. This was said to be an indication that the sentence imposed was manifestly excessive.[53]
[53] WAB 15.

Ground 1 - relevant principles

An allegation that a sentence imposed is manifestly excessive is an allegation of implied error in the exercise of the sentencing discretion by the sentencing judge. The legal principles relevant to an appeal asserting implied error are well established and have been summarised in Kabambi v The State of Western Australia:[54]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[54] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

Ground 1 - the merits

The maximum penalty for doing grievous bodily harm to another person contrary to s 297 of the Code is 10 years' imprisonment.
In Trompler v The State of Western Australia,[55] Wheeler JA (Buss JA agreeing) said that, in general, there are three matters of significance in determining the criminality of an offence which involves doing grievous bodily harm:[56]
1.The nature of the harm that results.
2.The nature of the act which causes the injury.
3.The background to, and circumstances of, the offence.
[55] Trompler v The State of Western Australia [2008] WASCA 265.
[56] Trompler [9] - [11].
In the present case, the harm caused to Mr Koroma was properly characterised by the sentencing judge as severe. Mr Koroma sustained a serious and enduring disability which impacted significantly upon every aspect of his life, including his independence and ability to care for himself.
The nature of the act which causes grievous bodily harm may range from a single blow to repeated acts of violence, and from harm inflicted with bare hands to the use of a weapon. In the present case, the appellant was armed with a weapon, the hockey stick, which he repeatedly used to strike the victim throughout a sustained assault. The appellant also used his fists and feet, inflicting repeated blows to Mr Koroma's head. The number of blows, the degree of force used, the use of a weapon, the concentration of the blows to the vulnerable area of the head and the persistent nature of the attack, place this into a very serious category of offending.
The background to and circumstances of an offence may range from a response to a provocative act on the part of the victim or to a perceived threat, to conduct towards the upper end of the scale such as an offence carried out to obtain some personal advantage or for revenge, or a random and senseless act of violence. The use of violence as an act of vigilantism is particularly serious and deserving of denunciation by the courts.[57]
[57] Wragg v The State of Western Australia [2013] WASCA 198 [40] (Hall J, McLure P & Buss JA agreeing).
The fact that the appellant may have originally armed himself and gone to the door in circumstances where he honestly believed that a woman was being attacked provides some explanation for how he came to be involved, but affords little mitigation for what he did thereafter. Ms Dimer approached the appellant and Mr Webb and said something to them, but the appellant made no enquiry of Mr Koroma or Ms Dimer before launching into an attack on Mr Koroma with his hockey stick. None of the subsequent violence was aimed at restraining Mr Koroma. The appellant persisted in a brutal assault on Mr Koroma using the hockey stick, his fists and kicks, despite Mr Koroma plainly being seriously injured and outnumbered. Mr Koroma was clearly vulnerable and defenceless during the attack, having been struck to the ground repeatedly and then attacked whilst on the ground. The extreme vigilante‑type violence (as it was correctly found to be by the sentencing judge) placed the offence at the higher end of the scale of seriousness.
There is no tariff for the crime of unlawfully doing grievous bodily harm, though as a matter of fact the ordinary disposition for such an offence is a sentence of immediate imprisonment.[58] It is an offence that can be committed in a wide variety of circumstances by offenders whose personal circumstances can also vary greatly. The dominant sentencing considerations for grievous bodily harm offences are personal and general deterrence.[59]
[58] Allen v The State of Western Australia [2017] WASCA 203 [61].
[59] The State of Western Australia v Mackey [2017] WASCA 204 [45], [58].
In Trompler, Wheeler JA (with whom Buss JA agreed) concluded that the post‑transitional range for offences which were towards the upper end of the range of seriousness, but not of the most serious kind, was between 3 and 5 years' imprisonment. McLure JA identified the post‑transitional range for offences of this type as being between 8 months and 5 years 4 months' imprisonment. The sentence of 8 months at the lower end of that range was noted by her Honour as being 'undoubtedly merciful'.[60]
[60] Trompler [19], [37] - [38].
The ranges identified in Trompler have been referred to with approval in subsequent cases.[61] Nonetheless, it should be noted that Trompler was a decision from 15 years ago and represented sentencing patterns as at that time, and earlier. In Bowe v The State of Western Australia,[62] it was noted that sentences for cases falling within the most serious category of offending would fall outside the 3 ‑ 5‑year range and would come closer to, if not equal to, the maximum penalty of 10 years' imprisonment.
[61] Mackey [41] ‑ [42].
[62] Bowe v The State of Western Australia [2017] WASCA 166 [87].
Recently, in Jones v The State of Western Australia[63] this court dismissed an appeal against a sentence of 5 years' imprisonment for a single offence of doing grievous bodily harm, contrary to s 297(1) of the Code. The offending involved a single blow which caused the victim to lose consciousness and fall to the ground and suffer a fractured vertebra and a ruptured disc. Even taking into account that the appellant in that case was convicted after trial, the outcome does not support a conclusion that the sentence imposed on the appellant in the present case, for significantly more serious offending, was manifestly excessive.
[63] Jones v The State of Western Australia [2023] WASCA 30.

