Steel v The State of Western Australia - [2010] WASCA 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: STEEL -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 118

CORAM: McLURE P
OWEN JA
BUSS JA

HEARD: 7 APRIL 2010

DELIVERED : 30 JUNE 2010

FILE NO/S: CACR 83 of 2009
CACR 84 of 2009

BETWEEN: DEAN STEEL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WAGER DCJ
File No  :IND 1183 of 2008

Catchwords:

Criminal law - Appeal against conviction - Unlawfully doing grievous bodily harm - Whether trial judge's summing up in relation to self-defence confused or misled the jury on the burden of proof

Criminal law - Appeal against sentence - Sentence of 2 years 4 months' immediate imprisonment for doing grievous bodily harm - Whether sentence manifestly excessive

Legislation:

Nil

Result:

Applications to extend time to appeal against conviction and sentence dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T F Percy QC & Mr A G Spashett
Respondent: Mr D Dempster

Solicitors:

Appellant: Dean R Love & Associates
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Bruno v The State of Western Australia [2005] WASCA 149
Chan v The Queen (1989) 38 A Crim R 337
Clements v The State of Western Australia [2006] WASCA 69
CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
Etrelezis v The Queen [2001] WASCA 327
Hayes v The Queen [2003] WASCA 230
Heijne v The State of Western Australia [2010] WASCA 86
Hussaini v The State of Western Australia [2009] WASCA 207
Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58
Mercanti v The State of Western Australia [2009] WASCA 109
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
R v Hodges [1999] WASCA 278
Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312
Taiapa v The Queen (2009) 240 CLR 95
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
The State of Western Australia v Camilleri [2008] WASCA 217
The State of Western Australia v Redman [2009] WASCA 1
The State of Western Australia v Strawbridge [2005] WASCA 201
Trompler v The State of Western Australia [2008] WASCA 265
Vagh v The State of Western Australia [2007] WASCA 17
Wimbridge v The State of Western Australia [2009] WASCA 196

McLURE P: I agree that the appellant's application to extend time to appeal against his conviction and sentence should be dismissed for the reasons given by Buss JA.
The trial judge should not have directed the jury that the appellant was required to lay the foundation for the justification that he was acting in self‑defence. It is the case that the appellant bore the evidential burden of adducing evidence, or pointing to prosecution evidence, capable of raising the issue of self‑defence. The sufficiency of the evidence is a question of law for the judge. In deciding whether or not the issue should be left to the jury, the trial judge must determine whether on the version of events most favourable to the accused that is suggested by the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused was not acting in self‑defence: Stingel v The Queen (1990) 171 CLR 312, 313; Taiapa v The Queen (2009) 240 CLR 95 [5].
If the trial judge determines that there is sufficient evidence to leave the issue of self‑defence to the jury, the legal burden is on the State and the only question for the jury is whether the State has proven beyond reasonable doubt that the appellant did not act in self‑defence. The jury did not have to concern itself with whether the appellant had laid the foundation for the justification that he was acting in self‑defence. As explained by Glanville Williams ('The Evidential Burden: Some Common Misapprehensions' (1977) 127 NLJ 156):
In jury trials, the rule imposing an evidential burden is applied by the judge, in deciding whether to leave the general issue (or some specific question) to the jury. The rule imposing the persuasive (legal) burden is for application by the jury. Putting this in another way, the evidential burden governs what the judge does, in leaving the question to the jury or withdrawing it from them; the persuasive (legal) burden governs what he says, in directing the jury how they are to reach their verdict.
OWEN JA: I agree with Buss JA.
BUSS JA: The appellant was convicted in the District Court after a trial before Wager DCJ and a jury on one count in an indictment which alleged that on or about 9 March 2008 at Alkimos he unlawfully did grievous bodily harm to David Warren Ritchie, contrary to s 297 of the Criminal Code (WA).
The trial judge sentenced the appellant to 2 years 4 months' immediate imprisonment. She made a parole eligibility order and back‑dated the sentence to 23 February 2009.

