Rolfe v The State of Western Australia
[2012] WASCA 169
•27 AUGUST 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ROLFE -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 169
CORAM: BUSS JA
MAZZA JA
HEARD: 14 AUGUST 2012
DELIVERED : 27 AUGUST 2012
FILE NO/S: CACR 75 of 2012
BETWEEN: BENJAMIN LEVI ROLFE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAVRIANOU DCJ
File No :IND 1447 of 2011
Catchwords:
Criminal law - Application for leave to appeal against sentence - Aggravated burglary - Unlawful wounding with intent - Grievous bodily harm with intent - Did total effective sentence of 8 years and 4 months' imprisonment infringe the first limb of totality principle - Whether sentence of 5 years' imprisonment for grievous bodily harm with intent manifestly excessive - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Holgate Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Eriha v The State of Western Australia [2011] WASCA 167
Lesay v The State of Western Australia [2011] WASCA 154
Roffey v The State of Western Australia [2007] WASCA 246
Senoka v The State of Western Australia [2006] WASCA 284
Stephens v The State of Western Australia [2005] WASCA 98
The State of Western Australia v Strawbridge [2005] WASCA 201
Wilson v The State of Western Australia [2010] WASCA 82
BUSS JA: I agree with Mazza JA.
MAZZA JA: This is an application for leave to appeal against sentence.
On 14 February 2012, the appellant pleaded guilty on the fast‑track system to three offences on indictment being one count of aggravated burglary, one count of unlawful wounding with intent to maim, disfigure, disable or do grievous bodily harm, and one count of doing grievous bodily harm with intent to maim, disfigure, disable or do grievous bodily harm. Each of these offences carries a maximum penalty of 20 years' imprisonment.
The appellant also pleaded guilty to seven offences set out in a notice pursuant to s 32 of the Sentencing Act 1995 (WA). These offences occurred in 1997, including two offences of assault occasioning bodily harm. They were not dealt with at the time because the appellant absconded.
On 12 March 2012, his Honour Stavrianou DCJ sentenced the appellant on the indictable offences as follows:
1.Aggravated burglary (count 1) 3 years' imprisonment.
2.Unlawful wounding with intent (count 2) 2 years' imprisonment.
3.Grievous bodily harm with intent (count 3) 5 years' imprisonment.
His Honour ordered that the sentences on counts 1 and 3 be served cumulatively, and count 2 be served concurrently.
In respect of the offences set out in the s 32 notice, the appellant was sentenced to various terms of imprisonment to be served concurrently, save for one of the offences of assault occasioning bodily harm for which his Honour imposed 4 months' imprisonment to be served cumulatively upon the sentences imposed on the indictment. Accordingly, the total effective sentence imposed upon the appellant was 8 years and 4 months' imprisonment. His Honour ordered that the appellant be eligible for parole. He also imposed a permanent violence restraining order. No challenge is made to this order.
The proposed grounds of appeal allege that the total effective sentence infringed the first limb of the totality principle (ground 1) and that the sentence of 5 years' imprisonment imposed for count 3 was manifestly excessive (ground 2).
The facts of the offending
There is no dispute about the facts of the appellant's offending.
On 20 April 2011, the appellant, in company with two others, Anthony Legg and Michael Barry, attended at a residential address situated in Wellington Street, Perth, which was occupied by Ashley Wilson, Wade Scobell and Matthew Currie.
The appellant and his co‑offenders were armed with a machete and another instrument described as a block‑splitter or axe. The appellant and his co‑offenders attended the premises to collect an alleged debt.
One of the three offenders knocked on the door. They forced their way into the premises when Mr Scobell answered it. The appellant immediately struck Mr Scobell with a machete to the left side of the neck, lacerating it. Mr Scobell also sustained a laceration to his right palm as he tried to defend himself from further blows with the machete. Mr Scobell turned to run to another room in the house. As he did so, the appellant struck him in the back. Eventually, Mr Scobell made his way to a bedroom and barricaded himself there behind the closed door. Mr Scobell suffered a 3‑cm wound above his left clavicle, a 2‑cm laceration of his right wrist and a 8‑cm superficial abrasion to the right side of his back.
