Pomana v The State of Western Australia
[2020] WASCA 204
•4 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: POMANA -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 204
CORAM: BUSS P
MITCHELL JA
VAUGHAN JA
HEARD: 23 SEPTEMBER 2020
DELIVERED : 4 DECEMBER 2020
FILE NO/S: CACR 117 of 2019
BETWEEN: OUENI POMANA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: FIANNACA J
File Number : INS 70 of 2018
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted after trial of manslaughter - Sentence of 9 years' imprisonment - Parity principle - Manifest excess
Legislation:
Criminal Code (WA), s 280
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr D N Ryan |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Chelmsford Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Al Jrood v The State of Western Australia [2016] WASCA 73
Armstrong v The State of Western Australia [2013] WASCA 290
Beard v The State of Western Australia [2015] WASCA 74
Billing v The State of Western Australia [No 2] [2008] WASCA 11
Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176
Colledge v The State of Western Australia [2007] WASCA 211
Dodd v The State of Western Australia [2013] WASCA 80
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Harvey v The State of Western Australia [2015] WASCA 250
Heaton v The State of Western Australia [2013] WASCA 207; (2013) 234 A Crim R 409
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hishmeh v The State of Western Australia [2012] WASCA 183
I (a child) v The State of Western Australia [2006] WASCA 9
Impicciatore v The State of Western Australia [2020] WASCA 33
Jardim v The State of Western Australia [2011] WASCA 83
LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99
McNamara v The State of Western Australia [2013] WASCA 63
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Churchill [2000] WASCA 230
R v Taudevin [1996] 2 VR 402
Stagno v The State of Western Australia [2015] WASCA 115
Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81
TDO v The State of Western Australia [2018] WASCA 135
The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397
The State of Western Australia v Camus [2014] WASCA 74; (2014) 240 A Crim R 384
The State of Western Australia v Humes [2016] WASCSR 157
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
The State of Western Australia v Walley [2008] WASCA 12
Wicks v The Queen (1989) 3 WAR 372
Wright v The State of Western Australia [2019] WASCA 183
JUDGMENT OF THE COURT:
This is an appeal against sentence.
The appellant and his co-accused, Saimone Kala, were jointly charged on indictment with one count. The count alleged that on or about 5 August 2016, at Newman, the appellant and Mr Kala unlawfully killed Nathan Haynes, contrary to s 280 of the Criminal Code (WA) (the Code).
The appellant and Mr Kala pleaded not guilty.
On 20 March 2019, after a joint trial before Fiannaca J and a jury, the appellant and Mr Kala were convicted as charged.
On 8 July 2019, the appellant and Mr Kala were sentenced as follows:
(a)The appellant was sentenced to 9 years' imprisonment. A parole eligibility order was made. The sentence was backdated to 20 March 2019.
(b)Mr Kala was sentenced to 7 years 6 months' imprisonment. A parole eligibility order was made. The sentence was backdated to 20 March 2019.
The appellant appeals on two grounds. Ground 1 alleges, in essence, that the sentence imposed on the appellant infringed the parity principle. Ground 2 alleges, in essence, that the sentence imposed on the appellant was manifestly excessive.
We would refuse leave to appeal on each ground. The appeal must be dismissed.
The facts and circumstances of the offending
The appellant does not challenge the facts and circumstances of the offending as found by the trial judge in his sentencing remarks. The relevant facts and circumstances are as follows.
On the evening of 5 August 2016, the appellant and Mr Kala had been drinking alcohol. They began drinking at a friend's house in Newman and then continued drinking at the Newman Hotel.
At about 11.30 pm, Mr Haynes arrived at the hotel. The appellant and Mr Kala were there.
By closing time at the hotel, the appellant was very drunk. There was a confrontation between the appellant and another patron, Matthew Taylor. Words were exchanged between them.
Mr Haynes was not involved in that confrontation.
Mr Taylor left the hotel. The appellant began to follow him. However, Mr Kala restrained the appellant. Mr Kala apologised to Mr Taylor.
