Re Kickett - [2005] WASCA 164

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RE KICKETT; EX PARTE THE STATE OF WESTERN AUSTRALIA [2005] WASCA 164

CORAM: ROBERTS-SMITH JA

HEARD: 18 AUGUST 2005

DELIVERED : 18 AUGUST 2005

FILE NO/S: CACR 110 of 2005
EX PARTE
THE STATE OF WESTERN AUSTRALIA
Applicant
AND
RICHARD JOHN LEONARD KICKETT
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'BRIEN DCJ
File No  :IND 736 of 2003

Catchwords:

Criminal law and procedure - Application for leave to appeal against sentence - State appeal - Assault and unlawful wounding - Whether error in ordering all sentences to be served concurrently - Substantial matters personal to the offender - Whether reasonable prospects of success - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 27(2)

Result:

Application for extension of time granted
Application for leave to appeal against sentence refused
Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: Mr K P Bates
Respondent: No appearance

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: Bayly & O'Brien

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

Brayley & Anor v Malkovic [2005] WASC 136

Case(s) also cited:

Gooch v The Queen [2002] NTCCA 3
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153

ROBERTS-SMITH JA: This is an application by the State of Western Australia for an extension of time and for leave to appeal against sentences imposed by the District Court at Perth on 2 and 9 June 2005. Leave to appeal is required in respect of each ground by virtue of s 27(1) of the Criminal Appeals Act 2004 (WA). By s 27(2), the court must not give leave on a ground unless satisfied that ground has a reasonable prospect of succeeding.
By section 27(3), unless the court gives leave in respect of at least one ground of appeal, the appeal is to be taken to have been dismissed. The powers of the Court of Appeal under s 27 may be exercised by a single Judge (see r 43(2)(c) of the Supreme Court( Court of Appeal) Rules 2005 (WA)).
Although s 27(4)(a) provides that the court may decide whether or not to give leave to appeal with or without written or oral submissions from the parties, this matter has reached the stage at which the appellant's case has been filed and having read that, it seemed to me appropriate to list the application for hearing ex parte to enable the appellant to make oral submissions in support of the application.
The appeal was filed on 29 June 2005. The grounds of appeal are that the sentencing judge erred by ordering the sentence of imprisonment in respect of count 3 on the indictment to be served concurrently with the sentences imposed in respect of count 1 on the indictment dated 22 December, a different indictment, and other charges.
It is said that by making the order for concurrency the sentencing Judge failed to reflect that the crime was committed upon a separate complainant who had been trying to assist the complainant who was the subject of count 1 on the first indictment and the other charge numbers to which I have referred, and who was a particularly vulnerable complainant who had lost one of her arms in a motor accident in 2001. It is also said that the order for concurrency failed to adequately punish the respondent for a crime involving deliberate, sustained and repeated use of violence and failed to reflect the need for specific and general deterrence.
There are essentially similar particulars in support of ground 2 which claims an error by her Honour in ordering the sentence of imprisonment in respect of a further charge, to which I will come in a moment, to be served concurrently with the previous offences to which I have referred.
The respondent was convicted in the District Court of Perth of a count that on 19 November 2002 with intent to maim, disfigure, disable or do grievous bodily harm to Ms Fewster he unlawfully wounded her. That was the count 1 to which I have referred. He was found guilty of that as a result of the verdict of a jury following a two‑day trial in April 2005.
On 22 March 2004, he had pleaded guilty to a further charge that on the same day, that is, 19 November, he unlawfully assaulted Marie Dinsdale Ashworth and did her bodily harm. This was the count 3 to which I have referred.
The original indictment dated 16 June 2003 contained three counts. A nolle prosequi in respect of counts 1 and 2 on that indictment was presented to the court on 20 December. Count 1 was in respect of a charge that on 19 November 2002 the respondent made a threat to unlawfully kill Jodie Hall.
On 2 June 2005, her Honour imposed a sentence of 3 years 8 months' imprisonment in respect of count 1 and a sentence of 14 months' imprisonment concurrent in respect of count 3. She also sentenced the respondent in respect of three other charges pursuant to s 32 of the Sentencing Act 1995 (WA). The first of those was again that on 19 November he unlawfully assaulted Lawrence Fewster, he being a child of two years of age, and thereby did him bodily harm. A sentence of 16 months' imprisonment was imposed in respect of that and it was ordered to be served concurrently.
On 9 June 2005, the respondent was sentenced in relation to the two remaining charges on the s 32 notice. The first of those was that on 19 November 2002 again the respondent unlawfully wounded Leah Fewster by biting her to the bridge of the nose. A sentence of 20 months' imprisonment concurrent was ordered in respect of that. The third charge taken into account by the s 32 notice was that on the same date the respondent unlawfully assaulted Leah Fewster causing her bodily harm, that being a reference to biting to her cheek causing bruising. The sentencing judge imposed a sentence of 16 months' imprisonment on that. Both of those sentences were ordered to be served concurrently.
The sentences were ordered to be served cumulatively upon a sentence then currently being served by the respondent. At that time, his earliest eligible date for release on parole in respect of that sentence was seven months from the date of sentence. Her Honour made an order that the respondent be eligible for parole. The overall effect of this was that the total effective sentence imposed in respect of the offences on 19 November was one of 3 years 8 months' imprisonment but that was, as I have said, made cumulative on the sentence then being served.
