Penny v The Queen

[2002] WASCA 235

PENNY -v- THE QUEEN [2002] WASCA 235

Reported Decision:	(2002) 26 WAR 475
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 235
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:173/2001	Heard:	1 AUGUST 2002
Coram:	WALLWORK J MURRAY J STEYTLER J	Delivered:	28/08/02
No of pages:	11	Judgment Part:	1 of 1
Result:	Leave to appeal refused
Category:	A
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Parties:	JASON JAMES PENNY THE QUEEN
Catchwords:	Criminal law and procedure Sentencing Threat to kill Threat by words and attempt to wound victim Finding that applicant intended to cause significant injury Whether finding could be considered as an aggravating factor Sentence of 5 years imprisonment Sentence not manifestly excessive
Legislation:	Criminal Code (WA), s 338B Sentencing Act 1995 (WA), s 7(3)
Case References:	Diefenbach v The Queen [1999] WASCA 4 Langridge v The Queen (1996) 17 WAR 346 R v De Simoni (1981) 147 CLR 383 R v Starr [1999] WASCA 119 Tracey v The Queen (1999) 20 WAR 555 Jarvis v The Queen (1993) 20 WAR 201 Lowndes v The Queen (1999) 195 CLR 665 R v Legg, unreported; CCA SCt of WA; Library No 980305; 9 April 1998 Smith v The Queen, unreported; CCA SCt of WA; Library No 960742; 20 December 1996

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : PENNY -v- THE QUEEN [2002] WASCA 235 CORAM : WALLWORK J

MURRAY J
STEYTLER J

HEARD : 1 AUGUST 2002 DELIVERED : 28 AUGUST 2002 FILE NO/S : CCA 173 of 2001 BETWEEN : JASON JAMES PENNY

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Threat to kill - Threat by words and attempt to wound victim - Finding that applicant intended to cause significant injury - Whether finding could be considered as an aggravating factor - Sentence of 5 years imprisonment - Sentence not manifestly excessive

Legislation:

Criminal Code (WA), s 338B

Sentencing Act 1995 (WA), s 7(3)

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Result:

Leave to appeal refused

Category: A

Representation:

Counsel:

Applicant : Mr M J Aulfrey
Respondent : Mr K P Bates

Solicitors:

Applicant : Ian Hope
Respondent : State Director of Public Prosecutions

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

Diefenbach v The Queen [1999] WASCA 4
Langridge v The Queen (1996) 17 WAR 346
R v De Simoni (1981) 147 CLR 383
R v Starr [1999] WASCA 119
Tracey v The Queen (1999) 20 WAR 555

Case(s) also cited:

Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen (1999) 195 CLR 665
R v Legg, unreported; CCA SCt of WA; Library No 980305; 9 April 1998
Smith v The Queen, unreported; CCA SCt of WA; Library No 960742; 20 December 1996

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1 WALLWORK J: I agree with the reasons for judgment of Murray J and with the conclusions which his Honour has reached.

2 MURRAY J: This application for leave to appeal is against a sentence of 5 years imprisonment with parole eligibility imposed by L A Jackson DCJ following the applicant's conviction by a jury of an offence of making a threat to kill a person named Kubale. The application is made upon the sole ground that the sentence was manifestly excessive in all the circumstances concerning the nature of the offence and personal to the offender.

3 On the day when the offence was committed the applicant was with another person at a block of units in Coolbellup. He became involved in an altercation with a woman who lived there, Kubale's sister. She telephoned Kubale and another brother and they came to the units. They became involved with the applicant. He broke off the contact and went to a unit occupied by a friend. The Kubale brothers came looking for him and found him. The applicant was intoxicated. He took two large knives, or one knife and a sharpening steel, from his friend's unit and what then occurred was described by Jackson J as follows:

"You set upon the complainant. He tried to run away. You tripped him and you threatened him with the knives. You either knelt on him or sat on him holding the knives above his head, threatening to kill him. The complainant managed to avoid being injured by holding onto your wrists otherwise I am satisfied beyond reasonable doubt that had he not been strong enough he would indeed have suffered a significant injury. It seems you were disturbed by one of your friends and the complainant managed to escape."

4 I note that his Honour referred to the threats "with the knives" but in truth Jackson J did not make a finding that there were two large knives rather than one knife and a sharpening steel. His Honour said it did not concern him to make that finding because the steel was "still a significant weapon." Further the manner in which the threat to kill was made is noteworthy. It appears that there were verbal threats but there was also the threat obviously inherent in the applicant's conduct. A significant finding is the conclusion that had the victim not been able to hold off the applicant's attack he would had suffered "significant injury". Indeed, his Honour concluded that it was:

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"… difficult to imagine a worse case of a threat to kill. This is a case in which you had the present intention to inflict significant injury. You had the ability to carry that out and you threatened in a most violent and aggressive manner and indeed that seems to have been the manner in which you had been conducting yourself during the whole of this particular evening."

