Schmied v The State of Western Australia
[2016] WASCA 99
•17 JUNE 2016
SCHMIED -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 99
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 99 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:103/2015 | 7 JUNE 2016 | |
| Coram: | MAZZA JA MITCHELL J | 17/06/16 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GREGORY THEODORE SCHMIED THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against sentence Whether appellant's remorse considered Effect of appellant's offer to plead guilty to lesser offence where appellant convicted as charged Manifest excess Turns on own facts |
Legislation: | Nil |
Case References: | Oxenham v The State of Western Australia [2015] WASCA 30 The State of Western Australia v Naumoski [2013] WASCA 215 Trompler v The State of Western Australia [2008] WASCA 265 Winmar v The State of Western Australia [2016] WASCA 62 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SCHMIED -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 99 CORAM : MAZZA JA
- MITCHELL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STAUDE DCJ
File No : IND 1551 of 2014
Catchwords:
Criminal law - Application for leave to appeal against sentence - Whether appellant's remorse considered - Effect of appellant's offer to plead guilty to lesser offence where appellant convicted as charged - Manifest excess - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Oxenham v The State of Western Australia [2015] WASCA 30
The State of Western Australia v Naumoski [2013] WASCA 215
Trompler v The State of Western Australia [2008] WASCA 265
Winmar v The State of Western Australia [2016] WASCA 62
- REASONS OF THE COURT:
Summary
1 The appellant seeks leave to appeal against a sentence of 7 years' imprisonment imposed for the offence of intentionally causing grievous bodily harm. The appellant was convicted of that offence, which involved him going to the house of his former partner's family and stabbing her father eight times with a hunting knife, after trial. The appellant seeks leave to appeal against the sentence on a number of grounds, including that it was manifestly excessive.
2 For the following reasons leave should be refused on all grounds, none of which have any reasonable prospect of success.
Circumstances of the offence
3 The sentencing judge's unchallenged findings of fact as to the circumstances of the offence were as follows.
4 At about 11.30 pm on 27 January 2014, the appellant drove to the home of the parents of his former de facto partner, Ms Hinkley. Ms Hinkley was living at the house with her parents.
5 The relationship between Ms Hinkley and the appellant had been violent and dysfunctional. The appellant and Ms Hinkley separated in December 2012 following the birth of their son, who was 16 months old at the date of the offences. The appellant had developed animosity towards Ms Hinkley and her parents, Mr and Mrs Hinkley, who he perceived to dislike him. On 6 September 2013, the appellant was served with a violence restraining order which prohibited him from having any contact with Ms Hinkley or coming near her home. The appellant was also subject to a suspended sentence of imprisonment imposed on 3 January 2014 for breaching the violence restraining order by pursuing and threatening Ms Hinkley when she was driving her car.
6 Following his separation from Ms Hinkley in December 2012, the appellant reverted to illicit drug use. His mental health deteriorated to the point where he suffered from major depression and became suicidal. During the day of the offences, the appellant had a confrontation with his mother and later indicated an intention to commit suicide.
7 When the appellant arrived at the Hinkleys' home on 27 January 2014, the family were asleep. The appellant used a sharp hunting knife to puncture the rear tyres of Mr and Mrs Hinkley's two vehicles. He then called out 'Come out here and finish this once and for all'.
8 Mrs Hinkley awoke and, realising that it was the appellant, went outside to the front of the house. She saw the appellant coming towards her with his right hand raised to head height. Mrs Hinkley cowered in fear of the appellant, crouching near the ground. Mr Hinkley then emerged from the house and saw his wife in that position, and the appellant heading towards her with his hand raised. Mr Hinkley did not see the knife in the appellant's hand.
9 Mr Hinkley then confronted the appellant and grabbed him in a bear hug. Mr Hinkley intended to restrain the appellant to protect his wife and detain the appellant until the police arrived. The appellant's right hand, which held the knife, was still elevated, and so was free of Mr Hinkley's grasp.
10 The appellant responded by stabbing Mr Hinkley eight times as he tried to wrestle the appellant to the ground. A number of the stab wounds were deep. Two caused life-threatening penetrating injuries to Mr Hinkley's lungs, resulting in the abnormal presence of air between the lung and the wall of the chest on each side. Another stab wound caused a 4.5 cm laceration to Mr Hinkley's liver.
11 Eventually, the appellant and Mr Hinkley fell to the ground, causing Mr Hinkley to suffer fractures to his left collarbone, manubrium and scapula.
