The State of Western Australia v Cronin

[2020] WASCA 203

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CRONIN [2020] WASCA 203

CORAM:   QUINLAN CJ

BUSS P

MITCHELL JA

HEARD:   13 NOVEMBER 2020

DELIVERED          :   7 DECEMBER 2020

FILE NO/S:   CACR 62 of 2020

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

AIDEN BRADLEY CRONIN

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   SWEENEY DCJ

File Number            :   IND 2267 of 2019

Catchwords:

State appeal against sentence - Respondent sentenced to 2 years 8 months' immediate imprisonment for grievous bodily harm in circumstances of aggravation - Whether sentence manifestly inadequate

Legislation:

Criminal Code (WA), s 172, s 297, s 444(1)(b)

Result:

Appeal allowed
Respondent resentenced

Category:    D

Representation:

Counsel:

Appellant	:	A L Forrester SC
Respondent	:	B Standish

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Bernard Standish

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

Allen v The State of Western Australia [2017] WASCA 203

Bowe v The State of Western Australia [2017] WASCA 166

Cotterill v The State of Western Australia [2013] WASCA 52

Gurgone v The State of Western Australia [2016] WASCA 9

Hansen v The State of Western Australia [2019] WASCA 170

The State of Western Australia v BKJ [2018] WASCA 136

The State of Western Australia v Ellement [2016] WASCA 1

The State of Western Australia v Ghilardi [2015] WASCA 61

The State of Western Australia v Smith [2016] WASCA 153

The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308

The State of Western Australia v TLP [2019] WASCA 66

Trompler v The State of Western Australia [2008] WASCA 265

Winmar v The State of Western Australia [2016] WASCA 62

JUDGMENT OF THE COURT:

Summary

1. On 15 April 2020, the respondent was convicted, on his pleas of guilty, of three counts in an indictment and sentenced to a total effective sentence of 3 years' imprisonment.  The sentence was backdated to 1 August 2019 to take account of time spent in custody on remand.  The respondent was made eligible for parole.  The individual offences, and the sentence the respondent received in respect of each offence, are outlined below:[1]

   [1] Sentencing ts 31.

Count	Offence	Max penalty	Penalty imposed	Cum/ conc
1	Wilfully and unlawfully damaged property (a wooden door). (Criminal Code (WA), s 444(1)(b))	10 years	4 months	Conc
2	Unlawfully did grievous bodily harm to the victim in circumstances of aggravation (being that the victim was of or over the age of 60 years). (Criminal Code, s 297(1), (3))	14 years	2 years 8 months	Head sentence
3	Obstructed a public officer in the performance of his functions. (Criminal Code, s 172)	3 years	4 months	Cum
Total effective sentence		3 years

1. The State now appeals against sentence on the sole ground that the individual sentence for count 2 was manifestly inadequate.  The State does not challenge the sentences imposed in respect of counts 1 and 3 on the indictment.  However, the State does contend that the sentence on count 3 should remain cumulative in the event that this court were to resentence the respondent in respect of count 2.

2. For the following reasons, the sentence imposed on the respondent on count 2 was unreasonable or plainly unjust.  The respondent should be resentenced to 4 years 10 months' immediate imprisonment on count 2, and the total effective sentence should be increased to 5 years 2 months' imprisonment. 

Circumstances of offending

1. The facts and circumstances of the offending, which were alleged by the State and accepted by the respondent at the sentencing hearing, are not in dispute.[2] 

Count 1

[2] Sentencing ts 22 - 23.

1. On 1 August 2019, the respondent was present at a unit in Ellenbrook.  He knew the occupants of the unit.  A disagreement occurred, and the respondent attempted to gain entry into the unit, without success.  The respondent grabbed the security screen door and bent the door from the bottom right-hand corner.  That conduct constituted the offending on count 1.[3]

Count 2

[3] Sentencing ts 8.