Mr Taylor and his group of friends moved to the carpark area of the hotel. The appellant and Mr Kala also moved to that area. The appellant repeatedly attempted to approach Mr Taylor. On each occasion, Mr Kala restrained the appellant. Mr Kala physically blocked the appellant's path and sought to persuade him not to pursue the matter with Mr Taylor.
The appellant refused to let the matter go. Instead, he went up to Mr Taylor and threw a punch at him. The punch missed and the appellant fell to the ground. Mr Taylor then removed his shirt in preparation for a fight. He uttered some abusive language at the appellant.
Initially, the conflict between the appellant and Mr Taylor appeared to abate. However, a short time later, the conflict erupted again. The appellant and Mr Taylor engaged in a verbal confrontation. Another patron of the hotel, Jeremy Smith, approached the appellant and Mr Taylor. However, Mr Kala told Mr Smith, in effect, not to intervene. At the time, Mr Kala's intention was to prevent the appellant from being outnumbered.
Nevertheless, Mr Smith did approach the appellant and Mr Taylor. He endeavoured to break up the confrontation. The appellant responded by punching Mr Smith to the jaw. Mr Smith fell backwards and struck the back of his head on the bitumen. He was unconscious for some minutes.
After Mr Smith was punched, Mr Kala punched Mr Taylor to the head. Mr Taylor fell to the ground. He was unconscious for some minutes. Before Mr Kala punched Mr Taylor, he knew that the appellant had punched Mr Smith.
Mr Haynes, who was in the vicinity, went to assist Mr Taylor. However, Mr Haynes became involved in a confrontation with another man, Harrison Cook, who had been at the hotel with Joel Webb and his group of friends. Mr Webb, who also knew Mr Haynes, intervened. Mr Webb put his arms around Mr Haynes and moved him backwards, away from the conflict.
However, while Mr Webb was moving Mr Haynes away from the conflict, Mr Kala approached and punched Mr Haynes to the head with considerable force. Mr Haynes went limp and collapsed to the ground. It is likely that Mr Haynes struck his head on the ground. Mr Haynes was unconscious. He was seriously injured and was not moving.
Within moments, the appellant advanced a few steps towards Mr Haynes and kicked him twice to the head with great force.
As a result of the attack on Mr Haynes by the appellant and Mr Kala, Mr Haynes suffered a tear to his intra-cranial vertebral artery. This resulted in bleeding on his brain and caused his death.
The fatal injury could have been caused by Mr Kala's punch; by Mr Haynes falling to the ground as a result of that punch and striking his head; by the appellant kicking Mr Haynes to the head; or by a combination of two or more of those events. However, the jury was satisfied that each of the appellant and Mr Kala was criminally responsible for the acts of the other and, consequently, both of them had unlawfully killed Mr Haynes.
Mr Haynes was given first aid at the scene. While attempts were being made to resuscitate Mr Haynes, the appellant and Mr Kala left the hotel carpark and returned to the appellant's home. They remained at the appellant's home until police arrived and arrested them in the early hours of 6 August 2016.
The victim impact statements
Mr Haynes' death has had a severe impact upon members of his family. That was apparent from victim impact statements provided by Mr Haynes' step-mother and his sister. Mr Haynes' step-mother described feeling 'shattered' at losing him. She said the 'pain is inconceivable' and 'does not fade as the years go by'. The death of Mr Haynes has caused difficulties within his step-mother's marriage and has required her to obtain psychological counselling. His death has affected her ability to sleep and her mood. She has a tendency to become withdrawn. Mr Haynes' sister said that Mr Haynes' death had caused her to suffer 'anguish, anger, tears, regret, anxiety and stress'. Her distress was amplified by what she described as the 'disgusting and dreadful' manner in which Mr Haynes died.
The trial judge's findings as to the appellant's personal circumstances
The trial judge made findings as to the appellant's personal circumstances as follows:
(a)The appellant was aged 44 at the time of the offending and was aged 47 when sentenced [84].
(b)The appellant was born in Tonga. He migrated to New Zealand at the age of about 17. The appellant had a stable, loving and disciplined upbringing. He has five siblings. His parents are still married and live in New Zealand [85].
(c)Subsequently, the appellant relocated from New Zealand to New South Wales. In 2010 he commenced employment in Western Australia. The appellant is not an Australian citizen [86].