5 The conclusion of by Jackson J that the applicant intended to inflict significant injury and, in effect, that he was, by the conduct which constituted the threat to kill, attempting to carry out that intention, was reached upon the appropriate standard of persuasion beyond reasonable doubt: Langridge v The Queen (1996) 17 WAR 346. That was undoubtedly an aggravating fact and was treated as such by his Honour.

6 The question arose at the hearing of the application whether the sentencing Judge was entitled to have regard to that intention or whether to do so would be tantamount to sentencing the applicant for an offence of which he had not been charged or convicted. In my opinion, Jackson J was entitled to have regard to the intention of the applicant as an aggravating circumstance.

7 The offence of making a threat is defined by the Criminal Code s 338B. The threat may by s 338 be "a statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting, a threat" to do various things. In this case, it was both by his statement and his behaviour that the applicant made the threat. Where the threat is to kill, the crime is punishable by imprisonment for 7 years. In any other case it is punishable by imprisonment for 3 years. To make a statement or convey information indicating that there is a threat, but which the offender knows to be false, is an offence defined in s 338C, punishable by 3 years imprisonment. That offence is therefore concerned with the case where the threat is deliberately made, but is known to be false. The offender does not intend to carry it out.

8 In the case of the offence defined by s 338B, it would be necessary to prove that the statement or conduct was deliberately performed: Criminal Code s 23, but it would not be necessary to prove that the offender intended to carry out the threat. However, there is a mental element in the offence which flows from the requirement that the willed act of making a threat, by word or deed or both, necessarily involves an intent or purpose to intimidate or overcome the will of the person to whom the threatening behaviour is directed: Tracey v The Queen (1999) 20 WAR 555 per Kennedy J, with whom White J agreed, at 559. In other words, one does

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not make a threat by saying or doing something which in fact is of an intimidatory or overbearing character unless one means what is said or done to have that character – to be a threat.

9 If there is a specific intention to gain a benefit for the offender, cause a detriment to another, cause another to refrain from doing something that person is lawfully entitled to do, or to compel another to do something he need not do, that is an offence described as making a threat with intent to influence, contrary to s 338A, punishable, where the threat is to kill, by imprisonment for 10 years and otherwise by imprisonment for 7 years. Neither the mental element involved in making a threat nor those specific intents relevant to the offence defined by s 338A would necessarily constitute an intention to carry out the threat.

10 In this case it was not the finding of Jackson J that the applicant intended to kill his victim and was attempting to do so. The facts as found would not have amounted to attempted murder contrary to the Code s 283. Nor would a finding that the applicant intended to inflict significant injury necessarily constitute an attempt to commit an offence against s 294, the closest example of which would be an attempt to unlawfully wound or do grievous bodily harm to the victim with intent to do him grievous bodily harm. There was no finding that that was the nature of the applicant's intention. For the same reason, what was found to have occurred would not constitute an assault upon Kubale with intent to do him grievous bodily harm, contrary to s 317A(b). But in any event, unless Kubale was of or over the age of 60 years (in which case the maximum penalty is imprisonment for 7 years), that offence would only be punishable by imprisonment for 5 years. However, on the facts of this case as found by Jackson J it would be open to conclude that the applicant may have committed the more serious offence, punishable by 10 years imprisonment, of making a threat to kill with intent to cause a detriment (significant injury) to Kubale, contrary to s 338A(b) and s 338A(e).

11 What effect could then be given to the finding of fact made by Jackson J about the intention of the applicant? In R v De Simoni (1981) 147 CLR 383 the respondent had been convicted of robbery. Under s 393 of the Code the offence was punishable by 14 years imprisonment and among other circumstances of aggravation the section provided that the offender would be liable to life imprisonment if the victim of the robbery was wounded or personal violence was otherwise used. In this case the victim had been wounded but that circumstance of aggravation had not been charged in the indictment. The wounding of the victim was

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undoubtedly a "circumstance of aggravation" as defined by the Code s 1(1) to mean:

"… any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance."

At that time s 582 of the Code included the provision:

"If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment."

12 At 389 Gibbs CJ referred to the fundamental principle of the common law, which his Honour said was reflected in s 582, that no-one should be punished for an offence of which he has not been convicted. His Honour concluded:

"… that a Judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."

