Sheffield v The State of Western Australia
[2023] WASCA 157
•24 OCTOBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SHEFFIELD -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 157
CORAM: MITCHELL JA
VANDONGEN JA
LUNDBERG J
HEARD: 24 OCTOBER 2023
DELIVERED : 24 OCTOBER 2023
PUBLISHED : 6 NOVEMBER 2023
FILE NO/S: CACR 100 of 2023
BETWEEN: TIMOTHY ALLAN SHEFFIELD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEWART DCJ
File Number : CAR IND 7 of 2022
Catchwords:
Criminal law - Appeal against sentence - Whether the sentencing judge erred in failing to suspend imprisonment - Whether different sentence should have been imposed
Legislation:
Criminal Appeals Act (WA), s 31(4)
Criminal Code (WA), s 266, s 297(1)
Sentencing Act 1995 (WA), s 9AA
Result:
Application for extension of time granted
Leave to appeal on grounds 1 and 2 allowed
Leave to appeal on ground 3 refused
Appeal allowed
Category: D
Representation:
Counsel:
| Appellant | : | M R Gunning |
| Respondent | : | R P Arndt |
Solicitors:
| Appellant | : | Gunning Young |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Agnew v The Queen [2003] WASCA 188
Boyle v The State of Western Australia [2010] WASCA 97
Childs v The State of Western Australia [2023] WASCA 145
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Djiagween v The State of Western Australia [2012] WASCA 141
Etrelezis v The Queen [2001] WASCA 327
Field v The State of Western Australia [2013] WASCA 209
HNA v The State of Western Australia [2016] WASCA 165
JBD v The State of Western Australia [2013] WASCA 180
Kabambi v The State of Western Australia [2019] WASCA 44
Littlely v The State of Western Australia [2022] WASCA 102
Macaree v The State of Western Australia [2011] WASCA 207
Merlo v The State of Western Australia [2018] WASCA 71
Miorada v The State of Western Australia [2022] WASCA 143
O'Dea v The State of Western Australia [2023] WASCA 70
The State of Western Australia v Ellement [2016] WASCA 1
The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308
Trompler v The State of Western Australia [2008] WASCA 265
Ugle v The State of Western Australia [2018] WASCA 221
Yaqubi v The State of Western Australia [2016] WASCA 187
REASONS OF THE COURT:
Introduction
On 8 October 2021, in a moment of foolishness and without any intention to do harm, the appellant cut the top off another man's thumb with a collectable knife which the appellant described as a 'toy'. After the victim was taken to hospital and his thumb was surgically reattached, the appellant was arrested and charged with unlawfully doing grievous bodily harm, contrary to s 297(1) of the Criminal Code (WA) (Code). A little over two weeks before his trial was due to commence in the District Court, the appellant pleaded guilty and was sentenced to 2 years' immediate imprisonment. The appellant then sought leave to appeal against that sentence, challenging both the length of that sentence and the fact that a term of immediate imprisonment was imposed.
On 24 October 2023, at the conclusion of the hearing of the appellant's appeal against sentence, the court made the following orders:
1.The appellant's application for an extension of time in which to appeal is granted.
2.Leave to appeal is granted on grounds 1 and 2.
3.Leave to appeal is refused on ground 3.
4.The appeal is allowed.
5.The sentence imposed by the District Court of Western Australia in CAR IND 7 of 2022 is set aside and the following sentence is substituted: The appellant is sentenced to 9 months' imprisonment suspended for 12 months.
When those orders were made the court indicated that reasons would be published later. These are our reasons.
Grounds of appeal
The appellant relies on three grounds of appeal, which are in the following terms:
1.Her Honour erred in imposing 2 years immediate imprisonment which in all circumstances was manifestly excessive.
2.Her Honour erred when considering all the sentencing circumstances in failing to suspend the term of imprisonment.
3.Her Honour erred when considering the two-step approach in considering whether to suspend the term of imprisonment by concluding that she was 'not persuaded that suspension is warranted', where in all circumstances a suspended term of imprisonment was warranted.
By ground 1, the appellant contends that error should be inferred from the length of the sentence of imprisonment that was imposed. Ground 2 asserts that error should be inferred from the fact that the sentencing judge imposed an immediate term of imprisonment. Ground 3 asserts that the sentencing judge made an express error when deciding to impose a term of immediate imprisonment.
