R v Webb
[2000] WASCA 6
•31 JANUARY 2000
R -v- WEBB [2000] WASCA 6
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 6 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:152/1999 | 3 NOVEMBER 1999 | |
| Coram: | PIDGEON J WALLWORK J ANDERSON J | 31/01/00 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | THE QUEEN CLINTON EDWARD WEBB |
Catchwords: | Criminal law and procedure Sentencing Crown appeal Persistent assaults occasioning bodily harm committed on wife Cohabitation since resumed Assault on police officers at hotel and resisting arrest offences committed whilst on parole Global sentence of 18 months imprisonment having regard to the overall conduct Whether open to sentence in this manner Held discretion had not miscarried |
Legislation: | Nil |
Case References: | Pearce v R (1998) 72 ALJR 1416 Britten v The Queen, unreported; CCA SCt of WA; Library No 940079; 21 February 1994 Evagora v The Queen, unreported; CCA SCt of WA; Library No 960417; 5 August 1996 Gallegos v The Queen [1999] WASCA 191 Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993 Kilner v The Queen [1999] WASCA 189 Miles v The Queen (1997) 17 WAR 518 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 156 ALR 684 R v Brand, unreported; CCA SCt of WA; Library No 980590; 9 October 1998 R v De Jesus (1986) 20 A Crim R 402 R v Grein [1989] WAR 178 R v Juli (1990) 50 A Crim R 31 R v Ruane (1979) 1 A Crim R 284 R v Shaw (1989) 39 A Crim R 343 Sim v The Queen, unreported; CCA SCt of WA; Library No 940684; 6 December 1994 Smedley v The Queen, unreported; CCA SCt of WA; Library No 990146; 23 March 1999 Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 Veen v R (No 2) (1988) 77 ALR 385 Warrell v Kay (1995) 83 A Crim R 493 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- WEBB [2000] WASCA 6 CORAM : PIDGEON J
- WALLWORK J
ANDERSON J
- Appellant
AND
CLINTON EDWARD WEBB
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Crown appeal - Persistent assaults occasioning bodily harm committed on wife - Cohabitation since resumed - Assault on police officers at hotel and resisting arrest offences committed whilst on parole - Global sentence of 18 months imprisonment having regard to the overall conduct - Whether open to sentence in this manner - Held discretion had not miscarried
Legislation:
Nil
(Page 2)
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : Mr L P Rayney
Respondent : Mr J A Sutherland
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : McDonald & Sutherland
Case(s) referred to in judgment(s):
Pearce v R (1998) 72 ALJR 1416
Case(s) also cited:
Britten v The Queen, unreported; CCA SCt of WA; Library No 940079; 21 February 1994
Evagora v The Queen, unreported; CCA SCt of WA; Library No 960417; 5 August 1996
Gallegos v The Queen [1999] WASCA 191
Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993
Kilner v The Queen [1999] WASCA 189
Miles v The Queen (1997) 17 WAR 518
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 156 ALR 684
R v Brand, unreported; CCA SCt of WA; Library No 980590; 9 October 1998
R v De Jesus (1986) 20 A Crim R 402
R v Grein [1989] WAR 178
R v Juli (1990) 50 A Crim R 31
R v Ruane (1979) 1 A Crim R 284
R v Shaw (1989) 39 A Crim R 343
(Page 3)
Sim v The Queen, unreported; CCA SCt of WA; Library No 940684; 6 December 1994
Smedley v The Queen, unreported; CCA SCt of WA; Library No 990146; 23 March 1999
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Veen v R (No 2) (1988) 77 ALR 385
Warrell v Kay (1995) 83 A Crim R 493
(Page 4)
1 PIDGEON J: This is an appeal by the Crown in respect of a sentence of two years imprisonment imposed on the respondent by his Honour Judge Wisbey in the District Court at Bunbury. The respondent was born in 1964. He has appeared in the Court of Petty Sessions on a number of occasions on offences which include assault. In January 1998 he was sentenced to a term of 18 months imprisonment for offences involving the cultivation and possession of cannabis with an attempt to sell or supply to others. The offences the subject of this appeal occurred whilst he was on parole.
