Rechichi v The Queen - [2003] WASCA 98

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: RECHICHI -v- THE QUEEN [2003] WASCA 98

CORAM: MURRAY J
WHEELER J
ROLFE AJ

HEARD: 19 NOVEMBER 2002

DELIVERED : 14 MAY 2003

FILE NO/S: CCA 98 of 2000
CCA 99 of 2000
CCA 108 of 2001
CCA 109 of 2001

BETWEEN: RAFFAELE RECHICHI
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeals against conviction and sentence - Relevance to appeal against sentence of evidence of hardship to mother of applicant - Otherwise turns on own facts

Legislation:

Criminal Code, s 223, s 317A(b), s 409(1)(c), s 441

Sentencing Act, s 87, s 87(a), s 89,

Result:

Applications for leave to appeal dismissed

Category: B

Representation:

Counsel:

Applicant: In Person
Respondent: Mr B Fiannaca

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

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

Anderson v The Queen (1996) 18 WAR 244
Azzopardi v The Queen (2001) 205 CLR 50
Boonudnoon v The Queen [2002] WASCA 313
Hodder v The Queen (1995) 15 WAR 264
R v Fowler (2001) 121 A Crim R 531
R v Goncalves (1997) 99 A Crim R 193

Case(s) also cited:

Jogia v The Queen [2000] WASCA 331
Li v The Queen [2000] WASCA 340
Lowndes v The Queen (1999) CLR 665
R v Babic [1998] 2 VR 79
R v Condo (1992) 62 A Crim R 11
R v Nguyen (2001) 118 A Crim R 519
R v Smith (1987) 44 SASR 587
R v WEF [1998] 2 VR 385
Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998

