The State of Western Australia v Legge
[2014] WASCA 47
•28 FEBRUARY 2014
THE STATE OF WESTERN AUSTRALIA -v- LEGGE [2014] WASCA 47
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 47 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:55/2013 | 22 NOVEMBER 2013 | |
| Coram: | PULLIN JA NEWNES JA MAZZA JA | 28/02/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Respondent resentenced to 7 years and 6 months' imprisonment | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA CARL PEARSON LEGGE |
Catchwords: | Criminal law State appeal against sentence Grievous bodily harm with intent Whether injuries were likely to endanger life Whether trial judge was bound by other sentences given Whether sentence was manifestly inadequate |
Legislation: | Criminal Code (WA), s 1, s 294(1) |
Case References: | Abfahr v The State of Western Australia [2013] WASCA 87 Barbaro v The Queen [2014] HCA 2 Bolton v The State of Western Australia [2012] WASCA 2 Eriha v The State of Western Australia [2011] WASCA 167 Hili v The Queen (2010) 242 CLR 520 McCormack v The Queen [2000] WASCA 139 Minhaj v The Queen [2000] WASCA 52 Munda v The State of Western Australia [2013] HCA 38; (2013) 87 ALJR 1035 Petrelis v The State of Western Australia [2012] WASCA 235 Smith v The Queen [2003] WASCA 57; (2003) 138 A Crim R 403 Stephens v The State of Western Australia [2005] WASCA 98 The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 The State of Western Australia v Naumoski [2013] WASCA 215 Vilai v The Queen [1999] WASCA 275 Wells v The State of Western Australia [2013] WASCA 124 Zhang v The State of Western Australia [2013] WASCA 121 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- LEGGE [2014] WASCA 47 CORAM : PULLIN JA
- NEWNES JA
MAZZA JA
- Appellant
AND
CARL PEARSON LEGGE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : McCANN DCJ
File No : IND 787 of 2012
Catchwords:
Criminal law - State appeal against sentence - Grievous bodily harm with intent - Whether injuries were likely to endanger life - Whether trial judge was bound by other sentences given - Whether sentence was manifestly inadequate
Legislation:
Criminal Code (WA), s 1, s 294(1)
Result:
Appeal allowed
Respondent resentenced to 7 years and 6 months' imprisonment
Category: B
Representation:
Counsel:
Appellant : Mr J McGrath SC
Respondent : Ms B Lonsdale
Solicitors:
Appellant : Director of Public Prosecutions (WA)
Respondent : Marilyn Loveday
Case(s) referred to in judgment(s):
Abfahr v The State of Western Australia [2013] WASCA 87
Barbaro v The Queen [2014] HCA 2
Bolton v The State of Western Australia [2012] WASCA 2
Eriha v The State of Western Australia [2011] WASCA 167
Hili v The Queen (2010) 242 CLR 520
McCormack v The Queen [2000] WASCA 139
Minhaj v The Queen [2000] WASCA 52
Munda v The State of Western Australia [2013] HCA 38; (2013) 87 ALJR 1035
Petrelis v The State of Western Australia [2012] WASCA 235
Smith v The Queen [2003] WASCA 57; (2003) 138 A Crim R 403
Stephens v The State of Western Australia [2005] WASCA 98
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
The State of Western Australia v Naumoski [2013] WASCA 215
Vilai v The Queen [1999] WASCA 275
Wells v The State of Western Australia [2013] WASCA 124
Zhang v The State of Western Australia [2013] WASCA 121
1 PULLIN JA: This is a State appeal against sentence. The respondent was charged with one count of unlawfully wounding or doing grievous bodily harm with intent to maim, disfigure, disable or do some grievous bodily harm contrary to s 294(1) of the Criminal Code (WA) (the Code). After a trial before a judge and jury, the jury returned a verdict of guilty. The learned sentencing judge stated that he would 'enter a judgment of conviction as charged'. The certificate of final outcome of charge incorrectly records the judgment by stating that the respondent was convicted of unlawfully wounding another with intent. The respondent was sentenced to 6 years' imprisonment.
