The State of Western Australia v Krakouer
[2020] WASCA 133
•25 AUGUST 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- KRAKOUER [2020] WASCA 133
CORAM: BUSS P
MITCHELL JA
BEECH JA
HEARD: 23 JULY 2020
DELIVERED : 25 AUGUST 2020
FILE NO/S: CACR 18 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
ERIC RAYMOND KRAKOUER
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAUDE DCJ
File Number : IND 176 of 2019
Catchwords:
Criminal law and sentencing - State appeal against sentence - Where respondent deliberately drove his vehicle at the victim who was on a bicycle and then drove away without stopping to see if the victim was injured or needed assistance - Where term of 16 months' imprisonment imposed for unlawful wounding with intent to maim, disfigure, disable or do some grievous bodily harm contrary to s 294(1)(a) of the Criminal Code (WA) - Where term of 4 months' imprisonment imposed for failing to stop and provide assistance contrary to s 54 of the Road Traffic Act 1974 (WA) - Whether individual sentences manifestly inadequate
Legislation:
Criminal Code (WA), s 294(1)
Road Traffic Act 1974 (WA), s 54
Result:
Appeal upheld
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | A L Forrester SC & T B L Scutt |
| Respondent | : | S Vandongen SC |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Chelmsford Legal |
Case(s) referred to in decision(s):
Abfahr v The State of Western Australia [2013] WASCA 87
Black v The State of Western Australia [No 2] [2010] WASCA 145
Bolton v The State of Western Australia [2012] WASCA
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Chikonga v The State of Western Australia [2017] WASCA 34
Churnside v The State of Western Australia [2016] WASCA 146
CMB v The Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 262 CLR 428
Fazari v The State of Western Australia [2012] WASCA 176; (2012) 224 A Crim R 372
Gaskell v The State of Western Australia [2018] WASCA 8
Hinkley v The State of Western Australia [2014] WASCA 122
Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
King v The Queen [1999] WASCA 9
Law v The Queen [2019] WASCA 81
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McGarry v The Queen [2001] HCA 63; (2001) 207 CLR 121
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
Stephens v The State of Western Australia [2005] WASCA 98
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Wallam [2008] WASCA 117
Thompson v The State of Western Australia [2019] WASCA 68
Vander Waide v The State of Western Australia [2019] WASCA 148; (2019) 89 MVR 525
Yates v The State of Western Australia [2008] WASCA 144
Zhang v The State of Western Australia [2013] WASCA 121
JUDGMENT OF THE COURT:
Introduction
This is a State appeal against sentence. The respondent was convicted, following his pleas of guilty, of two offences. Count 1 was an offence of unlawful wounding with intent to maim, disfigure, disable or do some grievous bodily harm, contrary to s 294(1)(a) of the Criminal Code (WA). Count 2 was an offence against s 54(1), (2) and (3)(c) of the Road Traffic Act 1974 (WA) of failing to stop, immediately after the occurrence of an incident involving the motor vehicle driven by him that occasioned bodily harm to another, to ensure that the victim received all the assistance, including medical aid, that was necessary and practicable in the circumstances.
After applying a discount of 25% under s 9AA of the Sentencing Act 1995 (WA) for the respondent's plea of guilty on each count, the sentencing judge imposed terms of 16 months' immediate imprisonment on count 1 and 4 months' immediate imprisonment on count 2, to be served cumulatively. Thus, the respondent was sentenced to a total effective sentence of 20 months' immediate imprisonment. He was ordered to be eligible for parole.
The State challenges both individual sentences and the total effective sentence, in each case alleging implied error.
For the reasons that follow, we would uphold the ground challenging the sentence of 4 months' imprisonment on count 2 and so would resentence the respondent on both counts. We would resentence the respondent as follows:
Count 12 years' immediate imprisonment.
Count 21 year's immediate imprisonment, to be served cumulatively on count 1.
The facts
The facts of the offences were the subject of negotiation between the parties prior to sentencing.[1] The facts were recited by the prosecutor and stated by the sentencing judge in terms that are not challenged in the appeal.[2] The facts may be summarised as follows.
[1] ts 41.
[2] ts 19 - 20, 42 - 43.
At about 3.00 pm on 13 May 2018, in Karratha, the respondent was driving a station wagon towing a single axle box trailer. While he was stationary he saw the victim on a bicycle. At that time the respondent believed that the victim had sexually assaulted the respondent's mother about three weeks earlier. Consequently, when he saw the victim, the respondent became angry.