MURRAY J: These four matters were, in effect, heard together. When the matter came on for hearing the applicant, who appeared in person, sought an adjournment, but because of the age of the matters he did not pursue that application, but accepted the encouragement of the Court to proceed with the hearing upon the assurance of the Court that the application for an adjournment could be revisited if it appeared, as the hearing progressed, that the applicant was having difficulty in presenting his arguments to the Court on the ground of lack of preparedness or for any other reason. In the end, as I have intimated, the question of adjournment was not raised again and the hearing proceeded to its conclusion.
CCA 98 and 99 of 2000 are applications for leave to appeal against conviction and sentence respectively. On 18 April 2000, the applicant was convicted in the District Court after a trial by a jury of the offence of attempted fraud, an offence committed on 1 October 1991. When convicted the applicant was sentenced to 18 months imprisonment, suspended for 2 years, and so the period of suspension has long since expired. The applications for leave to appeal against conviction and sentence were both made on 8 May 2000 and so it can be seen that it has taken an inordinate amount of time for the applications to be heard.
The application for leave to appeal against conviction was made on the sole ground that the trial Judge failed to direct the jury properly in respect of the burden of proof. With the agreement of the applicant this matter was dealt with on the basis of written submissions which he was to file and serve by 29 November 2002. The Court permitted the respondent to file and serve written submissions in reply by 6 December 2002.
On 29 November 2002 the applicant filed and served a document which he described therein as an amended application for leave to appeal against his conviction. In it, the applicant also ventilates his complaints about the sentencing process in relation to which, before us, he presented oral argument. Needless to say, as to conviction this document traverses ground well outside the original application. It is, in my opinion, too late for leave to be granted to amend the grounds of application, but I propose to comment briefly upon them.
In the first place, as to the complaint properly before the Court that the jury were misdirected in relation to the onus and standard of proof, I have carefully perused the directions to the jury by the trial Judge. This was a two‑day trial and a relatively simple matter. It was clear that the guilt or innocence of the accused depended upon matters of credibility. In relation to two counts on the indictment, counts 2 and 3, both of attempted fraud, but in respect of a different complainant, the jury were unable to reach a verdict.
In relation to the offence of which the applicant was convicted, perusal of the transcript shows that the trial Judge directed the jury correctly and comprehensively in respect of the presumption of innocence, the onus upon the Crown to prove guilt and the burden of proof beyond reasonable doubt. His Honour told the jury that the accused carried no burden of any kind to prove his innocence. It follows that there is no merit in this complaint.
In the so-called amended application there are four grounds of appeal, all of which are directed to comments made by the trial Judge upon the evidence and the accused's credibility. The Crown case was that the applicant had made, to an insurance company, a deliberately false statement that the vehicle had been stolen. He had done that, the Crown alleged, to support a claim made under the insurance policy. It was a circumstantial evidence case.
The Crown relied upon the fact that the vehicle was recovered in the possession of the applicant and upon evidence as to the state of the vehicle which was capable of establishing that it had not been interfered with in any way which would have been, so the Crown alleged, necessary if the vehicle had been stolen. There was evidence that the accused needed money and he had not notified the insurance company or the police of his alleged recovery of the vehicle.
It was the case of the applicant that the vehicle had indeed been stolen by one of his employees. He says that he made a complaint to the police, but they would not act upon it. He made a perfectly genuine claim upon the insurance company, but then later recovered the vehicle from the home of his former employee. He put the vehicle into storage and then he did not know what to do further because he felt he could not tell the police what he had done in view of their earlier uncooperative attitude when they had told him that if he pursued his complaint any further they would arrest him for harassment.
It is perfectly apparent that the affirmative case put by the applicant would provide a complete answer to the circumstantial case of the Crown, strong though that case otherwise might have been. In that context, the trial Judge commented to the jury that it was, of course, the case that the accused's credibility assumed considerable importance in the trial. He reminded the jury that the Crown's submission was that the applicant's story was so incredible that it ought to be rejected.
The trial Judge told the jury that if they believed the applicant then it was obvious that the appropriate verdict was one of not guilty. If they were left in doubt as to the true position that would also be the appropriate verdict. Only if they positively disbelieved the applicant and thought that his evidence was "a pack of lies" could they return a guilty verdict. That observation did not, in my opinion, detract in any way from the complete and correct direction that it was only if upon the evidence of the Crown the jury were persuaded of guilt beyond reasonable doubt that it would be open to bring in that verdict.
The trial Judge told the jury that it was a matter for them to assess the veracity of the various witnesses, including, and in the circumstances of this case, particularly including, the applicant. In my view, having regard to the nature of the evidence and the way in which the case was fought at trial, this observation involved no error. Nor was there any error when, in giving further directions after the jury had been in retirement for some time, upon the question of intention to defraud and in telling the jury that it was the time of the lodgement of each insurance claim which was the critical time when the intent must be found, his Honour reminded the jury of the direct evidence of the applicant. His Honour did so by saying that the applicant had presented an explanation for what occurred and had asked the jury to believe that explanation. In the circumstances of this case that could not have caused the jury to be misled into thinking that it was only if the jury positively accepted the evidence of the applicant as a truthful account that they would return a verdict of not guilty.
The final proposed ground contained in the so-called amended application for leave to appeal against conviction refers to the way in which the charge was particularised in the indictment. It was alleged that, with intent to defraud, by deceit or fraudulent means, the applicant attempted to obtain from the named insurance company "a benefit, namely compensation for the loss" of the identified motor vehicle. The applicant says that the trial Judge erred by telling the jury that there was no contest on the evidence as to that fact. The applicant says that it was wrong because the vehicle was owned by his mother and any insurance payment would have gone to her.
It would make no difference if that was the case. This was an attempted fraud contrary to s 409(1)(c) of the Criminal Code (WA). The completed offence of fraud so defined is committed by, "Any person who, with intent to defraud, by deceit or any fraudulent means…(c) gains a benefit, pecuniary or otherwise, for any person;". It is perfectly clear that the person for whom the benefit is sought to be obtained in an attempt to commit that offence need not be the person who seeks, by deceit or any fraudulent means, with intent to defraud, to gain the benefit. In other words, the accused need not be the intended recipient of the benefit.
The respondent does not argue the so-called amended application. It reminds the Court that the leave it granted was for the appellant to present this application for leave to appeal against conviction in writing. It was not a permission to trawl belatedly through the trial Judge's charge to the jury for the purpose of dredging up further grounds of appeal. There is, in my opinion, much force in this contention, but in view of the fact that the applicant is unrepresented I propose to treat the applicant's document dated 29 November as a legitimate application for leave to add to the grounds. It follows that I need not deal expressly in these reasons with the applicant's response to the submissions made by the respondent. None of the proposed grounds adds anything of merit to the ground upon which the application for leave was originally made. It is sufficient in the circumstances, in my view, that the application for leave to appeal against this conviction should be refused.
I turn then to the application for leave to appeal against the suspended sentence which was imposed. The applicant's complaint is not with the sentence of 18 months imprisonment, nor with its suspension, but he asserts that an allowance should have been made for a period of 20 months and 4 days which he had spent in custody on remand for what he describes as "unrelated matters".
