Penny v The State of Western Australia
[2016] WASCA 52
•23 MARCH 2016
PENNY -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 52
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 52 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:87/2015 | 21 DECEMBER 2015 | |
| Coram: | McLURE P MAZZA JA CORBOY J | 23/03/16 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal on ground 2 Appeal allowed Sentence imposed by trial judge set aside Appellant resentenced to 6 years imprisonment | ||
| B | |||
| PDF Version |
| Parties: | RUSSELL GRAHAM PENNY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Assault on police officer likely to endanger life, health or safety with intent to harm Intention to harm Manifest excess Turns on own facts |
Legislation: | Criminal Code (WA), s 304 Criminal Code Amendment Act 2004 (WA) |
Case References: | Beard v The State of Western Australia [2015] WASCA 74 Blurton v The State of Western Australia [2014] WASCA 61 Delavale v The State of Western Australia [2009] WASCA 111 Fenton v The State of Western Australia [2015] WASCA 255 Hinkley v The State of Western Australia [2014] WASCA 122 Lawrence v The State of Western Australia [2015] WASCA 187 Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610 Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 The State of Western Australia v BLM (2009) 40 WAR 414 The State of Western Australia v Ellement [2016] WASCA 1 The State of Western Australia v Penny [2015] WASCSR 73 The State of Western Australia v Wallam [2008] WASCA 117 Yates v The State of Western Australia [2008] WASCA 144 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PENNY -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 52 CORAM : McLURE P
- MAZZA JA
CORBOY J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MITCHELL J
File No : INS 198 of 2014
Catchwords:
Criminal law - Appeal against sentence - Assault on police officer likely to endanger life, health or safety with intent to harm - Intention to harm - Manifest excess - Turns on own facts
Legislation:
Criminal Code (WA), s 304
Criminal Code Amendment Act 2004 (WA)
Result:
Leave to appeal on ground 2
Appeal allowed
Sentence imposed by trial judge set aside
Appellant resentenced to 6 years imprisonment
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr J A Scholz
Solicitors:
Appellant : Hammond Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Beard v The State of Western Australia [2015] WASCA 74
Blurton v The State of Western Australia [2014] WASCA 61
Delavale v The State of Western Australia [2009] WASCA 111
Fenton v The State of Western Australia [2015] WASCA 255
Hinkley v The State of Western Australia [2014] WASCA 122
Lawrence v The State of Western Australia [2015] WASCA 187
Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
The State of Western Australia v BLM (2009) 40 WAR 414
The State of Western Australia v Ellement [2016] WASCA 1
The State of Western Australia v Penny [2015] WASCSR 73
The State of Western Australia v Wallam [2008] WASCA 117
Yates v The State of Western Australia [2008] WASCA 144
1 McLURE P: This is an appeal against sentence. The appellant was convicted after trial of one count that he, with intent to harm Michael
Richard Williams, did an act as a result of which the life, health or safety of Mr Williams was, or was likely to be, endangered contrary to s 304(2)(b) of the Criminal Code (WA) (the Code).
2 On 29 April 2015, the appellant was sentenced by Mitchell J, who had been the trial judge, to a term of imprisonment of 9 years.
3 The first ground of appeal, for which leave has been granted, is that the sentence is manifestly excessive. The second ground of appeal, for which the application for leave was referred to the hearing of the appeal, is in the following terms:
The sentencing discretion miscarried when [the sentencing judge] determined to sentence the appellant on the basis that although he did not intentionally discharge the firearm, he did intend the natural consequences of [his] acts.
4 The facts are taken from the sentencing judge's reasons in The State of Western Australia v Penny [2015] WASCSR 73. The complainant was a Sergeant in the Western Australian police force. At about 12.30 am on 29 November 2013, Sergeant Williams and Constable Needs were completing a random breath test of a person travelling south on Albany Highway in the Shire of Boddington. Their attention was drawn to a white coaster bus, driven by the appellant, travelling north on Albany Highway. Sergeant Williams noted that a tail light on the bus was broken. The police officers got into their vehicle, did a U-turn and travelled north on Albany Highway to intercept the appellant's bus.
5 The police officers followed the bus without engaging lights and sirens. The bus stopped on the left hand side of Albany Highway, in a position that Sergeant Williams considered to be dangerous. Sergeant Williams pulled the police vehicle alongside the bus and Constable Needs wound down the window and spoke to the appellant who said he had stopped because he needed to relieve himself. Constable Needs informed the appellant to go to a truck stop 50 or 60 m up the road.
