The State of Western Australia v Ghilardi
[2015] WASCA 61
•23 MARCH 2015
THE STATE OF WESTERN AUSTRALIA -v- GHILARDI [2015] WASCA 61
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 61 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:102/2014 | 7 NOVEMBER 2014 | |
| Coram: | NEWNES JA MAZZA JA HALL J | 23/03/15 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Respondent resentenced | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA DYLAN EDWARD GHILARDI |
Catchwords: | Criminal law State appeal against sentence Grievous bodily harm Assault causing bodily harm Sentenced to 2 years 6 months' imprisonment with eligibility for parole Whether sentence manifestly inadequate Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 34(4), s 41(4)(b) Criminal Code (WA), s 297(1), s 317(1) |
Case References: | Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372 Chan v The Queen (1989) 38 A Crim R 337 Cotterill v The State of Western Australia [2013] WASCA 52 Djiagween v The State of Western Australia [2012] WASCA 141 Ellis v The State of Western Australia [2013] WASCA 220 Field v The State of Western Australia [2013] WASCA 209 Hobby v The State of Western Australia [2011] WASCA 197 Holden v The State of Western Australia [2011] WASCA 238 House v The King (1936) 55 CLR 499 JBD v The State of Western Australia [2013] WASCA 180 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Mercanti v The State of Western Australia [2009] WASCA 109 Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 Steel v The State of Western Australia [2010] WASCA 118 The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 The State of Western Australia v Redman [2009] WASCA 1 The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308 THG v The State of Western Australia [2012] WASCA 139 Trompler v The State of Western Australia [2008] WASCA 265 Ward v The State of Western Australia [No 2] [2010] WASCA 208 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- GHILARDI [2015] WASCA 61 CORAM : NEWNES JA
- MAZZA JA
HALL J
- Appellant
AND
DYLAN EDWARD GHILARDI
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DERRICK DCJ
File No : IND 1395 of 2013
Catchwords:
Criminal law - State appeal against sentence - Grievous bodily harm - Assault causing bodily harm - Sentenced to 2 years 6 months' imprisonment with eligibility for parole - Whether sentence manifestly inadequate - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 34(4), s 41(4)(b)
Criminal Code (WA), s 297(1), s 317(1)
Result:
Appeal allowed
Respondent resentenced
Category: B
Representation:
Counsel:
Appellant : Mr J McGrath SC
Respondent : Mr S Rafferty
Solicitors:
Appellant : Director of Public Prosecutions (WA)
Respondent : Seamus Rafferty Barrister & Solicitor
Case(s) referred to in judgment(s):
Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372
Chan v The Queen (1989) 38 A Crim R 337
Cotterill v The State of Western Australia [2013] WASCA 52
Djiagween v The State of Western Australia [2012] WASCA 141
Ellis v The State of Western Australia [2013] WASCA 220
Field v The State of Western Australia [2013] WASCA 209
Hobby v The State of Western Australia [2011] WASCA 197
Holden v The State of Western Australia [2011] WASCA 238
House v The King (1936) 55 CLR 499
JBD v The State of Western Australia [2013] WASCA 180
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mercanti v The State of Western Australia [2009] WASCA 109
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Steel v The State of Western Australia [2010] WASCA 118
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
The State of Western Australia v Redman [2009] WASCA 1
The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308
THG v The State of Western Australia [2012] WASCA 139
Trompler v The State of Western Australia [2008] WASCA 265
Ward v The State of Western Australia [No 2] [2010] WASCA 208
1 NEWNES JA: I agree with Mazza JA.
2 MAZZA JA: This is a State appeal against sentence.
3 The respondent was charged on indictment in the District Court with two offences, both of which were alleged to have occurred on 24 April 2013 at a service station in Kwinana.
4 Count 1 alleged that the respondent unlawfully did grievous bodily harm to Kenneth James Akers, contrary to s 297(1) of the Criminal Code (WA). Count 2 alleged that the respondent unlawfully assaulted Aaron David Bragg and thereby did him bodily harm, contrary to s 317(1) of the Criminal Code.
5 On 20 March 2014, after a four-day trial, the respondent was convicted of count 1, but acquitted of count 2.
6 On 30 April 2014, he was sentenced to 2 years 6 months' immediate imprisonment with eligibility for parole. The sentence was backdated to commence on 1 October 2013. It is against this sentence that the State now appeals.