The trial Judge decided that it was appropriate to suspend service of the term of imprisonment he imposed, as his Honour put it, "having regard to the fact that the applicant's mother is a frail old lady who, at that time, depended upon the applicant for her care and having regard to the period of just over 20 months spent in custody on remand". It is certainly right that under the Sentencing Act1995 (WA) s 87(a), time spent in custody on remand can only be directly taken into account where that time is spent in respect of the offence for which the applicant is to be sentenced "and for no other reason". His Honour recognised that and, in effect, took it into account when making the decision to suspend service of the sentence he imposed.
In my opinion, the applicant can have no complaint about this aspect of the sentencing process, which worked in his favour. I would dismiss the application for leave to appeal against this sentence although, of course, in view of the lapse of time the application for leave to appeal against sentence is, in truth, entirely moot and might, I think, be dismissed upon that ground alone.
I turn then to the other two matters before the Court which were substantially argued orally, although on one aspect of the application for leave to appeal against sentence, written submissions were permitted. The applicant wished to have the Court entertain submissions concerned with the present state of his mother's health. I will come to the particular circumstances of that and the alleged relevance of it in due course, but the respondent, not having had an opportunity to prepare and address argument upon this aspect of the matter, was granted leave to file and serve written submissions by 26 November 2002. The Court permitted the applicant to file and serve a reply by 29 November.
Again, there are two applications before the Court, one for leave to appeal against conviction and one for leave to appeal against sentence. Again, it has taken a long time for them to get to a hearing and there is an extensive history to which I shall have to make some brief reference.
After a short trial in the District Court by a jury on 16 to 18 July 2001 the applicant was convicted of four offences, all committed on 27 January 1998. One was that he unlawfully damaged a gate and pillar and there were three offences of assault with intent to do grievous bodily harm to three named persons at that time.
The nature of the case can be gleaned from the findings of fact by the trial Judge for sentencing purposes. There was a dispute between the applicant and another male person over the sum of $20 which had, the day before the commission of the offences, been paid by the applicant for the purchase of some second-hand parts for a vehicle. The applicant asserted that some of the parts were for the wrong model and he returned those parts and asked for the return of his money. An argument developed. The applicant commenced to drive off. The male complainant went to his front gate and closed it. The applicant, apparently angry about what had occurred, drove his car at the closed gates, striking and damaging both the gates and the pillars from which they were hung.
The male complainant attempted to apprehend the applicant, but without success. Again, he drove off in his car, but he shortly reversed the car in what the jury obviously found was an attempt to strike the male complainant, his son and his partner with the intent to do them grievous bodily harm. On 13 February 2001 the applicant was interviewed by the police. He denied the occurrence of the offences of which he was later convicted and asserted that on the occasion in question his mother was the driver of the car. At the trial, the applicant gave no evidence, nor was his mother called.
The trial Judge referred to victim impact statements and a psychiatric report. His Honour mentioned the applicant's lengthy criminal record. There was no pre‑sentence report. The applicant apparently refused to cooperate in the interview process. He also refused his cooperation to the psychiatric assessment and that report was based upon earlier reports and medical records. The assessment made was that the applicant has a paranoid personality with elements of antisocial behaviour which the trial Judge said was reflected in his criminal history.
I will return to these matters in due course, but in short the psychiatric opinion was that the applicant's condition was untreatable and he represented a substantial risk of the commission of further violent offences. There was considerable material before the Court on the applicant's role as the primary carer of his mother, then aged 81 years. She was ill and was suffering from a variety of complaints.
The trial Judge noted that on the earlier occasion when the applicant was sentenced for the offence of attempted fraud, the suspension of the term was in part supported as an exercise of taking into account time spent in custody on remand for which no direct allowance could be made, having regard to the terms of the Sentencing Act. His Honour went through the history in relation to that process. Although his Honour took the view that the time spent on remand had been substantially allowed for and was served in relation to other matters, his Honour thought there ought still to be some backdating of the sentences he was to impose. His Honour said that he would backdate the sentences for 12 months to 18 July 2000.
Given that the applicant was sentenced on 24 August 2001, that would appear to be a period of rather more than 12 months. However, the trial Judge said that given that the non‑parole period on sentences aggregating 4 years would be 16 months, the applicant would have to serve a further 4 months imprisonment before becoming eligible for parole. That would suggest that the sentences were backdated to 24 August 2000. The applicant understood that his earliest eligibility date for parole was 18 November 2001. That would suggest a starting date of 18 July 2000. However that may be, the applicant says he has been refused parole and so he has remained in custody, serving the sentences until released on bail, pending the determination of his appeal, on 26 February 2002. He has therefore served an effective term of just over 18 months imprisonment, allowing for the backdating of the sentences which occurred.
I turn then to the application for leave to appeal against conviction instituted originally on 7 August 2001, but in respect of which amendments to the grounds appear to have been sought on 21 September 2001 and 2 July 2002. It is the last-mentioned document upon which the applicant relied as constituting the grounds upon which his application was to proceed. It was these grounds which were argued before us.
The grounds are supported by extensive particulars encapsulating the applicant's argument, which he amplified orally. I will not set them out verbatim here. Grounds 1, 2 and 3 can be taken together. They are all concerned with comments made by the trial Judge in addressing the jury, reminding them of the evidence of witnesses and commenting upon differences in the evidence, upon questions of credibility generally and upon the way in which the jury might approach the fact finding process.
The material starts with references to the evidence given by Mr Wright, the male complainant, his partner, Mrs Brown, and his son, Bradley, the other two complainants. It is complained that the trial Judge made too little of the differences and discrepancies between the evidence of these witnesses, but his Honour did point out what the discrepancies were and they were relatively minor. His Honour invited the jury to have regard to them, but commented that, according to the witnesses, they were giving evidence about stressful events happening quickly. To my mind, those comments were, in the circumstances, both appropriate and fair.
Then his Honour moved on to statements made out of court by the applicant. He referred, as he had done elsewhere, to the applicant's videoed record of interview. After that was conducted the police arranged with a convicted offender, a man named Doodson, who was in contact with the applicant, that his conversations with the applicant should be secretly recorded. There are two short passages which were played to the jury. In speaking about them, his Honour, again appropriately, reminded the jury that Doodson's credibility was also in issue and he was a person who might be regarded as being of bad character, having himself admittedly committed criminal offences.
The trial Judge summarised the relevant content of the tapes for the jury. They record the applicant speaking of the dispute about Mr Wright's failure to return the $20. The applicant describes his anger. He says that his initial thought was to smash the front gate and drive over the adults, children and dogs who were on the other side of it. He says, "I desperately tried to put them under the car." Because he was upset, he says, he became so angry he lost his "cool". He describes how he decided not to go through the gate, although he struck it, and he speaks of Mr Wright climbing onto the bonnet of the car to try to stop it. He thought he might kill them, but his mother was there and it would be too much to kill four people and two dogs. "She [his mother] would probably die on me." He says he felt like killing them all because he could not let Wright cheat him out of $20. To my mind that was strong confessional evidence supporting the evidence of the various complainants and providing clear evidence of the applicant's intention at the time.