The offences were committed whilst the offender was on parole, he having been released to parole on 4 November 2002. He and the complainant Fewster were previously in a de facto relationship. The complainant's eldest child was aged four at the time of the offence and that is also the child of the respondent. Her youngest child, aged two, is the complainant the subject of the assault that was the first on the s 32 notice. The complainant and respondent were attempting a reconciliation and endeavouring to organise a Homeswest home for two of them and the children.
On the day of the offences, the respondent and complainant went into Mandurah and on the way back, stopped at a park where the respondent consumed a cask of alcohol. The complainant left the respondent in the park and returned to her home in Greenfields. He returned about 4 pm that afternoon, collected some clothes and left the house, returning again at approximately 5 pm. The complainant saw him standing in the front yard and went to speak to him. She became distracted because her young son was climbing up a tree. While she was attending to the son, the respondent went into the house and got two knives.
The complainant's mother, Katrina Grayson, was staying with the complainant at the time. She went to call the police when she saw this. The respondent went back outside, grabbed the complainant by her singlet and forced her into the garage. The complainant was particularly vulnerable as she had suffered the loss of an arm in a motor accident in 2001. The respondent was making threats to kill her and using derogatory language.
The two children were observing these events. The complainant pleaded with the respondent not to do anything in front of them. Nonetheless, he stood over her, she being then on the ground, raised a knife over his head and plunged it towards her chest. As the knife was coming down, the complainant tucked up her legs over her chest to protect herself and the knife went into the back of her left thigh. The respondent pulled the knife out, raising it again, whilst both the children were screaming. He told the young child Lawrence to shut up and hit him across the face with his hand knocking him to the ground. The child sustained a 2cm cut above the eye. The complainant recalls the respondent biting her on the nose and on the right cheek and being stabbed by the respondent. I have read what she said about that incident in her evidence. He then banged her head against the car and the wall of the carport. She suffered a 15cm vertical laceration on her thigh which extended into her hamstrings, a laceration of approximately 5cm to the inner left upper arm, a 5cm laceration to the left calf, a 1.5cm laceration over the bridge of her nose and a 3cm laceration extending into the periosteum of her left scalp.
The other complainant, Ms Ashworth, intervened in the course of these events having heard the screaming and when she did so, having come from next door, the respondent shoved and pushed her and grabbed her by the wrist causing bruising. She ran out the back of the property and, using a chair, escaped over the back fence.
The principles in relation to prosecution appeals against sentence are well established and I do not need to refer to them. Likewise, I need not refer to the principles in relation to sentences for offences of grievous bodily harm and assaults of a particularly serious kind which, clearly enough, these were, as was recognised by the sentencing Judge particularly at t/s 297. As her Honour described it then:
"These offences are extremely serious as they involve the use of knives, or a knife, with repeated stabbings and also biting her in a very cruel way when she was completely defenceless and incapacitated as a result of being stabbed by you."
She observed that he also hit the small child who was doing nothing but reacting in quite an hysterical way to the respondent assaulting his mother.
Her Honour, having recited the facts against the background of the submissions made to her at that time then went on to refer to the respondent's own circumstances and background. She pointed out that he had a record containing several offences of violence and had served many periods of detention even before reaching adulthood. Since he was approximately 18 years of age he had only been out of prison for some 5 months. The longest time he had been out of prison in any one period of time was 3 months.
Her Honour had asked for a pre‑sentence report so as to find out what had happened to him in prison and the report which was available to her did address that issue. It appeared that during the long time that he had spent in custody, he had presented considerable management problems. He had made 18 attempts at self‑harm, two of which were very serious. He had spent a significant time in prison in crisis care. Most significantly, he had spent about 4 years in the Special Handling Unit as a result of a need by the prison authorities to punish him for various prison offences and to manage him in prison. This management was required not only because of prison offences of which he had been convicted or dealt with, but also because of his continual threats and attempts to harm himself.
It appeared that according to the report, at times when he had been in prison he had sunk into the depths of hopelessness and despair and had felt that there was no light at the end of the tunnel. However, the prison officer's report to her Honour indicated that his behaviour in prison had been better than it had ever been, that he was more settled and was showing more self‑control, which was a good sign for the future.
It was her Honour's view that the respondent's almost continual incarceration since he had been 18 years of age and even before that had made him completely institutionalised and deprived him of the usual way of young people learning life skills to equip them to be law‑abiding citizens, although it was not only his imprisonment which had contributed to that.