7 The sole ground of appeal, for which leave has been granted, is that the sentence was manifestly inadequate. The particulars for that ground read as follows:
(a) the serious nature of the offence and the circumstances in which it was committed, including:
(i) the infliction of significant violence upon an older complainant;
(ii) the extreme force of the respondent's punch to the victim's head; and
(iii) the life threatening and very serious long term and permanent injuries suffered by the victim.
(b) the need for the sentence to adequately reflect general and personal deterrence and adequate punishment for offending of this nature;
(c) the personal circumstances of the respondent given that there was little or no mitigation to be found in the circumstances and particularly noting the respondent's failure to accept full responsibility for his conduct;
(d) the standards of sentencing customarily imposed for sentences of this type.
The facts of the offending
8 In his sentencing remarks, his Honour made detailed findings of the facts as to the circumstances of the offence. None of these findings were challenged in this court. His Honour expressed his findings in this way:
During the afternoon of 20 March 2014 [sic: 2013], the 50-year-old complainant, Mr Kenneth Akers, was at the Swinging Pig Hotel in Rockingham. He was there with his 19-year-old daughter, Ms Sherry-Lee Bulman-Akers, who I will refer to as Sherry-Lee to distinguish her from her younger sister to whom I will refer in a moment. Mr Akers and Sherry-Lee were having a few drinks together. Also at the Swinging Pig Hotel at the time was Mr Allan Bragg. He was there by himself.
Mr Akers struck up a conversation with Mr Bragg. The two of them got on well; the result was that Mr Bragg joined Mr Akers and his daughter. Later in the afternoon, Mr Akers, Sherry-Lee and Mr Bragg left the Swinging Pig Hotel. Mr Akers and Mr Bragg went to the Rockingham Hotel. Sherry-Lee went off to pick up her sister, Mr Akers' younger daughter, 16-year-old Brece Bulman-Akers. Sherry-Lee and Brece then joined Mr Akers and Mr Bragg at the Rockingham Hotel.
At the hotel, Mr Akers bought his younger daughter an alcohol [sic] drink. This was noticed by the hotel staff and the group were asked to leave; they did. When Mr Akers, his daughters and Mr Bragg left the hotel, they walked across the road to a bottle shop. One or more of the adults in the group bought some alcohol. The group then caught a bus to Kwinana. On arriving in Kwinana, Mr Akers, his daughters and Mr Bragg bought something to eat at the local KFC store.
They then made their way to the BP service station situated in Chisholm Avenue in Kwinana. They arrived at the service station sometime around 8.45 pm. The plan was for the group to get a taxi from the BP station back to Mr Akers' house, so that they could all continue socialising. Once at the service station, Mr Akers or Mr Bragg rang for a taxi. By the time Mr Akers, his daughters and Mr Bragg arrived at the BP service station, Mr Akers, Sherry-Lee and Mr Bragg had all consumed a reasonable amount of alcohol over the course of the afternoon.
They were each to some extent affected by the alcohol, Mr Akers and Mr Bragg more so than Sherry-Lee. However, none of them were intoxicated to such an extent as to be causing a nuisance to anyone. Mr Akers' younger daughter, Brece, had not had any alcohol to drink. It was while Mr Akers, Mr Bragg, Sherry-Lee and Brece were at the BP service station waiting for a taxi that you arrived at the station.
You arrived in a car with two of your friends. The car was being driven by one of your friends. Your friend parked his car near the front of the service station shop. You had been drinking during the afternoon. You had drunk four or five self-mixed glasses of vodka and lemonade. The reason why you and your friends had driven to the BP was to buy some more lemonade so you could keep drinking. You were to some extent affected by alcohol at the time that you arrived at the BP.
After you arrived at the BP, you and one of your friends went into the shop, some lemonade was bought. The two of you then left the shop to go back to your car. You briefly went back into the shop to ask for a plastic bag to put the lemonade that you had bought into. However, when you were told that you would need to pay 15 cents for a plastic bag, you refused and walked out of the shop and got into the car. You got into the front passenger seat of the car.
At the time, Sherry-Lee, Brece and Mr Akers were all outside the front of the BP shop in reasonably close proximity to each other. They were standing not very far from your parked car. Mr Bragg was inside the shop. You and your friends spent some short period of time sitting in the car staring at Sherry-Lee and Brece and talking about them.
