The State of Western Australia v Babakarkhil
[2022] WASCA 59
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BABAKARKHIL [2022] WASCA 59
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 9 FEBRUARY 2022
DELIVERED : 18 FEBRUARY 2022
PUBLISHED : 3 JUNE 2022
FILE NO/S: CACR 186 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
MAYWAND BABAKARKHIL
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: FLYNN DCJ
File Number : IND 241 of 2019
Catchwords:
Criminal law - Sentencing - Unlawfully doing grievous bodily harm - Whether sentencing judge erred in factual findings as to the circumstances of the offence - Whether sentence of 12 months' imprisonment, conditionally suspended for 12 months, is manifestly inadequate as to type and length of sentence
Legislation:
Criminal Code (WA), s 297(1)
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Result:
Appeal allowed
Respondent resentenced
Category: B
Representation:
Counsel:
| Appellant | : | A L Forrester SC and T B L Scutt |
| Respondent | : | P D Yovich SC |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Jeremy Noble Barrister & Solicitor |
Case(s) referred to in decision(s):
CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Marchesano v The State of Western Australia [2017] WASCA 177; (2017) 52 WAR 176
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Morgan v The State of Western Australia [2011] WASCA 185
R v Da Costa [2005] QCA 385
R v Licciardello [2017] QCA 286; [2018] 3 Qd R 206
The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1
The State of Western Australia v Saleh [2020] WASCA 205
Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365
Wellstead v The State of Western Australia [2019] WASCA 130
BUSS P & MITCHELL JA:
On 18 February 2022, the court, by majority, made the following orders in this appeal:
1.Appeal allowed.
2.The sentence imposed on the respondent in respect of count 1 on District Court indictment IND 241 of 2019 is set aside and a sentence of 21 months' immediate imprisonment is substituted.
3.The respondent is eligible for parole.
We said that we would publish our reasons for making these orders later. These are our reasons for making those orders.
Summary
The respondent and his co-accused were jointly charged with two offences allegedly committed outside the Galaxy Lounge, a karaoke bar in Northbridge, at about 2.45 am on Sunday, 9 July 2017.
Count 1 alleged that the accused unlawfully did grievous bodily harm to Blake Slatter, contrary to s 297(1) of the Criminal Code (WA) (Code). The maximum penalty for that offence is 10 years' imprisonment.
Count 2 alleged that the accused unlawfully assaulted Joshua Pointing and thereby did him bodily harm, contrary to s 317(1) of the Code.
On 25 August 2021, after trial by jury, the respondent was convicted of count 1 and acquitted of count 2. On 26 November 2021, the respondent was sentenced to 12 months' imprisonment, conditionally suspended for 12 months. The trial judge sentenced the respondent on the basis that he was criminally responsible for aiding his co-accused to commit the offence of unlawfully doing grievous bodily harm charged in count 1.
The respondent's co-accused were Abaseen Kakar, Ibraheem Saleh, Ebraheem Assaad and Imran Assaad.
Ebraheem Assaad and Mr Saleh pleaded guilty to both counts, and received discounts of 10% and 12% respectively, under s 9AA of the Sentencing Act 1995 (WA). Ebraheem Assaad, after having spent 9 months in custody, initially received a sentence of 15 months' imprisonment on count 1, and 9 months' imprisonment on count 2. Both sentences were to be served concurrently and conditionally suspended for 18 months. Mr Saleh initially received a sentence of 19 months' imprisonment on count 1, and 6 months' imprisonment on count 2. Both sentences were to be served concurrently and conditionally suspended for 18 months.
A State appeal against the sentences initially imposed on Mr Saleh and Ebraheem Assaad was allowed by this court, on the ground that the sentences imposed on count 1 were manifestly inadequate. On 25 November 2020, this court resentenced those co-offenders as follows:
Mr Saleh: A sentence of 2 years 5 months' immediate imprisonment on count 1 and a concurrent sentence of 8 months' immediate imprisonment on count 2.
Ebraheem Assaad: A sentence of 2 years 9 months' immediate imprisonment on count 1 and a cumulative sentence of 3 months' immediate imprisonment on count 2.
This court published reasons for its decision on 7 December 2020: The State of Western Australia v Saleh.[1]
[1] The State of Western Australia v Saleh [2020] WASCA 205.
Imran Assaad pleaded guilty to count 2. He was tried with the respondent and acquitted of count 1. He was sentenced at the same time as the respondent, and received a sentence of 8 months' immediate imprisonment in respect of count 2.
Mr Kakar also pleaded guilty to count 2. He was tried with the respondent and convicted of count 1. On 6 December 2021, Mr Kakar was sentenced to 12 months' imprisonment on count 1 and 8 months' imprisonment on count 2. Both sentences were to be served concurrently and suspended for 12 months.
The State now appeals against the sentence imposed on the respondent on two grounds. Ground 1 contends that the trial judge erred in finding that the aid provided by the respondent did not include certain conduct. Ground 2 contends that the sentence imposed on the respondent was manifestly inadequate as to type and length. Leave to appeal has been granted on both grounds.
For the following reasons, in our view both grounds of appeal are established. The appeal should be allowed and the respondent resentenced to 21 months' immediate imprisonment.
CCTV footage
The offending was depicted in CCTV footage from a carpark area into which the altercation flowed. The trial judge found this to be the only reliable evidence of the circumstances of the offending.[2]
[2] Trial ts 840.
The CCTV footage of a carpark area played at normal speed was exhibit 3 at trial. Exhibit 71 was five versions of that CCTV footage slowed down to one quarter speed. Version 1 shows Mr Kakar with a red circle drawn around him. Version 2 shows Mr Saleh with a yellow circle drawn around him. Version 3 shows the respondent with a green circle drawn around him. Version 4 shows Imran Assaad with a blue circle drawn around him. Version 5 shows Ebraheem Assaad with a violet circle drawn around him.[3]
[3] See trial ts 526 - 527.
The times noted in the parentheses in the balance of these reasons are taken from the CCTV footage, which we have viewed (both parties having indicated in written submissions that it was appropriate for this court to do so). We shall refer to certain acts of the respondent, by reference to the subparagraphs of ground 1, as Act A - Act E.
Circumstances of offending
The trial judge made the following findings as to the circumstances of the respondent's offending.
In the early hours of 9 July 2017, Blake Slatter, his brother Rhys Slatter and some friends were on the footpath outside a nightclub where they had been celebrating Blake Slatter's birthday. They were intoxicated. Another group of men, including Mr Kakar, Mr Saleh, Ebraheem Assaad, Imran Assaad and the respondent, were also on the footpath with others who had been in the nightclub.[4]
[4] Trial ts 841.