He was born when his mother was only 14 years old, so she was a child giving birth to a child. For many years his mother was an alcoholic. His father was a drug dealer. He was basically brought up by his maternal grandmother in a large extended family. For a lot of the time it seems he was a fringe dweller in a camp which had now been disbanded. He came from a very deprived family and social environment. He was exposed to arguments, drinking and violence for a lot of his life. Just after he had been reunited with his mother and developed a very strong bond with her, she was murdered. That was about 5 years ago. The respondent has unresolved grief as a result of that. Her Honour recognised that Aboriginal families have a very strong sense of kinship and it must have been devastating for him to lose his mother in such tragic circumstances.
He left school when he was 14 years of age and quickly became involved in drug and alcohol use and led what her Honour described as a "somewhat wayward life". He has never had a job.
He started using cannabis when he was 8 years old, together with other substances. He was using inhalants by the age of 12. In his late teens he was using heroin and amphetamines. The report to her Honour indicated that the disinhibiting effects of substance abuse would appear to be a major criminogenic factor contributing to the risk of reoffending and his potential for violent behaviour. The psychological and psychiatric reports provided to her Honour documented his many examples of self‑harm in the prison.
The general conclusion appeared to be that he was of a high risk of reoffending and her Honour said that was a conclusion she could well understand given the long time he had been in prison. She said prison was not the place for him to address the problems that had arisen during his upbringing. She acknowledged that he had an appalling record committed against a background marked by substance abuse and extreme violence and terrible abuse perpetrated upon him.
That background led him down the almost inevitable path to juvenile detention and eventually, adult prison. Prison has had very little beneficial effect on him and did not benefit the community in any way whatsoever. She said he was a high maintenance prisoner of considerable psychological fragility. He needed long‑term psychological treatment which was unavailable in the prison system, as the psychological report documented. He was being dealt with in the prison environment by crisis management.
Her Honour concluded by way of summary that the offences were very serious offences for which the respondent needed to be punished. She said the sentences should also serve as a deterrent to others who might be minded to assault their partners in this sort of way. She again referred to his long record and entrenched substance abuse. She referred to a pessimistic prognosis by the psychologist and she referred to the respondent's assessment as being a high risk of reoffending. Prison, she said, was inevitable.
Having imposed the individual sentences in respect of the two offences on indictment and the first offence on the s 32 notice, she directed they be served concurrently because they were committed at the same time and in part of the same circumstances. She referred to the fact that the respondent's earliest date for release was 2 January 2006, and also to the need to consider the question of parole.
For reasons which she then gave, she did direct that the respondent be eligible for parole and then made the sentence just imposed, that is, the total of 3 years 8 months' imprisonment, cumulative on the sentence that he was then presently serving. The remaining offences which are the subject of this appeal were dealt with on a subsequent occasion and I do not, I think, need to refer to the circumstances of those beyond what I have already said.
The test, as I have indicated, on an application for leave to appeal is that there must be reasonable prospects of success in respect of each particular ground. As has been submitted, there is at this stage at least one single Judge decision in relation to that and that was Simmonds J in Brayley & Anor v Malkovic [2005] WASC 136 in which his Honour construed that statutory test to mean the Court of Appeal must not give the appellant leave to appeal on a ground of appeal unless it is satisfied that it is possible for it to see the Court of Appeal upholding that ground.
There are no doubt various ways in which the statutory test can be expressed or construed but it seems to me that the most appropriate way to deal with it is simply in the words of the statute itself: that it must therefore be shown in respect of each ground that it has a reasonable prospect that it might succeed. That is the test which I apply here.
Her Honour was confronted with an exceptionally difficult sentencing task. Looked at simply as a combination of offences, there could well be merit in the State's contention that concurrent sentences did not reflect the overall criminality of these serious offences. However there were substantial matters personal to the offender to which her Honour was also obliged to have regard; she did so.
It is apparent that in the end, her Honour's disposition accommodated sentences in respect of the individual offences which were appropriate and as to which no point is taken by the appellant in that respect, and an overall result which took into account that the sentences would be cumulative on the 7 months of the sentence the offender still had to serve.
The effective period of imprisonment to which he was then subject was therefore 4 years 3 months, in a context in which imprisonment for him was patently far more of a punishment than for other offenders. That was clearly a very significant consideration for her Honour in combination with what she described as his institutionalisation. This was, I think, an exceptional situation.
Against that background overall, however, there is in my view no reasonable prospect that either ground would succeed before three Judges of this Court. An extension of time for leave to appeal is granted but leave to appeal is accordingly refused. The result is that the appeal is deemed to have been dismissed.