R v Wilkinson - [2008] SASC 172

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILKINSON
[2008] SASC 172
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)
4 July 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence - appellant pleaded guilty in the District Court to aggravated serious harm with intent to cause serious harm, aggravated assault causing harm and aggravated harm with intent to cause harm - the aggravating factor was that the victim was the appellant's de facto spouse - appellant had a history of domestic violence against the victim - the second and third offences occurred in breach of bail - sentencing Judge imposed the one sentence for all offending of a term of imprisonment for seven years and eight months with a non-parole period of four years and six months - whether the sentence was manifestly excessive - whether the plea of guilty to aggravated serious harm with intent to cause serious harm was entered into under a misapprehension, and so whether the appellant should be given permission to withdraw his plea - whether the injuries inflicted with respect to this charge caused "serious bodily harm".
Held: appeal dismissed - the injuries sustained by the victim, both physical and psychological, were serious - sentence imposed was within the sentencing Judge’s discretion - there was no error in the approach of the Judge - sentence was not manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 5AA, s 20, s 21, s 23 and s 24; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Bail Act 1985 (SA) s 11; Statutes Amendment (Domestic Partners) Act 2006 (SA), referred to.
R v Banens (Unreported, Supreme Court of South Australia, King CJ, Legoe and Von Doussa JJ, 18 November 1987); R v Lennon (2003) 86 SASR 295; R v Gray [1977] VR 225; Readman (1990) 47 A Crim R 181; The Queen v Kain (1985) 38 SASR 309, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"serious bodily harm"

R v WILKINSON
[2008] SASC 172
Court of Criminal Appeal: Gray, Sulan and White JJ
GRAY J:

This is an appeal against sentence.
This appeal highlights the serious consequences of domestic violence. The role of the court when sentencing in the present proceedings brings into sharp focus the need to protect the weak and vulnerable. The defendant engaged in brutal conduct towards his de facto, a young teenager, in need of effective protection. Later in these reasons I will discuss the vulnerability and plight of this young victim.
The Offence
The defendant and appellant, Benjamin Wilkinson, pleaded guilty in the District Court to the offence of aggravated serious harm with intent to cause serious harm contrary to section 23(1) of the Criminal Law Consolidation Act 1935 (SA).[1] The offence was alleged to have been committed between 28 and 31 May 2006. The defendant committed the offence knowing that the alleged victim, KS, was his de facto spouse, which was the aggravating factor of the offence.[2] The maximum penalty for this offence is imprisonment for 25 years.
[1] A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 20 years;
(b)for an aggravated offence—imprisonment for 25 years.
[2] Pursuant to section 5AA(1)(g) of the Criminal Law Consolidation Act 1935 (SA).
The defendant pleaded guilty to two further offences that occurred on 2 August 2006 – aggravated assault causing harm contrary to section 20(4) of the Criminal Law Consolidation Act[3] and aggravated harm with intent to cause harm contrary to section 24(1) of the Criminal Law Consolidation Act.[4] The circumstance of aggravation with respect to these two offences was that the defendant was aware that the alleged victim, KS, was his de facto spouse. The maximum penalty for an offence against section 20(4) is imprisonment for four years. The maximum penalty for an offence against section 24(1) is imprisonment for 13 years.
[3]A person who commits an assault that causes harm to another is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 3 years;
(b)for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 4 years;
(c)for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 5 years.
Note—
This offence replaces section 40 (assault occasioning actual bodily harm) as in force prior to the commencement of this subsection and, consequently, see Coulter v The Queen (1988) 164 CLR 350.
[4]A person who causes harm to another, intending to cause harm, is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 10 years;
(b)for an aggravated offence—imprisonment for 13 years.
The sentencing Judge proceeded pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose the one sentence for all offending – a term of imprisonment for seven years and eight months. A non-parole period of four years and six months was fixed.