There was some antagonism between those two groups. The trial judge was unable to make findings as to the basis for the antagonism. What was apparent from the CCTV footage was that Blake Slatter and Rhys Slatter were stepping backwards on the footpath as a group approached them (2:44:08). Mr Kakar was at the front of the group, Ebraheem Assaad was adjacent to him and the respondent was close by. Mr Kakar was 'shaping up', with his hands in a fighting stance directed to Blake Slatter and Rhys Slatter (2:44:11). Imran Assaad was in the group and was attempting to prevent his brother, Ebraheem Assaad, from getting closer to the conflict (2:44:14). The respondent was attempting to prevent the situation escalating (2:44:17).[5]
[5] Trial ts 841.
Rhys Slatter and Blake Slatter stopped retreating, and stood next to each other. Rhys Slatter made a sudden, but not particularly threatening, small move with his left arm in the direction of Mr Kakar (2:44:18). Mr Kakar responded by kicking at Rhys Slatter (2:44:19). It was not a particularly vicious kick. In response, Blake Slatter launched his body with a round‑arm punch in the direction of Mr Kakar (2:44:20).[6]
[6] Trial ts 841.
The respondent immediately intervened and threw one punch towards the upper part of Blake Slatter's body (2:44:23) (Act A). It is not clear whether or not this punch connected.[7]
[7] Trial ts 841 - 842.
Within moments, Blake Slatter and Rhys Slatter had their backs to the railing on one side of the carpark. They were facing Mr Kakar and the respondent, both of whom were 'shaping up' to Blake Slatter and Rhys Slatter (Act B). The respondent and Mr Kakar were joined by Ebraheem Assaad, who moved to a position alongside Mr Kakar and, with exaggerated gestures, appeared to be inviting Blake Slatter and Rhys Slatter to engage in a fight (2:44:24 - 2:44:27).[8]
[8] Trial ts 842.
At that point, Mr Saleh ran at speed into the carpark from outside, weaving his way between Mr Kakar and the respondent. Mr Saleh ran at Blake Slatter and, using his right arm, delivered a blow with force to Blake Slatter's head (2:44:27 - 2:44:28). When Mr Saleh delivered that blow, Blake Slatter was facing away from Mr Saleh and towards Ebraheem Assaad. Blake Slatter was not expecting that forceful blow.[9]
[9] Trial ts 842.
Ebraheem Assaad quickly followed Mr Saleh's blow with 2 ‑ 3 blows to the upper part of Blake Slatter's body. Mr Kakar grappled with Blake Slatter and threw air punches at him as Blake Slatter grappled with Ebraheem Assaad and retreated towards the corner of the carpark where there was a vehicle. Mr Kakar used his right arm to deliver a blow to the right side of the upper body of the retreating Blake Slatter (2:44:28 ‑ 2:44:34).[10]
[10] Trial ts 842.
At virtually the same time as Mr Saleh delivered the forceful blow to Blake Slatter's head referred to at [23] above, the respondent threw a punch towards Rhys Slatter (2:44:28) (Act C). Rhys Slatter turned away, using his arm to fend off the respondent. If there was any contact, it did not have any impact on Rhys Slatter. The respondent lost his footing and fell to the ground. He retrieved his footing and retreated to the edge of the carpark (2:44:29 - 2:44:32).[11]
[11] Trial ts 842 - 843.
The respondent then returned to the carpark and delivered a punch to the front of Blake Slatter (2:44:36) (Act D). The trial judge was not satisfied that this blow was to Blake Slatter's head.[12]
[12] Trial ts 843.
Ebraheem Assaad then delivered a series of blows to the upper body of Blake Slatter, who was against a parked car. As this was happening, Rhys Slatter re-entered the carpark and moved quickly in the direction of Blake Slatter. Mr Kakar intercepted Rhys Slatter and delivered a blow towards Rhys Slatter with his left arm. Imran Assaad moved alongside Mr Kakar and involved himself for the first time by throwing a blow, which Rhys Slatter ducked. After Rhys Slatter ducked, a friend of the Slatter brothers, Joshua Pointing, entered the carpark and interacted with Imran Assaad, pushing at him (2:44:38 ‑ 2:44:43).[13]
[13] Trial ts 843 ‑ 844.
Ebraheem Assaad then turned his attention away from Blake Slatter and moved to join Imran Assaad and Mr Kakar who were engaging with Mr Pointing. As Ebraheem Assaad left Blake Slatter, the respondent delivered one blow with force to Blake Slatter's upper body (2:44:45) (Act E). This blow was delivered at a time when Blake Slatter was not offering a threat to anybody. The trial judge was not satisfied that this blow made contact with Blake Slatter's head.[14]
[14] Trial ts 844.
As a result of the assault, Blake Slatter suffered fractures to his face which required surgery and which were likely to have caused permanent injury to his health without treatment. He had difficulty breathing and had numbness to his teeth at the time of, and shortly after, the incident. When giving evidence at trial, over four years after the offence, Blake Slatter continued to suffer numbness to his right cheek. However, the non-physical injuries had a far more profound effect on his life. He was unable to work for a year and received significant treatment for mental health issues. The offending had a damaging effect on his physical, mental and financial wellbeing.[15]
[15] Trial ts 845.
Respondent's personal circumstances
The respondent was 25 years old at the time of the offending, and 29 years old at the time of sentencing. Part of the delay in his trial arose due to the impacts of COVID-19.
The respondent was born in Perth. He is one of eight children born to his parents, who are refugees from Afghanistan. The respondent struggled at school and had 'mixed involvement' in employment up to the time of the offending. At the time of the offending, the respondent was indulging in binge drinking alcohol and consuming drugs. This was, in part, an attempt to self-medicate the effects of his experience as a witness to the murder of a person not known to him, and the killing of a close friend. He was also associating with 'adverse peers'. The respondent had a criminal record, but had only one conviction for a violent offence (a common assault in 2010 for which he received a fine).[16]
[16] Trial ts 847 - 848.
The trial judge was satisfied that the respondent's life had changed since the offending. There were no convictions or allegations of offending since that time. He had ceased to consume alcohol and drugs and had engaged in counselling. Having regard to the psychologist's report, the judge noted a probable diagnosis of ADHD, but was not satisfied that there was a causal connection between that condition and the respondent's offending. His Honour considered there to be a low risk of the respondent reoffending.[17]
[17] Trial ts 848 - 849.
