The State of Western Australia v Maee
[2018] WASCA 53
•20 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MAEE [2018] WASCA 53
CORAM: MAZZA JA
MITCHELL JA
PRITCHARD J
HEARD: 22 SEPTEMBER 2017
DELIVERED : 16 APRIL 2018
PUBLISHED : 20 APRIL 2018
FILE NO/S: CACR 43 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
FAAMANU JONATHAN MAEE
Respondent
FILE NO/S: CACR 44 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
JAMES TILAU MAEE
Respondent
FILE NO/S: CACR 45 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
PHILLIP JUNIOR AUKUSO ETEUATI SUA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE DCJ
File Number : IND 1007 of 2016
Catchwords:
Criminal law - State appeal against sentence - Unlawfully doing an act as a result of which the life, health or safety of another was or was likely to be endangered - Grievous bodily harm with intent to maim, disfigure, disable or do some grievous bodily harm - Guilty pleas - Concurrent sentences - Whether sentencing judge erred in making sentences wholly concurrent - Whether total effective sentence imposed infringed the first limb of the totality principle
Legislation:
Nil
Result:
CACR 43 of 2017
Leave to appeal granted
Appeal dismissed
CACR 44 of 2017
Leave to appeal granted
Appeal allowed
Sentencing judge's order for concurrency substituted with order of partial concurrency
CACR 45 of 2017
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
CACR 43 of 2017
Counsel:
| Appellant | : | Ms A L Forrester SC |
| Respondent | : | Mr S F Rafferty |
Solicitors:
| Appellant | : | Director of Public Prosecutions for Western Australia |
| Respondent | : | Seamus Rafferty Barrister & Solicitor |
CACR 44 of 2017
Counsel:
| Appellant | : | Ms A L Forrester SC |
| Respondent | : | Mr S B Watters |
Solicitors:
| Appellant | : | Director of Public Prosecutions for Western Australia |
| Respondent | : | Michael Tudori & Associates |
CACR 45 of 2017
Counsel:
| Appellant | : | Ms A L Forrester SC |
| Respondent | : | Ms N R Sinton |
Solicitors:
| Appellant | : | Director of Public Prosecutions for Western Australia |
| Respondent | : | Legal Aid - Criminal Law Division |
Case(s) referred to in decision(s):
Attorney General v Tichy (1982) 30 SASR 84
Birch v The State of Western Australia [2011] WASCA 101
Black v The State of Western Australia [No 2] [2010] WASCA 145
Bolton v The State of Western Australia [2012] WASCA 2
CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McMaster v The Queen [2004] WASCA 52; (2004) 144 A Crim R 428
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
Oxenham v The State of Western Australia [2015] WASCA 30
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Poduti v The State of Western Australia [2011] WASCA 169
R v Dunn [2004] NSWCCA 41; (2004) 144 A Crim R 180
R v Wilson [2005] NSWCCA 219
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Khasay [2014] WASCA 58
The State of Western Australia v Miller [2005] WASCA 53; (2005) 30 WAR 38
Trompler v The State of Western Australia [2008] WASCA 265
Walgar v The State of Western Australia [2007] WASCA 241
Wallam v The State of Western Australia [2012] WASCA 115
JUDGMENT OF THE COURT:
Before the court are three State appeals against sentence. The respondents: James Tilau Maee, Faamanu Jonathan Maee and Phillip Junior Aukuso Eteuati Sua are related. For ease of reference and without meaning any disrespect to them, we will refer to them, as in the court below, by their first given names, James, Jonathan and Phillip. James and Jonathan are brothers. Phillip is their cousin.
On the night of 24 October 2015, the respondents were together involved in an incident in which Elvis Mulaosmanovic and Deniz Gojak were attacked and seriously injured. Again, for ease of reference and without meaning any disrespect, we will refer to them by their first given names. James repeatedly slashed and stabbed Elvis and Deniz with two kitchen knives. Jonathan and Phillip played significant roles in the attacks.
The respondents were charged on indictment in the District Court as follows:
(1)On 24 October 2015 at Morley James Tilau Maee unlawfully did an act as a result of which the life, health or safety of Deniz Gojack [sic] and others was, or was likely to be, endangered
(2)On the same date and at the same place James Tilau Maee, Faamanu Jonathan Maee and Phillip Junior Aukuso Eteuati Sua, with intent to main, disfigure, disable, or do some grievous bodily harm to Elvis Mulaosmanovic, did grievous bodily harm to Elvis Mulaosmanovic
(3)On the same date and at the same place James Tilau Maee, Faamanu Jonathan Maee and Phillip Junior Aukuso Eteuati Sua, with intent to maim, disfigure, disable, or do some grievous bodily harm to Deniz Gojack [sic], did grievous bodily harm to Deniz Gojack [sic]
Count 1 is contrary to s 304(1) of the Criminal Code (WA) (Code). Counts 2 and 3 are contrary to s 294(1) of the Code. Count 1 carries a maximum penalty of 7 years' imprisonment, and counts 2 and 3 carry a maximum term of 20 years' imprisonment.