6 The bus pulled into the truck stop. Sergeant Williams parked behind the bus and activated the police vehicle's roof top spot lights. Sergeant Williams' intention was to subject the driver of the bus to a random breath test, a licence check and a serviceability check on the bus, which was an old make and model. After getting out of the police vehicle, Constable Needs walked down the left side of the bus and Sergeant Williams walked down the driver's side of the bus.
7 Upon arriving at the driver's door, Sergeant Williams introduced himself and Constable Needs and informed the appellant they were from the Williams Police Station and of the reasons he had been stopped. The appellant informed Sergeant Williams that he needed to relieve himself. Becoming suspicious, Sergeant Williams asked the appellant whether there was anything in his vehicle that he wished to declare, such as drugs, firearms, medication or large amounts of cash, to which the appellant responded no.
8 By this time, Constable Needs was standing by Sergeant Williams. Both police officers asked for the appellant's driver's licence, which he produced to Sergeant Williams, who passed it onto Constable Needs. She went to check the licence details on the police vehicle's computer system.
9 Sergeant Williams asked the appellant to get out of the bus. The appellant said he was going to leave through the back door. Sergeant Williams shone his torch into the bus but could not see inside because of curtains on the right and rear windows. Sergeant Williams went around to the side rear door of the bus and pushed the door which opened inwards. The appellant came out of the bus saying again that he had to relieve himself. While in the back of the bus the appellant had obtained a sawn-off 410 shotgun and hidden it under the clothes he was wearing. The appellant then walked to a nearby bush and began urinating.
10 By this stage, Constable Needs had checked the appellant's driver's licence and saw various alerts which caused her concern for the safety of Sergeant Williams. She saw the appellant and Sergeant Williams walking into the bush area and followed with her torch.
11 The appellant had hoped to dispose of the gun in the bush, but did not have an opportunity to do so because both police officers were shining their torches in his direction. As he walked back to the police officers, the appellant had his hands in his pockets or under his shirt. Sergeant Williams was concerned that the appellant was concealing something and told the appellant to stand in front of the bus, where he would be searched. Sergeant Williams repeatedly requested the appellant to show his hands. The appellant refused to do so and requested the police officers to go ahead of him to the police car. The appellant was told to go to the front of the police car. He walked down the dark left side of the bus towards the police car. After again asking the appellant to show his hands, Sergeant Williams reached to grab the appellant's hand. The appellant began to resist violently. Sergeant Williams pushed the appellant towards the bus and then fired a taser into the small of his back. The appellant went to ground, turned around and then got back up. Sergeant Williams squeezed the taser trigger again but it did not work. He began reloading the taser. The appellant, who was angry and yelling, attempted to walk past Constable Needs, who grabbed his shirt with her right hand and hit him with her left fist. At this time the appellant's right hand was free but his left hand was still in his pocket. The appellant then swung around in the direction of Sergeant Williams and pulled the shotgun out of the left hand side of his shorts, saying that the police were going to find it anyway.
12 Constable Needs drew her firearm and began shouting at the appellant to drop the gun. Sergeant Williams ran in and grabbed the gun, which the appellant was continuing to hold. A violent struggle for the gun followed. The gun was going from side to side and at times was pointed at Sergeant Williams' face. Sergeant Williams, repeatedly screaming at the appellant to drop the gun, could not break the appellant's grip and feared he would be shot.
13 Constable Needs holstered her firearm and ran at the appellant in an attempt to take his feet out from underneath him. Both the appellant and Sergeant Williams fell to the ground near the rear bumper of the bus and continued struggling for the gun. Constable Needs used her right knee to lean in on the appellant's neck or head area and attempted to reach and take one of the appellant's hands off the gun. She got one of his hands off the gun for a split second but could not hold onto it and the appellant's hand went back to the gun area. Sergeant Williams grabbed the gun and the appellant's hand and began to slam his hand and the gun into the dirt to get the appellant to release his grip. The firearm was moving across Sergeant Williams' face from left to right. The gun went off about 10 to 15 cm from Sergeant Williams' face. Sergeant Williams then felt he was losing his grip and screamed to Constable Needs to shoot the appellant. The appellant and Sergeant Williams continued fighting for control of the gun.