Trial judge's approach
The trial judge noted that the State brought the charges against the respondent on three bases:[18]
1.The respondent delivered a blow to the head of Blake Slatter along with others and, along with those others, caused grievous bodily harm to Blake Slatter.
2.There was a common intention amongst the group including the respondent to prosecute an unlawful purpose.
3. The respondent aided others who themselves caused grievous bodily harm to Blake Slatter.
[18] Trial ts 846.
The trial judge rejected the first basis of criminal responsibility as he was not satisfied that the respondent caused, by himself delivering a blow, grievous bodily harm. The judge rejected the second basis of criminal responsibility as there was no evidential foundation of any common purpose between the respondent and anyone else.[19]
[19] Trial ts 846.
The trial judge said:[20]
The basis for your criminal responsibility is that you aided others who themselves caused grievous bodily harm. You did that with the intention of assisting them. I draw that inference of your intention from what you did, the blows that you delivered, the two that I've described, [Acts D and E] to Mr Blake Slatter.
[20] Trial ts 846.
In finding that the respondent did Act A, the trial judge had previously observed:[21]
I mention this conduct of Mr Babakarkhil not because it's relevant to any of the elements of the offence of grievous bodily harm for which he's being sentenced, but to identify Mr Babakarkhil's first point of involvement in the interaction between the two groups of men.
[21] Trial ts 842.
In finding that the respondent did Act B, the trial judge said (immediately after his Honour's observations in relation to Act A):[22]
Within moments on one side of a car park with their backs to a railing is Blake Slatter and Rhys Slatter. They're facing Mr Kakar, who's shaping‑up, and Mr Babakarkhil, who's also shaping-up at them.
Those two are joined by Ebraheem [Assaad] who moves to a position alongside Mr Kakar and, in an exaggerated - with exaggerated gestures towards Mr Blake Slatter and Rhys Slatter, appears to be inviting those two to engage in a fight. It's three on two.
On the one hand, Mr Kakar, Mr Babakarkhil and Ebraheem [Assaad], and on the other Mr Blake Slatter and Mr Rhys Slatter. Mr [Imran] Assaad is in the car park, but he's a distance behind the others and he's observing.
[22] Trial ts 842.
In finding that the respondent did Act C, the trial judge had observed:[23]
Again what I've just described as conduct by Mr Babakarkhil is not relevant to any of the elements of the offence of grievous bodily harm. Mr Babakarkhil's involvement in that offence as a party had not yet commenced, but again it's by way of background to what Mr Babakarkhil was doing with his party at this time.
[23] Trial ts 843.
In finding that the respondent did Act D, the trial judge said:[24]
Mr Babakarkhil is assisting. He's assisting Ebraheem [Assaad]. He's assisting Mr Saleh in their conduct in delivering blows to the head of Mr Blake Slatter. I'm not satisfied that that blow by Mr Babakarkhil was itself to the head of Mr Blake Slatter. He's assisting by being in a group that's a show of force and by delivering a blow to the body.
[24] Trial ts 843.
In finding that the respondent did Act E, the trial judge observed:[25]
This is another instance of Mr Babakarkhil offering aid - offering assistance to co-offenders - principal co-offenders who caused grievous bodily harm to Mr Blake Slatter.
[25] Trial ts 844.
Having explained the basis of the respondent's criminal responsibility for the offence, the trial judge said:[26]
It's necessary to say something about your involvement in that offending compared to Ebraheem [Assaad] and Mr Saleh. Your involvement can be distinguished insofar as you did not deliver a blow of the force that Mr Saleh used. You did not deliver repeated blows of the nature of Ebraheem [Assaad].
It must be said though that at the time you delivered the blows I've described, Mr Blake Slatter was vulnerable. You delivered blows at a point where it was simply unnecessary to do so. They were cowardly blows.
It must also be said that your role in aiding or assisting others to commit this offence largely comes in the form that you knew you were amongst a group that outnumbered the others in the other group.
[26] Trial ts 846.
The trial judge found that the seriousness of the respondent's offending was primarily the harm that was done to Blake Slatter and that the offending occurred in a public street where young people, including the Slatter brothers celebrating a birthday party, might be expected to gather before going home.[27]
[27] Trial ts 847.
After referring to the respondent's personal circumstances (noted at [30] ‑ [32] above), the trial judge said that the seriousness of the offending was such that imprisonment was the only appropriate sentence. In dealing with the issue of suspension, the trial judge observed:[28]
I have reached the view that it is appropriate to suspend that term of imprisonment.
I consider that your role as I have described as aiding others; the time that's elapsed since this offence and the evidence of changes in your life since this offence, primarily the absence of any allegation of offending favours a disposition that places emphasis upon supporting you to continue with your efforts to abstain from alcohol and drugs.
I consider that that can be achieved by what's called a conditional suspended imprisonment order.
[28] Trial ts 850.
The trial judge then sentenced the respondent to 12 months' imprisonment, conditionally suspended for 12 months with a supervision and programme requirement.
Ground 1: extent of the aiding
By ground 1, the State contends that the trial judge erred in finding that the aid provided by the respondent to others in committing the grievous bodily harm offence did not include Acts A, B and C, and was limited to Acts D and E, in circumstances where his Honour ought to have found that all of the above actions constituted aiding.
State's submissions
The State does not challenge the trial judge's finding that the respondent was criminally responsible as an aider under s 7(c) of the Code, rather than on the other bases advanced by the State at trial.[29] The State also does not challenge any of the trial judge's findings as to what the respondent did. Rather, what is challenged is the conclusion as to whether Acts A, B and C constituted aiding the commission of the grievous bodily harm offence for the purposes of s 7(c) of the Code.
[29] Appellant's submissions, par 20 - 21.
The State submits that each of Acts A, B and C 'self‑evidently constituted aid to the principal offenders and were intended to do so'. The State described how each of the acts would have provided assistance to the principal offenders in causing the grievous bodily harm suffered by Blake Slatter.[30] It contends that it is unclear why the trial judge did not regard these acts as aiding.[31]
[30] Appellant's submissions, par 23.
[31] Appellant's submissions, par 24.
In oral submissions the State conceded that Act E could not have constituted aid for the purposes of s 7(c) of the Code because Act E was committed, on the trial judge's finding, after the acts causing the grievous bodily harm had already been done.[32]
Respondent's submissions
[32] Appeal ts 5, 11, 15.