The trial Judge not only commented upon that aspect of the matter, but spoke of the potential impact upon the applicant's credibility in relation to the largely self-serving account given in the videoed interview with the police, upon which, as I have mentioned, the applicant relied in his defence, declining to give evidence at trial. The trial Judge told the jury that if they accepted as the truth what the applicant said to Doodson there would be an obvious difficulty in relying upon what he said to the police, or in the jury thinking that that account might be true. I can see no difficulty in any of his Honour's remarks at this point.
The applicant complains that in speaking about his failure to give evidence at the trial, the trial Judge effectively reversed the onus of proof and commented adversely in a way which was calculated to encourage the jury to use against him the fact that he did not give evidence. The applicant relied upon the decision of the High Court in Azzopardi v The Queen (2001) 205 CLR 50 and, to the same effect, the decision of this court in R v Fowler (2001) 121 A Crim R 531. To my mind, those cases do not assist him in any way.
He complains of the statement made by the trial Judge:
"Now, it is important to bear in mind in this case the fact that you have not heard from Mr Rechichi in the witness box. He has not become a witness like the other people who you have heard from during the trial and what do you make of that?"
However, it should also be noted that the trial judge continued that observation and answered the question he posed by saying:
"Well, consistent with the presumption of innocence, he does not have to give evidence at the trial. He is entitled, as he has, to sit in the dock and see whether the prosecution has proved these charges against him. You cannot assume he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing one way or the other and it does nothing to establish his guilt."
Later in the directions given to the jury, when concluding his remarks about the evidence, his Honour said:
"So that is basically all I want to say to you about the evidence in the case and how you are to look at the evidence, bearing in mind the burden and the standard of proof, bearing in mind not drawing any adverse conclusions against Mr Rechichi because of the failure to give evidence which was his right, and bearing in mind the presumption of innocence."
In my view, it is perfectly plain that the applicant can have no legitimate complaint about the way in which the trial Judge dealt with these matters. To my mind, none of these grounds is made out.
The fourth ground of appeal is a complaint that the trial Judge directed the jury that the applicant claimed no authorisation, justification or excuse for his conduct. The applicant misunderstands the effect of what the trial Judge said. The offence of wilfully damaging the gate and the pillar required the Crown to prove, as an element of the offence, that the conduct of the applicant was unlawful. The Criminal Code, s 441, provides, so far as material:
"An act which causes injury to the property of another, and which is done without his consent, is unlawful unless it is authorised, or justified, or excused by law."
Further, in relation to the charges of assault with intent to do grievous bodily harm, the Criminal Code, s 223, so far as material, provides:
"An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law."
All the trial Judge was doing was giving directions to the jury in terms consistent with those provisions. He was not saying to the jury that his Honour considered, or thought the jury should find, that the offences charged had been committed. When the trial Judge noted that no authorisation, justification or excuse had been advanced he was simply commenting upon the fact that the applicant's defence, as expressed in his interview with the police, was that it was not he who drove the vehicle in such a way as to damage the gate and pillar or as to attempt to run over the complainants.
Again, in relation to grounds 5 and 9, the applicant appears, if he is genuine, to misunderstand what seems to me to be the clear purport of directions given by the trial Judge. Having explained that the verdicts open on the charge of wilful damage were simply verdicts of guilty or not guilty, his Honour mentioned what he described at some points as a slight difference in relation to the verdicts which were open in respect of the remaining counts in the indictment, those charging assault with intent to do grievous bodily harm. His Honour correctly and appropriately explained to the jury that if the unlawful assaults were established beyond reasonable doubt, but they did not find beyond reasonable doubt that they were, or any of them was, accompanied by an intention to do grievous bodily harm, then in relation to that count in the indictment an alternative verdict of guilty of unlawful assault simpliciter would be open.
Ground 6 complains that the trial Judge gave the jury the tapes, in particular, recording the conversations with Doodson. It appears that apart from the segments which were relevant to the case in the way that I have already discussed there was other material on the tapes which was prejudicial but which, in any event, dealt with topics irrelevant to the case before the Court. The original tapes went to the jury room with the jury in sealed security bags. It was relevant, of course, for the jury to see that there were such things, recording conversation. It might have been done by way of evidence of copies of the recording of the relevant portions of the conversations. That would have enabled them to be played in the jury room. In this case that was not done, it would appear. The trial Judge simply directed the jury that they were not to open the security bags and they could not listen to the tapes. There is nothing to suggest that the jury disobeyed that direction or that anything occurred to the prejudice of the applicant.
Grounds 7 and 8 may be taken together. They misunderstand the instructions given by the trial Judge to the jury in respect of the procedure to be followed in taking their verdicts once they were unanimously of the same view in respect of all or any of the charges before them. The trial Judge told the jury that the foreman would first be asked whether they were agreed upon their verdicts. To that the trial Judge said the answer would be, "Yes". That was appropriate because the jury would have returned to the courtroom to give verdicts which they had reached unanimously. It would be inappropriate at that point in the proceedings for the jury to be instructed about the capacity to reach a majority verdict or what they should do if unable to reach a verdict.