Each respondent pleaded guilty as charged and was duly convicted.
On 3 February 2017, the respondents were sentenced by Goetze DCJ to the following terms of immediate imprisonment:
James
Count 1 1 year's imprisonment
Count 2 6 years 6 months' imprisonment
Count 3 6 years 6 months' imprisonment
His Honour ordered the sentences be served concurrently. Thus, the total effective sentence was 6 years 6 months' imprisonment. The sentences were backdated to commence on 19 November 2015, and James was made eligible for parole.[i]
Jonathan
Count 2 5 years 9 months' imprisonment
Count 3 5 years 9 months' imprisonment
His Honour ordered the sentences be served concurrently. Thus, the total effective sentence was 5 years 9 months' imprisonment. The sentences commenced on 3 February 2017, and the respondent was made eligible for parole.[ii]
Phillip
Count 2 6 years' imprisonment
Count 3 6 years' imprisonment
His Honour ordered the sentences be served concurrently. Thus, the total effective sentence was 6 years' imprisonment. The sentences were backdated to commence on 20 October 2016, and the respondent was made eligible for parole.[iii]
The grounds of appeal
The State does not challenge the individual sentences that were imposed on the ground of manifest inadequacy. Nor, for that matter, do the respondents challenge the individual sentences or the total effective sentences that were imposed.
The State's grounds of appeal in each appeal are identical in each appeal, save for the statement of the total effective sentence. Using the State's case against James as an example:
1.The sentencing judge erred in law in making the sentence imposed in respect of count 3 wholly concurrent with the sentence imposed in respect of count 2.
Particulars
The sentence failed to adequately reflect:
1.1The specific nature of each offence;
1.2That the offence involved a different victim to the count 2 offence;
1.3The deliberate nature and seriousness of the count 3 offence;
1.4The need to impose an additional punishment upon the respondent for the offending against the victim, Deniz Gojack [sic].
2.The sentencing judge erred in law in imposing a total effective sentence of 6 years 6 months' imprisonment that infringed the first limb of the totality principle in that it failed to reflect the overall criminality of the offending conduct.
In oral argument, the Director explained that ground 1 should be understood as alleging that his Honour erred by treating the so‑called one transaction rule as a rule of law. That said, the Director acknowledged that the real question in each appeal was whether the total effective sentence infringed the first limb of the totality principle.[iv] It is the appellant's contention in each appeal that there should have been partial accumulation of the sentences imposed on counts 2 and 3.[v]
In each case, the question of leave to appeal on these grounds was referred to the hearing of the appeal.[vi]
The facts of the offending
The facts of the offending are not in contest. The attack was captured on closed‑circuit television.[vii] We have viewed this footage.
At the time James was 30 years of age, 182 cm tall and of solid build.[viii] Jonathan was 24 years of age, 180 cm tall and of very solid build.[ix] His counsel described him as 'an absolute monster of a man'.[x] Phillip was 25 years of age, 197 cm tall and of solid build.[xi] Elvis was 18 years of age, 173 cm tall and of slim build.[xii] Deniz was 19 years of age, 190 cm tall and of medium build.[xiii]
Sometime between 8.30 pm and 9.24 pm on 24 October 2015, Elvis, Deniz and three other males travelled in a Mercedes sedan to an address in Morley that, unbeknown to the victims, was a house occupied by James, his partner and their two young children. At the time, James was not home, but his partner and children were. One of the occupants of the Mercedes knocked loudly on the front door. James's partner answered the door. The man asked, 'Where's Mohammed?' He was told that there was no‑one there by that name. It appears that the man had gone to the wrong house.
After checking with the man that he had the right address and reiterating there was no‑one there named Mohammed, James's partner closed the door. She then telephoned James and told him what had occurred. She also told James that the Mercedes was still at the house.[xiv]
Approximately fifteen minutes later, James, accompanied by Jonathan and Phillip, arrived at the Morley address in a Holden Caprice being driven by James. According to James's counsel, James was in a state of 'absolute uncontrollable rage'.[xv] The accuracy of this statement is graphically borne out by the CCTV footage.
