Oxenham v The State of Western Australia - [2015] WASCA 30

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: OXENHAM -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 30

CORAM: MARTIN CJ
BUSS JA
MAZZA JA

HEARD: 3 SEPTEMBER 2014

DELIVERED : 18 FEBRUARY 2015

FILE NO/S: CACR 230 of 2013

BETWEEN: JESSE JAMES MATTHEW OXENHAM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KEEN DCJ
File No  :IND 8 of 2013

Catchwords:

Criminal law - Appeal against sentence - Grievous bodily harm with intent - Whether sentence of 6 years manifestly excessive - Whether total effective sentence of 7 years 6 months infringed totality principle - Turns on own facts

Legislation:

Criminal Code (WA), s 294
Sentencing Act 1995 (WA), s 9AA

Result:

Leave to appeal in respect of ground 1 refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Ms A C Longden

Solicitors:

Appellant: Michael J Joubert
Respondent: Director of Public Prosecutions (WA)

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

Abfahr v The State of Western Australia [2013] WASCA 87
Dinsdale v The Queen [2010] HCA 54; (2010) 202 CLR 321
Director of Public Prosecutions (Vic) v Terrick [2009] VSCA 220; (2009) 24 VR 457
Eriha v The State of Western Australia [2011] WASCA 167
Petrelis v The State of Western Australia [2012] WASCA 235
Rolfe v The State of Western Australia [2012] WASCA 169
Stephens v The State of Western Australia [2005] WASCA 98
The State of Western Australia v Jeffries [2007] WASCA 255
The State of Western Australia v Khasay [2014] WASCA 58
The State of Western Australia v Naumoski [2013] WASCA 215
The State of Western Australia v Taylor [2012] WASCA 233
Trompler v The State of Western Australia [2008] WASCA 265
Wells v The State of Western Australia [2013] WASCA 124
Zhang v The State of Western Australia [2013] WASCA 121

MARTIN CJ:

Summary

The appellant, Jesse James Matthew Oxenham, appeals from the sentence of 6 years imprisonment imposed following his conviction after pleading guilty to the offence of causing grievous bodily harm to Mr Lee Robertson with intent, and from the total effective term of 7 years and 6 months imprisonment which resulted from the sentence of 18 months imprisonment imposed following his conviction after pleading guilty to the offence of unlawfully assaulting Ms Vincenzina Raso and causing her bodily harm in circumstances of aggravation, which was ordered to be served cumulatively upon the other term imposed. For the reasons which follow, the sentences imposed do not reveal any error in the proper exercise of the discretion available to the sentencing judge, and Mr Oxenham's appeal must be dismissed.