He drove his vehicle directly at the victim, leaving the roadway and colliding with the victim when the victim was adjacent to a fence. This caused the victim to strike the windscreen of the respondent's vehicle before falling against the fence and to the ground. The collision caused damage to both the fence and the front of the vehicle (count 1).
The judge noted that there were some differences in the versions of events advanced by the victim and the respondent but the differences related to matters that did not need to be resolved for the purposes of sentencing. Matters that were not resolved by the judge included (i) the exact mechanism of injury (specifically whether, after striking the windscreen, the victim went under the car or the trailer), (ii) the precise speed of the vehicle and trailer at the time the vehicle struck the victim and (iii) whether the victim was on his bicycle when the vehicle struck him.
The respondent then drove away without stopping to see if the victim was injured or needed assistance (count 2).
At the time, there were other people in the area. Those people went to the victim's aid and one of them took him to hospital.
The victim suffered a spinal fracture, namely a compression fracture to the L2 vertebra. He also suffered a significant laceration to his left ankle, which constituted the wounding for the purposes of count 1. It was accepted by the prosecution at sentencing that the injuries did not constitute grievous bodily harm.
The respondent was interviewed by police the following day. He made full admissions to his offending. He said he and his brother had come to Karratha from Perth a few days earlier in order to be with his mum because 'she really needed us to be here' following the sexual assault.[3] Upon arrival in Karratha, he and his brother went looking for the victim 'for about three, four days straight'.[4] At one point, they confronted and chased the victim when the victim turned up at their mother's house.[5] On the day of the incident, the respondent had gone around to his friend's place to pick up a motor.[6] When he happened to see the victim come around the corner on a bicycle, he saw red.[7] He admitted intending to harm the victim, saying it was to the point of 'just a broken leg or arm' but not to 'the point where there's no turning back'.[8] He said his plan was to 'jump out and have a fight with him', but he did not end up doing that because he thought the victim was trying to jump the fence.[9]
[3] EROI, page 9, 16.
[4] EROI, page 9, 18 - 19.
[5] EROI, page 9, 17.
[6] EROI, page 9, 20 - 21.
[7] EROI, page 21, 23.
[8] EROI, page 10.
[9] EROI, page 23 - 24.
The respondent's personal circumstances
The respondent is an indigenous man who was 35 years old at the time of his offending and 36 years old when sentenced.
He was raised in Perth by his grandparents, separately from his other siblings and in a different household. His parents had separated, his mother having had a history of chronic alcohol abuse. The respondent observed to the author of the psychological report that 'it is hard to watch someone drink themselves to death'.[10]
[10] Psychological report, page 4.
The respondent told the author of the psychological report that he does not maintain a relationship with his father, who has been incarcerated several times since the respondent's childhood.[11]
[11] Psychological report, page 4.
The respondent has been in a relationship with his current partner, with whom he has a child, for about four years.[12]
[12] Psychological report, page 4 - 5; pre-sentence report, page 3.
The respondent has six other children to four ex-partners. The children reside with their mothers or family.[13]
[13] Psychological report, page 4; pre-sentence report, page 3.
The respondent stopped using cannabis and methylamphetamine some years ago and does not have current issues with substance abuse.[14]
[14] ts 49; pre-sentence report, page 3.
The respondent left high school before completing year 10. He then engaged in Community Development Employment Projects for some years. He has had various employment over the years, including doing fly-in fly-out work at mine sites, driving trucks and working as a traffic controller. However, his work had been interrupted by a loss of licence due to speeding and a loss of demerit points. At the time of sentencing he was employed in a responsible position at a mine near Newman and was making financial provision for his children.[15]
[15] ts 47, 49; psychological report, page 5; pre-sentence report, page 3.
The respondent has a number of previous convictions, mostly for road traffic offences, but also some public order offences and an offence of attempted possession of methylamphetamine with intent to sell or supply. He was convicted of a failure to stop after property damage offence in 2009 and a failure to stop after an accident offence in 2003. In 2019 he was sentenced to a community based order for 9 months for an offence of aggravated common assault and to a suspended term of imprisonment of 8 months for offences of criminal damage and being armed or pretending to be armed in a way that may cause fear.
The judge observed that, significantly, the respondent had no history of violent offending and had never been sentenced to a term of immediate imprisonment.[16] As the present offending was the first occasion on which the respondent had been convicted of an offence of a violent nature, the judge observed that the offending may be seen to be out of character, adding weight to his explanation for his actions.[17]
[16] ts 47.
[17] ts 48.