The respondent accepts that the impugned findings did not rest on any credibility assessment, and that this court is in as good a position as the trial judge to draw inferences from the CCTV footage. However, the respondent submits that this court ought not interfere with the trial judge's findings merely because his Honour made a choice between competing inferences, each open on the evidence, which this court would not have made itself.[33] Error in the drawing of the inference must be demonstrated.[34]
[33] Respondent's submissions, par 20, citing Morgan v The State of Western Australia [2011] WASCA 185 [91] - [97] and referring to The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1 [398] - [426].
[34] Respondent's submissions, par 18 - 20.
The respondent submits that, for an act to constitute aiding the offence of unlawfully doing grievous bodily harm, the judge had to find that the act actually aided the joint attack on Blake Slatter during which he suffered grievous bodily harm, and that the respondent intended to provide such aid. Counsel submits that it was open to the trial judge to have a reasonable doubt about whether, when he did Acts A, B and C, the respondent intended to aid others in assaulting persons with whom he was not himself engaged.[35]
[35] Respondent's submissions, par 21 - 23.
The respondent contends that the trial judge could properly regard the assault which caused grievous bodily harm to Blake Slatter as beginning when Mr Saleh ran into the carpark and delivered a forceful blow to Blake Slatter's head (see [23] above). The respondent submits that this view was consistent with the way the prosecutor closed on the issue of common intention to assault.[36] The trial judge found that Blake Slatter was not expecting that forceful blow. It was open to infer that neither was the respondent. Act A, which occurred before Mr Saleh's blow, could be viewed as a precursor to, rather than as part of, the attack which caused grievous bodily harm to Blake Slatter.[37]
[36] Trial ts 640.
[37] Respondent's submissions, par 25 - 29.
Counsel also contends that the respondent's attention was focussed on Rhys Slatter when Acts B and C occurred. It was therefore open not to conclude that those acts were done with the intention of aiding the assault which caused grievous bodily harm to Blake Slatter.[38]
[38] Respondent's submissions, par 30 - 31.
The respondent also submits that the trial judge erred in the State's favour in concluding that Act E aided the commission of the grievous bodily harm offence. Act E was the respondent delivering the last blow that any of the offenders delivered to Blake Slatter. As the respondent did not, on the trial judge's findings, cause the grievous bodily harm, the offence against s 297(1) of the Code must have been completed by that time. As Act E was done after the offence was completed, it could not have aided its commission. The respondent submits that, if this court comes to resentence the respondent, it should be on the basis that Act D was the only act of aiding the grievous bodily harm offence.[39]
Disposition
[39] Respondent's submissions, par 33 - 36.
There is room for debate as to whether the trial judge was correct to determine that the respondent was criminally responsible only on the basis that he was an aider for the purposes of s 7(c) of the Code. However, given that neither party seeks to challenge that conclusion, this court should proceed on that basis.
Section 7(c) of the Code provides:
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say —
…
(c)Every person who aids another person in committing the offence[.]
The mental element involved in the concept of 'aiding' was discussed by Buss P (Mazza and Mitchell JJA agreeing) in Marchesano v The State of Western Australia.[40] As was noted in that case, a person will not be liable under s 7(c) unless the State proves beyond reasonable doubt that:[41]
(a)a person or persons (the principal) has or have committed the offence;
(b)the person alleged to be the aider had actual knowledge of the facts amounting to the offence committed by the principal (that is, actual knowledge of the essential facts constituting the offence that was being or about to be committed or might be committed by the principal);
(c)the aider did or omitted to do something with the intention of aiding or assisting in the doing of the acts which constitute the offence; and
(d)what the aider did or omitted to do actually aided or assisted the principal to commit or in committing the offence.
[40] Marchesano v The State of Western Australia [2017] WASCA 177; (2017) 52 WAR 176 [167] - [172].
[41] Marchesano [171].
Further, as Buss P also noted:[42]
A person will do or omit to do something, with the intention of aiding or assisting in the doing of the acts which constitute the offence, if the person's acts or omissions were willed and the person's purpose in doing the act or making the omission was to aid or assist in the doing of the acts which constitute the offence.
[42] Marchesano [172].
These principles were applied to an offence of causing grievous bodily harm by the Queensland Court of Appeal in R v Licciardello.[43] In that case, complaint was made of a direction as to what the prosecution had to prove to render the accused liable under s 7(1)(c) of the Queensland Criminal Code (which is in the same terms as s 7(c) of the Code). The complaint was that the direction in that case left it open to the jury to convict if satisfied the appellant in that case knew, or expected, that merely an assault upon the complainant would be committed, regardless of what he knew or expected about the seriousness of that assault or its consequences. In rejecting that submission, McMurdo JA (Sofronoff P and Douglas J agreeing) said:[44]
To be criminally responsible under s 7(1)(b) or s 7(1)(c), a person must know of the offence which is being, or which is about to be, committed by the person he is aiding or intending to aid. That offence is constituted by the conduct (an act or omission) of the other person which attracts criminal liability. If the principal offender's crime requires a specific intent, then s 7(1)(b) or s 7(1)(c) requires the aider to know that he is aiding the other to act (or omit to act) with that intent. But if 'the offence' has no ingredient of an intent (or other state of mind) on the part of the person who does the act or makes the omission, all that the aider need know is that the conduct constituting the offence is occurring or will occur. Of course, what was not foreseen or foreseeable as a consequence might be relevant, in a certain case, for the purposes of s 23 of the Code. But s 23 was not said to be relevant here.
In the present case, all that the appellant had to know was that the complainant was being or was about to be assaulted. It was unnecessary for the prosecution to prove that the appellant believed or expected that the assault would be of a certain severity or that it would have any particular result.
As is submitted for the appellant, the directions which were given left it open to the jury to convict upon satisfaction that the appellant knew or expected merely an assault upon the complainant. But if the jury reasoned in that way, there was no error. The only criticism which might be made of the direction is that the jury may have thought that it was necessary that the appellant knew or expected more than merely an assault. If so, the suggested incompleteness of the direction would have been to the potential advantage of the appellant.
[43] R v Licciardello [2017] QCA 286; [2018] 3 Qd R 206.
[44] Licciardello [30] - [32].
So, in the present case, to establish the respondent's liability under s 7(c) of the Code, it would be necessary for the State to prove, among other things, that:
(a)one or more of the other members of the respondent's group caused grievous bodily harm to Blake Slatter by assaulting him;
(b)at the time an act said to constitute aiding occurred, the respondent knew that other members of his group were assaulting, would assault or might assault Blake Slatter;
(c)the respondent did the act said to constitute aiding with the intention of aiding or assisting other members of his group to assault Blake Slatter; and
(d)the respondent's act said to constitute aiding actually aided or assisted the other members of his group to commit the assault which caused grievous bodily harm to Blake Slatter.