The circumstances of the offences

The circumstances of the offences were not contentious, and there is no challenge to any finding of fact made by the sentencing judge. Mr Oxenham and Ms Raso were in a de facto relationship of approximately eight years duration until they separated in April 2012. There were two daughters of their relationship who were aged 5 and 1 at the time of the offences committed in October 2012.
In August 2012, Ms Raso commenced a relationship with Mr Robertson, who was a work colleague. She told Mr Oxenham that she had moved on and was seeing someone else. He reacted poorly. He started sending text messages to Ms Raso and threatened physical harm to Mr Robertson. He also made threatening phone calls to Mr Robertson and, in the course of one of those conversations, said to him 'I'm going to kick your head in'. He also said to Mr Robertson that he would bash him at his place of work, and that he did not care if he lost his job. He visited the place at which Ms Raso and Mr Robertson worked, and asked to see Mr Robertson. He spoke of his intention to harm Mr Robertson to the children's nanny.
During the day of 12 October 2012, Mr Oxenham twice requested the children's nanny to confirm that she would not be at the house that evening. He went to the house at which Ms Raso and their children were living at approximately 1.30 am the following morning. The children were asleep upstairs. Ms Raso opened the door to Mr Oxenham, who pleaded with her to give the relationship one more chance. While they were talking, one of the children started to cry. Ms Raso went upstairs to tend to the child and Mr Oxenham followed. Ms Raso and Mr Oxenham entered the children's bedroom. Both children were awake and crying. Ms Raso was holding their one‑year‑old daughter.
Mr Oxenham demanded that Ms Raso give him her mobile telephone. She refused. He grabbed Ms Raso by the hair, shouting 'give me your fucking phone,' and took the phone from her. He read through the text messages which had passed between Ms Raso and Mr Robertson while threatening to slash Ms Raso's face with a knife and to break her nose. He stated that they each needed to do their wills because he was going to kill Ms Raso and then himself. He repeatedly kicked Ms Raso in the shins and abused her verbally. The children were present throughout.
Mr Oxenham then used Ms Raso's phone to send text messages to Mr Robertson for the purpose of luring him to the house where he and Ms Raso then were. He constructed the text messages to appear as if they had been sent by Ms Raso, and went to some lengths to convince Mr Robertson that Mr Oxenham was not there. After sending a number of text messages, he directed Ms Raso to call Mr Robertson and to make him come over. She made the call at around 2.00 am, and Mr Robertson agreed to come to the house.
When Mr Robertson arrived at the house, Mr Oxenham was waiting for him and immediately attacked him. He punched him in the face, and when he fell to the ground, continued kicking and punching him as he lay on the ground. Ms Raso came downstairs to the scene of the altercation still holding their one‑year‑old daughter, while the five‑year‑old daughter remained upstairs. Mr Oxenham dragged Mr Robertson out of the house and kicked him in the head and body. Mr Oxenham told Ms Raso to come out of the house and to look at Mr Robertson and yelled to their older daughter to come out and 'look at mummy's new boyfriend'. Ms Raso ensured that both children were upstairs and then went outside where she saw Mr Oxenham jump on Mr Robertson with both feet.
As Ms Raso came out of the house, Mr Oxenham punched her in the face with his clenched right fist. However, Ms Raso managed to get past Mr Oxenham and ran to a neighbouring unit, where she alerted the occupant to call police. That call was made at around 2.10 am. She then returned to her house where she observed Mr Oxenham still kicking Mr Robertson. He kicked him around 20 times after Ms Raso left her neighbour's unit. Mr Oxenham told Ms Raso to look at her boyfriend, and threatened to cause him further harm. By this stage Mr Robertson was lying unresponsive on the ground near the front door to the unit. Mr Oxenham told Ms Raso to go to Mr Robertson and when she did, he told her to kiss him. He grabbed the back of her head and pushed her down, forcing her to kiss Mr Robertson. Mr Oxenham again called out for their elder daughter to come and look. Ms Raso then ran down the driveway to escape from Mr Oxenham.
Mr Oxenham took a photograph on Ms Raso's telephone of Mr Robertson in his injured state and sent it to a friend of hers. He said to Mr Robertson 'I told you I would fucking kill you', and taunted and laughed at him.
Mr Oxenham made no attempt to leave the scene and waited until police arrived at around 2.20 am. Even after being arrested, he continued to yell out to Ms Raso and their older daughter to come and look at Mr Robertson.
As a consequence of Mr Oxenham's assault, Ms Raso received a split lip and swelling and bruising to both shins, her neck and her right ear. She was treated in hospital for her injuries, which were largely superficial soft tissue injuries.
The injuries sustained by Mr Robertson as a result of Mr Oxenham's prolonged attack were extremely serious. When he was medically assessed at around 3.00 am, he was observed to have severe facial swelling, bleeding and trauma. Photographs taken at around this time reveal the extent of that swelling and trauma, and provide a vivid indication of the severity of the sustained attack which he experienced. Mr Robertson suffered multiple fractures to his face, including a fractured nose, a fracture to the right orbit of his eye, generalised cerebral oedema and haemorrhage in the left occipital region of his brain. The doctor treating Mr Robertson for his injuries believed that he would have died without medical intervention, and had no doubt that he would suffer permanent injury. At the time he spoke to Mr Robertson's mother and sister and told them that Mr Robertson had experienced life-threatening injuries and that there was a high chance that he would die.
Both victims provided statements which were tendered in the course of the sentence hearing. Ms Raso wrote of her distress at being unable to protect her daughters from seeing their father inflict brutal violence. She described a life 'that is full of fear, insomnia, unending panic attacks, constant nightmares and intrusive visions irrespective of whether I am asleep or awake, flashbacks, re‑creations, anger, frustration, resentment, anxiety in the dark'. She expressed her shame and embarrassment at what had occurred to her and her family, and was receiving counselling for trauma and grief.
In his statement, Mr Robertson described the extent of his injuries, although he had no recollection of the events in which those injuries were caused. He was particularly distressed by the fact that his parents and children had to travel from Brisbane to Perth in order to visit him at hospital not knowing whether he was alive or dead. His sister also flew to Perth immediately to be with him. He continued to suffer numbness to his face, blurry vision, and blood clots which might require medication for the remainder of his life, and is required to take regular medical tests in order to retain his driver's licence. He continues to have to take substantial time off work for medical treatment and during his rehabilitation relied heavily on other people to do basic things for him. He is no longer able to drink alcohol and is very afraid of the dark, which causes him distress when leaving for work in the morning. He tries to do everything he can during the hours of daylight. He was distressed by the effect which seeing his injuries had upon his five‑year‑old son, and feels guilty about his inability to protect that son and his older children from the impact which his injuries have had upon them. He was unable to work for three months while recovering from his injuries, but has now resumed regular employment.

