The State of Western Australia v BLM
[2009] WASCA 88
•20 MAY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BLM [2009] WASCA 88
CORAM: OWEN JA
WHEELER JA
PULLIN JA
BUSS JA
MILLER JA
HEARD: 9 MARCH 2009
DELIVERED : 20 MAY 2009
FILE NO/S: CACR 115 of 2008
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
BLM
Respondent
FILE NO/S :CACR 120 of 2008
BETWEEN :BLM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'BRIEN DCJ
File No :CAR 11 of 2006
Catchwords:
Criminal law - Sentencing - State appeal against sentence - Respondent, with an intent to harm, did an act as a result of which bodily harm was caused to the victim, contrary to s 304 of the Criminal Code (WA) - Victim an off-duty police officer acting in the performance of a function of his office - Victim suffered severe injuries and significant ongoing disabilities - Sentence of 3 years and 4 months' imprisonment manifestly inadequate - Sentencing judge erred in making sentence on a count of unlawful assault on another off-duty police officer wholly concurrent with the sentence on the offence against s 304
Criminal law - Sentencing - State appeal against sentence - Sentencing principles - Proper construction and application of s 3 of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) - Proper construction and application of cl 3A of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) - Effect of the repeal of the 'truth in sentencing' legislation
Criminal law - Appeal against conviction - Prejudicial media publicity during trial - Trial judge refused to discharge jury - Directions of trial judge in summing up adequate to ensure a fair trial - Prosecution witnesses gave differing accounts in relation to a crucial part of the State's case - Prosecution's obligation to call witnesses - Whether verdict of guilty unsafe or unsatisfactory - Verdict not unreasonable - Verdict supported by the evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 31(3), s 31(4), s 31(5), s 41(4)
Criminal Code (WA), s 294, s 304, s 317(1)
Prisons Act 1981 (WA), s 29
Sentencing (Consequential Provisions) Act 1995 (WA), s 110
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 7(1), s 7(2), s 8(1), s 10, s 93(1)
Sentencing Administration Act 1995 (WA)
Sentencing Administration Act 2003 (WA)
Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), s 3, s 4
Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 22, sch 1 cl 2 (repealed), sch 1 cl 3A
Result:
CACR 115 of 2008
Appeal allowed
Sentences imposed by sentencing judge set aside
Respondent re-sentenced
CACR 120 of 2008
Leave to appeal on ground 2 refused
Appeal dismissed
Category: A
Representation:
CACR 115 of 2008
Counsel:
Appellant: Mr A G Elliott
Respondent: Mr R P Arndt
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: George Giudice Law Chambers
CACR 120 of 2008
Counsel:
Appellant: Mr R P Arndt
Respondent: Mr A G Elliott
Solicitors:
Appellant: George Giudice Law Chambers
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Al‑Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562
Barnes v The State of Western Australia [2004] WASCA 258
Bensegger v The Queen [1979] WAR 65
Byfield v The Queen [2002] WASCA 260; (2002) 133 A Crim R 307
Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1
Carroll v The Queen [2009] HCA 13
Chan (1989) 38 A Crim R 337
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dragon v The State of Western Australia [2008] WASCA 252
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295
Farmer v The State of Western Australia [2008] WASC 115
Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293
Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
Holden v The State of Western Australia [2009] WASCA 50
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jarvis v The Queen (1993) 20 WAR 201
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
Kilner v The Queen [1999] WASCA 189
Kirby v The Queen [2003] WASCA 239
Lewis‑Harrison v The Queen (Unreported, WASCA, Library No 930291, 27 May 1993)
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Maric v The Queen (1978) 52 ALJR 631
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McGarry v The State of Western Australia [2005] WASCA 252
McMaster v The Queen [2004] WASCA 52; (2004) 144 A Crim R 428
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Mourish v The State of Western Australia [2006] WASCA 257
Narrier v The State of Western Australia [2008] WASCA 191
Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305
Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Pepper v The State of Western Australia [2005] WASCA 177; (2005) 30 WAR 447
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Abboud [2005] NSWCCA 251
R v George (1987) 9 NSWLR 527
R v Morgan (1993) 70 A Crim R 368
R v Smith (Unreported, NSWCCA, 7 October 1982)
R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1
R v Zakaria (1984) 12 A Crim R 386
R v Zammit [1999] NSWCCA 65; (1999) 107 A Crim R 489
R v Zampaglione (1981) 6 A Crim R 287
RH McL v The Queen [2000] HCA 46; (2000) 203 CLR 452
Stephens v The State of Western Australia [2005] WASCA 98
Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319
Stingel v Clark [2006] HCA 37; (2006) 226 CLR 442
The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165
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 Richards [2008] WASCA 134
The State of Western Australia v Wallam [2008] WASCA 117
The State of Western Australia v Wallam [2008] WASCA 117(S)
Vagh v The State of Western Australia [2007] WASCA 17
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)
WCW v The State of Western Australia [2008] WASCA 232
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Williams v Smith [1960] HCA 22; (1960) 103 CLR 539
Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585
Yates v The State of Western Australia [2008] WASCA 144
Buss JA's Reasons: Table of Contents
Appeal against conviction: general
Appeal against conviction: the elements of counts 1 and 4 that were in issue at the trial
Appeal against conviction: ground 1: the injuries suffered by Mr Marklew
Appeal against conviction: ground 1: the relevant published material
Appeal against conviction: ground 1: the application to the learned judge and her ruling
Appeal against conviction: ground 1: Mr Mallard's submissions
Appeal against conviction: ground 1: its merits
Appeal against conviction: ground 2
Appeal against conviction: ground 2: the prosecutor's closing address to the jury
Appeal against conviction: ground 2: Mr Mallard's submissions
Appeal against conviction: ground 2: applicable legal principles
Appeal against conviction: ground 2: its merits
Appeal against conviction: conclusion
Appeal against sentence: general
Appeal against sentence: grounds of appeal
Appeal against sentence: general principles of appellate review
Appeal against sentence: the nature of manifest inadequacy
Appeal against sentence: multiple offences: the 'one transaction' rule and the totality principle
Appeal against sentence: the learned judge's sentencing remarks including her findings of fact
Appeal against sentence: ground 1: Mr Mallard's submissions
Appeal against sentence: ground 1: its merits
Appeal against sentence: ground 1: the sentencing dispositions in Wallam and Yates
Appeal against sentence: ground 1: conclusion
Appeal against sentence: ground 2: the State's submissions
Appeal against sentence: ground 2: its merits
Appeal against sentence: ground 2: conclusion
Appeal against sentence: ground 3
Appeal against sentence: ground 3: its merits
Appeal against sentence: ground 3: conclusion
Appeal against sentence: conclusion
The re‑sentencing of Mr Mallard: s 41(4) of the Criminal Appeals Act
The re‑sentencing of Mr Mallard: the former legislative scheme for remission
The re‑sentencing of Mr Mallard: the 'truth in sentencing' legislation
The re‑sentencing of Mr Mallard: the 2008 Sentencing Amendment Act and the repeal of the 'truth in sentencing' legislation
The re-sentencing of Mr Mallard: the State's submissions on the 2008 Sentencing Amendment Act
The re‑sentencing of Mr Mallard: counsel for Mr Mallard's submissions on the 2008 Sentencing Amendment Act
The re-sentencing of Mr Mallard: the proper construction, effect and application of the 2008 Sentencing Amendment Act
The proper approach to sentencing in accordance with the 2008 Sentencing Amendment Act
The re‑sentencing of Mr Mallard: s 10 of the Sentencing Act
The re‑sentencing of Mr Mallard: this court's sentencing decision
Outcome of the appeals
Postscript: the reasons of Owen, Wheeler and Pullin JJA in relation to the 2008 Sentencing Amendment Act and the survival, in substance, of 'truth in sentencing'
OWEN JA: I agree with Wheeler and Pullin JJA.
WHEELER & PULLIN JJA: We have had the advantage of reading in draft the reasons for decision of Buss JA. We agree that, for the reasons given by his Honour, the appeal against conviction should be dismissed, in relation to each count. We also agree that, for the reasons given by his Honour, grounds 1 and 3, but not ground 2, of the State's appeal against sentence, are made out.
As to the resentencing of BLM, our view of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) (the Amendment Act) differs from that expressed by his Honour. We set out below our conclusions concerning the Amendment Act, and concerning the appropriate sentences to be imposed in this case.
The Amendment Act in its operative provisions reads:
3.Schedule 1 clause 2 deleted
Delete Schedule 1 clause 2.
4.Schedule 1 clause 3A inserted
Before Schedule 1 clause 3 insert:
3A.Provisions relating to deletion of clause 2
(1)In this clause -
clause 2 means clause 2 of this Schedule as in force immediately before the relevant commencement;
minimum custodial period of a fixed term, is the amount of the fixed term required to be served in custody before the offender would be, or was or would have been, eligible or entitled to be released, whether on parole or on being discharged from the sentence;
relevant commencement means the commencement of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008.
(2)After the relevant commencement, clause 2 does not apply to the sentencing of an offender for an offence -
(a)even if the offence was committed before the relevant commencement; and
(b)even if the offender was convicted before the relevant commencement; and
(c)even if the sentencing is as a result of an appeal against a sentence imposed before the relevant commencement,
despite any written or unwritten law to the contrary.
(3)A court sentencing an offender to a fixed term can have regard to the minimum custodial period of the fixed term to be imposed and the minimum custodial periods of fixed terms imposed before the relevant commencement, whether or not clause 2 applied to their imposition.
(4)A court sentencing an offender to a fixed term can impose a penalty up to the statutory penalty for the offence.
(5)This clause expires 3 years after the relevant commencement.
5.Schedule 1 clause 14 deleted
Delete Schedule 1 clause 14.
The effect of s 3 is to repeal what were commonly known as the "transitional provisions" (Sentencing Legislation Amendment and Repeal Act 2003 (WA)). The questions which arise in the present case relate to the proper construction of the new cl 3A(3) and (4). So far as cl 3A(3) is concerned, it is necessary to consider whether the word "can" grants the court a discretion and, if so, by reference to what criteria the discretion falls to be exercised. It is necessary to consider for what purpose the court might have regard to the minimum custodial period of fixed terms imposed both before and after the commencement of the transitional provisions; in particular, it is necessary to consider whether the purpose, or a primary purpose, of doing so is to ensure consistency of minimum custodial periods as between sentences imposed prior to and after the commencement of the Amendment Act. If the court is to ensure consistency, the question then arises as to whether it should endeavour to do so in all cases.
Buss JA, in his reasons, has concluded that the Amendment Act is intended to give effect to a legislative intention that there should be, in general, some increase in the length of sentences in most cases falling between the worst case and the least serious case, with no increase, or a very modest increase, in the least serious cases and the imposition of either the maximum penalty, or something close to it, for offending falling in the worst category of offending [238] ‑ [239]. His Honour has explained at [244] ‑ [246] the way in which, consistently with that view, sentencing judges should proceed under the Amendment Act. We agree with Buss JA's proposition (a) in [239]. As to propositions (b) and (c), however, the view expressed by Buss JA is, it seems to us, one of two possible views which may be taken of the effect of the Amendment Act.