(d)The appellant was first married at the age of 21. The marriage produced four children who are aged between 15 and 21. The marriage ended when the appellant was aged 29. He then married his current wife. His wife and children continue to support him [87].
(e)The appellant was educated to university level in New Zealand. He was awarded a bachelor's degree in psychology and a master's degree in counselling [88].
(f)The appellant has had a stable employment history. In New Zealand he ran his own spray painting business and managed night clubs. The appellant was employed as a counsellor for Pacific Islanders. In Sydney he was the operations manager for a trucking business. The appellant worked for five years in Port Hedland as a mental health coordinator. He then worked in the aged care area within the Western Desert region. Since 2017, after the offending, the appellant has been employed as a pathways advisor at the Jigalong Aboriginal Community [90].
The trial judge's findings as to the aggravating features of the appellant's offending
The trial judge found that there were a number of aggravating features of the appellant's offending, as follows:
(a)The appellant was the aggressor who was responsible for starting the fight and for escalating the fight to a deadly confrontation [63].
(b)The appellant's motive in starting the fight and escalating the fight to a deadly confrontation was to exact retribution against Mr Taylor [63].
(c)The appellant persisted in escalating the conflict despite Mr Taylor and his group of friends walking away and keeping to themselves and despite other people endeavouring to calm the appellant [63].
(d)The appellant deliberately kicked Mr Haynes with significant force to the head while Mr Haynes was lying on the ground and vulnerable. The appellant kicked Mr Haynes in the knowledge that Mr Haynes was already injured as a result of the forceful punch inflicted by Mr Kala. The appellant's actions in kicking Mr Haynes were gratuitous and demonstrated a callous disregard for his life [64].
(e)The appellant and Mr Kala left the hotel carpark shortly after attacking Mr Haynes. They did not remain and assist Mr Haynes despite knowing that Mr Haynes had been seriously injured. Although the appellant knew that medical assistance for Mr Haynes was being provided by others, the conduct of the appellant and Mr Kala after attacking Mr Haynes demonstrated a callous disregard for what might happen to Mr Haynes [70].
(f)The offending involved alcohol‑fuelled violence and was a serious case of its kind [71].
(g)The offending was committed in a public area outside the hotel while a large number of people were in the vicinity [72]. Offences of this kind can have a profound impact on innocent bystanders [73].
The trial judge's findings as to the mitigating factors in relation to the appellant's offending
The trial judge found a number of mitigating factors in relation to the appellant's offending as follows:
(a)The appellant had generally been a person of prior good character and had made a positive contribution to the community [94].
(b)In 2009 the appellant had been convicted of common assault in New South Wales, but otherwise had no relevant criminal history [95]. He had no entrenched history of violence.
(c)The appellant had attended 17 formal counselling sessions relating to substance abuse. It was to the appellant's credit that he had taken responsibility for his rehabilitation by addressing his abuse of alcohol [98] ‑ [99]. That boded well for the appellant's future [101].
(d)The appellant had expressed remorse for his offending and empathy for Mr Hayne's family. However, the appellant did not have the mitigation that a plea of guilty would have brought. He had not accepted responsibility for his offending conduct. However, his Honour accepted that the appellant felt sorry for the loss suffered by Mr Hayne's family [103].
(e)The appellant was at a low risk of reoffending. Personal deterrence remained relevant, but was less significant than it would otherwise have been [104].
(f)The appellant had a significant degree of community and family support [105].
The trial judge's findings as to Mr Kala's personal circumstances
The trial judge made findings as to Mr Kala's personal circumstances as follows:
(a)Mr Kala was aged 26 at the time of the offending and was aged 29 when sentenced [106].
(b)Mr Kala was born in New Zealand. He was one of four children. His parents' relationship ended when he was aged 9. Mr Kala's father was an alcoholic. Mr Kala witnessed his father inflicting violence on his mother. The father still resides in New Zealand and Mr Kala has some contact with him [107].
(c)When he was aged 9, Mr Kala moved with his mother from New Zealand to New South Wales. Mr Kala lived with his mother in New South Wales for several years. He then returned to New Zealand to live with his father. Subsequently, Mr Kala returned to Australia and resided with his mother in Victoria. In 2008 Mr Kala moved to Perth and in 2010 he moved to Newman [108].