The guilty pleas

As I have noted, Mr Oxenham was arrested and charged immediately following the commission of the offences in the early hours of 13 October 2012. The charges brought against Mr Oxenham were listed for trial commencing on 11 November 2013. However, after around a month of negotiations, on 26 September 2013, Mr Oxenham entered pleas of guilty to both charges and another count on the indictment against him was withdrawn by the prosecution. That count related to threats allegedly made to Ms Raso by Mr Oxenham.

The sentencing judge's observations

After setting out the circumstances of the offences in similar terms to those above, the sentencing judge turned to Mr Oxenham's personal circumstances. He noted that at the time of sentence Mr Oxenham was 36 years old and appeared to have experienced a good and privileged upbringing without any trauma. The judge noted that Mr Oxenham's parents were still very supportive of him and that he had only engaged in one significant personal relationship, and that was the relationship with Ms Raso. It was noted that Mr Oxenham had been educated to year 12 standard, and for a while worked as a professional football player for a metropolitan football club, before gaining employment as a mechanical fitter with BHP where he worked for approximately 11 years. More recently he had been employed in a similar capacity with Rio Tinto.
The sentencing judge noted that Mr Oxenham did not appear to have any issues with respect to the misuse of alcohol or drugs, and had only a limited criminal history which, inferentially, was not relevant to the sentences to be imposed. The judge also noted that Mr Oxenham had received counselling whilst on remand.
The sentencing judge noted that both offences were 'clearly jealous and anger‑fuelled rage offences', and that the assault upon Ms Raso involved numerous individual attacks upon her. He noted that the offence against Ms Raso was aggravated because it took place in the presence of her children, which the sentencing judge regarded as unforgiveable. He expressed the view that it was fortunate that Ms Raso had not sustained more serious injuries. He considered that the offence was aggravated by the threats made to Ms Raso at the time, which, coupled with the assault upon Mr Robertson, must have caused her great fright and distress. He found that the offence was premeditated and that Ms Raso was powerless to prevent what occurred.
The sentencing judge regarded the offence committed against Mr Robertson as 'a very serious example of this type of offence'. He found the offence was also premeditated, involved kicking and stomping on Mr Robertson's head, and caused very severe injuries, which resulted in a high risk that Mr Robertson might not survive.
The sentencing judge then summarised the victim impact statements provided by each victim in terms similar to those above.
Later in his remarks, the sentencing judge reiterated that the circumstances of aggravation included the presence of the children, the family and domestic relationship between Mr Oxenham and Ms Raso, and the fact that the offences occurred in Ms Raso's home. He also regarded the premeditation and the sustained nature of each offence as aggravating circumstances.
In relation to mitigation, the sentencing judge noted that the pleas of guilty were not fast‑track pleas but were nevertheless of value to the State and to the witnesses who were relieved of the trauma of reliving their experiences. However, the judge noted that the significance of the pleas might be seen against a very strong prosecution case, having regard to the fact that Mr Oxenham was caught at the scene. The sentencing judge concluded that the appropriate discount to be allowed for the plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA) was 15%, to be applied before any other discount for mitigation.
The sentencing judge noted that Mr Oxenham had provided a letter to the court, in which he expressed regret and remorse for his actions and accepted that Mr Oxenham was in fact remorseful, and that his behaviour was out of character. The sentencing judge noted the tender of a large number of references and testimonials which were positive as to Mr Oxenham's general character, having been provided by family, friends, and sporting and work associates.
The sentencing judge expressed the view that the seriousness of the offences was such that no sentence other than a term of imprisonment to be immediately served was appropriate, and noted that counsel for Mr Oxenham had not contended otherwise. He expressed the view that deterrence was a significant aspect of the sentencing process in the circumstances of Mr Oxenham's case, given the prevalence of domestic violence and the need to discourage conduct of that kind. The sentencing judge also considered that personal deterrence was relevant to Mr Oxenham, given that he had committed serious offences without any reason other than jealousy and anger.
The sentencing judge expressed the view that the appropriate term of imprisonment to be imposed was a term of 6 years in respect of the offence of causing grievous bodily harm with intent, and a term of 2 years in respect of the assault upon Ms Raso. However, for reasons of totality, he reduced the sentence for the assault upon Ms Raso to a period of 18 months to be served cumulatively upon the sentence of 6 years imprisonment for the offence of causing grievous bodily harm with intent.