That of course was an observation made in the context of provisions of the Code concerned with the requirement to charge circumstances of aggravation where the Crown proposed to rely upon them. His Honour recognised that in such a case the sentencing Judge would be required "to take an artificially restricted view of the facts." (392). Mason and Murphy JJ agreed.

13 Wilson J dissented. At 395 - 396 his Honour said:

"The primary rule is that the Judge must sentence the prisoner for the offence of which he has been convicted. He must not, even though the actual sentence may be within the range allowed for that offence, sentence for some other more serious offence which he is satisfied has been committed. On the other hand, the Judge is not only entitled but bound to take into consideration the circumstances surrounding the offence of which the prisoner has been convicted, so long as those circumstances are not inconsistent with the plea or verdict. But he must not punish the prisoner for additional offences with which he has not been charged."

(Page 7)

His Honour concluded that neither those general principles, nor s 582, imposed upon the Judge the duty to ignore the wounding of the victim while evaluating the violence used. Brennan J expressed the same view at 407.

14 De Simoni was referred to by this Court in the recent case of Diefenbach v The Queen [1999] WASCA 4. In that case the applicant was charged originally with two federal offences; the importation of a quantity of MDMA or ecstasy and being knowingly concerned in such an importation made by others. She entered a fast track plea of guilty to the charge of importation and the Crown filed a nolle prosequi of the second charge that she was knowingly concerned in the importation by others.

15 That created a difficulty for sentencing purposes because, on the facts as found, the applicant was held to have played a role in co-ordinating the whole importation. She was not simply being a courier of the drug which she brought into the country. That role, it was held, would cause her culpability to be regarded as being somewhat aggravated in respect of her own importation but the Court appreciated that it must take care not to punish her for her importation as if she had also been convicted of being knowingly concerned in the importation by the others.

16 In so holding, as I have said, Malcolm CJ, with whom Ipp J agreed, referred to De Simoni but did not particularly rely upon it. However, Steytler J expressly relied upon De Simoni in holding that the sentencing Judge had not had regard to the applicant's role in recruiting other couriers and organising them so as to sentence her "because of her involvement in the offences committed by her fellow offenders" (par [41]), but:

"Rather, as it seems to me, his Honour drew a distinction between the applicant's degree of criminality, in respect of the offence of which she was convicted, and that of her fellow offenders, in respect of the offence of which each of them was convicted, by reference to the fact that the applicant was an importer of prohibited drugs at a higher level on the scale than her fellow offenders. She was a person with an organisational role unlike each of the other offenders who were mere (and I use that word only in a comparative sense) couriers." [42]

17 While his Honour regarded the distinction between that situation and sentencing the applicant for an offence of which he had not been convicted as perhaps a fine one, it seems to me to be, with respect, a perfectly clear and appropriate way by which a sentencing Court is enabled to have regard to all the facts and circumstances relevant to

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sentencing an offender for the offence of which he or she has been convicted while not making the obvious error of principle of imposing a sentence which in truth punishes the offender for an offence of which he or she has not been convicted.

18 With respect, it is unnecessary to reach that point by relying upon De Simoni, which had in this State a relatively brief period as an authoritative decision because, by amendments made to the Code by the Acts Amendment (Criminal Penalties and Procedure) Act 1982, the law of this State was changed in significant respects relevant to the reasoning of the High Court in De Simoni. In the first place that portion of s 582 relied upon by the majority was deleted. It was no longer the case that a circumstance of aggravation within the meaning of that term in s 1 of the Code had to be charged in the indictment before it could be "relied upon".

19 Further, s 656 of the Code was amended by adding a paragraph, which in my opinion would bring the provisions of the Code more into line with the common law, as follows:

"When considering the sentence proper to be passed the Court may have regard to a circumstance of aggravation whether or not that circumstance has been charged in the indictment but, notwithstanding any other provision of this Code, if the circumstance has not been charged in the indictment the Court shall not impose on the offender a punishment that is greater than that to which he would have been liable if the offence had been committed without the existence of that circumstance."

20 That provision remained in the Code until s 656 was repealed and re-enacted to bring it into its present form, as a consequence of the enactment of the Sentencing Act 1995, by the Sentencing (Consequential Provisions) Act 1995 s 26. The present state of the law in this State is represented by the Sentencing Act s 7(3) which provides:

"If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then -

(a) an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and

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(b) whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors."

It is of no moment for the purpose of these reasons to consider whether that provision had application in respect of the sentencing of offenders such as Diefenbach for federal offences.