The guidance derived from comparable cases does not limit the range of discretion. Comparable cases provide a yardstick by which a sentence can be measured, however each case depends on its own particular circumstances. A case will not necessarily be manifestly excessive or inadequate because it falls outside the sentences identified in other comparable cases.
In this case, having regard to the degree of violence, the use of a weapon, the persistence of the violence and the severe injuries inflicted, the appellant's conduct fell at the more serious end of the spectrum of offences of this nature. Even having regard to matters in mitigation, including the plea of guilty, the sentence of 5 years 2 months' imprisonment that was imposed was clearly within the discretionary range available to the sentencing judge. That sentence is not unreasonable or plainly unjust and does not manifest error.
As to the suggestion that the sentence imposed must be in error because it was close to the sentence originally imposed for the more serious offence (which attracted a higher maximum penalty), that is not a comparison that was necessary or appropriate in determining the correct sentence for this offence. The original sentence of 6 years and 2 months' imprisonment fell away when the original conviction was quashed. That sentence was never tested on appeal. The only decisions that are relevant for comparison purposes are those of this court.
This ground has no reasonable prospects of success and leave in respect of it was refused.

Ground 2 - appellant's submissions

The appellant submitted that the discount for pleading guilty pursuant to s 9AA of the Sentencing Act 1995 (WA) should be calculated by reference to the retrial rather than the first trial. The appellant submitted that because he did not plead guilty at the time of the first trial and therefore received no reduction under s 9AA and subsequently served almost 35 months of his original sentence, s 9AA 'had done its work in relation to the first trial'.[64]
[64] WAB 16.
In effect, the appellant submits that after the successful appeal against conviction the slate was wiped clean. Any opportunity to plead guilty should only be viewed as arising from that time. It was suggested that the relevant 'proceedings' for the purposes of s 9AA(3) were the proceedings relating to the retrial. In this context, it was submitted that the appellant's plea of guilty had been entered at an early opportunity and was deserving of a greater discount than the 10% that had been given.[65]
[65] WAB 16.

Ground 2 - relevant legal principles

The general principles governing the application of s 9AA of the Sentencing Act are well established. They were summarised by Buss P in Mussarri v The State of Western Australia.[66] Relevantly, a discount of 25% can only be given where a plea of guilty has been entered or indicated at the first reasonable opportunity.
[66] Mussarri v The State of Western Australia [2018] WASCA 46 [42] - [52] (Buss P).
Section 9AA provides:
(1)In this section -
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if -
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) ‑
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
The word 'proceedings' in s 9AA(3) refers to the whole of the proceedings and not merely to some part of it. The 'proceedings' referred to in s 9AA(3) are the proceedings that are commenced in a court and continued (including by any subsequent proceedings in a superior court following committal) after the person has been charged with an offence. The relevant proceedings, for the purposes of s 9AA(3), do not come to an end if, after the commencement of the proceedings, the prosecution notice or the indictment is amended to charge an 'alternative offence' within the meaning of s 10B of the Code. At all material times, doing grievous bodily harm (simpliciter), contrary to s 297(1) of the Code, has been an alternative offence to doing grievous bodily harm with intent, contrary to s 294 of the Code. It is open to an accused, who has been charged with an offence, to indicate a plea of guilty to an alternative offence.
Section 9AA is concerned with the practical advantages of a plea of guilty. So much is apparent from s 9AA(2) which provides that the purpose of any discount is to recognise the benefits of a plea of guilty to the State, any victims and any witnesses. This means that the court is concerned with whether the plea of guilty could have been entered by the offender at any earlier time.

Ground 2 - the merits

The first indication that the appellant might plead guilty to the offence of grievous bodily harm (simpliciter) occurred on 26 August 2022, when the possibility was mentioned at the trial listing hearing.[67] That was more than four years and seven months after the offence had been committed.
[67] ts 1083 - 1091.
The offence occurred around 2.30 am on 20 January 2018 and the appellant originally denied the offence and sought to minimise his involvement when interviewed by police. He was initially charged with doing grievous bodily harm (simpliciter) on 20 January 2018. He appeared in the Magistrates Court on six occasions prior to committal and maintained his indicated plea of not guilty. The charge was upgraded to doing grievous bodily harm with intent at the time of committal, though it remained open to the appellant to offer a plea of guilty to the lesser offence had he wished to do so. He did not choose to do so.[68] His counsel asserted that this option was not made known to the appellant by his lawyers at the time. Even if that is so, it does not detract from the fact that the appellant had an opportunity to plead guilty at a much earlier stage to the offence of which he was ultimately convicted.
[68] WAB 36 - 37.
It is true that between the time of his conviction of the more serious offence on 15 October 2019 and that conviction being set aside in August 2022, it was obviously not open to him to plead guilty to the lesser offence. That, however, does not mean that the slate was somehow wiped clean. As a practical matter, it was open to the appellant to plead guilty to doing grievous bodily harm at a much earlier stage than he did. That was a relevant factor in assessing the value to be accorded to the plea of guilty.
On any view, the plea entered in this case was entered at a relatively late stage of the proceedings. It afforded some practical benefits to the State, the witnesses and the victim, but that did not detract from the fact that it had been open to the appellant to plead guilty at a much earlier stage of the proceedings than he did.
This ground asserts, in effect, an implied error in that it suggests that the 10% discount that was given was so low as to manifest an error in the exercise of the sentencing judge's discretion. There is no merit in that submission. The 10% discount was, having regard to all of the relevant factual circumstances, a proper reflection of the timing of the plea, the strength of the prosecution case and the benefits flowing from that plea.
There is nothing unreasonable or plainly unjust about the quantum of the discount and there is no merit in this ground of appeal. For those reasons leave in respect of it was refused.