1. The conduct constituting count 2 occurred shortly thereafter.  The victim on count 2 was a 68-year-old man, who was walking through the common area of his address, a short distance from his residence.  The victim was shifting wheelie bins for his neighbours and offered the respondent no offence.  The respondent approached the victim and assaulted him.  The attack was entirely unprovoked.  The victim was struck four to five times to the head before being knocked to the ground.  During the assault the victim was lying on his stomach and the respondent straddled him.  The respondent bit off a large part of the victim's outer ear, and then placed both hands around the victim's neck and applied pressure.  The respondent choked the victim to the point where the victim believed he was about to die.[4] 

   [4] Sentencing ts 8 - 9, 23.

2. As a result of the attack, the victim suffered serious injuries, including a disfigurement.  His ear was partly amputated, and he also suffered knee abrasions, facial abrasions, facial bruising and swelling to the neck.  One of his eyes was swollen shut.  The wound to his ear placed him at risk of infection.  His breathing was audibly affected by the swelling to his throat, which was life endangering in itself.[5] 

   [5] Sentencing ts 23.

3. The respondent departed the area and was located by police a short distance away.  He was laying down in the sun when police approached him.[6]

Count 3

[6] Sentencing ts 9.

1. After the police arrived, the respondent's behaviour was erratic and violent.  He was sweating profusely and was highly agitated.  He had a bible on him and was talking about God, before he threw the bible away.  The respondent was on the road, refusing to listen to anyone trying to shift him from that position.  The respondent was abusive and began undressing himself.[7] 

   [7] Sentencing ts 23.

2. At one point the respondent turned away from the officers and performed a rear kick, striking one of the officers in the groin area.  That conduct caused the officer pain but no injury.  The respondent then went to the ground and started kicking his legs around in an effort to resist police detaining him.  The conduct in kicking the police officer and resisting arrest formed the basis of the obstruction offence charged in count 3.[8] 

   [8] Sentencing ts 23.

3. The respondent continued to act in an aggressive manner including by, at one point, attempting to head butt a wall.  Even once handcuffed he continued to resist.  Paramedics arrived and administered a sedative, but it had no effect on the respondent and he continued to resist arrest.  After four doses of the sedative were administered the respondent was finally subdued and taken to hospital.[9]

   [9] Sentencing ts 23 - 24.

4. The offending was carried out while the respondent was under the influence of drugs, and he was having a psychotic episode.  The respondent was taking methylamphetamine around the time he committed the offending.  The respondent appeared to be under the mistaken apprehension that the victim represented some sort of threat to him when, considered objectively, he plainly did not.[10] 

   [10] Sentencing ts 23.

Victim impact

1. The victim provided a victim impact statement which described the terror he felt during the offence, and the difficulty which he had in breathing while being strangled by the respondent.  The victim required hospitalisation and his voice was still hoarse seven months after the attack.  The victim also describes the anxiety and mistrust of others which he feels following the attack, and the self-consciousness which he feels about going out in public with part of his ear missing.  The victim is clearly traumatised and psychologically scarred by the respondent's offending.

Respondent's personal circumstances

1. The respondent was 30 years old at the time of sentencing, and 29 years old at the date of the offending.  He has a lengthy criminal record, which started when he was 14 years old, with a history of violence and property damage, including burglaries.  He is illiterate and has not been employed since he was a teenager.[11] 

   [11] Sentencing ts 24 - 25.

2. The respondent has a troubled family history.  His father died of a drug overdose before he was born.  His mother had a series of violent relationships where substance abuse was involved.  The respondent was largely raised by others, surrounded by drug and alcohol abuse and domestic violence.  He grew up with family and friends who committed offences.  The respondent had a sense that he grew up in a war and that he needed to be violent to survive.[12] 

   [12] Sentencing ts 25.

3. The respondent began using drugs at a young age, at first cannabis and then methylamphetamine.  Following the offending he took some steps toward rehabilitation by applying to a rehabilitation clinic in Geraldton.[13]

   [13] Sentencing ts 25.

4. The respondent has children that he rarely sees.  He does not have stable relationships.[14] 

   [14] Sentencing ts 25.