James parked the Caprice directly in front of the Mercedes so that the two vehicles were front on each other. At this point there were five people in the Mercedes, including Elvis and Deniz. James, Jonathan and Phillip got out of the Caprice and had a verbal altercation with the occupants of the Mercedes.[xvi] As a result, the Mercedes began to reverse from the Caprice, evidently to escape from the situation.[xvii] James returned to his vehicle and drove into the front of the Mercedes, forcing it further backward and causing it to veer off the roadway, narrowly missing a tree. According to the timer on the CCTV footage, this occurred just after 9.24 pm. When the Mercedes came to rest, three of the occupants fled the scene, leaving Elvis and Deniz. At this point, no‑one suffered any physical injury. These are the facts of count 1.[xviii]
Phillip then went to the front passenger side of the Mercedes and forcibly removed Elvis from the vehicle, placing him in a neck‑hold with his forearm under Elvis's chin. Phillip dragged Elvis to the driver's side of the vehicle and pushed him to the ground. Phillip stood over Elvis to prevent him from getting up or leaving.[xix]
As Phillip was dealing with Elvis, Jonathan went to the driver's side of the Mercedes and smashed the driver's window with his fist, before striking Deniz multiple times through the window. Jonathan attempted to drag him out of the vehicle. Deniz then got out of the vehicle and sat down near the Mercedes. He was unrestrained, but it was clear that he was not free to go.[xx]
Meanwhile, James walked to his house, which was approximately 30 m from where both Elvis and Deniz were sitting. While inside the house, he obtained two large kitchen knives, holding one in each hand.[xxi] As James returned to the Mercedes, Deniz tried to flee, but he was prevented from doing so by Jonathan.[xxii] James walked up to where Elvis was sitting and began to repeatedly stab and slash him as he sat on the ground.[xxiii] James struck him approximately five times before Elvis was able to get to his feet. While this was happening, Phillip stood approximately 1 m from the victim so that, at least initially, Elvis was unable to leave or defend himself from James's attack.[xxiv] Eventually, Elvis ran from the scene.[xxv]
James chased Elvis for approximately 30 m before returning to the Mercedes. Elvis ran to a nearby house where an ambulance was called and a short time later he was conveyed to Royal Perth Hospital.
James returned to the Mercedes where Deniz remained. Deniz was being prevented from leaving the scene by Jonathan who held and punched him. Phillip also punched him.[xxvi] Upon James's return to the Mercedes, he stabbed Deniz multiple times to the torso and to his limbs. Jonathan held Deniz as James stabbed him. At one point, Jonathan kicked Deniz.[xxvii] Eventually, Deniz got to his feet and ran to a nearby house where the occupants gave him first aid. James followed Deniz to the house and taunted him as he was being ushered inside. James, at this time, was still carrying the knives. Like Elvis, Deniz was conveyed to Royal Perth Hospital.[xxviii]
All three offenders were arrested shortly after the commission of the offences.[xxix]
The victims' injuries
Elvis sustained multiple deep lacerations to his shoulder, forearm, forehead and nose. As a result of these injuries, he underwent surgery on 27 October 2015. Elvis suffered serious damage to the ligaments in his right arm.[xxx]
It is clear from Elvis's victim impact statement that the attack has left him psychologically traumatised and he has been left with impaired use of his right hand.
Deniz suffered multiple stab wounds, but the most serious injuries he sustained were two punctured lungs. Both his lungs collapsed as a result of air and blood within the chest which impaired his breathing. As a result, both lungs had to be drained. He spent six days in hospital. Without medical treatment, his life would have been endangered.[xxxi]
In his victim impact statement, Deniz described in detail the adverse physical and psychological effects of the offences. As a result of his physical injuries, he has been unable to complete his plumbing apprenticeship. The injuries have prevented him from boxing. He had hoped to box for Australia in the 2016 Olympics. The injuries, he said, deprived him of that chance.[xxxii]
Personal circumstances of the respondents
Jonathan
Jonathan was 25 years of age at the time of sentencing. He is single.[xxxiii]
He started a TAFE course after partially completing year 12. He has worked as a crowd controller and labourer.[xxxiv]
As a child, he was the victim of domestic violence. He and his brother, James, have a deeply entrenched family commitment which impacted on his offending and decision‑making on the night of the offences.[xxxv]
Jonathan has a traffic record and convictions relating to his cannabis use in New South Wales, but no convictions in this State.[xxxvi]
A psychological report noted that Jonathan suffers from depression. He tends to binge drink and use cannabis. In the past, he has consulted a psychologist for depression and anger management. The author of the psychological report noted that Jonathan was ashamed of his offending behaviour, and that he did not seek to minimise his role in the offences. The psychologist assessed Jonathan as having a low risk of reoffending.[xxxvii]
The effect of the pre‑sentence report was that on the night in question, Jonathan was following his brother, James, who it was said was concerned for his family.[xxxviii]
James
James was 32 years of age at the time of sentencing. He is in a long‑term de facto relationship, and has two young children who were, at sentencing, aged 7 years and 8 months respectively.[xxxix]