Sentencing remarks
The sentencing judge reduced the sentences on each offence by 25% on account of the respondent's pleas of guilty at the earliest reasonable opportunity.[18] The judge referred to the following other mitigating factors:
(1)The respondent made admissions when interviewed by the police and accepted responsibility. The judge gave weight to the respondent's remorse as a mitigating factor.[19]
(2)The respondent presented as a person capable of leading a positive and productive life, having employment in a responsible position, a reasonably good work history and the benefit of a supportive partner.[20]
(3)At the time of the offending, as the psychological report indicated, the respondent was experiencing a lot of stress and had an overwhelming desire to protect his mother.[21]
(4)Given the nature of the offending, it may properly be seen as being out of character for the respondent.[22]
(5)Count 2 was mitigated in its seriousness by the fact that there were other people around who were able to come to the victim's aid, so that he was not left without any assistance. This was not a case of the respondent showing a callous disregard for the victim.[23]
(6)After the incident the respondent requested that his aunt ring the hospital to see whether the victim was all right. The judge accepted that that showed some contrition and acceptance of responsibility.[24]
[18] ts 41.
[19] ts 41.
[20] ts 47.
[21] ts 48.
[22] ts 48.
[23] ts 44.
[24] ts 45.
The judge made the following findings, favourable to the respondent, as to the circumstances of the offending:
(1)The decision to pursue the victim was made suddenly, when he recognised the person on the bicycle, although the respondent had been looking out for him in the days before the incident.[25] The respondent's decision to use the car that he was driving as a weapon was made on the spur of the moment.[26]
(2)The respondent did not harm the victim gratuitously in the sense of doing it for no reason or without provocation.[27]
[25] ts 45.
[26] ts 49.
[27] ts 44.
The sentencing judge identified aggravating features of the respondent's offending:
(1)The respondent used a motor vehicle, which is capable of causing serious injury or death to a cyclist or pedestrian, as a weapon to inflict injury.[28]
(2)Being on a bicycle, the victim was very vulnerable.[29]
(3)There was an element of vigilantism in the respondent's offence. What the respondent did was an act of retribution that he knew to be wrong, but lacked the self-control to avoid.[30]
(4)Although made on the spur of the moment, the respondent's decision to pursue the victim and to use his car to intentionally cause injury was deliberate and calculated.[31]
(5)Count 2 was aggravated by the fact that the respondent knew the victim was likely to have been injured and to have needed medical assistance.[32]
[28] ts 43.
[29] ts 44.
[30] ts 45.
[31] ts 45.
[32] ts 44.
The judge observed that the respondent, and also the victim, were fortunate that the victim was not more seriously injured.[33]
[33] ts 46.
The judge described the main sentencing considerations as personal and general deterrence.[34]
[34] ts 49.
Bearing in mind the intentional nature of the unlawful wounding, the judge concluded that the offending was so serious that only immediate imprisonment was appropriate.[35] There is (and could be) no challenge by the respondent to that conclusion.
[35] ts 49 - 50.
The judge imposed the sentences already noted: 16 months' immediate imprisonment on count 1; and 4 months' immediate imprisonment on count 2, to be served cumulatively on count 1.[36]
[36] ts 50.
Grounds of appeal
The State advances three grounds of appeal. The first alleges that the sentence on count 1 was manifestly inadequate. The second makes the same allegation in respect of count 2. Ground 3 contends that the total effective sentence breached the first limb of the totality principle.
On 10 March 2020, Buss P granted leave to appeal on each of these grounds.
The State's submissions
The State contends that, having regard to the maximum penalty, the place which the criminal conduct occupies on the scale of seriousness of offences of that type, the personal circumstances of the offender and the standards of sentencing customarily observed in relation to these offences, the sentences on each of counts 1 and 2 were manifestly inadequate.
The State points to the maximum penalty on count 1 of 20 years' imprisonment and, on count 2, of 10 years' imprisonment.
The State submits that the following matters demonstrate the seriousness of the respondent's offending the subject of count 1:
(1)The respondent deliberately used a motor vehicle as a weapon. Cyclists and pedestrians are extremely vulnerable to such attacks, and the potential for serious injury or death is clear. In this case, the trailer on the back increased the danger to the victim.[37]
(2)Although the sentencing judge accepted that the decision to use the vehicle to pursue the victim was made suddenly, the judge found that the respondent had been looking for the victim for some days and had confronted him three days earlier.[38]
(3)The offence involved vigilantism, which cannot be tolerated and which underlines the importance of both general and specific deterrence.[39]
(4)Although the respondent genuinely believed that the victim had offended against his mother, so that the offending was not gratuitous, the respondent had had a significant period of time in which to consider his response.[40]
(5)While the unlawful wounding element was satisfied by the severe cut to the victim's ankle, he also sustained a compression fracture of the vertebra. The latter injury was a relevant part of the circumstances of this offence.[41] Thus, the victim suffered serious injuries. However, because the injuries fell short of grievous bodily harm, the State accepts that, in this respect, the respondent's offence was not at the higher end of the scale of offences against s 294(1)(a) of the Code, which encompasses both wounding and the doing of grievous bodily harm.[42]
[37] Appellant's submissions [10], [36]; appeal ts 8, 11 - 12.