In relation to taking the verdict on each count the trial Judge said that when that was done the clerk of arraigns would ask the foreman of the jury, "Is that the verdict of you all?" to which the answer would be, "Yes". Again, that would necessarily be so because what was being returned was a unanimous verdict, either one of guilty or not guilty. These are standard instructions so that the jury knows how to proceed. The trial Judge added that there was no need for the foreman to say anything further and again that was a helpful instruction and one commonly given.
The applicant seems to assert that the procedure involved some hidden direction to the jury to return verdicts of guilty. If that view is genuinely held then, as I say, he misunderstands the purpose and effect of the instructions of which he complains.
Ground 10 complains that the trial Judge erred in declining to attempt to further define the concept of proof beyond reasonable doubt and in telling the jury that a reasonable doubt was a doubt which the jury entertained. It is clear that there is no error involved in directing a jury in that way. It is possible to say more, but probably unwise, and trial courts have long been encouraged not to attempt explanations of the phrase "reasonable doubt": see, for example, the decisions of this Court in R v Goncalves (1997) 99 A Crim R 193, 196, 203 and, more recently, Boonudnoon v The Queen [2002] WASCA 313.
Finally, in ground 11, the applicant expresses concern about observations made by the trial Judge concerning the reaction the jury might have to the way in which the applicant spoke to Doodson. The words used were callous and brutal. The applicant thinks the trial Judge was telling the jury they might justifiably feel prejudice against the applicant as a result of that mode of speech, but in truth the trial Judge was endeavouring to ensure that the jury was not swayed by any such reaction, if they had it, to the accused. His Honour was, in the remarks of which complaint is made, in fact encouraging the jury to consider the evidence objectively and without any emotional response to the prejudice of the applicant.
I turn then to the application for leave to appeal against the sentences imposed, resulting in an aggregate term of 4 years imprisonment. Originally, this application presented close to five folios of argument and submissions in support of the application. This material was described as the grounds of the application, but it is difficult to discern in it anything which could properly be so described.
Then, on the day before the matter was to be heard the applicant filed and served a document described as an amended application for leave to appeal against sentence. This attracted a further outline of submissions from the respondent. It seems to me that in the circumstances, it is appropriate to have regard to it as expressing the applicant's argument in respect of sentence and I have done so. He elaborated upon it orally at the hearing of his application. Again, it contains nothing which could be properly described as grounds of the application. Rather, it contains in the order of fifteen pages of argument and submissions, to all of which I have had regard.
Included in this material and other documents which the Court permitted the applicant to hand up during the hearing of the application, were papers which concerned the present state of health of the applicant's mother, which the applicant asserted should have an impact on the decision of his application. As counsel for the respondent had had no opportunity to deal with much of this material, the Court gave the respondent leave to file supplementary submissions dealing with it and the question whether it should be received by the Court. Such submissions were to be filed and served by 26 November. The Court gave the applicant leave to reply thereto by 29 November.
The respondent filed and served supplementary submissions on 26 November. The applicant responded on 29 November. In those submissions the applicant went well beyond a response to the submissions made on 26 November by the respondent. Indeed, none of it addresses the arguments presented by the respondent in its submissions dated 26 November. In my view, this document provides no material which is persuasive of the applicant's legitimate pursuit of an application for leave to appeal against sentence.
The first portion of it alleges unprofessional conduct on the part of Mr Fiannaca as counsel for the respondent, in relation to the fact that the applicant remained in custody on remand for periods following 24 April 1998. Counsel is accused of lying to the court, dishonesty, manipulation of the court and the like. It must be said that the material is a nonsensical tirade, entirely without foundation. It is scandalous material and I will have no regard to it. In addition, so far as the submissions deal with the substance of an application for leave to appeal against sentence, they seek to present factual material in relation to the medical history of the applicant's mother. They do so in a form which is inadmissible. Again, I will have no regard to this material.
The respondent's objection to this document appears in submissions dated 10 December 2002. In a document dated 11 December 2002 the applicant seeks to pursue the argument. Nothing in this document advances the applicant's case.
I should observe that not only did the applicant present material of this kind in respect to the application for leave to appeal against sentence, but on 29 November, despite the fact that the application for leave to appeal against conviction had been argued at the hearing before us, the applicant presented a further set of written submissions concerning that application.
The document seeks to deal with what was said to Doodson by asserting that Doodson was a person of no credibility upon whose word no-one should rely. He is portrayed as a dangerous person by whom the applicant feels threatened, and yet Doodson is said to be such a good spraypainter that the applicant wished Doodson to join with him in a truck and machinery refurbishing business. And so, the applicant says, as I understand his document, that he said the things he did, lowering himself to Doodson's level, and saying things which he thought would impress Doodson for the purpose of persuading him to join the applicant in business. Again, this is not material to which this Court may have regard. This document, the respondent's objections to it dated 10 December 2002, and the applicant's further response dated 11 December 2002 are therefore all put to one side. I have dealt with the ground of appeal concerning the applicant's statements recorded covertly by Doodson and nothing more need be said on that topic.