You were, in effect, eyeing them off. Brece noticed what you were doing. It made her feel uncomfortable so she moved further away from the car so that you and your friends could not continue to stare at her.
Eventually your friend pulled out of his parking spot and started to drive out of the service station car park. As he was doing this one of you in the car - it is not possible for me to say in the evidence it was you, the driver or your other friends - yelled out through an open window of the car some derogatory remark to Sherry-Lee and Brece. The remark was that they were sluts or tramps or something to that effect.
Unfortunately the remark was heard by Mr Akers who was nearby. He, not surprisingly, took offence to the fact that his daughters had been spoken to in this way. He became angry. He therefore yelled in an angry way towards your car something like 'Don't speak to his daughters like that' [sic]. He may well have used colourful language in delivering this message to you. I have no doubt that the fact that he was to some extent affected by alcohol played a role in his decision to respond to the remark made to his daughters.
At the time that Mr Akers yelled at your car, the car was just near one of the exits that led out from the service station onto the road. However, as a result of Mr Akers yelling at the car the driver stopped the car. It is not possible on the evidence to say whether the driver did this of his own volition or at your request.
In any event, once the car had stopped you got out of the car. There was no need for the car to have stopped. There was no need for you to get out of the car. Mr Akers was some distance from the car. He was not posing any threat to you or your friends.
I am satisfied beyond reasonable doubt that you got out of the car because you took offence to the fact that Mr Akers had the temerity to respond to the derogatory remark that either you or one of your group had made about his daughters.
I am satisfied beyond reasonable doubt that when you got out of the car your intention was to continue the confrontation with Mr Akers. Indeed, I am satisfied beyond reasonable doubt that at the time that you got out of the car you were looking for an opportunity to get into a fight with the much older Mr Akers in order to teach him a lesson for having dared to tell you and your associates what he thought of your group's behaviour in making a derogatory remark towards his daughters.
After you got out of the car Mr Akers approached you and you approached him. You were shouting abuse at each other. You were swearing at each other. As Mr Akers got closer to you you adopted a fighting stance with your fists up. You moved around in a similar fashion to a boxer in a ring. You, in effect, invited Mr Akers to take you on, even if you did not expressly say words to that effect.
Ultimately a physical altercation of some sort took place between you. I am satisfied beyond reasonable doubt on the basis of the evidence given by Sherry-Lee, Mr James Burns, Ms Sarah Powell and Brece, that you threw the first punch in this altercation, although I am not satisfied beyond reasonable doubt that you connected with this first swing.
I am satisfied beyond reasonable doubt that during the altercation you did throw a punch which hit Mr Akers in the head and which caused him to at least stumble backwards. I am also satisfied that once the physical altercation had started Mr Akers did throw one or two ineffective punches at you. However, even assuming that his punches connected with you to some extent, they did no damage to you at all. They certainly did not hurt you.
During your physical altercation with Mr Akers you were at no time under any real threat from him. While Mr Akers was of a similar height to you, you were younger and of a stronger build than Mr Akers. You were well in control of the situation. You could have easily backed off, retreated to the car, and left. However, you did not do so because you were content to be involved in a fight with Mr Akers.
In any event, it was during the altercation with Mr Akers that you delivered the punch which formed the basis of your offence. You struck Mr Akers with a full-blooded punch to the front of his head. At the time the two of you were on the road outside the front of the service station. You delivered your punch with such force that it caused a significant fracture in Mr Akers' skull. The fracture was to the left side of the frontal bone and extended to the vertex, so in other words, the top of the head. The fracture also extended to the base of the skull between his eyes.
The punch also rendered Mr Akers immediately unconscious. It was in this unconscious state that Mr Akers fell backwards onto the road. The back of his head hit the road with considerable force. He remained unconscious lying on the road.
Having delivered the knockout blow, you returned to the car, and with your two friends, drove. Mr Bragg, Mr Akers' two daughters and some other people who had witnessed some of the incident then came to Mr Akers' aid and provided whatever assistance they could until an ambulance arrived and Mr Akers was taken to hospital (ts 347 - 350).