On appeal it was complained that the sentence was manifestly excessive. It was further argued on appeal that the defendant’s guilty plea to the offence against section 23(1) had been entered under a misapprehension. An offence against the section includes the element of serious bodily harm. It was contended that the injuries inflicted with respect to this charge did not cause serious bodily harm and that as a consequence the defendant should be allowed to withdraw his plea.
The Facts
The defendant first met KS in or about 2002. They formed a relationship which led to KS’s pregnancy and the subsequent birth of their child. She was then aged 13 years. They separated for a period. The defendant was apparently unaware of the pregnancy or the birth of the child. He did not learn of these events until some time after May 2006. The defendant and KS resumed their relationship in or about 2004 and thereafter continued in a de facto relationship until May 2006.
It was agreed that the offences committed in May and August 2006 were not isolated incidents of violence. It was further agreed that the offences occurred against a background of domestic violence perpetrated by the defendant upon KS.
A declaration of KS outlined the history of domestic violence. KS had been assaulted by the defendant on more occasions than she could remember. However, there were three incidents prior to the present offending that she could recall, each of which led to reports to the police.
At some time prior to July 2005, while the defendant and KS were living together, an incident occurred when the defendant continually punched and kicked KS. KS rang 000 but was unable to explain to the police what was occurring. When the police returned the call, the defendant held a gun to the head of KS while she answered the call. KS told the officer that everything was OK and hung up.
In July 2005, the defendant punched KS several times to the head and chest. KS sought treatment at the Flinders Medical Centre and reported the matter to the police.
In November 2005, the defendant poured alcohol over KS and then punched her in the face and kneed her to the chest. She sought medical treatment and reported the matter to the police.
The May 2006 Offending
At the time of the May 2006 offending, the defendant was on bail with respect to conduct not associated with KS. The defendant had been earlier charged with two counts of threatening another person with a firearm. The May 2006 offending involved a breach of terms of the defendant’s bail with respect to the firearm charge.
The precise circumstances surrounding the incident in May 2006 are unclear. As a result of a closed head injury sustained in the incident, KS has little memory of the detailed circumstances of the incident. According to KS, at about 10.00pm she had gone to collect the defendant from the home of a friend because the defendant was subject to a 10.00pm curfew as a condition of his bail in respect of the earlier charge. The defendant became angry when KS told him that he had to come home because of the curfew requirement. This led to the assault. KS had a general recall of being kicked and punched to her face and chest by the defendant. The defendant claimed to have no memory of the incident but ultimately accepted that he had intentionally caused KS serious bodily injury. Independent witnesses heard KS crying out for her assailant to stop and for help. She was discovered lying on the ground with severe head injuries. At that time the defendant was present but when the others arrived he left the scene claiming that KS was his girlfriend and had been assaulted by a third party.
KS was taken by ambulance to the Flinders Medical Centre and admitted as an inpatient to the high dependency unit for four days. The extent of the injuries sustained confirmed that KS had been the subject of a brutal assault. As earlier observed, she required treatment in the high dependency unit. Her injuries included severe multiple and extensive bruising to the face, head and neck. Hair had been pulled out. There was extensive dental damage. KS was unable to open her eyes due to swelling and bruising. There were scratches and cuts to her face. She was unable to orally take food or fluid and was fed through a tube. Radiological examination revealed a fracture to her nose. There were other injuries to her body including her chest, arms and legs. In her victim impact statement provided several months later KS spoke of ongoing physical suffering. In a declaration provided a year after the incident, KS told of her ongoing emotional and psychological suffering.
In the course of his record of interview concerning the May 2006 offending, the defendant acknowledged that he was involved in martial arts training. The interviewing police officers noted the defendant’s fit physical appearance. KS appeared to have been of a substantially lighter build and in no position to defend herself against the defendant’s attack. As earlier observed, all of this occurred in breach of terms of bail. The attack was brutal and led to KS being admitted to a high dependency hospital ward. She suffered serious injury as a result of the May 2006 offending.