2 The facts as found by the learned sentencing judge are as follows. The respondent and Mr Matthew Worthington (the victim) were neighbours who lived on adjoining semirural properties in Brookton. The victim and his family ran a small farm on their property, raising various animals and operating a boarding kennel business.
3 On 10 February 2012, the respondent and the victim had a verbal confrontation about the behaviour of the respondent's dogs. The confrontation took place at the boundary between the respondent's property and the victim's property. The respondent and the victim were separated by a barbed wire fence. To scare off the respondent's dogs who were barking aggressively and moving backwards and forwards across the boundary fence, the victim took a piece of poly pipe and banged it on the ground. The victim's father, Mr Murray Worthington, approached the location where the confrontation was taking place and discharged a firearm to scare the respondent's dogs. After the firearm was discharged, the dogs retreated permanently onto the respondent's side of the boundary fence.
4 The respondent and the victim continued to argue until the respondent walked away from the victim towards his dwelling. Before the respondent entered his dwelling, he stopped, lowered his trousers and pointed his naked buttocks to the victim and other members of the victim's family. He then entered his dwelling and retrieved a samurai sword. The respondent walked back to the place where the verbal confrontation occurred, concealing the samurai sword behind his back. When the respondent was close enough to the victim, he produced the samurai sword and attempted to strike the victim with it. The victim raised the piece of poly pipe to protect himself, but the poly pipe was dislodged from his hands. The respondent raised the sword again and, with considerable force, struck the victim on the right, rear portion of his head. This blow caused a deep, 10 cm laceration which cut into the victim's skull bone and severed two arteries, which immediately caused bleeding.
5 The respondent then climbed the boundary fence while screaming that he intended to kill the victim, his family and their dogs. The respondent continued to swing the samurai sword, and the victim managed to dodge several sword strikes and to protect himself with his hands, causing a laceration to one hand and abrasions. Another blow cut the victim's toe through the nail before following through and cutting the respondent's own knee, causing an injury that later required surgery. Eventually, the victim and his father managed to disarm and restrain the respondent. The respondent continued to threaten the victim and his family and urged his dogs to attack them.
6 The sentencing judge made a number of findings in relation to the victim's injuries. The sentencing judge found that the blow to the victim's head which severed two arteries caused significant blood loss and cut into the bone of the victim's skull. The cut in the bone was 5 cm in length and left the victim with a permanent scar and permanent indentation to his skull. The victim now suffers from regular migraines and a serious post-traumatic stress disorder. The sentencing judge accepted that the attack will have an impact on the victim's health and comfort for the foreseeable future, as well as his employment prospects.
Medical evidence
7 During the trial, Dr Peter Beaton gave evidence that he treated the victim at Narrogin Regional Hospital. Dr Beaton testified that if the victim had received no medical attention, there would have been an increase in blood loss, which could lead to haemorrhagic shock, which in turn could lead to multi-organ failure and death. In terms of the definition of grievous bodily harm in s 1 of the Code, this meant that the wound to the victim's head endangered, or was likely to endanger, the life of the victim. That evidence was uncontradicted.
8 Notwithstanding Dr Beaton's evidence, the learned sentencing judge said:
I adopt, in these reasons, what I said during submissions as to why I have not reached a required level of satisfaction as to the first limb. Dr Beaton's evidence simply failed to persuade me that there is only one inference reasonably open and that is that death was likely.
9 The sentencing judge's reference to the 'first limb' was a reference to the first limb of the definition of grievous bodily harm, which is established if any bodily injury endangered, or was likely to endanger, life. In contrast, the second limb of the definition is satisfied if any bodily injury caused, or was likely to cause, permanent injury to health.
10 The sentencing judge's reference to what was said during submissions was a reference to an interchange that had taken place during submissions in mitigation between the sentencing judge and the respondent's counsel. During the interchange, reference was made to Dr Beaton's evidence by counsel for the respondent and the sentencing judge said 'I have my doubts about that evidence'. His Honour added 'I'm inclined to find that the injuries themselves were not life-threatening, but if not treated would have led to very unpleasant consequences, the risk of infection and a horrible scar and all sorts of things'. Counsel for the respondent pointed out that by those comments, his Honour was referring to the injuries to the respondent's knee, rather than the injuries to the victim. His Honour then said that it was 45 minutes before the ambulance arrived, and that although there was evidence of blood loss, he had looked at the relevant photographs and 'there didn't seem to be much blood at all'. His Honour said that he had seen people hit by cricket balls which caused a lot of bleeding, and that in the case of the victim's injuries, there was no evidence of blood on the ground or of bloodstained clothing. He added, '[c]ertainly the wounds were life-threatening and were meant to be life-threatening. And I don't think [the victim] would have died. I can't be satisfied beyond reasonable doubt that he was moribund as he sat there on the ground'.