James left school after completing year 10. Since that time, he has worked in the construction industry, performing either formwork or scaffolding.[xl]
James, like his brother, Jonathan, was subjected to domestic violence in his childhood. This violence was, as his Honour put it, 'sometimes pushed under the carpet when [James] had to go to hospital'.[xli] Over time, James became imbued with the attitude that 'family came first and family was always protected'.[xlii]
James has convictions for offences of violence in New South Wales. In 2005, he was convicted of common assault. In 2008, he was convicted of property damage. In 2009, he was convicted of assault occasioning bodily harm and common assault. In 2014, he was convicted of common assault and behaving in an offensive manner.[xliii]
The pre‑sentence report noted that James presented with significant substance abuse issues with respect to alcohol, cocaine and methylamphetamine. The author of the pre‑sentence report noted that after James first confronted the occupants of the Mercedes, he decided to 'destroy these guys'.[xliv] James appeared to express no remorse or victim empathy. Although he believed that he 'overreacted a bit',[xlv] he went on to state that the victims 'will learn something from it, don't poke the bear'.[xlvi]
James told the author of the psychological report that after speaking to his partner, he formed the view that his family were in danger and he became enraged.[xlvii] When the author of the psychological report questioned James about why he used knives and stabbed the victims, James responded that they were 'pups who had entered a dog's yard'.[xlviii]
His Honour found that James was 'certainly of a moderate risk of reoffending', but noted that he was willing to undergo counselling.[xlix]
Phillip
Phillip was aged 26 years at the time of the offences. He is single. He has a 4‑year‑old son who is living in Sydney.[l]
Phillip completed year 12. He was talented enough to win a scholarship to a music school, but he was unable to take it up because of lack of funds.[li] He has worked as a courier and in packing.
Phillip is a heavy drinker and a user of amphetamine.[lii]
Phillip has a record of convictions in New South Wales for mostly traffic offences, but he does have a conviction for resisting arrest. Since arriving in Western Australia in or about 2015, he has accumulated a substantial number of traffic convictions, as well as convictions for stealing a motor vehicle (2), stealing and breach of bail (3).[liii]
At the time of committing the offences he had recently been released from prison, and he had just completed a short‑term parole order.[liv]
The pre‑sentence report author noted that Phillip stated that he did not know why he participated in the offence, although he alluded to an aspect of his upbringing where a family was expected to defend itself 'to the hilt',[lv] and that he was expected 'to obey the rule of the eldest'[lvi] (who was his cousin, James). Phillip appreciated the terror that the victims of his offences must have experienced at the time, and he expressed regret about his behaviour.[lvii]
Sentencing remarks
Addressing all three offenders, his Honour took into account as an aggravating factor that they acted in company with each other.[lviii]
His Honour found, in James' case, that he 'aggravated everything by getting the knife',[lix] which 'escalated the situation enormously'.[lx] His Honour also observed, with respect to James, that James used the knife to deliberately inflict serious wounds to both victims, and that the use of the knife created potential for serious or fatal injury.[lxi]
His Honour took into account as a mitigating factor in respect of each respondent their pleas of guilty. His Honour said that the pleas showed acceptance and responsibility, facilitated the administration of justice and exhibited remorse.[lxii] In the case of each of James and Jonathan, his Honour concluded that the appropriate discount for the pleas of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA) was 25%, to be applied before any other discount for mitigation. In the case of Phillip, the discount under s 9AA of the Sentencing Act was 20% because his guilty pleas were entered later than his co‑offenders.[lxiii]
With respect to both Jonathan and Phillip, his Honour said that their ages were mitigatory. He also recognised that each of them had been brought up with the cultural value of obedience to other family members and, in particular, older members. However, he found that it did not affect their moral responsibility for the offending.[lxiv]
His Honour observed with respect to the respondents' criminal records that James had prior convictions for violence, but Jonathan and Phillip did not. Although not entirely clear, it appears that his Honour regarded this as a matter favourable to Jonathan and Phillip.[lxv]
His Honour found that James had made up his mind 'to destroy these guys',[lxvi] and that he had no empathy for his victims.[lxvii]
After reiterating the actions of each respondent, his Honour said that each of them was involved in the offending 'in a very severe way'.[lxviii] His Honour regarded the sentencing objectives of personal and general deterrence as matters of importance.[lxix]
His Honour expressly addressed the question of accumulation and concurrence. He referred to the so‑called one transaction rule and the totality principle.[lxx] It will be necessary to say more about this aspect of his Honour's sentencing remarks later in these reasons. His Honour did not give any reasons for ordering concurrency in respect of each respondent.
