Purcell v The State of Western Australia

[2025] WASCA 86

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   PURCELL -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 86

CORAM:   MAZZA JA

MITCHELL JA

HALL JA

HEARD:   8 MAY 2025

DELIVERED          :   15 MAY 2025

PUBLISHED           :   12 JUNE 2025

FILE NO/S:   CACR 131 of 2024

BETWEEN:   NATHAN JOHN PURCELL

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

FILE NO/S:   CACR 132 of 2024

BETWEEN:   NATHAN JOHN PURCELL

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   CHRISTIAN DCJ

File Number            :   IND 1100 of 2024

Catchwords:

Criminal law - Appeal against conviction - Grievous bodily harm - Whether plea of guilty was voluntary and informed - Whether appellant understood that he was liable pursuant to s 8 of the Criminal Code - Whether appellant given adequate legal advice - Whether appellant improperly induced to plead guilty - Whether appellant could not in law be guilty of grievous bodily harm on the admitted facts

Criminal law - Appeal against sentence - Grievous bodily harm - Whether failure to take into account provocation as a mitigating factor - Whether appellant's counsel failed to tender relevant material - Whether sentence of 20 months' immediate imprisonment was manifestly excessive

Legislation:

Criminal Code (WA), s 8, s 246, s 247, s 297(1)
Sentencing Act 1995 (WA), s 39(2), s 39(3)

Result:

CACR 131 of 2024
Leave to appeal refused
Appeal dismissed

CACR 132 of 2024
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

CACR 131 of 2024

Counsel:

Appellant	:	G Janssen
Respondent	:	K C Cook

Solicitors:

Appellant	:	Janssen & Maluga Legal Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

CACR 132 of 2024

Counsel:

Appellant	:	G Janssen
Respondent	:	K C Cook

Solicitors:

Appellant	:	Janssen & Maluga Legal Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

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

Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454

Borsa v The Queen [2003] WASCA 254

Boyle v The State of Western Australia [2010] WASCA 97

Brawn v The King [2025] HCA 20

Ellis v The State of Western Australia [2013] WASCA 220

Etrelezis v The Queen [2001] WASCA 327

Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199

Huggins v The State of Western Australia [2018] WASCA 61

Kabambi v The State of Western Australia [2019] WASCA 44

Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209

Kere Kere v The State of Western Australia [2016] WASCA 189

Larsen v The State of Western Australia [2019] WASCA 181

McIntyre v The State of Western Australia [2016] WASCA 150

Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132

Morgan v The State of Western Australia [No 2] [2019] WASCA 185

Nayna v The State of Western Australia [2016] WASCA 169

Peake v The State of Western Australia [2015] WASCA 239

R v Birks (1990) 19 NSWLR 677

Smith v The State of Western Australia [2017] WASCA 73

Snook v The State of Western Australia [No 2] [2015] WASCA 29

The State of Western Australia v Babakarkhil [2022] WASCA 59

The State of Western Australia v Ellement [2016] WASCA 1

The State of Western Australia v Ghilardi [2015] WASCA 61

The State of Western Australia v Mackey [2017] WASCA 204

The State of Western Australia v Saleh [2020] WASCA 205

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

Trompler v The State of Western Australia [2008] WASCA 265

Webster v The Queen [2015] WASCA 20

Wilhelm v The State of Western Australia [2013] WASCA 188

Yaqubi v The State of Western Australia [No 2] [2016] WASCA 187

REASONS OF THE COURT:

1. On 15 May 2025, we made orders dismissing these appeals against conviction and sentence.  The following are our reasons for making those orders.

2. The appellant was convicted on his plea of guilty of one count of unlawfully doing grievous bodily harm contrary to s 297(1) of Criminal Code (WA) (the Code).  He was sentenced to 20 months' immediate imprisonment, backdated to commence on 12 January 2024.  An order was made that he be eligible for parole. 

3. The appellant was sentenced on 27 August 2024.  The last date for appealing was 17 September 2024.  The appeal notices were filed on 5 December 2024.  Accordingly, the appellant required an extension of time in respect of both appeals.  Affidavits filed on behalf of the appellant explain some of the delay, which is relatively short.  In the circumstances we allowed the extensions of time. 

4. The essential issue on the appeal against conviction is whether the appellant's plea of guilty was a voluntary and informed one.  The appellant contends that: he did not understand the nature of the charge; or, the basis upon which he was said to be liable for the grievous bodily harm caused to the victim.  He asserts that his legal counsel failed to give him adequate advice and improperly induced him to plead guilty.  He also asserts that there has been a miscarriage of justice because he could not in law have been guilty of doing grievous bodily harm and that he had an arguable defence to the charge. 

5. In the appeal against sentence, the appellant contends that the sentencing judge failed to take into account provocation as a mitigating factor.  He also asserts that he was not adequately advised or represented by his legal counsel in the sentencing proceedings.  Further, he contends that the sentence imposed was manifestly excessive, both as to type and length. 

6. Both the appellant and the respondent applied to adduce additional evidence on the appeal.  At the hearing of the appeal, the appellant relied on an affidavit he had sworn and gave further oral evidence in support of his appeals against conviction and sentence.  The respondent relied on an affidavit of Ms Abigail Rogers, the appellant's counsel in the primary proceedings, and she was also called at the hearing of the appeal. 

7. The appellant was an unsatisfactory witness.  He was evasive and inconsistent in his answers.  His evidence regarding his interactions with Ms Rogers lacked credibility.  Ms Rogers, on the other hand, gave evidence that was measured and consistent with the objective facts.  We are satisfied on the evidence that the appellant was adequately advised as to the nature of the charge and the basis upon which he was alleged to be liable.  We are also satisfied that the appellant's plea of guilty was voluntarily made by him in circumstances where he understood the effect of that plea.  It is not the case that the appellant could not, on the admitted facts, in law, be guilty of doing grievous bodily harm.

8. As regards the sentence appeal, we are satisfied that the appellant was adequately represented at the sentencing proceedings.  There were sound forensic reasons for not emphasising the alleged provocation, namely that doing so could have undermined the appellant's claims that he was remorseful.  The sentence of 20 months' immediate imprisonment was well within the range for offences of this nature.  It has not been demonstrated that the sentence was unreasonable or plainly unjust, either as to type or length. 

9. We concluded that there was no reasonable prospect that any of the grounds, in either the appeal against conviction or the appeal against sentence, would succeed.  In those circumstances, leave to appeal was refused and both appeals were dismissed.  More detailed reasons for those conclusions follow. 

10. At the hearing of the appeal, we also heard and dismissed an application for bail pending determination of the appeal.  We said that reasons for refusing that application would also be given at a later stage.  Essentially, the reason why bail was refused was that the appellant had not demonstrated that either of his appeals had a strong prospect of success, such that exceptional circumstances for granting bail on appeal had been made out.

Facts

1. The victim of the offence, MH, is a homeless 25‑year‑old man who is 182 cm tall, of slim build, and has significant mental health issues.  At the time of the offence, the appellant was a 49‑year‑old man, 182 cm tall and of medium build.[1] 

   [1] ts 11.

2. At 12.07 am on Friday 12 January 2024, the appellant and a co‑accused, C, were sitting on the ground eating food outside 116 Barrack Street in central Perth.  C walked over to MH, who was sitting on the ground further along Barrack Street.  C offered MH some leftover food, which MH declined.  C then returned with the food to the appellant.  C then became involved in a verbal altercation with MH.  C approached MH a second time, bent down to talk to him and then slapped MH's hat off his head with his right hand.  C then walked back to where the appellant was standing.[2] 

   [2] ts 11.

3. The appellant was intoxicated to the extent that he could not walk straight.  He approached MH with the food, which he threw at MH's head, before kicking MH in the head with his right leg.  C then approached MH and also kicked him to the head with significant force.  This second kick caused MH's head to hit the roller shutter immediately behind him and render him unconscious.  C then walked away.[3] 

   [3] ts 12.

4. The appellant remained at the scene and tried to rouse MH by tapping on his arm a few times.  He then walked to a convenience store on the corner of Murray Street.  MH regained consciousness and pulled himself into a sitting position against the roller shutter.  He was later located by police and taken to Royal Perth Hospital, where it was confirmed that he had suffered a bilateral fracture of his jaw.[4] 

   [4] ts 12.

5. The appellant and C were both arrested later that morning at different hotels.  The appellant was arrested at 5.20 am at the European Hotel in Perth.  Police decided that the appellant was too intoxicated to participate in an electronic record of interview.[5]

   [5] ts 12, 15 - 16.

6. The State accepted that the injuries caused to MH were not likely to have been caused by the appellant's kick.  However, it was alleged that the appellant and C had formed a common intention to assault MH, which included kicking him to the head whilst he was sitting on the ground.  The grievous bodily harm was said to be a probable consequence of the prosecution of that unlawful purpose.[6]

   [6] ts 12.