The appellant has applied to this court for an extension of time to appeal against his conviction and sentence. His appeal notices were filed on 11 June 2009. The last date for appealing was 15 April 2009.
On 11 November 2009, Wheeler JA ordered that the applications be referred to the hearing of the appeals. It is convenient to consider the merits of the proposed grounds of appeal against conviction and sentence before deciding whether extensions of time should be granted.
The principles governing an application for an extension of time for leave to appeal against conviction or sentence are well‑established. See Wimbridge v The State of Western Australia [2009] WASCA 196 [42] ‑ [49] (Buss JA). It is unnecessary to repeat them.

Overview of the background facts and circumstances

The alleged offending occurred on Sunday 9 March 2008 at about 2.00 am.
The appellant, his partner, his partner's brother and the brother's girlfriend were camping on the beach at Alkimos. Also camping on the beach were the complainant, his friend, a work colleague of the complainant and a friend of the work colleague.
During the evening of Saturday 8 March 2008, the appellant had contact with the complainant and his dog. At about 9.30 pm, the complainant and his friend joined the appellant and his group. Later, the complainant and his friend visited the appellant and his group while wearing 'scream' masks. There was evidence that this caused some concern to the appellant's partner.
The men in the two groups, including the appellant and the complainant, were intoxicated. The appellant had consumed about 14 stubbies of Tooheys Extra Dry, and the complainant and his friend had consumed about a block of beer, being 30 cans of Victoria Bitter.
During the evening, the appellant's partner took offence at some of the actions of the complainant and his friend. The appellant's partner was frightened by one of the complainant's dogs. The complainant made a comment to her to the effect of, 'Don't worry, he only bites blacks and Asians'. The appellant's partner is of Asian heritage and has dark skin.
Later in the evening, after the complainant and his friend had left the appellant's camp, the appellant walked towards the complainant's camp. He was carrying a Maglight torch and a spotlight torch, and was accompanied by his dog. There was evidence that a confrontation occurred between the appellant and the complainant in relation to the complainant's dogs. The appellant commenced swearing and yelling at the complainant and his friend, and struck the complainant on the head with the spotlight torch. The complainant fell to the ground, but managed to get up and obtain a .22 Hornet rifle from his vehicle. The complainant then pointed the rifle at the appellant and threatened to shoot him in the knee caps if he did not stop what he was doing. The appellant admitted in a video record of interview with the police that he jumped on the complainant, the rifle dropped to the ground, and the appellant and the complainant fell to the ground. This occurred before the appellant inflicted any further blows. The appellant then delivered at least three forceful blows to the face and head of the complainant with the Maglight torch.
After the attack, the appellant took the complainant's rifle and left the scene. The appellant departed from Alkimos and buried the rifle in the suburb of Butler before returning home. Later that morning, he retrieved the rifle and attended at the Joondalup police station with his father. He reported what had occurred and participated in the video record of interview. Later, he was charged with doing grievous bodily harm.
On 23 February 2009, the jury found the appellant guilty by a majority verdict.
The trial was fought by the appellant on the basis that at all material times he was acting in self‑defence.

Appeal against conviction: proposed ground of appeal

There is one proposed ground of appeal. It alleges that the trial judge erred in her direction to the jury that there was an onus on the appellant to lay the foundation for a defence of self‑defence. The particulars to the ground read:
(a)There was no onus on the [appellant] to prove any aspect of self‑defence;
(b)The defence of self‑defence was required to be left to the jury after it was found to have had an evidentiary basis in the facts before the jury;
(c)It was for the trial judge to determine at the conclusion of the evidence whether that defence arose or not;
(d)The learned trial judge's direction to the jury at T:364, T:366, T:367 and T:369 to the effect that all that the [appellant] 'need do is to lay the foundation for the justification that he was acting in self defence' was an error of law.