While we acknowledge the force of the considerations which have led his Honour to his conclusions, we would prefer an alternative construction. The construction we prefer sees the effect of the Amendment Act as requiring a sentencing judge, where there was an established sentencing range in respect of a particular offence prior to the enactment of the Amendment Act, to have regard to the minimum custodial periods of the sentences established by that range, for the purpose of ensuring that comparable minimum custodial periods are established for those who offend in a comparable way subsequent to the Amendment Act. However, in the case of offending falling within the worst category of offending, and in relation to offending of that type only, the effect of the Amendment Act is that a sentencing judge may impose the statutory maximum penalty, or a penalty close to the maximum, notwithstanding that the effect of doing so would be to require the offender to serve a substantially increased minimum custodial period. Our reasons for preferring that construction are as follows.
There are a number of principles of statutory construction which are relevant. In addition to consideration of the words used in their statutory context, it is well settled that, at common law, courts may have regard to materials which demonstrate what is the mischief, if any, which a statute is intended to cure. The context of the statute is to be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and "context" in this sense includes such things as the existing state of the law and the mischief which a statute was intended to remedy (CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ). The Interpretation Act 1984 (WA), s 18, is similar in its effect to those common law principles, in directing the court to prefer a construction which would promote the purpose underlying a statute "whether that purpose … is expressly stated in the written law or not". Consideration of context and of "mischief" are ways in which a legislative purpose may be discerned where (as here) the Act in question has no section setting out its objects. In addition, however, s 19 of the Interpretation Act1984 permits the court to consider extrinsic materials, such as Parliamentary Debates, in determining the meaning of a provision which is "obscure" in its meaning (s 19(1)(b)(i), s 19(2)(f), (h)). We consider that the Amendment Act is "obscure" in the sense that nothing in the text expressly answers the questions referred to in [5].
In order to ascertain the relevant statutory context and the mischief at which the Amendment Act may have been directed, we will briefly summarise the history of remission and parole provisions in Western Australia. Much is set out in the reasons of Buss JA, but we repeat it here in an attempt to ensure coherence in these reasons. We then turn to consider the Parliamentary Debates concerning the Amendment Act.
The relevant history is conveniently to be found in three reports. The first was A Report on Parole, Prison Accommodation and Leave From Prison in Western Australia dated February 1979 by K H Parker QC, as His Excellency then was (the Parker Report). The next was the Report of the Committee of Inquiry into the Rate of Imprisonment (the Dixon Report) of 1981, and the third was the Report of the Review of Remission and Parole (the Hammond Report) of March 1998.
To the extent that public perceptions may be seen to be a part of the "mischief" at which the Amendment Act was directed, it is relevant to note that both the Dixon and Hammond Reports were compiled after invitations to the public at large to make submissions, consultations with those who were seen as experts in the field, and an examination of some systems in operation in comparable jurisdictions. The consensus view of those reports was that a system of remission and parole, which resulted in a prisoner potentially serving a sentence of imprisonment shorter than that pronounced by a sentencing judge, was potentially of benefit to the public in ways discussed in those reports. Further, those reports saw no advantage, and some possible disadvantage, to the public, in an overall increase in average times in custody. We refer to this issue in more detail below.
Some form of administrative remission of sentence, or of conditional liberty, is to be found in England at least as far back as the late 18th century; at that time, convicts found unfit for transportation were released unconditionally from the Hulks after serving a little over half of their nominal sentence. The system of remissions varied over time, and by 1891 it was suggested that judges did not often know the exact effect of the sentences which they passed because, although "Circulars containing tables of remission [had] been issued several times by the Home Office the Circulars got lost and the tables [were] too complex for anyone to bear in mind" (Dixon Report, page 206). The justification for remissions seems to have varied over time. In part, it seems to have been a response to unacceptable prison overcrowding; in part, an element in maintaining discipline within the prison system; and, in part, an incentive to reform. Parole, by contrast, was a concept intended more explicitly to assist in the rehabilitation of offenders.
So far as Western Australia was concerned, there was, at the time of the Parker Report, and until 1988, a system of sentencing by which a judge would fix both a maximum term, or head sentence, and a minimum term prior to which a prisoner could not be released on parole. There was also, concurrently, a system of earned remissions in operation. There were both practical and conceptual difficulties with that system. The Parker Report pointed out that in the three years to June 1978, in 11% of cases the minimum sentence imposed was less than one‑quarter of the maximum, and in 40% the minimum was one‑third or less. That was said to give rise to a community concern that the deterrent effect of sentencing was weakened and that prisoners were not sufficiently punished. The Parker Report considered whether a system of parole should be retained at all, but suggested that there were, at least potentially, advantages to the community from the supervision provided to prisoners who were in the process of reintegrating into the community. It further pointed out that, in any event, the costs of imprisonment (at that time $225 per prisoner per week; now over $225 per day: Report on Government Services 2008, Chapter 8, fig 8.12) and of parole (at that time less than $9 a week; now around $19 per day: Report on Government Services, Table 8A.50) were so vastly different that there would be an enormous cost to the community if parole were simply abolished, and that within six months there would not be enough prison accommodation available to hold the increase in prison population.
The conceptual difficulty with judges setting both a minimum and a maximum term is illustrated by the discussion of the criteria by reference to which the minimum should be set, in Power v The Queen [1974] HCA 26; (1974) 131 CLR 623. The High Court in that case considered that a judge sentencing a prisoner, in fixing a non‑parole period, should "determine that minimum period for which in his judgment, according to accepted principles of sentencing, the prisoner should be imprisoned" (at 627). It pointed out that confinement in prison serves the same purposes whether before or after the expiration of a non‑parole period, being punishment directed towards reformation (at 628).
In effect, the sentencing judge was required to perform the rather odd feat of fixing two different terms of imprisonment by reference to essentially the same criteria. If the minimum term was that which was required by accepted principles of sentencing for the purposes of punishment and reformation, it is difficult to see what might justify fixing a term longer than the minimum, giving rise to an obvious difficulty in setting the maximum. The position is, of course, different if the sentencing judge fixes but one sentence by reference to considerations of retribution, denunciation, deterrence, rehabilitation, and protection of the community, and then the executive, or a body appointed by it (or, in some jurisdictions, a court), determines, at a later time, whether an offender has in fact made substantial steps towards rehabilitation, and whether in fact there is likely to be any risk to the community from his or her release. (See McGarry v The State of Western Australia [2005] WASCA 252 at [34] ‑ [36].)
The Dixon Report recommended the abolition of the system by which the court fixed both a maximum and a minimum sentence. It suggested that courts return to the practice of simply imposing a finite sentence. However, it recognised that there was then a real possibility that, in many cases, the finite sentence would be longer than the minimum sentence which would have been imposed under the then existing regime. That would have caused an increase in the rate of imprisonment. The committee therefore recommended that the general rate of remission on sentences be increased to one‑third of the sentence (from the one‑quarter which, in general terms, was then the position). That would bring the rate of remission into line with that prevailing both in the United Kingdom and in most other Australian States. It also suggested, in relation to parole, that while parole could be useful, it tended to be self‑defeating if parole terms were too long, and that probably a term of parole of the order of 2 years was the longest which was likely to be useful.
The Hammond Committee recommended that parole be retained, as a system of parole facilitated community reintegration and protected the community by lessening the risk of recidivism. It recommended, however, the abolition of remission of sentence, which, by then, was virtually automatic, in order to address community concern that sentences imposed appeared to bear little relationship to sentences actually served. However, it also noted that in New South Wales the adoption of "truth in sentencing" provisions had resulted in a large and unintended increase in the prison population. In Victoria, by contrast, that consequence of truth in sentencing reforms had been avoided. The committee recommended, therefore, that, as in Victoria, the sentencing court be required by statute to adjust the sentence which it imposed so that the actual time served was no greater than that which would have been served if the existing provisions relating to remission and parole still applied.
For technical reasons to do with the calculation of remission and parole, a requirement that the sentencing court adjust its sentences in the manner recommended by the Hammond Committee was replaced, in the transitional provisions, by a mathematical one‑third reduction. That followed the recommendation (without dissent) of the Legislative Council's Standing Committee on Legislation, a body which drew its membership from all sides of politics (Report 18 May 2003).
In summary, the historical context of the Amendment Act is that for a very long time, by reason of a system of legislative and administrative measures, sometimes automatic and sometimes discretionary, the actual sentence likely to be served, at least by a prisoner who made some effort towards rehabilitation, was less - often very significantly less - than the actual sentence pronounced by the court. In Western Australia, for more than 30 years, because of a combination at different times of minimum sentences, remissions, parole, and discretionary prison leave regimes (the last of which it is unnecessary to discuss in these reasons) the actual time in custody spent by the majority of prisoners appears to have been between one‑third and, at most, two‑thirds of the sentence actually pronounced by the court.
It is important to note the factual context against which each of the reports discussed above, and the resulting legislation, was concerned to avoid an increase in the rate of imprisonment in Western Australia. It is briefly and simply illustrated by the tables in Appendix 1 to these reasons. To summarise, this State has long had a rate of imprisonment very significantly higher than that of other States, a rate exceeded in Australia only by the Northern Territory (Report on Government Services, 2008, Table 8A.5). It is very much higher than the rate in comparable countries, such as the United Kingdom, Canada and the Irish Republic (Victoria, Sentencing Advisory Council, Sentencing Statistics). Public perceptions do not, overall, reflect that reality; the general public tends to believe that crime is increasing even when it is stable or decreasing; underestimates the severity of existing sentencing practices; and overestimates the percentage of offenders who reoffend (Weatherburn & Indermaur, Public Perceptions of Crime Trends in NSW and WA (2004), NSW Bureau of Crime Statistics and Research; Gelb, More Myths and Misconceptions, (2008) Sentencing Advisory Council Victoria). Parliament, presumably, is more accurately informed than the community at large in these respects. However, members of the public do appear to recognise that money spent on increasing imprisonment is not necessarily well spent (even in comparison with expenditure on rehabilitation, let alone in comparison with expenditure on matters such as policing or healthcare) (Gelb).
From the reports discussed above, and from the factual context which we have briefly sketched, we draw a conclusion about the "mischief" at which the Amendment Act was not aimed. It is most unlikely that it was intended to increase, to any significant extent, an already very high rate of imprisonment. We discuss shortly the aims at which it appears to us the Amendment Act was directed.