[38] Appellant's submissions [11]; appeal ts 11.
[39] Appellant's submissions [13].
[40] Appellant's submissions [12].
[41] Appeal ts 7 - 8.
[42] Appellant's submissions [14].
In written submissions, the State asserted that the gravamen of an offence under s 294(1) of the Code lies in the intent with which the act was done.[43] However, in oral argument the State properly accepted that the intent, the act done and the harm caused are all relevant elements of an offence against s 294(1) and the weight to be given to each depends upon the circumstances of the case.[44]
[43] Appellant's submissions [24].
[44] Appeal ts 8 - 9.
As to count 2, the State emphasises that the respondent had deliberately caused the harm for which assistance was required, making the case more serious than those in which the harm was not caused intentionally or even negligently. While the State acknowledges that the respondent was aware that another person was present at the scene, it submits that the respondent did not know that person and did not know that he would provide assistance.[45]
[45] Appellant's submissions [15] - [16]; appeal ts 16 - 18.
The State points to a number of comparable cases of offences under s 294(1) of the Code.[46]
[46] Stephens v The State of Western Australia [2005] WASCA 98 and its review of cases; Bolton v The State of Western Australia [2012] WASCA 2; Thompson v The State of Western Australia [2019] WASCA 68; Zhang v The State of Western Australia [2013] WASCA 121; Abfahr v The State of Western Australia [2013] WASCA 87.
The State also refers to several cases of offences under s 304(2) of the Code involving the use of a vehicle, which it submits are comparable having regard to their circumstances and the identical maximum penalty of 20 years' imprisonment.[47]
[47] Yates v The State of Western Australia [2008] WASCA 144; The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116; Vander Waide v The State of Western Australia [2019] WASCA 148; (2019) 89 MVR 525; Hinkley v The State of Western Australia [2014] WASCA 122; Chikonga v The State of Western Australia [2017] WASCA 34.
As to count 2, the State refers to Fazari v The State of Western Australia,[48] Petersen v The State of Western Australia,[49] as well as Abfahr v The State of Western Australia and Vander Waide v The State of Western Australia.
[48] Fazari v The State of Western Australia [2012] WASCA 176; (2012) 224 A Crim R 372.
[49] Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45.
It points to The State of Western Australia v Wallam, Abfahr, Hinkley v The State of Western Australia and Chikonga v The State of Western Australia in support of its submission that the total effective sentence of 20 months' imprisonment failed to adequately reflect the overall criminality of the offending.[50]
[50] Appellant's submissions [48].
The respondent's submissions
The respondent accepts that his overall offending was serious and that both counts involved serious elements.[51] He emphasises the judge's findings as to the spur of the moment nature of the offending in count 1, and it having been committed in the belief that the victim had sexually assaulted his mother.[52]
[51] Respondent's submissions [13] - [16]; appeal ts 22, 27.
[52] Respondent's submissions [17] - [18].
The respondent emphasises the following mitigating circumstances and circumstances of the offending found by the sentencing judge:[53]
(1)The respondent pleaded guilty at the first reasonable opportunity. The sentencing judge reduced the head sentence that he would have imposed on the respondent by 25% in accordance with s 9AA of the Sentencing Act.[54]
(2)The respondent made admissions in his record of interview with the police and had taken responsibility for his actions.[55] Despite there having been some variation between the respondent's recollection of the incident and the admitted facts, the sentencing judge found that his pleas and admissions carried weight.[56]
(3)The respondent did not harm the victim gratuitously, and his actions were not unprovoked, because they were based on what he believed had happened to his mother. In that regard the respondent was under significant stress at the time of the offending and felt pressure to seek retribution.[57]
(4)While the respondent had previously decided to seek out the victim for the purposes of hurting him, and had driven to Karratha for that reason, the decision to pursue the victim in a car was made suddenly when he recognised the victim.[58] The respondent had borrowed the car to collect a motor and his use of it had nothing to do with his intention to deal with the victim.[59] As the sentencing judge found, the respondent chose to use the car as a weapon, but only in the 'spur of the moment'.[60]
(5)In relation to count 2, the seriousness of that offending was 'mitigated in its seriousness' by the fact that there were other people who were around and who were able to come to the victim's assistance. The sentencing judge was also unable to find that the respondent showed a callous disregard for the victim.[61]
(6)Shortly after the event the respondent asked a relative to ring the hospital to check on the victim's welfare, which the sentencing judge found showed some contrition and acceptance of responsibility on the respondent's part.[62]
(7)While the respondent did have a criminal record, he did not have a history of committing violent offences and he had never been sentenced to a term of immediate imprisonment before.[63]
(8)The respondent had demonstrated that he had insight into his offending and had expressed regret for his actions. It was also the case that he had stable employment and accommodation, and had a positive relationship with his partner.[64]
[53] Respondent's submissions [38].