14 When Constable Needs heard the shotgun go off she thought Sergeant Williams had been shot. The gun was then pushed into Constable Needs' face, just under her cheek bone. She braced herself for the gun to go off but it did not. Constable Needs pulled out her firearm and shot the appellant in his stomach area. She made a conscious decision not inflict a fatal injury to his head. Sergeant Williams was able to take control of the gun after a few seconds. Constable Needs radioed for assistance and then administered first aid to the appellant until medical assistance arrived.
15 The appellant was aged 45 at the time of the offence. The sentencing judge found that he had not demonstrated any remorse, had no empathy for the victims of his offending and no insight into the causes of his offending. The sentencing judge also took into account, as aggravating factors, the significant adverse impact the offence had on both Sergeant Williams and Constable Needs and the fact that they were performing an important public function. The appellant had a lengthy record of prior offending, including for murder, threat to kill, causing grievous bodily harm, sexual penetration without consent, deprivation of liberty and dishonesty and drug offences.
16 The sentencing judge took into account, as mitigating factors, that the appellant was an aboriginal man who had been dealt challenges and disadvantages not faced by members of the broader community and that he had sustained a serious abdominal injury in the course of the offending. The sentencing judge accepted the psychiatric evidence that the appellant's risk of reoffending was at the higher end of the spectrum.
Legal principles
17 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error from the sentence itself. The sentence must be shown to be unreasonable or plainly unjust. In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
18 Sentences 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 both reveal and reflect.
19 It is appropriate to determine ground 2 before addressing the claim of manifest excess.
Ground 2 - the appellant's intent
20 The intent with which the appellant acted is an important matter in the assessment of the seriousness of the offence. The sentencing judge referred to that subject on a number of occasions. Before going to his reasons it is necessary to understand the statutory framework.
21 Section 304(2) of the Code relevantly provides:
If a person, with an intent to harm, omits to do any act that it is the person's duty to do, or does any act, as a result of which -
(a) bodily harm is caused to any person; or
(b) the life, health or safety of any person is or is likely to be endangered,
the person is guilty of a crime and is liable to imprisonment for 20 years.
22 The test of whether, as a result of an act, the life, health or safety of a person is or is likely to be endangered is objective.
23 Section 304(3) defines the expression 'an intent to harm' in s 304(2) relevantly as follows:
For the purposes of subsection (2) an intent to harm is an intent to -
(a) unlawfully cause bodily harm to any person; or
(b) unlawfully endanger the life, health or safety of, any person; or
…
(f) prevent or hinder the doing of an act by a person who is lawfully entitled to do that act.
24 The requirement in s 304(2) of 'an intent to harm' is subjective. For s 304(3)(b), the prosecution has to prove that the appellant intended to unlawfully endanger the life or health or safety of Sergeant Williams. The intention must be to actually endanger the life, health or safety of a person, not intend that there be a risk of endangering a person. Endanger means to expose to danger or to imperil.
25 The sentencing judge made the following findings:
I find that you did intend to endanger the life, health and safety of Sergeant Williams. You must have appreciated that waving a loaded modified shotgun in Sergeant Williams' face endangered his life, and I find that you intended that natural consequence of your acts. I also find that you intended to prevent Sergeant Williams from doing an act he was lawfully entitled to do, namely conduct a search of you and the bus, administer a random breath test to you and conduct an examination of the bus for roadworthiness [42] (emphasis added).
26 The sentencing judge also found that the appellant intended to use the gun to escape from the police officers [43]. The sentencing judge continued:
The life, health and safety of Sergeant Williams were clearly endangered by your struggle with a loaded sawn-off shotgun, the barrel of which passed across Sergeant Williams' face on a number of occasions. Your conduct also put yourself and Constable Needs in very significant danger. The prospect that someone would be killed by your conduct was very real [44].
27 The sentencing judge returned to the subject of the appellant's intent, saying:
I am not satisfied, beyond reasonable doubt, that you intentionally discharged the shotgun. Forensic testing of the weapon revealed that it could discharge, even with its safety catch on, if struck on the butt end. Given that Sergeant Williams was slamming the firearm into the dirt in an attempt to make you release it just before the weapon discharged, it is reasonable to think that the shotgun might have discharged without the trigger being pulled. I therefore sentence you on the basis that you did not intentionally discharge the firearm. However, the fact that it went off is merely a manifestation of the obvious danger posed by pointing the loaded weapon at Sergeant Williams, which you appreciated [44].