The facts
Neither party to the appeal challenged any of the sentencing judge's findings of fact. In that regard, her Honour found that at about 4.00 pm on Friday, 8 October 2021, the victim was at a hotel in Exmouth where he had planned to meet a friend. While at the hotel the victim was introduced to the appellant. The three of them then drank together at the hotel before going back to the appellant's home to continue drinking. It is unclear how much alcohol either the appellant or the victim had consumed over the course of the day.
As the victim and his friend went to leave the appellant's house, the appellant said that he wanted to show them his 'new toys'. The appellant then went to his car, where he retrieved some collectible knives that he kept under the driver's seat. The appellant then approached the victim while he was holding one of the knives and took hold of the victim's right hand before motioning as if to cut him. The victim pulled his hand away, but the appellant again took hold of the victim's hand and struck down with the knife, cutting off the top part of the victim's right thumb.
The victim was taken to hospital in Exmouth before he was then flown to Perth for surgery. Fortunately, doctors were able to re‑attach the severed portion of his right thumb. The appellant sent a text message to his friend on Saturday, 9 October 2021, asking how the victim was. On the following day, the victim reported the incident to police and, on 12 October 2021, the appellant was arrested.
During the execution of a search warrant at his home, the appellant made several admissions to police, including admitting that he owned the knife that cut the victim's thumb, which he said he kept in his car for fishing. Later, when he was interviewed at the Exmouth Police Station, the appellant said that he could not remember what he was doing on the night of the incident as he had been taking Valium, which affected his memory. When the police put to him the allegation that he had cut the victim's thumb the appellant denied that he was responsible, claiming that he did not know anything about it.
Appellant's personal circumstances
The appellant was 61 years of age at the time of the offence, and 62 years of age when he was sentenced. He was born in Victoria but came to live Western Australia with his family in 1976. The appellant left school in year 11 and joined the army in 1978. After he finished military service in 1986, the appellant then worked with motorcycles for three years.
In 1994, the appellant was working with the Busselton Shire when he had a workplace accident which required several surgeries. The appellant had been in receipt of a disability pension since the accident. The sentencing judge accepted that the appellant took medication for his chronic back pain. She also found that he suffered from depression, which was being medicated.
The appellant has a criminal history. Most of the appellant's convictions are for relatively minor drug‑related offences. However, the appellant has also been convicted of two offences of common assault, although they were committed in 2006 and he was fined a total of $1,000. There is one other conviction of relevance, namely a conviction for an offence of possessing a controlled weapon, committed in 2019. This was also a minor offence. As was explained during the sentencing proceedings before her Honour, that offence related to the appellant's possession of a 'gel blaster', which defence counsel explained was similar to a paintball gun. Before committing the offence the subject of this appeal, the appellant had not spent any time in prison.
The appellant relied on three character references at his sentencing. One of those references was written by one of the appellant's brothers. The other references were provided by two of the appellant's friends. The appellant also wrote what was described as a letter of apology, which was read aloud by the appellant's counsel during the sentencing proceedings.
Sentencing remarks
The sentencing judge found that the offence committed by the appellant was serious. In that regard she found that the 'offending involved the use of a weapon, a knife, [which the appellant was] not using … for any legitimate purpose'.[1] She also found that it was serious because the appellant held the victim's hand by the wrist before swinging the knife down and cutting off the tip of his thumb.
[1] ts 43.
Her Honour referred to Trompler v The State of Western Australia,[2] in which Wheeler JA said that there are three matters which are generally of significance in assessing the criminality involved in an offence of doing grievous bodily harm. Those factors are the nature of the harm that results from the act constituting the offence, the nature of the act that causes the grievous bodily harm, and the background and circumstances of the offending.[3]
[2] Trompler v The State of Western Australia [2008] WASCA 265.
[3] Trompler [9] - [11]. Buss JA (as his Honour then was) agreed with Wheeler JA [39].