Section 21 of the Criminal Law (Consolidation) Act defines “serious harm” to mean:
(a) harm that endangers a person’s life; or
(b)harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or
(c)harm that consists of, or results in, serious disfigurement.
As earlier observed, the defendant argued on appeal that the injuries sustained by KS did not constitute serious harm within the above definition.
In my opinion the injuries sustained by KS were serious. They led to serious and protracted impairment of both physical and mental function. The physical impairment continued at the very least for some months, leaving permanent damage to the nose and teeth. The unchallenged declaration of KS confirmed ongoing amnesia about the events of May 2006 as well as long-term psychological suffering. The blows struck by the defendant to KS caused serious disfigurement. The photographs taken while KS was in the high dependency unit present clear evidence of serious disfigurement. It is evident that this disfigurement continued for some time although ultimately healing has occurred. The statutory provision does not suggest that the disfigurement must be permanent disfigurement.
When the attention of counsel for the defendant was drawn to the medical report, the dental report, the victim impact statement and KS’s later declaration, it was acknowledged that this aspect of the defendant’s contentions lacked cogency. I would refuse permission for the plea to this offence to be withdrawn.
The August 2006 Offending
Following his arrest with respect to the May 2006 offending, the defendant was remanded in custody. He was released on bail on 25 July 2006. His bail included a term that he not approach or communicate in any way with KS. The further offending occurred on 2 August 2006 while the defendant was on bail. The defendant breached bail in a number of respects including a no contact condition with KS and a no alcohol condition.
On 2 August 2006 the defendant and KS were walking to a hotel to purchase alcohol. The defendant assaulted KS by kicking and punching her as they walked home. While in the street and before entering the house the defendant pushed KS into a door, held her against the door, put his hand around her neck and then punched her in the face with a clenched fist. He then flung her to a corner of the building. At this time passers-by attempted to intervene but were threatened and chased away by the defendant. The defendant then took hold of KS again, flung her into a wall, causing her head to be struck a number of times as she was punched and elbowed in the face.
The defendant and KS then entered the house where KS lay on a mattress on the floor in a foetal position. While she was in that position the defendant punched and kneed her. KS was punched in the face a number of times. She was aware of the sound of her nose breaking. The defendant demanded that KS clean up. She went to the bathroom and was further assaulted. KS was pushed to the floor, pulled up by her hair, choked and then thrown into the bathroom mirror. The police arrived and KS fled. The defendant was arrested. The defendant claimed that the blood had come from a bleeding tattoo and that there was no female in the house. KS was located a short time later and taken to hospital for treatment.
KS sustained a number of injuries including a displaced fracture of the nasal bone, swelling, bruising and tenderness to the nose, lacerations to the upper lip, bruising to the upper jaw and grazing to the left ear and chest wall.
It was accepted that the defendant and KS were in a de facto relationship. When interviewed with respect to the August 2006 offending, the defendant acknowledged punching KS in the face several times. However, independent witnesses to the incident outside the house confirmed that the assault of KS was much more extensive. KS’s account of the events both inside and outside of the house also confirmed a serious and extended assault.
As earlier observed, the August 2006 offending occurred about a week following the defendant being granted bail in respect of the May 2006 offending. The offending was in breach of terms of bail designed to provide protection to KS from the defendant. KS was severely assaulted. She required hospital treatment. This offending was particularly serious given the history of domestic violence and the defendant’s awareness of the allegations and charge with respect to the May 2006 offending, and to the fact that the conduct occurred in breach of his bail conditions.
Domestic Violence
The history of the defendant’s domestic violence was a relevant matter. At the time of the May 2006 offending the defendant was aged 27 years and KS, 17 years. They had been in a de facto relationship for some years. As earlier observed, the defendant had been a perpetrator of ongoing domestic violence toward KS. During the twelve months leading to May 2006, the police had been contacted by KS about domestic violence on three occasions. KS had sought medical treatment on two of those prior occasions. On one occasion the defendant had threatened KS with a gun leading to her not pursuing a complaint. At this time KS was aged about 15 or 16 years. It is against this background that the May 2006 and August 2006 offending occurred.