The grounds of appeal

There are two grounds of appeal.
Ground 1
The sentence of 6 years immediate imprisonment imposed for the offence of doing grievous bodily harm with intent to maim, disfigure or disable or do grievous bodily harm (Count 3) was, in all the circumstances, manifestly excessive:
Particulars of circumstances:
1.The plea of guilty;
2.The appellant's antecedents;
3.The criminality involved;
4.No weapon was used;
5.Sentences imposed in, broadly, comparable cases.
Ground 2
The sentencing judge erred in imposing a total effective sentence that infringed the first limb of the principle of totality, having regard to the total criminality involved in the various offences viewed in their entirety and all the circumstances of the case, including those referable to the appellant personally.

Ground 1

An assertion that a sentence is manifestly excessive is an assertion of error to be implied from the sentence itself, and does not depend upon the identification of specific error. A sentence is manifestly excessive if it is unreasonable or plainly unjust.[1] In order to determine whether a sentence is manifestly excessive, the court must take account of the maximum sentence provided for the offence, the personal circumstances of the offender, the place which the conduct in question occupies on a scale of seriousness pertaining to the relevant offence, and the standards of sentencing customarily observed with respect to that offence.
[1] Dinsdale v The Queen [2010] HCA 54; (2010) 202 CLR 321 [6].

The plea of guilty

The particulars given in support of ground 1 identify the matters upon which particular reliance was placed in written and oral submissions. Dealing firstly with the plea of guilty, no challenge is made to the conclusion of the sentencing judge that a discount of 15% before other mitigating factors was appropriate. That conclusion was plainly open to the sentencing judge having regard to the relative lateness of the pleas, and the context in which they were made, being an overwhelming prosecution case.

The appellant's antecedents

Turning to Mr Oxenham's antecedents, there is no doubt that the sentences imposed upon him are to be assessed in a context in which he should be regarded as having been of previously good character (his previous criminal history not being relevant to the offences now under consideration), and as a person who was regarded as a worthy member of society by a wide circle of family and friends. However, there are obviously limits to the weight which can be given to mitigating circumstances of this kind when sentences are to be imposed for serious offences.

The criminality involved

In Trompler v The State of Western Australia,[2] Wheeler JA[3] noted that in general, there are three matters of significance to be considered in assessing the criminality involved in an offence of doing grievous bodily harm. They are the nature of the harm which results from the injuries inflicted, the nature of the acts which cause the injuries, and the background and circumstances of the offence. Although these observations were not made in the context of the offence of doing grievous bodily harm with intent, they are relevant to that offence by analogy.
[2] [2008] WASCA 265.
[3] Buss JA agreeing.
The injuries sustained by Mr Robertson were appropriately described by the sentencing judge as 'most severe' and 'very severe'. He found, on the basis of the medical evidence, that there was a very high risk that Mr Robertson may have died had he not received prompt medical treatment. In all the circumstances, Mr Robertson appears to have recovered relatively well, although he has been left with residual and permanent disability. He has permanent injuries to his right eye. He may require medication for the rest of his life and is receiving ongoing treatment and counselling. The physical and psychological impact of the injuries which Mr Oxenham inflicted upon Mr Robertson will have an enduring and detrimental effect upon his quality and enjoyment of life. While the enduring nature of the harm caused to Mr Robertson could not be said to be of the most serious kind encompassed by grievous bodily harm, it can properly be characterised as being towards the upper end of the scale.

