Ridgway v The State of Western Australia
[2021] WASCA 143
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RIDGWAY -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 143
CORAM: BUSS P
MAZZA JA
HEARD: 8 APRIL 2021
DELIVERED : 13 AUGUST 2021
FILE NO/S: CACR 185 of 2020
BETWEEN: PHILIP DAVID RIDGWAY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PRIOR DCJ
File Number : IND 196 of 2019
Catchwords:
Criminal law - Application for leave to appeal against sentence - Appellant convicted after trial of one count of attempting to pervert the course of justice, one count of causing bodily harm with intent and one count of possessing ammunition - Whether judge erred in making certain factual findings in respect of the offence involving bodily harm - Whether sentence of 3 years 6 months' imprisonment on that count manifestly excessive - Whether total effective sentence of 4 years 6 months' imprisonment infringes first limb of totality principle
Legislation:
Criminal Code (WA), s 143, s 304(2)
Firearms Act 1973 (WA), s 19(1)
Misuse of Drugs Act 1981 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | H Sklarz |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Henry Sklarz Barrister & Solicitor |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Blurton v The State of Western Australia [2014] WASCA 61
Hinkley v The State of Western Australia [2014] WASCA 122
Kabambi v The State of Western Australia [2019] WASCA 44
Kaokula v The State of Western Australia [2016] WASCA 198
Penny v The State of Western Australia [2016] WASCA 52
Yates v The State of Western Australia [2008] WASCA 144
JUDGMENT OF THE COURT:
This is the appellant's application for leave to appeal against sentence.
The appellant was charged in the District Court, on indictment, with five offences. Count 1 alleged that, on 23 August 2018 at Wanneroo, the appellant made a threat to the victim, a man whom we will describe as STH, with intent to compel STH to do an act he was lawfully entitled to abstain from doing. Count 2 alleged that, on the same date and at the same place, the appellant attempted to pervert the course of justice by providing a statutory declaration to police so as to prevent his partner, a woman whom we will describe as ADT, being prosecuted on a charge of possession of methylamphetamine with intent to sell or supply. Count 3 alleged that, on 25 August 2018 at Wanneroo, the appellant, with intent to harm, did an act as a result of which bodily harm was caused to STH. Count 4 alleged that, on the same date and at the same place as count 3, the appellant unlawfully detained STH. Count 5 alleged that, on 26 August 2018 at Wanneroo, the appellant was in possession of ammunition while not being a holder of a licence or permit under the Firearms Act 1973 (WA) entitling him to do so.
On 4 November 2020, after a trial before Prior DCJ and a jury, the appellant was convicted of counts 2, 3 and 5. He was acquitted of counts 1 and 4.
On 8 December 2020, his Honour imposed the following sentences:
•count 2 - 12 months' immediate imprisonment (reduced from 18 months' immediate imprisonment for totality);
•count 3 - 3 years 6 months' immediate imprisonment; and
•count 5 - 6 months' immediate imprisonment.
His Honour ordered that the sentences on counts 2 and 3 be served cumulatively and that the sentence on count 5 be served concurrently. Thus, the total effective sentence was 4 years 6 months' immediate imprisonment. The appellant was made eligible for parole and the sentences were backdated to commence on 20 June 2020.[1]
[1] Sentencing ts 10 - 11.
The appellant seeks leave to appeal against sentence on three proposed grounds. Ground 1 alleges that his Honour erred in making certain factual findings in respect of count 3. Ground 2 alleges that the sentence of 3 years 6 months' immediate imprisonment in respect of count 3 is manifestly excessive. Ground 3, in substance, alleges that the total effective sentence infringes the first limb of the totality principle.
In our opinion, none of the proposed grounds of appeal have a reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed. Our reasons for these conclusions are as follows.
The facts
At the material time, the appellant was the lessee of a house situated at an address in Wanneroo (the house), where he usually lived with his partner, ADT.
On 14 August 2018, police officers executed a Misuse of Drugs Act 1981 (WA) search warrant at the house. At the time, the appellant was in custody as a remand prisoner. During the search, police located 3.95 g of methylamphetamine in a plastic bag hidden in a toaster in the kitchen. ADT was arrested and charged with two offences under the Misuse of Drugs Act, including possession of methylamphetamine with intent to sell or supply it to another. ADT was remanded in custody.
On 20 August 2018, the appellant was released from custody on home detention bail and returned to live at the house. ADT remained in custody.