The injuries sustained to Mr Akers
9 In addition to the skull fracture caused by the respondent's full-blooded punch to the front of Mr Akers' head, and as a result of the back of his head hitting the roadway, he suffered significant brain injuries (bilateral frontal contusions and bleeding on the brain) which were life-threatening. Mr Akers was admitted to the intensive care unit at Royal Perth Hospital where it was necessary to insert a ventricular drain in order to relieve pressure on the brain. Had this not been done, the increase in intracranial pressure could have led to coma and death.
10 Mr Akers spent approximately six weeks at Royal Perth Hospital, three weeks of which he was in an induced coma. A consequence of this long period of immobility is that Mr Akers developed 'frozen shoulders', which have resulted in the minimal use of his arms and shoulders. After his release, he spent some periods of time in a psychiatric hospital because, secondary to his brain injury, he experienced organic psychosis. The psychosis has, over time, reduced with the administration of mood stabilisers and antipsychotics.
11 The injuries have resulted in profound consequences, both to Mr Akers and his family. Prior to the commission of the offence, Mr Akers had experienced difficulties in his life as a result of his intellectual level, type 1 diabetes and drug use. Despite these difficulties, he lived independently and without immediate family assistance. However, Mr Akers is now unable to live independently and is incapable of managing his own affairs and his diabetes. He has had to move from Rockingham to the northern suburbs so that his family is able to attend to him. He requires regular assistance and supervision from family members, which has put a great deal of stress on them. On 26 February 2014, an administrator was appointed under the Guardianship and Administration Act 1990 (WA) to manage his affairs. Mr Akers' frozen shoulders will make it difficult, if not impossible, for him to ever obtain a driver's licence.
12 A report dated 31 January 2014, written by Kit Fielder, a complex care coordinator with CoNeCT (complex needs coordination team) concluded that Mr Akers cannot independently:
• plan, organise, implement and/or follow up with any activity;
• problem solve;
• handle any small/large purchases - clothing, food, etcetera;
• manage/determine budgetary decisions;
• maintain his household domestically or financially;
• maintain/attend to his chronic healthcare requirements - for example, GP, outpatient and specialist appointments, dietary and medication compliance - on the basis that he has very little insight into his healthcare requirements, status and ongoing management;
• attend to meal preparation; and
• drive his own or any other vehicle.
13 Further, Mr Akers has memory problems, is easily agitated or angered, lacks confidence and does not like to socialise with either family or friends. His relationship with his daughters has deteriorated because they have found it too difficult to live with him and act as his carers. Mr Akers does not understand why his daughters cannot be with him, which causes him frustration and confusion.
14 The learned sentencing judge summarised the impact of the respondent's offending on Mr Akers as follows:
In summary, the offence which you committed against Mr Akers has caused him to suffer in addition to the immediate life-threatening brain injuries, long term and possibly permanent physical, cognitive and emotional difficulties which impact on his everyday life and the life of his close family members (ts 355).
Further findings as to the circumstances of the offending
15 The learned sentencing judge made the following further findings as to the circumstances of the respondent's offending:
(a) The respondent punched Mr Akers out of anger and not out of a belief that he had to defend himself (ts 351).
(b) The severity of the punch which rendered Mr Akers unconscious was out of all proportion to anything Mr Akers had done or was doing to him. The punch was an unreasonable response in the circumstances which the respondent believed to exist at the time (ts 351).
(c) An ordinary person would have foreseen that a possible outcome of the respondent striking Mr Akers was that he would be immediately rendered unconscious, fall and hit his head on the hard surface of the road and, as a consequence, suffer brain injuries (ts 351).
(d) His Honour was not satisfied beyond reasonable doubt that at the time of delivering the punch, the respondent intended to cause Mr Akers the brain injuries or any other form of grievous bodily harm, nor did the respondent actually foresee the possibility of grievous bodily harm as a result of punching Mr Akers to the head (ts 351 - 352).
(e) However, his Honour was satisfied that the respondent hit Mr Akers with as much force as he could muster and with the intention of causing him significant pain and harm, albeit falling short of grievous bodily harm. As his Honour put it:
I am in no doubt that you wanted to hurt Mr Akers badly (ts 352).
(f) The respondent's conduct did not involve 'any careful forethought' (ts 355).
(g) The respondent did not inflict violence 'completely out of the blue', nor was the violence gratuitous or random 'in the sense of being inflicted upon some unsuspecting and completely blameless individual' (ts 356).