Turning to the nature of the acts which caused the injury, the attack upon Mr Robertson was premeditated, orchestrated by deception, brutally administered and sustained over a significant period of time. The repeated kicking and jumping upon Mr Robertson while he was lying on the ground, utterly defenceless and vulnerable, and which was plainly intended to cause serious injury, must be characterised as conduct which is at the upper end of the scale of seriousness.
Turning to the background and circumstances of the offence, the prior history of threats and intimidation of Mr Robertson; the lack of any provocation by either Ms Raso or Mr Robertson; the premeditation of a calculated and cowardly attack; the deception that was used to lure Mr Robertson to a place where Mr Oxenham was lying in wait for him; the commission of the offence in the home of a person with whom Mr Oxenham had been in a personal and domestic relationship and, most significantly, in the presence of their children; the use of the injuries inflicted by Mr Robertson to taunt both Ms Raso and their children; the photographing of Mr Robertson's injuries and the transmission of that photograph to Ms Raso's friend; and the use of force to require Ms Raso to kiss Mr Robertson's bloodied face lead to the inexorable conclusion that the background and circumstances of Mr Oxenham's offence must be placed toward the upper end of the scale of criminality.
The sentencing judge was correct to take a very serious view of Mr Oxenham's premeditated and sustained attack upon a person who had done nothing more than form a relationship with his former partner. The breakdown of personal relationships is an inevitable aspect of contemporary society, and often causes anger, frustration and jealousy. Mr Oxenham responded to those emotions with particular brutality exacerbated by the many aggravating circumstances to which I have referred. The community rightly expects the courts to denounce conduct of this kind in the clearest of terms, and to impose a sentence which reflects the community's abhorrence of serious offences of domestic violence of this character.

Lack of a weapon

Mr Oxenham did not use a weapon to inflict injury upon Mr Robertson, but rather, used his hands and his feet. However, the absence of an aggravating factor is not to be equated with a mitigating factor. As the Court of Appeal of Victoria observed in Director of Public Prosecutions (Vic) v Terrick:[4]
While the fact that a lethal weapon has not been used may constitute the absence of an aggravating circumstance, the capacity of the hands and feet to inflict severe injury on an unconscious victim should not be minimised. There is little merit in the suggestion that an offender who repeatedly and forcefully kicks an unconscious victim to the head is less culpable than one who inflicts injuries with a weapon.
[4] [2009] VSCA 220; (2009) 24 VR 457 [64] (Maxwell P, Redlich JA & Robson AJA).

Sentence imposed in broadly comparable cases

The offence of causing grievous bodily harm with intent contrary to s 294 of the Criminal Code (WA) can be committed in a wide variety of facts and circumstances. Consequently, the range of sentences customarily imposed for that offence is broad, and the point at which any particular case will fall within that range depends very much upon the particular facts and circumstances of that case. In such a context, manifest excess will not ordinarily be established by pointing to one or two cases in which lesser sentences were imposed in circumstances which were arguable comparable, or by pointing to one or two cases in which comparable sentences were imposed for offences which were arguably more serious. Rather, manifest excess will only be established if it can be said that the sentence imposed was unreasonable or unjust, having regard to all relevant facts and circumstances, including customary standards of sentencing to be gleaned from previously determined cases viewed as a whole and the other matters I have mentioned which the court must take into account.
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,[5] analysis in Stephens v The State of Western Australia[6] 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.[7] Further, in Zhang v The State of Western Australia,[8] Mazza JA[9] 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.
[5] [2007] WASCA 255 [12] (Steytler P, McLure & Miller JJA agreeing).
[6] [2005] WASCA 98.
[7] [2014] WASCA 58 [34] (Buss JA, Pullin & Mazza JJA agreeing).
[8] [2013] WASCA 121 [61].
[9] (McLure P & Buss JA agreeing).
These observations with respect to the standards of sentence customarily imposed for offences contrary to s 294 of the Criminal Code provide an inauspicious context for an assertion that the sentence imposed upon Mr Oxenham departed from those standards in such a way as to be unreasonable or unjust, given that the offence which he committed is to be regarded as toward the upper end of the scale of seriousness and is within the range revealed by those cases.
Nevertheless, in both written and oral submissions, counsel representing Mr Oxenham endeavoured to make good this ground of appeal by reference to the sentences imposed in specific cases which are said to be comparable to the offence committed by Mr Oxenham. As I have already observed, there is a limit to the extent to which a process of this kind can establish manifest excess. However, for the sake of completeness, I will refer to each of the cases upon which counsel relied.