28 Later again, the sentencing judge said:
You intended to unlawfully endanger the life of Sergeant Williams. You did, in fact, place his life in serious danger, it being a matter of good fortune that he was not killed or seriously injured when your gun discharged. Your victim was a police officer on duty, whose life you chose to endanger in order to avoid offences being detected [62]. (emphasis added)
29 There is no presumption in criminal law that a person intends the natural and probable consequences of his acts: Stapleton v The Queen (1952) 86 CLR 358, 365. Intention must be an inference, beyond reasonable doubt, on all the evidence.
30 It can be inferred from the reasons that the gun's safety catch was on. There is no finding (and no evidence to support a finding to the requisite standard) that the appellant did not know the safety catch was on or believed it was off or knew the gun could discharge with the safety catch on or otherwise than by pulling the trigger. In the absence of any such finding, the appellant could not intend to endanger the life, health or safety of Sergeant Williams by the discharge of the gun. The sentencing judge's finding to that effect in [44] and [62], which must be established beyond reasonable doubt because it is aggravating, is erroneous. That leaves the finding of an intent to harm within s 304(3)(f). I would grant leave to appeal and uphold ground 2.
31 That error enlivens this court's power to allow the appeal and resentence the appellant. However, for the sake of completeness I will briefly consider the claim of manifest excess.
Manifest excess
32 Section 304 of the Criminal Code was inserted by the Criminal Code Amendment Act 2004 (WA) which came into operation on 21 May 2004. Since that time, there have been a limited number of appeals against sentence for an offence against s 304(2) of the Code, which covers a wide variety of conduct of widely differing levels of seriousness. That is important when considering whether a case is relevantly comparable for consistency purposes.
33 In The State of Western Australia v Wallam [2008] WASCA 117, the appellant pleaded guilty to a charge under s 304(2)(a) of the Code, being to cause bodily harm. He was sentenced on the basis that his intent to harm was an intent to do bodily harm. The appellant deliberately drove his car at the complainant with the intention and effect of causing bodily harm. He had a lengthy criminal record, was not remorseful and came from a seriously disadvantaged and deprived background. He was resentenced on appeal, to which the double jeopardy principle applied, to 3 years imprisonment.
34 In Yates v The State of Western Australia [2008] WASCA 144 the offender was convicted after trial of an offence against s 304(2)(a) of the Code. He deliberately drove his car at the complainant, who suffered bodily harm. He too was sentenced on the basis that he had an intention to cause bodily harm. The offender had a good employment history, no record of relevant prior offending and had reacted in the face of significant provocation. He was resentenced on appeal to 3 years imprisonment.
35 In The State of Western Australia v BLM (2009) 40 WAR 414, the 27-year-old offender was convicted after trial of an offence against s 304(2)(a) of the Code. He caused bodily harm to an off duty police officer who was acting in the course of his duty, hitting him on the leg, face, head and body with what is described in the reasons as a stick. The offender's intention was to cause bodily harm. The complainant suffered severe injuries and significant ongoing disabilities. The respondent resentenced on appeal to 6 years imprisonment.
36 In Blurton v The State of Western Australia [2014] WASCA 61, the offender, who entered a very late plea of guilty, was convicted of an offence against s 304(2)(a) of the Code. He used a picket to hit an off duty policeman on the head from behind, causing a 3 cm laceration. The offender was aged 26 at the time of the offence and had a significant prior record. A sentence of 18 months imprisonment was upheld on appeal.
37 In Hinkley v The State of Western Australia [2014] WASCA 122, the offender pleaded guilty to an offence against s 304(2)(b) of the Code. She deliberately drove her car at the complainant, who suffered bruising and grazing to her body, continuing back pain and psychological injuries. The offender was aged 25, suffered from mental illness, and had no relevant record of convictions. A sentence of 30 months imprisonment was upheld on appeal.