5. At the respondent's request, the sentencing judge did not obtain a psychiatric report.  A psychologist's report suggested that the respondent was suffering from mental health issues.  The psychologist suspected that the respondent was on the schizophrenia spectrum.[15]  The sentencing judge sentenced the respondent on the basis that there was an underlying mental health issue which was both drug related and drug exacerbated.[16]

   [15] Sentencing ts 26 - 27.

   [16] Sentencing ts 27.

6. The respondent has been in custody since his arrest on 1 August 2019.[17] 

   [17] Sentencing ts 30.

Sentencing judge's approach

1. The sentencing judge said that the offending the subject of count 2 was serious.  The victim had not provoked the attack, and was simply unlucky to have been present at the time he was targeted by the respondent.[18] 

   [18] Sentencing ts 23, 30.

2. The judge identified the following mitigating factors:[19]

   (1)The respondent pleaded guilty to the offences at the earliest reasonable opportunity. Although the case against the respondent was compelling, the judge allowed a 25% discount under s 9AA of the Sentencing Act 1995 (WA).

   (2)The respondent's deprived childhood, which exposed him to violence as well as alcohol and drug abuse. 

   (3)The respondent had some degree of remorse for his victim. 

   (4)The respondent has taken some steps towards rehabilitation. 

   [19] Sentencing ts 27 - 29.

3. The judge considered that the attack was sustained and vicious, leaving the victim in pain, severely swollen, bruised, very upset, and with serious injuries.  His ear will not heal.  The victim was psychologically damaged by the attack, having been left with a high degree of anxiety.[20]

   [20] Sentencing ts 29.

4. The judge formed the view, which was also submitted by both counsel at the sentencing hearing, that the offending on count 2 was in the 'mid-range' of seriousness.  Her Honour stated that it was not the most serious case of aggravated grievous bodily harm that she had seen, and noted that no weapon was used in the attack.[21]

   [21] Sentencing ts 29 - 30.

5. The judge then imposed the sentence referred to at [1] above.

Disposition of ground

General principles

1. The general principles applicable to a State appeal against sentence on grounds of manifest inadequacy are well established.  In The State of Western Australia v BKJ,[22] they were summarised in the following terms:

   In The State of Western Australia v Wilson [[2015] WASCA 119], we explained the general principles applicable to a State appeal against sentence.

   This court has no warrant to substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently:  Lowndes v The Queen [[1999] HCA 29; (1999) 195 CLR 665 [15]]. This court can only intervene if it is demonstrated that the court below made a material error, either express or implied. There are special principles applicable to prosecution appeals. They are well established and need not be repeated, bearing in mind that the principle of double jeopardy which applied to State appeals has now been abolished: s 41(4)(b) Criminal Appeals Act 2004 (WA). This court has a residual discretion under s 31 of the Criminal Appeals Act to decline to allow an appeal against a sentence that is erroneously lenient. 

   The grounds of appeal allege implied rather than express error.  Before an individual sentence can be said to be manifestly inadequate or the total effective sentence be found to infringe the totality principle, it must be established that the sentence is unreasonable or plainly unjust:  House v The King [[1936] HCA 40; (1936) 55 CLR 499] and Barbaro v The Queen [[2014] HCA 2; (2014) 253 CLR 58 [26]].

   The orthodox approach to the question of manifest inadequacy is to examine the sentence having regard to the maximum sentence for the offence, the gravity of the offending conduct in the scale of seriousness, sentences imposed in other appellate cases and the personal circumstances of the offender:  Chan v The Queen [(1989) 38 A Crim R 337, 342] and Munda v The State of Western Australia [[2013] HCA 38; (2013) 249 CLR 600 [33]].

   The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally:  Roffey v The State of Western Australia [[2007] WASCA 246 [24]].

   A relevant factor in the consideration of the appellant's grounds of appeal is the range of sentences imposed in comparable cases.  Such cases are a yardstick against which the sentences in question may be compared.  However, the range of sentences customarily imposed does not mark out the boundaries of the exercise of a sound sentencing discretion in an individual case.  In other words, the guidance that is afforded by comparable cases is flexible rather than rigid.  Ultimately, each case depends upon its own facts and circumstances. 