In relation to the nature of the act that caused the injury to the victim's thumb, the sentencing hearing was conducted on the basis that the appellant had been criminally negligent in his handling of the knife.[4] That this was the basis on which sentencing took place emerges from the sentencing submissions made by both counsel and the references in those submissions to s 266 of the Code. It can also be seen in the following extract taken from her Honour's sentencing remarks:
in this case, the potential for harm was obvious. You were in possession of a knife. You had a duty to take reasonable care.[5]
[4] For the purposes of s 266 of the Code.
[5] ts 47.
Although we will return to this issue later in these reasons, we note that in his written submissions counsel for the appellant maintained on appeal that the appellant's 'criminality was enlivened by negligence as opposed to a willed act, encapsulated by s 266 of the Code pertaining to a dangerous thing, namely a fishing knife'.[6]
[6] Appellant's submissions [10]. See also [13] and [23].
In relation to mitigating factors, her Honour accepted that there should be a discount on the head sentence that would otherwise have been imposed had the appellant proceeded to trial, and in the absence of any other mitigating factor, on account of his plea of guilty. It was accepted that the appellant had not pleaded guilty at the first reasonable opportunity, the plea having been entered only 17 days before the appellant's trial was listed to commence. On that basis, the sentencing judge allowed a discount of 12% on account of the plea of guilty, in accordance with s 9AA of the Sentencing Act 1995 (WA).
Her Honour also found that the appellant had cooperated with police, to the extent that he participated in an electronic record of interview with police, and that the appellant was remorseful. However, because the appellant had a criminal record, the sentencing judge was not prepared to find that he was a person who was otherwise of good character.
In relation to the appellant's health the sentencing judge accepted that prison was likely to be more difficult for him because he suffered from chronic back pain and, on that basis, was prepared to accept that his health was a mitigating factor. Her Honour did note, however, that the Department of Corrective Services was required to provide adequate care to the appellant while he was in prison.
Her Honour said that there were several factors that were relevant to her determination of the appropriate sentence to be imposed. One of those factors included general deterrence, which she said was 'an important sentencing consideration'.[7] She also referred to the need to protect the public from this type of offending, the need to punish the appellant, and the need to deter him from engaging in similar conduct in the future.[8]
[7] ts 47.
[8] ts 47.
The sentencing judge also had regard to a victim impact statement, in which the victim wrote about ongoing financial, psychological, and physical issues due to the appellant's criminal behaviour. In his victim impact statement, the victim said that he now has permanent pins and needles in his thumb, and that he continues to experience pain in his hand. He also said that his thumb appears to be deformed, which causes him embarrassment. The injury to his thumb has brought new and difficult challenges in the context of the victim's employment in landscaping, and he has been forced to stop playing badminton and tennis.
In relation to the issue about whether it was appropriate to make an order that the sentence of imprisonment be suspended, the sentencing judge said the following:
I am not to impose a sentence of imprisonment unless I am satisfied that the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it.
In imposing such a sentence, I must consider not only your personal circumstances but also the need to punish you by punishment which is just in all the circumstances, the need to protect the community, the need for some public denunciation of your offending, the need to generally deter others who might be like-minded against committing similar serious crimes, the need to specifically deter you from committing this kind of offence in the future, and I'm also to consider your rehabilitation.
I have considered, as I must, all the sentencing options. I have considered the submissions by both your counsel and the State and all of the materials which have been provided to me. The State submits that immediate imprisonment is the only appropriate disposition. Your counsel submits that due to the unusual circumstances of the offence and your antecedents - that it would be appropriate for the court to suspend any term of imprisonment imposed.
…
Now, I accept that you had no intention to harm the victim, Mr Smith; however, I'm of the view that your offending is so serious, involving as it did the use of the knife and resulting in grievous bodily harm being caused to Mr Smith, that it is not appropriate to suspend the term of imprisonment.
In my view, the appropriate sentence of imprisonment for the offence for which you have been convicted, taking into account all the factors that I have mentioned and pursuant to section 9AA of the Sentencing Act, allowing a reduction of 12 per cent from the sentence I would otherwise impose, had you been found guilty of the offence after trial and there were no mitigating circumstances, the term of imprisonment will be two years imprisonment.