As to the substance of the application for leave to appeal against sentence, its central thrust is that the sentences imposed were individually and together manifestly excessive when regard is had to a proper appreciation of the seriousness of the offences and to matters personal to the applicant, particularly the material concerned with the state of his mother's health and the applicant's role as her principal carer. There are, however, some specific matters upon which I should comment.
The applicant complains that the trial Judge failed to order a pre‑sentence report. The failure to obtain such a report has often been held not to constitute a ground of appeal. The question will always be whether upon the material presented to the court the sentence is sustainable or whether it is revealed that the exercise of discretion by the sentencing Judge has in some way miscarried so as to require the intervention of an appellate court. However, the complaint lacks foundation in this case in any event because, although no such report was ordered, attempts were made to obtain one and yet, as I have already mentioned, the applicant refused to cooperate with the request to participate in an interview process.
A psychiatric report was obtained from Dr Tanney, a consultant psychiatrist. Again, as has been seen, the applicant refused to cooperate in that process and Dr Tanney was forced to present the report upon the basis of earlier documents relevant to his consideration of the case and the applicant's state of mind. I have mentioned the general tenor of the report to which, in my view, the trial Judge properly had regard. I note that his Honour did not allow this material to persuade him to deny eligibility for parole, as, in my view, upon all the material, he might well have done, having regard to the provisions of the Sentencing Act, s 89.
The short point is, however, that the applicant can hardly complain of the failure to order a pre‑sentence report when an attempt was made to provide one which was unsuccessful because of his refusal to cooperate. As to the psychiatric report, his Honour noted that dire warnings of dangerousness and recidivism by a psychiatrist, Dr Pullella, were asserted by the applicant to be incorrect and it is apparent that the sentencing Judge did not act upon that material. He also expressly disregarded the reference in the report to charges which were the subject of a nolle prosequi or in respect of which the applicant was found to have had no case to answer. None of this background material was, in my opinion, mishandled by the trial Judge and there was much in it which was properly informative about the applicant and his personal circumstances.
The applicant raises again an application which he had made at trial that the trial Judge should in some way disqualify himself from proceeding to sentence the applicant on the ground of an apprehension of bias. In the end, the applicant did not pursue this proposition and it is evident from the papers before this Court that there is nothing to support the suggestion. The sentencing judge read the material put before him by the applicant at a time when the application that he should disqualify himself was live. There is nothing, however, to support a suggestion that his Honour's exposure to this material resulted in him forming a view adverse to the applicant which might have had a detrimental impact in relation to sentence.
I have sufficiently discussed, I think, the question of the allowance made for time spent in custody. The trial Judge was aware of what had been done earlier by another Judge of the court in respect of the suspension of the sentence imposed for the attempted fraud offence. The backdating his Honour allowed, to which I have already referred, was in part supported by the applicant having made applications for leave to appeal against that conviction and sentence. In the event that they were successful his Honour thought the result might be described as being one in which that process of providing credit for time spent in custody would have evaporated and so, ignoring technicalities and potential difficulties with the application of s 87 of the Sentencing Act, his Honour backdated the sentence by a year. In my opinion that was a more than favourable exercise of discretion so far as the applicant was concerned.
I put to one side for the moment a question of hardship to the applicant and to his mother arising out of the imposition of a term of imprisonment to be immediately served. As to the general proposition that the sentences imposed were manifestly excessive I would not, for my part, conclude that the exercise of discretion so miscarried as to warrant the interference of this Court. I have described the incident generally by referring to the facts as they were found for sentencing purposes by the trial Judge. It is abundantly clear that the offence of wilful damage was a serious offence of its kind. So also in my opinion were the offences of assault with intent to do grievous bodily harm.
By s 317A(b) of the Criminal Code, the maximum punishment available was imprisonment for 5 years. Sentences of 4 years imprisonment are undoubtedly severe in that context, but there were three victims and the manner in which the offences were committed by the use of a motor vehicle indicates that the complainants were fortunate not to be struck by the vehicle and not to suffer serious injury. There was no understandable justification for the applicant's behaviour. It was a reflection of his paranoid personality disorder. There was clearly a need, as the sentencing Judge perceived, for the sentences imposed to have a firmness sufficient to deter the applicant from such behaviour in future. In addition, it was obviously appropriate for the sentencing Judge to give consideration to the question of general deterrence, as his Honour did.
The applicant showed no empathy for the victims of the offences and the victim impact statements before the Court showed how they had been affected by the commission of the offences despite the lack of physical injury. It is clear that the applicant showed no remorse for his offending behaviour. He had an extensive criminal history which included the commission of violent offences in the past. There was, in truth, nothing personal to the applicant upon which he could rely in mitigation of punishment.