(d)Mr Kala attended school until year 10. Since leaving school he has been employed in various capacities including as a fruit picker, a tradesman, a factory worker and a retail worker. Since 2017 he has worked in Newman for a mining subcontractor. Mr Kala had worked previously for the Ashburton Aboriginal Corporation as a supervisor and driver [109].
(e)Mr Kala has had two significant personal relationships. The first lasted four years. The second is a current relationship with his wife. This relationship began about three years ago. Mr Kala and his wife have a young son [111].
The trial judge's findings as to the aggravating features of Mr Kala's offending
The trial judge found that there were a number of aggravating features of Mr Kala's offending as follows:
(a)Mr Kala punched Mr Haynes in the knowledge that the appellant had been the aggressor who was responsible for starting the fight [65].
(b)Mr Kala punched Mr Haynes to the head with tremendous force and without warning. Mr Haynes was not looking at Mr Kala and did not know that the punch was about to be inflicted. Mr Haynes was practically defenceless at the time [66].
(c)Mr Haynes was considerably smaller in stature than Mr Kala [68].
(d)When Mr Kala punched Mr Haynes, he knew that Mr Smith and Mr Taylor had already been punched to the ground and were no longer involved in the fight. At that time, Mr Kala and the appellant outnumbered Mr Haynes [69].
The trial judge's findings as to the mitigating factors in relation to Mr Kala's offending
The trial judge found that there were a number of mitigating factors in relation to Mr Kala's offending as follows:
(a)Mr Kala had a good work history. His employer had spoken positively about Mr Kala and was willing to continue to support Mr Kala when he was released. A former employer had described Mr Kala as hard working and having a friendly, helpful and kind disposition. His Honour said that Mr Kala's work history, and the fact that he had employment prospects upon his release from custody, boded well for his rehabilitation [109] ‑ [110].
(b)Mr Kala had recognised that alcohol had played a significant part in his offending conduct. He had decreased his alcohol consumption and intended to continue to reduce his alcohol consumption when he was released from prison [114].
(c)The authors of a number of written references described Mr Kala as a loving, kind and caring man who worked hard for his family [116].
(d)Mr Kala had a relatively short criminal history. However, he had a prior conviction for common assault and three prior convictions for criminal damage. Mr Kala's criminal record did not aggravate his offending, but he did not have 'the full mitigating benefit of prior good character' [118] ‑ [119].
(e)Mr Kala was 'quite honest' in his electronically‑recorded interview with police. He admitted having a history of involvement in fights when he was adversely affected by alcohol. Although Mr Kala's honesty was to his credit, there was a significant need for personal deterrence. However, that need had to be weighed against the fact that on the night in question Mr Kala had tried to maintain the peace [119].
(f)Mr Kala was genuinely saddened by and remorseful for his actions. He was deeply ashamed of his involvement in the offending conduct [120].
The trial judge's findings as to the moral culpability of the appellant compared to the moral culpability of Mr Kala
The trial judge made findings as to the moral culpability of the appellant compared to the moral culpability of Mr Kala in relation to the offending.
His Honour observed that although the appellant and Mr Kala were equally responsible at law for causing Mr Hayne's death, there was a distinction between the appellant's moral culpability compared to Mr Kala's moral culpability that was sufficient to warrant a difference in the sentences to be imposed on them. In particular, his Honour held that the appellant's moral culpability was greater than Mr Kala's for the following reasons:
(a)The appellant started the trouble inside the hotel by his 'offensive comment to the women who were with Mr Taylor' [20], [57].
(b)The appellant instigated the violence. He was motivated by a desire to fight Mr Taylor [20], [57].
(c)The appellant persisted in wanting to fight Mr Taylor despite Mr Kala and others endeavouring to stop him [20], [57].
(d)The appellant's persistence in wanting to fight eventually drew Mr Kala 'into the fray' [58].