2 When the respondent was released from prison on parole he resumed co-habitation with his de facto wife and children. He commenced using drugs again, mainly cannabis and amphetamines, which had a serious effect on him including having delusions. He committed a number of serious offences against his wife which resulted in his appearing on indictment in Bunbury before Judge Wisbey. The first of these offences occurred in Busselton on 29 November 1998 when the respondent, his wife and their 4-year-old daughter were driving to the house of the wife's mother for the purpose of collecting their son. The wife was driving. His Honour was told by counsel for the Crown that the respondent thought that instead of collecting their son, the wife was driving him to a location where someone was going to hit him. He wanted her to turn the car around. He hit her a couple of times with his right fist whilst she was still driving. The first blow struck her in the mouth and the second blow was to her left eye. She was wearing sunglasses at the time. The force of the blow dislodged the lens. She pulled the car up on the gravel near the Causeway Service Station and got out of the car. The respondent was shouting at her to get back into the car but she did not want to do as she was in fear of the respondent. The respondent then drove the car away. This resulted in a charge of the respondent unlawfully assaulting the complainant thereby doing her bodily harm. The complainant did not at that stage report the matter and continued to live with the respondent.
3 A few days later there was further violence against the wife resulting in the next two counts. She cannot state the exact date. The respondent used a thin rope to tie her to a bedhead. He tied both of her wrists with the rope and he tied her ankles to the bed with stockings. While she was thus tied the respondent punched her three or four times to the head with his fists. He also punched her in the legs a number of times. Whilst hitting her he talked about a conspiracy he said was against him. The respondent left the house for about 10 minutes leaving his wife still tied up. She tried to break the string that bound her hands but was unable to do so. The respondent came back into the room about 20 minutes later
(Page 5)
- when the wife begged him to let her go. He then used a knife to cut her free but the string had cut into both of her wrists. The respondent was charged with unlawfull detention and with assault occasioning bodily harm. The indictment said these offences occurred between 30 November 1998 and 7 December 1998. The wife again did not report the matter and continued to live with the respondent.
4 The next three counts occurred on Sunday morning 6 December 1998. The respondent was asking his wife for cash to purchase some amphetamine. She told him that she did not have any money. The respondent picked up a fishing rod and hit her on the upper arms about six to eight times. He also hit her in the body, legs and forearms. He initially used the thin end of the fishing rod to hit her but when it snapped he used the thicker end which had the handle. He also used a curtain rod which was standing up in the corner of the bedroom to hit her in the head. She had a lump behind her left ear and the top of her head as a result of that particular assault. This assault lasted on and off for the whole day. The respondent left the house about 9 pm that evening taking both of the children with him. The complainant jumped the fence of her neighbour in order to hide from the respondent and she was eventually found. She reported the matter for the police and applied for and was granted a restraining order. She went to live in a women's refuge in Bunbury.
5 The injuries received are set out in a medical report and are apparent from photos before his Honour. They included a .5 cm dry laceration over vertex of head, an extensive bruising and abrasions to most other parts of the body particularly to those parts that were struck. I would refer particularly to extensive bruising below the left eye giving the appearance of a noticeable black eye and very severe bruising of the right breast. There were also cigarette burns over many parts of her body.
6 The respondent asked his Honour to deal with a number of other matters pursuant to s 32 of the Sentencing Act. The first was an assault on a 19-year-old man which took place on 13 November 1998. The respondent said that this person was an associate in the drug scene. The respondent and another went to a house in Busselton where the victim was in the front yard. The respondent was holding a didgeridoo and without any provocation attacked the victim. The victim attempted to protect himself and grappled with the didgeridoo. He then fell to the ground where he was struck several times across the upper back and right forearm by the didgeridoo. The person with the offender continued to punch and attack the victim about the body while he was attempting to get away. The victim ultimately crawled over to a car and run away from his
(Page 6)
- attackers. He received bruising to the upper back, right forearm and the front of his head and abrasions.
