Stark v The State of Western Australia
[2007] WASCA 44
•16 FEBRUARY 2007
STARK -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 44
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 44 | |
| THE COURT OF APPEAL (WA) | 26/02/2007 | ||
| Case No: | CACR:130/2006 | 16 FEBRUARY 2007 | |
| Coram: | WHEELER JA | 15/02/07 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BRENT CONRAD STARK THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Turns on own facts |
Legislation: | Sentencing Act 1995 (WA), s 76(2) |
Case References: | Dinsdale v The Queen (2000) 202 CLR 321 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : STARK -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 44 CORAM : WHEELER JA HEARD : 16 FEBRUARY 2007 DELIVERED : 16 FEBRUARY 2007 PUBLISHED : 27 FEBRUARY 2007 FILE NO/S : CACR 130 of 2006 BETWEEN : BRENT CONRAD STARK
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MULLER DCJ
File No : IND 167 of 2006
Catchwords:
Turns on own facts
(Page 2)
Legislation:
Sentencing Act 1995 (WA), s 76(2)
Result:
Application for leave dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr J McGrath
Respondent : No appearance
Solicitors:
Appellant : David Manera
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dinsdale v The Queen (2000) 202 CLR 321
(Page 3)
1 WHEELER JA: This is an application for leave to appeal in relation to a sentence imposed in respect of the appellant's conviction for unlawful wounding with intent to maim, disfigure, disable or do grievous bodily harm committed on 6 June 2005. The appellant was convicted after trial and the sentence which is complained of is one of 2 years' imprisonment with an order for eligibility for parole.
2 The circumstances of the offending were briefly as follows. The complainant was a stranger to the appellant and was at the same nightclub. When the complainant was preparing to leave the nightclub at about 4 am he saw the appellant, thought he looked familiar, and decided to speak to him. He asked the appellant whether the appellant was having a good time, or something to that effect. There was some brief conversation and the appellant then said that he did not know the complainant and threatened to assault him. He at that stage did assault the complainant with a bottle he was holding in his hand.
3 The witnesses described the manner of the assault. The appellant held a bottle above the level of his head, and brought it down towards the complainant's face. It smashed on impact and the complainant sustained a very severe wound to his left cheek. His Honour described the wound.
4 It was accepted by his Honour that the appellant was a person of otherwise impeccable background; that the appellant had not attempted to avoid culpability for the injury, in the sense that he had always accepted that he had committed the assault; that the assault was out of character; and that the appellant had made a useful contribution both to this community and to that in which he had previously lived, being South Africa. Nevertheless, his Honour considered it necessary to impose a term of imprisonment to be served immediately.
5 The grounds of appeal are three. The first two deal with the failure to suspend the sentence of imprisonment. Ground 1 asserts that his Honour erred by failing to properly consider the imposition of either a suspended term or conditional suspended imprisonment, and ground 2 asserts that his Honour erred by finding that the only sentence that would properly reflect the principle of general deterrence was a term of immediate imprisonment. Ground 3 asserts that there was a particular error in placing too much weight on his finding that the offence was unprovoked.
6 Ground 1 in effect, if I can describe it in a shorthand way, is an assertion of the "Dinsdale error" (Dinsdale v The Queen (2000) 202 CLR
(Page 4)
- 321). Before I look at what Dinsdale requires, it is desirable to note briefly the way in which his Honour approached the matter. He set out the circumstances of the offence. He set out the circumstances of the appellant. He made the obvious - but, unfortunately, necessary - observation that patrons in a nightclub are entitled to be protected from violence and particularly from cases of "incredibly serious violence". His Honour did not think that personal deterrence was an important factor, but did consider general deterrence to be of very great importance.
7 His Honour said:
"I say without any hesitation, having looked at the decisions of the Court of Criminal Appeal from sentences imposed in this court that a sentence of imprisonment must be imposed. That is the only sentence which will meet the severity of the crime and serve as a deterrent to others. It has been suggested by [counsel for the appellant] that I should consider suspending any term of imprisonment which I would otherwise deem to be appropriate. In considering that submission I have to look again not only at the circumstances of the offence itself and to your degree of culpability but also at your personal circumstances and the strong mitigating factors that have been advanced on your behalf, particularly my finding that this offence was entirely out of character."
