The State of Western Australia v Khasay - [2014] WASCA 58

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- KHASAY [2014] WASCA 58

CORAM: PULLIN JA
BUSS JA
MAZZA JA

HEARD: 14 FEBRUARY 2014

DELIVERED : 19 MARCH 2014

FILE NO/S: CACR 144 of 2013

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
SEMERE TEKLEHAIMANOT KHASAY
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STAVRIANOU DCJ
File No  :IND 1389 of 2012

Catchwords:

Criminal law - State appeal against sentence - Unlawfully doing grievous bodily harm with intent to maim, disfigure, disable or do some grievous bodily harm - Respondent convicted after trial - Sentence of 4 years 8 months' immediate imprisonment - Whether sentence manifestly inadequate

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA), s 294(1)

Result:

Appeal allowed
Sentence imposed by the trial judge set aside
Respondent resentenced

Category: D

Representation:

Counsel:

Appellant: Mr J McGrath SC
Respondent: Mr M J Lindsey-Temple

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Mark Lindsey-Temple

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

Abfahr v The State of Western Australia [2013] WASCA 87
Black v The State of Western Australia [No 2] [2010] WASCA 145
Eriha v The State of Western Australia [2011] WASCA 167
Kennedy v The State of Western Australia [2008] WASCA 185
Krijestorac v The State of Western Australia [2010] WASCA 35
Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442
Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1
McCormack v The Queen [2000] WASCA 139
McMaster v The Queen [2004] WASCA 52
Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243
Minhaj v The Queen [2000] WASCA 52
Petrelis v The State of Western Australia [2012] WASCA 235
Phillips v The State of Western Australia [2011] WASCA 69
R v Engert (1995) 84 A Crim R 67
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Letteri (Unreported, NSWCCA, 18 March 1993)
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
R v Wright (1997) 93 A Crim R 48
Rolfe v The State of Western Australia [2012] WASCA 169
Smith v The State of Western Australia [2010] WASCA 176
Stephens v The State of Western Australia [2005] WASCA 98
The State of Western Australia v Jeffries [2007] WASCA 255
The State of Western Australia v Legge [2014] WASCA 47
The State of Western Australia v Naumoski [2013] WASCA 215
Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385
Wells v The State of Western Australia [2013] WASCA 124
Wheeler v The Queen [No 2] [2010] WASCA 105
Zhang v The State of Western Australia [2013] WASCA 121

PULLIN JA: I agree with Buss JA.
BUSS JA: This is a State appeal against sentence.
The respondent was convicted, after a trial in the District Court before Stavrianou DCJ and a jury, of one count in an indictment.
The count alleged that on 6 April 2012, at St James, the respondent, with intent to maim, disfigure, disable or do some grievous bodily harm to Henok Araya Kiros, unlawfully did grievous bodily harm to Mr Kiros, contrary to s 294(1) of the Criminal Code (WA) (the Code).
On 20 June 2013, the trial judge imposed a sentence of 4 years 8 months' immediate imprisonment. The sentence was backdated to 6 April 2012, when the respondent was taken into custody for the offence. A parole eligibility order was made.

The facts and circumstances of the offending

The principal issue at trial was identity; that is, whether it was the respondent who had assaulted the victim. The victim gave evidence that he knew the respondent and had recognised him as the assailant. The respondent elected to give evidence. He denied knowing the victim and denied having assaulted him. The jury, by its verdict, accepted the victim's evidence and rejected the respondent's evidence in relevant respects.
The trial judge's findings at the sentencing hearing largely reflected the State's case as opened at the trial.
On 6 April 2012, the victim went to an IGA supermarket in Bentley. He was accompanied by a friend, Abusha Alemayehu. While at the supermarket, the victim saw the respondent, who was an acquaintance he had known for a number of years. The victim greeted the respondent and said 'Hello, Semere' in his native language of Tigrinya. The respondent replied in this language. He called the victim a bastard. The victim asked the respondent why he had spoken in that manner. The respondent walked away. The brief exchange was heard and witnessed by Mr Alemayehu. However, he did not know the respondent and did not speak Tigrinya. The interaction was recorded on CCTV footage at the supermarket.
After the respondent, the victim and Mr Alemayehu left the supermarket, the victim and Mr Alemayehu got into the victim's motor

vehicle. The victim saw the respondent get into a vehicle in the car park. The victim drove away. He noticed that he was being followed by the respondent. The victim drove to a friend's house and parked his vehicle on the verge. The respondent parked his vehicle in front of the victim's vehicle. The victim alighted and saw the respondent arm himself with a golf club. The victim was near the boot of his vehicle when he was approached by the respondent. The respondent swung the golf club and struck the victim in the head. The victim fell to the ground. The respondent continued his attack. He struck the victim with the golf club on another three or four occasions. The respondent then ran to his vehicle and drove away. Mr Alemayehu observed the incident after the respondent had struck the first blow.

