Oxwell v The Queen
[2002] WASCA 202
•2 AUGUST 2002
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: OXWELL -v- THE QUEEN [2002] WASCA 202
CORAM: WALLWORK J
ANDERSON J
PARKER J
HEARD: 2 MAY 2002
DELIVERED : 2 AUGUST 2002
FILE NO/S: CCA 165 of 2001
BETWEEN: DANNY GEORGE OXWELL
Appellant
AND
THE QUEEN
Respondent
FILE NO/S :CCA 188 of 2001
BETWEEN :THE QUEEN
Appellant
AND
DANNY GEORGE OXWELL
Respondent
Catchwords:
Criminal law and procedure - Appeal against conviction - Aggravated sexual penetration and grievous bodily harm - Whether trial Judge erred in admitting photographs of complainant's injuries in evidence - Whether pneumonia a likely result of injuries
Criminal law - Sentence - Crown appeal - Whether sentence of 5-1/2 years inadequate - Conduct of Crown at sentencing proceedings
Legislation:
Criminal Code, s 1, s 297
Result:
Appeal against conviction for sexual assault dismissed
Appeal against conviction for grievous bodily harm allowed
Conviction quashed
Crown appeal against sentence dismissed
Category: B
Representation:
CCA 165 of 2001
Counsel:
Appellant: Mr B S Hanbury
Respondent: Mr D Dempster
Solicitors:
Appellant: Beau Hanbury
Respondent: State Director of Public Prosecutions
CCA 188 of 2001
Counsel:
Appellant: Mr D Dempster
Respondent: Mr B S Hanbury
Solicitors:
Appellant: State Director of Public Prosecutions
Respondent: Beau Hanbury
Case(s) referred to in judgment(s):
Everett v The Queen (1994) 181 CLR 295
R v Allpass (1993) 72 A Crim R 561
R v Clarke [1996] 2 VR 520
R v Osenkowski (1982) 30 SASR 212
Wilson v The Queen, unreported; CCA SCt of WA; Library No 950104; 10 March 1995
Case(s) also cited:
Minhaj v The Queen [2000] WASCA 52
WALLWORK J: I agree with the reasons for judgment and the conclusions of Anderson J.
ANDERSON J: On 9 November 2001, the appellant was convicted after trial in the District Court of one count deprivation of liberty, one count of aggravated sexual penetration (the circumstance of aggravation being the causing of bodily harm) and one count of unlawfully doing grievous bodily harm. On 6 December 2001, he was sentenced to 18 months' imprisonment for the offence of deprivation of liberty, 5½ years for the offence of aggravated sexual penetration and 3 years for the offence of doing grievous bodily harm. The terms were ordered to be served concurrently, resulting in an aggregate of 5 years and 6 months' imprisonment. An order was made for parole eligibility.
The Crown now appeals against that sentence on the grounds of its inadequacy and the appellant seeks an extension of time and leave to appeal against the grievous bodily harm and aggravated sexual penetration convictions. The ground of the appeal against the conviction for grievous bodily harm is that "there was no or not sufficient evidence to establish beyond reasonable doubt that the complainant had suffered injury amounting to grievous bodily harm". The ground of the appeal against the conviction of aggravated sexual penetration is that certain photographs of the complainant were wrongly admitted in evidence, in that their prejudicial effect outweighed their probative value.
As to the application for an extension of time, it would appear that the delay in filing the application for leave to appeal was some three days, and that has been explained as having been due to the illness of Mr Hanbury, who had the conduct of the matter (and who appeared as counsel on the hearing of this appeal) on instructions from the Legal Aid Commission. No prejudice has been caused to the Crown by that delay and the extension of time is not opposed and should be granted.
Before dealing with the substantive application, it may be convenient to give a brief account of the facts as they were opened by the prosecutor to the jury.
The appellant and the complainant met at a nightclub in Mandurah and in the early hours of the following morning, 30 July 1999, the complainant agreed to accompany the appellant in his vehicle. The appellant drove the vehicle to a location near a traffic bridge not far outside the township, where there was a parking area and boat ramp. The appellant made sexual overtures to the complainant which, on the Crown
case, she resisted. The appellant by his conduct made it plain that he wished to have sexual intercourse with the complainant, but she continued to refuse him. He then became aggressive, got on top of her in the car and repeatedly punched her in the face with his clenched fist, pulled her clothing and underclothing off, and as she was fighting against him penetrated her vagina with his penis. The Crown case was that after this act was completed, the complainant tried to get away, but the appellant kicked her in the middle of her back and then pinned her face‑down on the ground outside the car and attempted to penetrate her anus with his penis. All the while, he was punching her and it was alleged that he kicked her on a number of occasions. On the Crown case, the complainant finally managed to get away and to reach a house where she was given assistance. By this time, she had no clothes on.
I should mention here that the allegation of attempted sexual penetration of the complainant's anus was the subject of count (3) on the indictment, of which the appellant was acquitted.