[54] ts 41.
[55] ts 41.
[56] ts 41.
[57] ts 44, 46 - 47.
[58] ts 45.
[59] ts 46.
[60] ts 49.
[61] ts 44.
[62] ts 45.
[63] ts 47.
[64] ts 48 - 49.
The respondent submits that the sentences imposed for each of counts 1 and 2 fell within the range of a sound exercise of discretion.[65]
[65] Respondent's submissions [31] - [36].
The respondent accepts that the aggregate sentence of 20 months' imprisonment was towards the bottom end of the range of sentences that could properly be imposed. However, he submits that it is not unreasonable or plainly unjust, so that the totality principle was not infringed.[66]
[66] Respondent's submissions [43].
Disposition
The following general principles relating to an appeal alleging manifest excess or manifest inadequacy are well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(4)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range of sentence that might have been imposed upon a proper exercise of the sentencing discretion.
(5)In the case of a State appeal against sentence, this court has a residual discretion under s 31 of the Criminal Appeals Act 2004 (WA) to decline to allow an appeal against a sentence that is erroneously lenient.
Section 54 of the Road Traffic Act provides, so far as is relevant:
(1)If a vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person, the driver must stop immediately after the occurrence of the incident and for as long as is necessary to comply with subsections (2) and (6).
(2)If a vehicle driven by a person (the driver) is involved in an incident occasioning bodily harm to another person (a victim), the driver must ensure that each victim receives all the assistance, including medical aid, that is necessary and practicable in the circumstances.
(3)A person who contravenes subsection (1) or (2) commits a crime.
Penalty for this subsection: imprisonment for -
(a)20 years, if the incident occasioned death and, in any event, the court convicting the person must order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than 2 years;
(b)14 years, if the incident occasioned grievous bodily harm but not death and, in any event, the court convicting the person must order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than 2 years;
(c)10 years, in any other case and, in any event, the court convicting the person must order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than 12 months.
Summary conviction penalty in a case to which paragraph (c) applies: imprisonment for 3 years and, in any event, the court convicting the person must order that the person be disqualified from holding or obtaining a driver's licence for a period of not less than 12 months.
As already noted, count 2 fell within the ambit of s 54(3)(c), in that bodily harm not constituting grievous bodily harm was caused to the victim. Thus the maximum penalty was 10 years' imprisonment.
None of the cases to which the parties referred involved offences punishable under s 54(3)(c). All of them were in the more serious categories where the incident occasioned death or grievous bodily harm, attracting higher maximum penalties. Moreover, the significant differences in the circumstances of the offending in those cases, as compared to the present case, mean they are of limited assistance as comparable cases.
The absence of any directly comparable cases does not preclude the court from deciding that an individual sentence is manifestly inadequate (or manifestly excessive).[67] It simply means that the question of manifest inadequacy must be approached without using comparable cases as a yardstick and by reference to the maximum sentence for the relevant offence, the place which the offending conduct occupies on the scale of seriousness of offences of that kind, and the personal circumstances of the offender.[68]
[67] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39]: The State of Western Australia v Doyle [2017] WASCA 207 [36].
[68] Munda [33]; Gaskell v The State of Western Australia [2018] WASCA 8 [23], [143].
The maximum penalty for an offence 'provide[s], taken and balanced with all of the other relevant factors, a yardstick'.[69] Attention should be directed to where the facts of the particular offence and offender lie on the spectrum that extends from the least serious instances of the offence to the worst category, being those offences so grave as to warrant the maximum prescribed penalty.[70]
[69] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [31]; Munda [40]; Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 262 CLR 428 [10].
[70] Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 452; R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [19].
More serious examples of an offence against s 54(1) of the Road Traffic Act, punishable under s 54(3)(c), can be readily imagined. One example would be where an accident occurred in an isolated location and where the offender knew that (i) the victim had suffered serious injuries (albeit not grievous bodily harm) and (ii) there was no other person present to assist the victim.