The victim's injuries and residual disabilities

The victim suffered very serious injuries. He was taken by ambulance to hospital. His main injury was an open skull fracture. A segment of his skull had been pushed into his brain. This caused bleeding, bruising and swelling. The victim had surgery twice. A titanium plate was inserted into his skull. Without the surgery, the victim would have died. The victim also suffered facial injuries, including fractures to his jaw that required surgery, and a fractured collarbone. The total period of his hospitalisation and rehabilitation was about three months. The victim has been left with permanent residual weakness on the left side of his body. This causes difficulties in the use of his left hand and weakness in his left leg. He has also lost sensitivity on the left side of his face.
The offence has had a significant emotional impact on the victim. He has suffered ongoing worry, frustration and distress. His residual disabilities have adversely affected his capacity to care for his children. The victim requires the support of his family. He feels that he is a burden.
The offending has also caused the victim financial stress. He has been unable to resume the employment he undertook before he was assaulted. At the time of sentencing, the victim had not re‑joined the workforce.

The expert reports and the respondent's personal circumstances and antecedents

The material before the trial judge included a report dated 10 June 2013 from Dr SD Febbo, a consultant psychiatrist, and a pre‑sentence report dated 17 June 2013.
The respondent was born in Eritrea on 1 January 1964. He is of Ethiopian background. In childhood his parents were poor. There was no physical or sexual abuse. He did not witness significant violence.
At the age of 12 the respondent travelled with his parents to a refugee camp in Sudan. He completed school and then worked for a non‑government organisation as a driver and mechanic. At the age of 23 the respondent went to Ethiopia and was involved in fighting against the government. He witnessed killing and death. At the age of 26 the respondent returned to Sudan and worked initially for a non‑government organisation and then for the United Nations as a driver. In 2006 he came to Australia as a refugee. The respondent has worked in Australia as an interpreter and as a truck and bus driver. He has been in regular and stable employment in this country.
The respondent was married in 1988. He and his wife were divorced after four or five years. The marriage produced a daughter who is now aged about 20. The respondent has twin boys from an earlier relationship.
The respondent told Dr Febbo that he does not have 'any supports here in Perth' and his plans for the future are 'if I get out, make money, go home'.
The respondent denied having committed the offence.
Dr Febbo found it difficult to make a specific comment on the factors that may have contributed to the respondent's offending because of his stance of denial. However, according to Dr Febbo, the respondent appears to have an entrenched belief that he is being 'targeted' and 'unfairly treated'.
Dr Febbo expressed the following opinions:
(a)The respondent has a history suggestive of a major depressive episode.
(b)Aspects of the respondent's history suggest the presence of possible psychotic symptoms. It was not possible to exclude a delusional disorder.
(c)The respondent described traits falling within the category of a paranoid personality disorder. This condition is characterised by a pervasive distrust and suspicion of others. Their motives are interpreted as malevolent.
(d)The respondent has been socially isolated and has experienced significant stress concerning relationship issues and significant trauma relating to exposure to war.
(e)The respondent requires ongoing psychiatric monitoring and treatment. He is taking antidepressant medication and it would be appropriate to consider a small dose of an antipsychotic.
(f)The respondent has significant risk factors in relation to further violence. His risk of reoffending is in the moderate range.
At the sentencing hearing it was conceded by defence counsel, and accepted by his Honour, that there was no evidence of any causal connection between the respondent's psychiatric condition and his offending.

The respondent's prior criminal record

The respondent had a prior criminal record in Western Australia.
On 8 May 2009, he was convicted in the Magistrates Court of the following offences committed on 14 November 2008:
(a)assault occasioning bodily harm;
(b)carrying an article with intent to injure or disable;
(c)breach of a violence restraining order;
(d)unlawful damage; and
(e)reckless driving.
The facts and circumstances of those offences were that the respondent pursued the victim, who had a violence restraining order against him, in his vehicle. The respondent rammed the victim's vehicle. The respondent then alighted with a metal bar. He broke the victim's passenger door mirror and struck the victim on the arms, causing bruising. When the victim attempted to flee, the respondent drove into the victim's vehicle and again attacked him with the iron bar. The magistrate found the attack was unprovoked and the respondent acted out of temper. An independent witness who observed the events told the respondent to stop. The respondent then pursued the witness before being arrested by police.
The magistrate treated the respondent leniently. He received a 12‑month intensive supervision order and fines for the offences.
The respondent breached the intensive supervision order by failing to engage in programmes. He was sentenced for the breach to a term of imprisonment of 6 months 1 day, suspended for 9 months.