Again, I must consider whether the sentence imposed should be suspended. This requires that I consider anew all the relevant circumstances and thus to adopt a two-step approach. As I have already said, Mr Sheffield, in all the circumstances, after having taken this two‑step approach to revisit all relevant circumstances, I'm not persuaded that suspension is warranted. The offence is too serious to warrant suspension. I must impose an immediate term of imprisonment.
So I formally sentence you to two years imprisonment. I make an order for eligibility for parole.[9]
[9] ts 47 - 48.
Grounds 1 and 2
As both ground 1 and ground 2 assert that error should be inferred from the sentence that was imposed by her Honour on the basis that the sentence of 2 years' immediate imprisonment was manifestly excessive, it is convenient to deal with those grounds at the same time.
Grounds 1 and 2: relevant principles
The principles that are to be applied in the context of an appeal against sentence in which it is argued that a sentence is manifestly excessive are well established and have been referred to by this court on many occasions. The principles that are relevant to the determination of this appeal are:
1.Sentencing is a discretionary exercise. Where it is alleged on appeal that error in the exercise of that discretion should be implied from the resultant sentence, an appellant must satisfy the appellate court that the sentence is so unreasonable or unjust that it should be concluded that a substantial wrong must have occurred. It follows from this that an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.
2.To determine whether a sentence for an individual sentence is manifestly excessive the offence should be viewed in the light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed for that crime, the place that the criminality occupies on a scale of seriousness of crimes of that type, and the offender's personal circumstances.
3.The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion in any particular case. Sentences imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors. What is important is the unifying principles that sentences imposed in comparable cases reveal and reflect. When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.[10]
4.In the context of a ground of appeal that asserts that a term of imprisonment is manifestly excessive because the sentence was required to be served immediately, the question for this court is whether it was reasonably open to the sentencing judge, upon the application of the relevant sentencing principles and in all of the circumstances, to have been positively satisfied that it was not appropriate to make an order that the term of imprisonment be conditionally suspended or that it be otherwise suspended without conditions. A sentence of immediate imprisonment is the final sentencing option that is available and cannot be imposed unless the court is satisfied that it is not appropriate to impose any other sentence.[11]
Grounds 1 and 2: the parties' submissions
[10] Kabambi v The State of Western Australia [2019] WASCA 44 [21]; Childs v The State of Western Australia [2023] WASCA 145 [72].
[11] Miorada v The State of Western Australia [2022] WASCA 143 [31] - [32].
The appellant submitted that the sentence of 2 years' immediate imprisonment was unreasonable or plainly unjust having regard to both the length of that sentence and to the fact that it was ordered to be served immediately. In support of that submission the appellant pointed to what his counsel suggested were the 'unusual circumstances' in which the offence was committed. In that regard, it was submitted that the offending was an act of 'skylarking', in which the appellant foolishly pretended to cut the victim with a knife, but without any intention to do him any harm. While it was accepted that the victim suffered from ongoing issues with his thumb, it was submitted the injury fell at the less serious end of the range of injuries that would satisfy the definition of 'grievous bodily harm' in s 1 of the Code.
The appellant submitted that given the circumstances of the offending, and when account is taken of the mitigating factors, the length of the sentence of 2 years' imprisonment, and the determination that it was not appropriate to order that it be suspended, was unreasonable or plainly unjust.
On behalf of the respondent, it was submitted that although it may be accepted that the appellant was not motivated by malice or animosity, and that he did not intend to harm the victim in any way, the appellant's conduct was extremely reckless. It was also emphasised that while the offence was committed over a very short period, the appellant demonstrated 'a reckless disregard to the rights and safety of the victim', bearing in mind that the appellant grabbed the victim's hand after it had been pulled away in response to his first motioning with the knife, and that he then cut off the tip of the victim's thumb while still holding the victim's hand.
It was also submitted on behalf of the respondent that notwithstanding the mitigating factors that were found by the sentencing judge, it was open to her Honour to be satisfied that it was not appropriate to make an order that the term of imprisonment be suspended, conditionally or otherwise. In that regard, it was submitted, in effect, that as a matter of fact it was rare for an appeal to be allowed against a sentence of immediate imprisonment imposed for an offence contrary to s 297(1) of the Code on the basis that it was not reasonably open for a sentencing judge to have concluded that it was not appropriate to order that any such term of imprisonment be suspended. Further, it was submitted that the appellant had not demonstrated that a sentence of 2 years' immediate imprisonment was manifestly excessive. It was said that a sentence of 2 years' immediate imprisonment appropriately reflected the seriousness of the offence, the need for general and personal deterrence, and the appellant's personal circumstances.