Another aspect of the background to the Amendment Act is that the courts have not generally been able to have regard to the minimum term likely to be served, in imposing sentence, so that once the courts lost power to fix a minimum term, they have not been able to impose a sentence designed to ensure that an offender serves any particular length of minimum term: Jarvis v The Queen (1993) 20 WAR 201 at 208 (Ipp J), 214 (Murray J); Kirby v The Queen [2003] WASCA 239 at [26]. This principle was subject to some exceptions which arose from statute (eg, s 88(4) Sentencing Act1995 (WA)) or which were seen as necessary to avoid inconsistency and injustice (eg, Lewis‑Harrison v The Queen (Unreported, WASCA, Library No 930291, 27 May 1993) at 13 ‑ 14). However, until the enactment of the transitional provisions, consistency of sentencing between prisoners sentenced under different remission and parole regimes has generally been achieved by adjusting the remission and parole components, administratively or legislatively.
At the time of enactment of the transitional provisions, there was a significant alteration to the remission and parole regime, the result of which would have been a very substantial increase in the minimum custodial term, had it not been for the mandatory one‑third reduction required by those provisions. The attached table (Appendix 2) illustrates the difference which would have resulted. As we have noted, in order to ensure consistency in relation to offenders sentenced before and after the enactment of the transitional provisions, the mandatory one‑third reduction was provided for. However, pursuant to these provisions, the courts were required to make the adjustment, and the adjustment regime was expressed to be "transitional".
That brings us to the Amendment Act and to cl 3A(3). As was noted in Holden v The State of Western Australia [2009] WASCA 50 at [57], a sentencing judge must have regard to the range of sentences customarily imposed in respect of the type of offence for which the sentencing judge comes to sentence an offender. That is because it is a matter of sentencing principle that there should not be any unjustifiable disparity in sentence between comparable offences (that is, offences of comparable seriousness committed by offenders in comparable circumstances). Disparity of sentencing standards is considered to be a very serious deficiency in a system of criminal justice, and as tending to undermine public confidence (Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 326 per Jacobs J, and see Barwick CJ at 310; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 300 (Brennan, Deane, Dawson, Gaudron JJ), at 306 (McHugh J)). The underlying principle is that of equal justice, which is "a fundamental element in any rational and fair system of criminal justice" (Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610 (Mason J); also Gibbs CJ at 610, Wilson J at 616, Dawson J at 623 ‑ 624; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 301 (Dawson and Gaudron JJ), at 333 (Kirby J)).
Against that background, it seems to us that the obvious construction of cl 3A(3) is one which sees it as a requirement that, for the purpose of considering questions of comparability of sentence, the court have regard to the minimum custodial period which the offender will be required to serve before being eligible for release. That is, rather than mandating a mathematical one‑third reduction, Parliament was requiring the court to compare minimum custodial periods, both before and after the enactment of the transitional provisions, in order to arrive at an appropriate minimum custodial period for an offender sentenced after the Amendment Act, and to impose a head sentence which would have that result.
Of course, it does not follow that offenders with identical minimum custodial periods will in fact spend identical periods in custody. An offender is not automatically released upon the expiry of the minimum term. A variety of factors, many within the offender's control, such as different approaches to participation in rehabilitative programmes, will lead to offenders with the same minimum in fact serving differing terms. That, because the disparity is not arbitrary, cannot be described as "unjustifiable disparity", and is not relevant for present purposes.
The construction referred to above is reinforced by two aspects of the Amendment Act. One is that cl 3A(3) permits the court to have regard to a minimum custodial period "whether or not" the transitional provisions had applied to the term of which it formed part. That tends to suggest that Parliament was concerned with consistency over time, and considered minimum terms imposed under the transitional provisions to be appropriate comparators, as well as minimum terms prior to the transitional provisions. The other is that cl 3A(2)(c) applies the Amendment Act to sentences imposed after an appeal. It is unlikely that Parliament intended that every offender exercising his or her right of appeal would potentially be penalised for doing so, by being exposed to the possibility of a significantly higher minimum custodial period.
An objection, as a matter of logic, to the construction which we have suggested might be that it would mean no alteration, practically, in the majority of sentences imposed before and after the transitional provisions. Parliament, in enacting the Amendment Act, presumably wished to address a "mischief" of some kind, and the question arises as to what that mischief might be, if it was not intended to alter the sentence likely to be imposed in at least the majority of cases.
It seems to us that Parliament may have intended to deal with a number of possible mischiefs, without intending that there be a general alteration in the range of sentences customarily imposed. One such "mischief" is that the transitional provisions necessarily had a tendency to inhibit the development of sentencing practices which would respond to changing conditions, such as increased prevalence of offences. By, in effect, requiring the court to look back to what had been the appropriate regime prior to the transitional provisions and make a mathematical adjustment, notwithstanding that there were certain exceptions to that requirement, there was potentially a stultifying effect upon sentencing practice. As was pointed out in Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 at [73] ‑ [77], there was a potential difficulty in ascertaining whether the "transitional provisions" had ceased to have effect, and when a "new range" of sentencing had become established, so that the court was no longer required to perform the calculation which the transitional provisions required. Another "mischief" was that, because of the way the transitional provisions were expressed, they had been held to apply even to offences the creation of which post‑dated their enactment, which tended to suggest that they were permanent, rather than "transitional": Yates v The State of Western Australia [2008] WASCA 144. Finally, there was the fact that, since the court was required to deduct one‑third from the figure which it had fixed as the appropriate sentence, the statutory maximum penalty, which Parliament presumably intended to be imposed in the worst case, could, in fact, never be imposed.
So far as the difficulty with the statutory maximum is concerned, it appears to us that cl 3A(4) of the Amendment Act makes it clear that the inability ever to impose a maximum sentence, or one very close to the maximum, was one of the matters which Parliament was concerned to correct. That view is confirmed when one turns to the relevant Parliamentary Debates.
The focus in the debates upon what members appeared to regard as "worst cases" provides, in our respectful view, one possible answer to the suggestion made by Buss JA that Parliament was unlikely to wish to alter the relativities of sentences imposed in worst cases compared with other cases. It is, in our view, possible that Parliament, while not wishing significantly to alter sentencing patterns overall, was concerned to ensure that the relatively few offenders falling within the most serious category of offending were more severely dealt with.
A significant portion of the Second Reading Speech of the Hon the Attorney‑General was concerned with the inability of sentencing judges to impose the maximum penalty, or a sentence very close to it, by reference to the example of a "most serious category" of manslaughter case (Farmer v The State of Western Australia [2008] WASC 115). The clear suggestion was that the effect of the Amendment Act was to permit the maximum term to be imposed in such a case (Parliamentary Debates, 26 November 2008, Legislative Assembly, 498 ‑ 499). The Hon the Attorney‑General returned to this theme in his concluding comments in the Second Reading Speech debate, saying that it was his view that "this legislation will achieve what it sets out to do; that is, for the first time in a long time in this jurisdiction, make the legislated statutory maximum sentence available" (Parliamentary Debates, Legislative Assembly, 3 December 2008, 871). Similar comments were made by the Hon J McGinty (Parliamentary Debates, Legislative Assembly, 3 December 2008, 851 ‑ 852) and the Hon Giz Watson. The latter said "[i]f we agree on one thing, it is that the intention of this bill is that it is correct to seek to make adjustments for some of the more serious offences to allow for increased sentences" (Parliamentary Debates, Legislative Council, 9 December 2008, 1049). The whole of the debates concerned with what became cl 3A(4) took it for granted that it was appropriate that the maximum penalty should be available in the worst category of case; views differed only about whether it was necessary to insert cl 3A(4) in order to achieve that objective, or whether cl 3A, without that subsection, would have been sufficient.
A need for greater clarity and transparency in sentencing and a need to ensure that a "transitional" regime did not continue forever, was also referred to in a number of debates and, in particular, in the Hon the Attorney‑General's Second Reading Speech introducing the Bill for the Amendment Act (Parliamentary Debates, Legislative Assembly, 26 November 2008, 494, 498). Remarks expressing dissatisfaction with the position reached in Yates are found in other speeches (eg the Hon J McGinty, 3 December 2008, 849, Mr B S Wyatt, 3 December 2008, 855).
To the extent so far discussed, the Parliamentary Debates support a construction of cl 3A which would see it as requiring consistency in minimum custodial terms both before and after the abolition of the transitional provisions, save in the case of the worst categories of offending. In those categories, the effect would be to increase the minimum custodial term by allowing the imposition of either the statutory maximum, or something close to it.
It must be accepted, however, that a sentencing court should have regard to the statutory maximum not only in the worst category of offending, but in fixing an appropriate sentence in respect of all offending, since the statutory maximum serves to indicate how seriously the legislature regards an offence of a particular kind, relative to other offences. When Parliament increases the maximum penalty for an offence, it is, in effect, requiring courts to regard offences of that kind more seriously in future. It might therefore be suggested that in effectively increasing the penalties available across the board, by permitting the courts to impose the statutory maximum, Parliament was intending, as Buss JA suggests, that sentences should increase overall in all categories of offending, and not only in relation to what might be regarded as worst cases.
In considering that possible view, it is necessary, however, to have regard to two matters. One is a principle of statutory interpretation, recently described by Gleeson CJ as "a principle of legality" in the following terms:
In exercising their judicial function, courts seek to give effect to the will of parliament by declaring the meaning of what parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re‑affirmed by this court in recent cases. It is not new. In 1908, in this court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that '[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness'.
A statement concerning the improbability that parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by parliament. Al‑Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [19] ‑ [20].
Although his Honour was in dissent in the result, the principle which he enunciated was not controversial. It had earlier been restated by the High Court in these terms in Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437:
In Bropho v Western Australia, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ pointed out that the rationale against the presumption against the modification or abrogation of fundamental rights is to be found in the assumption that it is:
… 'in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law [emphasis supplied], without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used'.
Neither remission nor parole can, as a matter of law, be described as a "fundamental right" (see McGarry at [72] ‑ [76]). Rather, both have historically been a matter of executive administrative discretion, to a greater or lesser degree formalised in legislation. However, the principle of consistency of sentencing is part of the general system of law, departure from which one would expect Parliament to signal only by unmistakably clear language. It seems to us, against those principles, that it is not open to attribute to the Parliament an intention that, while retaining the existing statutory maximum sentences unaltered, retaining the system of parole unaltered, and expressly permitting the courts to have regard to the minimum custodial terms, Parliament nevertheless intended some unspecified and undefined increase in sentence for all offenders, without expressly saying so.
The other matter to be considered, in evaluating a possible legislative intention to increase sentences generally, is the factual context discussed at [12] ‑ [21] above. As we have noted, it is unlikely that Parliament intended to impose a substantial financial burden on the community by increasing an already extremely high rate of imprisonment. None of the speakers during the debates suggested that there was any good reason for taking such a course.