At the hearing of the appeal counsel for both parties accepted this formulation.[45]
[45] Appeal ts 11 ‑ 12, 23 ‑ 24.
The first forceful blow which was struck to Blake Slatter's head was by Mr Saleh at about 2:44:27 - 2:44:28. That blow was unexpected on the trial judge's unchallenged findings. The respondent committed Act A four or five seconds earlier and that act could be seen to be a response to Blake Slatter launching himself at Mr Kakar. Act B occurred at 2:44:24 ‑ 2:44:27, also before the blow to Mr Slatter's head at 2:44:27 - 2:44:28, and at this time it appears from the video that the respondent's attention was focussed on Rhys Slatter. Act C, which was the blow directed by the respondent at Rhys Slatter at 2:44:28, occurred at virtually the same time as Mr Saleh's forceful blow to Blake Slatter's head at 2:44:27 ‑ 2:44:28.
However, as was emphasised in Licciardello, it was unnecessary for the prosecution to prove that the respondent believed or expected that the assault would be of a certain severity or that it would have any particular result. The State only had to prove, relevantly, that the respondent knew that Blake Slatter was being, was about to be, or might be assaulted by one or more members of the respondent's group, and that the respondent intended his act to aid that assault. If that was proven then the respondent was criminally responsible under s 7(c) of the Code for unlawful grievous bodily harm caused by an assault that was actually aided by the respondent's act. It was not necessary for the State to prove that the respondent knew that Blake Slatter would be assaulted in the particular manner in which Mr Saleh struck him, or that the assault would be of a certain severity.
In our view, the only proper inference to be drawn from the CCTV footage was that the respondent knew that Blake Slatter was about to be assaulted or might be assaulted from the point Blake and Rhys Slatter were backed into the carpark and Mr Kakar was 'shaping up' (2:44:11). The respondent's presence, and his joining in the assault of the Slatter brothers, must have been intended to assist his co-accused in an assault. That is, the proper inference to be drawn from the CCTV footage is that the respondent must have intended all his acts from the point when he first threw a punch at Blake Slatter (Act A) until and including the last blow he delivered to Blake Slatter (Act E) to assist his co-offenders in their assault of Blake Slatter.
Further, in our view, all of Acts A - D actually had the effect of assisting the respondent's co-offenders in assaulting Blake Slatter. The respondent's presence helped ensure that Blake and Rhys Slatter were outnumbered by their assailants, and so were at a disadvantage in their attempts to defend themselves. His interaction with Rhys Slatter prevented Rhys Slatter from offering assistance to Blake Slatter. His interaction with, including his actual and attempted assaults on, Blake Slatter reduced Blake Slatter's capacity to defend himself from assaults committed by others in the group.
However, as the respondent submitted, and as the State accepted in oral submissions,[46] Act E could not have actually assisted or aided in the commission of the grievous bodily harm offence. Act E was the last blow struck to Blake Slatter. The trial judge found that this blow did not cause the grievous bodily harm suffered by Blake Slatter. That blow could not have aided the offence of unlawfully doing grievous bodily harm if the offence had already been completed prior to the blow being struck. This error, which is against the interests of the respondent, would not itself justify allowing the State's appeal. However, if material error is otherwise established, and this court comes to resentence the respondent, it will be necessary to take this matter into account in determining whether a different sentence should have been imposed.
[46] Respondent's submissions, par 33 ‑ 34; appeal ts 11 ‑ 12.
In our view, two errors were involved in the trial judge's approach.
First, the trial judge has not proceeded by merely asking whether the State has proven that the respondent knew that Blake Slatter was being, was about to be, or might be assaulted, and whether the respondent intended his acts to aid or assist an assault of Blake Slatter. Rather, it appears that the trial judge has focussed on the respondent's knowledge of, and intention to assist, the particular assaults which caused the grievous bodily harm.
Secondly, the trial judge has artificially divided what was a short, free flowing and continuous altercation into different segments. The physical assaults inflicted upon Blake Slatter lasted less than 30 seconds, from the first punch thrown by the respondent at 2:44:23 (Act A) to the last punch thrown by the respondent at 2:44:45 (Act E). It was possible to divide the events in this segmented fashion only by a repeated careful viewing of the quarter speed copy of the CCTV footage. But that is an unrealistic way of analysing the altercation from the protagonists' perspective.
For example, the respondent's counsel refers to the respondent walking away after falling over,[47] and contends that he was only 'intermittently involved' in the events after being involved in 'an unrelated scuffle'.[48] However, the period between the respondent falling and walking back into the CCTV frame is only about four seconds. The events cannot be fairly described as unrelated, and if anything it is the respondent's disengagement from the fracas which is properly described as 'intermittent'.
[47] Appeal ts 30.
[48] Appeal ts 35.
The respondent relies on the observation of McPherson JA in R v Da Costa,[49] quoted with approval in Licciardello,[50] that:
There may be circumstances in which the primary actor or person committing the offence goes well beyond anything that the assistant is aiding him in doing. In that event, s 7(1)(c) would cease to apply because the assistant would no longer be assisting the primary actor in the offence committed.
[49] R v Da Costa [2005] QCA 385 [4].
[50] Licciardello [26].
The present case is not of that kind. The respondent plainly contemplated that Blake Slatter would be stuck with blows from his assailants, and the first blow from Mr Saleh was an assault of that nature. This is not a case where there was an assault, such as one delivered by a weapon, which the respondent did not contemplate.
Nor do we accept the respondent's submission that Acts A - C stood outside the scope of the aiding alleged by the prosecution at trial. The prosecutor opened on the basis that:[51]
The State's case against Mr Babakarkhil for count 1 is he aided others to do grievous bodily harm to Blake Slatter by encouraging them with his presence, by helping to surround Blake Slatter, by punching Blake Slatter in the head or body, and by punching Rhys Slatter who could have assisted Blake Slatter.
[51] Trial ts 219.
That encompasses all of the acts relied on by the State as constituting aiding in the appeal. In the prosecutor's closing on the alternative basis of liability under s 8 of the Code, he in effect indicated that the common purpose was formed 'at the latest after Blake Slatter took a swing at Mr Kakar'.[52] That submission does not detract from the scope of the prosecution case as to aiding as it was opened to the jury.