Lack of any mitigating factors
11 The respondent was aged 37 years at the time of the offending. The respondent has never had a proper relationship with his father, but seems to have a good relationship with his mother. The respondent also has a close and caring relationship with his 16-year-old son. The respondent left high school in year 9 and started to take cannabis at the age of 13 years. The respondent also has a long history of alcohol abuse.
12 The respondent has an extensive prior record of offending. His juvenile criminal record includes many traffic offences and shows that cannabis and alcohol were a problem for the respondent from a young age. As an adult, the respondent has two convictions for threatening behaviour; one for trespass; two for assault; five for damage or wilfully destroying property; five for disorderly behaviour; 12 for assaulting police officers, obstructing public officers, hindering a public officer or breaching bail; and four for weapons and ammunition offences. He has previously been imprisoned on a conviction for assault occasioning bodily harm. His Honour noted that the conviction, which was in 1993, was for an 'unbelievably brutal attack, in company, on a defenceless person'. His Honour also noted that the respondent has $17,580.30 in outstanding fines in respect of the convictions outlined above, and that the respondent has never paid a court imposed fine 'in [his] entire life'.
13 The sentencing judge made the following observations. His Honour said that the victim's psychiatric injuries were very serious and very debilitating. He held that the mode of attack, 'in other words the weapon and the way in which it was used, was of the worst kind. The sword was dangerously lethal and was used with focused and extreme, in other words potentially lethal, force'. His Honour noted that only the victim's ability to dodge some of the blows and the availability of reinforcements saved the victim from more serious injuries which could have been fatal. His Honour said that the respondent 'cold bloodedly formed a potentially lethal intention and set about implementing it in a treacherous, vicious and cowardly way and but for being overwhelmed would not have stopped'. His Honour found that as well as the respondent showing no remorse, he had no pity and no regret for what he had done. His Honour noted that the respondent had previously performed badly on community-based dispositions. His Honour found that the respondent would not be amenable to therapeutic treatment.
14 The sentencing judge noted that the respondent had engaged in hostile, aggressive and threatening behaviour only a couple of months before the offence was committed; that the respondent's behaviour was 'entrenched' and 'getting worse'; and that the respondent had no insight whatsoever of the danger he was to himself and the community. He was at an 'elevated risk of further offending, including cowardly and violent attacks on other people'. As a result, his Honour said that the protection of the public and personal deterrence were elevated sentencing considerations.
Reference to other authorities
15 The sentencing judge then referred to some authorities, in particular the sentence imposed at first instance in the matter of The State of Western Australia v Naumoski [2013] WASCA 215 where his Honour had sentenced the offender after trial to 5 years' imprisonment for grievous bodily harm with intent. At the time of the respondent's sentencing, Naumoski was under consideration by this court following a State appeal against sentence.
16 His Honour also referred to the matter of Eriha v The State of Western Australia [2011] WASCA 167. Eriha was stated as being an instance of a 'worst case', which activated the maximum term of 20 years' imprisonment. His Honour observed that the sentence imposed in that case was 9 years' imprisonment and noted that there was no State appeal against sentence. His Honour then found that this case was not a 'worst case', and that because of the 9 year sentence imposed in Eriha:
I find that it is utterly beyond my power to give you, [the respondent], the maximum or anything even close and the sentence has to be well under … half the maximum, so my hands are tied.
17 His Honour then repeated that there were 'virtually' no mitigatory factors, that there was no plea of guilty, no remorse and that the respondent did not have youth on his side. His Honour then imposed the sentence of 6 years' imprisonment with parole eligibility.