The complainant was taken to Sir Charles Gairdner Hospital in Perth where she was examined. X‑rays and other tests were undertaken, and photographs were taken of her injuries.
I would not uphold the ground of appeal which pleads that the trial Judge ought not to have admitted the photographs of the complainant's injuries because of their prejudicial effect. The complainant's injuries were highly relevant to the issue of consent in the charge of sexual penetration without consent, and to the question whether the complainant was detained against her will and was directly probative of the aggravating circumstance averred in count (2), that is, that the appellant did bodily harm to the complainant when committing the offence of sexual penetration without consent. The jury was entitled to have the assistance of the photographs in its deliberation on those matters. The photographs were primary evidence of bodily injury which tended to corroborate the complainant's evidence concerning the encounter between the two.
Turning now to the appeal against the conviction for grievous bodily harm, the offence is created by s 297 of the Criminal Code which is in the following terms:
"Any person who unlawfully does grievous bodily harm to another is guilty of a crime … "
The phrase "grievous bodily harm" is defined in s 1 of the Code to mean:
"Any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health."
It was not suggested by the Crown that the injuries depicted in the photographs (which were of bruising, abrasions and cuts) could constitute grievous bodily harm.
The Crown called a medical practitioner, Dr David Mountain, to give evidence of the diagnosis he made after examining the complainant on her admission to the emergency department of the hospital. Dr Mountain's evidence was that, amongst other things, the complainant had sustained rib fractures on both sides. Dr Mountain's evidence was (t/s 44):
"We made a clinical diagnosis on rib fractures because in fact the studies show that x‑rays are remarkably good at missing rib fractures. So it's a clinical diagnosis. If you press and … they are tender over the rib that's taken as evidence of rib fractures … I thought that there were rib fractures on both sides, on the right and on the left side."
The Crown did not contend that the rib fractures were, of themselves, life threatening or likely to be permanent. The case for the prosecution was that, if untreated, the rib fractures were likely to give rise to pneumonia and pneumonia was a life threatening condition. The physiological connection between fractured ribs and pneumonia was explained in evidence by Dr Mountain under cross‑examination (t/s 51) in the following terms:
"All right. You mentioned that pneumonia could result as a consequence of fractured ribs. In your experience, have you provided treatment to a patient who has contracted pneumonia as a consequence of a fractured rib?‑‑‑Yes.
When was that?‑‑‑I've seen multiple elderly patients with fractured ribs who have ended up with pneumonia because even with analgesia they still cannot open the lungs up as much as you would like and secretions pool and whenever you can't clear your secretions properly you're more likely to end up with an infection.
What about a person of the age of Ms Woodley?‑‑‑If you have multiple rib fractures, it's a well recognised complication of rib fractures that statis pneumonia - which is basically what we call a pneumonia caused by the fact that you can't clear your secretions properly and so you can't cough, you can't take deep breaths in, and the lung collapses.
The position as I understand your testimony is that the rib fracture itself, by itself, is not life threatening; it's the complications that can arise from it?‑‑‑That's true.
Is that the position?‑‑‑That's true. I mean, rib fractures can be life threatening if some other complication takes place, but that's not - I mean, for the pneumonia it's not the rib fracture itself, it's the pain and the inability to expand the lung that is the problem."
Dr Mountain explained that the treatment which is given for fractured ribs in order to avoid the onset of pneumonia is "analgesia, or pain relief, to assist in their breathing, you encourage them to breathe as deeply as possible and to keep as mobile as possible because if you stay still or leave the pain untreated the complications of rib fractures can then happen, such as pneumonia, which is the most common problem".
As to the extent to which the complainant was affected by her rib fractures, the complainant's evidence was that, when the appellant kicked her with his boots, she felt her ribs aching and she could not breathe. Evidence was called from Dr Elizabeth Christie, a qualified medical practitioner attached to the sexual assault resource centre. Dr Christie had examined the complainant in relation to the complaint of sexual assault. Her evidence was that the complainant complained of pain in her chest when she breathed in and when she coughed and Dr Christie was unable to examine her properly because the complainant found it so difficult to move that she could not roll over in bed. This necessitated the administration of 7.5 grams of morphine given for pain relief. Dr Christie's evidence was that there was generalised tenderness over the lower rib cage on both sides and that the complainant required medication for pain relief during her stay in hospital which was for two days.
Neither Dr Mountain nor Dr Christie gave evidence in specific terms that it was likely that, if the complainant had not been given the treatment she received at Sir Charles Gairdner Hospital, she would have developed pneumonia. Neither is this the purport of their evidence. Dr Mountain gave generalised evidence that pneumonia was a "well‑recognised complication" and the "most common" of the various complications that can arise from rib fractures. With respect to the rib fractures in this case, Dr Mountain went no further than to say that they "could have led to pneumonia". This evidence falls well short of proof that pneumonia was likely to afflict the complainant if she had not received the medical treatment which she did receive. Dr Christie's evidence did not take the matter any further. She gave evidence of her assessment of the degree of pain and discomfort from which the appellant was suffering and how this appeared to affect her mobility, but Dr Christie was not asked to and did not give an opinion as to the likelihood of the onset of pneumonia. As this was essentially a medical question - a matter of medical prognosis - the jury were not in a position unaided by medical evidence to come to their own conclusions about it. To do so, would be no more than speculation on their part.