(e)The appellant made the 'callous' decision to kick Mr Haynes to the head when Mr Haynes was very vulnerable. His actions were 'brutal and cowardly' [59]. Although Mr Kala was criminally responsible for that action, he did not make a deliberate decision to kick Mr Haynes as he lay on the ground [59].
(f)At the start of the incident, Mr Kala made a genuine effort to prevent the appellant becoming involved in a violent confrontation. Indeed, Mr Kala apologised for the appellant's conduct in the hotel. Ultimately, Mr Kala was drawn into the confrontation out of a misguided loyalty to the appellant [60].
(g)In all the circumstances, although Mr Kala's assault on Mr Haynes was unprovoked and reprehensible, his moral culpability was less than that of the appellant [61].
Counsel for the appellant's submissions on ground 1
As we have mentioned, ground 1 alleges, in essence, that the sentence imposed on the appellant infringed the parity principle.
Counsel for the appellant submitted that there was no material difference in the moral culpability of the appellant compared to Mr Kala for the following reasons:
(a)Both the appellant and Mr Kala were drunk on the night in question.
(b)Although the appellant instigated the violence, there was no evidence that he encouraged, cajoled or even requested Mr Kala to assist him in the fight.
(c)Although the appellant struck Mr Smith, knocked him to the ground and rendered him unconscious, there was no need for Mr Kala to then strike Mr Taylor. At that stage, the appellant was capable of defending himself and any fight would have been 'fair' and 'one on one' between the appellant and Mr Taylor.
(d)Mr Kala punched both Mr Taylor and Mr Haynes in the knowledge that the appellant was responsible for starting the fight.
(e)There was no reason for Mr Kala to strike Mr Haynes. At the time of the incident, Mr Webb was escorting Mr Haynes from the scene. Mr Haynes did not pose a threat to anyone. It could equally be said that Mr Kala's punch was 'brutal and cowardly', especially when Mr Haynes was not expecting it and had no means of defending himself.
(f)On Mr Kala's descriptions of the incident to the police, Mr Kala punched Mr Haynes with all of his force and did so in the knowledge of the potentially lethal consequences of such violence. Mr Kala was well aware of the campaign concerning 'coward punches'.
(g)Mr Haynes was considerably smaller in stature than Mr Kala. At one time, Mr Haynes had trained to be a jockey. The disparity in their physical sizes must have been obvious to Mr Kala.
(h)Although the appellant threw the first punch, 'overall' Mr Kala was the first person to assault Mr Haynes.
(i)There was no evidence that the appellant attempted, intended or contemplated attacking Mr Haynes before Mr Kala's assault on Mr Haynes.
(j)When Mr Kala punched Mr Haynes, he did so in the knowledge that Mr Smith and Mr Taylor had already been knocked to the ground and he therefore knew that he and the appellant outnumbered Mr Haynes.
(k)Mr Kala's level of aggression was greater than that of the appellant because Mr Kala sought to continue fighting after he had punched Mr Haynes, and the appellant had endeavoured to restrain Mr Kala.
(l)Both Mr Kala and the appellant left the scene without rendering assistance to Mr Haynes.
(m)The verdicts of the jury demonstrated that each of Mr Kala and the appellant was criminally responsible for the acts of the other in assaulting Mr Haynes.
(n)The actions of Mr Kala in punching Mr Haynes and the actions of the appellant in kicking Mr Haynes were of such a character that Mr Haynes' death was a reasonably foreseeable consequence of the actions of each of them.
(o)Both Mr Kala and the appellant participated in alcohol‑fuelled violence in a public place and in the presence of a number of people.
(p)There was nothing of significance in the personal circumstances and antecedents of Mr Kala or the appellant that would carry any weight or warrant different sentences, especially in view of the seriousness of the offence for which they were convicted.
According to counsel for the appellant, there was little to distinguish between the respective roles of Mr Kala and the appellant in committing the offence and there was otherwise no material difference between them to justify the disparity in the sentences imposed.
The merits of ground 1
The parity principle requires that the sentences imposed upon co‑offenders be proportionate to the co‑offenders' respective degrees of culpability, to the aggravating and mitigating factors that apply to each of them and to their personal circumstances and antecedents. The sentences imposed upon co‑offenders must reflect any differences between them in relation to those matters. As Brennan J noted in Lowe v The Queen:[1]
The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co‑offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case.