The only matter available to him in that regard was the hardship which the imposition of a proper sentence might occasion to his mother in view of the applicant's role as the person who had primary responsibility for her care. There were reports on this topic to the Judge and submissions were made, but his Honour found himself unpersuaded by the material placed before him that this was a case which would permit the Court to adopt a merciful disposition on this ground.
The general rule is that, while it is to be expected that the imposition of a sentence of imprisonment to be immediately served will almost inevitably cause hardship, not only to the applicant who brings the sentence upon himself, but also to other innocent persons associated with him, usually as members of his family, that will not move the Court from the imposition of a sentence proportionate to the gravity of the crime. The rule is, however, not an absolute one. Where the circumstances are truly exceptional; where, as it has been put, it would be inhuman to refuse to draw back in mercy from the imposition of what would otherwise be a perfectly proper sentence, then the courts will mitigate punishment on that ground.
The relevant cases were canvassed and the law stated in Hodder v The Queen (1995) 15 WAR 264. That case was followed in Anderson v The Queen (1996) 18 WAR 244. In that case this Court had regard to fresh evidence which, however, bore upon the situation as it was at the time when sentence was passed. The additional evidence concerned events after sentence had been imposed, but which were of a kind which shed new light on the material which had been advanced to demonstrate hardship to the sentencing Judge. I see no reason to now depart from that view, in which I then concurred, as being the proper approach to take to the admissibility of new evidence in such circumstances.