Personal Circumstances

1. The appellant was 49 years old at the time of the offending and 50 years old at the time he came to be sentenced.  He was born in New South Wales and is the youngest of four sons to his parents' union.  His parents separated when he was 6 years old.  Despite their separation, the appellant grew up with the love and support of his parents.  He continues to have good relationships with his parents and his siblings.  One of his brothers provided a character reference.[7] 

   [7] ts 41.

2. After completing year 10, the appellant left school to pursue a career in bodyboarding.  He was a professional bodyboarder for around 15 years.  He received sponsorships, travelled the world, and lived in different locations.  At the time of the incident, he was employed in the oil and gas industry doing fly‑in/fly‑out work.[8] 

   [8] ts 41.

3. The appellant's physical and mental health are both good, however, he clearly had a problem with alcohol.  He admitted to binge drinking when not working.  The appellant was very intoxicated when the offending took place and acknowledged that but for the drinking, the offending would not have happened.[9] 

   [9] ts 41.

4. The appellant has a criminal record of offences in Western Australia, New South Wales and in a Commonwealth place.  That previous offending includes convictions for disorderly behaviour, failing to obey police orders, obstructing police, and traffic offences including driving under the influence of alcohol.[10] 

   [10] ts 41 - 42.

Procedural history

1. The appellant was arrested and charged on 12 January 2024.  He first appeared in the Magistrates Court on that day.  Bail was refused and the appellant was remanded to appear again on 9 February 2024.  On both 12 January and 9 February, the appellant was represented by duty counsel.  The appellant appeared in the Magistrates Court again on 19 April 2024, when he was first represented by Ms Rogers.[11]

   [11] YAB 68 - 69.

2. The original police statement of material facts mistakenly alleged that the appellant was responsible for the second kick to MH.[12]  CCTV footage of the incident clearly showed that the second kick had been delivered by C. 

   [12] YAB 50, 53.

3. On 9 May 2024, Ms Rogers wrote to the Office of the Director of Public Prosecutions (ODPP) pointing out the error in the statement of material facts and putting forward a proposal that the matter be resolved by way of a plea of guilty to a substituted charge of assault occasioning bodily harm, to be dealt with summarily.  Ms Rogers suggested that such a charge would adequately penalise the appellant for his involvement in the offending.  She also set out matters favourable to the appellant, such as his remorse, acceptance of problematic alcohol use, and lack of any record of violent offending.[13] 

   [13] YAB 126.

4. On 10 May 2024, the ODPP replied by rejecting the plea offer and stating that it intended to proceed with the existing grievous bodily harm charge. The ODPP stated that the appellant's liability would be alleged to be pursuant to s 8 of the Code, namely that the appellant and C formed a common intention to assault MH, which included kicking him to the head whilst he was sitting on the ground, and that grievous bodily harm was a probable consequence of the prosecution of that unlawful purpose. The ODPP advised that their position on sentence would be that whilst they could not prove who caused the injury to the jaw, it was likely to have been C, given the force and location of his kick. The ODPP further advised that there was no issue with amending the statement of material facts to be consistent with the CCTV footage. It was accepted that the appellant had been concerned about MH's welfare and had attempted to rouse him. Further, the ODPP accepted that the appellant was heavily intoxicated at the time of the incident.[14]

   [14] YAB 27.

5. The appellant appeared again in the Magistrates Court on 7 June and 24 June 2024.  On 24 June 2024, the appellant entered a plea of guilty to the charge and was committed to the District Court for sentencing on 27 August 2024.[15] 

   [15] ts 9, 12.

6. On 25 June 2024, the ODPP sent an email to Ms Rogers saying that they would attempt to file the prosecution brief, amended statement of material facts and the indictment that week, so that Ms Rogers could arrange for the matter to be listed early in the event that she wanted the appellant to be sentenced quickly.  Ms Rogers responded the same day thanking the ODPP and pointing out that the appellant had been in custody for 'quite some time now'.[16] 

   [16] YAB 26.

7. An amended statement of facts was prepared.  It is dated 25 June 2024.  Apart from some minor errors regarding whether the appellant and C walked away from the scene together, and whether they were arrested later at the same hotel; the amended statement of material facts reflected the facts referred to earlier in these reasons.[17] 

   [17] YAB 70.

8. The amended statement of material facts contained a paragraph in the following terms:[18]

   The injuries were not likely to have been caused by [the appellant's] assaults however [the appellant and C] formed a common intention to assault the complainant, which included kicking the complainant to the head whilst he was sitting on the ground, and in those circumstances Grievous Bodily Harm was a probable consequence.

   [18] YAB 71.

9. On 25 June 2024, Ms Rogers wrote to the appellant stating:[19]

   I confirm that I appeared on your behalf in the Perth Magistrates Court on 24 June 2024.  Your charge of Grievous Bodily Harm had been early listed for a plea of guilty to be entered by you. 

   Upon entry of your plea of guilty, your charge was committed to the District Court for Sentence.  You are next due to appear in the District Court for Sentence Mention on (to obtain a sentence hearing date) on 30 August 2024 at 9 am. 

   A Victim Offender Mediation Assessment and Pre‑Sentence Report were requested to assist in the sentencing process.  Please ensure that you facilitate preparation of your assessment/reports when Community Corrections attend upon you at Casuarina Prison. 

   To assist in the preparation of plea in mitigation, I recommend that you obtain 3 ‑ 4 character references.  Each of the referees should attest to the fact as set out in the attached annexure.  (original emphasis)

   [19] YAB 144.

10. On 22 July 2024, the appellant was interviewed for the purposes of victim offender mediation.  In the Victim Offender Mediation Unit report, it is recorded that the appellant 'stated he had the amended Statement of Material Facts, understood the nature of mediation and that he had written a letter of apology for the victim'.[20]  The report goes on to state that the appellant 'discussed the offence openly and expressed remorse throughout'.  The appellant confirmed that he had entered a plea of guilty to the offence and that it was for that offence that he wished to apologise.  The report states that the appellant 'separated his offending behaviour from his co‑accused's offending behaviour and labelled his actions as "out of character"'.[21]  Victim mediation did not proceed further as MH did not wish to engage in it.  MH did, however, say that he would be open to receiving a letter of apology from the appellant.[22]

    [20] BGAB 83. 

    [21] BGAB 84.

    [22] BGAB 83 - 85.

11. The appellant did write a letter of apology, which is dated 22 July 2024.  In that letter, the appellant states:[23]

    I apologize [sic] for the incident dearly an [sic] the trauma I have incurred [sic] to [MH] an [sic] his family. 

    This time in casurina [sic] has made me aware of the immense pain, hurt an [sic] trama [sic] I have put [MH] an [sic] his immediate family through, I am deeply sorry an [sic] remorseful an [sic] also embarrassed of my actions.

    [23] BGAB 86.

12. The appellant was also interviewed for the purposes of a pre‑sentence report on 22 August 2024.  That report states that:[24]

    [The appellant] accepted culpability to the amended facts for the aforementioned offence.  He stated that his behaviour was 'out of character' for him.  He indicated that he was heavily affected by alcohol on the evening of the offence and had little recollection of the offending behaviour.  He informed that viewing the CCTV footage of the offence was 'difficult' and 'confronting' and upon self reflection showed significant insight into his offending behaviour.  He displayed significant victim empathy, informing that he has cooperated and participated where possible to apologise to the victim (VMU).

    [24] Pre-sentence report, dated 22 August 2024, 1. 

Sentencing proceedings

1. The appellant appeared in the District Court for sentencing on 27 August 2024.  At the start of the proceedings, the charge was read to the appellant, and he again entered a plea of guilty.  A judgment of conviction was recorded.  The prosecutor read the amended statement of material facts and tendered the prosecution brief and a disc of electronic exhibits, which included the CCTV footage of the incident.[25] 

   [25] ts 11.

2. The State accepted that the plea of guilty was entered at an early stage and that it was necessary for the appellant to view the CCTV footage before entering a plea.  Ms Rogers also advised the sentencing judge that the appellant was very anxious to ensure that the kick which caused the injury was not attributed directly to him.[26] 

   [26] ts 12, 15.

3. Ms Rogers submitted that the appellant was very distressed after the incident and made some endeavours to try and wake the victim.  She said that he was extremely remorseful and disgusted with his behaviour.  He had found it difficult to talk about the incident and to explain it to his elderly mother, who was unwell.[27]  Ms Rogers said that:[28]

   At no stage, in my submission, has he tried to detract from the seriousness of the offending. Obviously the State accept that his participation was on a section 8 basis.

   [27] ts 15 - 16.

   [28] ts 16.

1. Ms Rogers then referred to the pre‑sentence report and said that the appellant accepted that he had an issue with alcohol use, but that he had been able to control that use when working on a fly‑in/fly‑out basis.  He accepted that when he returned from work at the end of a shift, he did binge drink and that was something he wanted to get to grips with.  Whilst in Casuarina Prison, he had attended Alcoholics Anonymous, which he said he had benefited from.  He had previously undertaken alcohol counselling in 2017 for some 12 months.  It was suggested that on this occasion, his binge drinking caused a significant lapse in his judgement.[29]

   [29] ts 16 - 17.