There is some support in some portions of the Parliamentary Debates for the view that at least some individual members of Parliament may have considered that a consequence of the Amendment Act may, ultimately, be a degree of increase in the length of sentences overall. As a practical matter, in the very long term, that anticipation may prove to be correct, simply because over the longer term the imposition of the statutory maximum, or a term close to it, in the very worst category of cases is likely to lead to an increase in the sentence imposed on those offenders who fall just outside the worst category, for reasons of sentencing relativity. However, it is one thing to predict that a consequence may flow over time, and another to accept it as a matter of sentencing principle which the Amendment Act requires to be applied. For the reasons which we have endeavoured to articulate, it seems to us there is no new sentencing principle of that kind.
We would add that we draw no assistance, in construing the Amendment Act, from the "sunset clause" cl 3A(5). It may be that Parliament had some expectation about what patterns of sentencing might be established in three years. It is equally likely that Parliament was simply concerned to ensure that the effect of the Amendment Act was subject to prompt and thorough review, so that it could be extended, or altered if required, and chose this device to ensure that end. This is particularly so in light of the fact that the Amendment Act sought to repeal a provision expressly described as "transitional", and in the light of the concern expressed in debate about the effect of the decision in Yates.
In our view, therefore, the effect of the Amendment Act is simply this: in the general run of cases, sentences imposed subsequent to the Amendment Act must be imposed in a way which ensures consistency between the minimum custodial period to be served under a sentence following the Amendment Act with the minimum custodial period in respect of an offender committing a comparable offence before the Amendment Act, either under the transitional provisions, or under the regime preceding the transitional provisions. In the worst category of cases, the Amendment Act permits the court to impose a sentence at, or close to, the maximum term available, without adjustment so as to ensure comparability with previous minimum custodial terms. Whether, in any particular "worst category" case, a sentencing judge will be required to impose a penalty at or near the statutory maximum will depend not upon the Amendment Act, but upon established sentencing principle. "Worst category" is, of course, to be understood as Mason CJ, Brennan, Dawson and Toohey JJ described it in Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 478:
… the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen [(1987) 163 CLR 447 at 451 ‑ 452]. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category.
In summary, the Amendment Act has, in our view, the following effects:
(1)In cases falling within the "worst category" it enables the imposition of the statutory maximum penalty, or something approaching it. Whether, in any particular "worst category" case, a sentencing judge will be required to impose a penalty at or near the statutory maximum will depend not upon the Amendment Act, but upon established sentencing principle.
(2)In cases not falling within the worst category, and where there is an established range of sentences capable of affording comparison, it requires a sentencing judge to have regard to the minimum terms which would have been required to have been served under that range of sentences, and to tailor the sentence to be imposed so as to avoid unjustifiable disparity in respect of the minimum custodial period.
(3)It facilitates the development of sentencing ranges which change over time, by reason of factors such as prevalence or other relevant matters.
(4)Where new offences are created, it makes it clear that the court is not to discount sentences imposed in respect of those offences by one‑third.
This list may not be exhaustive, but it is sufficient for the purposes of the present case.
Finally, we turn to apply those principles to this case. It is, in our view, a serious case for the reasons articulated by Buss JA, but does not fall into the "worst category". The attack on Mr Marklew was a very serious offence because there was a degree of premeditation, because there was a weapon used, because the attack involved more than one blow, because Mr Marklew suffered severe injuries and significant ongoing disabilities, and because the assault on him appears to have been by way of revenge for his having earlier performed a function of his office as a police officer. This last factor is particularly significant because, while all citizens are equally deserving of protection from attack, a premeditated and wholly unjustified attack on a police officer as a result of that officer carrying out his duties is in a real sense an attack on the community as a whole, as members of the community rely upon the police to protect them from criminal conduct and to maintain the peace. Deterrence looms large in dealing with such attacks.
However, the learned sentencing judge found merely an "intent to harm" Mr Marklew. She did not make any finding as to the nature or extent of the harm intended. In those circumstances, it was accepted by the parties that the only proper basis for sentencing was that the respondent had an intent to cause bodily harm and not, for example, the more serious intent to endanger Mr Marklew's life. Her Honour found that the respondent's actions could have endangered Mr Marklew's life, but not that his life was, in fact, endangered. There was premeditation, but for a short period only. While there was more than one blow, the attack lasted a relatively short time. That takes the offending out of the relatively rare "worst category" which would demand either the maximum statutory penalty, or something close to it. Although there was generally little to be said for the respondent by way of mitigation, there was also in his favour the circumstance of his apparently real rehabilitation during his most recent period of imprisonment; the references produced to the sentencing judge suggested that he had, for the first time, made a real effort to turn his life around and, in our view, that circumstance requires significant weight.
The only cases in which this court has previously considered s 304 are Yates, The State of Western Australia v Wallam [2008] WASCA 117 and The State of Western Australia v Redman [2009] WASCA 1. All of those cases involved offences which were significantly less grave, and/or offenders whose antecedents were better, than in the present case, and all involved pleas of guilty. The range of sentences of 3 years (18‑month minimum custodial period); 3 years (18‑month minimum custodial period) and 1 year and 4 months respectively are therefore not appropriate as directly comparable sentences. They do, however, assist in establishing a range within which to place this offending.
Some limited assistance is afforded by considering offences of intentionally causing grievous bodily harm pursuant to s 294 which have been the subject of review on appeal, but in those cases, as a rule, the offender's intention was more culpable, and the attacks were often more intense or prolonged. Perhaps the closest would be Byfield v The Queen [2002] WASCA 260 (retaliation for an alleged earlier assault, premeditated attack with piece of wood and also ran over complainant with vehicle; young offender; plea of guilty; effective term of 12 years, equivalent to 6 years minimum custodial period) and McMaster v The Queen [2004] WASCA 52 (altercation in a nightclub, followed by the offender firing at complainants; imprisonment would be a particular burden on McMaster because of a medical condition; effective sentence of 9 years, equivalent to 4 years minimum custodial period).
In light of those cases, despite the apparent recent rehabilitation of the respondent, the sentence which should have been imposed for the assault on Mr Marklew would, in our view, have been one which required the respondent to serve a minimum custodial term of the order of 4 years' imprisonment, equating to a "head sentence" of 6 years. In accordance with the views we have expressed earlier, we have reached that conclusion substantially for the reason that, under the regime which applied prior to the transitional provisions, a person sentenced to a term of 9 years' imprisonment (6 years after the transitional provisions) would have been required to serve a minimum custodial term of 4 years. We would therefore fix a sentence of 6 years for count 1.
In our view, there should be an additional penalty for the assault on Mr Lowe, for the reasons given by Buss JA. We agree with Buss JA that the additional criminality of that offence would be appropriately recognised by a further 6 months' immediate imprisonment. In our view, it would be appropriate, therefore, to quash the sentences imposed by the learned sentencing judge and substitute for them the following sentences:
Count 1: 6 years' immediate imprisonment
Count 4: 6 months' immediate imprisonment, cumulative on count 1
We would order the sentence for count 1 to commence on 22 February 2008, and we would order eligibility for parole.
BUSS JA: On 29 May 2008, Brian Laurence Mallard was convicted, after a trial before O'Brien DCJ and a jury, on counts 1 and 4 in an indictment.
Count 1 alleged that on 4 February 2006 at Carnarvon, Mr Mallard, with intent to harm Jeremy Allan Marklew, did an act as a result of which bodily harm was caused to Mr Marklew, contrary to s 304(2) of the Criminal Code (WA). Count 2 was in the alternative to count 1, and count 3 was in the alternative to counts 1 and 2. Count 4 alleged that on the same date and at the same place alleged in count 1, Mr Mallard unlawfully assaulted Jayden Kenneth Lowe and thereby did him bodily harm, contrary to s 317(1) of the Criminal Code.
At all material times, Mr Marklew and Mr Lowe were police officers.
On 5 August 2008, the learned judge sentenced Mr Mallard to 3 years and 4 months' immediate imprisonment on count 1, and 12 months' immediate imprisonment on count 4 (in each case, after the application of the transitional provisions in cl 2 of sch 1 to the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (2003 Sentencing Amendment Act)). The sentences were ordered to be served concurrently, and backdated to commence on 22 February 2008 (to give credit for time previously spent in custody solely in respect of counts 1 and 4). A parole eligibility order was made.
Mr Mallard has appealed against his conviction on each of counts 1 and 4. The State has appealed against the sentencing decision.
I will consider, first, Mr Mallard's appeal against conviction and then the State's appeal against sentence.
Appeal against conviction: general
Mr Mallard relies on two grounds of appeal. Ground 1, which applies to counts 1 and 4, alleges that the learned judge 'erred in refusing to abort the trial following the publication of adverse, prejudicial and inadmissible material during the course of the trial'. Ground 2, which applies to count 4 only, alleges that the jury's verdict is 'unfair and unsatisfactory and cannot be supported having regard to the evidence at the trial'. Particulars of ground 2 have been given. They read:
1.There were 3 witnesses who gave evidence at the trial regarding an assault on the Complainant Lowe.
2.Paul Anthony Dickson [sic] and Jayden Kenneth Lowe each gave evidence that [Mr Mallard] had assaulted Lowe.
3.The evidence of Dickson [sic] was that he saw [Mr Mallard] come from his (Dickson's) [sic] left and hit Constable Lowe in the head. He said Mr Mallard was running in a northerly direction coming from the south.
4.The evidence of Constable Lowe was that he did not observe [Mr Mallard] immediately before the assault, he felt someone strike him with a fist from his right hand side and then looked to his right and saw [Mr Mallard].
5.The evidence of Kayleen Susan Oakley, which was not challenged at the trial, was that Constable Lowe was struck by another male by the name of Les Cook.
On 13 November 2008, Wheeler JA granted Mr Mallard leave to appeal on ground 1 and ordered that the application for leave to appeal on ground 2 be heard together with the appeal.
Appeal against conviction: the elements of counts 1 and 4 that were in issue at the trial
The trial was held at Carnarvon. It occupied 4 days from 26 ‑ 29 May 2008. Mr Mallard did not give sworn evidence in his own defence at trial.
On the morning of 27 May 2008, Mr Mallard's trial counsel made some admissions in relation to counts 1 and 4, in the presence of Mr Mallard and the jury, as follows:
In relation to count 1 it is admitted that on 4 February 2006 at Carnarvon, Brian Laurence Mallard did an act as a result of which bodily harm was caused to Jeremy Allan Marklew. The words in that count which are not admitted are the words 'with intent to harm Jeremy Allan Marklew', and as far as count 1 is concerned the main thrust of your decision will be whether you are satisfied on the evidence that he, that is Mr Mallard, did have such an intention at the time of doing the act.
…
In respect of count 4 it is admitted that someone unlawfully assaulted Jayden Kenneth Lowe and thereby did him bodily harm. What is not admitted is that the person who did that is Brian Laurence Mallard, and you will have to consider on the evidence whether you are satisfied beyond a reasonable doubt that Brian Laurence Mallard was the person who assaulted Mr Lowe and caused him those injuries. If you are not so satisfied, then you will acquit Brian Mallard of that count and if you are so satisfied then you will convict him (ts 60).