The ground of appeal

The sole ground of appeal alleges that the trial judge made an error of law by imposing a sentence that was manifestly inadequate.
On 31 August 2013, Mazza JA granted leave to appeal.

The respondent's submissions

Counsel for the respondent conceded that the sentence of 4 years 8 months' immediate imprisonment was 'at the lower end of the scale'. Counsel emphasised the respondent's 'mental health issues'. According to counsel, these 'mental health issues' made the respondent an inappropriate vehicle for general deterrence and made the achievement of personal deterrence more difficult. It was submitted that although the sentence was 'low', it was within the range of a sound exercise by the trial judge of his discretion, especially when proper regard was had to the psychiatric or psychological factors.

The merits of the ground of appeal

A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
The maximum penalty for unlawfully doing grievous bodily harm to any person, with intent to maim, disfigure, disable or do some grievous bodily harm, contrary to s 294(1) of the Code, is 20 years' imprisonment.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the respondent, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. But the mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. These propositions are well-established by the case law.
The seriousness of the facts and circumstances of offending against s 294 can be highly variable. See Black v The State of Western Australia [No 2] [2010] WASCA 145 [28] (McLure P, Buss JA and Mazza J agreeing).
In The State of Western Australia v Jeffries [2007] WASCA 255, Steytler P (McLure and Miller JJA agreeing) referred to Stephens v The State of Western Australia [2005] WASCA 98 and the cases reviewed in Stephens. His Honour said:
Those were cases of causing grievously bodily harm with intent contrary to s 294 of the Criminal Code … They reveal that in such cases sentences of between 7 and 12 years' imprisonment, prior to the operation of the transitional provisions, are not uncommon [12].
I have examined numerous prior cases of offending against s 294 which have at least some features comparable to the respondent's offending. See Minhaj v The Queen [2000] WASCA 52; McCormack v The Queen [2000] WASCA 139; McMaster v The Queen [2004] WASCA 52; Kennedy v The State of Western Australia [2008] WASCA 185; Eriha v The State of Western Australia [2011] WASCA 167; Rolfe v The State of Western Australia [2012] WASCA 169; Petrelis v The State of Western Australia [2012] WASCA 235; Abfahr v The State of Western Australia [2013] WASCA 87; Zhang v The State of Western Australia [2013] WASCA 121; Wells v The State of Western Australia [2013] WASCA 124; The State of Western Australia v Naumoski [2013] WASCA 215; The State of Western Australia v Legge [2014] WASCA 47; and the decisions referred to in those cases. It is unnecessary to reproduce the facts and circumstances of or the sentencing outcomes in the prior cases.
It is well-established that where an offender's mental illness or psychological difficulties have not been self-induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is a relevant factor in the sentencing process.
The effect of mental illness or psychological difficulties (falling short of insanity) on the kind or length of sentence to be imposed has been considered by the Court of Criminal Appeal and this court on numerous occasions. See, for example, Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442; Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; Krijestorac v The State of Western Australia [2010] WASCA 35.
The effect of mental illness or psychological difficulties (falling short of insanity) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. See R vVerdins [2007] VSCA 102; (2007) 16 VR 269 [25] (Maxwell P, Buchanan & Vincent JJA); Wheeler v The Queen [No 2] [2010] WASCA 105 [9] (McLure P, Newnes JA agreeing). An offender who seeks to rely on mental illness or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour. See Wheeler [No 2] [10]; Smith v The State of Western Australia [2010] WASCA 176 [72] (Buss JA, McLure P & Mazza J agreeing); Phillips v The State of Western Australia [2011] WASCA 69 [48] (Buss JA, McLure P agreeing).
In R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, Wood CJ at CL explained the rationale for the sentencing principle that if an offender suffers from a mental disorder or abnormality (that has not been self-induced), general deterrence should ordinarily be given relatively less weight:
The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice [254].
See also R vWright (1997) 93 A Crim R 48, 50 ‑ 51 (Hunt CJ at CL, Gleeson CJ agreeing generally & Hidden J agreeing); Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 [62] (RA Hulme J, Macfarlan JA & Johnson J agreeing).
In Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1, Basten JA pointed out that although mental impairment will often tend to diminish moral blameworthiness or culpability and, in consequence, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects [12]. His Honour referred to the observation of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 that 'the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or the need to protect the public' (71). See also Wheeler [No 2], where McLure P said, citing Engert (71), that a sentencing consideration may be relevant in more than one respect and not affect the outcome because it weighs both positively and negatively in the balance [7].
Ultimately, however, in the application of these principles, 'it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise': R v Letteri (Unreported, NSWCCA, 18 March 1993) page 14, adopted and emphasised by Gleeson CJ in Engert (71).
In the present case, the respondent's offending was very serious. The offence was unprovoked. It was not a response to any perceived threat from the victim. It involved random and senseless violence. The respondent used a golf club as a weapon deliberately to inflict serious harm to the victim's head. The attack was sustained. It continued after the victim had fallen to the ground. The offence was not spontaneous. The respondent acted with a degree of premeditation. The victim sustained a number of injuries. The primary head injury was severe and life‑threatening. The victim has suffered permanent disabilities. The impact of the offending on the victim has been profound. The respondent has not sought to explain his conduct. He left the crime scene without endeavouring to render or secure any assistance for the victim.