[52] Trial ts 640.
The respondent relies on the observations of Pullin JA (Hall J agreeing) in Morgan. There his Honour held that the approach to a criminal appeal on the ground that a verdict is unreasonable or unsupported by the evidence is similar in the court's approach to resolving a civil appeal.[53] His Honour adopted the following passage from the decision of Beaumont and Lee JJ in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher:[54]
[T]he court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made.
[53] Morgan [96] - [97].
[54] Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, 369.
The court in Rayney noted the controversy as to whether this approach was appropriate in an appeal from a jury verdict on the ground that it is unreasonable or unsupported by the evidence. However, the court was prepared to act on the basis that the approach was applicable in an appeal from an acquittal in a judge alone trial, without resolving that issue.[55] In Wark v The State of Western Australia,[56] Buss P reviewed the authorities but found it unnecessary to decide whether the approach of Pullin JA (Hall J agreeing) in Morgan is consistent with High Court authority.
[55] Rayney [415] - [417].
[56] Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365 [303].
It is also unnecessary to resolve this issue in the present case. It may be accepted that error or miscarriage of justice must be established before this court has jurisdiction to resentence an offender.[57] This is not a case where the appellant has demonstrated merely that more than one choice was available as to the inferences to be drawn from the evidence, and that this court would have made a different choice than the sentencing judge. In the present case, the trial judge's approach involved an error of principle in properly applying, to the evidence in this case, the legal test for determining whether an offender is liable as an aider to an offence against s 297(1) of the Code.
[57] See Wellstead v The State of Western Australia [2019] WASCA 130 [87] - [90].
In our view, ground 1 is established.
Ground 2: manifest inadequacy
By ground 2, the State contends that the sentence of 12 months' imprisonment, conditionally suspended for 12 months, was manifestly inadequate as to type and length.
Given that express material error has been established, it is unnecessary and somewhat artificial for this court to determine whether error is to be inferred from the outcome of the trial judge's exercise of the sentencing discretion.
A discussion of the relevant sentencing principles and customary sentencing practices is contained in this court's reasons in Saleh. These include that:
1.The three factors which are of general significance when assessing an offender's level of criminality for an offence of unlawfully doing grievous bodily harm are:
(a)the nature of the harm which results;
(b)the nature of the act which caused the injury; and
(c)the background to and circumstances of the offence.[58]
2.The dominant sentencing considerations for offences where grievous bodily harm is done are personal and general deterrence. The courts must be seen to stand firmly against alcohol‑fuelled violence in public entertainment areas.[59]
3.The circumstances in which the offences of unlawfully doing grievous bodily harm and assault occasioning bodily harm can occur vary widely. Ordinarily a term of immediate imprisonment is the only appropriate penalty for an offence of unlawfully doing grievous bodily harm. It has been noted that the range for offences of unlawfully doing grievous bodily harm, which are towards the upper end of the range of seriousness but not of the most serious kind, is between 3 and 5 years' imprisonment. Whilst there have been some cases of unlawfully doing grievous bodily harm where suspended sentences have been imposed, they have almost invariably involved unusual circumstances, such as significant provocation.[60]
[58] Saleh [54].
[59] Saleh [59].
[60] Saleh [66].
In our view, the sentencing outcome in the present case cannot be reconciled with this court's decision in Saleh. The criminality involved in the respondent's offending may be regarded as less than that of Mr Saleh and Ebraheem Assaad, as the physical assaults performed by the respondent himself were less violent and less damaging than the blows struck by Mr Saleh and Ebraheem Assaad. However, the respondent threw the first and last punches that were directed by the group against Blake Slatter, and was an active participant throughout the assault.
Further, as the court noted in Saleh:[61]
The fact that these offences were committed in company was a seriously aggravating factor. The respondents were part of a larger group that acted as the aggressors in the confrontation. The victims for the most part did not fight back, rather they were backing away or trying to retreat from their attackers. At each stage of the attack there were multiple members of the respondents' group outnumbering the victims. The initial assault on the Slatter brothers was four upon two. The continuing assault on Blake Slatter as he retreated to the car was four upon one.
[61] Saleh [58].
It was the respondent's participation in the assault which helped ensure that Blake Slatter was outnumbered and facilitated the assault which caused the grievous bodily harm Blake Slatter suffered.
The respondent's mitigating circumstances are of no greater weight than those of Mr Saleh, who was younger than the respondent, had a less serious criminal record, had also made substantial progress towards rehabilitation and had pleaded guilty to the offence (albeit the plea was relatively late).
In our view, the differences in the overall criminality cannot justify the differences in the sentencing outcomes. In particular, in our view the seriousness of the offence committed by the respondent is such as to make a sentence of suspended or conditionally suspended imprisonment inappropriate. Further, in our view it was not open to the trial judge to take a contrary view. This is a case where the objective features of an offence outweigh personal considerations that favour suspension. In our view the sentence imposed on the respondent was unreasonable and plainly unjust even on the factual basis for sentencing found by the trial judge.
Residual discretion
Counsel for the respondent submits that the residual discretion under s 31(4)(a) of the Criminal Appeals Act 2004 (WA) should be exercised in the respondent's favour.[62]
[62] Appeal ts 35 ‑ 37.
The residual discretion is a discretion not to interfere with a primary judge's exercise of the sentencing discretion, in the context of a State appeal, notwithstanding that appellable error has been established. A respondent to a State appeal against sentence does not bear an onus to establish that the residual discretion should be exercised in his or her favour. Rather, it is incumbent on the State to negative any reason why the residual discretion of this court not to interfere should be exercised.[63]
[63] CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34].
In our view, intervention in the present case is necessary to maintain proper standards of sentencing. Appellable error has been clearly established, and the public interest in maintaining appropriate sentencing standards for very serious offending of the kind that occurred in the present case counts strongly against the exercise of the residual discretion in the respondent's favour. The force of this consideration against the exercise of the residual discretion is somewhat reduced by the fact that this court has already resentenced Mr Saleh and Ebraheem Assaad, but it remains an important factor.
The respondent also points to the fact that it has now been more than 4.5 years since the commission of the offence and the adverse impact a sentence of immediate imprisonment would have on his rehabilitation. Although more time has passed since the time of the offending, the respondent's position is not materially better than that of Mr Saleh at the time when he was resentenced by this court. Further, there is a public interest in the court adopting a consistent approach to respondents to State appeals which come before it. To take a different approach in the present case would leave Mr Saleh and Ebraheem Assaad with a justifiable sense of grievance as to the different treatment received by their co-offender on the basis that their pleas of guilty resulted in them being resentenced at an earlier time. The steps which the respondent has taken towards his rehabilitation are appropriately taken into account as a significant mitigating factor in resentencing. However, in our view they do not, in all the circumstances of this case, justify dismissing the appeal in the exercise of this court's residual discretion.