2. The sentencing judge noted that this was not a case where there had been a fight or scuffle, rather it appeared to be the case of a homeless man minding his own business.  Ms Rogers responded that she understood there may have been some words spoken but that the appellant readily accepted that his offending behaviour was disproportionate.  She said that the appellant felt a sense of shame in seeing the footage.  She later said that the appellant found it very difficult to watch that footage.  She said that the appellant was a man who: held strong family and community values; had taken pride in his profession and employment achievements; and felt that this offence was a huge mark on his character, of which he is very ashamed.[30]  Ms Rogers said:[31]

   that's why he has accepted responsibility at the earliest opportunity once the amendment to the facts had been acknowledged[.]

   [30] ts 17 - 19. 

   [31] ts 19.

3. Ms Rogers then said:[32]

   Given the time spent in custody, your Honour - and I think it equates to some 235 days, so since 12 January of this year. Ordinarily, I would obviously accept that only an immediate term of imprisonment could be imposed, but given that lengthy period in custody, his early plea of guilty to the charge, his role and the acceptance that he was a section 8 offender and what, in my submission, is genuine remorse, I would urge your Honour to give consideration to a disposition other than immediate imprisonment, such as a suspended term of imprisonment with or without conditions, so that he can continue with progress in the community and also be afforded that opportunity to return home to visit his mother and, as I said, try and be there for her also.

   [32] ts 20.

4. Ms Rogers said that the appellant was also concerned that whilst in custody he had been unable to visit his sick mother in Queensland.  The trial judge noted that there was no evidence before her regarding the appellant's mother's medical condition.  Ms Rogers agreed that there were no actual medical reports but said that she had spoken to the appellant's brother at length, and that her Honour could take into account that it was an additional burden on the appellant to be incarcerated in Western Australia, away from his family and, in particular, his mother.[33]

   [33] ts 20 - 21.

5. Ms Rogers submitted that the appellant had sought to have the matter resolved quickly and said:[34]

   [The appellant] essentially wanted to try and finalise his matters and accept responsibility once it had reached the DPP and that they had acknowledged that the facts were incorrect and that amendment was made.

   [34] ts 21 - 22.

6. In response to the suggestion that a suspended sentence was an option, the State prosecutor said:[35]

   Now, it's accepted that in terms of [the appellant's] culpability, although he is liable on a section 8 basis for the ultimate acts and the grievous bodily harm that was occasioned, he himself only kicked the victim once, and it was unlikely to be the kick that caused the grievous bodily harm, but it has to be said that [the appellant] was the first person to make it physical; he was the first offender to kick the victim.

   And of course, the impact of this on the victim, which can be seen from that report provided, is this injury has affected [MH's] ability to chew and eat properly, as at July of 2024 when he was spoken to.  There appears to be a permanent disfigurement in his teeth and jaw, and he still experiences extreme pain on the regular, and the victim also does allude to other cognitive impacts as a result.

   [35] ts 28.

7. The sentencing judge noted that whilst it may be the perception of the victim that he may have suffered cognitive issues as a result of the injury, there was no medical evidence in that regard.[36] 

   [36] ts 28. 

8. The prosecutor also noted that in relation to the timing of the plea, the police statement of material facts had originally incorrectly attributed the second kick to the appellant.  The prosecutor acknowledged that once the statement of material facts had been amended, the plea was entered at the next opportunity.  On that basis, the State was satisfied that the plea could be treated as having been entered at the earliest reasonable opportunity.[37]

   [37] ts 30.

Sentencing remarks

1. After referring to the admitted facts, the sentencing judge referred to the following aggravating factors:[38]

   1.The attack was unprovoked.

   2.The victim was particularly vulnerable because he was homeless and suffers from mental health issues.

   3.There was a degree of persistence to the attack in that both the appellant and the co‑offender kicked the victim and did other acts of violence, being the knocking off of his hat and the throwing of food at him.

   4.The victim was outnumbered.

   [38] ts 41.

2. The sentencing judge noted that although she did not have a victim impact statement, the offending had negatively impacted MH, and that negative impact was apparent from the Victim Offender Mediation Unit report.  MH had suffered ongoing medical issues as a consequence of the broken jaw, albeit that he did refuse to have the recommended surgery which might have alleviated some of those symptoms.[39] 

   [39] ts 41.

3. The sentencing judge then turned to the appellant's personal factors.  After referring to the appellant's family and work history, her Honour referred to the role of alcohol in the offending.  Her Honour said that it was not entirely clear whether the appellant appreciated the extent of his alcohol problem.  She suggested that the appellant was, to a degree, in denial.[40] 

   [40] ts 41.

4. The sentencing judge noted that the appellant's previous offending seemed to be consistent with the appellant's problem with alcohol.  The present offence, however, represented an escalation in his offending.  Her Honour noted that whilst the previous criminal history did not aggravate this offence, it meant that the appellant could not be given the leniency or mitigation of being a first offender.[41] 

   [41] ts 42.

5. As to the mitigating factors, her Honour noted that the appellant had pleaded guilty at the first reasonable opportunity and allowed the maximum 25% discount from the head sentence she would otherwise have imposed, had the appellant been found guilty and there were no other mitigating factors.  Her Honour also took into account that the appellant had been willing to participate in offender‑victim mediation and had written a letter of apology to the victim.  Her Honour accepted that the appellant had shown genuine remorse.  She also accepted that whilst in custody, he had taken some steps to address his problem with alcohol by attending Alcoholics Anonymous.  She said that the risk of re‑offending was difficult to assess having regard to the appellant's problems with alcohol.  Until those problems were addressed, she could not conclude that he was at a low risk of re‑offending in a similar manner when intoxicated.[42]

   [42] ts 42 - 43.

6. As regards the illness of the appellant's mother, the sentencing judge accepted that being imprisoned in Western Australia, whilst his mother was ill in Queensland, represented a hardship for her - but not one that justified any reduction in the sentence.  Her Honour also accepted that prison was more onerous because the appellant was away from his friends, family, and particularly his mother.[43] 

   [43] ts 43.

7. As to the suggestion that the appellant had provided some assistance to the victim, the sentencing judge accepted that he had attempted to rouse the victim but was unable to conclude that he had made a genuine attempt to provide assistance.[44]

   [44] ts 43.

8. In referring to the general principles of sentencing, the sentencing judge noted that she was required to impose a sentence that was commensurate with the seriousness of the offence.  She said that this offence represented a serious example of grievous bodily harm, involving as it did, an unprovoked attack on a vulnerable homeless man.  Although her Honour accepted that it was unlikely that the appellant's kick caused grievous bodily harm, she said that he was responsible for that harm because he and his co‑offender were carrying out a common purpose.  Her Honour described the offending as 'an example of gratuitous and senseless violence.'[45]

   [45] ts 43.

9. The sentencing judge was not satisfied that the offending could be classified as being in the upper or mid‑range of offending of this type.  Although the victim had been left with a degree of permanent impairment, the injury was not life‑threatening.  Her Honour said that she was satisfied that the seriousness of the offending was, however, such that a sentence of imprisonment was the only appropriate sentence.  She was also positively satisfied that the offence was too serious to justify a suspended sentence of imprisonment.[46] 

   [46] ts 43 - 44.

10. The sentencing judge imposed a sentence of 20 months' imprisonment, backdated to commence on 12 January 2024, the date when the appellant first went into custody.[47]

    [47] ts 44.

Appeal against conviction - grounds of appeal

1. The grounds of appeal are as follows:[48]

   1.Additional, compelling evidence about the conduct of previous legal counsel (PLC), which had resulted in the Appellant not understanding the nature of the charge nor intending to admit guilt, thereby resulting in a miscarriage of justice.

   2.Additional, compelling evidence about the conduct of PLC, which had resulted in the Appellant's guilty plea being obtained by improper inducement, thereby resulting in a miscarriage of justice.

   3.The plea of guilty and the conviction should be set aside as, based on additional, compelling evidence and previously tendered evidence, a miscarriage of justice has occurred because the Appellant could not in law have been guilty of the offence.

   4.Additional, compelling evidence which could have satisfied the Court that the Appellant had an arguable defence with reasonable prospect of success.

   [48] WAB 34. 

Appeal against conviction - evidence

1. The grounds of appeal against conviction depend upon additional evidence called at the hearing of the appeal.  That evidence can be summarised as follows.

The appellant

1. The appellant swore two affidavits, both dated 14 February 2025.  The first affidavit sets out the appellant's account of the incident on 12 January 2024. 

2. The first affidavit sets out in detail the course of events.  In particular, the appellant says that he and C sat on the ground on Barrack Street on the evening of 11 January 2024.  He states that shortly after midnight, C stood up and approached the victim to offer him some food.  The victim did not take the food and C began to return to where the appellant was seated, still holding the food.  As C was walking back to where the appellant was sitting, the victim said several insulting and 'provocative things' directed at C and the appellant.  In response, C stopped, turned back towards the victim, and began talking with him.  C then returned to where the appellant was seated and put the food down.[49] 

   [49] YAB 6 - 7.