Mr Wilson and other occupants of the premises tried to flee. During this process, Mr Wilson was punched by Mr Legg, which caused him to hit his head on a wall. As a result, he suffered a split lip and sustained a lump under his right eye.
Meanwhile, as Mr Currie was fleeing the unit, he was struck by Mr Barry to the back of the head with the block‑splitter. The appellant struck Mr Currie several times to the head and arms with the machete. Mr Legg punched and kicked Mr Currie's head and body. Mr Currie sustained numerous lacerations, the most severe of which were administered by the appellant. These lacerations were to both hands and to the right arm. The lacerations damaged Mr Currie's nerve function and the ulnar artery in his right arm, and damaged the tendons of his left hand. Surgery was required to repair these injuries. While Mr Currie regained the full range of motion to his left hand, the same cannot be said for his right hand, which continues to be adversely affected. The photographs that were before the court show that Mr Currie has sustained considerable unsightly scarring to both his arms. The injuries sustained by Mr Currie were life‑threatening and likely to cause permanent injury to health in the absence of medical treatment. The victim impact statement written by Mr Currie speaks of severe psychological and physical effects.
After this assault, the appellant and his co‑offenders ransacked the premises, searching for the money that was allegedly owed.
With respect to the charge of assault occasioning bodily harm on the s 32 notice for which the appellant was sentenced to the cumulative term of 4 months' imprisonment, the appellant struck the victim, who was trying to protect his son from attack, with a steel star picket, causing the victim to suffer a split left ear.
The appellant's antecedents
At the time he was sentenced, the appellant was aged 43 years. As a child, he witnessed episodes of domestic abuse perpetrated on his mother by his father. He left home at the age of 17 because he was no longer able to tolerate this abuse. He has five children from two relationships. His first long‑term partner died tragically in a car accident in 2000. Since that time he has taken medication for depression.
A court‑ordered psychological report revealed significant personality pathology, including many antisocial traits and problems with alcohol, and illicit substance abuse. The appellant has no insight as to why he behaved in the violent manner he did when he committed the indictable offences. The appellant has a substantial relevant criminal history, including a conviction in the County Court of Victoria in 1998 for intentionally causing serious injury for which he received 6 years' imprisonment, and burglary and theft for which he received 6 months' imprisonment in the Melbourne Magistrates Court in 2007. The psychologist assessed the appellant as being of at least a moderate risk of reoffending in a violent way.
In the appellant's favour, the appellant has a history of regular employment and has the support of his family.
His Honour's sentencing remarks
It is unnecessary to set out in any detail his Honour's sentencing remarks, given that no challenge has been made to them. His Honour expressly took into account, as a mitigating factor, the appellant's fast‑track pleas of guilty. He considered that general and specific deterrence were important considerations. He said that the appellant's degree of culpability was high. He described the assaults as unrelenting and committed in circumstances where the victims had no opportunity to resist in any meaningful or effective way: ts 38. He made express reference to the totality principle and reduced the sentence he would otherwise have imposed on count 1 by one year as a consequence.
The appellant's submissions
In support of ground 1, Mr Watters submitted that in light of the cases of Stephens v The State of Western Australia [2005] WASCA 98, Senoka v The State of Western Australia [2006] WASCA 284 and The State of Western Australia v Strawbridge [2005] WASCA 201, the total effective sentence imposed upon the appellant breached the first limb of the totality principle. Mr Watters also, albeit rather faintly, submitted that the sentences imposed for the indictable offences breached the one transaction rule.
In respect of ground 2, Mr Watters relied upon the same cases he said were relevant to ground 1. He submitted that the offence of grievous bodily harm with intent was, when compared with other cases, not so serious as to justify a term of 5 years' imprisonment.