12 The appellant then got up and ran to his car, which was parked nearby. He drove past the Hinkleys' home and called out 'you're dead you cunt'. The appellant then drove to his mother's house and confessed to her that he had stabbed Mr Hinkley. She was able to take the knife from the appellant and dispose of it. While the appellant took a shower to wash off Mr Hinkley's blood, his mother called the police.
13 When police attended, the appellant admitted stabbing Mr Hinkley but blamed him for the incident and made a number of irrational allegations against him. Subsequently, the appellant claimed to have no memory of the incident.
14 Mr Hinkley's injuries were clearly life-threatening, but medical attention was promptly obtained and tubes were inserted into each side of Mr Hinkley's chest to decompress his chest cavity. Mr Hinkley was hospitalised for eight days. While he did not suffer any permanent physical disability, both Mr and Mrs Hinkley suffered severe and ongoing psychological trauma.
Trial judge's approach
15 The appellant was charged with intentionally causing grievous bodily harm to Mr Hinkley. At trial, he pleaded guilty to the unlawful damage offences and offered to plead guilty to causing grievous bodily harm without intent. The State did not accept the latter plea in satisfaction of the indictment. The appellant was convicted of intentionally causing grievous bodily harm after a trial at which the only live issue was his intention.
16 The trial judge accepted that the appellant had unconsciously blocked out his memory of the offence. He found that the appellant was not significantly intoxicated at the time of committing the offences, but accepted that the appellant's judgment was impaired by his diagnosed but untreated condition of major depression. The appellant was not suffering from a psychotic disorder. He intended to inflict grievous bodily harm upon Mr Hinkley. The trial judge was not satisfied that the offence was premediated. He was satisfied that the appellant went to the Hinkleys' home armed with a knife in order to do property damage and confront Mr Hinkley in circumstances likely to lead to a physical altercation in which the knife might be used. The trial judge said:
I find that your depression did impair your judgment and your ability to make calm and rational choices. Your behaviour during and after the incident was clearly irrational. I do not find, however, that it obscured your intent to commit the offence of unlawfully doing grievous bodily harm. Your actions as whole were consistent with an intention to do damage to the Hinkleys' cars and to do violence to [Mr] Hinkley and possibly others. Your motivation in damaging the cars was revenge (ts 11).
17 The trial judge also noted:
In short, I accept that [your] diagnosed but untreated condition of major depression which caused you to be suicidal is a mitigating factor, and that your judgment was impaired. By reason of that your culpability is reduced to some extent. However, the effect of that on sentence is limited. As you have shown yourself to be capable of gravely wrongful violence in circumstances involving a breach or a protective order of the court the public rightly expects that its protection will [be] given due consideration by the court (ts 12 - 13).
18 The trial judge noted that the appellant was 28 years old and, while having the benefit of a stable family environment as a child, was disadvantaged by attention deficit hyperactivity disorder and obsessive compulsive behaviours. The appellant was bullied and isolated at school. He did not have access to treatment for his ADHD after the age of 18. The appellant was injured at work at the age of 15 years, which left him with chronic back pain. He had been on a disability allowance for most of his adult life, but had been able to do occasional labouring and mechanical work. The appellant used illicit drugs from the age of 15, and had last used methylamphetamine three days before the offences. The fact that the appellant was not medicated for depression indicated a neglect of his mental health, which was a sign of a lack of personal responsibility on the appellant's part.
19 The trial judge sentenced the appellant to 7 years' imprisonment for intentionally causing grievous bodily harm to Mr Hinkley, with concurrent 6 month sentences for each of the criminal damage offences. The appellant now seeks leave to appeal against those sentences. The court must not grant leave on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. Unless leave is granted on at least one ground, the appeal is taken to have been dismissed.1
Ground 1: expression of remorse
20 The appellant's first ground of appeal in effect contends that the trial judge erred in stating that he had shown no remorse. The appellant contends that he had expressed remorse as much as possible given the state of depression from which he was suffering at the time. The appellant also says that he provided his lawyer with a 'letter of remorse' and a report of his completion of a course in prison, which were not provided to the trial judge. The appellant contends that these documents would have changed the trial judge's view on whether or not he was remorseful, and so were likely to have affected the sentence which the trial judge imposed.
21 The trial judge did not actually make a positive finding that the appellant had shown no remorse. He noted that a plea of guilty may warrant further mitigation of sentence if it indicates remorse and acceptance of responsibility. The trial judge observed that these were 'features that cannot readily be seen in this case' (ts 2). That observation reflects the fact that the appellant did not plead guilty. The trial judge also indicated that the appellant's conduct in calling out 'you're dead you cunt' after the attack:
not only indicate[s] an awareness of the extent of the injuries caused by you to Mr Hinkley but also a callous disregard and lack of remorse for your actions (ts 5).