As to count 2, on the night of 23 August 2018, the appellant arranged for STH to sign a statutory declaration form which was blank, save for the details of the witness before whom STH had purportedly executed the document. Later, the appellant completed the factual details of the statutory declaration, stating, falsely, that the methylamphetamine found during the search of the house on 14 August 2018 belonged to STH. In fact, STH had no involvement with the drugs found at the house.
On 23 August 2018, the appellant handed the completed statutory declaration form to two police officers. The statutory declaration was then passed to the detective investigating the charges brought against ADT.
His Honour found that by giving the false statutory declaration to the police, the appellant intended to pervert the course of justice in relation to ADT's prosecution by suggesting that the methylamphetamine found by the police on 14 August 2018 belonged to STH.
As to count 3, at about 11.00 am on 25 August 2018, STH went to the house. The appellant was very angry with him for not giving the false statutory declaration to the police. The appellant grabbed STH by his shirt and neck chain and dragged him inside the house. There, the appellant punched STH a number of times to the face and body and forced him onto the couch in the lounge room where he continued to beat him over a long period of time. At one point, the appellant picked up a can of aerosol degreaser, sprayed it on STH's left arm and set it on fire, causing a burn to the arm. STH fled the house and was found by police sometime later, hiding in a neighbouring property. From there, he was taken to the Joondalup Hospital for medical treatment.
During the trial, the State alleged that the appellant struck STH with a PVC pipe, a Wild Turkey glass bottle or a baseball bat. In making findings of fact for the purposes of sentencing, his Honour said that he was not satisfied that the appellant had struck STH with these items.
His Honour stated in his sentencing remarks that STH suffered the following injuries:[2]
Abrasions to the left forehead, swelling to the left external ear, tenderness and dried blood to the nose, erythema and swelling to the left occiput, swollen bruised left eye and periorbital region, tender bruise interior [sic] chest left flank, bruising to the right abdomen wall and tenderness on palpation, superficial 5 x 4 cm burn to the left upper arm, small superficial penetrating wound to the left arm, mildly communicated [sic] nasal fracture, left orbital swelling. (emphasis added)
[2] Sentencing ts 4.
As will be seen, the correctness of the italicised portions of this part of the sentencing remarks is challenged in ground 1.
STH was treated at Joondalup Hospital with oral analgesia and was given a tetanus injection. He was discharged some hours after his admission.
As to count 5, later on 26 August 2018, the police arrested the appellant at the house. Pursuant to a search warrant, officers located 42 rounds of .22 calibre ammunition in a plastic bag in a cigarette packet that was hidden in the air‑conditioning vent of the master bedroom. The appellant did not hold a firearms licence and did not have a permit to possess the ammunition.
The appellant's personal circumstances
The appellant was 41 years of age at the date of sentencing. His parents separated when he was 7, after which he lived with his mother. The appellant's childhood was marred by his father's substance use and violence.
The appellant has three children from three separate relationships. In August 2020, the appellant married ADT. ADT and her mother are supportive of him.
The appellant left school during year 11. Since that time, he has had what his Honour described as a 'sporadic [work] history', primarily as a labourer and roof installer. At the time he was sentenced, the appellant was unemployed. However, a letter was provided to the sentencing judge which stated that, upon his release from prison, full‑time employment was available to the appellant.
The appellant has a long‑standing history of illicit drug use, particularly heroin, but also methylamphetamine. He has attempted to rehabilitate himself from his drug use. In 2017, he participated in a residential drug rehabilitation program. In 2019, he entered the Fresh Start program and received naltrexone implants. In addition to his illicit drug use, the appellant suffers from anxiety and depression and has an antisocial personality disorder.
The appellant has an extensive criminal record as an adult. He has been convicted of a wide variety of offences committed over more than 20 years, including offences related to methylamphetamine and heroin, the possession of firearms, ammunition and weapons, possession of stolen or unlawfully obtained property, burglary, road traffic offences, property damage, breach of bail, assault and attempted fraud. He has served numerous sentences of immediate imprisonment.
The sentencing judge's approach
After reciting the facts of the appellant's offending and setting out the appellant's antecedents, his Honour referred to the aggravating and mitigating factors. The single aggravating factor identified by his Honour was that the appellant was subject to home detention bail when the offences were committed. The mitigating factors were:[3]
(a)The appellant showed some signs of remorse for his offending.
(b)The appellant, while in custody, had participated in counselling and in the Fresh Start Program and had recently received another naltrexone implant, all of which led his Honour to conclude that the appellant had shown some motivation to avoid further illicit substance use.