The respondent's written submissions referred to several previous cases in which this court has considered appeals against sentences imposed for offences of unlawfully doing grievous bodily harm, contrary to s 297(1) of the Code, namely, Boyle v The State of Western Australia;[12] Djiagween v The State of Western Australia;[13] Etrelezis v The Queen;[14] Field v The State of Western Australia;[15] JBD v The State of Western Australia;[16] Littlely v The State of Western Australia;[17] Merlo v The State of Western Australia;[18] The State of Western Australia v Ellement;[19] The State of Western Australia v Taylor;[20] Ugle v The State of Western Australia;[21] and Yaqubi v The State of Western Australia.[22]
Grounds 1 and 2: merits of the grounds
[12] Boyle v The State of Western Australia [2010] WASCA 97.
[13] Djiagween v The State of Western Australia [2012] WASCA 141.
[14] Etrelezis v The Queen [2001] WASCA 327.
[15] Field v The State of Western Australia [2013] WASCA 209.
[16] JBD v The State of Western Australia [2013] WASCA 180.
[17] Littlely v The State of Western Australia [2022] WASCA 102.
[18] Merlo v The State of Western Australia [2018] WASCA 71.
[19] The State of Western Australia v Ellement [2016] WASCA 1.
[20] The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308.
[21] Ugle v The State of Western Australia [2018] WASCA 221.
[22] Yaqubi v The State of Western Australia [2016] WASCA 187.
The critical questions that arise for consideration in the context of grounds 1 and 2 are whether the length of the sentence of 2 years' imprisonment was unreasonable or plainly unjust, and whether the sentencing judge was entitled to be positively satisfied that it was not appropriate to suspend or conditionally suspend, wholly or partly, that term of imprisonment. To answer those questions, it is necessary to consider the maximum statutory penalty, the standards of sentences imposed for this type of offence, the seriousness of the offence and the appellant's personal circumstances.
The maximum penalty for an offence of unlawfully doing grievous bodily harm, contrary to s 297(1) of the Code, is 10 years' imprisonment.
Recently, in O'Dea v The State of Western Australia,[23] this court said that:
[t]here is no tariff for the crime of unlawfully doing grievous bodily harm, though as a matter of fact the ordinary disposition for such an offence is a sentence of immediate imprisonment. It is an offence that can be committed in a wide variety of circumstances by offenders whose personal circumstances can also vary greatly. The dominant sentencing considerations for grievous bodily harm offences are personal and general deterrence. (footnotes omitted)
[23] O'Dea v The State of Western Australia [2023] WASCA 70 [70].
Various 'ranges' of sentences for the offence of unlawfully doing grievous bodily harm have been identified in cases previously decided by this court. As was observed in O'Dea:[24]
In Trompler, Wheeler JA (with whom Buss JA agreed) concluded that the post‑transitional range for offences which were towards the upper end of the range of seriousness, but not of the most serious kind, was between 3 and 5 years' imprisonment. McLure JA identified the post‑transitional range for offences of this type as being between 8 months and 5 years 4 months' imprisonment. The sentence of 8 months at the lower end of that range was noted by her Honour as being 'undoubtedly merciful'.
The ranges identified in Trompler have been referred to with approval in subsequent cases. Nonetheless, it should be noted that Trompler was a decision from 15 years ago and represented sentencing patterns as at that time, and earlier. In Bowe v The State of Western Australia [[2017] WASCA 166], it was noted that sentences for cases falling within the most serious category of offending would fall outside the 3 ‑ 5‑year range and would come closer to, if not equal to, the maximum penalty of 10 years' imprisonment. (some footnotes omitted)
[24] O'Dea [71] - [72].
In Ellement, Mazza JA (with whom McLure P & Buss JA agreed) said that the general range of sentences for offences contrary to s 297(1) of the Code is between 8 months to 5 years and 4 months' immediate imprisonment, with cases falling to the upper end of the range attracting sentences in the order of 3 ‑ 5 years' imprisonment.[25]
[25] Ellement [40].