38 In Delavale v The State of Western Australia [2009] WASCA 111, the offender pleaded guilty to an offence against s 304(2)(b) of the Code. He inflicted a sustained and vicious assault on a woman with intent to inflict significant harm. The extensive injuries are graphically described in the judgment. The victim died at least seven hours after the assault. The offender was sentenced on the basis that he was not legally responsible for her death. The case was described as being at the upper end of the scale of seriousness. The offender was aged 25 at the time of the offence and had a prior record of offending. His appeal against his sentence of 7 years 6 months imprisonment was dismissed.
39 In Lawrence v The State of Western Australia [2015] WASCA 187, the offender was convicted after trial of an offence against s 304(2)(b) of the Code. The offender punched the complainant in the back of his head, causing him to fall to the ground. Whilst on the ground and lapsing in and out of consciousness, the appellant and a co-offender kicked and stomped on the vulnerable and defenceless complainant. The complainant suffered significant injuries which required hospitalisation and had residual effects. The offender was aged 34 at the time of the offence, had a lengthy criminal history and intended to, and did, inflict bodily harm. An appeal against his sentence of 5 years imprisonment was dismissed.
40 In Beard v The State of Western Australia [2015] WASCA 74, the offender was convicted on his late plea of guilty of an offence against s 304(2)(b) of the Code. Under the influence of methylamphetamine, the offender, without justification, rammed his vehicle into the side of another vehicle and then pursued that vehicle and rammed into it again on two further occasions. The offender was aged 33 and had a significant record of prior offending. A sentence of 3 years 1 month's imprisonment was upheld on appeal.
41 The sentence imposed on the appellant is consistent with that imposed in Delavale and significantly higher than any other sentence imposed to date. The offending in Delavale is significantly more serious than in this case. Even if the appellant had intended to endanger the life of Sergeant Williams, the sentence is still very high. It is at a level that is not uncommon for the offences of manslaughter and doing grievous bodily harm with intent. In the absence of an intent to endanger life, the sentence is clearly manifestly excessive.
Resentencing
42 Although Sergeant Williams did not suffer any bodily injury as a consequence of the appellant's offending, it is clear he believed that his life was in fact in danger. Having regard to his state of knowledge, the belief was reasonable. The experience would have been both deeply traumatic and frightening. In assessing the seriousness of the offence, regard can be had to the potential, as distinct from the actual, consequences to a person's life, health or safety of the offender's conduct. Thus, regard can be had to the risk to life and limb from the gun accidentally discharging in the course of the affray. Based on the results of forensic testing, the objective risk of the gun accidentally discharging was significant. The seriousness of the offending is also aggravated by the fact that the victim was a police officer acting in the course of his duties. Having regard to all relevant sentencing considerations, I would impose a sentence of 6 years imprisonment.
Conclusion
43 For these reasons, I would grant leave to appeal on ground 2, allow the appeal, set aside the sentence imposed by the trial judge and in lieu thereof impose a sentence of 6 years imprisonment, with parole eligibility after 4 years imprisonment.
44 MAZZA JA: I have taken a different view to McLure P and Corboy J as to the outcome of this appeal. I would dismiss it.
45 All of the relevant factual background has been set out in their Honours' reasons. I will deal with ground 2 first.
Disposition of ground 2
46 An offence contrary to s 304(2) of the Criminal Code (WA) (the Code) contains both subjective and objective elements. The subjective element is the intent to harm which accompanies an accused's act or his or her omission to do an act. The objective element is the result of the accused's act or omission being results stipulated in s 304(2)(a) or s 304(2)(b).
47 The prosecution may prove the subjective element by proving that the accused had one or more of the intentions set out in s 304(3) of the Code. Relevant to this appeal are the intentions in s 304(3)(b) and s 304(3)(f), namely:
(b) [to] unlawfully endanger the life, health or safety of, any person; or
…
(f) [to] prevent or hinder the doing of an act by a person who is lawfully entitled to do that act; or
…
48 The primary judge found that, at the time the shotgun discharged, the appellant intended to both:
(a) unlawfully endanger the life of Sergeant Williams; and
(b) prevent Sergeant Williams from doing an act he was lawfully entitled to do; namely, conducting a search of the appellant and the bus, administering a random breath test to the appellant, and conducting an examination of the bus for roadworthiness [42].
49 In addition (although not an intention specified in s 304(3) of the Code), his Honour found that the appellant intended to use the shotgun to escape from the police officers [43].