In my view, the evidence was such that the conviction of the charge of grievous bodily harm was so unsafe as to require that it be quashed.
Crown appeal against sentence
This would dispose of the first ground of the Crown's appeal against sentence which was to the effect that the sentence for the conviction of grievous bodily harm should have been made cumulative on the other sentences. There remain, however, grounds 2 and 3 which plead, in effect, that the aggregate sentence was manifestly inadequate, having regard for all the proven circumstances including the violence of the sexual attack on the complainant and the injuries which she did sustain.
The sentencing remarks of the learned Commissioner reveal that, on the face of it, he had regard for all relevant matters and that, on the face of it, he did not overlook the seriousness of the offending or the traumatic effect which it plainly had upon the complainant. In the end, the question is whether the sentence of 5½ years for the violent sexual assault was a sentence so inadequate that the learned Commissioner must have erred at some point in his reasoning. In my opinion, and with great respect to the learned Commissioner, this was a lenient sentence. It is quite common for sentences of 7 to 9 years to be handed down in cases of a single instance of sexual penetration without consent involving violence and it is not unusual for even stiffer sentences to be imposed. It is not easy to see what extenuating circumstances made this case deserving of lesser punishment. However, this is a Crown appeal and it is well‑established that such appeals should be brought only in a "rare and exceptional case" (Everett v The Queen (1994) 181 CLR 295 at 299) and where it is necessary to correct a sentence which is so disproportionate to the seriousness of the crime as to "shock the public conscience" (R v Osenkowski (1982) 30 SASR 212 at 212 ‑ 3. I am not persuaded that this case falls into a category which can be so described. Furthermore, in his final submission to the sentencing Court, counsel for the prosecution practically invited the Court to treat this case as approximate to Wilson v The Queen, unreported; CCA SCt of WA; Library No 950104; 10 March 1995. What he said was:
"In relation to the charges before your Honour, the Crown would say that a significant period of imprisonment is required and it should be served immediately. The Crown would not oppose any parole. In perusing a number of cases that may be relevant to your Honour's consideration the Crown would point your Honour to a case of Wilson v R which is library number 950104, delivered on 10 March 1995. In that case, sir, the accused was charged with two counts of sexual penetration. There was no dep lib or circumstance of aggravation.
In that case the offender was a 33‑year‑old man undertaking a course to train as a prison officer and the complainant was an 18‑year‑old uni student. There was no prior relationship, and the complainant was quite intoxicated on the evening and didn't resist the accused because of the fear that she had. The accused admitted his participation in the offences in the video record of interview but maintained that all the acts were consensual. In that case he had good antecedents and no prior record and very good character references. The court imposed 5 years in relation to the vaginal penetration and the appeal was refused in relation to that count.
The Crown would say that that's indicative of the various sentences that have been considered by the Criminal Court of Appeal [sic] in relation to these types of matters and we would put that before the court as something to be considered."
The sentencing Court was entitled to take guidance from that submission and I think, too, that, in light of the submission, the appellant was entitled to expect that he would not be dealt with much differently from the way in which the offender in that case had been dealt with. These are considerations that may well have influenced the learned Commissioner to decide on a sentence only a little more severe than that imposed in the case of Wilson. This is not without significance when it comes to deciding whether this Court should or should not intervene on a Crown appeal against sentence. It is a matter that may influence an
appeal court not to intervene even if the Court is of the view that the sentence imposed is inadequate: R v Allpass(1993) 72 A Crim R 561 at 562 ‑ 3; R v Clarke [1996] 2 VR 520 at 522. In the latter case, Charles JA (with whom Winneke P and Hayne JA agreed) said (loc cit):
"An appellate court has an over‑riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance."
For these reasons, I would not uphold the Crown appeal against sentence.
PARKER J: For the reasons now published by Anderson J I agree that an extension of time within which to bring his appeal should be granted to the appellant, his appeal against his conviction of the offence of grievous bodily harm should be allowed and that conviction quashed, and his appeal against his conviction of the offence of aggravated sexual penetration should be dismissed.
With regard to the Crown Appeal against the sentences imposed, while the sentences in respect of each of the remaining two convictions, and their total effect, are clearly very lenient and may indeed be regarded as inadequate, for the reasons given by Anderson J this is not a case where any inadequacy is so great as to require this Court to intervene. The position would have been different, in my view, had the conviction for grievous bodily harm not been quashed.
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