- The trial judge was speaking of the appellant's attitude at the time immediately after committing the offences.
22 Genuine remorse can be a mitigating factor, which indicates an increased prospect for rehabilitation. The weight which will be accorded to expressions of remorse will vary according to the circumstances of the case. As it is a mitigating factor, the appellant was required to establish that fact.
23 If the appellant wanted the trial judge to take account of his letter of remorse and the report of his completion of a prison program then it was incumbent on him to produce that material to the judge. The trial judge did not err by failing to take account of material not presented to him. The appellant, who was present during the course of the sentencing proceedings, did not seek to alert the trial judge to this material or have his lawyer do so.
24 We have been provided with the material which the appellant says shows his remorse. In all the circumstances of the present case (including the seriousness of the offending conduct, the appellant's statements immediately after committing the offences and the fact that he pleaded not guilty) very little weight could be given to those expressions of remorse. The statements of remorse were evidently made in the context of the sentencing process, and were not reflected in the appellant's conduct. In all the circumstances of the present case, if the letter of apology and programme report had been available to the trial judge, they would not have justified the imposition of any lesser sentence.
25 In our view, there is no merit in proposed ground of appeal 1.
Ground 2: offer to plead guilty to causing grievous bodily harm
26 The appellant's second ground of appeal complains of the trial judge's failure to discount his sentence by reason of his offer to plead guilty to causing grievous bodily harm (without intent). The appellant argues that he had advised his lawyer that he was willing to plead guilty to that offence well before trial.
27 In his oral submissions, the appellant said that he had told his lawyer that he wanted to plead guilty to intentionally causing grievous bodily harm to Mr Hinkley, but was advised not to do so as he could not remember the incident. The appellant said that he wanted a partial discount for offering to plead guilty to causing grievous bodily harm (without intent) and had been told by his lawyer that he would receive a partial discount.
28 Even on the assumption that the appellant has accurately recounted his instructions to and advice from his lawyer, this ground has no reasonable prospect of success. An accused person is entitled to plead not guilty to a charge and require the prosecution to prove that he or she committed the charged offence. The accused may do so for any reason, and is not subject to further punishment for exercising that entitlement. A plea of guilty is a mitigating factor, but to gain the benefit of that factor the accused must actually plead guilty to the offence of which he is convicted.
29 In the present case, the appellant maintained a plea of not guilty to the offence of intentionally causing grievous bodily harm to Mr Hinkley, and was convicted of that offence only after trial. The fact that the appellant pleaded not guilty to that offence means that he does not receive the mitigating effect of a plea of guilty. That is so irrespective of the wishes he expressed to his legal representatives or the quality of legal advice he received from them.
30 Sometimes, a sentencing judge gives mitigating weight to the conduct of an accused who, while pleading not guilty, cooperates with the trial process by limiting the issues that are to be determined by the court. For example, a discount may be given where the accused's cooperation materially reduces the length of the trial or obviates the need for witnesses to give evidence. In this case, the offer to plead guilty to the lesser offence did not have any of these effects and no discount was given (ts 343). It could not be said that his Honour erred in this regard.
Ground 3: manifest excess
31 The appellant's third proposed ground of appeal contends that the 7-year term for intentionally causing grievous bodily harm to Mr Hinkley 'was beyond a fair and justified sentence'. The appellant contends that no consideration was given to his 'having no vast history of violence and no previous charges of violence', or of the fact that this was the appellant's first prison term and that he was the father of a young child.
32 There is no merit in this ground so far as it contends that the trial judge failed to consider those matters. The trial judge referred to the appellant's record, which he characterised as:
minor by comparison with the offences for which you are to be sentenced, but it shows a pattern of antisocial behaviour (ts 14 - 15).
- The trial judge clearly took account of the nature of the appellant's previous convictions and was aware that this was to be his first term of imprisonment. The trial judge also referred to the fact that the appellant was the father of Ms Hinkley's young son (ts 3).
33 We shall treat this ground as contending that the sentence of 7 years' imprisonment was manifestly excessive in all the circumstances. The principles for determining whether an error of principle should be inferred from a manifestly excessive sentence are well established and need not be set out in full here.2 The sentence must be shown to be unreasonable or plainly unjust. In determining whether an implied error has been made, the court will consider the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the offender's criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
Maximum penalty
34 The maximum penalty for the offence of intentionally doing grievous bodily harm to a person, under s 294(1) of the Criminal Code (WA) (Code), is imprisonment for 20 years. In contrast, if intention is not established, the maximum term available under s 297(1) of the Code is 10 years' imprisonment.