Appeal against conviction: the appellant's submissions

Counsel for the appellant complained about four passages in the trial judge's summing up to the jury.
The first passage reads:
Now, when it comes to consideration of unlawfulness here, [the appellant] does not have to prove that he was acting in self defence, so there's no burden on [the appellant] to prove he was acting in self defence and that, of course, is because there's no burden on an accused to prove anything in a criminal trial.
All that [the appellant] need do is to lay the foundation for the justification that he was acting in self defence and then the burden is on the State to prove to your satisfaction beyond reasonable doubt that [the appellant's] actions were not justified by the law concerning self defence (ts 364).
The second passage reads:
I repeat that [the appellant] doesn't have to prove he was acting in self defence. All he must do is lay the foundation for the justification that he was acting in self defence. The burden is on the State to satisfy you beyond reasonable doubt that the actions weren't justified, and that they weren't based on what he believed was necessary, and what in the circumstances, was a reasonable belief based on reasonable grounds (ts 366).
The third passage reads:
Now, once again, [the appellant] doesn't have to prove that he was acting in self defence; there is no burden on an accused person to prove something in a criminal trial. All [the appellant] needs to do is to lay the foundation for the justification that he was acting in self defence. The burden lies on the State to satisfy you beyond reasonable doubt that [the appellant's] actions were not justified by the law concerning self defence, as I've just explained it to you (ts 367).
The fourth passage reads:
So you don't have to find that the force used was in fact reasonably necessary, as long as [the appellant] believed that what he did to [the complainant] was necessary for his own survival and that belief was based on reasonable grounds and if that's the case, his actions would be lawful and I repeat that it's not for [the appellant] to prove that he was acting in self defence.
Once he's laid the foundation for the justification of his actions, the burden is on the State to satisfy you beyond reasonable doubt that his actions weren't justified by law and that he wasn't acting in self defence (ts 369).
Counsel for the appellant argued that, notwithstanding the trial judge's (correct) direction to the jury, on a number of occasions, as to their having to be satisfied that the State had negatived self‑defence beyond reasonable doubt, the passages complained of created the impression that there was an evidentiary burden on the appellant which the jury had to resolve in his favour before they could consider self‑defence.
It was submitted that the passages in question were erroneous and may have cost the appellant a reasonable chance of an acquittal.