Resentencing
It is therefore necessary for this court, which has the necessary materials, to exercise the sentencing discretion for the grievous bodily harm offence afresh and for itself.
We note that this court has received a report from a Community Corrections Officer which indicates that, as at the hearing of the appeal, the respondent had complied with the conditions of his suspended imprisonment.
We are satisfied that a different sentence should have been imposed and will impose a sentence of 21 months' immediate imprisonment on resentencing. The respondent should be eligible for parole. As the respondent has not spent any time in custody in relation to the offence,[64] it is unnecessary to backdate the sentence.
[64] Trial ts 829.
That sentence may be seen as commensurate with the seriousness of the respondent's offence, having regard to the circumstances of the offending, the respondent's personal circumstances and all aggravating and mitigating factors, as well as all relevant sentencing principles. While lower than the sentences imposed on Mr Saleh and Ebraheem Assaad, who entered late pleas of guilty, the respondent may be seen to have played a significantly lesser role in causing Blake Slatter's injuries. Different considerations applicable to the sentencing of Mr Imran Assaad (who was convicted of a different offence) and Mr Kakar mean that the parity principle does not require that a lesser sentence be imposed on the respondent.
Orders
For the above reasons, on 18 February 2022, we made the orders referred to at [1] above.
MAZZA JA:
I would dismiss the State's appeal against sentence. My reasons for doing so are as follows.
All of the necessary background is set out in the joint reasons of Buss P and Mitchell JA, between [3] and [44]. I respectfully agree with their Honours' statement of the legal principles applicable to s 7(c) of the Criminal Code (WA) (Code), set out between [55] and [59] of their reasons. I will only refer to these factual and legal matters to the extent necessary to explain my reasons.
I will deal first with ground 1.
Ground 1
Based on his viewing of the CCTV footage, his Honour found that the respondent did five acts in the course of committing count 1. These acts were identified in this court as Acts A ‑ E. They are described in the reasons of the majority at [21] ‑ [28] above.
In effect, his Honour found that none of Acts A ‑ C gave rise to criminal responsibility on the respondent's part, under s 7(c) of the Code.[65] His Honour found that Acts D and E only gave rise to criminal responsibility under s 7(c) of the Code.
[65] ts 842 - 844.
By ground 1, the appellant contended that his Honour erred by finding that Acts A ‑ C did not, in addition to Acts D and E, give rise to criminal responsibility under s 7(c) of the Code. It was submitted by the appellant that as a consequence, his Honour did not have regard to Acts A ‑ C in assessing the respondent's criminality on count 1.
In oral submissions, the appellant conceded (correctly, in my opinion) that, contrary to his Honour's findings and the appellant's written submissions, Act E did not give rise to criminal responsibility on the part of the respondent because this act occurred after Mr Blake Slatter had suffered grievous bodily harm. As a result of this concession, the effect of the appellant's submissions was that
his Honour should have found, but did not find, that Acts A ‑ D gave rise to the respondent's criminal responsibility under s 7(c) of the Code.
The respondent submitted that it was open to his Honour to find that the assault which caused the grievous bodily harm only began when Mr Saleh ran into the carpark from the street and delivered the forceful blow to Blake Slatter's head. Counsel for the respondent submitted that Act A was not part of the assault which caused the grievous bodily harm and that Acts B and C were not done with the intention of aiding, nor did they actually aid, the assault that resulted in Blake Slatter's suffering grievous bodily harm. Accordingly, the respondent submitted that none of Acts A ‑ C gave rise to criminal responsibility pursuant to s 7(c) of the Code and that his Honour did not make the error alleged in ground 1.
Ground 1 - disposition
I do not accept the respondent's submission that it was open for his Honour to find that the assault which caused the grievous bodily harm began only when Mr Saleh ran into the carpark and delivered the forceful blow to Blake Slatter's head.
The events this case is concerned with occurred over a very short period of time (less than a minute) and involved a continuous and progressive confrontation between two groups of young men, which started on the footpath outside the Galaxy nightclub and ended in the adjacent carpark area. The respondent and the rest of his group remained in proximity to each other, to lend support to one another, including, if thought to be necessary, by some physical intervention.
In the present case, as often happens in these situations, the level of physical confrontation very swiftly escalated to the point where punches were thrown. By the time Blake Slatter and his brother, Rhys Slatter, were against the railing in the carpark, it was highly likely that one of the members of the respondent's group would assault them. In this context, to analyse what occurred in a manner which segmented the incident into before and after Mr Saleh's initial forceful blow to Blake Slatter's head, even though it occurred suddenly, is, in my view, artificial. Acts A ‑ C should properly be considered as part of the incident which led to the commission of count 1.
However, it is important to keep in mind that the respondent was not the principal offender in relation to count 1. His criminal responsibility derives from being an aider under s 7(c) of the Code. There is no issue in this appeal that the respondent is guilty of count 1 as an aider, at least by reason of Act D. Whether he was also criminally responsible as an aider for Acts A ‑ C requires consideration of whether each of these acts satisfies the criterion referred to by the majority at [59] above. I will consider each of these acts separately.
Act A is the punch thrown by the respondent to Blake Slatter's upper body at 2:44:23 of the CCTV footage. The respondent threw this punch before Mr Saleh embarked upon his attack on Blake Slatter. There is no finding that the punch connected with Blake Slatter. On my viewing of the CCTV footage, it is impossible to say that it did. I am unable to see how this act actually assisted the respondent's co‑offenders in the commission of count 1, which had not yet occurred.
Act B is constituted by the respondent, along with Mr Kakar, shaping up to Blake and Rhys Slatter who were, at this point, upright against the carpark railing. This act occurred just before Mr Saleh's intervention. The respondent and Mr Kakar were joined by Ebraheem Assaad, who then appeared to invite the Slatter brothers to fight. I accept that the respondent, by being part of the group that surrounded Blake Slatter and prevented him from escaping, intended to assist, and actually assisted, his co‑offenders in committing count 1.