Customary sentencing standards
35 This court recently reviewed sentencing standards for the offence of intentionally causing grievous bodily harm in Oxenham v The State of Western Australia.3 We adopt that analysis without repeating it. As Martin CJ noted in Oxenham, the offence can be committed in a wide variety of circumstances, and the range of sentences customarily imposed is broad. The point at which any particular case will fall within that range depends very much upon its particular facts and circumstances. Sentences in the range of 4 years 6 months - 8 years' imprisonment have been imposed in cases which are not in the worst category. The sentence of 7 years' imprisonment imposed on the appellant fits within that range and, when all the circumstances of the case are considered, is broadly consistent with the approach taken in the cases reviewed in Oxenham.
36 The sentence imposed in this case is the same as that imposed by this court on resentence in The State of Western Australia v Naumoski,4 in which the offender entered the home of a former partner and stabbed her multiple times. The permanent physical injuries sustained by the victim, involving disfigurement for life, were more serious than those sustained by Mr Hinkley in the present case. However, Mr Naumoski pleaded guilty at the first reasonable opportunity and received a 25% discount for that plea. The review of earlier decisions undertaken in Naumoski also indicates that the sentence imposed in the present case does not depart from standards of sentencing customarily observed in cases of this kind.
37 We also note that in cases under s 297(1) of the Criminal Code, which do not involve the element of intention, sentences of 3 - 5 years are commonly imposed for offences towards the upper end of the range.5
Seriousness of the offence
38 There are three matters commonly recognised as significant in assessing the comparative seriousness of an offence which involves unlawfully doing grievous bodily harm. First, there is the nature of the harm which is inflicted. Although grievous bodily harm is necessarily serious, it may range from a temporary life-threatening or a permanent injury with which the complainant can cope, to a severe and life-threatening injury which causes significant permanent disability. Secondly, there is the nature of the act which causes the harm. This may range from a single act to repeated acts of violence. Thirdly, there is the background to and circumstances of the offence. This may range from a response to provocation by the complainant to random and senseless violence.6
39 In the present case the physical injuries sustained by Mr Hinkley were not permanent. However, the injuries inflicted were objectively serious and likely to cause death. Both Mr and Mrs Hinkley have been traumatised by the offence, suffering from ongoing severe psychological impacts. The injuries were inflicted in a sustained attack. The appellant stabbed Mr Hinkley eight times with a very large hunting knife in an act of random and senseless violence which was obviously likely to endanger Mr Hinkley's life. The appellant's comment as he drove away from the scene of his crime indicates that he subjectively intended to endanger Mr Hinkley's life.
40 It is also a significant aggravating circumstance that the offence was committed in breach of a violence restraining order, while the appellant was subject to a suspended sentence for breaching that violence restraining order. The attack occurred late at night at the Hinkleys' home, and Mr Hinkley was attacked while trying to protect his wife from the threat which the appellant presented to her. The offence occurred against a background of threatening behaviour by the appellant towards Ms Hinkley. In all the circumstances, this was a comparatively serious example of an offence against s 294(1) of the Code.
Appellant's personal circumstances
41 The appellant's personal circumstances are noted above. While the appellant does not have prior convictions for offences involving actual violence, he has two convictions of breaching a violence restraining order and one conviction of threats to injure, endanger or harm. The trial judge took appropriate account of the mitigating effect of the appellant's depressive illness. The appellant does not have the mitigating benefit of a plea of guilty of that offence. The separation of the appellant from his son is a common consequence of imprisonment, and is not significantly mitigatory.
Conclusion as to manifest excess
42 Having considered all of the above matters, we are not persuaded that the sentence imposed in this case was arguably manifestly excessive. We cannot infer that the trial judge made an error of principle in the exercise of his sentencing discretion.
Orders
43 For the above reasons, we would refuse leave on all grounds with the consequence that the appeal is taken to be dismissed.
1 Section 9 of the Criminal Appeals Act 2004 (WA).
2 See Winmar v The State of Western Australia [2016] WASCA 62 [63], [70] - [73].
3Oxenham v The State of Western Australia [2015] WASCA 30 [36] - [48].
4The State of Western Australia v Naumoski [2013] WASCA 215.
5 See Winmar [66] - [69].
6Trompler v The State of Western Australia [2008] WASCA 265 [9] - [11]; Oxenham [30]; Winmar [65].
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