(h) The respondent was subjected to what his Honour described as a 'limited degree of provocation' (ts 356). By this, his Honour meant that Mr Akers did behave aggressively towards the respondent and did engage in a physical altercation with him, due to the respondent's group's offensive remarks to Mr Akers' daughters.
(i) On the other hand, his Honour found that the respondent was not forced into a fight with Mr Akers and that there was no need for him to get out of the car and confront Mr Akers. His Honour found that the respondent was ready and willing 'to teach Mr Akers a lesson for daring to confront [the respondent] and [the respondent's] associates' and that he had engaged or enticed Mr Akers into the fight (ts 356).
(j) To the extent that there was provocation on the part of Mr Akers, the mitigation afforded by it was 'limited' (ts 357).
(k) The respondent was under the influence of alcohol at the time of the offence. His Honour also found that, had he not been in that state, he may not have committed the offence. However, his Honour concluded that this factor was not mitigatory as the respondent's state of intoxication was self-induced (ts 357).
The learned sentencing judge's characterisation of the offence
16 His Honour, having regard to all of the circumstances of the offending, characterised the offence as 'very serious' (ts 357). He described the harm suffered by Mr Akers as falling 'towards the high end of the range of injury and harm amounting to grievous bodily harm' (ts 355). He said that the act of punching Mr Akers was 'very serious' (ts 355). After noting that the blow was delivered with sufficient force to itself fracture Mr Akers' skull, his Honour described it as an act which 'fell somewhere between the lower and middle of the range of seriousness of acts causing grievous bodily harm even though it was a single act' (ts 356).
17 His Honour assessed the offence 'as being around the middle of the range of seriousness of offences of its type' (ts 357).
The respondent's personal circumstances
18 At the time of committing the offence, the respondent was 23 years of age. He had a somewhat unstable childhood, regularly moving between the care of his mother and father. He has a daughter born on 7 June 2012 who is in the care of his former partner.
19 The respondent left school in year 9 and has been employed ever since as a fencing contractor.
20 The respondent has what the learned sentencing judge described as 'a reasonably significant record of prior convictions as an adult' (ts 360). The offences for which the respondent had previously been convicted included disorderly conduct (2008, 2009, 2010), assault occasioning bodily harm (2008), stealing (2008, 2009, 2012), aggravated burglary (2009), burglary (2011), being armed or pretending to be armed in a way to cause fear (2011), and making threats to destroy, damage or endanger or harm property (2011).
21 The learned sentencing judge considered that the respondent was not entitled to any leniency for good character and that his prior record revealed an attitude of disobedience to the law and a willingness to resort to violence or aggressive behaviour.
22 The respondent appears to have no issue with illicit substances and informed the writer of the pre-sentence report that he rarely drank alcohol. However, he conceded that his occasional consumption of alcohol has caused problems for him because of his self-admitted limited tolerance to it. The respondent admitted that the majority of his offending behaviour had been alcohol related. The respondent enjoys good physical health and has no diagnosed mental health issues.
23 Although the respondent expressed regret for the gravity of the offences caused to Mr Akers, and despite being found by his Honour to be genuinely sorry for those injuries, his Honour found that the respondent did not fully accept responsibility for his conduct.
24 His Honour assessed the respondent's risk of committing further serious criminal offences as being 'no more than moderate'.
Deterrence and other matters
25 His Honour considered that both personal and general deterrence were relevant sentencing considerations. As to the former, and as I have already mentioned, his Honour said that the respondent's prior criminal history revealed a willingness to disregard the law and to resort to aggression and violence. As to the latter, his Honour said:
There is one other factor that is relevant to my determination of the sentence to be imposed on you. The factor is general deterrence. The commission of serious offences of violence on the streets of Perth are becoming more prevalent. The community is rightly concerned about the increase in prevalence of such behaviour. That being the case, I think that the sentencing consideration of general deterrence does have a role to play in determining the sentence to be imposed on you. That is I must, in deciding what sentence to impose on you, give weight to the need to impose a penalty which is capable of acting as a deterrent to other young people who might be tempted to engage in the type of violent behaviour that you engaged in (ts 363).
26 His Honour said that, as a necessary consequence of giving effect to general deterrence, less weight could be given to matters personal to the respondent.
27 In addition to personal and general deterrence, his Honour considered that protection of the public was a further relevant sentencing factor (ts 362).