7 The next offence was an assault which took place on 22 November 1998. On this occasion a 40-year-old man visited the respondent at his house. There was an argument between this visitor and the respondent in respect of a threatening letter. The respondent, without warning or provocation, used both clenched fists and struck the visitor numerous times about the head and face and forced him to the ground. He then kicked the victim on the chest and continued to attack him. The respondent said "I am going to fix you cunts once and for all. You dogs are going to get what's coming. He then demanded that the victim shout an apology to the respondent's wife. The respondent then picked up and swung a piece of wood striking the victim across his right ribs. The victim continued to apologise in an effort to stop the attack. The respondent then, holding the wood with both hands, swung the piece of wood across the victim's lower leg. The victim crawled to the vehicle and the respondent continued to abuse him. The victim was able to drive away and sought immediate medical attention at the local hospital. He was later conveyed to Royal Perth Hospital for further treatment and was released six days later. He suffered bruising around the face and head, four fractured right ribs and a fractured right lower leg.
8 The remaining four offences on the s 32 notice occurred at the Vasse Hotel on 22 January 1999. The respondent was asked to leave by reason of his behaviour and his dress. He refused to leave. The police were then called and they too asked the respondent to leave and he did so. A short time later he re-entered the hotel. The police followed him in. The respondent then grabbed three pool balls and held them in a threatening manner at the police. He was then told he was under arrest. He backed up to the bar and refused to co-operate with the police. They attempted to arrest him and he then struck one of the arresting officers with his right hand which had a pool ball in it. He then struck the second constable in the mouth with his left hand which was holding two pool balls. This caused three bottom teeth to come loose and several teeth to be chipped. The respondent then picked up a bar stool and swung it at the first policeman hitting him in the left shoulder causing him to step back. There was again an attempt to arrest the respondent but he prevented his arrest by throwing chairs at police officers. The respondent then went through the bottle shop where he was spoken to by the police. He calmed down and was taken back to the police station. The four offences with which he was charged was unlawfully re-entering premises, two offences of assaulting public officers and one offence of resisting arrest.
(Page 7)
9 The respondent was remanded to the Graylands Hospital early 1999. He was diagnosed with a psychotic disorder and delusions which are thought to be due to amphetamine use. He was given treatment and discharged. His local doctor said that when the respondent was in prison he came off narcotics and once again worked on his health and fitness and on release was a new man. He returned to the community in Busselton but unfortunately he started using cannabis and amphetamines which caused a delusional state and it was submitted accounted for his behaviour.
10 It was submitted to his Honour that the respondent has lived in the Busselton area all his life. At present he was living with his parents and his wife lives next door. His Honour was informed that the respondent and his wife were reconciled and that the relationship will continue. The wife says that she is keen for the relationship to continue and that there are no difficulties now that the respondent is no longer taking amphetamines. It was submitted that it was in the interests of the children and the mother that the respondent continue to support them. A well known member of the local Aboriginal community gave evidence before his Honour speaking very highly of the respondent and of his achievements before being affected by drugs. He spoke of the extent of difficulties of illegal drug use in the Busselton area and how it was likely that the respondent would be tempted. It was recognised in the plea of mitigation that there must be a prison term but there was a plea that it be suspended.
11 His Honour in his sentencing remarks referred to the very serious nature of the offences and I consider emphasis must be given to this. The courts must view very seriously domestic violence of the type described to his Honour. The courts will also view extremely seriously behaviour of the type described which occurred in the hotel where uniformed officers were attempting to restore order. It can be expected that behaviour of that type must lead to imprisonment particularly having regard to the injuries received by the police officers. The overall behaviour described must inevitably lead to an immediate prison term. His Honour recognised this and made it clear that the term could not be suspended. His Honour also said, in my view correctly, that it does not operate in mitigation for a person to say that the behaviour engaged in would not otherwise have been engaged in had it not been for the ingestion of elicit substances. His Honour added "It can be said, however, and must be said that if the offending behaviour which gave rise particularly to these events can be curtailed, then there is a prospect for your rehabilitation."
(Page 8)
12 The question which arises in this appeal is the length of the term. His Honour imposed a term of 2 years and the following were his reasons (AB25):
"I am mindful of what your counsel has said about suspension of any term. In my view, having regard to the antecedents and all the circumstances here, including the seriousness of the offences, the term which I propose to direct is one that in my view should be immediately served.
Before I had put before me the information that your counsel has brought to the attention of the court and before hearing from Mr Hill and a detailed reading of the medical reports, it was my view that the appropriate head term for the totality of your criminal behaviour ought to be something of the order, before a discount for your plea, of the order of 5 years.