It is well-established that any guidance afforded by sentences imposed in other cases is limited. Given the circumstances in which the appellant committed this offence, none of the cases that were referred to by the parties offer any real guidance. All those cases can be readily distinguished on their facts. What is most significant in that regard is that in all those cases the offenders used violence with an intention to do at least some harm to their victims. Even in cases such as Etrelezis and Boyle, in which sentences of immediate imprisonment were set aside on appeal and substituted with suspended imprisonment orders, the offender used actual violence, albeit in circumstances in which they had, to some extent, been provoked by the behaviour of the victim.
The respondent referred to the cases of Littlely, Ugle, Yaqubi and JBD, in which appeals against the imposition of immediate terms of imprisonment were unsuccessful. It was submitted that each of these cases, in which the relevant victim's jaw was broken, involved the infliction of a 'less serious injury than that inflicted by the appellant'. However, it is difficult to accept that the injury sustained by the victim in this case, while serious, was more serious than a broken jaw. Further, putting to one side the case of JBD, which concerned a juvenile offender, all of those cases involved the deliberate use of violence, in the form of a punch or punches, that was intended to cause at least some harm. In Littlelyand Ugle, both offenders were sentenced to 18 months' immediate imprisonment after trial. In Yaqubi the 18‑year‑old offender was sentenced to 16 months' immediate imprisonment after he entered a plea of guilty.
As noted above, the fact that the sentence imposed on the appellant falls within the range of sentences commonly imposed for offences against s 297(1) of the Code does not preclude the conclusion that the sentence imposed in this particular case is manifestly excessive. Even though a term of immediate imprisonment is generally, as a matter of fact, the appropriate penalty for a kind of offence, a sentencing judge is required to consider whether, in all the circumstances of the particular case and having regard to all relevant sentencing factors, the generally appropriate type of sentence is required.[26] The unusual features of the present case, including the absence of any intended violence directed towards the victim, distinguish the present case from those considered above where sentences of immediate imprisonment were imposed.
[26] HNA v The State of Western Australia [2016] WASCA 165 [44].
These distinguishing features limit the utility of the previous decisions to which the parties referred. If anything, these cases tend to suggest that the sentence was unreasonable or plainly unjust both as to the length and type of the sentence.
As the sentencing judge appreciated, three factors are ordinarily taken into account in assessing the criminality of an offence of unlawfully doing grievous bodily harm, contrary to s 297(1) of the Code. These factors, taken from what was said by Wheeler JA (with whom Buss JA agreed) in Trompler, are:[27]
1.the nature of the harm that results;
2.the nature of the act which causes the injury; and
3.the background to, and circumstances of, the offence.
[27] Trompler [9] - [11].
In this case the top of the victim's right thumb was severed. The victim was fortunate that it was able to be surgically reattached. The victim impact statement makes it clear that the injury continues to have negative effects on the victim's life, causing him pain, discomfort, and embarrassment. It has also brought new and difficult challenges in the victim's work and has stopped him playing some sports. However, although it was not made clear in the facts relied on by the prosecution at sentencing, the only basis on which medical evidence on the prosecution brief indicated that the victim suffered grievous bodily harm was that, without medical intervention, the injury to the thumb was likely to lead to infection or disfigurement of the thumb.[28] There was no suggestion that the injury in any way endangered the victim's life.
[28] See the report of Dr Jackson Moody dated 12 April 2022 at prosecution brief page 21. The prosecutor incorporated the papers comprising the prosecution brief into his statement of facts at ts 19. It is unnecessary in this appeal to consider the extent to which disfigurement of the thumb would constitute a 'permanent injury to health' within the meaning of the definition of 'grievous bodily harm' in s 1 of the Code.
As we have already observed, the appellant, who was probably affected to some degree by alcohol, and possibly also by the effects of Valium, initially took hold of the victim's right hand and, having said that he wanted to show the victim his knife, motioned as if he was going cut him. When the victim understandably pulled his hand away, the appellant again grabbed hold of the victim's right hand and struck down with the knife, this time cutting off the top of the victim's right thumb. However, all of this occurred very quickly and without any animosity on the part of the appellant. Also, as the sentencing judge found, it occurred in circumstances in which the appellant had no intention to harm the victim.[29]
[29] ts 48.