Nevertheless, the respondent's offence had features that meant it was not at or close to the least serious end of the spectrum of seriousness of offences punishable under s 54(3)(c).
First, and significantly, the respondent had deliberately driven his car so as to collide with the victim. Having deliberately caused the incident that triggered his obligation to render assistance to the victim, the respondent's failure to do so was all the more serious.
Secondly, while the respondent did not know precisely what had happened to the victim, what he knew - that he had driven his car so as to strike the victim and had actually struck the victim - was comfortably sufficient to mean the risk that the victim suffered an injury requiring medical attention was so obvious that the respondent must be taken to have known of that risk. The judge found that the respondent knew the victim was likely to have been injured and to have needed medical assistance.[71]
[71] ts 44.
Thirdly, while the judge found that the respondent did not show callous disregard for the victim, in that there were other people around, the respondent did not know the other persons who were there and was in no position to assume with confidence that another person would provide assistance to the victim.
Fourthly, any bodily injury which interferes with health or comfort amounts to bodily harm.[72] Many injuries distinctly less serious than those suffered by the victim in this case would meet that threshold of the application of s 54.
[72] Criminal Code (WA), s 1(1).
Fifthly, although of lesser significance, the respondent had committed offences of a similar nature, albeit more minor and many years earlier. As already noted, the respondent was convicted in 2009 of an offence of failing to stop after property damage and in 2003 of an offence of failing to stop after an accident.
The sentencing judge imposed a term of 4 months' imprisonment for count 2, in the context of a maximum penalty of 10 years' imprisonment. The respondent accepts that the term for count 2 was not influenced by totality considerations.[73]
[73] Appeal ts 35.
In our respectful opinion, taking into account the matters we have referred to in [51] ‑ [56] above, and giving full weight to the mitigating factors and features of the offending in the respondent's favour, as summarised in [41] above, a sentence of 4 months' imprisonment was manifestly inadequate. In other words, taking into account:
(a)the maximum penalty of 10 years' imprisonment for the offence;
(b)the place the respondent's offending conduct occupies in the scale of seriousness of offences punishable under s 54(3)(c) of the Road Traffic Act;
(c)the offender's personal circumstances; and
(d)all relevant sentencing factors, including the mitigating factors and features of the offending summarised at [41] above,
the sentence on count 2 of 4 months' immediate imprisonment was unreasonable or plainly unjust, not merely lenient. In our respectful opinion, the sentence was not commensurate with the seriousness of the respondent's offending. The sentence imposed was appreciably less than any sentence open on the proper exercise of the sentencing discretion. Implied error has been demonstrated.
For these reasons, ground 2 of the appeal has been made out.
The respondent concedes that there is no reason for this court to exercise the residual discretion under s 31(4) of the Criminal Appeals Act to dismiss the appeal.[74] We recognise that the respondent does not bear an onus to establish that the residual discretion should be exercised in his favour. Rather, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised.[75]
[74] Respondent's submissions [44].
[75] CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34], [66].
In our opinion, the respondent's concession is appropriate - there is no basis in the present case for invoking the residual discretion. As we have said, in our respectful opinion appellable error has been clearly established - the sentence imposed by the sentencing judge was appreciably less than any sentence open on a proper exercise of the sentencing discretion. This court's intervention is necessary to ensure that proper sentencing standards are adopted and maintained for offences under s 54 of the Road Traffic Act.
Where an appellate court concludes that the sentencing judge's discretion miscarried in respect of one component of a sentence, including, as in the present case, one of the individual sentences forming part of the total effective sentence, the whole of the sentence imposed by the sentencing judge must be set aside, and the offender resentenced.[76]
[76] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9]; YDN v The State of Western Australia [2018] WASCA 62 [53]; Law v The Queen [2019] WASCA 81 [134].
Consequently, it is necessary for this court to resentence the respondent in respect of both counts and to fix what it considers to be an appropriate total effective sentence. That being so, it is unnecessary to deal with the other grounds of appeal.
Resentencing
This court has the material necessary to resentence the respondent.
We take into account, without repeating, what we have already said concerning the facts and circumstances of the offences, the respondent's personal circumstances and the aggravating and mitigating factors found by the sentencing judge and not challenged in this court.
In resentencing, we have taken into account general standards of sentencing revealed by prior cases with at least some features comparable to the respondent's offending, including the cases referred to by the parties.
We refer to what we have already said as to comparable cases concerning count 2.[77] As to count 1, we make the following observations.
[77] See [47] above.