Appeal against conviction: the merits of the proposed ground of appeal

Where there is evidence, fit for the jury's consideration, of the accused having acted in self‑defence, the burden of negativing the defence rests upon the prosecution. See CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 [8], [35] (Gleeson CJ, Gummow, Crennan & Kiefel JJ).
The accused has an evidential onus, but if that onus is satisfied then the prosecution bears the legal burden of proving beyond reasonable doubt that the accused did not act in self‑defence.
The question for the trial judge in determining whether there is evidence, fit for the jury's consideration, of the accused having acted in self‑defence is this: whether, on the version of events most favourable to the accused that is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused did not act in self‑defence. See Heijne v The State of Western Australia [2010] WASCA 86 [40] (Martin CJ, Owen & Buss JJA agreeing). See also, in the context of provocation, Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, 334 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ); Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58, 67 ‑ 68 (Brennan, Deane, Dawson & Gaudron JJ).
In the present case, the critical question raised by the proposed ground of appeal is whether, in the context of the summing up as a whole, the four passages complained of by the appellant were capable of confusing the jury on the nature and application of the burden of proof.
As Kirby J noted in Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193:
[I]t is a cardinal principle of appellate scrutiny of judicial instructions to a jury that regard must be had to:
(1)The character of the communication. It obliges a real contact by the judge with the collective mind of the jury fresh from having heard the evidence. It does not call for a convoluted legal essay whose only merit is that it might protect the judge from appellate reversal (Zoneff v The Queen (2000) 200 CLR 234 at 263 [73]); and
(2)The entirety of the communication. Particular passages in the instructions must be read and understood in the light of ‑
(a)the issues actually fought at the trial;
(b)the addresses to the jury by trial counsel that immediately preceded the judge's instructions;
(c)any consideration and discussion between the judge and counsel prior to the instructions as to their content; and
(d)the entire content of the instructions, taken as a whole. It is a basic mistake to isolate any judicial (or other) utterances and to consider them out of context (cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 ‑ 272, 291). But it is especially mistaken to take parts of a judicial communication with a jury in a criminal trial in isolation from the context (R v Kanaveilomani [1995] 2 Qd R 642 at 648, 651 ‑ 652) [72].
Consistent with Kirby J's observations, it is necessary, in the present case, to examine the four impugned passages by reference to the entirety of the trial judge's summing up.
Her Honour made extensive reference to the burden of proof and the presumption of innocence. Apart from the four passages in question, her Honour said, relevantly:
(a)Now, the fundamental principles that apply in the trial are these: that the burden of proving the charge is on the State. The standard to which the State must prove the charge is to your satisfaction beyond a reasonable doubt (ts 357).
(b)[The appellant] is presumed to be innocent of the charge against him (ts 358).
(c)[T]he burden is on the State to prove the charge. [The appellant] has a presumption of innocence. There is no burden on him to prove anything (ts 358).
(d)Now, the fact that [the appellant] chose to give evidence doesn't in any way detract from our important principles and that is that the burden is on the State to prove the charge that it presents against an accused and that an accused is presumed to be innocent until the charge against him has been proved to your satisfaction beyond reasonable doubt (ts 358).
(e)[E]ven if you were not to accept [the appellant's] evidence at all and to reject his evidence totally, it wouldn't follow automatically that you would convict him of the charge and that's because an accused doesn't have to prove anything. The law is that you only deliver a verdict of guilty if on all of the evidence the State has satisfied you beyond a reasonable doubt of the guilt of the accused (ts 359).
(f)Now, at law, an act is unlawful if it's not authorised, justified or excused by law. And in this case, the defence has raised that the State, on the defence case, can't prove beyond reasonable doubt that the act was unlawful because the defence says the act was excused by law and they say that because it's put to you that [the appellant] was acting in self defence. Or to put it appropriately, that the State cannot prove beyond reasonable doubt that [the appellant] was not acting in self defence (ts 361).
The trial judge went on, in the course of her summing up, to summarise three scenarios, based on the evidence, and to explain the manner in which (if at all) self‑defence was relevant to each scenario.
Her Honour described and dealt with the first scenario, as follows:
[T]he first scenario factually that you've been asked to find proven is the State's case. If you find that [the appellant] approached as the aggressor and that he assaulted [the complainant] by hitting him on the head so that [the complainant] then went down and that he proceeded to be the aggressor to Mr Shaw [the complainant's friend] and that [the complainant] then brought out the gun and asked him to stop what he was doing or he would shoot in the kneecaps and [the appellant] continued to be the aggressor, then there would be no evidence that you had accepted of any self defence and you probably find the charge proven (ts 409 ‑ 410).
Next, her Honour described and dealt with the second scenario:
The second scenario is this. If you find proven that [the appellant] approached and was initially the aggressor towards [the complainant] in that he hit [the complainant], but that [the complainant] then pulled the gun on [the appellant] and threatened to shoot him in the kneecaps in such a way that [the appellant] feared for his life or feared that he would suffer grievous bodily harm, you would need to consider the defence of self defence to a provoked assault.
For that scenario, these are the questions for you to consider. Did [the appellant] intend to cause death or grievous bodily harm to [the complainant] with the first blow before the gun came out, because if he did, the defence isn't open. If he did not, then the first matter for you to consider is did [the appellant] actually believe that what he did was necessary for his survival or for his avoidance of grievous bodily harm and was his belief based on reasonable grounds.
Now, bear in mind if you're considering those questions that you don't have to find that what he did was the right thing to do or in hindsight was a reasonable thing to do. The questions are these. Did [the appellant] actually believe that what he did was necessary for his survival or for the avoidance of grievous bodily harm and was his belief based on reasonable grounds and remember also that it's for the State to prove beyond reasonable doubt that [the appellant's] actions weren't justified by law. There is no burden on [the appellant] to prove anything in this trial (ts 410). (emphasis added)