Disposition of the appeal
The relevant general principles which apply to appeals against sentence are well known and were explained by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not require repetition here. Nor do I need to set out the totality principle or the criteria which must be considered when deciding whether an individual sentence is manifestly excessive. The totality principle was described in Roffey v The State of Western Australia [2007] WASCA 246 [24], [25], and the criteria to be considered when manifest excess is alleged are set out in Chan v The Queen (1989) 38 A Crim R 337, 342.
It is convenient to deal with the proposed grounds of appeal in reverse order.
There is no question that the offence of doing grievous bodily harm with intent is a serious one. This is reflected in the maximum penalty of 20 years' imprisonment. The circumstances of the offending reveal that it was a serious offence of its type. The appellant armed himself with a weapon designed to cause serious injury. He administered multiple blows upon Mr Currie, inflicting severe, life‑threatening wounds. Mr Currie has been left with diminished function in his right hand and scarring on both arms. The effects upon him have been very considerable. Apart from the appellant's plea of guilty, there is little mitigation. Certainly, there is no mitigation to be found in his antecedents. As his Honour pointed out, personal deterrence was of importance in this case. It cannot be overlooked that the appellant poses at least a moderate risk of further offending.
I have considered the cases cited by Mr Watters. These are not the only relevant cases. The range of sentences customarily imposed with respect to the offence of grievous bodily harm with intent was discussed in Eriha v The State of Western Australia [2011] WASCA 167 [50] ‑ [55]. There is no need to discuss the cases cited by Mr Watters or the cases referred to in Eriha. It is sufficient to say that the cases do not reveal that the sentence imposed upon the appellant was outside the range of sentences customarily imposed for the offence.
Of course, in the end, each case depends upon its own particular facts. The appellant has failed to persuade me that the sentence of 5 years' imprisonment for the offence of grievous bodily harm with intent against Mr Currie did not represent a sound exercise of his Honour's sentencing discretion. The sentence was, in my opinion, appropriate to its facts and circumstances and cannot arguably be said to be manifestly excessive.
Ground 2 has no reasonable prospect of succeeding.
I now turn to consider ground 1.
The appellant's overall criminality was high. The appellant, in combination with his co‑offenders and in a deliberate and planned way, forced his way into Mr Wilson's residence, intending to inflict physical injury, with weapons, upon one or more of the occupants. The offending involved multiple victims and multiple assaults. The injuries that were inflicted, particularly upon Mr Currie, were serious. The assaults were unrelenting and the victims had no opportunity to resist in any meaningful or effective way. The appellant, who was motivated by the desire to collect a debt, took the law into his own hands. There is no question that, in addition to personal deterrence, general deterrence was required.
There is nothing in Mr Watters' argument that the one transaction rule should be applied in this case. As this court has pointed out on many occasions, the one transaction rule is merely a rule of thumb designed to assist judges to ensure that the total sentence imposed for offences which occur closely together in time or in a spree is proportionate to the offender's overall criminality. It will sometimes be the case that cumulative sentences are justified to properly reflect an offender's overall criminality: Lesay v The State of Western Australia [2011] WASCA 154 [21]. This is one of those cases.
There can be no complaint about the additional 4 months' imprisonment imposed upon the appellant for the s 32 offence. Although it occurred a long time ago, the offence of assault occasioning bodily harm for which the appellant received a cumulative sentence, was serious and warranted additional punishment.
It is not reasonably arguable that the total effective sentence imposed upon the appellant was disproportionate to the overall criminality involved in all the appellant's offending, having regard to the circumstances of the case, including those referable to him personally.
Ground 1 has no reasonable prospect of succeeding.
Conclusion and orders
As neither ground has a reasonable prospect of succeeding, leave to appeal must be refused. Leave to appeal having been refused on all grounds, the appeal is to be taken to be dismissed: s 27(2) and (3) of the Criminal Appeals Act 2004 (WA).
I would make the following orders:
1.Leave to appeal is refused on each ground.
2.The appeal is dismissed.
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