The terms of s 294(1) of the Code reveal that it encompasses a wide variety of conduct committed with a range of different intents. The cases have recognised that, as a consequence, the seriousness of the circumstances of offending under this provision can be highly variable.[78]
[78] Black v The State of Western Australia [No 2] [2010] WASCA 145 [28]; Thompson v The State of Western Australia [2019] WASCA 68 [57].
The element of intention in s 294(1) makes the offence more serious than an offence involving the same or similar harm committed without intent.[79]
[79] King v The Queen [1999] WASCA 9 [90]; Black [No 2] [27].
There are three cases involving offending contrary to s 294 in which a car was used. In each of them, the offender was convicted after trial and caused grievous bodily harm, not wounding, to the victim. As is apparent from the summaries that follow, the circumstances of the offending in each of those cases was significantly more serious than in the present case. None is closely comparable.
In Stephens v The State of Western Australia, the victim was running along a road after an affray at a tavern involving the offender. The offender pursued the victim in his car onto a grassed area, taunting him by coming up close behind him and stopping before hitting him. As the victim ran onto the bitumen of a car park, he slipped and fell, becoming wedged underneath the offender's car. The offender knew the complainant was under his car and deliberately drove the car for a distance of about 30 m, knowing it was likely to cause grievous bodily harm to the victim. The victim suffered permanent physical and emotional injuries. McLure JA, with whom Malcolm CJ and Roberts‑Smith JA agreed, concluded that the sentence of 6 years' imprisonment imposed was within, albeit at the high end of, the range of sentencing discretion, saying as follows:[80]
The circumstances of the offence in this case are very serious. The applicant intentionally used his vehicle as an instrument to cause fear and then grievous bodily harm. The applicant's subsequent conduct in engaging in, and drawing others into, a web of deceit to avoid responsibility for the crime and his reported explanation for his conduct counterbalance the claims of remorse and demonstrated rehabilitation.
[80] Stephens [23].
In Zhang v The State of Western Australia, the offender deliberately ran down a cyclist, who he knew to be his boss, at 100 km per hour on a country road. The victim received very severe life threatening injuries which had profound adverse effects on him in both the short and long term. On resentencing by this court, the offender was sentenced to a term of 8 years 6 months' imprisonment. In our view, Zhang involved offending that was so significantly more serious than the respondent's offending as to provide no real assistance as a comparator.
In Abfahr, the offender's wife got off a bus and walked along a footpath. The offender drove the car onto the footpath and struck her with the middle of the car bonnet, causing her to be thrown into the air, while he kept going without stopping. The offending was not premeditated; his intention arose when he saw his wife on the footpath. The victim sustained serious injuries, including a broken femur, broken ankle, broken nose and soft tissue injuries. The offender was sentenced to 5 years' immediate imprisonment, which was not disturbed on appeal. This court observed:[81]
The egregious character of the offending was stark. The appellant deliberately carried out a violent attack on [the victim]. He intended to (and did) cause her significant injuries. He seized the opportunity to run her down with some enthusiasm. Appropriate punishment and personal and general deterrence were the main sentencing considerations.
[81] Abfahr [77].
There are a number of cases in which the offending involved vehicles where the offence was contrary to s 304(2) of the Code, which also has a 20‑year maximum. Only broad assistance can be obtained from cases involving different offences, notwithstanding that the different offences have the same maximum penalty.
The most closely comparable of these cases is Hinkley. The offender deliberately ran down the ex-partner of her current partner in the context of a dispute between the offender and her partner. As the victim walked up the driveway of the partner's house, the offender reversed her car so that it was pointing towards the victim and then drove towards the victim. The victim took evasive action. The offender reversed her car again, causing damage to the victim's car. While the victim was inspecting the damage the offender approached again, crossing the median strip and driving on the wrong side of the road towards the victim. The offender hit the victim from behind, causing her to flip into the air over the bonnet of the car as it continued forwards. The speed was estimated to be about 40 ‑ 50 km an hour. The offender drove away at speed without making any attempt to assist the victim, who suffered bruising and grazing, with ongoing back pain and psychological issues. The offender demonstrated remorse and was allowed a deduction of 25% for her early plea of guilty. Her depression was also a mitigatory factor. The court refused leave to appeal on the ground that the sentence of 30 months' immediate imprisonment was manifestly excessive.
We would highlight the following aspects of the facts of the offending the subject of count 1.
Some of the objective features of the respondent's offending the subject of count 1 were very serious. He deliberately used a motor vehicle as a weapon against a vulnerable cyclist. It was an element of the offence that he intended to cause serious injury. His conduct created an obvious potential for serious injury or death. The consequences of his conduct were neither controllable nor predictable by him. It was only good fortune that the victim did not suffer more serious injuries.