(c)His Honour gave some limited weight to the appellant's trial having been delayed due to no fault of the appellant.
[3] Sentencing ts 6 - 7.
His Honour characterised the appellant's offences as 'serious'.[4] With respect to the offence of attempting to pervert the course of justice, his Honour found that the appellant committed the offence in order to protect ADT from prosecution for the offence of possession of methylamphetamine with intent to sell or supply. His Honour observed that the offence of attempting to pervert the course of justice was to some extent pre-planned and that the appellant involved STH in the commission of the offence. However, the offence was not carried out over a long period of time and the police were not induced to act on the false statutory declaration. It was conduct which 'did not actually pervert justice'.[5]
[4] Sentencing ts 7.
[5] Sentencing ts 8.
With respect to count 3, his Honour observed that the injuries sustained by the victim 'were not serious or permanent'.[6] He observed that the act of deliberately setting STH alight using a flammable substance had the potential to result in 'very serious consequences' and was 'a high-risk act'.[7] His Honour found that the appellant's acts of violence against STH 'were acts of vengeance' in response to the victim's failure to take the false statutory declaration to the police.
[6] Sentencing ts 9.
[7] Sentencing ts 9.
His Honour found that count 3 fell 'towards the low to mid-end of the scale [of seriousness]'.[8] He observed that the injuries to the victim were at the low end, however, the appellant's actions exposed STH to a potential risk to his life, health and safety, and it was this potential risk which elevated the seriousness of the offence.[9]
[8] Sentencing ts 9.
[9] Sentencing ts 9.
His Honour accepted that, at the time that counts 2 and 3 were committed, the appellant was at 'a very low, dark place in [his] life'.[10]
[10] Sentencing ts 10.
Relevantly to count 5, his Honour observed that the appellant appeared to have a 'fascination with weapons'.[11]
[11] Sentencing ts 10.
His Honour stated that the seriousness of the offending was such that the only appropriate penalty to be imposed for each offence was a term of immediate imprisonment. After stating the terms of imprisonment he intended to impose, his Honour considered the totality principle and applied it by reducing the sentence that he would have otherwise imposed on count 2 by 6 months.
Over opposition from the State, his Honour ordered that the appellant be eligible for parole.
Ground 1 - alleged errors of fact
Ground 1 states:
The trial judge erred in making factual findings for the purpose of sentencing the offender in respect of count 3.
The ground does not particularise the factual findings which the appellant claims were erroneous. In the written submissions in support of the ground, the appellant claims that it was not open to his Honour to make the finding, set out in the italicised portion of the quotation at [16] above, that among the injuries suffered by STH were 'tender bruise interior [sic] chest left flank, bruising to the right abdomen wall and tenderness on palpation' and 'small superficial penetrating wound to the left arm'.
The appellant's written submissions also allege that his Honour erred in assessing the injuries suffered by STH as 'towards the low to mid‑end of the scale'. It is submitted that these injuries were only at the low end and not towards the mid‑end of the scale.
It is said that his Honour further erred by elevating the seriousness of the superficial burn to a 'potential risk to [STH's] life, health and safety'.
In the appellant's oral submissions, counsel for the appellant focused on the alleged error in [34] above.
Ground 1 - disposition
In examination-in-chief, STH testified as to the injuries inflicted upon him by the appellant. STH said that the appellant inflicted a sustained assault upon him including by dragging him inside the house, striking multiple blows and 'swinging hits' to his body.[12]
[12] See for example ts 520 - 522.
STH testified that, after some hours, he left the house and was picked up by police officers and later taken to the Joondalup Hospital. STH said that he had suffered a number of injuries in the attack. He said that he had a 'sore, achy, battered, bruised body' and that he had been stabbed and burnt by the appellant.[13] In examination-in-chief, STH was shown a series of six photographs (exhibits 3.1 - 3.6) which were taken at the Joondalup Health Campus. The prosecutor took STH through each of the photographs. In essence, STH confirmed the photographs depicted the injuries that he had suffered at the hands of the appellant.
[13] ts 530.
STH was shown exhibit 3.4 which, STH said, showed a laceration and a burn mark. STH said that the burn mark came from the appellant applying flammable liquid to STH's arm and setting it alight. STH said the appellant inflicted the laceration with a pair of hairdressing scissors. STH said that exhibit 3.5 showed a series of puncture marks on his left upper arm which had been inflicted with hairdressing scissors.[14]
[14] ts 534.