The State of Western Australia v Taylor

In The State of Western Australia v Taylor[10] the State appealed against a sentence of 18 months imprisonment imposed upon a 43‑year‑old man who had driven from Perth to Geraldton with several family members in order to locate the victim, who was a woman of 21 years. The offender waited at the victim's home until she arrived in a car with other members of her family, including two children who were aged 2 and 6. The offender approached the victim, pushed her up against the car, throttled her and punched her to the head. He stepped away from the car and a brawl ensued. At some point in the course of that brawl while the victim was on the ground, the offender struck numerous blows to her legs with an Aboriginal punishment stick. As a result of those blows the victim suffered a deep gash to her leg which penetrated to and fractured her right tibia. The offender was convicted after trial of doing grievous bodily harm contrary to s 297(1) of the Code, which carries a maximum penalty of 10 years imprisonment, as compared to the maximum penalty of 20 years imprisonment which applies to the offence of doing grievous bodily harm with intent, contrary to s 294 of the Code, which is the offence committed by Mr Oxenham.
[10] [2012] WASCA 233.
This court decided that the sentence imposed in Taylor was manifestly inadequate, and resentenced the offender to a term of 3 years and 6 months imprisonment. The offender in that case had worse antecedents than Mr Oxenham and was not entitled to any discount for a plea and was considered to be at an elevated risk of reoffending. The similarities between the two cases lie largely in the element of premeditation, the lack of provocation, and the presence of children. However, the nature of the acts causing the injuries to the victim, and the harm inflicted were significantly less severe in Taylor than in the case now under consideration. The injuries caused by Mr Oxenham might easily have caused the death of Mr Robertson had he not received prompt medical treatment and have caused Mr Robertson to suffer enduring disabilities. Those factors, which are of great significance, were not present in Taylor. Taking account of those differences, and the differences in the maximum penalty applicable to the offence committed in Taylor as compared to the maximum penalty for the offence committed by Mr Oxenham, the sentence imposed by this court in Taylor does not suggest that the sentence imposed upon Mr Oxenham was unreasonable or unjust.

Rolfe v The State of Western Australia

In Rolfe v The State of Western Australia,[11] the offender entered a fast‑track plea of guilty at a time when s 9AA of the Sentencing Act did not restrict the maximum discount available for such a plea, and discounts of up to 35% were not uncommon, although the reasons do not reveal the precise discount afforded in that case. Further, the sentence of 5 years imprisonment for grievous bodily harm with intent which was imposed has to be seen in the context of a longer total effective sentence imposed in respect of a broader course of offending. Although the offender in Rolfe was in company and used a weapon, the injuries occasioned were significantly less serious than those inflicted upon Mr Robertson. The offender in Rolfe had a substantial relevant prior criminal history but, taking account of the likely effect of a fast‑track plea of guilty, it cannot be said that the sentence imposed in that case suggests that the sentence imposed upon Mr Oxenham was unreasonable or unjust having regard to the significant difference in the injuries caused in the two cases.
[11] [2012] WASCA 169.