The causes of domestic violence are multiple. It has been recognised that relevant contributing factors include immaturity, mental illness, abnormal personality disorders, inhibition through drug abuse, poor anger management and lack of counselling and support. Courts have identified all of the above as common causative factors in modern times. Although imposing longer and longer terms of imprisonment does remove perpetrators from the community, domestic violence continues and its incidence increases. The imposing of sentences of imprisonment is a blunt instrument that does not adequately address the underlying causes of domestic violence in any real way.
The courts have long recognised that personal and general deterrence have a heightened significance when sentencing for the crimes of domestic violence. As King CJ observed in Banens:[5]
The sentence which is imposed by the court for a crime of domestic violence is aimed, in large part, at deterring other people who may be involved in like situations. I think that, in a serious case of domestic violence, it is necessary for this Court to make clear, by actual intervention, to the public that the sentences imposed for this type of crime are calculated to provide effective deterrence to those who might be tempted to commit similar crimes. Not only must the penalties imposed operate, as far as such penalties can, as an effective deterrent, but it must be made clear to the public that the courts are imposing sentences having that effect. It is a question not only of actual deterrence but assurance to the public that deterrent penalties are being imposed.
In Lennon,[6] Doyle CJ re-affirmed these observations:
The court has said consistently that it must do what it can to protect women from violence by men. This applies just as much to violence within a domestic relationship as it does to violence in other situations. In cases like this the community expects, and protection of women requires, that the court should impose a sentence that is likely to deter the individual offender and to deter other potential offenders. The fact that the violence occurs on the spur of the moment is a relevant factor, but this is often true in the case of domestic violence. The impulsive nature of such offences is often offset by the fact that, as here, there is a pattern of violence within the particular relationship, or on the part of the particular offender. Mr Lennon’s record makes it clear that he has not yet learned that violence towards women cannot be accepted.
[5] R v Banens (Unreported, Supreme Court of South Australia, King CJ, Legoe and Von Doussa JJ, 18 November 1987) at 7-8.
[6] R v Lennon (2003) 86 SASR 295 at [12].
Domestic violence is predominantly directed by men toward women. The community expects the law to protect women, to protect the weak from the strong, and to protect the vulnerable from the oppressor. These are factors that have led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. Parliament has recognised that crimes involving violence and assault may be aggravated by a domestic situation.
Of particular concern in the present proceedings is the fact that KS was only 17 years old at the time of the violence directed toward her. As earlier observed, there had been a history of complaints by KS to the police as well as attendances at hospital for treatment. Following the defendant’s arrest in May 2006 and release on bail, it appears that the only steps taken to protect KS were the no contact and no alcohol provisions in the defendant’s bail agreement. Little attention appears to have been directed to the wide powers of the bail authority set out in section 11 of the Bail Act 1985 (SA). Section 11(2a) provides:
In deciding on the conditions to be imposed in relation to a grant of bail, a bail authority should give special consideration to any submissions made by the Crown on behalf of a victim of the alleged offence.

Although the bail agreement was to be supervised by a Community Corrections officer, there is no evidence of such supervision having taken place. There is no suggestion that the defendant was required to undergo counselling in regard to domestic violence to address his alcohol problems, his need for anger management, or to otherwise better equip him to address his anger in a domestic situation. His agreement not to contact KS provided little protection. The conditions of bail following the May 2006 offending were less restrictive than the conditions of bail before that offending. It is difficult to understand why this would be the case.