The decision to impose immediate imprisonment
28 His Honour said that despite the mitigating factors, the objective circumstances of the offending were too serious to permit any disposition other than an immediate term of imprisonment. In fixing the length of that term, his Honour cautioned against being 'overwhelmed by the extent of the damage … caused to Mr Akers' (ts 364). His Honour said that he also needed to take into account the nature of the act that caused the injuries and the background circumstances to the commission of the offence.
29 In fixing the length of the term to be imposed, his Honour said that he had regard to a number of cases decided in this court for offences of the type committed by the respondent, including Hobby v The State of Western Australia [2011] WASCA 197; The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308; Cotterill v The State of Western Australia [2013] WASCA 52; Field v The State of Western Australia [2013] WASCA 209 and Ellis v The State of Western Australia [2013] WASCA 220.
The appeal to this court
The appellant's submissions
30 Senior counsel for the appellant submitted that the sentence of 2 years 6 months' immediate imprisonment inadequately reflected the very serious nature of the offences found by the learned sentencing judge and could not reasonably be justified on the basis of the mitigating factors.
31 As to the seriousness of the offence, senior counsel emphasised that:
(a) Mr Akers did not pose any real threat to the respondent;
(b) when the respondent got out of the car, he intended to fight Mr Akers in order 'to teach him a lesson';
(c) the blow which caused Mr Akers' injuries was 'an enormous blow to the head'; and
(d) the injuries were life-threatening and have had an effect upon Mr Akers which bordered on catastrophic.
32 With respect to the respondent's personal circumstances, senior counsel submitted that there was very little mitigation to be found. Senior counsel noted that the respondent was not a person of good character and that his record of convictions revealed a willingness to resort to violence or aggressive behaviour. He placed some emphasis upon the respondent's failure to accept full responsibility for his behaviour. Senior counsel submitted that the sentence imposed by his Honour, which was after trial, was inconsistent with sentences imposed in other cases. In particular, he submitted that the case fell toward the upper end of the range of 3 to 5 years' imprisonment referred to by Wheeler JA in Trompler v The State of Western Australia [2008] WASCA 265 for cases towards the upper end of the range, although not of the most serious kind.
The respondent's submissions
33 Counsel for the respondent also made reference to a number of comparative cases. He submitted, in effect, that the sentence in the present case was not inconsistent with other comparable cases. He argued that the case did not fall within the category of offences identified by Wheeler JA in Trompler as one being in the 3 to 5-year range.
34 Counsel for the respondent submitted that the sentence imposed by his Honour was well within the range of a sound sentencing discretion.
35 The respondent's counsel submitted that, while the sentence was 'relatively merciful', it was not erroneously lenient.
Appellate sentencing principles
36 An appellate court may not 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 the appellant demonstrates that the court at first instance 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) of the Criminal Appeals Act2004 (WA).
37 The grounds of appeal allege implied rather than express error. In such circumstances, before an individual sentence can be said to be manifestly inadequate, or the total effective sentence be found to have infringed the totality principle, it must be established that the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 and Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372 [26].
38 The orthodox approach to the question of manifest inadequacy is to examine the individual sentence, having regard to the maximum sentence for the offence, the gravity of the offending conduct on 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; Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [33].
Was the sentence manifestly inadequate?
39 The maximum penalty for an offence contrary to s 297(1) of the Criminal Code is 10 years' imprisonment. The appeal was argued on the basis that this was not a case said to fall within the worst category of offending, thus exposing the respondent to a sentence at or near the maximum penalty.
40 In Trompler, Wheeler JA referred to three factors which are generally of significance when assessing an offender's criminality involved in an offence of grievous bodily harm, namely:
(a) the nature of the harm which results;
(b) the nature of the act which causes the injury; and
(c) the background to, and circumstances of, the offence.
41 I will deal with these factors in reverse order.
42 The respondent's attack on Mr Akers was without any real justification. Mr Akers' reaction to his daughters being insulted was entirely understandable. The respondent could have, and should have, let the matter go. Instead, he chose to get out of the vehicle and confront Mr Akers with the intention of hurting him, albeit not to the extent of doing grievous bodily harm. The respondent was younger and stronger than Mr Akers.