Stephens v The State of Western Australia

In Stephens v The State of Western Australia,[12] the offender was convicted of grievous bodily harm with intent after trial and sentenced to 6 years imprisonment. He was somewhat younger than Mr Oxenham (24 years of age) but had a record of minor convictions. Following an incident at a tavern, the offender pursued the victim in a motor vehicle. The victim slipped and fell beneath the vehicle and became wedged under the vehicle, after which the offender drove the vehicle for another 30 m. The offender attempted to avoid detection and lied to police with respect to his role in the commission of the offence. While those circumstances are not present in Mr Oxenham's case, the major points of distinction between the cases include Mr Oxenham's premeditation and calculation, the prolonged and brutal nature of his assault upon Mr Robertson, and most significantly of all, the very serious injuries which he inflicted. Having regard to those differences, it cannot be said that a sentence of 6 years imprisonment imposed in Stephens leads to the conclusion that the same sentence imposed upon Mr Robertson was unreasonable or unjust.
[12] [2005] WASCA 98.

Wells v The State of Western Australia

In Wells v The State of Western Australia,[13] the offender was convicted after trial of grievous bodily harm with intent and sentenced to 6 years and 6 months imprisonment. The offender perpetrated a vicious unprovoked attack using a weapon from behind the victim which was applied with significant force to the victim's head causing enduring difficulties to the victim's memory. The offender was not entitled to any discount for a plea of guilty and had a significant prior criminal record. The offender's application for leave to appeal was dismissed, and there was no cross‑appeal by the State. It follows that the only conclusion that can be drawn from the Court of Appeal's decision is that the sentence imposed was not manifestly excessive, and the case simply provides an illustration of a sentence imposed by a judge at a first instance in a case which has some similarities to the present. While the lack of any discount for a plea or mitigation due to favourable antecedents suggests that the offender in Wells was sentenced more leniently than Mr Oxenham, as McLure P observed in Wells 'comparison with an individual case provides no assistance in assessing whether a sentence is manifestly excessive'.[14]
[13] [2013] WASCA 124.
[14] [40] (Newnes & Mazza JJA agreeing).

The State of Western Australia v Naumoski

In The State of Western Australia v Naumoski,[15] a State appeal against a sentence of 5 years imprisonment imposed upon the offender following an early plea of guilty to grievous bodily harm with intent was allowed and the offender resentenced to a term of 7 years imprisonment. The circumstances of the offence bore some similarity to the present case as it involved a serious offence of domestic violence committed shortly after the breakdown of a relationship. The offence was aggravated by the intentional disfigurement of the victim's face and other parts of her body by the use of a knife. Like Mr Robertson, the victim received life threatening injuries and almost died at the scene of the crime. Because of his early plea, when being resentenced, the offender was given the maximum benefit of a 25% discount. While the circumstances of that offence were more serious than that committed by Mr Oxenham, after allowance is made for the difference in the discount, and the fact that the offender received a longer sentence, it cannot be said that the sentence imposed in Naumoski shows that the sentence imposed upon Mr Oxenham was unreasonable or unjust.
[15] [2013] WASCA 215.

Abfahr v The State of Western Australia

In Abfahr v The State of Western Australia,[16] the offender was convicted of grievous bodily harm with intent after trial and sentenced to 5 years imprisonment. His application for leave to appeal was dismissed and there was no cross‑appeal by the State. Accordingly, as in Wells, the only conclusion which can be drawn from the decision of this court is that the sentence imposed was not manifestly excessive. The circumstances of the offence involved the use of a vehicle to cause significant injury to the offender's wife. However, the offence was not premeditated and the injuries caused were significantly less than those suffered by Mr Robertson, although nevertheless serious. When account is taken of those differences, it cannot be said that the sentence imposed by the sentencing judge in Abfahr supports the conclusion that the sentence imposed upon Mr Oxenham was unreasonable or unjust.
[16] [2013] WASCA 87.

Eriha v The State of Western Australia

In Eriha v The State of Western Australia,[17] the offender was sentenced to a term of 9 years imprisonment after pleading guilty to grievous bodily harm with intent. However, the circumstances were very different to the present case, involving a sustained period of torture over a lengthy period which was found to be in the worst category of case. The circumstances of this offence are so dissimilar to that committed by Mr Oxenham that no reliable conclusions can be drawn from any comparison.
[17] [2011] WASCA 167.