Ground 3 - appellant's submissions

The appellant submits that because he was convicted on the basis that it was unknown who had inflicted the injury that caused the brain damage and that the State had relied on s 8 of the Code, both the appellant and Mr Webb bore culpability as co-principals. Whilst the appellant accepted that his conduct involved more violence and that a finding in that regard had been made by the sentencing judge, it was submitted that the degree of disparity between the appellant's and Mr Webb's sentences was greater than could be justified and was such as to create a legitimate sense of grievance on the part of the appellant.[69]
[69] WAB 20 - 22, 25.
The appellant sought to rely on differences in the personal circumstances of he and Mr Webb to justify this ground of appeal. It was suggested that the fact that the appellant had pleaded guilty whereas Mr Webb had been convicted after trial, differences in the level of remorse, differences in the need for personal deterrence, and differences in the criminal records of Mr Webb and the appellant, all favoured the appellant.[70]
[70] WAB 25.

Ground 3 - relevant legal principles

The principles relating to parity in sentencing are well established and were summarised by this court in Higgins v The State of Western Australia[71] and Garlett‑Exell v The State of Western Australia.[72] All factors relevant to the offenders, the offences they have committed and the sentences they have received must be evaluated and taken into account when determining whether the parity principle has been infringed.
[71] Higgins v The State of Western Australia [2019] WASCA 78 (Buss P).
[72] Garlett‑Exell v The State of Western Australia [2020] WASCA 179 [48] - [52].
The parity principle does not require that the same sentence be imposed on co‑offenders where their circumstances are relevantly different. Those circumstances can include the degree of culpability for the offence of which they have both been a party and the personal circumstances of the offenders.[73]
[73] Higgins [22].

Ground 3 - the merits

Bowden DCJ made a finding that the appellant's culpability in respect of the offending was significantly greater than that of Mr Webb. In that regard, the sentencing judge took into account that the appellant was the initiator of the violence, was the one who had used a weapon, was the one who had inflicted most of the violence on Mr Koroma, and that the violence that he had used had involved multiple blows, both with the hockey stick, his fists and his feet. Those findings are not challenged on the appeal and, with respect, were plainly correct.
In the circumstances, it would be expected that the significant degree of difference in culpability of the appellant and Mr Webb would be reflected in their sentences. It would not be expected that they would receive sentences that were the same, or even close to being the same.
Whilst it was suggested by the appellant that the personal circumstances favoured him and would reduce any such difference between he and Mr Webb, the weight to be given to personal circumstances in a matter of this nature, where general deterrence is clearly a most important consideration, must be less. In any event, the factors relied on by the appellant were unlikely to reduce his sentence to a significant degree. The discount for the plea of guilty was correctly determined to be 10%. As regards remorse, the finding of the sentencing judge was not that the appellant had shown remorse to a high level, but that his remorse, in essence, amounted to regret. This was not a factor that was significantly more favourable than the findings in respect of Mr Webb. Personal deterrence was a factor that appeared to weigh more heavily in respect of Mr Webb, but this is a factor that was clearly overwhelmed by the appellant's significantly greater culpability and the need for general deterrence in both cases. The fact that Mr Webb had a more significant prior criminal record was not an aggravating factor and could not, in itself, justify a greater sentence on his part (or indeed a lesser sentence on the part of the appellant). The fact was that neither the appellant nor Mr Webb had the benefit of prior good character.
Having regard to all relevant factors, the degree of difference between the appellant's sentence and that imposed on Mr Webb was entirely justified by the difference in their degree of culpability, even taking into account their respective mitigating factors. There is no basis for a legitimate or justifiable sense of grievance on the part of the appellant. The parity principle has not been infringed.
This ground of appeal was not reasonably arguable. For this reason leave in respect of it was refused.

Conclusion

None of the grounds of appeal had merit. For those reasons the following orders were made:
1.Leave to appeal is refused.
2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
5 MAY 2023