There is no indication I think, that the trial Judge misunderstood or failed to react properly to the situation of the applicant's mother as it was presented to his Honour at the time of sentencing, most comprehensively in a report dated 9 August 2001 from the Geriatric Registrar at RPH, Dr Razak. But there is other material in the form of reports upon Mrs Rechichi and it was right to say that she had quite a number of medical problems to which detailed reference need not be made in these reasons. She obviously depended then, as I am sure she does now, to a very great extent upon the care given by the applicant to her. In those circumstances it was not surprising that her major problem at about the time of sentencing was her depression at the prospect that her son might be imprisoned and so taken from her, but there is nothing to show that she could not cope on her own with the assistance of regular visits by community nurses.
Since then, according to the material placed before us, Mrs Rechichi suffered a major stroke on 2 May 2002. It has required her lengthy hospitalisation. The staff at Sir Charles Gairdner Hospital where she is being treated, or where she was located upon the hearing of the application for leave to appeal, have reported that the assistance which the applicant has given has "contributed very significantly to [Mrs Rechichi's] wellbeing and rate of improvement." There is nothing to suggest that with proper care she should not continue to improve. While is it obvious that the applicant has made a very considerable contribution to his mother's recovery, there is nothing to suggest that she would in any way be endangered, let alone gravely endangered, by his incapacity to continue for a time in that role.
In any event, all of this has arisen since what seems to me to have been a perfectly proper set of sentences was passed and it is therefore incapable of demonstrating error or miscarriage of sentencing discretion by the sentencing Judge. In my opinion, this Court may not react to that material by allowing an appeal against sentence and passing some other sentence, having regard to Mrs Rechichi's situation. In any event, in my view, whilst it is obviously beneficial to Mrs Rechichi to have available to her the care and attention of her son, the evidence does not seem to me to show that it is essential to her wellbeing or that others could not provide the expert care and attention she requires.
I would dismiss this application for leave to appeal against sentence.
WHEELER J: I have had the advantage of reading in draft Murray J's reasons for decision in these matters. I am, with one reservation, in

agreement with them, and I am wholly in agreement with the orders which his Honour proposes.

The only matter in respect of which I would depart from the reasons of Murray J is that relating to the material placed before us which concerns Mrs Rechichi's stroke suffered on 2 May 2002. It seems to me that the effect of Anderson v The Queen (1996) 18 WAR 244 is, as Murray J points out, that the court may have regard to events occurring after sentence which shed new light on material made available to the sentencing Judge. However, that case also in my view makes it plain that it is not the proper function of an appellate court reviewing a sentence to have regard to matters which are wholly fresh, in the sense that they were neither known to the sentencing court nor such as could shed light on matters which were known to the sentencing court. In my view, the material before the sentencing court in relation to Mrs Rechichi's condition is that summarised in the report of 9 August 2001 from Dr Razak. The stroke which Mrs Rechichi has unfortunately suffered since then seems to me to be a wholly new matter which this Court cannot take into account. It is my view that it is not appropriate therefore for me to attempt to evaluate the effect which that circumstance might have on the applicant's sentence if this Court were to have regard to it.
I would dismiss these applications for leave to appeal.
ROLFE AJ: I have had the advantage of reading, in draft, the judgments of Murray and Wheeler JJ. I agree with their Honours and the orders proposed.