3. The appellant states that the victim continued to make comments directed at C and the appellant, including calling them 'poofters' and 'paedophiles'.  The appellant states that he stood up, picked up his backpack from the ground and put it on.  He then went to pick up the food from the ground.  The victim continued to insult them.  After the appellant picked up the food from the ground, he saw that C had walked back towards the victim.  C bent down to where the victim was sitting to say something, which the appellant could not hear.  At this point, the appellant began walking towards the victim whilst holding the food.  C then slapped the victim's hat off his head.  C turned away from the victim and walked past the appellant as the appellant continued walking in the direction of the victim.  Whilst the appellant was walking towards the victim, the victim continued to insult him.[50] 

   [50] YAB 7. 

4. The appellant states that, in response to the victim's insults, he threw the food container he was holding at the victim and 'lashed out towards the area of his left shoulder with [his] right leg'.  He then walked away and after a few moments heard a loud collision‑type noise behind him.  He turned around and saw that the victim was lying on the ground and that C was walking away from him.  He then described his attempts to wake up the victim.  He states that there was no discussion between C and himself about assaulting or harming the victim, and he did not expect the co‑offender to act in the way he did.[51] 

   [51] YAB 7 - 8.

5. In the second affidavit, the appellant states that he wrote a letter to Ms Rogers about his concerns regarding the original statement of material facts, including his concern that it was alleged that he - rather than C - had kneed the victim to the head.  He said that he instructed Ms Rogers that his conduct was confined to throwing the food container and 'lashing out' with his leg but that he had not done grievous bodily harm to the victim.  He states that he instructed Ms Rogers that he had not previously met C before the night in question and he did not at any point in time speak or communicate with C about assaulting or harming the victim.[52]

   [52] YAB 11 - 12.

6. The appellant states that prior to entering his plea of guilty on 24 June 2024, Ms Rogers 'consistently told [him] to plead guilty to the charge'.  He further states that 'Ms Rogers advised [him] that pleading guilty to the [c]harge would be the fastest way for [him] to be released from prison, and to resolve the matter'.  He states that he had never been to prison before and relied on Ms Rogers' advice completely.[53] 

   [53] YAB 12.

7. The appellant states that he was not provided with a hard copy of the amended statement of material facts until some time in late July 2024 or early August 2024, after the plea of guilty had been entered and a few weeks before the sentencing hearing in the District Court.  He asked Ms Rogers to provide him with a hard copy of the amended statement of material facts because at that time, other prisoners were questioning whether he had been charged with grievous bodily harm.  He said that other prisoners were accusing him of being a paedophile trying to hide his charge and he feared that they would assault him.  He states that prior to receiving a hard copy of the amended statement of material facts, he was unaware of its contents.  He states that he did not want to plead guilty on the basis of the amended statement of material facts as it was 'partially incorrect'.[54] 

   [54] YAB 12 - 13.

8. The appellant states that at no time during Ms Rogers' representation of him, did she explain the relevance of a s 8 common intention as alleged in the amended statement of material facts. He states that neither at the time he entered the plea of guilty in the Magistrates Court on 24 June 2024, nor when he was arraigned in the District Court on 27 August 2024; did Ms Rogers advise or explain to him on what basis the charge against him was being maintained, given that the amended statement of material facts stated that it was not him who did the physical act that caused the victim's injury. He claims that he was improperly induced to plead guilty by Ms Rogers 'because of how she had been advising [him] to maintain a guilty plea', despite his instructions that he was not guilty. He states that he did not understand what it meant when Ms Rogers mentioned at the sentencing hearing that he accepted that he was a s 8 offender.[55]

   [55] YAB 13; ts 20.

9. The appellant refers to documents that he claims he provided to Ms Rogers and that were not submitted to the court.  These are a letter dated 3 June 2024 from a doctor concerning his mother's treatment, and a letter dated 22 December 2023 from a company referring to the appellant's job placement as a rigger.  There is also a further apology letter and a character reference from Leanne Johnson.[56] 

   [56] YAB 14 - 15.

10. In cross‑examination at the appeal hearing, the appellant maintained that he had never understood the basis upon which he was held liable for doing grievous bodily harm.  He said that in pleading guilty, his intention was only to admit that he had thrown the food container at the victim and delivered the first kick.  He had never understood how he was liable for the second kick of the co‑offender.[57] 

    [57] Appeal ts 47 - 79.

11. The appellant denied that he had ever viewed the CCTV footage, notwithstanding that his first affidavit appeared to be highly consistent with it.[58] 

    [58] Appeal ts 65 - 67.

12. The appellant claimed that the reason that he had asked for a copy of the amended statement of material facts was that other prisoners suspected him of being a police officer.[59]  When it was pointed out that this was not the explanation that he had given in his affidavit - namely that he was being accused by other prisoners of being a paedophile - the appellant said that both explanations were true.[60] 

Abigail Rogers

[59] Appeal ts 44.

[60] Appeal ts 72 - 74.

1. Ms Rogers provided an affidavit sworn on 11 April 2025.  She states that she was first contacted by a person acting on behalf of the appellant in mid‑March 2024.  An application for legal aid was lodged on the appellant's behalf.  Soon after, she started receiving regular telephone calls from the appellant.[61] 

   [61] Affidavit of Abigail Sian Rogers, sworn 11 April 2025, 2.

2. Ms Rogers told the appellant that she was of the view that legal aid would be refused given the appellant had financial assets.  The appellant's enquiries at this stage were as to whether he had any prospects of successfully applying for bail.  The appellant had already been refused bail before Ms Rogers was retained and she advised him that a change in circumstances would be needed before a new application for bail could be made.[62] 

   [62] Affidavit of Abigail Sian Rogers, sworn 11 April 2025, 2.

3. Ms Rogers began formally acting for the appellant on 18 April 2024, after she had received funding by the placing of funds in her trust account.  Her initial instructions were to provide an opinion as to the appellant's prospects of bail and to assist with the preparation of a power of attorney.[63]

   [63] Affidavit of Abigail Sian Rogers, sworn 11 April 2025, 3.

4. Ms Rogers states that at her first meeting with the appellant in Casuarina Prison, she only had the original statement of material facts, as she had not at that stage received the prosecution brief or the CCTV footage.  She states that the appellant had a limited recollection of the alleged offending, although he did indicate that he believed that the statement of material facts was incorrect because C had told him that he had punched the victim with a closed fist.  Despite being unable to recall the sequence of events, the appellant instructed her that he wanted to accept responsibility and plead guilty but that, first and foremost, he wanted a grant of bail.  She advised him to wait until she had reviewed the prosecution brief and the CCTV footage before finalising his instructions.  She told him that she would need to properly review the prosecution brief to be certain whether a plea of guilty was appropriate.[64] 

   [64] Affidavit of Abigail Sian Rogers, sworn 11 April 2025, 4.

5. After receiving the CCTV footage and reviewing it, Ms Rogers spoke with the appellant on the telephone.  She advised him that he was not the one who had kicked the victim to the head, as alleged in the statement of material facts, but that he had thrown his food over the victim and kicked out at him with his leg.  She discussed this issue with the appellant on a number of other occasions on the telephone.  She states that the appellant was 'significantly aggrieved' that an error had been made in the statement of material facts.  Soon after the telephone call, but before her second attendance at the prison, Ms Rogers received a handwritten letter from the appellant.  In that letter he expressed his concerns regarding errors in the statement of material facts.  She assured the appellant that the errors would be rectified to properly reflect his actions and those of C.[65]

   [65] Affidavit of Abigail Sian Rogers, sworn 11 April 2025, 4 - 5.

1. Ms Rogers states that she made contact with the ODPP and pointed out that the statement of material facts was not consistent with the CCTV footage, in that it attributed the second kick to the appellant.  She spoke to Mr Jarrad Prior from the ODPP and he accepted that the CCTV footage did not accord with the original statement of material facts and that the facts would need to be amended.[66] 

   [66] Affidavit of Abigail Sian Rogers, sworn 11 April 2025, 5 - 6.

2. Ms Rogers states that at her second meeting with the appellant in Casuarina Prison, she took her laptop with the intention of taking the appellant through the CCTV footage.  At that stage, he was still very focused on making an application for bail.  He declined the offer to view the CCTV footage and Ms Rogers instead showed him a number of still photographs that she had printed off from the CCTV footage.  There was a discussion as to whether the prosecution might accept a plea of guilty to the lesser charge of assault occasioning bodily harm.  She told the appellant that a submission could be made on his behalf offering such a plea in full satisfaction, and that this would allow the charge to be dealt with in the Magistrates Court at an earlier stage.  The appellant instructed Ms Rogers to put the plea offer on his behalf.[67] 

   [67] Affidavit of Abigail Sian Rogers, sworn 11 April 2025, 6.