At sentencing, both parties took the view that the appellant was criminally responsible for the act that caused the relevant injury because he had been criminally negligent in his handling of the knife. It appears the parties believed that the circumstances in which the appellant came to cut the victim's thumb attracted the operation of s 23A of the Code, such that the appellant was not criminally responsible because the act of striking down with the knife was an act that occurred independently of his will, or that s 23B of the Code operated on the basis that he was not criminally responsible because the event constituted by the injury to the victim's thumb occurred by accident. The parties then approached sentencing on the basis that the appellant unlawfully did grievous bodily harm to the victim because he was criminally negligent in his handling of the knife.
In their sentencing submissions both counsel referred her Honour to s 266 of the Code, a provision that imposes a duty on a person who has in their charge or under their control any dangerous thing, to use reasonable care and take reasonable precautions to avoid danger to the life, safety or health of any person, and deems that person to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty. As was explained in Macaree v The State of Western Australia,[30] where the prosecution alleges manslaughter (and, by analogy, an offence of unlawfully doing grievous bodily harm) by criminal negligence, a breach of the duty imposed by s 266 becomes an element of the offence. Her Honour did not expressly refer to s 266 of the Code in her sentencing remarks. However, when she sentenced the appellant, she made express reference to the fact that the appellant had a 'duty to take reasonable care'[31] while he was in possession of the knife.
[30] Macaree v The State of Western Australia [2011] WASCA 207 [26].
[31] ts 47.
Although the outcome of this appeal does not turn on the precise legal basis on which the appellant was sentenced, criminal negligence and s 266 of the Code were not the only basis on which the appellant was criminally responsible for his act of striking down with the knife and cutting off the top of the victim's thumb. In our view, in the present case it was unnecessary to resort to s 266 of the Code to establish the appellant's criminal responsibility for the offence. In what very clearly was a willed act, for the purposes of s 23A of the Code, the appellant struck down with his knife towards the victim's hand. Further, in those circumstances it was plainly foreseeable that he might cut and seriously injure the victim's hand. Accordingly, the injury to the victim's thumb was not an event that occurred by accident for the purposes of s 23B of the Code.[32]
[32] See, generally, the discussion about the interaction of s 23 (now s 23A and s 23B) and s 266 of the Code in Agnew v The Queen [2003] WASCA 188 and in Macaree.
While we agree generally with counsel for the appellant's characterisation of the appellant's conduct as 'skylarking', and we note that the sentencing judge found that the appellant did not intend to harm the victim and made no findings that the appellant deliberately risked harming the victim, the appellant's act was extremely negligent. Further, although we are not prepared to conclude that serious injury was inevitable, as was submitted by the respondent, it is obvious that there was a very high probability that an injury of that nature would be inflicted.
We have already referred to the appellant's personal circumstances in some detail. In summary, the appellant was a 61‑year‑old disability pensioner when he committed the offence and was 62 years of age when he was sentenced. Although it could not be said that the appellant had led a blameless life, he had never been to prison before and there was nothing to suggest that he was at risk of behaving in this way again in the future.
The appellant did not submit that the sentencing judge's decision to impose a sentence of imprisonment was erroneous. In any event we are of the view that it was reasonably open to her Honour to reach a conclusion that the seriousness of the offence was such that only a sentence of imprisonment can be justified, particularly as the dominant sentencing considerations were general and specific deterrence. However, having regard to all the relevant sentencing factors, in particular the very unusual circumstances in which the offence was committed, including the fact that the appellant was not motivated by any animosity towards the victim and did not intend to cause him any harm, we were persuaded that it was unreasonable or plainly unjust to sentence the appellant to imprisonment for a period of 2 years. We also concluded that it was not reasonably open to conclude that it was inappropriate to make an order that the term of imprisonment be suspended, whether conditionally or otherwise. A sentence of 2 years' immediate imprisonment was manifestly excessive.
For these reasons grounds 1 and 2 are established.
Ground 3
Given what we have said in relation to grounds 1 and 2, our consideration of, and conclusions in relation to, ground 3 can be stated briefly.