43 His Honour accepted that, to a limited degree, Mr Akers provoked the respondent. Although I have some difficulty with this finding, it was not challenged by the appellant. Nevertheless, the degree of provocation was slight and does not, in my view, significantly diminish the respondent's criminality.
44 The offence was born out of a combination of anger and the desire to teach Mr Akers a lesson. The respondent, fuelled by alcohol, was the aggressor. It was a deliberate attack with an intention to inflict injury upon Mr Akers, who was no match for the respondent.
45 The act which caused the injury was a single blow to the head. That blow was the third attempt by the respondent to strike Mr Akers. It was delivered with such force that it not only rendered Mr Akers immediately unconscious, it also fractured his skull. It was calculated to harm Mr Akers, albeit not to do him grievous bodily harm. It was, on any view, an extremely violent act and, although the respondent did not use a weapon, in a very real sense he used his fist with the same effect.
46 Finally, there is the nature of the harm which resulted from the respondent's blow. I will not repeat his Honour's findings as to the consequences of the assault. It is enough to recognise that they were life-threatening and have had profound effects upon Mr Akers and his family. Mr Akers has been deprived of his independence and much of his enjoyment of life. These consequences are very likely to be permanent.
47 I now turn to the comparable cases.
48 The range of sentences customarily imposed is relevant for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, such a range does not fix the range of a sound exercise of a sentencing discretion in a particular case. The mere fact that a sentence is within the range of other sentences previously imposed for similar offences does not necessarily establish that there is an appropriate exercise of the sentencing discretion in that particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case has miscarried. When this court dismisses an appeal against sentence, or when it allows an appeal against sentence and resentences an offender, the decision does not, of itself, fix the upper or lower limit of the range. Ultimately, it is the duty of this court to decide the case on its own particular facts and circumstances.
49 The starting point is that there is no tariff for grievous bodily harm. It is an offence which can be committed in a wide variety of circumstances by offenders whose subjective circumstances also vary greatly.
50 This is amply illustrated by the outcomes in the many sentencing decisions of this court and its predecessor, the Court of Criminal Appeal. In Trompler, Wheeler JA concluded that the post-transitional range for offences, which were towards the upper end of the range of seriousness, but not of the most serious kind, was between 3 to 5 years' imprisonment [19]. McLure JA (as her Honour then was), in her dissenting reasons, identified the post-transitional range as being between 8 months and 5 years 4 months.
51 In The State of Western Australia v Redman [2009] WASCA 1, McLure JA (with whom Wheeler JA agreed) made the following observations about the range of sentences customarily imposed for grievous bodily harm:
The maximum sentence for the offence of causing grievous bodily harm is 10 years' imprisonment (6 years 8 months post transitional). The sentences imposed for that offence have a post-transitional range of 8 months' imprisonment (The State of Western Australia v Camilleri [2008] WASCA 217) to 5 years and 4 months' imprisonment (Bruno v The State of Western Australia [2005] WASCA 149).
The cases relied on by the Chief Justice are at the high end of the range of seriousness of offending of this type. Moreover, the matters personal to the offenders in those cases, particularly their record of prior offending, reflect considerable weight having been given to the interrelated sentencing objectives of personal deterrence and protection of the community from the offender. In Dadswell v The Queen [2003] WASCA 212, the court described the offending as an extremely brutal attack causing multiple injuries with long-term impairment of the victim's cognitive function. The circumstances of the offending, although not detailed in the reasons, was characterised as being at the highest end of the scale of seriousness of crimes of that type and justified a sentence of 7 years' imprisonment (4 years and 8 months post-transitional) which was at that time without precedent. It is apparent that the level of violence was very high. The offender had a prior record of violent offending.
The court in Bruno accurately described the circumstances of the offending in that case (detailed in the reasons of the Chief Justice) as being in the worst category. The offender in Bruno also had a prior record of violent offending, as did the offenders in The State of Western Australia v Jeffries [2007] WASCA 255, Hayes v The Queen [2003] WASCA 230, and Jones v The Queen (Unreported, WASCA, Library No 920406, 31 July 1992). The level and extent of the violence involved in the offending in the above cases are at a significantly higher level of seriousness than the present case. The consequences of the violence were also at a high level of seriousness. When the circumstances of the offending are considered together with the personal circumstances of the offenders, those cases provide no support for a conclusion that the sentence imposed on the respondent was outside the customary range or outside a sound sentencing discretion.