Grounds of appeal
18 The appellant's grounds of appeal read:
1. The trial judge erred in fact and in law in failing to find that the injuries to the head sustained by the victim were likely to endanger life, a conclusion which was contrary to the unchallenged medical evidence given at the trial.
2. The trial judge erred in law in concluding that his discretion as to the length of the term of imprisonment his Honour could impose was constrained by the sentence imposed in the case of Eriha v The State of Western Australia [2011] WASCA 167, which fixed a boundary that limited his judicial discretion.
3. The trial judge erred in law in imposing a term of imprisonment that was so inadequate as to manifest error.
Ground 1
19 With respect to ground 1, counsel for the respondent did not dispute that the trial judge erred in finding that the injuries were not likely to endanger life. Counsel was correct to do so. The uncontradicted medical evidence was that untreated, the injury to the victim's head endangered, or was likely to endanger, life. Ground 1 must be upheld.
Ground 2
20 Similarly, counsel for the respondent acknowledged that the sentencing judge erred in concluding that he was constrained by the sentence imposed in Eriha. Again, counsel was correct to do so. Eriha did not 'tie' his Honour's hands.
21 Ground 2 should be upheld.
22 The fact that grounds 1 and 2 have been upheld does not necessarily mean that the sentence should be set aside and the appellant resentenced. In a State appeal against sentence, the appeal may be dismissed even if error is revealed in the sentencing judge's sentencing remarks. However, the discretion to dismiss the appeal is only likely to be exercised if the error has not resulted in a manifestly inadequate sentence: The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 [41]. As a result, it is necessary to give close consideration to ground 3.
Ground 3
23 The appellant contended that the sentence was manifestly inadequate. The principles governing this type of appeal are well understood. Because the imposition of a sentence involves the exercise of discretion, an appellate court will only intervene if the appellant demonstrates that the judge erred in exercising the discretion. That can be shown by implied error or express error. Implied error is alleged by this ground.
24 As revealed by ground 1, the injury to the victim was life-threatening so it was the most serious type of offence of grievous bodily harm with intent; that is, it was more serious than a case of grievous bodily harm with intent where the second limb of the definition of grievous bodily harm only was established. The circumstances of the offence need not be repeated. They are set out above.
25 Although sentences imposed in other cases do not control the court to the point where it is unable to impose a sentence other than those within the range of other sentences imposed, comparable cases do have considerable importance because of the need for uniformity in sentencing.
26 The sentencing judge was influenced to some degree by the sentence he had imposed on the offender in Naumoski. There, his Honour had sentenced the offender to 5 years' imprisonment. However, on appeal the sentence of 5 years' imprisonment was set aside and a sentence of 7 years' imprisonment was imposed. That case involved a domestic dispute between a man and a woman. The respondent in that case had collected his property from the unit where he had lived with the victim. He returned to the unit some days later and confronted the victim in the kitchen. The respondent struck the victim on the top of her head, attempted to strangle her and then took a kitchen knife with a serrated cutting edge and stabbed the victim with the knife many times. The victim almost died at the scene due to blood loss and a ruptured spleen. She was treated in hospital for 12 stab wounds. She suffered permanent scarring to her cheeks, torso, right breast and left shoulder and permanent disability in her left hand and right thumb. The respondent was aged 24 years at the time of the offending and had only a minor record of offending. He expressed remorse and pleaded guilty. In the course of determining that the sentencing judge had erred and then in resentencing the offender to 7 years' imprisonment, McLure P (Buss & Mazza JJA agreeing) reviewed many cases where persons had been convicted of the offence of doing grievous bodily harm with intent. Eriha was one of the cases. Eriha is not comparable to this case because the offender in Eriha had pleaded guilty.
27 In Naumoski, McLure P reviewed past cases involving a plea of not guilty. Ten cases were referred to. They were Zhang v The State of Western Australia [2013] WASCA 121; Minhaj v The Queen [2000] WASCA 52; Petrelis v The State of Western Australia [2012] WASCA 235; Wells v The State of Western Australia [2013] WASCA 124; Stephens v The State of Western Australia [2005] WASCA 98; McCormack v The Queen [2000] WASCA 139; Smith v The Queen [2003] WASCA 57; (2003) 138 A Crim R 403; Vilai v The Queen [1999] WASCA 275; Bolton v The State of Western Australia [2012] WASCA 2; and Abfahr v The State of Western Australia [2013] WASCA 87. Those cases revealed sentences ranging from 5 years' imprisonment to just under 9 years' imprisonment.