Accordingly, the elements of counts 1 and 4 that were in issue at the trial were:
(a)as to count 1, whether Mr Mallard intended to harm Mr Marklew when he did the act as a result of which bodily harm was caused to Mr Marklew; and
(b)as to count 4, whether Mr Mallard was the person who unlawfully assaulted Mr Lowe and thereby did him bodily harm.
Appeal against conviction: ground 1: the injuries suffered by Mr Marklew
The nature and extent of the bodily harm which Mr Mallard caused to Mr Marklew was as follows. He suffered a fractured right cheekbone, fractured left and right eye sockets, fractured right jaw, fractured left sinus, a 4.5 cm laceration to the right cheek, a 2 cm laceration to the upper lip, a 5 cm laceration to the scalp, and a laceration on the inside of the mouth. All of these injuries required sutures. Also, he sustained bruising to the right eye, right elbow, right ribs and the chest. Further, a number of teeth were loosened. Evidence was given that Mr Marklew was required to spend 7 days in hospital.
Ten photographs of Mr Marklew's injuries were tendered in evidence at the trial, and were with the jury when they deliberated on their verdicts. These photographs were taken 4 days after Mr Marklew was injured. He is shown standing, without assistance. They depict various bruises, scars and sutures.
Appeal against conviction: ground 1: the relevant published material
On 28 May 2008, after the third day of the trial, WIN Television published, in its 6.30 pm news bulletin, photographs of Mr Marklew which had not been (and were not subsequently) tendered in evidence at the trial. These photographs, evidently taken upon or shortly after Mr Marklew's admission to hospital, show him in a hospital bed, apparently unconscious, with blood on his face. They seem to have been taken before Mr Marklew's cuts and bruises, and the consequential bleeding, were cleaned and treated by hospital staff. The news bulletin was shown on free‑to‑air television in Carnarvon.
Appeal against conviction: ground 1: the application to the learned judge and her ruling
On the morning on 29 May 2008, Mr Mallard's trial counsel made application to the learned judge for the trial to be aborted and the jury discharged, without verdict, as a result of WIN Television having published the photographs. Counsel said, relevantly:
They are images which are very graphic in nature and they are images which had the state intended to call, I would have objected to their admissibility on the basis that their probative value given, amongst other factors, bodily harm was admitted, and the image photos taken a few days later are in evidence. Their probative value was virtually nil and their potential prejudicial effect would be, in my submission, extreme.
It's my submission that given the publication of these images some three hours after the jury has dispersed on a television news show as one of the lead items on that news bulletin, that the potential for prejudice to the trial is so great that the only way in which your Honour can prevent against that prejudice would be to discharge the jury and abort the trial (ts 213).
The learned judge dismissed the application. Her Honour gave these reasons:
Well, I'm not going to discharge the jury. Whilst it is regrettable that the media hasn't taken a responsible course notwithstanding my strong warning during the course of the trial and chose to publish photographs which I had ruled to be inadmissible as evidence given their prejudicial value, it's my view that I can warn the jury not to pay any attention to media reports and I won't do so in the context of drawing their attention to the particular reports because I think that just focuses attention on it but I will give them a direction about that. I might say, if I did have the power to prohibit publication of those images then I would have made that order. I just consider it irresponsible of the media to publish those photographs but I don't control the media (ts 214).
Appeal against conviction: ground 1: Mr Mallard's submissions
Counsel for Mr Mallard submitted that the photographs published by WIN Television were highly prejudicial to Mr Mallard and likely to incite sympathy for Mr Marklew. It was further submitted that the nature and impact of the photographs was unlikely to have dissipated before the jury commenced their deliberations. According to counsel, the learned judge should have aborted the trial and ordered a retrial before a new jury in that:
(a)the photographs were graphic;
(b)the photographs featured prominently in the WIN Television news bulletin;
(c)her Honour had indicated earlier in the proceedings that if she had had power to prohibit the publication of the photographs, she would have done so; and
(d)Carnarvon is a small country town, the news bulletin was broadcast on free‑to‑air television, and the jury were not sequestered when the broadcast occurred.
Appeal against conviction: ground 1: its merits
The critical issue for a trial judge, in the context of an application to discharge a jury as a result of prejudicial publicity in the course of a criminal trial, is whether, having regard to the atmosphere of the trial and the nature and extent of the publicity, it is necessary to grant the application in the interests of ensuring a fair trial. See R v George (1987) 9 NSWLR 527, 532 ‑ 533 (Street CJ, Yeldham & Finlay JJ agreeing).
Where an accused is convicted and appeals against the conviction on the ground that the trial judge's discretion miscarried when he or she refused to discharge the jury without verdict, the appeal is not against the failure to discharge the jury, but against the conviction. See Maric v The Queen (1978) 52 ALJR 631, 634 (Gibbs ACJ, Mason & Jacobs JJ agreeing). The appeal will only succeed if the appellant can demonstrate that the trial judge's exercise of discretion was vitiated by an error of law (see s 30(3)(b) of the Criminal Appeals Act 2004 (WA); House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt & McTiernan JJ)) or that a miscarriage of justice has occurred (see s 30(3)(c) of the Criminal Appeals Act). See also Narrier v The State of Western Australia [2008] WASCA 191 [31] (Buss JA, Martin CJ & Wheeler JA agreeing).
In R v Smith (Unreported, NSWCCA, 7 October 1982), the Court of Criminal Appeal of New South Wales said:
It is a commonly encountered ground of appeal that a trial judge has refused in the exercise of his discretion to discharge a jury when there has been some prejudicial media publicity. It is a ground that has rarely succeeded. This Court has repeatedly emphasised that the decision to discharge or not is essentially one within the discretion of the trial judge, being a decision to be made in the awareness of contemporary atmosphere and the likelihood of material prejudice being occasioned to the accused person. Moreover, trial judges should not be encouraged to discharge juries merely upon the ground of some prejudicial material having been published if appropriate directions can cure the situation.
In this instance, Judge Goran was anxiously aware of the necessity of protecting the appellant from unfavourable inferences arising out of the publicity given to him and his trial. His Honour gave some directions to the jury and, in the exercise of his discretion, felt that the trial could satisfactorily proceed. I see no justification for this Court holding that his Honour's discretionary evaluation was wrong and should be overruled (17 ‑ 18).
This passage was cited with approval in George (533 ‑ 534). See also R v Zampaglione (1981) 6 A Crim R 287, 298 ‑ 300 (Young CJ & Murray J).
In R v Zammit [1999] NSWCCA 65; (1999) 107 A Crim R 489, the appellant was convicted, following a trial before a judge and jury, of armed robbery and murder. The identification of the offender was a crucial issue at trial. On appeal, the appellant submitted that photographs of the victim's wounds were prejudicial and should not have been admitted into evidence. The Court of Criminal Appeal of New South Wales held that the photographs were admitted to prove the state of mind of the offender and to show how close his face must have been to a witness at the time of the shooting. In the circumstances, the probative value of the photographs outweighed any prejudicial effect they may have had. In any event, any prejudice arising from the photographs was insignificant. Wood CJ at CL (Ireland & Kirby JJ agreeing) said:
The sensitivity of jurors to photographs can too easily be overstated. I can see no reason why a degree of robustness should not be extended in this regard. Nor can I see why the tender of selected photographs, so long as they have a probative value (O'Sullivan and Mackie (1975) 13 SASR 68 at 74 ‑ 75) should be regarded as other than another step in the course of a trial in which the fact of violent death is patent for all: Green (1939) 61 CLR 167 at 172; Jeffrey [1967] VR 467 at 473 and Ames [1964] NSWR 1489 [156].
I respectfully agree with these observations.
In the present case, the learned judge, in her summing up, directed the jury, relevantly, as follows:
You are only to focus on the evidence that was called at this trial, what the witnesses have said about the matter and the exhibits, and that's it. Anything, any gossip you might have heard around town, anything you might have seen on TV on the news or any other program on TV, anything you might have read in the newspaper, is not evidence. Put it out of your mind. Only concentrate on the evidence that was given at this trial.
…
These sorts of trials - in fact what I'm going to say really applies to all criminal trials, but particularly where somebody is injured and you have photographs of the injuries it is natural for you to feel a degree of sympathy for the person who was injured, particularly you may think for Mr Marklew who suffered severe injuries as a result of the assault on him. These feelings of sympathy are natural, all of us have them, and they just spring to mind without you even thinking about them, but sympathy plays no part in a criminal trial.
You don't base your verdict on sympathy, on feeling sorry for anybody; whether it is Mr Marklew, whether it is Mr Mallard doesn't matter. Feelings of sympathy are natural human feelings and it is okay to have them but not when you are a juror and you are considering whether a person is guilty or not guilty, so put any feelings of sympathy you may have out of your mind (ts 222).
In my opinion, these directions were adequate to ensure a fair trial. They protected Mr Mallard from any prejudice that may have arisen as a result of any members of the jury having seen the photographs published by WIN Television in its news bulletin. There is no reason to doubt that the jury would have acted faithfully in accordance with her Honour's directions. Further, although the photographs in question were graphic, they could not reasonably be described as gruesome or shocking to an adult of ordinary robustness. There is no reason to suppose that any members of the jury who had seen the photographs would have experienced any difficulty in disregarding them. In addition, there was substantial oral evidence before the jury (admitted without objection) as to the nature and extent of the injuries suffered by Mr Marklew, the manner in which the injuries were inflicted, and Mr Marklew's appearance shortly after Mr Mallard had finished assaulting him. See ts 120 ‑ 123, 135 ‑ 136, 200 ‑ 202. That evidence was likely to have produced a mental image for the jury of Mr Marklew's physical condition at the material time. I doubt that any such mental image would have been materially different from the images captured in the photographs.
The learned judge's decision, in the exercise of her discretion to refuse to discharge the jury, was not vitiated by any material error, and her decision did not occasion a miscarriage of justice. Ground 1 fails.
Appeal against conviction: ground 2
Evidence was given by three prosecution witnesses (Paul Anthony Dixon, Mr Lowe and Kayleen Susan Oakley) as to the identity of the person who assaulted Mr Lowe.
Mr Dixon was the owner and licensee of the Sandhurst Tavern. During his evidence, he referred to Mr Mallard from time to time by his nicknames 'Sunsun' and 'Ice Cream'. Mr Dixon's evidence‑in‑chief in relation to the identity of the person who struck Mr Lowe was this:
At about the same time Mr Lowe was coming out of the carpark area and into a gap and then I saw Ice Cream come from the - from his left as he's walking to me and hit him in the head.
How did he do that?‑‑‑With a fist, yeah.
…
After you saw Mr Mallard punch Mr Lowe, did you notice anything about Mr Lowe's appearance?‑‑‑He was dazed.