Maximum penalty

[22] The State of Western Australia v BKJ [2018] WASCA 136 [82] ‑ [87].

1. The maximum penalty for an offence of unlawfully doing grievous bodily harm in circumstances of aggravation, contrary to s 297(3) of the CriminalCode, is 14 years' imprisonment.  The relevant circumstance of aggravation was that the victim was of or over 60 years of age.

2. As Mazza  JA (McLure P and Buss JA agreeing) noted in The State of Western Australia v Ellement,[23] the clear legislative purpose of setting a higher maximum penalty for unlawfully doing grievous bodily harm to victims of or over the age of 60 years is to protect persons who, due to their age, are more vulnerable to harm by physical attack and less able to defend themselves.

Customary sentencing standards

[23] The State of Western Australia v Ellement [2016] WASCA 1 [47].

1. This court has considered the range of sentences imposed for the offence of unlawfully doing grievous bodily harm, absent circumstances of aggravation, in a number of cases.[24] 

   [24] See the discussion in The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308 [35] ‑ [39], adopted in The State of Western Australia v Smith [2016] WASCA 153 [38]; Allen v The State of Western Australia [2017] WASCA 203 [61].

2. Absent circumstances of aggravation, the maximum penalty for an offence against s 297(1) of the Criminal Code is 10 years' imprisonment. The primary sentencing considerations for an offence of unlawfully doing grievous bodily harm are personal and general deterrence. There is no single tariff for the crime of unlawfully doing grievous bodily harm contrary to s 297(1) of the Criminal Code.  However, as a matter of fact, the ordinary disposition is a sentence of immediate imprisonment.[25] 

   [25] Ellement [43]; Allen [61].

3. It has been noted on a number of occasions that the general range established in cases of unlawfully doing grievous bodily harm, without circumstances of aggravation, is between 8 months and 5 years 4 months' imprisonment, with relatively serious examples of that offence attracting sentences of 3 to 5 years.[26]  Cases involving the use of weapons often result in a sentence in the range of 3 to 5 years.[27] 

   [26] See, for example, Allen [61]; Winmar v The State of Western Australia [2016] WASCA 62 [66] ‑ [69]; Gurgone v The State of Western Australia [2016] WASCA 9 [38] and cases there cited.

   [27] See, for example, Bowe v The State of Western Australia [2017] WASCA 166; Winmar; Gurgone; Cotterill v The State of Western Australia [2013] WASCA 52; Taylor.

4. There are fewer decisions of this court considering the adequacy of sentences for the offence of unlawfully doing grievous bodily harm in circumstances of aggravation, where the maximum penalty is 14 years' imprisonment.

5. In Ellement, this court upheld a State appeal against sentence imposed for unlawfully doing grievous bodily harm in circumstances of aggravation, contrary to s 297(3) of the Criminal Code. In that case, the 25-year-old offender attacked his partner's mother, who was caring for her grandson at the time of the offending. The offender entered the victim's home to retrieve his partner's son in an angry and hostile mood and grabbed the victim's upper arms. He propelled the victim backwards, causing her to fall and sustain a fracture to her femur, which required a total hip replacement. The offender pleaded guilty shortly before trial, and was given a 10% discount under s 9AA of the Sentencing Act.  While the offender had a history of alcohol and illicit drug abuse, he had only a brief criminal history involving traffic and minor drug offences.  This court allowed the State's appeal against a suspended sentence of 18 months' imprisonment, substituting a sentence of immediate imprisonment.  The State did not seek to disturb the length of the sentence originally imposed.  While recognising that a sentence of 18 months' immediate imprisonment could be said to be lenient, the court imposed that sentence having regard to the State's position.[28]

   [28] Ellement [51].