[1] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 617.
The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe (609 ‑ 610); Postiglione v The Queen;[2] R v Taudevin.[3] The applicable test is objective not subjective.
[2] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ).
[3] R v Taudevin [1996] 2 VR 402, 404 (Callaway JA; Winneke P agreeing).
The application and effect of relevant sentencing principles must be taken into account in determining whether the parity principle has been infringed. See Jardim v The State of Western Australia.[4]
[4] Jardim v The State of Western Australia [2011] WASCA 83 [12] - [13] (McLure P; Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. See Lowe (609). But parity of sentencing does not require the imposition of a sentence that is wholly inadequate having regard to the facts and circumstances of the offence and the criminality of the offender or a sentence that is so lenient as to be an affront to the proper administration of justice. See I (a child) v The State of Western Australia;[5] Billing v The State of Western Australia [No 2];[6] Green v The Queen.[7]
[5] I (a child) v The State of Western Australia [2006] WASCA 9 [66] (Steytler P; McLure JA agreeing).
[6] Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P; McLure JA agreeing).
[7] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [33] (French CJ, Crennan & Kiefel JJ).
In Green, French CJ, Crennan and Kiefel JJ said:
(a)the parity principle is based upon the norm of 'equality before the law' [28];
(b)equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28];
(c)equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28]; and
(d)the parity principle allows for different sentences to be imposed upon like offenders to reflect 'different degrees of culpability and/or different circumstances' [28].
Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co‑offender has played in the relevant criminal conduct or enterprise. See Green [31].
A sentencing judge's application of the parity principle involves a qualitative and discretionary judgment. See Green [32].
In the present case, ground 1 does not allege that the trial judge made any express error in his findings of fact for the purposes of sentencing.
In our opinion, it was open to his Honour to conclude, generally for the reasons he gave, that the appellant's culpability was materially greater than Mr Kala's and that, consequently, a higher sentence should be imposed on the appellant.
The trial judge's application of the parity principle as between the appellant and Mr Kala is supported by the following matters:
(a)The appellant instigated the violence in circumstances where he was responsible for initiating the confrontation inside the hotel.
(b)The appellant was persistent in wanting to fight despite the efforts of Mr Kala and others to stop him.
(c)The appellant's persistence resulted in Mr Kala joining the violence out of a misguided sense of loyalty to the appellant.
(d)The appellant made a deliberate decision, characterised by his Honour as 'callous', to kick Mr Haynes with great force to the head twice while Mr Haynes lay defenceless on the ground. The appellant's actions involved a substantial escalation in the extent of the violence which had already been inflicted on Mr Haynes. His Honour's description of the appellant's actions as 'brutal and cowardly' was appropriate.
(e)The appellant's conduct involved a greater degree of violence towards Mr Haynes than Mr Kala's conduct. Also, Mr Haynes was more vulnerable when the appellant kicked him than Mr Haynes was when Mr Kala struck him.
In our opinion, the factors to which we have referred, in combination, explain and justify (having regard to all relevant facts and circumstances and all relevant sentencing factors relating to the appellant and Mr Kala) the disparity between the sentence of 9 years' imprisonment imposed on the appellant and the sentence of 7 years 6 months' imprisonment imposed on Mr Kala.
We are satisfied, after evaluating and weighing all relevant facts and circumstances and all relevant sentencing factors relating to the appellant and Mr Kala, that the extent of the disparity in the sentencing outcome between them did not infringe the parity principle or the principle of equal justice. The disparity between the sentence imposed on the appellant and the sentence imposed on Mr Kala was not such as to give rise to a legitimate or justifiable sense of grievance on the appellant's part or to give the appearance in the mind of an objective observer that justice was not done as between the appellant and Mr Kala, or generally. The disparity was not unreasonable or plainly unjust.
Ground 1 fails.
Counsel for the appellant's submissions on ground 2
As we have mentioned, ground 2 alleges, in essence, that the sentence imposed on the appellant was manifestly excessive.