Petrelis v The State of Western Australia

In Petrelis v The State of Western Australia,[18] the appellant was convicted after trial of grievous bodily harm with intent, but acquitted of attempted murder. He was sentenced to a term of 7 years and 9 months for an offence which, on any view, was significantly more serious than that committed by Mr Oxenham. As with Eriha, the significant differences in the circumstances of the two offences deprives a comparison of the sentences imposed of any significance.
[18] [2012] WASCA 235.

Ground 1 - Conclusion

Neither the cases in this court which have analysed and reflected upon the range of sentences customarily imposed for the offence of causing grievous bodily harm with intent, nor the individual cases to which counsel for the appellant has referred, support the conclusion that the sentence imposed upon Mr Oxenham for causing grievous bodily harm to Mr Robertson with intent departed from the standards of sentencing customarily imposed in respect of similar offences, or was otherwise unreasonable or unjust. Having regard to all relevant circumstances, Mr Oxenham's offence was properly characterised as lying toward the upper end of the scale of seriousness while not within the worst category of case. The sentence of 6 years imprisonment cannot be said to be manifestly excessive. As leave to appeal has not been granted in respect of ground 1, I would refuse leave to appeal on that ground and dismiss the ground.

Ground 2

Ground 2 asserts that the total effective sentence imposed infringed the first limb of the totality principle in that the total effective sentence of 7 years and 6 months did not bear a proper relationship to the criminality involved in the two offences committed by Mr Oxenham. This ground falls to be assessed against the background of my conclusion that the sentence of 6 years imprisonment imposed for causing grievous bodily harm to Mr Robertson with intent was not manifestly excessive. Mr Oxenham does not challenge the individual sentence imposed for the assault upon Ms Raso. Accordingly, the issue which arises under this ground is whether the further period of 18 months imprisonment imposed in respect of the assault upon Ms Raso had the consequence that the period of 7 years and 6 months imprisonment did not bear a proper relationship to the overall criminality involved in both of the offences, viewed in their entirety, and after having regard to all relevant circumstances, including those referable to Mr Oxenham personally and the total effective sentences imposed in comparable cases.
Although the ground of appeal is not enunciated in these terms, in written and oral submissions reliance was placed upon the so‑called 'one transaction rule' in support of the proposition that, in the application of the totality principle, the additional term of imprisonment imposed in respect of the assault upon Ms Raso should have been less than 18 months.
Although the offences committed against Mr Robertson and Ms Raso were related in point of time, and stemmed from the same motive - namely, Mr Oxenham's anger at their relationship - they could not be said to constitute a single invasion of the same legally protected interest and involved quite separate and distinct offences. The first assault against Ms Raso was committed well before Mr Robertson was anywhere near the scene of the offence. Further, the assault against Ms Raso continued after Mr Robertson had been brutally attacked and was significantly aggravated by the various factors to which I have referred. In those circumstances, in my view it would have been wrong in principle for the sentencing judge to order the sentences imposed in respect of the two offences be served wholly concurrently.
However, it was necessary for the sentencing judge to take the first limb of the totality principle into account, and he did so. The question posed by ground 2 is whether the total effective sentence of 7 years and 6 months imprisonment is disproportionate to the total criminality involved in the two offences, viewed in their entirety, and after having regard to all relevant circumstances including the mitigating factors, and the antecedents and personal circumstances of Mr Oxenham. The offence committed against Ms Raso was serious and significant, and caused her significant and enduring distress. A significant additional term of

imprisonment was appropriately imposed in order to reflect the seriousness of that offence and to properly mark Mr Oxenham's overall offending. After taking into account the facts, circumstances and seriousness of both offences, viewed together, and giving full weight to all relevant mitigating factors and Mr Oxenham's antecedents and personal circumstances, the total effective sentence of 7 years and 6 months imprisonment cannot be said to be disproportionate to the total criminality involved in the two offences or to infringe the first limb of the totality principle. For that reason ground 2 of the appeal must also be dismissed.

Conclusion

For these reasons leave to appeal in respect of ground 1 should be refused and each ground of appeal and the appeal generally should be dismissed.
BUSS JA: I agree with Martin CJ.
MAZZA JA: I agree with Martin CJ.