General principles applicable to these appeals
The general principles applicable to these appeals are uncontroversial. This court cannot substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently: Lowndes v The Queen.[lxxi] This court can only intervene if it is demonstrated that the court below made a material error, either express or implied. There are special principles applicable for prosecution appeals. They are well‑established and need not be repeated, bearing in mind that the principle of double jeopardy which once applied to State appeals has now been abolished: s 41(4)(b) of the Criminal Appeals Act 2004 (WA). This court has a residual discretion under s 31 of the Criminal Appeals Act to decline to allow an appeal against a sentence that is erroneously lenient.
Ground 1, as argued, alleges an express error of law on the part of the trial judge. Ground 2, which alleges an infringement of the first limb of the totality principle, is an allegation of implied error. The onus is upon the appellant to demonstrate that the total effective sentence was unreasonable or plainly unjust. The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia.[lxxii]
A relevant factor in the consideration of ground 2 is the range of sentences imposed in comparable cases. Such cases are a yardstick against which the sentences in question may be compared. However, the range of sentences customarily imposed does not mark out the boundaries of the sound exercise of the sentencing discretion in an individual case. In other words, the guidance that is afforded by comparable cases is flexible rather than rigid. Ultimately, each case depends upon its own facts and circumstances.
Grounds 1 and 2 - sentencing for multiple offences - the one transaction rule and the totality principle
As Bell and Keane JJ recently observed in Nguyen v The Queen,[lxxiii] a sentencing judge sentencing an offender for multiple offences is to be accorded as much flexibility as is consonant with the statutory sentencing regime as a judge who is determining the appropriate sentence for a single offence.
The proper approach to sentencing an offender for multiple offences and how the so called one transaction rule and the totality principle operate was described by McLure J (Murray & Jenkins JJ agreeing) in Dickens v The Queen,[lxxiv] as follows:[lxxv]
The question whether to make sentences for more than one offence cumulative or concurrent arises at two of the three stages in the sentencing process for multiple offences. In the ordinary course of sentencing for multiple offences, the sentencing court will firstly determine the appropriate sentence for each offence, secondly assess whether the sentences should be made concurrent or cumulative in accordance with established principle and finally review the total sentence to be imposed by reference to the principle of totality including the question whether the total sentence is crushing.
At the second stage, the relevant principle is what is variously described as the 'one transaction' or 'continuing episode' rule. It is a general rule, or what has been described as a good working rule (Ruane v R (1979) 1 A Crim R 284) that when a number of offences arise out of the one transaction or continuing episode, any terms of imprisonment for the offences are to be made concurrent. However, a sentencing Judge must proceed to the third stage and consider whether the application of that general rule would result in an appropriate measure of the total criminality involved in the conduct: R v White [2002] WASCA 112; R v Faithfull [2004] WASCA 39. If not, then the appropriate result should be achieved, if practicable, by making the sentences wholly or partially cumulative rather than by adjusting the otherwise appropriate sentence: Mill v The Queen (1988) 166 CLR 59 at 63
The one transaction rule may apply in a case of 'one multi‑faceted course of criminal conduct',[lxxvi] or where the offences are 'considered to be manifestations of the one criminal enterprise, transaction or episode'.[lxxvii] The underlying rationale of the rule is that all of the offences taken together constitute a single invasion of the same legally protected interests.[lxxviii]
It is clear from the passage we have just quoted from Dickens, the one transaction rule is not a rule at all. It is a guideline. Each case depends upon its own circumstances and it is for the sentencing judge to determine whether the application of the guideline would result in an appropriate measure of the total criminality involved in the conduct.[lxxix]
Where an offender is convicted of assault offences against more than one victim, it has been held that although the assaults were temporally and geographically close, the one transaction rule should not apply.[lxxx] This is because the offending would not be a single invasion of the same legally protected interest. This does not mean that in such cases there must be cumulative sentences because the question of totality remains to be considered.[lxxxi] However, a sentencer should consider whether the failure to accumulate or partly accumulate may not acknowledge the harm caused to individual victims.[lxxxii]
Consideration of ground 1 in each appeal
If his Honour made the error of principle now alleged in ground 1, it is an error which potentially infects the sentencing of each respondent.
His Honour referred to the one transaction rule in his sentencing remarks immediately before passing sentence on each respondent.
His Honour said:[lxxxiii]
What I have to do first of all is impose a penalty for each offence and then consider questions of accumulation and concurrence.