Her Honour then described and dealt with the third scenario, as follows:
Now, the third factual scenario is this. If you find that [the appellant] approached just walking his dog and was not the aggressor and that [the complainant] then pulled the gun on him and threatened to shoot him in the kneecaps if he didn't drop the bar [sic] and that [the appellant] then caused grievous bodily harm to [the complainant], the issues are firstly did [the appellant] actually believe that what he did was necessary for his survival or for the avoidance of grievous bodily harm, and secondly, was his belief based on reasonable grounds.
I repeat that it's for the State to prove beyond reasonable doubt that his actions were not justified by law. There's no burden on [the appellant] to prove that he was acting in self defence (ts 410). (emphasis added)
After the jury retired to consider their verdict, the trial judge heard submissions from trial counsel in relation to her summing up. Her Honour decided to re‑direct the jury in relation to the three scenarios. The re‑direction was this:
You'll recall that I was referring to the three scenarios, so effectively the first scenario being consistent with the State's case that [the appellant] was the aggressor throughout and therefore self defence would not be open at all.
I then put to you that there was a second scenario where [the appellant] had been the aggressor at the start and there may have been some assault of [the complainant] but then once the gun was out the situation changed somewhat and that led to a possible defence of self defence.
The third scenario where [the appellant] had not been the aggressor at all and that he was acting throughout in self defence in response to the threat of the gun and the threat to be shot in the knees.
What of the situation if you can't find or if you have some reasonable doubt in relation to the factual situation of what happened before the gun was pulled? So what of the situation where you can't be satisfied that there was indeed aggression on the part of [the appellant] before the gun was there?
Well, if that's the situation, if you're not satisfied of that factual scenario, the matter would then fall into the category of the third scenario, so you'd then be considering self defence against an unprovoked assault. So the questions that I've raised for you to consider would be the ones that you would then have to consider there.
So the fact that you're not sure one way or another in relation to what may have happened with [the appellant] and [the complainant] in relation to the initial assault before the weapon is produced doesn't preclude you from considering that third scenario.
So, I'll just refer to what those questions are for that third scenario, did [the appellant] actually believe that what he did was necessary for his survival because ‑ survival or for the avoidance of grievous bodily harm, and was that belief based on reasonable grounds?
I repeat what I've said to you before, that it's for the State to prove that he was not acting in self defence in the way that I've described. There's no burden on [the appellant] to prove anything in a criminal trial. So I just wanted to clarify the position then in relation to the factual scenario there (ts 417 ‑ 418). (emphasis added)
Neither the prosecutor nor defence counsel requested any further or other directions.
The jury continued with their deliberations for about two hours. They then sent a question to the trial judge, which read:
Option, if the victim of an assault produces a weapon, gun, in self defence; (1) is it allowable legally; (2) at what point does it too become another threat, assault. In option 2, of what stage did [the appellant's] assault finish and [the complainant's] start (ts 418).
Her Honour consulted with trial counsel as to the manner in which the question should be answered. When the jury returned, her Honour responded to their question, as follows:
I've received a question from you and it starts in this way:
If the victim of an assault produces a weapon, gun, in self defence; (1) is it allowable legally?
…
When a person has unlawfully assaulted another or has provoked an assault from another, referring there to [the appellant] in respect of scenario 1 and 2 and that other assaults him, referring to the pointing of the gun and the saying of the words in relation to shooting by [the complainant], with such violence as to cause reasonable apprehension of death or grievous bodily harm and to induce him to believe on reasonable grounds that it's necessary for his preservation from death or grievous bodily harm to use force in self defence, he's not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.
So the questions then for you are these if you find that that law applies, did [the appellant] actually believe that what he did was necessary for his survival or for the avoidance of grievous bodily harm; and (2) was his belief based on reasonable grounds, and of course, it's for the State, the prosecution, to negative self defence, it's not for [the appellant]to prove anything. The second part of the question reads at number 2:
At what point does it become another threat, assault?