Act C is constituted by the respondent throwing a punch, not at Blake Slatter, but at his brother, Rhys. This can be seen at 2:44:28 of the CCTV footage. The respondent threw this punch either a very short time before or as Mr Saleh suddenly assaulted Blake Slatter. The punch thrown by the respondent towards Rhys Slatter does not appear to have connected with him. If it did, the contact was inconsequential. His Honour found that, if the punch connected, it had no impact on Rhys Slatter. This is borne out by the CCTV footage which also shows that, upon throwing the punch, the respondent overbalanced and fell to the ground. He then got up and walked from the area near the railing to the edge of the carpark. Rhys Slatter remained where he was. On my assessment of the CCTV footage, the respondent's actions did not actually assist his co‑offenders in the assault on Blake Slatter. Specifically, Act C did not prevent Rhys Slatter from offering or giving assistance to Blake Slatter.
It follows from my analysis of Acts A ‑ C that only Act B gave rise to criminal responsibility on the respondent's part, pursuant to s 7(c) of the Code. His Honour erred in not so finding. To this limited extent only, ground 1 has been made out.
Ground 2 - manifest inadequacy
As a material error has been demonstrated, it is unnecessary to deal with ground 2. However, had it been necessary to do so, as will become apparent from my resentencing of the respondent, I would have dismissed the ground.
Resentencing
As this court noted in The State of Western Australia v Saleh,[66] the offending was seriously aggravated by the fact that it was committed in company. The respondent was part of the group which acted as the aggressors and outnumbered Blake Slatter and his brother.
[66] The State of Western Australia v Saleh [2020] WASCA 205 [58].
While the respondent's criminal responsibility derives from Acts B and D, it is relevant to the resentencing of the respondent to consider his overall conduct. In addition to the matters referred to in the previous paragraph, the respondent assaulted Blake Slatter twice (Acts D and E). Both acts were committed at a time when Blake Slatter was in retreat. Each of these assaults was a single punch. Act D was to the front of Blake Slatter's body and Act E was described as a forceful punch to Blake Slatter's upper body. Neither blow was to Blake Slatter's head and they did not cause him to suffer grievous bodily harm.
The respondent's culpability for his overall behaviour is significant, but it is, in my opinion, considerably less than that of Mr Saleh and Mr Ebraheem Assaad, who both actually inflicted the serious injuries suffered by Blake Slatter which constituted grievous bodily harm. While the respondent aided his co‑offenders in the assault on Blake Slatter, there is nothing to indicate that he believed or expected that the assault would cause an injury of the severity Blake Slatter sustained. It is relevant that the respondent committed one offence, unlike Mr Saleh and Mr Ebraheem Assaad, who committed two offences against two victims.
At the time of the offence, the respondent was 25 years of age. By the time he was sentenced he was 29. His Honour gave him, generously, some credit for his age, but he did not have the mitigation of a plea of guilty. He has a criminal record, but the only offence involving violence was a common assault for which he was convicted in 2010 and fined. The respondent had not previously been imprisoned.
The respondent's personal circumstances have been described in the reasons of the majority. Prior to the commission of the present offence, in 2016 the respondent witnessed two violent deaths, one of which involved the killing of a close friend. At the time of the commission of count 1, the respondent was binge drinking and using drugs. His Honour characterised this behaviour as 'self‑medicating' as a result of the trauma he had experienced in 2016.[67] He was mixing with, as his Honour put it, 'adverse peers', who had a negative influence upon him.
[67] ts 848.
Since the commission of the offence, his Honour found, in substance, that the respondent's life had changed for the better. The respondent has ceased using alcohol and drugs, established a new relationship and re‑established a connection with his culture and religion. The respondent is engaged in counselling. His Honour concluded that the respondent poses 'a relatively low risk of involvement in anything like this' in the future. Notwithstanding the respondent's plea of not guilty, his Honour found that the respondent was remorseful for his involvement in the offence.[68]
[68] ts 849.
Any sentence to be imposed upon the respondent must have regard to the sentences imposed by this court upon Mr Saleh and Mr Ebraheem Assaad. I have had regard to the fact that each of Mr Saleh and Mr Ebraheem Assaad had the benefit of pleas of guilty, unlike the respondent. I agree with the conclusion of the majority at [84] above that the respondent's mitigating circumstances are of no greater weight than those of Mr Saleh. I have also had regard to the personal circumstances of Mr Ebraheem Assaad as described by this court in The State of Western Australia v Saleh.[69] Mr Ebraheem Assaad was 22 years old at the time of the offending and had pleaded guilty, albeit at a 'relatively late' stage. He had a criminal history. He was considered 'to present a risk of offending and of harm to the community'.[70] No such finding as to risk of offending or harm to the community was made in respect of the respondent.
[69] Saleh [31] ‑ [41].
[70] Saleh [39].
In my opinion, considerations of parity do not require the respondent to be sentenced to an immediate term of imprisonment, having regard to the following:
(a)The respondent committed one offence (count 1), while the co‑offenders committed two offences (counts 1 and 2).
(b)The respondent's role in the commission of count 1 was significantly less than that of his co‑offenders.
(c)Since the commission of the offence, the respondent had substantially rehabilitated himself. In this regard, he appears to have made greater progress than that of his co‑accused. While it must be acknowledged that his co‑accused were resentenced by this court at an earlier point in time, the fact remains that the respondent is now substantially rehabilitated.
Any offence of grievous bodily harm is serious. Ordinarily, a term of immediate imprisonment is imposed, but each case must be considered on its own facts and circumstances.
The seriousness of the respondent's offending means that a sentencing option short of imprisonment is inappropriate. Having regard to all sentencing considerations, I have come to the view that a term of imprisonment of 12 months is appropriate for count 1. I would, having reconsidered all of the relevant sentencing factors, suspend this term on conditions. I have come to this view for a combination of the following factors. As serious as the respondent's offending is, it was not so serious as to preclude the imposition of a conditionally suspended term of imprisonment. Moreover, having regard to the positive progress made by the respondent since the commission of the offence, it would be, in my opinion, unjust to interrupt the appellant's rehabilitation by now imposing an immediate term of imprisonment. The respondent should be allowed to continue his rehabilitation in the community, but subject to a suspended term of imprisonment with conditions that will further promote his rehabilitation. In my opinion, an appropriate suspension period is 12 months.
The sentence that I would have imposed is no different to the sentence imposed by his Honour at first instance. In this circumstance, notwithstanding that I have upheld ground 1 in part, the State's appeal must be dismissed.[71]
[71] Section 31(4)(a) Criminal Appeals Act 2004 (WA).
The order I would have made is:
1.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
3 JUNE 2022
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