6. In The State of Western Australia v TLP,[29] the 24‑year‑old offender attacked his 73-year-old grandmother in her bedroom, punching her repeatedly to the face and head, resulting in multiple injuries including bruising, lacerations and a fracture to the cheekbone. This offence against s 297(3) of the Criminal Code was a prelude to a series of sexual and other offences committed against the offender's half‑sister. The offender received a sentence of 3 years' immediate imprisonment for the s 297(3) offence on his plea of guilty (for which he received a 20% discount under s 9AA) as part of a total effective sentence of 6 years 6 months' imprisonment. A State appeal against those sentences was allowed, including on the ground that the sentence for the s 297(3) offence was manifestly inadequate. This court indicated that it would have substituted a sentence of 5 years' imprisonment for that offence, but reduced the sentence for totality in imposing a total effective sentence of 12 years' imprisonment.

   [29] The State of Western Australia v TLP [2019] WASCA 66.

7. The State also refers to the decision in Hansen v The State of Western Australia,[30] where, following a plea of guilty, 4 years' immediate imprisonment was imposed for an offence of unlawfully doing grievous bodily harm in circumstances of aggravation.  The 31‑year-old offender punched the 67-year-old victim once to the head, causing him to hit his head on the road.  Limited assistance is provided by that case however, as the individual sentence for the grievous bodily harm offence (imposed as part of a total effective sentence of 6 years 6 months' imprisonment) was not challenged on appeal.

   [30] Hansen v The State of Western Australia [2019] WASCA 170.

1. In an often cited passage in Trompler v The State of Western Australia,[31] Wheeler JA identified three matters which are generally of significance in assessing criminality involved in an offence of unlawfully doing grievous bodily harm:

   (1)The nature of the resulting harm (which may range from a permanent injury which the victim is able to accommodate, to a severe and life-threatening injury resulting in serious permanent disability).

   (2)The nature of the act which causes the injury (which may involve deliberate and repeated violence or only a single act, and which may or may not involve the use of weapons).

   (3)The background and circumstances of the offence (whether a deliberate attack carried out in order to obtain some personal advantage, or for revenge, or whether the attack was random, senseless violence or aggression, and whether the offender's act is a response to provocative or threatening conduct).

Circumstances of offending

[31] Trompler v The State of Western Australia [2008] WASCA 265 [9] ‑ [11]. See also The State of Western Australia v Ghilardi [2015] WASCA 61 [50] - [52] and cases there cited (where a sentence of 4 years 3 months' imprisonment was imposed in a State appeal where very serious head injuries resulted from a fist fight instigated by the offender).

1. This was a random, entirely unprovoked, attack upon a 68‑year‑old man.  He was moving bins near his residence, and the attack occurred in a public place.  The physical injuries may not have involved the catastrophic permanent impairment of bodily or mental function which constitute the most serious types of grievous bodily harm.  However, the respondent used his teeth to bite off part of the victim's ear in a vicious attack, causing the victim to be permanently disfigured.  

2. The effects of the injury resulting from the compression of the victim's neck were ongoing seven months after the attack.  There was a high degree of risk that the sustained compression of the victim's neck would be fatal or result in a serious brain injury.  While those consequences did not eventuate, their likelihood was an aggravating feature of the offence, and indicated that the endangerment of the victim's life was very real.  Applying sustained pressure to the victim's neck to the extent that the victim thought he was going to die constituted the infliction of violence of the utmost gravity.

3. The attack was sustained and continued while the victim was on the ground in an entirely helpless position.  It resulted in serious and likely permanent psychological injury to the victim. 

4. The age of the victim was a statutory circumstance of aggravation.  While circumstances vary between individuals, in general terms increased frailty associated with old age increases the likelihood of violence resulting in serious or fatal injury, and decreases a person's ability to defend themselves against that violence.  The violence offered in the present case by a physically fit young man to a relatively helpless older victim is to be deprecated.  Parliament has sought to increase the protection it offers to older members of the community by creating a higher maximum penalty for the offence of unlawfully doing grievous bodily harm when committed against a victim of or over the age of 60 years.  General deterrence is a significant sentencing consideration, particularly for offences involving unlawfully doing grievous bodily harm to older members of the community.