50 There is no challenge to the primary judge's conclusion that the appellant had the intention specified in s 304(3)(f) of the Code. The real question posed by ground 2 is whether, on the evidence, it was open to his Honour to conclude beyond reasonable doubt that the appellant had the intention specified in s 304(3)(b), namely, to unlawfully endanger Sergeant Williams' life. In my opinion, it was open to his Honour to so conclude.
51 Sergeant Williams' life was endangered by the loaded shotgun being discharged. Although it hardly needs to be said, a loaded firearm is a potentially lethal weapon which must be handled with great care. The risk that the loaded shotgun could somehow discharge during the appellant's violent resistance to Sergeant Williams' attempts to disarm him was patently obvious and could not have been lost on the appellant. This, coupled with the persistence and level of violence used by the appellant to resist the police officers' efforts, allowed his Honour to properly draw the inference, beyond reasonable doubt, as to the existence of the intention to endanger Sergeant Williams' life, health and safety. Although I would grant leave to appeal on ground 2, the ground has not been made out.
Disposition of ground 1
52 In order for the appellant to make out ground 1, he must establish that the sentence of 9 years' imprisonment was unreasonable or plainly unjust. In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence; the standards of sentencing customarily observed, and the place which the criminal conduct occupies on the scale of seriousness, for that type of offence; and the personal circumstances of the offender.
53 The maximum penalty for an offence contrary to s 304(2) of the Code is 20 years' imprisonment.
54 As McLure P points out, there have been a limited number of appeals against sentence for an offence contrary to s 304(2) of the Code. Because of this, and the varying circumstances of the cases, no sentencing pattern emerges. Nevertheless, the sentence imposed in the present case is higher than in any previous case decided by this court in respect of this offence. Of course, this fact alone is not necessarily determinative of the appeal. Comparable cases do not fix the boundaries within which judges must, or even ought to, sentence. Rather, they are a yardstick for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect: The State of Western Australia v Ellement [2016] WASCA 1 [38] (Mazza JA) and Fenton v The State of Western Australia [2015] WASCA 255 [17] (McLure P). Ultimately, each case must be decided on its own facts and circumstances.
55 In my opinion, the facts of the present case were extremely serious. This is illustrated by the combination of the following:
(a) The appellant was in possession of an illegal sawn-off loaded shotgun.
(b) Prior to its production, the appellant took steps to conceal the shotgun from the police.
(c) When the shotgun was produced, the appellant disobeyed the police officers' lawful instructions to drop it.
(d) When Sergeant Williams sought to take the shotgun from the appellant's possession, the appellant violently resisted.
(e) In the course of this resistance, the appellant engaged in a persistent and violent struggle with Sergeant Williams which involved the loaded shotgun being waved from side to side whilst being pointed in Sergeant Williams' direction and, at times, directly at his head.
(f) The extreme dangerousness of the situation was obvious and was intended by the appellant.
(g) The shotgun was discharged a matter of centimetres from Sergeant Williams' head. He was extremely fortunate not to have been killed.
(h) The discharge of the shotgun did not cause the appellant to give up its possession. The appellant maintained his struggle for the shotgun, during which it was placed against Constable Needs' face.
(i) The appellant only desisted when Constable Needs shot him in the abdomen.
(j) Sergeant Williams and Constable Needs were, at all times, acting in the execution of their lawful duty. They were also, to some extent, vulnerable, being by themselves in an isolated rural location at night without ready backup.
(k) Although neither Sergeant Williams nor Constable Needs suffered any long-lasting physical injury, it is clear from their victim impact statements that the events on the night in question have taken a heavy psychological toll on them.
56 At the time of the offence, the appellant was 45 years of age. He ceased formal education at the end of year 8 and has four children. He has a very serious criminal history comprising a number of convictions for violence, including murder and sexual assault. The primary judge found that the appellant was not remorseful for what he had done; had no empathy for his victims; and had no insight as to the causes of his offending behaviour. A psychiatric report provided to his Honour found that the appellant had an antisocial personality disorder, and that his risk of reoffending was at the higher end of the spectrum. Against this background, the primary judge concluded, in substance, that personal deterrence was a significant sentencing factor.
57 There were only two mitigating factors. First, the appellant is an Aboriginal man who has been dealt challenges and disadvantages not faced by many members of the broader community. Second, the appellant suffered a serious abdominal injury as a result of being shot.