The respondent's use of the car as a weapon was not pre‑meditated, but made on the spur of the moment when he saw the victim.[82] Moreover, his instinctive reaction to act as he did occurred in extraordinary circumstances - he reasonably believed that the victim had sexually assaulted his (the respondent's) mother and had subsequently returned to his mother's house and feared that the victim might do something else to his mother.[83] Those extraordinary circumstances significantly reduced the extent to which the element of vigilantism, which in some cases is seriously aggravating, was an aggravating factor in this case. The extraordinary nature of those circumstances also supported the judge's conclusion that the respondent's offending conduct was out of character.[84]
[82] ts 45, 49.
[83] ts 44 - 46.
[84] ts 48.
In addition to pleading guilty at the first reasonable opportunity, the respondent demonstrated remorse and insight.[85]
[85] ts 41, 45, 48.
Putting aside the mitigating effect of the respondent's personal circumstances, the sentence of 2 years' imprisonment which we would impose would ordinarily be an inadequate reflection of the serious criminality involved in offending conduct with the features described at [77] above.
However, the respondent's personal circumstances are not to be put aside. He was born to a mother with a history of chronic alcohol abuse and a father who spent considerable periods of the respondent's childhood in prison. It is, in our view, a significant mitigating factor that the respondent has overcome that deprived background to become a useful member of the community, employed in a productive position and supporting a family in a stable relationship. He has a criminal record, but it is a moderate record and he has not previously committed any offence justifying imprisonment. The impediments to that achievement must have been significant. The common impacts of such a deprived background are described by the High Court in Bugmy v The Queen.[86] They are tragically reflected in the unacceptably high rates of incarceration of indigenous Australians in this State,[87] who, all too commonly in the experience of the courts, face such social deprivation in their childhood.
[86] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [37] - [40].
[87] See Churnside v The State of Western Australia [2016] WASCA 146 [1] - [5].
The fact that a person is able to overcome childhood social deprivation of that kind to lead a pro-social life, even if the journey is not without blemishes reflected in the person's criminal record, is a mitigating factor ordinarily deserving of considerable weight in the exercise of the sentencing discretion. That is all the more so where the offending for which the person falls to be sentenced is out of character, and committed in circumstances of unusual stress which are not of the person's own making. It is not in the interests of the community for those achievements to be undone by a sentence of immediate imprisonment unless the seriousness of the offending demands that outcome. Further, where the seriousness of the offence is such as to demand a sentence of immediate imprisonment, full weight should be given to the mitigating effect of the manner in which the offender has overcome the challenges which he or she has faced. The term of immediate imprisonment should be for no longer than is necessary to take account of all relevant sentencing considerations including appropriate punishment and deterrence.
In the present case, the seriousness of the respondent's offending was such that a term of immediate imprisonment was the only appropriate sentencing option, notwithstanding the mitigating factors to which we have referred. However, in determining the length of that sentence, account is to be taken of the challenges which the respondent has overcome and the fact that he acted impulsively in a way that was out of character when under considerable stress as a result of his mother telling the respondent that the victim had raped her. Those mitigating personal circumstances justify a sentence of immediate imprisonment which is considerably lower than would ordinarily be commensurate with the seriousness of offending of the kind of which the respondent was convicted, with its serious features outlined at [77] above.
We refer to what we have already said as to the circumstances of count 2.
We would allow a discount of 25% pursuant to s 9AA of the Sentencing Act on the head sentences we would otherwise have imposed for each of counts 1 and 2.
We would resentence the respondent as follows:
Count 12 years' immediate imprisonment.
Count 21 year's immediate imprisonment, to be served cumulatively on count 1.
Thus we would impose a total effective sentence of 3 years' imprisonment, which reflects our assessment of the overall criminality involved in the respondent's offending, viewed in its entirety, and having regard to all relevant circumstances including those referrable to the respondent personally. In fixing the sentences for each offence we have been careful to ensure that the respondent has not been punished twice to any extent. In particular, in fixing the sentence on count 1, we have not had regard to the respondent's conduct in leaving the scene immediately after the incident.
The sentence on count 1 should be taken to have commenced on 16 January 2020. We would order that the respondent be eligible for parole.
Conclusion
For the above reasons, we would uphold the appeal, set aside the sentences imposed by the sentencing judge and resentence the respondent in the manner set out in [86] - [88].
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Associate to the Honourable Justice Beech25 AUGUST 2020
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