3. Ms Rogers states that she discussed with the appellant as to what would happen if the plea offer was accepted, that is, that a plea of guilty could be entered in the Magistrates Court to the lesser charge and that his matter could progress to sentence at the earliest opportunity. She states that she also discussed 'at length' what would occur if the plea offer was rejected. She told the appellant that there were two options that would be available to him in that event, namely: to enter a plea of guilty to the existing charge and to fast‑track sentencing in the District Court; or, to proceed to trial in the District Court. In this context, she gave advice to the appellant regarding s 9AA of the Sentencing Act 1995 (WA) and the benefits of entering a plea of guilty prior to a disclosure committal hearing.[68]

   [68] Affidavit of Abigail Sian Rogers, sworn 11 April 2025, 7.

4. Ms Rogers says that she also advised the appellant on proceeding to trial on his charge. She states that she explained to the appellant that there were various bases at law upon which he could be found guilty of the offence of grievous bodily harm, even if it had not been his kick that had rendered the victim unconscious and fractured his jaw. She spoke to the appellant about both s 7 and s 8 of the Code. She foreshadowed that the prosecution may not accept a plea of guilty to assault occasioning bodily harm and that they may proceed with the charge on the basis of liability pursuant to s 8 of the Code.[69]

   [69] Affidavit of Abigail Sian Rogers, sworn 11 April 2025, 7 - 8.

5. Ms Rogers states:[70]

   I unequivocally explained to the [appellant] criminal liability pursuant to Section 8 and that the State had to establish beyond reasonable doubt that he and the Co‑accused had formed a common intention to prosecute an unlawful purpose in conjunction with each other, that an offence had been committed in the prosecution of that unlawful purpose and that the offence was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.

   I can advise the Court that this was the only time that I made any comment along the lines of, 'That's just how solicitors talk', when explaining to the [appellant] that it was a complicated principle but that essentially it meant that two parties had come together with a common intention to prosecute an offence together, in this instance assault, which they had both clearly committed on the CCTV footage, and that the State would submit that it was a probable consequence of an assault that grievous bodily harm would result.

   I can advise the Court that I explained to the [appellant] that there was no need for a prior verbal agreement for a common intention to be found, but that their actions could suffice.

   [70] Affidavit of Abigail Sian Rogers, sworn 11 April 2025, 8.

6. Ms Rogers states that the appellant provided no instructions that there had been no prior verbal agreement between himself and the co‑offender.  She assumed that there had been no prior discussion but that the State would base their case on the shared intention to assault the victim that was evident in the CCTV footage.  She states that she told the appellant that it would be for the jury to determine if it was a probable consequence that grievous bodily harm would result from both parties assaulting MH, by kicking and kneeing him.  She states that she indicated to the appellant that the demeanour and behaviour of him and the co‑offender - and the fact that they were both acting in an aggressive manner - when viewed objectively, might satisfy a jury that grievous bodily harm would result.  But ultimately, it was a decision for him to decide whether he wished to proceed to trial and have the jury review the footage and make the ultimate determination.[71] 

   [71] Affidavit of Abigail Sian Rogers, sworn 11 April 2025, 8 - 9.

7. Ms Rogers states that the ODPP responded to the plea offer on 10 May 2024 and advised that they would be proceeding with the current charge and that the appellant's liability would be alleged on the basis of s 8 of the Code. The correspondence indicated that there would be no issue redrafting the facts to be consistent with the CCTV footage and that the State would accept that after seeing the co‑offender's actions, the appellant was concerned about the victim's welfare and attempted to rouse him.[72]

   [72] Affidavit of Abigail Sian Rogers, sworn 11 April 2025, 10 - 11.

8. Ms Rogers states that she spoke to the appellant via telephone and told him that the plea offer had been refused.  She read the content of the relevant email from the ODPP to the appellant, including the part explaining the basis upon which the State were proceeding with the charge of grievous bodily harm.  The appellant was aggrieved that the offer had not been accepted and remained focused on obtaining a grant of bail.  She advised him that he had no prospects of successfully applying for bail and sought instructions on how he wished to proceed.  She told him that in the event the matter proceeded to trial, he should expect significant delays.  She told him that in the event he wanted to plead guilty, then any sentence imposed was likely to be of a length that he would be close to becoming eligible for parole once the sentence was backdated.  The appellant asked whether a disposition other than immediate imprisonment might be imposed.  She told him such a disposition was unlikely but that she was willing to make a submission to that effect, given the time spent in custody to that point in time.[73] 

   [73] Affidavit of Abigail Sian Rogers, sworn 11 April 2025, 11 - 12.

9. Ms Rogers states that the 'unequivocal instructions from the [appellant] were that he wished to plead guilty'.  He instructed her to lodge an application to have the matter early listed for the plea of guilty to be entered.  She states that the appellant was 'insistent on having his matter dealt with as expeditiously as possible due to his concerns relating to his mother's terminal illness'.  She told him that parole was not guaranteed but 'he still wanted to enter a guilty plea'.  She denies inducing the appellant to enter a plea of guilty and maintains that the appellant made an informed decision of his own free will.[74] 

   [74] Affidavit of Abigail Sian Rogers, sworn 11 April 2025, 12 - 13.

10. As to the appeal against sentence, Ms Rogers states that a forensic decision was made not to advance provocation as a mitigating factor, so as not to detract from the appellant's claims of acceptance of responsibility and demonstrations of genuine remorse.  She states that the appellant accepted that his actions were disproportionate to any provocative insults and that there had been a break in time between those insults and his actions.  She states that she did not wish to diminish the benefits of the appellant's engagement with victim‑offender mediation by making any claim that could be perceived as the appellant seeking to justify or defend his actions.[75] 

    [75] Affidavit of Abigail Sian Rogers, sworn 11 April 2025, 14.

11. In regard to the letters that the appellant says were not provided to the sentencing judge, Ms Rogers says that the letter from the mining company and the letter from Ms Johnson were not received by her.  As to the letter from the doctor, Ms Rogers said this letter was received for the purposes of a bail application on 7 July 2024 that did not proceed.  The letter provided no detail regarding the nature of the appellant's mother illness, nor her prognosis, nor what treatment was being received.  In these circumstances, Ms Rogers considered it was unsuitable to support a submission to the Magistrates Court that the appellant's mother was terminally ill and that he should be granted bail.  She also formed the view that the letter was unsuitable to provide to the District Court for the same reasons.  As regards the second handwritten apology letter, Ms Rogers notes that an apology letter had been annexed to the victim‑offender mediation report.  A forensic decision was made not to provide the second apology letter as it did not add anything further to the earlier letter.[76] 

    [76] Affidavit of Abigail Sian Rogers, sworn 11 April 2025, 15 - 17.

12. In cross‑examination, it was put to Ms Rogers that she had not provided advice to the appellant in terms that he could understand, regarding the basis of his liability for the offence of doing grievous bodily harm.  She denied that suggestion and maintained that she had provided advice in this regard and that the appellant appeared to understand that advice.[77]

    [77] Appeal ts 86, 88, 94 - 95.

Appeal against conviction - relevant legal principles

1. It is no easy matter for an appellant to persuade a court to set aside a conviction based on a guilty plea.  Such attempts are approached with caution, bordering on circumspection.  There is a strong public interest in the finality of proceedings.  A guilty plea is taken to be an admission by the person of the necessary ingredients of the offence and an acceptance that no defences are available.  An appellant who wishes to appeal against his conviction where he has entered a plea of guilty, must show that there has been a miscarriage of justice.[78]

   [78] Larsen v The State of Western Australia [2019] WASCA 181 [45] (Mazza & Beech JJA, Allanson J agreeing); Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454 [115] ‑ [116] (Buss P), [171], [174] ‑ [175] (Mazza JA), [255] ‑ [256] (Mitchell JA); Snook v The State of Western Australia [No 2] [2015] WASCA 29 [103] ‑ [104] (Hall J, Buss & Mazza JJA agreeing); Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [153] ‑ [156].

2. It is open to an accused person to plead guilty on grounds which extend beyond the person's belief in his guilt.  For example, a person may plead guilty to: avoid worry, inconvenience or expense; to avoid publicity; to protect family or friends; or, in the hope of obtaining a more lenient sentence than he or she would if convicted after trial.  The entry of such a plea is valid and a conviction based upon it will not be set aside unless it can be shown that a miscarriage of justice has occurred.[79]

   [79] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J); see also Wilhelm v The State of Western Australia [2013] WASCA 188 [51] (Mazza JA, McLure P & Buss JA agreeing).

3. There are three well‑recognised circumstances in which a miscarriage of justice will be established in regard to the entering of a plea of guilty: [80]

   1.The appellant did not understand the charge or did not intend to plead guilty.

   2.On the admitted facts, the appellant could not in law be guilty of the offence.

   3.Where the plea of guilty has been obtained by inducement, fraud or intimidation.

However, these categories are not exhaustive and there may be other circumstances in which a miscarriage of justice may occur.

[80] Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ & Hasluck J agreeing); Webster v The Queen [2015] WASCA 20 [57] (Mazza JA, McLure P & Buss JA agreeing); Snook [No 2] [102] (Hall J, Buss & Mazza JJA agreeing).