The circumstances of KS called for special protection. She was a child caught in a violent domestic relationship and in a position of extreme vulnerability. Section 11 of the Bail Act empowered the Court to give special consideration to the position of the victim. Records of the police, hospitals and government departments can be presumed to have addressed her circumstances. Regrettably, in the result she received little or no protection. Her circumstances are not unique. Studies undertaken with respect to domestic violence in Australia, the United States of America, Britain and in many other countries confirm that similar circumstances are not uncommon.[7]
[7] See, for e.g., Margrette Young, Julie Byles and Annette Dobson, “The Effectiveness of Legal Protection in the Prevention of Domestic Violence in the Lives of Young Australian Women”, Australian Institute of Criminology (Trends and Issues in Crime and Criminal Justice, No. 148); Rebecca Morley and Audrey Mullender, “Preventing Domestic Violence to Women”, Police Research Group (Crime Prevention Unit Series: Paper No. 48, London: Home Office Police Department); V. Holt, “Do protection orders affect the likelihood of future partner violence and injury?” American Journal of Preventive Medicine (Volume 24 , Issue 1 , Pages 16-21).
Breaches of Bail
As earlier observed, the defendant breached his bail at the time of both the May and August 2006 offending. Breaches of bail are circumstances of aggravation. In Gray,[8] McInerney and Crockett JJ observed:
Bail is granted on the supposition that the applicant will answer to his bail and is most certainly not granted to enable the offender to commit further offences whilst on bail. Indeed, it has often been said that the commission of offences whilst on bail is an abuse of the privilege of bail. Whether or not bail is to be regarded as a privilege or as a right need not here be determined, though the weight of history is, we consider, in favour of the first view. The real point is that the commission of offences whilst on bail indicates contempt for or disregard of the system of law under which bail was granted to the offender; it suggests that the offender has small regard for the law and little intention of obeying its commands.
Furthermore, it may be said that the person who commits an offence on bail has abused or betrayed the confidence reposed in him by the tribunal which granted him bail. ... Prima facie the quantum of sentence is dependent on the circumstances of the commission of the crime and its immediate consequences, and should not be increased by reference to events occurring after the offence has been committed. But just as conduct subsequent to the commission of the offence which indicates a clear intention to reform is a matter which the offender is entitled to have taken into account in his favour, so also conduct tending in the other direction, i.e. showing that the offender is unlikely to reform, or has at least not yet reformed, is a matter relevant to the sentencing discretion, if or in so far as it suggests that to extend clemency would serve no useful purpose or that leniency is likely to be abused.
[8] R v Gray [1977] VR 225 at 229-230.
In New South Wales a similar view has been taken. In Readman,[9] Maxwell J, with whom Gleeson CJ and Samuels JA agreed, observed:
This Court has repeatedly stated that the commission of an offence by an offender who is in the community on conditional liberty, whether that be on bail, on a recognisance, or on a parole, will be considered as a matter that aggravates the offence.
[9] Readman (1990) 47 A Crim R 181 at 184.
The remarks of King CJ in Kain[10] are of particular relevance to the August 2006 offending:
[W]hen a person is on bail with respect to a charge and he makes use of that bail for the purpose of committing further crime, he must expect that the punishment for that further crime will be cumulative upon the punishment for the crime with which he has previously been charged. Were it otherwise, offenders might be minded to make use of their period of bail to commit further crime in the knowledge or expectation that they would not suffer further punishment, or significant punishment, as a result. There is a strong judicial policy in favour of making clear that crimes committed while on bail will be visited with punishments which will be fully cumulative upon the punishment for the earlier crime.
These authorities provide guidance as to the relevance of the defendant’s breaches of bail when addressing the defendant’s criminal conduct. It is of heightened relevance that the August 2006 offending breached a term of bail designed to protect KS.
[10] The Queen v Kain (1985) 38 SASR 309 at 312.
The Defendant’s Antecedents
The defendant, apart from his earlier referred to history of domestic violence, had relevant criminal antecedents. These included dishonesty and minor drug offending. More recently offences of serious criminal trespass led to a suspended term of imprisonment. Also of relevance is an offence of common assault in 1998.
The defendant’s personal antecedents paint a sad picture. The defendant came from a broken home, his father suicided when he was a young age and he was abandoned by his mother. He has a poor relationship with his siblings. He left school before completing Year 8 and worked from time to time as a vineyard labourer. He has had a number of other relationships and has two children from those relationships.