Where did you go to next?‑‑‑After that, Mr Lowe and myself started back towards the entrance of the tavern and we got to the drive‑through bit.
…
Okay?‑‑‑So we were out the front of the drive‑through and Ice Cream approached me and, you know, was obviously pretty aggressive. There was probably 15 or 20 other Aboriginal people around. We were just backing back. Ice Cream came forward and struck me on the left cheek.
What did he do that with?‑‑‑His fist.
Okay?‑‑‑Yeah. I just said to him, 'What are you doing Ice Cream?' He just was replying, 'I'm gonna kill ya, I'm gonna kill ya.' About that time, Les Cook picked up a long stick that was probably about a metre long, 40 millimetres round and it was round, pretty light in colour. He was yelling and waving the stick. I was pretty apprehensive at that stage and I didn't know where Mr Lowe was, he had gone. At about the same time, a person came from my left side and struck me again and then Ice Cream struck me again in the left side again. I was just saying to him - walking back saying, 'Settle down, settle down.' As I was walking back or getting back to the entrance of the Tavern, I saw the police car rock up or attend.
Mm'hm?‑‑‑In the headlights of the police car, I could see Mr Lowe struggling or wrestling with another Aboriginal gentleman. Then the police got out of the car and were appearing to try and settle everything down. A little bit after that, the lights came back on. So we have got floodlights in the carpark there.
Yes?‑‑‑People started to disperse then (ts 70 ‑ 71).
During cross‑examination, Mr Mallard's trial counsel suggested to Mr Dixon that he could not be sure it was Mr Mallard who had hit Mr Lowe. Mr Dixon rejected this suggestion. He said he had no doubt that it was Mr Mallard (ts 84). The cross‑examination on this issue was, relevantly, as follows:
When you saw Mr Lowe get punched, Mr Lowe was in front of you also?‑‑‑From me to you away.
So about four, five metres maybe?‑‑‑Yep.
The only source of light at the time was ?‑‑‑Headlights.
…
When you saw Mr Lowe get punched ?‑‑‑Yep.
The person who punched Mr Lowe came in from Mr Lowe's left?‑‑‑Yep.
…
You have described a person called Les Cook. Did you see Les Cook involved in an altercation with Mr Lowe at all?‑‑‑No, no.
Did you recognise the person who was involved in the wrestling with Mr Lowe?‑‑‑No, I hadn't.
Could you describe that person at all?‑‑‑No.
Did you know if it was more than one person---I saw Mr Lowe wrestling with a person.
…
When you saw Mr Lowe get punched he didn't fall to the ground or anything like that from the punch?‑‑‑No, no.
…
Was the person who hit Mr Lowe running?‑‑‑Yes, he was.
He was running?‑‑‑Yes, he was.
He was running across or towards you?‑‑‑He wasn't running towards me. He was running towards Mr Lowe.
…
After you saw Mr Mallard hit Mr Lowe, where did Mr Mallard go?‑‑‑He hit him and then moved off.
In the same direction that he was already running?‑‑‑That's right.
So he would only have been in your field of vision for a few seconds?‑‑‑A couple of seconds.
The next time you saw him was when he was punching you?‑‑‑Confronting me.
Confronting you?‑‑‑Yeah.
Were you throwing punches at him as well?‑‑‑No.
I put it to you that given the poor light and only catching a glimpse of him for a couple of seconds, you couldn't be sure that it was Mr Mallard who hit Mr Lowe?‑‑‑I've no doubt it was Mr Mallard that hit Mr Lowe.
But it definitely wasn't Mr Mallard who was then wrestling with Mr Lowe afterwards.
O'BRIEN DCJ: I missed that.
ARNDT, MR: It was definitely not Mr Mallard who was wrestling with Mr Lowe?‑‑‑I don't know who Mr Lowe was wrestling with. It may have been Mr Mallard; it may not.
How long did you see that wrestling for?‑‑‑Same, a couple of seconds, and that was a fair way away. That was probably 25 metres away (ts 78, 79, 80, 84).
In re‑examination, Mr Dixon confirmed that the wrestling incident between Mr Lowe and another person occurred after he had seen Mr Mallard hit Mr Lowe (ts 85).
Mr Lowe described, in evidence‑in‑chief, a wrestling incident with Les Cook (Mr Mallard's uncle) and the incident in which Mr Lowe said he was struck by Mr Mallard:
Where did you head to?‑‑‑I sort of headed straight out into the carpark and I suppose I was heading towards the light. A person I know as Les Cook basically jumped into my path and shoved me as hard as he could in the chest. It sort of took the wind out of me and made me stop, basically.
Did you say anything to Mr Cook?---Not at that stage. He sort of took hold of me and then he started saying things to me like, 'Just let them have a fair fight. Just let them have a fair fight.' At that stage I didn't really know what he was talking about. Then I sort of looked to my left. That's when I saw the accused standing over Constable Marklew.
What was Mr Mallard doing, if anything?‑‑‑He had in his hands a large piece of what I'd call either a long baseball bat or an axe handle, something like that, and he was basically striking Constable Marklew around the head area and the face, the top of the head, repeatedly, just again and again.
What did you do?‑‑‑I just tried to get away from Cook. I sort of wrestled with him and he just kept saying, 'Let them have a fair fight,' and I just said, 'How is that a fair fight? He's got a bat.' Eventually I was able to break free and I sort of ran over as quick as I could and at that stage I saw Constable Looby. She was trying to pull Mallard away from Constable Marklew. I sort of jumped in between her and Constable Marklew and I sort of got Mallard out of the way. I don't know if I bumped him or pushed him, but I sort of moved him away from both of them.
Did you see what Mr Mallard did then?‑‑‑I sort of looked to my left and tried to look for Jeremy and Alison and then I saw they were there, and then I looked to my right and Mallard was gone. It was like he just run off into the crowd. Then I looked back to my left to make sure Jeremy and Alison were okay and they were gone at that stage.
What did you do next?‑‑‑I just kept looking for them and then all of a sudden from my right hand side I felt someone strike me with a fist. It got me just above my right eye and just on the bridge of my nose. It was a pretty hard hit. I felt quite a lot of blood come out of my forehead and my nose and I immediately looked to my right and the accused was standing there looking at me, basically pulling his right hand down, still shaping up. He was only a metre away. He was pretty well lit up because there was a car with headlights basically pointing directly at us.
What happened next?‑‑‑He sort of stepped back, sort of backing away from me, and because I couldn't see where Constable Marklew or Constable Looby were I sort of disregarded them and I went after Mallard (ts 135 ‑ 136).
During cross‑examination of Mr Lowe, the following relevant evidence was elicited:
You didn't see the person who struck you before being struck, immediately before?‑‑‑I turned basically as soon as he hit me and the accused was standing right there, shaping up to me.
Did blood start to pour from your injury as soon as you were struck?‑‑‑I could feel it on my face around my mouth, because it came out of my nose. It was warm. It didn't really come out of the top there until afterwards. I could clearly see what was happening.
So there wasn't blood in your eyes?‑‑‑No, there was no blood in my eyes.
When you saw Mr Mallard after being hit in the head, he wasn't armed at all?‑‑‑No, he just had his fists up.
Did you come to be wrestling with anyone that evening?‑‑‑Mr Cook first, and later on in the evening the police car arrived - I was spat on by someone else and I arrested him and he wrestled for a short period and then I put him in the police van.
…
Do you know where Les Cook was when you were struck in the face?‑‑‑He would have been back behind me to my right where I had left him.
O'BRIEN DCJ: Well, did you see him? Don't make any assumptions or ?‑‑‑No, he was seven or eight metres away.
ARNDT, MR: So seven or eight metres away from where - the last time you saw him before you got hit in the head?‑‑‑Yeah.
He was seven or eight metres from the place you were when you got hit in the head. Is that right?‑‑‑I saw him about a second before I got hit, and he was seven or eight metres away (ts 144 ‑ 146).
The prosecutor did not re‑examine Mr Lowe.
On the evening in question, Ms Oakley, a youth worker, drove her cousins to the Sandhurst Tavern. Ms Oakley's cousins entered the tavern, but she remained in her motor vehicle in the car park. She gave evidence‑in‑chief to the effect that she saw Mr Mallard holding an axe handle or a long piece of wood (ts 167), that he appeared to her to be angry (ts 166 ‑ 167), that he was 'very agitated' and 'like a madman' (ts 170) and that she saw him strike Mr Marklew with the axe handle or long piece of wood (ts 171 ‑ 172). Ms Oakley also gave this evidence in relation to count 4 (the alleged assault on Mr Lowe):
What were they?‑‑‑I seen Jay Lowe, Jayden Lowe.
Yes?‑‑‑He was running too to help Jeremy [Marklew].
O'BRIEN DCJ: What was he doing?‑‑‑He was running to help Jeremy.
BOOTS, MS: Did he get to Jeremy?‑‑‑No, he was stopped.
Why was that?‑‑‑Because Les Cook hit him.
What happened after Les Cook hit Jayden Lowe?
O'BRIEN DCJ: How did he hit him?‑‑‑Hit him with his fist.
And whereabouts?‑‑‑In the face.
Did you see exactly where?‑‑‑Yep.
Whereabouts?‑‑‑On his face.
Yes, but did you see exactly where on the face?‑‑‑No, I just seen the head, yeah.
Okay?‑‑‑Punched him in the face but not exactly which side (ts 172 ‑ 173).
Ms Oakley did not say that she had seen Mr Lowe being struck by anyone else. In particular, she did not say that she had seen Mr Mallard strike Mr Lowe. Unsurprisingly, Ms Oakley was not cross‑examined on this point.
Appeal against conviction: ground 2: the prosecutor's closing address to the jury
The prosecutor submitted, in her closing address to the jury, that Ms Oakley was mistaken in her evidence that she had seen Les Cook punch Mr Lowe in the face. She suggested that, in fact, Les Cook pushed Mr Lowe very forcefully in the chest, as described by Mr Lowe in his evidence, and that it was Mr Mallard (and not Les Cook) who had struck Mr Lowe.
It was not part of the State's case or Mr Mallard's case at trial that Mr Lowe had been struck more than once in the face.
Appeal against conviction: ground 2: Mr Mallard's submissions
Counsel for Mr Mallard submitted that it was not open to the prosecutor to submit that Ms Oakley was mistaken in her evidence. No such suggestion was put to her by the prosecutor or Mr Mallard's trial counsel, and no application was made to declare Ms Oakley a hostile witness.