Well, members of the jury, that's a matter totally for you. I've just read to you the position in relation to self‑defence against provoked assault. So it would be a matter for you to determine the facts and then to determine whether the law applies to those facts. I've spoken here in the context of scenario 1 and 2, because that's the way that the question was asked. The question then goes on:
In option 2, at what stage did [the appellant's] assault finish and [the complainant's] start?
Well, once again, members of the jury, that's a matter for you. So I repeat the law as it's written:
That when a person has unlawfully assaulted another or has provoked an assault from another and that other assaults him with such violence as to cause reasonable apprehension of death or grievous bodily harm and to induce him to believe on reasonable grounds, that it's necessary for his preservation from death or grievous bodily harm to use force in self‑defence, he's not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.
So in the context of the questions that you've asked, I can't go further in relation to the facts, but the scenarios that you've referred to there, 1 and 2, require you to consider self‑defence against provoked assault as I've explained it to you and I repeat, that it's for the State to prove beyond reasonable doubt, that he was not acting in self‑defence (ts 422 ‑ 424). (emphasis added)
The appellant gave sworn evidence at the trial in his own defence.
The trial judge decided before commencing her summing up that, as a matter of law, there was evidence, fit for the jury's consideration, of the appellant having acted in self‑defence. The appellant had satisfied the evidential onus and the legal burden was on the State to prove beyond reasonable doubt that he had not acted in self‑defence.
Her Honour referred, appropriately, in her summing up to three (or, perhaps, four) scenarios arising from the evidence, and explained to the jury how (if at all) the law of self‑defence applied to each scenario.
In these circumstances, it was unnecessary and undesirable for the trial judge to mention in the four impugned passages of her summing up that, in substance, 'all the appellant must or needed to do was lay the foundation for the justification that he was acting in self‑defence'. The appellant had already satisfied the evidential onus and it was pointless and, if viewed in isolation, potentially confusing to make these statements to the jury.
It is necessary, however, to evaluate the significance of the four impugned passages in the context of her Honour's summing up as a whole, including her re‑direction and her answer to the jury's question.
In my opinion, there is no reasonable possibility that the four passages complained of:
(a)created the impression that there was an evidentiary burden on the appellant which the jury had to resolve in his favour before they could consider self‑defence; or
(b)otherwise confused or misled the jury on the burden of proof.
My reasons for this opinion are these.
First, the trial judge's statements, in substance, that 'all the appellant must or needed to do was lay the foundation for the justification that he was acting in self‑defence' would have been understood by the jury, in context, as a requirement that the appellant have given some evidence to the effect that he was acting in self‑defence when he did grievous bodily harm to the complainant. The jury would have been in no doubt that the appellant had given this evidence.
Secondly, immediately after her Honour made each of the statements, she said emphatically and in substance that the burden was on the State to prove beyond reasonable doubt that the appellant's actions were not justified by the law concerning self‑defence.
Thirdly, her Honour mentioned on numerous other occasions, clearly and unambiguously, that the burden was on the State to prove beyond reasonable doubt that the appellant was not acting in self‑defence.
Fourthly, her Honour mentioned on numerous occasions the presumption of innocence and that the appellant did not have to prove anything at the trial.
Fifthly, her Honour mentioned, more than once, the three (or, perhaps, four) scenarios arising from the evidence, and explained how (if at all) the law of self‑defence applied to each of them. Her Honour, in explaining these scenarios to the jury, said that the burden was on the State to negative self‑defence beyond reasonable doubt, and did not mention anything about the appellant having an obligation to 'lay the foundation'.
Sixthly, her Honour reiterated, in the re‑direction and in answering the jury's question, that the burden was on the State to negative self‑defence beyond reasonable doubt, and did not mention anything about the appellant having an obligation to 'lay the foundation'.
Seventhly, her Honour's reference to the appellant having an obligation to 'lay the foundation' occurred relatively early in her summing up, and well before she embarked upon discussing the three (or, perhaps, four) scenarios and, also, well before her re‑direction and answer to the jury's question.
Eighthly, the appellant's trial counsel did not seek any re‑direction in relation to her Honour's statements as to the appellant having an obligation to 'lay the foundation'.
The proposed ground of appeal is without merit.