58 A particularly serious aspect of the offending is that the victim of the offence was a police officer acting in the execution of his duty. The use of a firearm against police officers performing their lawful duty significantly elevates the appellant's criminality. General deterrence was a matter of great importance in the present case. Personal deterrence and the protection of the wider community were also matters of great importance given the appellant's history of violence, his personality disorder and his lack of insight into the causes of his offending.
59 The sentence imposed upon the appellant is undoubtedly high. However, in my opinion, it is justified, having regard to all the circumstances of the case. I have not been persuaded that the sentence is unreasonable or plainly unjust. Ground 1 has not been made out.
Conclusion and orders
60 In my opinion, neither of the grounds of appeal has been made out. The appeal must be dismissed.
61 The orders that I would make are as follows:
1. Leave to appeal is granted on ground 2.
2. The appeal is dismissed.
62 CORBOY J: The appellant was convicted following trial of the charge that he, with intent to harm Michael Richard Williams, did an act as a result of which the life, health or safety of Sergeant Williams was, or was likely to be, endangered contrary to s 304(2)(b) of the Criminal Code (WA). He was sentenced to 9 years' imprisonment and made eligible for parole.
63 The appellant appeals against sentence. I agree with McLure P that the appeal should be allowed for the reasons that follow. I also agree that the appellant should be resentenced to a term of imprisonment of 6 years and that a parole eligibility order should be made.
Section 304(2)
64 Section 304(2) of the Code provides that:
If a person, with an intent to harm, omits to do any act that it is the person's duty to do, or does any act, as a result of which -
(a) bodily harm is caused to any person; or
(b) the life, health or safety of any person is or is likely to be endangered,
the person is guilty of a crime and is liable to imprisonment for 20 years.
65 Section 304(3) provides that, for the purposes of s 304(2), an intent to harm is an intent to, among other things, unlawfully endanger the life, health or safety of any person or to prevent or hinder the doing of an act by a person who is lawfully entitled to do that act.
66 The result of the omission or the act done by the accused for the purpose of s 304(2) is to be objectively determined. However, the prosecution is required to prove the accused's actual intention. The accused's state of mind is, of course, a matter of inference. As the President has noted, a finding that the appellant intended to unlawfully endanger the life, health or safety of Sergeant Williams was an aggravating factor for the purpose of sentencing. Accordingly, the State was required to prove that the only reasonable inference to be drawn from the facts found by the jury's verdict and by the sentencing judge was that the appellant acted with that intention.
The sentencing judge's findings
67 The sentencing judge identified the acts done by the appellant for the purpose of s 304(2)(b) as 'waving a loaded modified shotgun in Sergeant Williams' face' [42]; struggling with Sergeant Williams with a loaded sawn-off shotgun, 'the barrel of which passed across Sergeant Williams' face on a number of occasions' [44] and pointing a loaded weapon at Sergeant Williams [47]. The shotgun was discharged during the struggle between the appellant and Sergeant Williams. Plainly, the appellant's acts in producing the gun and struggling with Sergeant Williams for control of the gun endangered and were likely to endanger the life, health and safety of Sergeant Williams.
68 As to the appellant's intent, the sentencing judge found:
I find that you did intend to endanger the life, health and safety of Sergeant Williams. You must have appreciated that waving a loaded modified shotgun in Sergeant Williams' face endangered his life, and I find that you intended that natural consequence of your acts. I also find that you intended to prevent Sergeant Williams from doing an act he was lawfully entitled to do, namely conduct a search of you and the bus, administer a random breath test to you and conduct an examination of the bus for roadworthiness.
I also find that you intended to use the gun to escape from the police officers. If that was not your intention, there could have been no purpose in your continuing to struggle with Sergeant Williams for the gun after it had been detected. I infer from your persistent struggle that you sought to obtain control of the gun to use it to escape from the police officers [42] - [43].
69 The sentencing judge further found that he was not satisfied, beyond a reasonable doubt, that the appellant intentionally discharged the shotgun. His Honour stated:
Forensic testing of the weapon revealed that it could discharge, even with its safety catch on, if struck on the butt end. Given that Sergeant Williams was slamming the firearm into the dirt in an attempt to make you release it just before the weapon discharged, it is reasonable to think that the shotgun might have discharged without the trigger being pulled. I therefore sentence you on the basis that you did not intentionally discharge the firearm. However, the fact that it went off is merely a manifestation of the obvious danger posed by pointing the loaded weapon at Sergeant Williams, which you appreciated [47].