I can have regard to the fact that these three offences all occurred on the one occasion so they can be regarded as one transaction but there are two different personal rights that have been offended against.
Because I have to sentence you for more than one offence I need to have regard to what lawyers call the totality principle. That means that I'm required to consider all of your offending and to ensure that the total effective sentence bears a proper relationship to your overall criminality viewed in its entirety and having regard to the circumstances of the case including those referable to you personally.
And the second limb is to not impose a crushing sentence that might destroy any reasonable expectation of a useful life after release so I have regard to that in terms of cumulation and concurrence.
Ground 1 as argued is a very specific complaint. As we have mentioned, the State contends that his Honour erred by treating the one transaction rule as a rule of law. In our opinion, this contention has not been made out.
It may immediately be seen, from the sentencing remarks, that his Honour's stated approach to sentencing an offender for multiple offences is in accordance with authority. He states that he will first impose the appropriate sentence for each offence, then decide the question of concurrency or cumulacy, and finally review the total sentence having regard to totality. It may also be seen that his Honour, again, correctly, refers to the one transaction rule as potentially applying to the question of concurrency or cumulacy.[lxxxiv]
As we read that part of his Honour's sentencing remarks which refer to the one transaction rule, he does not consider it to be a binding rule of law. Rather, to our minds, his Honour is stating no more than that he has had regard to the rule, but considers that it does not apply because in each case two different legal interests have been violated.
His Honour then says that he will consider the question of totality. In arriving at the appropriate total effective sentence, his Honour orders total concurrency in the case of each respondent. Whether this was appropriate is the issue raised by ground 2 and is, as the Director acknowledged, the real question to be decided in this appeal. While leave to appeal should be granted, ground 1 has not been made out.
Ground 2: Totality
It is necessary to deal with ground 2 as it applies to each respondent separately.
Consideration of the application of the totality principle to each offender is to be undertaken in the context where no party seeks to impugn the sentences imposed on the offenders for the individual offences. In that context, it is appropriate to proceed from the premise that the individual sentences received by each of James, Jonathon and Phillip in respect of counts 2 and 3 on the indictment were commensurate with the seriousness of those offences considered individually. The question which arises on this appeal is whether it was open to the sentencing judge to conclude that the individual sentences should be served wholly concurrently. That is to ask whether it was open to the sentencing judge to take the view that concurrent sentences would bear a proper relationship to the overall criminality involved in all of the relevant offender's offences viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally.
We will start with the State's appeal against James and then deal with the State's appeals against Jonathan and Phillip.
Ground 2 - James
In support of this ground, the appellant emphasised the serious aspects of James' overall offending. The appellant specifically pointed to the following aggravating features as found by the sentencing judge:[lxxxv]
(a)James was in company with others;
(b)he was armed with two large kitchen knives;
(c)he used those knives to deliberately inflict serious wounds on both victims;
(d)in doing so, there was potential for serious or fatal injury; and
(e)James escalated the situation enormously by going to his house and obtaining the knives.
The appellant also observed these features, namely:[lxxxvi]
(a)the brutal, merciless and cold‑blooded nature of counts 2 and 3, as starkly revealed by the CCTV footage;
(b)James' offending was not spontaneous, given that he rammed his vehicle into the Mercedes, he went to his house, obtained the knives and then used them to stab and slash the victims;
(c)the victims were outnumbered and outmatched in size and strength;
(d)the victims offered no violence to James or his co‑offenders, and the only resistance they offered was to attempt to escape; and
(e)James' conduct was persistent to the extent of following Deniz and taunting him.
The appellant also pointed to his Honour's findings that James exhibited no empathy for his victims, and was at least a moderate risk of reoffending.[lxxxvii]
The appellant contended that apart from the pleas of guilty, there was little mitigation.[lxxxviii]
Finally, the appellant pointed to the victim impact statements provided by the victims, and the serious physical and psychological effect that the offending has had on Elvis and Deniz.[lxxxix]
The principal submission on behalf of James is that while the total effective sentence imposed upon him was 'perhaps modest',[xc] it was not erroneous having regard to the pleas of guilty and the outcomes in cases said to be comparable,[xci] including McMaster v The Queen;[xcii] Black v The State of Western Australia [No 2][xciii] and Bolton v The State of Western Australia.[xciv]
In our opinion, the appellant has made out ground 2, as against James.
The maximum penalty for the offence of intentionally doing grievous bodily harm to a person under s 294(1) is, as we have said, 20 years' imprisonment. In contrast, if intention is not established, the maximum term available is 10 years' imprisonment under s 297(1) of the Code.