It was submitted that 'a reasonable jury could not have been satisfied beyond a reasonable doubt that it was [Mr Mallard] who [had] assaulted [Mr] Lowe', given:
(a)the direct inconsistency between the accounts of Mr Dixon and Mr Lowe as to the direction from which Mr Lowe's assailant had come and was travelling;
(b)the direct inconsistency between the evidence of Mr Dixon and Mr Lowe as to what Mr Mallard did immediately after Mr Lowe was struck. If the jury accepted Mr Lowe's evidence that he observed Mr Mallard standing about one metre away from him 'shaping up', then the person observed by Mr Dixon to have struck Mr Lowe and moved away must not have been Mr Mallard; and
(c)the unchallenged evidence of Ms Oakley that the person who assaulted Mr Lowe was Les Cook.
It will then be necessary to consider the minimum custodial period of the head sentence calculated provisionally as set out in [244] above, and also the minimum custodial periods of fixed terms imposed for any comparable offences and under any relevant sentencing patterns, both before and after 31 August 2003. For the purposes of comparison, the minimum custodial period of a fixed term imposed while the transitional provisions were in force will be the minimum custodial period after the one‑third reduction in the head sentence. Similarly, for comparison purposes, in considering the minimum custodial period of a fixed term imposed before 31 August 2003, account must be taken of the fact that there was a one‑third remission of the head sentence pursuant to the legislative scheme for remission which was then in force.
The sentencing judge must endeavour, on the basis of all the relevant facts and circumstances of the particular offence and offender and the relevant statutory and common law sentencing principles, to arrive finally at a head sentence (with or without a parole eligibility order, as appropriate) which is commensurate with the seriousness of the offence and gives recognition to the evident Parliamentary intention that there should, in general, be some increase in the length of sentences where fixed terms of imprisonment are to be imposed. See [238] ‑ [239] above. But any increase in a particular case must not be so great as to produce a result which is, in the particular circumstances, unjust after having regard to the minimum custodial term that the offender would have to serve, and the minimum custodial terms imposed for any comparable offences or under any relevant sentencing range (whether before or after 31 August 2003).
No doubt, new sentencing ranges and patterns will gradually emerge.
As to the fourth issue, it follows, in my opinion, from my analysis of the second and third issues, that a sentencing judge is bound, in every case, to have regard to minimum custodial periods imposed for any comparable offences or under any relevant sentencing range, whether before or after 31 August 2003, in finally arriving at the head sentence to be imposed when he or she proposes to sentence an offender to a fixed term of imprisonment (with or without parole).
The necessity for a sentencing judge to have regard to minimum custodial periods is underscored by the different effect on the length of head sentences and minimum custodial periods if, for example, all head sentences generally, or all head sentences for particular classes of offending, imposed after 14 January 2009 had been increased by 50% as a result of the abolition of the one‑third reduction under cl 2(1). Under this scenario, the length of the head sentences would have been increased by 50%. However, an increase in the length of the head sentences by 50% would have resulted in the minimum custodial periods being increased, in most cases, by more than 50% and, in some cases, by 100%. This difference would have arisen because the period for which an offender may be on parole cannot exceed 2 years. See s 93(1) of the Sentencing Act which provides that, subject to s 94, a prisoner serving a parole term is eligible to be released on parole:
(a)if the term served is 4 years or less ‑ when he or she has served one‑half of the term; or
(b)if the term served is more than 4 years ‑ when he or she has served 2 years less than the term.
For example, a head sentence of 4 years under the transitional provisions (having been reduced by one‑third from 6 years), with a parole eligibility order, required the offender to serve 2 years in custody before becoming eligible for release on parole. If the head sentence of 4 years were to be increased to 6 years (a 50% increase) with parole, the offender would be required to serve 4 years in custody (an increase of 100%) before becoming eligible for release on parole. By way of further example, a head sentence of 8 years under the transitional provisions (having been reduced by one‑third from 12 years) with a parole eligibility order required the offender to serve 6 years in custody before becoming eligible for release on parole. If the head sentence of 8 years were to be increased to 12 years (a 50% increase) with parole, the offender would be required to serve 10 years in custody (an increase of 66.6%) before becoming eligible for release on parole.
Section 93(1) of the Sentencing Act, in its current form, was inserted by the 2003 Sentencing Amendment Act. Like the transitional provisions, it came into operation on 31 August 2003. The previous s 93(1), in combination with the legislative scheme for remission, was not different in effect from the current s 93(1).
The approach to sentencing adopted by Howie J in Studenikin is not, with respect, apposite to sentencing in accordance with the 2008 Sentencing Amendment Act. The statutory text considered in Studenikin is materially different from the Western Australian provisions.
The proper approach to sentencing in accordance with the 2008 Sentencing Amendment Act
The proper approach to sentencing an offender to a fixed term of imprisonment for an offence, in accordance with the 2008 Sentencing Amendment Act, is as I have explained at [244] ‑ [246] above.
Any increase in the sentencing ranges for offences will not be confined to the circumstance where an offender is sentenced to a fixed term of imprisonment for a single offence. It will necessarily be reflected in the imposition of fixed terms of imprisonment on offenders who commit multiple offences as a result of the conventional application of the 'one transaction' rule and the totality principle.
The re‑sentencing of Mr Mallard: s 10 of the Sentencing Act
In my opinion, s 10 of the Sentencing Act does not apply to the re‑sentencing of Mr Mallard by this court. Section 10 provides that if the statutory penalty for an offence changes between the time when the offender committed it and the time when the offender is sentenced for it, the lesser statutory penalty applies for the purposes of sentencing the offender. By s 4(1), the term 'statutory penalty' is defined, in relation to an offence, to mean the penalty specified by a written law for the offence. The 2008 Sentencing Amendment Act did not change the 'statutory penalty' for the offence created by s 304(2) of the Criminal Code or the offence created by s 317(1) of the Criminal Code. At all material times, the offence created by s 304(2) has carried a statutory penalty of imprisonment for 20 years and the particular offence committed by Mr Mallard against s 317(1) has carried a statutory penalty of 5 years' imprisonment. The 2008 Sentencing Amendment Act abolished the one‑third reduction under cl 2(1) but did not increase the 'statutory penalty', as defined in s 4(1) of the Sentencing Act, for the offences in question.
The re‑sentencing of Mr Mallard: this court's sentencing decision
The sentences imposed by the learned judge (including the order that the sentences be served concurrently) should be set aside.
The head sentence for count 1 must be commensurate with the seriousness of the offence; reflect the predominant sentencing considerations of punishment, personal deterrence and general deterrence; recognise that the offence is in the worst category of cases where a person, with intent to unlawfully cause bodily harm to any person, does any act as a result of which bodily harm is caused to that person, within s 304(2) and (3); reflect Mr Mallard's apparent failure to accept real responsibility for, or show genuine remorse, to any material extent (although he did, as I have mentioned, facilitate the trial process by making some admissions of fact); and accord some, but limited, weight to the mitigatory factors (namely, his rehabilitation during his most recent term of imprisonment and his family circumstances).
As I have mentioned, there is no 'tariff' or usual sentencing range for offences against s 304(2). The circumstances of the offending in Wallam, Yates and Redman are not relevantly comparable to the circumstances of Mr Mallard's offending.
My provisional view, before turning to cl 3A(3), is that a head sentence of 8 years' immediate imprisonment for count 1 would reflect the considerations I have summarised at [256] above.
A head sentence of 8 years for count 1, with a parole eligibility order, would require Mr Mallard to serve 6 years in custody before becoming eligible for release on parole. Although there is no 'tariff' or usual sentencing range for offences against s 304(2), and the sentencing dispositions in Wallam, Yates and Redman are not relevantly comparable, I consider that, after having regard to the period in custody that Mr Mallard would have to serve before becoming eligible for parole, a just sentencing outcome, in the present case, requires some reduction in the provisional head sentence for count 1.
After taking into account cl 3A (in particular, cl 3A(3) and (4)) and the circumstances of the offence and Mr Mallard, including aggravating and mitigating features, I would impose a term of immediate imprisonment of 7 years for count 1.
In my opinion, a total effective head sentence of 7 years and 6 months' immediate imprisonment is required properly to reflect the overall criminality involved in counts 1 and 4. I would achieve that result by reducing the sentence on count 4 from 1 year to 6 months, and ordering the sentence on count 4 to be served cumulatively on count 1.
Like the learned judge, I would order that the sentence on count 1 commence on 22 February 2008. A parole eligibility order should be made.
Outcome of the appeals
I would refuse Mr Mallard's application for leave to appeal against conviction on ground 2, and order that his appeal be dismissed.
I would allow the State's appeal against sentence, quash the sentences imposed by the learned judge, and substitute for them sentences as follows:
(a)count 1: 7 years' immediate imprisonment;
(b)count 4: 6 months' immediate imprisonment.
The sentence for count 4 is to be served cumulatively on the sentence for count 1. The sentence for count 1 is to commence on 22 February 2008. The total effective sentence is therefore 7 years and 6 months' immediate imprisonment. Mr Mallard is to be eligible for parole. He must serve 5 years and 6 months' imprisonment, calculated from 22 February 2008, before he becomes eligible to be considered for release on parole.
Postscript: the reasons of Owen, Wheeler and Pullin JJA in relation to the 2008 Sentencing Amendment Act and the survival, in substance, of 'truth in sentencing'
Since I have written the reasons set out above, I have received and read the proposed reasons for judgment of Wheeler and Pullin JJA, with whom Owen JA agrees. Also, I have received and read the proposed reasons of Miller JA, who agrees with me.
Although Owen, Wheeler and Pullin JJA agree with me and Miller JA that the State's appeal against sentence should be allowed, the sentences imposed by the learned judge should be set aside, and Mr Mallard should be re‑sentenced by this court, this unanimity must not obscure the fundamental disagreement between Owen, Wheeler and Pullin JJA on the one hand, and Miller JA and I on the other, in relation to the important issue of principle in this appeal, namely, the proper construction, effect and application of the 2008 Sentencing Amendment Act.
Owen, Wheeler and Pullin JJA have held that:
(a)in the 'worst category' of cases, the 2008 Sentencing Amendment Act permits a sentencing judge to impose a sentence at, or close to, the maximum term available, without adjustment to ensure comparability of minimum custodial period (but, significantly, have not held that, in the 'worst category' of cases, the Amendment Act requires the sentencing judge to impose a sentence at or close to the maximum term);
(b)however, in all other cases (that is, in every case which is not within the 'worst category'), a sentencing judge must impose a sentence which will ensure consistency between the minimum custodial period to be served by the offender in question and the minimum custodial period that would have been served under the 'truth in sentencing' legislation embodied in the 2003 Sentencing Amendment Act or under the preceding sentencing legislation with the virtually automatic legislative scheme for remission.
On the reasoning and conclusions of Owen, Wheeler and Pullin JJA, the 2008 Sentencing Amendment Act does not require, and will not result in, any increase in the length of fixed terms of imprisonment for any offenders or offences, with the exception that where an offender has committed an offence in the 'worst category', the sentencing judge is now permitted to impose a sentence at, or close to, the maximum term. Their Honours merely acknowledge the possibility 'in the very long term' of 'a degree of increase in the length of sentences overall' as a consequence of the 2008 Sentencing Amendment Act.