Exhibit 3.5 clearly shows what appear to be four small puncture marks above STH's left elbow.
The State adduced evidence at the appellant's trial from an experienced medical practitioner employed at the Joondalup Health Campus, Dr Chung Wee. Dr Wee was not STH's treating doctor. Without objection from defence counsel, Dr Wee testified about the injuries apparently suffered by STH based on the observations and contemporaneous notes taken by the doctors that treated STH at the Joondalup Health Campus, principally, Dr Janelle Slattery.[15]
[15] ts 486.
Dr Wee testified that, according to Dr Slattery's notes, she observed the following injuries to STH:[16]
(a)An abrasion to the left side of the forehead.
(b)Swelling to the left external ear.
(c)A tender nose and some dried blood.
(d)A swollen, bruised left eye and periorbital region.
(e)A tender, bruised anterior chest and left flank.[17]
(f)Some bruising to the right abdominal wall and some tenderness on palpation.
(g)A superficial 5 x 4 cm burn to the left upper arm.
(h)A small superficial penetrating wound to the left upper arm.
[16] ts 488.
[17] Dr Wee observed in his evidence that STH's treating doctor had initially noted that he suffered a tender, bruised anterior chest and right flank, but the note was later rectified to record that the bruising was on the left side: see ts 489.
STH's patient records indicated that he also suffered a broken nose.
Dr Wee testified that the only significant injury suffered by STH was the nasal fracture. Dr Wee also noted the swelling around the left eye.[18]
[18] ts 488.
Dr Wee testified that the total effect of the injuries suffered by the victim would cause pain and discomfort.[19]
[19] ts 490.
The six photographs that comprised exhibit 3 were shown to Dr Wee who commented on them. With respect to exhibit 3.5, Dr Wee noted four small wounds which were consistent with 'potentially penetrating injury like stab wounds' which could have been inflicted by a sharp object like scissors or a knife.[20]
[20] ts 495.
In cross-examination, defence counsel took Dr Wee to exhibit 3.5 and asked him about the age of the four wounds depicted in the photograph. Dr Wee said that the four wounds were 'probably about three days old'.[21] In re-examination, he clarified this evidence by saying that three of the four wounds were between three and five days old but one was newer being between 'one to three days old'.[22]
[21] ts 499.
[22] ts 501.
Dr Wee was not cross-examined about the age of the bruises to STH's left flank or right abdomen wall.
Having regard to the relevant testimony of STH, the six photographs and the evidence of Dr Wee, it was well open to the sentencing judge to make the findings he did about the injuries suffered by STH, including the impugned findings concerning bruising, tenderness and the small superficial penetrating wound to the left arm.
The appellant, both in written and oral submissions, asserted that the effect of Dr Wee's evidence was that the four puncture wounds were 'probably about three days' old' to support an argument that it was not open to his Honour to find that the single, small, superficial penetrating wound to the left arm was caused during the appellant's assault on STH.
As explained by Dr Wee in re‑examination, it may be accepted that three of the four wounds were not inflicted during the appellant's assault on STH. However, the difficulty for the appellant is that Dr Wee identified one of the four wounds, being the 'small superficial penetrating wound to the left arm', as more recent. This was consistent with STH's evidence that he had been stabbed in the arm with scissors by the appellant. It is important to note that his Honour did not find that there were four penetrating wounds to the left arm. He referred only to one such wound. His Honour did not err in his finding that STH had a 'small superficial penetrating wound to the left arm'.
As to his Honour's findings regarding the bruising suffered by STH, counsel was unable to point to the evidence which showed that his Honour erred in this respect. An examination of the relevant portions of the evidence from STH, the exhibits and Dr Wee's evidence shows that the findings were not erroneous.
There is no merit in the claim that his Honour erroneously assessed the injuries suffered by STH as being 'towards the low to mid‑end of the scale'. This claim appears to be founded on a misapprehension of the sentencing remarks. His Honour assessed the seriousness of the offence and not the injuries suffered by STH as being 'towards the low to mid‑end of the scale'. He assessed the injuries (favourably to the appellant) as being at the 'low end'. Having regard to the overall circumstances of the offence, which do not just include the injuries suffered by STH, the assessment made by his Honour was well open.
Finally, his Honour did not err in his finding that the act of setting STH alight using a flammable substance had the potential to result in a 'potential risk to [STH's] life, health and safety'. Such an act plainly has this potential. The fact that the appellant was present and extinguished the flame, and that STH suffered only a small superficial burn, does not detract from the potential risk of such a dangerous act.