At the hearing of the appeal,[33] counsel for the appellant informed the court that ground 3 was limited to a contention that the sentencing judge did not revisit and have regard to the same considerations that were relevant to her decision to impose a term of imprisonment, in determining whether it was not appropriate to conditionally suspend, or to suspend, the term of imprisonment that was imposed, as she was required to do in accordance with what was said by a majority in the High Court in Dinsdale v The Queen.[34]
[33] Appeal ts 22 - 23.
[34] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [84] (Kirby J), [26] (Gaudron & Gummow JJ agreeing).
At the hearing of the appeal, we concluded that ground 3 does not have a reasonable prospect of succeeding. Contrary to the appellant's contentions, her Honour's sentencing remarks, the relevant portion of which we have set out earlier in these reasons, make it very clear that she did revisit the same considerations to which she had already had regard in deciding to impose a sentence of 2 years' imprisonment. In that regard, in the second-last paragraph of the portion of her Honour's sentencing remarks she expressly referred to the need to 'consider anew all of the relevant circumstances' and to take a 'two-step approach'.[35]
[35] ts 48.
It was not incumbent on the sentencing judge to slavishly repeat all the 'relevant circumstances' to which she had already referred, and which she had already taken into account in determining whether the seriousness of the offence was such that only imprisonment could be justified. The appellant has not demonstrated that her Honour failed to do what she expressly said she had done.
There are no reasonable prospects of ground 3 succeeding. Accordingly, at the hearing of the appeal we refused leave to appeal on that ground.
Resentencing
At the hearing of the appeal, counsel for the appellant indicated that he did not wish to rely on any matter relevant to sentencing that occurred between when sentence was imposed in the District Court and when the appeal was heard.[36] Accordingly, the court had all the material necessary to resentence the appellant.
[36] Appeal ts 23.
Counsel for the appellant accepted that it was open to this court to resentence the appellant on the basis that the grievous bodily harm was the foreseeable consequence of the appellant's voluntary act of bringing down his hand holding the knife, but that he did not intend to connect with the victim's hand or intend or subjectively foresee any harm to the victim.[37] We proceeded on that basis.
[37] Appeal ts 23 - 24.
After taking into account:
1.the maximum penalty for the offence;
2.the sentencing judge's unchallenged findings about the circumstances of the commission of the offence, as well as the various aggravating and mitigating factors;
3.the appellant's plea of guilty;
4.the appellant's personal circumstances; and
5.the fact that the appellant had by the time of the hearing of his appeal served 100 days in custody,
we were satisfied that the seriousness of the offence committed by the appellant was such that only imprisonment was justified. In our view, a sentence of 9 months' imprisonment was commensurate with the seriousness of the offence. In reaching that conclusion, we applied the same 12% discount that the sentencing judge allowed under s 9AA of the Sentencing Act, which appeared appropriate to us in all the circumstances. We took account of the period of just over three months which the appellant had spent in custody by correspondingly reducing the length of the sentence which we would otherwise have imposed to 9 months' imprisonment.
After again taking into account all relevant sentencing factors, as required by Dinsdale, we were not satisfied that a sentence of suspended imprisonment was an inappropriate sentencing option. On the contrary, we were positively satisfied that it was appropriate that an order be made that the 9-month term of imprisonment be suspended for a period of 12 months. There was nothing in the materials before us that suggests that there was a need to impose a conditional suspended imprisonment order. Although it seems clear that the offence was committed when the appellant was, to some extent, under the influence of alcohol and possibly Valium, there is no evidence to suggest there is any need to supervise or control the appellant while he is subject to a suspended term of imprisonment, or that he needs any programmatic intervention. For these reasons we were not satisfied that it was inappropriate to make an order that the term of imprisonment be suspended without conditions.
Conclusion and orders
For the above reasons, at the conclusion of the hearing of the appeal we were satisfied that grounds 1 and 2 were established and that a different sentence should have been imposed.[38] We therefore made the orders referred to at [2] above, which had the effect of substituting a new sentence of 9 months' imprisonment suspended for 12 months.
[38] Criminal Appeals Act 2004 (WA), s 31(4)(a).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Research Associate to the Hon Justice Vandongen
2 NOVEMBER 2023
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