Appeal against conviction: conclusion

It is unnecessary to give further consideration to the merits of the application for an extension of time to appeal against conviction. The proposed ground of appeal has not been made out. I would therefore refuse the application to extend time.

Appeal against sentence: proposed ground of appeal

There is one proposed ground of appeal. It alleges that the sentence of 2 years 4 months' immediate imprisonment was manifestly excessive in all of the circumstances of the case, having regard to the appellant's antecedents, the circumstances of the offence (including the existence of 'mitigatory self‑defence') and the range of sentences usually imposed for this type of offence.

Appeal against sentence: the appellant's submissions

As to the appellant's antecedents, it was submitted that:
(a)The appellant was aged 25 years at the time of the offending.
(b)He had no prior criminal record in Western Australia.
(c)Although he had a prior criminal record in the United Kingdom, the offences were committed as a child and none of them had any significance for current sentencing purposes.
(d)He has a good and stable relationship with his family. He has been in a de‑facto relationship for about four years.
(e)He is a qualified diesel mechanic with a good work history.
(f)He has never used illicit drugs, and does not have a significant history of alcohol use.
(g)Extensive character references provided to the trial judge speak very highly of him.
As to the circumstances of the offence (including the existence of 'mitigatory self‑defence'), it was submitted:
(a)The offence occurred during a very short space of time, at night, and after significant quantities of alcohol had been consumed by the appellant and the complainant.
(b)The trial judge accepted that if the complainant had not produced the rifle then events may not have escalated to the degree they did.
(c)The offence was not premeditated and involved a degree of provocation which increased throughout the night in question after several incidents between the complainant and his friend and the appellant and his group.
As to the range of sentences usually imposed for this type of offence, reference was made to Etrelezis v The Queen [2001] WASCA 327, The State of Western Australia v Strawbridge [2005] WASCA 201, Clements v The State of Western Australia [2006] WASCA 69, The State of Western Australia v Camilleri [2008] WASCA 217, Trompler v The State of Western Australia [2008] WASCA 265, The State of Western Australia v Redman [2009] WASCA 1 and Mercanti v The State of Western Australia [2009] WASCA 109.
Counsel for the appellant said, in his oral submissions, that the sentence imposed by the trial judge was '6 months too long' (ts 23). He submitted that the production of the rifle by the complainant in a country location, where there was 'every expectation' the rifle might be loaded, called for a greater amelioration of the sentence (ts 26).

Appeal against sentence: the trial judge's remarks

The trial judge made these findings:
(a)The appellant walked towards the complainant's camp and was swearing and yelling.
(b)The conduct of the complainant and his friend had been fuelled by alcohol and was socially unacceptable, and this triggered the appellant's anger.
(c)The appellant hit the complainant to the head with the spotlight torch before the complainant produced the rifle.
(d)The production of the rifle contributed to the injuries the complainant received as a result of the appellant's response to it.
(e)The appellant was acting in self‑defence to a provoked assault, but his response was excessive.
(f)The appellant panicked as a result of the ferocity of his attack and left the scene without regard to the complainant's welfare.
(g)The complainant's injuries were serious and life‑threatening.
(h)The complainant requires further treatment and has permanent impairment as a result of the injuries he sustained.
As I have mentioned, the appellant admitted in his video record of interview that the rifle fell to the ground when the appellant jumped on the complainant, and the appellant and the complainant fell to the ground before the appellant delivered at least three forceful blows to the face and head of the complainant with the Maglight torch.