21 In the final result it seems to me that Jackson J was perfectly entitled, indeed obliged, to make a finding of the kind that he did with respect to the applicant's intention to inflict significant injury upon Kubale. That was not a statutory circumstance of aggravation, but it was an aggravating factor relevant to sentencing the applicant for the offence of making a threat to kill of which he had been convicted. There is nothing to suggest that his Honour did indeed sentence the applicant as if he had been convicted of the more serious offence under s 338A of the Code. His Honour properly, in my respectful opinion, regarded this case, in the circumstances to which I have referred, as being a particularly serious example of an offence against s 338B, having regard to the applicant's intention and to the fact that the threat was made "in a most violent and aggressive manner".

22 On the other hand, Jackson J did not overlook such mitigation as was to be found in the applicant's personal circumstances. His Honour commented upon the fact that although there was a lengthy record of previous convictions, it did not contain many convictions for offences of violence. The trial Judge referred to the fact that the applicant was in a stable relationship. There was a letter before the Court expressing his partner's support and her appreciation of the applicant's qualities as a father.

23 His Honour had regard to a pre-sentence report which he thought expressed some hope that remedial intervention might effect an improvement in the applicant's behaviour. I must say that I would, for myself, have had some reservations about that. The report said that the applicant would require assistance "to help him take responsibility for his actions and learn new strategies or coping mechanisms to implement in his life." It seems to me that that observation was related to the statement made earlier in the report that the applicant felt no remorse for what occurred, but rather felt that he was provoked and justified in acting as he did. It was said that he had displayed only limited insight into his offending behaviour and its causes.

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24 The Crown appeal in R v Starr [1999] WASCA 119 was a not dissimilar case to this where the threat to kill was accompanied by a violent attack upon the victim, which might have had a tragic consequence, as may have been the case here. Starr was, I think, a more serious case because the target of the threat was a terrified 9-year-old girl. The Crown's appeal against a sentence of 2 years imprisonment succeeded and the sentence was increased to one of 5 years to be served cumulatively upon sentences for other offences. It must be borne in mind of course that that was a Crown appeal and subject on the re-sentencing to special considerations on that account. Malcolm CJ, with whom Ipp and White JJ agreed, said at par [14]:

"In relation to the offence under s 338B of the Criminal Code, it is the making of the threat which constitutes the gravamen of the offence. The offence itself does not require any intention to actually carry out the threat, but if such an intention is established, that is an aggravating factor which is of relevance to the sentence to be imposed. See R v Turner, unreported; CCA SCt of WA; Library No 920662; 4 December 1992 per Murray J at 5."

25 In my opinion, in this case Jackson J was right to regard the applicant's personal circumstances as having little mitigatory power. His Honour was also right, in my respectful opinion, to regard this as a particularly serious example of making a threat to kill. I refer to the circumstances as the trial Judge found them to be. His Honour correctly, in my view, had regard to the finding he made about the applicant's intention as an aggravating factor. For my part, I can discern nothing to indicate that his Honour's discretion miscarried in any way and I am unable to accept the contention that the sentence of 5 years imprisonment with parole eligibility was manifestly excessive. I would dismiss the application for leave to appeal.

26 STEYTLER J: I have had the advantage of reading the reasons for decision of Murray J.

27 I would prefer to leave for another day the question of the application, in this State, of what was said by the majority in R v De Simoni (1981) 147 CLR 383 to cases in which uncharged aggravating circumstances are taken into account by a sentencing Judge where those circumstances, when taken together with the offence charged, amount to a more serious offence than that with which the defendant was actually

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charged. The point was not raised by the grounds of appeal in this case and nor was it fully argued.

28 It seems to me that I am able to put this issue to one side, because, even if the applicant's intention, as found by the sentencing Judge, is not taken into account, the sentence of 5 years' imprisonment with eligibility for parole was entirely appropriate. I do not consider that any different sentence should, even then, have been imposed and that, of itself, provides a sufficient basis for dismissing the application for leave to appeal: s 689(3) of the Criminal Code.

29 This was, as Murray J has said, a particularly serious case. The applicant physically set upon the complainant, tripped him and then physically and verbally threatened him with a knife and a sharpening steel. The circumstances of the threat were such that the complainant must have been terrified that his life was in imminent danger. In these circumstances, more fully outlined in the reasons for judgment of Murray J, it seems to me that the sentence imposed was entirely reasonable, even given the mitigatory factors taken into account by the sentencing Judge.

30 I would consequently dismiss the application for leave to appeal.