1. The fact that a person has had the benefit of legal advice will often make it more difficult for an appellant to establish that they did not understand the charge or the effect of their plea of guilty.  A distinction must be drawn between argument or advice to a client by a lawyer to plead guilty and improper pressure or harassment.  Reasoned argument or advice from a lawyer does not involve the use of improper means and does not detract from the ability to make a voluntary choice as to whether to plead guilty.[81]  The courts must be wary of the possibility that a person who pleads guilty may later regret it and wish to falsely attribute blame for their voluntary plea on bad or inadequate advice or improper pressure.[82]

   [81] Meissner (143) Brennan, Toohey & McHugh JJ).

   [82] Snook [No 2] [105] (Hall J, Buss & Mazza JJA agreeing).

2. Where a ground of appeal alleges a miscarriage of justice it is generally not sufficient to show that there was an error or irregularity in the proceedings.  Unless the error or irregularity is of a fundamental nature, it must be established that it was material in the sense that it could realistically have affected the outcome.  That means that the error or irregularity must have the capacity to produce a different outcome that is not fanciful or improbable.[83]

   [83] Brawn v The King [2025] HCA 20 [10].

Appeal against conviction - appellant's submissions

1. The appellant alleges, in essence, that a miscarriage of justice was occasioned by his plea of guilty because he did not understand the nature of the charge, or intend to admit his guilt - or at least only intended to admit guilt in respect of his acts alone.  The appellant alleges that his lawyer's advice in this regard was inadequate.  He further alleges that his plea of guilty was obtained by improper inducement by Ms Rogers.  In addition, he alleges that he could not in law be guilty of the offence and that he had an arguable defence with reasonable prospects of success.[84]

   [84] WAB 37 - 42.

2. The appellant submits that, based on the evidence he has given on appeal, he instructed Ms Rogers that he had not caused grievous bodily harm to the victim and that he had not had any communication with C about assaulting or harming the victim.  He instructed that he was unaware of C's actions in causing the grievous bodily harm until after the assault occurred.  He was unaware of the basis on which the charge of grievous bodily harm was maintained against him and did not intend to admit guilt to causing grievous bodily harm.  He claims that the advice given to him in this regard by Ms Rogers was inadequate.[85]

   [85] WAB 37 - 41; YAB 11 - 16.

3. As to ground 2, the appellant submits that Ms Rogers advised the appellant that pleading guilty was the quickest way to resolve the case and secure his release from prison.  He submits that this advice did not address alternatives and 'exploited his desire to be released from jail so he could be reunited with his sick mother'.  He claims that this prevented him from making a free and voluntary choice.[86]

   [86] WAB 42 - 45.

4. As to ground 3, the appellant submits that there was no basis for alleging liability pursuant to s 8 of the Code. He relies on his denials of any prior express agreement with the co‑accused and his account of the incident as described in his first affidavit. He submits that the evidence shows that his actions and those of the co‑accused were separate and distinct, and not done in the prosecution of an unlawful purpose. In essence, he submits that it would not have been open for him to have been found guilty of doing grievous bodily harm had the matter proceeded to trial.[87]

   [87] WAB 45 - 49.

5. As to ground 4, the appellant submits that it would have been open to him to invoke the defences of provocation,[88] or use of force to prevent a repetition of insult.[89]  He contends that these defences would have had a reasonable prospect of success but were not pursued due to a failure on the part of Ms Rogers.[90]

   [88] Criminal Code, s 246.

   [89] Criminal Code, s 247.

   [90] WAB 49 - 51.

Appeal against conviction - respondent's submissions

1. As regards grounds 1 and 2, the respondent submits that the appellant did not express any concern or hesitation when entering his plea of guilty.  The appellant's expressions of remorse and victim empathy were consistent with an intention to admit guilt of the offence of doing grievous bodily harm.  Further, Ms Rogers' actions - in seeking to ensure that the appellant was sentenced as quickly as possible and that he received the maximum possible discount for pleading guilty - are entirely consistent with her evidence that the appellant was eager to finalise the proceedings as quickly as possible in order to return to Queensland.  The respondent notes that the appellant only appears to have raised a concern about the integrity of his plea of guilty after he was refused parole on 14 October 2024.[91]

   [91] WAB 73, 75.

2. The respondent submits that Ms Rogers' evidence about the content of the legal advice she provided to the appellant is credible, honest and reliable.  There is no foundation for the claim that the advice was inadequate or that Ms Rogers improperly induced her client to plead guilty.  There was a distinct forensic advantage to the appellant in entering a plea of guilty at the earliest reasonable opportunity.  The respondent submits that Ms Rogers was acting in the appellant's best interests, within a framework of principled legal analysis and a comprehensive understanding of the evidence that would be adduced at trial.[92]

   [92] WAB 75 - 76.

3. As to ground 3, the respondent submits that a common intention does not have to be based on an express agreement and may instead be inferred from all of the proven circumstances.  It was open to infer from the CCTV footage that the appellant and the co‑accused had formed a common intention to assault the complainant.  They joined in aggressive behaviour towards the victim demonstrative of a shared intention to assault him as punishment for rejecting their attempts to give him food.  The respondent notes that it was the appellant who delivered the first kick to the victim and that this occurred close in time to the acts of the co‑accused.[93] 

   [93] WAB 79.

4. The respondent submits that even if the appellant had good prospects of being acquitted at trial - or in other words, s 8 liability could not be established to the requisite standard - this would not be determinative of a ground of appeal seeking to overturn a conviction based on a plea of guilty. A guilty plea may be entered for reasons other than a consciousness of guilt, even where there are prospects of acquittal at trial. Such a plea constitutes an admission of all the elements of the offence and will not be set aside unless it can be shown that a miscarriage of justice occurred.[94]

   [94] WAB 80.

5. As to ground 4, the respondent points out that provocation is not a defence to a charge of unlawfully doing grievous bodily harm.[95]

   [95] WAB 76; Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209.

Appeal against conviction - disposition

1. The grounds of appeal all rely on the additional evidence given by the appellant on appeal.  Before turning to that evidence, it is important to recall the objective evidence.

2. The appellant's pleas of guilty to the charge of doing grievous bodily harm in the Magistrates Court and in the District Court were unequivocal.  At no time during the course of the proceedings in the courts below did the appellant raise any question as to the basis upon which he was charged with the offence of grievous bodily harm.  He did not do so in the District Court, notwithstanding that he had a copy of the amended statement of material facts prior to the sentencing proceedings.   

1. Further, the Victim‑Offender Mediation Unit report and the pre‑sentence report indicate that the appellant accepted his culpability for the grievous bodily harm charge when he was interviewed by community corrections officers.  The necessary implication from those reports was that the appellant accepted that he bore responsibility for the injury inflicted on the victim.

2. The appellant obtained a benefit by pleading guilty at the first reasonable opportunity.  That opportunity arose following the agreement to correct the statement of material facts and the rejection of the plea offer.  The appellant's clear personal interest in resolving the proceedings as quickly as possible is consistent with a decision on his part to enter a plea of guilty.

3. The objective evidence is consistent with the appellant having entered his plea voluntarily and with an understanding of its nature and effect.  The only evidence to the contrary comes from the appellant himself.  It is necessary to make an assessment of his credibility as a witness.

4. The appellant was an unsatisfactory witness.  He was combative and had to be repeatedly reminded to answer the questions that were put to him.  He sought to avoid difficult questions by retreating to his stated position that he understood he was only pleading guilty for the acts which he personally did.  He was unable to provide a satisfactory answer as to how, if this was so, his acts of throwing food and kicking the victim - which were acknowledged not to have caused the injury - could possibly constitute the doing of grievous bodily harm. 

5. The appellant maintained his position that he had never watched the CCTV footage, despite it being apparent that he must have done so in order to give the detailed account contained in his first affidavit.  That detailed account is also inconsistent with his claims to the author of the pre‑sentence report that he was heavily intoxicated at the time and had little memory of the events.  It is unlikely that the appellant could now have such a detailed memory of the events when he did not have one much closer in time to those events.  

6. The appellant also gave other answers in his oral evidence that were inconsistent with his affidavits.  In particular, he gave a different answer in his affidavit as to why he obtained a copy of the amended statement of material facts from Ms Rogers (namely that he was being accused by other prisoners of being a paedophile),[96] as opposed to the answer he gave in oral evidence (namely that he was being accused by other prisoners of being a police officer).[97]  When challenged in this regard, he gave the unconvincing answer that both allegations were made.[98] 

   [96] YAB 12.

   [97] Appeal ts 44.

   [98] Appeal ts 72 - 74.

7. Further, the appellant stated in cross‑examination that it was at his instigation that an offer to plead to assault occasioning bodily harm was made to the ODPP.[99]  This claim was inconsistent with his evidence that he did not understand the difference between that offence and the offence of doing grievous bodily harm.[100]  This created the distinct impression that the appellant was willing to say whatever he thought would be most beneficial to him. 

   [99] Appeal ts 67, 70.

   [100] Appeal ts 75 - 76.