It is plain from my examination of the prior cases of offending against s 294 that the sentence of 4 years 8 months' immediate imprisonment imposed by his Honour in the present case is significantly less than the range of sentences established by prior cases with at least some features comparable to the respondent's offending. This marked disparity is a significant factor in deciding whether the term of 4 years 8 months is manifestly inadequate. Nevertheless, as I have mentioned, each case turns on its own particular facts and circumstances, and only general guidance can be found in sentencing ranges.
The respondent was aged 48 when he committed the offence. He was 49 at the time of sentencing. Clearly, the respondent did not have the mitigation of youth or inexperience.
The respondent's personal circumstances and antecedents were less than favourable. He had the relevant and significant previous convictions which I have already mentioned. Although his prior criminal record did not aggravate the seriousness of the offending in question, it indicated that the respondent was not entitled to any leniency on the ground that he was ordinarily of good character.
The respondent did not have the mitigation that a plea of guilty would have brought.
The respondent demonstrated an absence of remorse. His denial continued after his conviction for the offence. He has not explained, and he has refused to accept responsibility for, his criminal behaviour.
The mitigating factors appear to have been confined to his psychological difficulties, disadvantaged background and good history of employment.
However, the weight to be accorded to the respondent's psychological difficulties was decisively overpowered by the risk he poses to public safety. This risk is apparent, not only from the offending in question, but also his previous offending. Dr Febbo noted that the respondent has significant risk factors in relation to further violence.
Although, in view of the respondent's psychological difficulties, personal and general deterrence were less important than they would otherwise have been, they remained relevant considerations to be taken into account.
In my opinion, the sentence of 4 years 8 months' immediate imprisonment was not commensurate with the seriousness of the offence. I am satisfied, after considering all relevant facts and circumstances and all relevant sentencing factors, that the length of the sentence was unreasonable or plainly unjust. This is the only conclusion reasonably open when the sentence is viewed from the perspective of the maximum penalty (20 years' imprisonment); the seriousness of the offending (including the vulnerability of the victim and the grievous impact of the offending on him); the importance of appropriate punishment and the protection of public safety as sentencing factors; the diminished but still relevant factors of personal and general deterrence; and all mitigating

factors including the respondent's psychological difficulties and his personal circumstances and antecedents generally. The sentence was not merely 'at the lower end of the scale' or 'low'. It was substantially outside the sentencing range open to his Honour on a proper exercise of the sentencing discretion.

The ground of appeal has been made out.

The result of the appeal and the resentencing of the respondent

I would allow the appeal.
Counsel for the respondent did not submit that the discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. There is no basis, in my opinion, for invoking the discretion. The trial judge imposed a sentence that was substantially less than the sentence open on a proper exercise of the sentencing discretion. Appealable error has been very clearly established. This court's intervention is necessary to ensure the preservation of proper sentencing standards for the serious offence created by s 294(1) of the Code.
The sentence imposed by his Honour should be set aside. This court has the material necessary to resentence the respondent.
After taking into account the maximum penalty, the facts and circumstances of the offence and all other relevant sentencing factors (including the matters of mitigation I have mentioned), I would impose a sentence of 7 years 8 months' imprisonment. The new sentence should be taken to have taken effect on 6 April 2012. The respondent remains eligible for parole. He will be eligible to be considered for release on parole when he has served 5 years 8 months calculated from 6 April 2012.
MAZZA JA: I agree with Buss JA.