A psychologist has reported that the defendant has suffered a number of significant life events. The defendant provided a history of being drugged and raped and on another occasion of being badly assaulted. He recounted three attempted suicides. He had engaged in drug abuse involving alcohol, marijuana, amphetamine and heroin, as well as other substances.
The defendant was psychologically assessed as being within the average range of intelligence and as presenting with a clinical profile sufficient to satisfy the relevant diagnostic criteria for a number of psychiatric conditions including an anti-social personality disorder. From a psychological point of view it was suggested that he was a person who suffered significant unhappiness, moodiness and tension. However, there was no evidence before the court that he had been diagnosed with any psychiatric illness.
There was little evidence to suggest any significant level of contrition and remorse on the part of the defendant. Throughout the proceedings there appears to have been an ongoing failure by the defendant to recognise the full severity and impact of his conduct.
The Sentence
The sentencing Judge took a very serious view of the defendant’s criminal conduct. He was right to do so. The defendant engaged in a course of domestic violence extending over a period of more than 12 months in which he bullied, victimised and brutalised his young partner. He continued to engage in acts of domestic violence notwithstanding the attempts of KS to seek police protection, notwithstanding the terms of bail, notwithstanding his arrest and being charged with the May 2006 offences and notwithstanding KS’s pleas that he stop his violent conduct. These circumstances called for a sentence that would operate to personally deter the defendant from further similar conduct. He had not been deterred by earlier warnings.
The need for general deterrence also called for particular attention. Parliament, through the amendments to the Criminal Law Consolidation Act making assault within a de facto relationship an aggravating factor,[11] has drawn attention to the seriousness with which such conduct is viewed. The Courts have a responsibility to give effect to these considerations.
[11] See the Statutes Amendment (Domestic Partners) Act 2006 (SA), which commenced on 1 June 2007.
When the defendant was first arraigned in December 2006, pleas of not guilty were entered to all counts. In March 2007, the matter was listed for trial in October 2007. On 30 April 2007, the defendant pleaded guilty to count one. On 2 September 2007, the defendant pleaded guilty to the remaining counts. The sentencing Judge made a reduction from a notional head sentence of nine years to a term of seven years and ten months before making a further allowance for time spent in custody. This was a reduction of about 12.5%. Given the relative lateness of the pleas, the lack of any real cooperation with the police and the lack of any evidence of any real remorse or contrition, this reduction was within the Judge’s discretion.
Conclusion
A sentence of seven years and eight months with a non-parole period of four years and six months is a substantial sentence to be imposed on a young man facing immediate imprisonment for the first time. However, it is to be borne in mind that this sentence was the one sentence for all offending. The sentence imposed was within the sentencing Judge’s discretion. There was no error in the approach of the Judge. No basis has been shown to interfere with the sentence. The sentence was not manifestly excessive.
This appeal should be dismissed.
SULAN J: I would dismiss the appeal against sentence and I would refuse the appellant permission to withdraw his plea in respect of count 1. I agree with the reasons of Gray J.
WHITE J: I agree, generally for the reasons given by Gray J, that the appeal against conviction should be dismissed. The submissions on appeal raised issues about the proper construction of the definition of “serious harm” in s 21 of the Criminal Law Consolidation Act 1935 (SA). However, it is not necessary presently to engage in a detailed examination of the definition as, on whatever view is taken, the injuries inflicted on the victim in this case amounted to serious harm. Some of the issues about the definition which were raised in the course of counsels’ submissions may have to be addressed in a later appeal.
I agree that the appeal against sentence should be dismissed. Subject to one matter I also agree generally with the reasons of Gray J on this appeal. The circumstances of the appellant’s release on bail in July 2006, and the supervision afforded to him while on bail, were not the subject of evidence or submissions before the sentencing judge, or before this Court. In those circumstances I would prefer not to make any comment about that matter.