Having regard to the matters to which I have just referred, however, in my view the appropriate head term to cover the totality of these offences before a reduction for your early plea is one of 3 years. I reduce that to a term of 2 years to make appropriate recognition for your cooperation and early plea.
In order to achieve that result I structure the sentence in this way: in respect of count 2 on the indictment, that of unlawful detention, you will be sentenced to 2 years' imprisonment ... ."
13 His Honour structured the sentences in respect of all offences so as to reach this term of 2 years.
14 The Crown are appealing firstly on the ground that his Honour erred in concluding that the appropriate head term to cover the totality of these offences, before reduction for the respondent's early plea is one of three years, having previously found the appropriate head sentence before discount for the respondent's plea as of the order of 5 years. There are many particulars of this ground setting out details to which I have already referred. The second ground claims that his Honour erred in failing to give sufficient weight to the need for general deterrence particularly to deter violence and mistreatment of women and public officers. The third ground is that his Honour gave too much weight to matters personal to the respondent when making the discount he did. The final ground claims that his Honour erred in ordering that all the sentences be served concurrently in that each offence involved the breach of a different legally protected interest.
(Page 9)
15 His Honour had an extremely difficult decision to make. He was sentencing on circuit at a place close to where the offences took place and where the respondent has lived all his life. He heard lengthy evidence from a leader involved in the local Aboriginal community as to how the respondent has been viewed. The respondent had committed extremely serious offences. There was a known cause and there was every indication that the respondent was being rehabilitated. His wife has forgiven him and sees it as important for the family for the respondent as a rehabilitated man to be with the family. In these circumstances it is proper for his Honour to have regard to matters personal to the respondent. His Honour was required to weigh up these factors. He was also obliged to weigh up the extremely serious nature of the conduct, particularly the domestic violence involving the woman with whom he was living and the conduct against police officers in the hotel. His Honour recognised that because of this the respondent must receive significant punishment which could only be by an immediate term of imprisonment. His Honour was conscious of and accurately stated the appropriate sentencing principles. I do not consider in these circumstances that this is a case where guidelines as to the length of the term can be derived from other cases. These cases show that there must be immediate imprisonment but do not assist in the length of term of imprisonment.
16 The principles this court must follow on appeals against sentence have often been set out and do not need to be repeated. The Court must be extremely careful in respect of a sentence imposed on circuit in circumstances such as this.
17 I do not consider that this is an appropriate case to examine the question whether Pearce v R (1998) 72 ALJR 1416 precludes his Honour from sentencing in the way he did. His Honour looked at the overall conduct and fixed the total sentence. Had they been overlapping offences and if it resulted in the respondent being in double jeopardy then Pearce's case would clearly be applicable. It would be very arguable whether Pearce's case was intended to be applied as a reason to increase the sentences imposed. The final ground refers to the fact that there may not have been adequate punishment in respect of the hotel offences. When sentencing in the way his Honour did, it is important to ensure that offences as serious as those committed in the hotel do not go unpunished. It would normally be necessary to treat them as separate offences carrying a separate term and then to apply the totality principle. It is nevertheless apparent that one of the reasons why his Honour considered that a term for imprisonment should not be suspended was by reason of these
(Page 10)
- offences. Occasions do arise particularly when it is necessary to impose a term of imprisonment on a person in the situation of the respondent to have regard to the overall conduct and I would be hesitant to say that a court is precluded from this option.
18 I am not persuaded that his Honour in reaching the ultimate term he did was wrong or that there is a basis for this Court to interfere. I would dismiss the appeal.
19 WALLWORK J: I agree with the reasons for judgment of Pidgeon J and to the order proposed by his Honour. There is nothing I wish to add.
20 ANDERSON J: The facts of this case are fully stated in the judgment of Pidgeon J and there is no need to repeat them. In my opinion, the aggregate sentence imposed in the District Court was lenient. However, the sentences that were imposed for the various offences, structured as they were to take account of totality principles, were not so low as to be beyond the range of a sound exercise of sentencing discretion. No other error is demonstrated. I therefore agree that the appeal must be dismissed.
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