28 Counsel for the respondent submitted that this indicated a sentencing range and being within that range, the sentence imposed on the respondent could not be said to be manifestly inadequate. That submission cannot be accepted. The cases referred to in the previous paragraph merely demonstrate that the more serious and deliberate the attack, the more significant the permanent physical and psychological injuries suffered, and the less the mitigating factors, the higher the sentence will be. The existence of a range of sentences previously imposed does not govern the outcome in a particular case: Munda v The State of Western Australia [2013] HCA 38; (2013) 87 ALJR 1035 [39].
29 The one aspect which makes this case less serious than the worst of the cases reviewed by McLure P in Naumoski is the lack of extensive permanent physical disability which was suffered by some of the victims in those cases. Everything else is against the respondent. There are no points of mitigation and he is not at all remorseful. The ferocity of the attack and the deliberateness of the attack all point to this being a very serious offence. The victim is still suffering significant psychological consequences from the attack which has reduced his employment prospects and he does have some residual physical effects.
30 A sentence of 6 years' imprisonment was manifestly inadequate. The upper end of the range of sentences imposed in the cases reviewed by McLure P in Naumoski provide appropriate guidance.
31 As a result, ground 3 should be upheld and the sentence imposed by the sentencing judge should be set aside.
Resentencing
32 It is necessary for this court to resentence the respondent, it having the necessary materials to do so. Having regard to all relevant sentencing considerations, a term of 7 years and 6 months' imprisonment should be imposed, backdated to 6 December 2012. The order for eligibility for parole should not be interfered with. Accordingly, the respondent will become eligible for release on parole on 6 June 2018.
33 NEWNES JA: I agree with Pullin JA.
34 MAZZA JA: I agree with Pullin JA that this State appeal against sentence must be allowed. I agree that the respondent should be resentenced to a term of 7 years and 6 months' imprisonment with eligibility for parole to commence on 6 December 2012. I generally agree with his reasons in respect of each of the grounds of appeal.
35 I wish to make some comments of my own with respect to ground 2 and to make some further reference to the residual discretion this court has to decline to allow a prosecution appeal against a sentence which is erroneously lenient.
36 With respect to ground 2, it is evident from his Honour's sentencing remarks that he regarded this court's decision in Eriha v The State of Western Australia [2011] WASCA 167 as an obstacle to the imposition of a higher sentence upon the respondent. He said that the case 'tied' his hands and that any sentence he imposed upon the respondent had 'to be well under … half the maximum [20 years]' (ts 612).
37 In Eriha, this court dismissed a claim that a sentence of 9 years' imprisonment for an offence contrary to s 294(1) of the Criminal Code which fell into the worst category of offending was manifestly excessive.
38 With great respect to the learned sentencing judge, this outcome did not limit his Honour's sentencing discretion.
39 While his Honour was right to have regard to Eriha and other sentencing decisions of this court for the purpose of ensuring broad consistency, sentences imposed in other cases do not mark the boundaries of the proper exercise of the sentencing discretion in a particular case: Hili v The Queen (2010) 242 CLR 520 [54]; Barbaro v The Queen [2014] HCA 2 [41]. Thus it is wrong in principle to say that the outcome in one case ties a judge's hands in another case.
40 Sentencing involves the process of synthesising all of the circumstances of the case at hand. In the present case, while the offending was not in the worst category, there were no significant mitigating factors, whereas in Eriha, the seriousness of the offending was mitigated by the appellant's plea of guilty, his youth and other personal circumstances.
41 With respect to the residual discretion, I observe that the appellant did not argue that it should be invoked if this court found that the sentence was erroneously lenient. In any event, I can see no reason for doing so. I have come to this view, having regard to what the plurality said about the scope of the residual discretion in Munda v The State of Western Australia [2013] HCA 38; (2013) 87 ALJR 1035[73]. In the present case, this court's intervention is required to maintain proper standards of sentencing for offences contrary to s 294(1) of the Criminal Code.
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