The evidence about the operation of the shotgun
70 The reference to forensic testing of the weapon was to evidence given by a police officer specialising in firearms examination, Senior Constable Powell, about the results of a drop test performed on the shotgun. The purpose of the test was to determine whether the firing mechanism could resist a reasonable impact on the butt of the gun. Three drop tests were conducted and, on each occasion, the right-hand barrel of the gun discharged with the safety catch on (ts 287). Senior Constable Powell agreed that the gun could discharge if it hit the ground - there was a 'very good chance' it would discharge if it struck the ground butt first (ts 288).
71 Senior Constable Powell further explained that the safety catch would automatically be pushed to the safe position after the shotgun had been opened, loaded with cartridges and closed (ts 290) (the gun was loaded with one cartridge at the time that it discharged during the struggle between the appellant and Sergeant Williams). Consequently, it was necessary to move the safety catch forward to the off position before firing the gun (ts 290). Senior Constable Powell concluded that the safety mechanism for the right-hand barrel of the gun was faulty or worn (ts 292). The gun otherwise operated normally so that a person using the gun would not know that the safety mechanism was faulty unless they had dropped the gun on its butt and it had discharged (ts 293). The gun passed the other safety tests performed by Senior Constable Powell.
72 Sergeant Williams gave detailed and graphic evidence of his struggle with the appellant for control of the shotgun. There was no suggestion in that evidence that the appellant had moved or had attempted to move the safety catch before or during the struggle. It also appeared from Sergeant Williams' evidence that the appellant was not in a position during the struggle to get a hand onto or near the trigger. The gun was discharged after being deliberately banged on the ground by Sergeant Williams in an attempt to force the appellant to release his hold on the gun (the appellant had one hand on the gun at the time) (ts 71).
Proposed ground 2
73 There is no presumption in criminal law that a person intends the natural or reasonable consequences of his or her acts: Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 and Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610, 632. As I have indicated, the State was required to prove the appellant's actual state of mind; his intention could not be presumed.
74 In my view, the evidence did not establish beyond a reasonable doubt that the appellant intended to endanger the life, health or safety of Sergeant Williams when he did the acts identified by the sentencing judge (waving the loaded gun and struggling with Sergeant Williams over the gun - in circumstances where it was the discharge of the gun that actually endangered the life, health and safety of Sergeant Williams). I have reached that conclusion having regard to the following matters:
(a) the safety catch on the gun would have been automatically engaged after it had been loaded (whenever that had occurred);
(b) there was no evidence that the appellant had moved or attempted to move the position of the safety catch immediately before or after producing the gun or during the struggle with Sergeant Williams;
(c) there was also no evidence that the appellant had disengaged the safety catch at some time prior to when his vehicle was stopped;
(d) there was no evidence that the appellant had attempted to reach the trigger of the gun during the struggle with Sergeant Williams;
(e) the gun was discharged when the butt was struck on the ground by Sergeant Williams - it was not discharged by any immediate act done by the appellant;
(f) on Senior Constable Powell's evidence, there was a 'very good chance' that the gun could be discharged if the butt was struck hard on the ground even if the safety catch was engaged;
(g) there was no evidence that the appellant knew that the gun had a faulty safety mechanism and Senior Constable Powell indicated that the appellant would not have known of the fault unless he had previously dropped the gun and it had discharged;
(h) as the sentencing judge found, it was reasonable to infer that the appellant intended, by producing the gun and struggling with Sergeant Williams over possession of the gun, to prevent Sergeant Williams and Constable Needs from searching his vehicle and conducting other investigations that they were lawfully entitled to do.
75 Accordingly, I agree that leave to appeal on proposed ground 2 should be granted, the appeal allowed on that ground and that the appellant should be resentenced on the basis that his intent was to prevent Sergeant Williams and Constable Needs from acting as they were entitled to do once they had stopped the appellant's vehicle (s 304(3)(f)).
Ground 2
76 I agree with the President on ground 2 of the appeal and with her Honour's reasons on that ground.
Resentencing the appellant
77 I agree with the President that the appellant should be resentenced to a term of imprisonment of 6 years and that a parole eligibility order should be made. That sentence reflects the conclusion I have reached on the appellant's intent and the other sentencing factors identified by the President.
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