8 His Honour went on to describe his decision as a "difficult balancing act". He noted that there were cases where a term had been suspended in relation to assault with a glass but only, so far as his Honour could discern, where there had been severe provocation, and he noted again that the appellant's reaction was entirely unprovoked. Having considered those matters, his Honour said that he did not believe that a suspended term of imprisonment would meet the seriousness of the offence. His Honour observed that he came to that conclusion with regret, because of the appellant's good personal circumstances. His Honour then said that, because of the strong favourable antecedents, he would reduce the starting-point of the sentence which he would otherwise have imposed quite substantially.
9 The "Dinsdale error", if I can characterise it in that way, seems to me to be that which is described at [13] of the reasons of Gleeson CJ and Hayne J in Dinsdale. Their Honours noted, that in the case before them, the Court of Criminal Appeal had considered how long a period of incarceration was warranted and had then searched for reason "in mercy"
(Page 5)
- to suspend that term. That approach encapsulated, the Court considered, two errors. One error was to fix the length of the sentence and then decide whether it should be suspended or not. The other error was to consider whether there were "merciful" reasons for suspending the term, rather than having regard again to all of the relevant factors, including all of the personal circumstances of the offender.
10 It seems to me that what his Honour did in this case involved neither of those errors. He first considered whether it would have been appropriate to imprison the appellant at all. That seems to be the approach required by s 76(2) of the Sentencing Act1995 (WA), which provides that suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would be appropriate in all the circumstances. Having considered whether imprisonment was necessary, his Honour then looked at the question of whether the term of imprisonment should be served immediately or be suspended. He looked again at all the personal circumstances in coming to a conclusion. The conclusion was that, because of the seriousness of the offence, it was not possible to impose suspended imprisonment in the particular circumstances. He then fixed the term. It seems to me that it is impossible to complain of that approach.
11 It is true that his Honour did not specifically consider the question of whether a suspended term with conditions imposed would be appropriate. However, it is not necessary for a sentencing Judge expressly to mention all of the options available to him or her, provided that it is clear that proper principles have been observed. It seems to me that his Honour's discussion of suspension was apt to encompass either suspension with, or without, conditions.
12 That, it seems to me, is sufficient to dispose of ground 1. So far as ground 2 is concerned, the appellant faces the very difficult task, where there is a discretionary judgment to be made, of demonstrating that his Honour erred in the exercise of discretion in finding that, in the circumstances of this case, the only sentence that would properly reflect the principle of general deterrence was a term of immediate imprisonment. In my view, it is beyond argument that his Honour was correct in describing the assault as a very serious one, and involving "incredibly serious" violence. It is true that there was only one act. However, it was entirely unprovoked, involved a dangerous weapon, and had very serious consequences.
(Page 6)
13 In my view, it is not possible to demonstrate either any error in principle or any error in result. I note that there are no authorities referred to in the submissions which would suggest that, as a general rule, any sentence other than immediate imprisonment would be appropriate to a case of this kind.
14 As to the third ground, it is not contended that the circumstance that the assault was unprovoked was irrelevant; merely that too much weight was given to it. It seems to me that the way in which his Honour had regard to that factor was in effect to consider as being, in the context of a "difficult balancing act", the factor which put the offence into that category of seriousness which meant that suspension was simply not open. Having regard to the circumstances of the offence and the personal circumstances of the appellant, it seems to me that no issue can be taken with affording significant weight to that factor.
15 Given that the community must be protected against random violence, it was important, therefore, to consider whether there might have been any reason which, whilst not excusing what had occurred, might have explained it. His Honour found none. That is a feature of considerable concern.
16 In those circumstances, it seems to me that none of the grounds has any reasonable prospect of success and I would refuse leave and, therefore, dismiss the appeal.
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