There are three matters commonly recognised as significant in assessing the comparative seriousness of an offence which involves unlawfully doing grievous bodily harm. First, there is the nature of the harm which results from the injury inflicted; second, there is the nature of the acts which caused the injury; and, third, the background and circumstances of the offence.[xcv]
Both victims suffered serious physical injuries. Elvis has been left with a permanent impairment to his right hand. Without medical treatment, Deniz could have died. Both victims have been badly psychological traumatised. While the harm inflicted upon Elvis and Deniz is not as grave as in other cases, it is nevertheless of a high order.
James' overall offending evinced a very high level of criminality. As James' counsel rightly acknowledged in oral argument,[xcvi] James was the principal offender. He substantially escalated the level of violence by going to his house, arming himself with two knives, and then stabbing and slashing, first, Elvis and then Deniz.
It is evident from the CCTV footage that James is well‑built and strong. He ferociously and mercilessly inflicted multiple wounds upon each of his victims. The wounds were inflicted indiscriminately. The injuries sustained by each victim were serious enough but they could easily have had fatal consequences.
James has displayed no real remorse or victim empathy. His antecedents are not favourable. He is a moderate risk of reoffending. The only significant matter in mitigation was his pleas of guilty.
To our minds, a critical consideration in the assessment of James's overall criminality is that he inflicted serious physical and psychological harm on two victims, in separate and distinct attacks. James first attacked Elvis. After his unsuccessful pursuit of Elvis, he returned to the Mercedes. Instead of desisting from further violence, he then repeatedly stabbed Deniz. James pursued Deniz and taunted him. This was not conduct to which the one transaction rule could properly be applied. The only reasonable conclusion in all the circumstances was that there must be some degree of accumulation of the sentences for each of the two offences of intentionally causing grievous bodily harm.
There was nothing in the background and circumstances of James's offending which, in any way, justified his conduct. Neither victim did anything which justified the use of violence, let alone the extreme violence perpetrated by the respondent.
We now turn to the comparable cases. The parties referred to a substantial number of sentencing cases decided by this court and its predecessor. It is unnecessary to refer to them all. The sentencing standards for offences contrary to s 294(1) of the Code have recently been considered in The State of Western Australia v Khasay[xcvii] and in Oxenham v The State of Western Australia.[xcviii]
As Martin CJ observed in Oxenham v The State of Western Australia,[xcix] the offence of causing grievous bodily harm with intent contrary to s 294(1) of the Code can be committed in a wide variety of facts and circumstances. Consequently, the range of sentences customarily imposed for the offence is broad.
As to the range that can be discerned from the cases, his Honour said:[c]
To the extent that a range can be discerned from the previously determined cases, as this court observed in The State of Western Australia v Jeffries, analysis in Stephens v The State of Western Australia suggested that sentences of between 7 and 12 years imprisonment (prior to the transitional provisions) were not uncommon. That range equates approximately to a range of between 4½ and 8 years under the current sentencing system. More recently, this analysis was cited with apparent approval in this court in The State of Western Australia v Khasay. Further, in Zhang v The State of Western Australia, Mazza JA observed that his analysis of the previously decided cases revealed that in serious cases of offences contrary to s 294 of the Criminal Code and which were not in the worst category of cases, the range of sentences customarily imposed after trial had not exceeded 8 years imprisonment. That observation must be viewed in light of the fact that in Zhang, the appellant, whose offence was described as 'extremely serious' was re‑sentenced by this court to a term of 8 years and 6 months' imprisonment … (citations omitted)
Given James's reliance upon the cases of McMaster v The Queen, Black v The State of Western Australia [No 2] and Bolton v The State of Western Australia, it is appropriate to refer to these cases in some detail.