Counsel for the appellant relied, in particular, upon this court's decision in Al Jrood v The State of Western Australia[8] and the first instance decision in The State of Western Australia v Humes.[9]
[8] AlJrood v The State of Western Australia [2016] WASCA 73.
[9] The State of Western Australia v Humes [2016] WASCSR 157.
Counsel submitted that, having regard to the differences between the facts and circumstances of the appellant's offending, on the one hand, and the facts and circumstances of the offending in AlJrood and Humes and the sentences imposed on the offenders in those cases, on the other, the appellant's sentence of 9 years' imprisonment was unreasonable or plainly unjust.
The merits of ground 2
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
The discretion conferred on sentencing judges is, of course, of fundamental importance. This court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
Since the commencement of the Manslaughter Legislation Amendment Act 2011 (WA) on 17 March 2012, the maximum penalty for manslaughter has been life imprisonment. Previously, the maximum penalty was 20 years' imprisonment.
There is no sentencing tariff for manslaughter because of the great variation that is possible in the circumstances of the offending and the offenders. Each case must be decided on its own facts. See Wicks v The Queen;[10] Colledge v The State of Western Australia;[11] The State of Western Australia v Walley.[12]
[10] Wicks v The Queen (1989) 3 WAR 372, 379 ‑ 380 (Malcolm CJ).
[11] Colledge v The State of Western Australia [2007] WASCA 211 [17] (Wheeler JA, Owen & Miller JJA agreeing).
[12] The State of Western Australia v Walley [2008] WASCA 12 [32] (Wheeler & Miller JJA).
The great variation in these circumstances explains the difficulty in discerning sentencing patterns for manslaughter. As Wheeler JA (Owen & Miller JJA agreeing) noted in Colledge:
A person convicted of manslaughter may have had an intent to kill or do grievous bodily harm, but have formed it in circumstances where there was provocation; or may be acting in self-defence, although excessively; may have been so affected by substances of one kind or another as to be incapable of forming any clear intention; may suffer from a mental illness falling short of insanity; or may have been culpably negligent in the management of either a motor vehicle or some other thing. That list is by no means exhaustive, but one can see why there is much variation in sentencing. The University of Western Australia Crime Research Centre Report (UWA Crime Research Centre, Crime and Justice Statistics for Western Australia (2004) table X, p 73) demonstrates that, between 1996 and 2004, there was considerable variation in the median sentence for manslaughter; in 1998, it was as low as 4 years, while, in 1997, it was 8 years [18].
So, manslaughter is, of its nature, an offence where the facts and circumstances of each case will usually differ significantly. See Walley [32]. Wheeler and Miller JJA pointed out in Walley [32] that comparisons with sentences imposed at trial, and even in the case of R v Churchill[13] (after appeal), are seldom helpful in manslaughter cases.
[13] R v Churchill [2000] WASCA 230.
Sentences for manslaughter should, however, reflect the value which Parliament has placed on human life. See Taylor v The State of Western Australia;[14] Walley [32].
[14] Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81 [54] (Miller JA; Owen & Wheeler JJA agreeing).
The maximum penalty for the offence committed by the appellant is life imprisonment. The effect of the increase in the maximum penalty from 20 years' imprisonment to life imprisonment was examined in The State of Western Australia v Auckram.[15] An increase in the maximum penalty for an offence is an indication that sentences for the relevant offence should be increased. However, as noted in Marshall v The State of Western Australia,[16] the sentences customarily imposed for the offence of manslaughter had in fact increased before the increase in the maximum penalty pursuant to the amending legislation.
[15] The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397 [120] - [127] (Buss JA).
[16] Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99 [49] (Martin CJ; Hall J agreeing), [126] (Buss JA).
We have considered numerous prior cases of offending against s 280 of the Code when the maximum penalty was 20 years' imprisonment. See, in particular, The State of Western Australia v Munda;[17] Hishmeh v The State of Western Australia;[18] McNamara v The State of Western Australia;[19] Dodd v The State of Western Australia;[20] Heaton v The State of Western Australia;[21] Armstrong v The State of Western Australia;[22] The State of Western Australia v Camus;[23] Stagno v The State of Western Australia;[24] and Harvey v The State of Western Australia.[25]
[17] The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137.