Appeal against sentence: the merits of the proposed ground of appeal

It is necessary, of course, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender. See Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Vagh v The State of Western Australia [2007] WASCA 17 [47] (Roberts-Smith JA).
At the material time, the maximum penalty for the offence of doing grievous bodily harm was imprisonment for 10 years.
The trial judge held that the injuries caused by the appellant to the complainant, and the nature of the offence itself, were too serious to justify any other sentencing option than immediate imprisonment. Her Honour's decision on this issue is not challenged.
As Wheeler JA (Buss JA agreeing) noted in Trompler, there are, in general, three matters of significance in determining the criminality of an offence which involves doing grievous bodily harm. First, there is the nature of the harm which is inflicted. Although any grievous bodily harm is necessarily serious, it may range from a permanent injury with which the complainant is able to cope, to a severe and life‑threatening injury which occasions 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 a provocative act of the complainant, to random and senseless violence. See Trompler [9] ‑ [11]. See also Hussaini v The State of Western Australia [2009] WASCA 207 [23] (Wheeler JA).
In Trompler, McLure JA made these comments about the broad range of sentences (post‑transitional) for offences of this kind:
The sentences actually imposed for offences of this type have a post‑transitional range of 8 months (Camilleri) to 5 years and 4 months (Bruno v The State of Western Australia [2005] WASCA 149). I have reviewed many of the cases in between (including R v Hodges [1999] WASCA 278; Hayes v The Queen [2003] WASCA 230; Clements v The State of Western Australia [2006] WASCA 69; Etrelezis v The Queen [2001] WASCA 327) [38].
It must be noted that in each of Camilleri, Bruno v The State of Western Australia [2005] WASCA 149, R v Hodges [1999] WASCA 278, Hayes v The Queen [2003] WASCA 230 and Clements, the offender entered a plea of guilty.
In Trompler, Wheeler JA said:
I would note that in Camilleri (The State of Western Australia v Camilleri [2008] WASCA 217), I reviewed a number of cases involving offences of grievous bodily harm. They reveal that, as one would expect, serious offences of the kind inevitably attract sentences of imprisonment of some severity and that, prior to the increase in the maximum penalty from 7 years to its current maximum of 10 years, relatively serious examples of that kind of offence would result in a range of sentences (pre-transitional) of 3 to 5 years. Allowing for the effect of the transitional provisions and the effect of the increase in the maximum, one would expect a post‑transitional range of 3 to 5 years for those offences which are towards the upper end of the range, although not of the most serious kind [19].
More recently, in Mercanti, Miller JA (Wheeler & Pullin JJA agreeing) held that the general range established in cases of grievous bodily harm is between 8 months and 5 years 4 months, but more like 3 ‑ 5 years for offences towards the upper end of the range [35]. His Honour added that these ranges were 'post‑transitional' and, in view of the decision of the majority in The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129, this is the appropriate range to apply [36].
In the present case, the injuries suffered by the complainant were serious. The appellant's response to the complainant's production of the rifle was excessive, and his violence continued and escalated after any threat posed by the rifle was, on the appellant's own admission, removed. The appellant was not cornered or unable to escape or walk away. The complainant suffered serious and life‑threatening injuries and the appellant left the scene without regard to his welfare. The complainant requires further treatment and has been left with permanent impairment. The offence occurred in the early hours of the morning on a popular camping and fishing beach.
In my opinion, the sentence of 2 years 4 months' imprisonment was within the applicable range and reflected the need for appropriate punishment and general deterrence. The sentence imposed by the trial judge is not plainly unreasonable or unjust when it is examined from the perspective of the maximum available penalty, the customary standards of sentencing and the objective seriousness of the offending, and after taking into account the appellant's good personal circumstances.

The proposed ground of appeal is without merit.

Appeal against sentence: conclusion

The merits of the application for an extension of time to appeal against sentence do not require further consideration. The proposed ground of appeal has not been made out. The application to extend time should therefore be refused.

Summary

For the reasons I have given, I would dismiss the applications to extend time to appeal against conviction and sentence.