Personal circumstances

1. The mitigating factors in favour of the respondent are limited, aside from his early plea of guilty.  He does not have the benefit of youth or prior good character.  The fact that he committed the offences in a state of drug-induced psychosis is not mitigating.  Her Honour accepted, however, that the respondent has some underlying mental health fragility.  The respondent only displays some degree of insight and remorse as to his offending, continuing to believe that the victim represented a sort of 'threat' from which he needed to defend himself.  His deprived background is mitigating to some extent.

2. It is to the respondent's credit that he has some acceptance of the need to cease using illicit drugs and that he has taken some steps towards rehabilitation.  However, the respondent remains at high risk of reoffending while he continues to take illicit drugs, and he has not taken advantage of past opportunities for rehabilitation.[32]  He has a serious criminal record, including for offences of violence, associated with his illicit drug use.  The respondent's history of offending and future risk profile elevates the significance of personal deterrence and community protection as sentencing considerations.

Conclusion as to manifest inadequacy

[32] Sentencing ts 28.

1. Having regard to the particularly serious nature of the offence, the limited mitigating factors in favour of the respondent, the maximum penalty of 14 years' imprisonment, the vulnerability of and injuries and trauma suffered by the victim, and all relevant sentencing principles and considerations, we are satisfied that the individual sentence of 2 years 8 months' immediate imprisonment on count 2 is unreasonable or plainly unjust.  Error is to be implied from an individual sentence for that count which is manifestly inadequate.

Residual discretion

1. This court has a residual discretion to dismiss a State appeal even though a ground or grounds of appeal have been established.  It is for the State to demonstrate that the residual discretion should not be invoked. 

2. In our view, there is no basis, in the present case for invoking the residual discretion.  As we have indicated, the sentence imposed by the sentencing judge for count 2 was substantially less than the sentence open on a proper exercise of the sentencing discretion.  Appellable error has been very clearly established.  This court's intervention is necessary to ensure that proper sentencing standards are adopted and maintained for the relevant offence. 

3. We would, therefore, allow the appeal.

Resentencing

1. This court has the material necessary to resentence the respondent.  No complaint is made about the individual sentences imposed on counts 1 and 3, and we would not vary those sentences. 

2. The State does not challenge the 25% sentencing discount which the sentencing judge gave the respondent in respect of the offences, which seems to us to be appropriate in the circumstances. 

3. In resentencing the respondent, we take account of the fact that (as the court was advised by his appeal counsel) the respondent has continued to pursue rehabilitation courses in prison when available, and has enrolled in (but not yet had an opportunity to commence) a course directed to addressing violence and is attempting to learn to read.[33]

   [33] Appeal ts 10 - 11.

4. Having regard to all of the matters referred to above, to all of the circumstances of the case and all relevant sentencing principles and considerations, we would sentence the respondent to a period of 4 years 10 months' immediate imprisonment on count 2 on the indictment.  We would not interfere with the sentences on counts 1 or 3, or the accumulation of the sentence for count 3.  When the 4 month sentence for count 3 is accumulated upon the 4 year 10 month sentence on count 2, the new total effective sentence is 5 years 2 months' imprisonment.  The new total effective sentence should be backdated to 1 August 2019 to take account of time spent in custody, and the respondent should remain eligible for parole.

Orders

1. For the above reasons, we would make the following orders:

   (1)The appeal is allowed.

   (2)The sentences imposed by the District Court of Western Australia on indictment IND 2267 of 2019 are set aside and the following sentences are substituted:

   (a)On count 1, 4 months' immediate imprisonment.

   (b)On count 2, 4 years 10 months' immediate imprisonment.

   (c)On count 3, 4 months' immediate imprisonment.

   (3)The new sentence imposed on count 1 is to be served concurrently with the new sentence for count 2.

   (4)The new sentence imposed on count 3 is to be served cumulatively upon the new sentence for count 2.

   (5)The new sentences for counts 1 and 2 and the new total effective sentence are taken to have commenced on 1 August 2019.

   (6)The respondent is eligible for parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KS
Associate to the Honourable Justice Buss

7 DECEMBER 2020