The circumstances of this case are more in keeping with those in Clements v The State of Western Australia [2006] WASCA 69, Trompler v The State of Western Australia [2008] WASCA 265, R v Hodges [1999] WASCA 278 and Stanik v The Queen [2001] WASCA 333 where the post transitional terms of imprisonment imposed were 2 years, 1 year and 8 months, 2 years and 2 years respectively. The offenders in these cases were men of prior good character. Alcohol fuelled situations provide the usual backdrop for offences of this nature. The cases as a whole demonstrate that the variability in sentences for the offence of causing grievous bodily harm is partly attributable to matters personal to the offender. Other important sentencing considerations are the nature and extent of the violence used and harm caused [62] - [65].
52 The ranges identified in Trompler have been consistently referred to with evident approval in subsequent cases, for example, Mercanti v The State of Western Australia [2009] WASCA 109; Ward v The State of Western Australia [No 2] [2010] WASCA 208; Hobby v The State of Western Australia [2011] WASCA 197; Djiagween v The State of Western Australia [2012] WASCA 141; Taylor and Ellis v The State of Western Australia [2013] WASCA 220. These cases, along with others including Steel v The State of Western Australia [2010] WASCA 118; Holden v The State of Western Australia [2011] WASCA 238; THG v The State of Western Australia [2012] WASCA 139; Cotterill v The State of Western Australia [2013] WASCA 52; JBD v The State of Western Australia [2013] WASCA 180 and Field v The State of Western Australia [2013] WASCA 209, once again confirm the variability in sentences for the offence. The most that can be said is to make the general observation that the outcomes of recent cases have been consistent with the range indicated by McLure JA in Trompler.
53 I have already set out the respondent's personal circumstances. Apart from some limited mitigation by reason of his age, they are not favourable.
54 The respondent's counsel conceded that the sentence imposed upon the respondent was relatively lenient. Of course, mere lenience is not a sufficient basis for this court to interfere. However, and with great respect to the learned sentencing judge, I am of the opinion that the sentence is, having regard to all of the circumstances, manifestly inadequate; that is, it is so unjust and unreasonable as to enable error to be inferred.
55 In my opinion, the sentence that was imposed fell well short of what was commensurate with the seriousness of the offence. As I have said, the offence involved a high level of criminality. The respondent pleaded not guilty and went to trial. While this does not aggravate the seriousness of the offence, the mitigating value of a guilty plea was absent. The respondent did not fully accept responsibility for his conduct. The respondent is not a person of prior good character. His prior record of convictions revealed, as I have already noted, an attitude of disobedience to the law and a willingness to resort to violence or aggressive behaviour. The offending engaged in by the respondent necessitated a sentence which sufficiently denounced the conduct and provided general and personal deterrence. Given his Honour's assessment of the respondent's risk of reoffending, public protection was also a relevant sentencing consideration. Having taken into account all of the relevant facts and circumstances, and bearing in mind the maximum term of imprisonment of 10 years and the range of sentences customarily imposed, the only conclusion reasonably open was that the sentence was manifestly inadequate.
56 The ground has been made out.
The residual discretion
57 It was not submitted on behalf of the respondent that the discretion under s 34(4) of the Criminal Appeals Act should be applied in the event that the ground of appeal was made out: The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137.
58 In any event, there would be no proper basis for applying the discretion. This court's intervention is necessary in this case so as to ensure that proper standards of sentencing for the offence of grievous bodily harm in this State are maintained.
Resentencing
59 The respondent must now be resentenced. This court has available to it all of the materials necessary to re-exercise the sentencing discretion.
60 I have had regard to all the circumstances of the case, including the respondent's personal circumstances and antecedents. I have considered the maximum penalty and comparable cases. In my opinion, the appropriate sentence to be imposed upon the respondent is a sentence of 4 years 3 months' imprisonment. I would not interfere with his Honour's orders with respect to parole eligibility and backdating.
Orders
61 I would make the following orders;
1. The appeal is allowed.
2. The sentence imposed by his Honour Derrick DCJ on 30 April 2014 be set aside. In lieu thereof, the respondent is sentenced to 4 years 3 months' imprisonment with eligibility for parole, backdated to commence on 1 October 2013.
62 HALL J: I agree with Mazza JA.
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