[18] Hishmeh v The State of Western Australia [2012] WASCA 183.
[19] McNamara v The State of Western Australia [2013] WASCA 63.
[20] Dodd v The State of Western Australia [2013] WASCA 80.
[21] Heaton v The State of Western Australia [2013] WASCA 207; (2013) 234 A Crim R 409.
[22] Armstrong v The State of Western Australia [2013] WASCA 290.
[23] The State of Western Australia v Camus [2014] WASCA 74; (2014) 240 A Crim R 384.
[24] Stagno v The State of Western Australia [2015] WASCA 115.
[25] Harvey v The State of Western Australia [2015] WASCA 250.
We have also considered numerous prior cases of offending against s 280 of the Code since the maximum penalty was increased to life imprisonment. See, in particular, Auckram; Beard v The State of Western Australia;[26] Marshall; Al Jrood; LCM v The State of Western Australia;[27] Liyanage v The State of Western Australia;[28] Brewerton v The State of Western Australia;[29] and TDO v The State of Western Australia.[30]
[26] Beard v The State of Western Australia [2015] WASCA 74.
[27] LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1.
[28] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359.
[29] Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176.
[30] TDO v The State of Western Australia [2018] WASCA 135.
It is unnecessary to reproduce the facts and circumstances of the prior cases we have considered or the sentencing outcomes. There are some comparable features between some of the prior cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
In the present case, counsel for the appellant's reliance on AlJrood is misplaced. It is trite that a single decision of this court cannot and does not, of itself, establish or reveal the standards of sentencing customarily observed with respect to an offence. The sentencing outcome in Al Jrood cannot and does not establish or reveal that the sentence imposed on the appellant in the present case was manifestly excessive.
Counsel for the appellant's reliance on the first instance decision in Humes is also misplaced. Intermediate appellate courts have regard to comparable cases to ensure consistency in the application of relevant legal principles and to ensure broad consistency in outcome. In the case of offences against the law of Western Australia, this is done through the work of this court and its predecessor, the Court of Criminal Appeal, and not by reference to sentences passed at first instance. See Hili v The Queen;[31] Wright v The State of Western Australia;[32] Impicciatore v The State of Western Australia.[33]
[31] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [56] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
[32] Wright v The State of Western Australia [2019] WASCA 183 [29] (Buss P & Mazza JA).
[33] Impicciatore v The State of Western Australia [2020] WASCA 33 [279] (Buss P & Mazza JA).
It is significant, in the present case, that the appellant did not have the mitigation that a plea of guilty would have brought. He did not accept responsibility for his offending conduct. Also, the appellant was not youthful or inexperienced for sentencing purposes.
There were, of course, a number of mitigating factors, but the objective nature and quality of the appellant's offending conduct was very serious.
We are satisfied, after taking into account:
(a)the differences in the facts and circumstances of the previous sentencing decisions of this court in relation to offending against s 280 of the Code (especially since the maximum penalty was increased to life imprisonment);
(b)the sentencing variables in those cases; and
(c)the fact that there is no single correct sentence,
that the term of 9 years' imprisonment imposed by the trial judge on the appellant was broadly consistent with the sentencing pattern revealed by the previous cases.
In our opinion, the sentence of 9 years' imprisonment was not manifestly excessive. In other words, when the sentence is viewed from the perspective of the maximum penalty (life imprisonment), and after taking into account all relevant facts and circumstances and all relevant sentencing factors, including:
(a)the objective seriousness of the offence;
(b)the extreme vulnerability of Mr Haynes when the appellant kicked him;
(c)the general pattern of sentencing for manslaughter;
(d)the place which the appellant's criminal behaviour occupies on the scale of seriousness of offences of this kind;
(e)the importance of appropriate punishment and general deterrence as sentencing considerations;
(f)the aggravating factors and the mitigating factors mentioned by his Honour;
(g)the appellant's personal circumstances and antecedents; and
(h)all other relevant sentencing considerations,
the sentence of 9 years' imprisonment was not unreasonable or plainly unjust.
We would not imply or infer error from the sentencing outcome.
Ground 2 fails.
Conclusion
We would refuse leave to appeal. The appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss4 DECEMBER 2020
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