Accordingly, even though s 3 of the 2008 Sentencing Amendment Act expressly repealed the 'truth in sentencing' legislation by deleting cl 2 of sch 1 to the 2003 Sentencing Amendment Act and cl 3A(4) expressly empowers a sentencing judge to impose a penalty up to the maximum penalty for an offence, Owen, Wheeler and Pullin JJA have ascribed to the Parliament an intention that the sentencing patterns (in particular, the length of sentences) established under the 'truth in sentencing' legislation are to continue and be applied where a sentencing judge is to impose a fixed term of imprisonment, with the exception that where the offending is in the 'worst category', the sentencing judge now has the discretionary power to impose a sentence at, or close to, the maximum term.
Criminal cases which fall within the 'worst category', for sentencing purposes, are rare. The approach mandated by Owen, Wheeler and Pullin JJA in relation to the sentencing patterns (in particular, the length of sentences) established under the 'truth in sentencing' legislation will therefore apply in the vast majority of cases.
The determination of the proper construction, effect and application of the 2008 Sentencing Amendment Act requires careful analysis, but the provisions are neither ambiguous nor obscure. In my opinion, and with respect to those who think differently, I am unable to accept that the Parliament can have intended that the sentencing patterns (in particular, the length of sentences) established under the 'truth in sentencing' legislation should continue to apply in the vast majority of cases. The existence of such an intention, notwithstanding the express repeal of the 'truth in sentencing' legislation combined with the empowering of a sentencing judge to impose the maximum penalty for an offence or any penalty below the maximum, would be remarkable, if not perverse.
In my respectful opinion, Owen, Wheeler and Pullin JJA have placed undue emphasis on the Parker Report (1979), the Dixon Report (1981) and the Hammond Report (1998), academic writings and the principle against unjustifiable disparity or in favour of consistency in sentencing. They have, with respect, placed insufficient emphasis on the critical source material, namely the statutory text of the 2008 Sentencing Amendment Act including cl 3A (which, of course, has primacy), and have given inadequate weight to the statutory sentencing principles set out in s 6(1) and (2) of the Sentencing Act and the well‑established sentencing principle that the length of sentences increases by degree across the spectrum and commensurately with the seriousness of offences and offending.
In the present case, Owen, Wheeler and Pullin JJA have decided that Mr Mallard's offending against Mr Marklew was a 'serious case', but not in the 'worst category' of offences against s 304(2). By deciding that Mr Mallard should be re‑sentenced on count 1 (that is, the offence against s 304(2)) to 6 years' immediate imprisonment, Owen, Wheeler and Pullin JJA must necessarily be of the view that this would have been an appropriate sentence under the 'truth in sentencing' legislation. They have referred to Byfield v The Queen [2002] WASCA 260; (2002) 133 A Crim R 307 and McMaster v The Queen [2004] WASCA 52; (2004) 144 A Crim R 428 as 'perhaps the closest' comparable cases. However, in my respectful opinion, these cases are distinguishable.
In Byfield, the appellant was convicted of attempted murder. He was sentenced to imprisonment for 12 years, reduced from 16 years on account of his plea of guilty at the earliest opportunity. A parole eligibility order was made. The 12‑year sentence was equivalent to a sentence of 8 years' imprisonment under the 'truth in sentencing' legislation. The minimum custodial period he was required to serve was 6 years. The salient facts of the offending were these. The appellant and an accomplice saw the victim at an oval. They went to the appellant's house and obtained a piece of wood similar to an axe handle. They returned to the oval with the intention of assaulting the victim as retaliation for an alleged earlier incident. The appellant and his accomplice stopped their motor vehicle in front of the victim. They alighted and the accomplice struck the victim on the head with the piece of wood. He fell to the ground unconscious. The accomplice then struck the victim again with the piece of wood. One of these blows caused the victim to suffer a fractured skull. The appellant and his accomplice returned to their vehicle. The accomplice then deliberately drove the vehicle over the victim who was lying unconscious on the ground. This action fractured the victim's legs. The accomplice then drove the vehicle a short distance and there was a discussion between the two offenders. They decided to return to the oval to make sure the victim was dead. On their return, the victim was lying on the ground, not moving and discharging a large amount of blood. The accomplice then deliberately drove over the victim again at a speed of about 60 km per hour. The appellant and the accomplice left the area without taking any steps to seek assistance for the victim. The victim was extremely fortunate to have survived. He was in a coma at the Royal Perth Hospital for two months on life support. He underwent surgical repair for his severe and extensive injuries. Three months after the incident, the victim's left arm remained moderately weakened and reduced in function. He displayed significant residual cognitive impairments affecting his concentration span, short‑term memory, judgment and insight. The victim was left with a significant cosmetic disfigurement due to his extensive facial fractures. He had limited movements of his right eye due to multiple cranial nerve lesions. The appellant's application for leave to appeal against sentence was dismissed. On any view, the offending in Byfield was significantly more serious than Mr Mallard's offending against Mr Marklew. In Byfield, the appellant intended to kill the victim, the maximum penalty for attempted murder is life imprisonment and the victim suffered massive injuries, which required hospitalisation for some months, and he was left with serious residual disabilities. By contrast, Mr Mallard intended 'merely' to cause Mr Marklew bodily harm, the maximum penalty for an offence against s 304(2) is 20 years' imprisonment and the injuries caused to Mr Marklew were materially less serious than those caused to the victim in Byfield. The offending in Byfield was, unquestionably, substantially more serious and the offender in that case deserved a much longer sentence.
In McMaster, the appellant was convicted, after a trial, of two counts of unlawfully doing grievous bodily harm to another with intent to do so. He had been acquitted of two counts of attempted murder. After an argument and some pushing and shoving between the appellant and some of his friends on the one hand, and the two victims on the other, in a night club, the appellant pulled out a concealed, loaded 22‑calibre semi‑automatic hand gun, deliberately pointed it at the victims and fired at them no less than five times. Two of the bullets hit the victims. One was shot in the right lower abdomen. The other was shot in the upper abdomen region just below his chest. The appellant was no more than 2 or 3 metres from the victims when he shot at them. The other shots
were intended to hit them. The fact that each was hit only once was attributable to the handgun being notoriously inaccurate even at close range. A young lady in the vicinity was struck in the neck by a small bullet fragment. Each of the victims could have died from their wounds if they had not been given medical treatment. The appellant was sentenced to 7 years' imprisonment for each offence. The sentences were equivalent to 4 years and 8 months under the 'truth in sentencing' legislation. The sentencing judge partly accumulated the two sentences to make a total of 9 years' imprisonment, which was equivalent to 6 years under the 'truth in sentencing' legislation. A parole eligibility order was made. Accordingly, the minimum custodial period required to be served by the appellant in respect of the total effective sentence imposed for both offences was 4 years. The offending in McMaster was more serious than the offending in the present case in that the offender in McMaster caused, and intended to cause, grievous bodily harm to the two victims, whereas Mr Mallard caused and intended to cause 'merely' bodily harm to Mr Marklew. The minimum custodial period required to be served by the appellant in McMaster (4 years) was less than the minimum custodial period which Miller JA and I would impose on Mr Mallard in relation to the offence against Mr Marklew (5 years), but identical to the minimum custodial period that Owen, Wheeler and Pullin JJA have decided to impose on that count.
As I have mentioned, Owen, Wheeler and Pullin JJA have decided that Mr Mallard's offending, while 'serious', was not in the 'worst category' of cases. On their reasoning and conclusions in relation to the proper construction, effect and application of the 2008 Sentencing Amendment Act, Owen, Wheeler and Pullin JJA must therefore have re‑sentenced him on the basis of the sentencing principles applicable under the 'truth in sentencing' legislation.
In the circumstances, it appears to me, with respect, that, on the basis of such reasoning and conclusions, the sentence for count 1 and the total effective head sentence which Owen, Wheeler and Pullin JJA would impose are a little excessive. The 'truth in sentencing' legislation would have produced a sentence for count 1 in the order of 5 years and 4 months and a total effective head sentence in the order of 5 years and 10 months.
MILLER JA: I have had the opportunity of reading in draft the comprehensive judgment of Buss JA. I agree with that judgment in every respect, including (a) the proposed substitution of an effective sentence of 7 1/2 years' immediate imprisonment with eligibility for parole, and (b)
the approach to sentencing in accordance with the 2008 Sentencing Amendment Act.
I have had the opportunity of reading in draft the judgment of Wheeler and Pullin JJA, with which Owen JA agrees. I regret that I am in fundamental disagreement with Owen, Wheeler and Pullin JJA's view of the effect of the 2008 Sentencing Amendment Act. For the reasons that Buss JA has given, I consider that the proper approach to sentencing in accordance with that Act is that set out at [244] ‑ [246].
Has 'truth in sentencing' been abolished?
The view of Owen, Wheeler and Pullin JJA seems to me to perpetuate the myth of 'truth in sentencing' which the 2008 Sentencing Amendment Act was intended to dispel. The practical result of their Honours' approach is that in all but cases that fall into the worst category, the approach to sentencing which existed prior to the enactment of the 2008 Sentencing Amendment Act is likely to prevail. Sentences will continue to be artificially low in all but the worst cases. There will also be a substantial (and, in my view, unacceptable) gap between sentences imposed in all but the worst category of cases and those imposed in the worst category. There will effectively be two sentencing regimes: one for the majority of cases and one for those which fall into the worst category. In my opinion, Parliament did not intend that this gap in sentencing would result. It is contrary to the principles of sentencing which generally result in a gradual increase in sentencing reflecting the relevant seriousness of offences and the circumstances of offending and offenders across the sentencing spectrum (see Buss JA at [239]). Parliament could not have contemplated a 'substantial and abrupt increase' in sentences for offences classified within the worst category rather than a gradual increase in sentencing.
Appendix 1
Appendix 2
| 'Old regime' pre 31 August 2003 | Post 31 August 2003, without reduction by transitional provisions | |||
| Appropriate sentence determined by the court (in years) | Maximum head sentence served (two‑thirds of head sentence s 95) | Minimum non‑parole period s 93 | Maximum head sentence served | Minimum non‑parole period s 93 |
| 1 | 8 months | 4 months | 1 year | 6 months |
| 2 | 1 year 4 months | 8 months | 2 years | 1 year |
| 3 | 2 years | 1 year | 3 years | 1 year 6 months |
| 4 | 2 year 8 months | 1 year 4 months | 4 years | 2 years |
| 5 | 3 years 4 months | 1 year 8 months | 5 years | 3 years |
| 10 | 6 years 8 months | 4 years 8 months | 10 years | 8 years |
| 15 | 10 years | 8 years | 15 years | 13 years |
| 20 | 13 years 4 months | 11 years 4 months | 20 years | 18 years |
124
31
9