Ground 1 has no merit. It has no prospect of succeeding. Leave to appeal must be refused.
Grounds 2 and 3 - manifest excess on count 3 and the totality principle
Grounds 2 and 3 may be dealt with together.
These grounds allege implied error. It will be recalled that ground 2 alleges that the sentence for count 3 was manifestly excessive, and ground 3 alleges that the total effective sentence infringed the first limb of the totality principle.
General principles relevant to allegations of implied error are well established. We adopt, without repetition, the statement of principles made by this court in Kabambi v The State of Western Australia.[23]
[23] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The maximum penalty for count 2, being an offence contrary to s 143 of the Criminal Code (WA) (Code), is 7 years' imprisonment. The maximum penalty for count 3, being an offence contrary to s 304(2) of the Code, is 20 years' imprisonment. The maximum penalty for count 5, being an offence contrary to s 19(1) of the Firearms Act, is 5 years' imprisonment. We will not repeat the facts and circumstances of the offences. Individually and collectively, they are clearly serious.
Specifically with respect to count 3, the appellant inflicted bodily harm upon STH in a sustained beating, which culminated in the use of the accelerant to burn STH. STH was left with a broken nose, as well as bruising and a small superficial penetrating wound to his left upper arm, caused by the appellant stabbing him with some scissors. The use of the accelerant, while causing only minor injury, had, as his Honour correctly found, the potential for much greater harm to STH. This elevated the seriousness of the offence. The attack on STH was completely unjustified and was motivated by vengeance towards STH for not submitting the false declaration to the police. The offence was committed while the appellant was on home detention bail.
There was very little in the way of mitigation. The appellant was not young, he did not have the advantage of a plea of guilty, he was not remorseful, and he had an appalling record of convictions which elevated the need for personal deterrence and public protection.
We have considered the cases cited by the appellant in support of ground 2, being: Hinkley v The State of Western Australia;[24] Penny v The State of Western Australia;[25] Kaokula v The State of Western Australia;[26] Blurton v The State of Western Australia[27] and Yates v The State of Western Australia.[28]
[24] Hinkley v The State of Western Australia [2014] WASCA 122.
[25] Penny v The State of Western Australia [2016] WASCA 52.
[26] Kaokula v The State of Western Australia [2016] WASCA 198.
[27] Blurton v The State of Western Australia [2014] WASCA 61.
[28] Yates v The State of Western Australia [2008] WASCA 144.
There is no tariff for an offence contrary to s 304(2) of the Code, having regard to the wide range of circumstances in which the offence is committed, and to the antecedents of the offenders. Having considered the cases referred to in [63], we have concluded that the individual sentence imposed on count 3 is not inconsistent with the outcomes in these cases.
Having regard to all of the circumstances of the offending and all relevant sentencing considerations, it is not reasonably arguable that the sentence of 3 years 6 months' immediate imprisonment for count 3 was manifestly excessive. It was not unreasonable or plainly unjust.
We now turn to the allegation that the total effective sentence of 4 years 6 months' imprisonment infringed the first limb of the totality principle.
Count 2, the offence of attempting to pervert the course of justice, was a reasonably serious example of its type. The appellant hatched a plan in which he recruited STH to falsely take the blame for the offence committed by ADT. The appellant had STH sign the blank statutory declaration form, then later completed the factual details in which STH purportedly stated that the methylamphetamine found during the search of the house on 14 August 2018 belonged to him. The false statutory declaration was then provided to the police. Although the police were not actually deceived, the appellant's actions had the potential to divert the investigation away from its true path. This offending was committed separately to counts 3 and 5, and plainly warranted additional punishment in order to properly reflect the appellant's overall criminality.
As to count 5, the appellant has, as his Honour stated, a fascination with firearms. The presence of the ammunition secreted, as it was, in an air conditioning vent, increases the appellant's overall criminality, even though the sentence was ultimately ordered to be served concurrently.
In our opinion, the sentence of 4 years 6 months' immediate imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to the appellant personally. The total effective sentence was not unreasonable or plainly unjust, and did not infringe the first limb of the totality principle.
Grounds 2 and 3 have no reasonable prospect of succeeding. Leave to appeal should be refused.
Orders
The orders that we would make are as follows:
(1)Leave to appeal is refused.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
13 AUGUST 2021
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