8. In our assessment, the appellant lacked credibility as a witness.  We are unable to accept his claims that he did not understand the charge or the effect of his plea. 

9. In contrast, the evidence of Ms Rogers was clear, measured and accorded with the objective evidence.  She maintained her position in cross‑examination.  The only matter about which she expressed some uncertainty was as to whether the appellant had watched the whole of the CCTV footage or had only viewed the still photographs extracted from the CCTV footage.[101]  She maintained that the appellant's primary concern was to obtain his release as soon as possible and that his plea of guilty was a considered choice to achieve that objective.  We accept the evidence of Ms Rogers as credible and reliable. 

   [101] Appeal ts 101.

10. Based on Ms Rogers' evidence, we find that the appellant was given advice regarding the nature of the charge and the basis of liability pursuant to s 8 of the Code. The appellant's plea of guilty was made with an understanding of the charge, the basis upon which he was held liable and the consequences of entering a plea of guilty. Even if, as he now claims, he did not believe that he was criminally responsible for the harm caused to the victim, he decided to plead guilty to the charge of doing grievous bodily harm. That he may have done so only to achieve an expeditious resolution to the proceedings does not invalidate the plea. There is no merit in ground 1 and leave in respect of it should be refused.

11. As to ground 2, the only basis for the appellant's claim that his plea was obtained by improper inducement is his assertion that Ms Rogers urged him to plead guilty.  The provision of information and the giving of advice does not amount to inducement.  In the present case, we accept Ms Rogers' evidence that she explained to the appellant the relative advantages and disadvantages of pleading guilty.  These included that if he pleaded guilty, he would receive a discount on any sentence of imprisonment.  She told him that an immediate sentence of imprisonment was a likely outcome but that the time he had spent in custody would be taken into account.  She also told him that if he pleaded not guilty, there would be a delay before a trial and that there would be a risk that he would be found guilty in any event.  There is no merit in the claim of inducement and leave in respect of ground 2 should be refused.

12. As to ground 3, there was plainly a proper basis for the appellant to be found guilty of grievous bodily harm on the admitted facts.  Those admitted facts expressly stated that the appellant and the co‑offender had a common intention to assault the victim and that a probable consequence of the prosecution of that unlawful purpose was that grievous bodily harm would result.  By his plea, and his acceptance of the facts, the appellant admitted guilt on that basis.  That he now asserts that there was no common intention is not to the point.  It was open to the appellant to plead guilty to the charge on the asserted basis if he wished to do so.  He took that option.  An appeal is not the occasion to try an issue that was abandoned by entering a plea of guilty.  There is no merit in ground 3 and leave in respect of it should be refused.

13. As to ground 4, the appellant asserts that he had a defence of provocation.  There is no substance in this claim.  Provocation is not available as a defence to grievous bodily harm.  Furthermore, the defence of use of force to prevent repetition of insult is only available where the force used is not intended, or likely, to cause grievous bodily harm.   In any event, a plea of guilty is an acceptance of all the elements of the offence and an acceptance that no defence is available.  Leave in respect of ground 4 should be refused. 

Appeal against sentence - grounds of appeal

1. The grounds of appeal against sentence are as follows:[102]

   1.The Learned Sentencing Judge erred in fact in that he failed to consider the contribution in mitigation of the Complainant's verbal provocation to the offending, which was aggravated by the conduct of previous legal counsel.

   2.Conduct of counsel - The Appellant was not adequately advised and represented by his previous legal counsel as to the content of advice provided towards and representation at sentencing, resulting in a miscarriage of justice.

   3.The sentence of immediate imprisonment was not an appropriate sentence in light of the facts.

   4.The sentence of 20 months of imprisonment was manifestly excessive.

   [102] WAB 91.

Appeal against sentence - appellant's submissions

1. The appellant submits that he instructed Ms Rogers that prior to the assault the victim directed insulting words (including 'poofters' and 'paedophiles') at him and the co‑accused.   This is said to amount to provocation, which, even if not amounting to a complete defence to the charge, was a significant mitigating factor.  The appellant submits that Ms Rogers failed to make submissions regarding this factor and, in effect, neutralised it by submitting that the appellant accepted that his behaviour was 'very disproportionate' to anything that was said by the victim.  This resulted in the sentencing judge not being informed of the 'full circumstances' of the offence.[103]

   [103] WAB 97 - 98, 100, 102.

2. As to ground 2, the appellant submits that Ms Rogers failed to present information relevant to mitigation in the sentencing proceedings.  Specifically, information regarding the alleged verbal provocation and a medical report regarding the appellant's mother.  The report is a letter from 'First In Haematology and Oncology' dated 3 June 2024.[104]  The appellant says that this letter was provided to Ms Rogers, but that she told the sentencing judge that there were 'no actual medical reports' concerning the appellant's mother's cancer diagnosis.  The appellant submits that there was no objective rational basis for Ms Rogers not to provide the relevant information regarding provocation and the appellant's mother's medical condition.[105]

   [104] YAB 22.

   [105] WAB 104 - 105.

3. As to grounds 3, the appellant submits that this was a case where the facts of the offending and the personal circumstances of the appellant, in combination, favoured the imposition of a suspended sentence.  The appellant particularly notes that by the time he came to be sentenced, he had already spent seven and a half months on remand and that it could be assumed that this had met any need for personal deterrence.  The appellant also refers to a refusal of parole in October 2024 due to unmet treatment needs and the lack of opportunity to engage in programs.  The implication is that this unforeseen circumstance has resulted in a more onerous sentence than might have been anticipated.[106]

   [106] WAB 106 - 107.

4. As to ground 4, the appellant submits that the sentence of 20 months' immediate imprisonment was manifestly excessive having regard to the sentence imposed in The State of Western Australia v Babakarkhil.[107]  The appellant submits that the imposition of 21 months' immediate imprisonment in Babakarkhil for an offence of doing grievous bodily harm that was objectively more serious, indicates that the sentence imposed on the appellant was excessive.[108]

   [107] The State of Western Australia v Babakarkhil [2022] WASCA 59.

   [108] WAB 108 - 109.

Appeal against sentence - respondent's submissions

1. The respondent submits that, if Ms Rogers' evidence on the appeal is accepted, the appellant had little recall of the of the events surrounding the offence.  This would have been obstacle to the appellant establishing provocation as a mitigating factor.  In any event, there was an objectively reasonable forensic basis for not pursuing the issue of provocation.  If that issue had been pursued it would have contradicted the appellant's claimed acceptance of responsibility and expressions of remorse.[109]

   [109] WAB 115 - 116.

2. As regards the letter from the appellant's mother's doctor, the respondent submits that the letter does not support the appellant's claim that his mother was terminally ill, nor does it contain any details as to her prognosis or treatment.  In these circumstances the respondent submits that Ms Rogers' view that the letter was inadequate to support a submission that the appellant's mother was terminally ill was objectively reasonable.  Ms Rogers nonetheless pressed the issue as strongly as she could in the appellant's plea in mitigation.[110]

   [110] WAB 115

3. As regards grounds 3 and 4, the respondent submits that having regard to the maximum penalty, the seriousness of the offence, the importance of personal and general deterrence, and sentences imposed in comparable cases; the sentence of 20 months' immediate imprisonment imposed in this case has not been demonstrated to be manifestly excessive either as to type or length.[111]  The respondent refers to Trompler v The State of Western Australia;[112] Kere Kere v The State of Western Australia;[113] Yaqubi v The State of Western Australia[No 2];[114] Peake v The State of Western Australia;[115] The State of Western Australia v Ghilardi;[116] Ellis v The State of Western Australia;[117] The State of Western Australia v Saleh;[118] and The State of Western Australia v Mackey.[119]

   [111] WAB 117 - 124.

   [112] Trompler v The State of Western Australia [2008] WASCA 265.

   [113] Kere Kere v The State of Western Australia [2016] WASCA 189.

   [114] Yaqubi v The State of Western Australia[No 2] [2016] WASCA 187.

   [115] Peake v The State of Western Australia [2015] WASCA 239.

   [116] The State of Western Australia v Ghilardi [2015] WASCA 61.

   [117] Ellis v The State of Western Australia [2013] WASCA 220.

   [118] The State of Western Australia v Saleh [2020] WASCA 205.

   [119] The State of Western Australia v Mackey [2017] WASCA 204.

4. The respondent submits that a sentence of immediate imprisonment is ordinarily imposed for offences of doing grievous bodily harm.  The relatively few cases where a suspended sentence has been imposed have involved unusual circumstances.  The respondent refers to The State of Western Australia v Ellement,[120] in which a suspended sentence was set aside on appeal and an immediate sentence was imposed.  Reference is also made to Etrelezis v The Queen[121] and Boyle v The State of Western Australia,[122] in which immediate sentences of imprisonment were set aside on appeal and substituted with suspended sentences.  In each of those cases, the victims had behaved in a manner which provoked the act which caused the grievous bodily harm.[123]

   [120] The State of Western Australia v Ellement [2016] WASCA 1.

   [121] Etrelezis v The Queen [2001] WASCA 327.

   [122] Boyle v The State of Western Australia [2010] WASCA 97.

   [123] WAB 122 - 123.

Appeal against sentence - relevant legal principles

1. As regards grounds 1 and 2, the legal principles applicable to a ground of appeal that alleges that a miscarriage of justice has occurred due to the conduct of defence counsel are well established.[124]  An appellant must demonstrate that the conduct of his or her counsel caused a miscarriage of justice, a task which constitutes a heavy burden.[125]  That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel.

   [124] See Huggins v The State of Western Australia [2018] WASCA 61 [375] ‑ [401].

   [125] TKWJ v The Queen[2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J).

2. Ordinarily, an accused is bound by the way the trial is conducted by counsel in relation to matters within counsel's remit, regardless of whether that was in accordance with the wishes of the client.  It is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment or even negligence.[126]  Counsel is entrusted with wide discretion as to how the case should be run.  Decisions including what witnesses should be called or what questions should be put in cross‑examination are, generally speaking, within the remit of counsel.  Thus, it will not be enough for an appellant to merely express disagreement with the decisions made by counsel.  Significantly more is required to establish a miscarriage of justice. 

   [126] TKWJ [74], [79] (McHugh J); R v Birks(1990) 19 NSWLR 677, 685 (Gleeson CJ).

3. The same is true of decisions made in the course of sentencing proceedings.  Counsel in sentencing proceedings has a wide discretion as to how sentencing proceedings should be approached, including what matters should be pressed in mitigation and what submissions should be made to the sentencing judge.  

4. This court does not examine whether a decision taken by appellant's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage.  Rather, the court is concerned only with whether counsel's decision is capable of explanation on that basis.  That is, could there be any reasonable explanation for the decision?  The test is objective in character.[127]

   [127] Morgan v The State of Western Australia [No 2][2019] WASCA 185 [205] ‑ [206].

5. Turning to grounds 3 and 4, the legal principles that apply in respect of an allegation that an individual sentence is manifestly excessive are well known.  They were discussed by this court in Kabambi v The State of Western Australia.[128]  Those principles have been restated on many occasions and it is unnecessary to repeat them.  The question is not what sentence this court would have imposed, but whether the sentence imposed was so unreasonable or plainly unjust that an error in the exercise of sentencing discretion can be inferred.

   [128] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

6. A sentencing judge must not impose a term of immediate imprisonment unless satisfied having regard to the sentencing principles set out in the Sentencing Act that it is not appropriate to impose suspended or conditional suspended imprisonment.[129] The critical question in an appeal such as the present is whether it was reasonably open to the sentencing judge to be positively satisfied that a suspended or conditionally suspended term of imprisonment was not an appropriate sentencing option, having regard to the facts and circumstances of the particular case and all relevant sentencing factors and principles.[130]

   [129] Sentencing Act, s 39(2), s 39(3).

   [130] See McIntyre v The State of Western Australia [2016] WASCA 150 [19]; Nayna v The State of Western Australia [2016] WASCA 169 [53]; Smith v The State of Western Australia [2017] WASCA 73 [25].

Appeal against sentence - disposition

1. As to ground 1, Ms Rogers said in evidence that she made a considered decision not to use the claims that the victim had used insulting words to mitigate the offending.  The test is an objective one and the actual reasons of Ms Rogers for not placing reliance on any insulting words said by the victim as a mitigating factor do not need to be examined.  It is sufficient to say that this was not a matter that was overlooked by Ms Rogers.  Objectively there were sound forensic reasons for not relying on the alleged insults.  Had the appellant sought to justify or minimise his conduct by claiming that he was responding to insulting comments made by the victim this would likely have undermined his claims to being remorseful.  His remorse was a significant factor in the sentencing and was accepted by the sentencing judge.

2. Furthermore, the onus would have been on the appellant to establish provocation and, if not accepted by the prosecution, this would have required him to give evidence.  The prospects of the appellant's evidence being accepted on this issue, in circumstances where he had repeatedly claimed to have little recollection of the events and was heavily intoxicated, were low.  In any event, the violence as depicted in the CCTV footage was so grossly disproportionate to any insults of the type alleged by the appellant, that it is highly unlikely that any mitigatory value could have been derived, even if the appellant established that the insults were made. 

3. As to ground 2, Ms Rogers accepted that she had the doctor's letter of 3 June 2024 at the time of sentencing.  She did not provide it to the sentencing judge because she did not consider that it advanced the appellant's contention that his mother was terminally ill.  The letter is very brief and consists of a single sentence.  It merely states that the appellant's mother was receiving weekly treatment and was unable to travel as at the date of the letter.  It does not state the nature of the mother's illness, the type of treatment she was receiving, the effect of the illness or treatment on her functioning, or her prognosis.  It was plainly open to counsel to take the view that this was not a medical report and did not contain any information that would assist the appellant.  Ms Rogers made such submissions as were reasonably appropriate in the circumstances regarding the mother's illness and the hardship to the appellant in being unable to visit her. 

1. As to grounds 3 and 4, the maximum penalty for doing grievous bodily harm is 10 years' imprisonment.  Offences of this nature are ordinarily dealt with by imposing sentences of immediate imprisonment.  As a matter of fact, suspended sentences are rare and usually only imposed where there are unusual mitigating factors. 

2. The dominant sentencing considerations for offences where grievous bodily harm is done are personal and general deterrence.[131]  In Saleh,[132] this court observed that:

   [t]he need to impose sentences that reflected the need for general deterrence was an important consideration.  The courts must be seen to stand firmly against alcohol fuelled violence in public entertainment areas.

   [131] Mackey [45], [58].

   [132] Saleh [59].

3. There is no tariff for the crime of unlawfully doing grievous bodily harm.  It is an offence that can be committed in a wide variety of circumstances by offenders whose personal circumstances can also vary greatly.  In Trompler,[133] Wheeler JA concluded that the post‑transitional range for offences which were towards the upper end of the range of seriousness but not of the most serious kind was between 3 ‑ 5 years' imprisonment.  McLure JA identified the post‑transitional range for offences of this type as being between 8 months and 5 years 4 months' imprisonment.[134]  The sentence of 8 months at the lower end of that range was noted by her Honour as being undoubtedly merciful.[135]  Cases falling within that range were reviewed by McLure JA and all involved a plea of guilty. 

   [133] Trompler [19].

   [134] Trompler [38].

   [135] Trompler [37].

4. As to the seriousness of the present offence, it involved alcohol fuelled violence in a public place.  There was an element of persistence in the attack, in that both offenders approached and struck the victim.  The victim was vulnerable in that he was sitting on the ground throughout the attack and had little means of defending himself or escaping.  He was also outnumbered by his assailants.  In addition, the victim was homeless and suffering mental health issues.  There was no meaningful provocation for the conduct.  It was a senseless act of violence. 

5. The injury suffered by the victim was not life‑threatening, though it was plainly serious.  He required hospitalisation and has suffered ongoing medical issues, though he did decline the recommended surgery.  The offence was in the lower mid‑range for offences of this type.   

6. As to the appellant's personal factors, the most significant mitigating factor was his plea of guilty, which was entered at the earliest reasonable opportunity.  The appellant did remain for a short time at the scene and made some perfunctory attempts to rouse the victim.  However, he then walked away without rendering any assistance or seeking to call for medical assistance for the victim.  He expressed remorse in handwritten letters and the sentencing judge accepted that these expressions were genuine.  He has a minor criminal record.  He has a good work history.  These personal factors have to be weighed against the importance of personal and general deterrence in sentencing for offences of this nature.

7. In our view it was reasonably open to the sentencing judge to be positively satisfied that a suspended or conditionally suspended term of imprisonment was not an appropriate sentencing option, having regard to the facts and circumstances of the particular case and all relevant sentencing factors and principles.

8. As to the length of the sentence, it is unnecessary to refer to the facts of all of the comparable cases. It is sufficient to note that a term of 20 months' imprisonment to be served immediately is consistent with sentences imposed in other cases of this kind. Whilst the appellant had good antecedents, reasonable prospects of rehabilitation if he addressed his alcohol problem, and was less culpable because he was liable on the basis of a common intention under s 8 of the Code, the sentence imposed properly reflected those factors. It is not reasonably arguable that the sentence was unreasonable or plainly unjust.

9. None of the grounds of appeal against sentence has a reasonable prospect of success. 

Conclusion

1. As none of the grounds of appeal against either conviction or sentence has a reasonable prospect of success, leave to appeal must be refused.

2. For those reasons, following the hearing of the appeal, we made the following orders:

   CACR 131 of 2024:

   1.Extension of time granted.

   2.Appellant's application to adduce additional evidence granted.

   3.Respondent's application to adduce additional evidence granted.

   4.Leave to appeal refused.

   5.Appeal dismissed.

   CACR 132 of 2024:

   1.Extension of time granted.

   2.Appellant's application to adduce additional evidence granted.

   4.Leave to appeal refused.

   5.Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MO

Associate to the Honourable Justice Hall

12 JUNE 2025