In McMaster v The Queen, the appellant entered a crowded nightclub armed with a concealed and loaded .22 calibre handgun. While inside the club, he racked the weapon and deliberately pointed it at two men. He then fired it five times at a range of 2 ‑ 3 m, hitting one victim in the lower abdomen and the other in the upper abdomen just below the chest. Each victim could have died from the wound that was inflicted. The appellant was convicted after trial. He was sentenced to 7 years' imprisonment (4 years 8 months post‑transitional) for each offence. The sentences were structured so that the total effective sentence was 9 years' imprisonment (6 years post‑transitional). An appeal against that sentence, alleging that it infringed the totality principle, and based on additional evidence, was dismissed. Malcolm CJ described the sentences as moderate and that the total effective sentence made a generous allowance for the mitigating factors that were identified.[ci]
In Black v The State of Western Australia [No 2], the appellant pleaded guilty on the fast‑track system to one offence contrary to s 294 of the Criminal Code and a further offence of unlawful wounding contrary to s 301 of the Code. The appellant was sentenced to 2 years 6 months' imprisonment on the first‑mentioned offence and 6 months' imprisonment on the second. The sentencing judge ordered that the sentences be served cumulatively, resulting in a total effective sentence of 3 years' imprisonment. The appellant and others attended at a party with the intention of assaulting the guests. The appellant armed himself with a knife and swung it at one of the guests, causing a 12 cm cut to the left side of the chest, penetrating the chest cavity and cutting an artery inside the chest. The victim sustained a further injury to his left middle finger which required surgery. The appellant also injured another person by stabbing him to the left side. The two complainants were treated for, and recovered from, their physical injuries. The appellant was 21 years of age and had no relevant prior convictions. In dismissing the appeal, McLure P rejected an argument that the trial judge erred in ordering that the two sentences for the two offences be served cumulatively. Her Honour observed that the two offences involving the infliction of violence and injury on two individuals did not fall within the one transaction rule and that the individual sentences that were imposed were not at the high end of the sentencing range.[cii]
In Bolton v The State of Western Australia, the appellant was convicted of several offences resulting from an affray in the context of a long‑running feud between two families. He deliberately fired two shotgun blasts. One hit a woman who was pushing the intended target out of the way, perforating her bowel. The appellant was charged with one count of unlawfully doing grievous bodily harm with the intent to maim, disable or do grievous bodily harm and one count of unlawful wounding with intent to maim, disable or do grievous bodily harm, both offences contrary to s 294(1) of the Code, and a further offence of unlawfully doing an act as the result of which the life, health or safety of another was, or was likely to be, endangered contrary to s 304(1) of the Code. The appellant was sentenced to 5 years' imprisonment and 4 years and 6 months' imprisonment, respectively, on the two counts contrary to s 294(1) of the Code. He also received a sentence of 1 years 3 months' imprisonment for the third offence contrary to s 304. The learned sentencing judge imposed a total effective sentence of 6 years 3 months' imprisonment. Leave to appeal against the total effective sentence was refused. This court described the sentence as 'well within the range of a sound exercise of the sentencing discretion'.[ciii]
We do not regard the outcomes in these cases as an obstacle to the State's appeal against James. As this court has said on a number of occasions in the past, a small number of cases is of limited assistance and cannot establish the range of sentences customarily imposed.[civ] Of course, the outcomes of previously decided cases do not fix the range of proper exercise of the sentencing discretion. Of the three cases, Black v The State of Western Australia [No 2] is readily differentiated from the present case. In that case, the appellant, unlike James, had youth and good antecedents on his side.
We recognise that both McMaster v The Queen and Bolton v The State of Western Australia involved cases where the appellant had been convicted after trial. Of course, in the present case, James pleaded guilty and received a 25% discount pursuant to s 9AA of the Sentencing Act. We also recognise the serious nature of the offending in both McMaster v The Queen and Bolton v The State of Western Australia. One distinguishing feature of the present case is the sustained and distinctly separate nature of the attacks and that James stabbed Deniz some time after he stabbed Elvis.
In our view, having regard to all of the circumstances of the case, including James' personal circumstances and all mitigating factors, the total effective sentence of 6 years 6 months did not bear a proper relationship to the overall criminality involved in all of the offences he committed. The only reasonable view, in all the circumstances, was that some accumulation of the individually appropriate sentences was necessary to properly reflect James' overall criminality. Inferred error has been established. The total effective sentence imposed upon James infringed the first limb of the totality principle. The total effective sentence imposed was, with great respect to the primary judge, unreasonable or plainly unjust.
Counsel for James did not submit that the residual discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. In oral argument, counsel for James said that he did not rely upon the residual discretion.[cv] Of course, James does not bear an onus to establish that the residual discretion should be exercised in his favour. Rather, the onus is on the State to negate any reason why the residual discretion of this court not to interfere should be exercised.[cvi]
In our view, there is no basis to invoke the residual discretion. Appellable error has been established. This court's intervention was necessary to ensure that proper sentencing standards are adopted and maintained for the offences committed by James.
We will deal with James' resentencing after we have considered the merit of the State's appeals against Jonathan and Phillip.
Ground 2 - Jonathan
In support of this ground, the appellant pointed to the same features of the offending as concerned James, adding that:[cvii]
This respondent punched in the driver's window with his fist and got [Deniz] out of the vehicle and guarded him whilst [James] went to get knives from his house and facilitated [James's] knife attacks on both victims.
Jonathan contended that the total effective sentence that was imposed upon him adequately reflected the totality of his conduct. It was said on his behalf that:[cviii]
(a)while each victim received serious injuries, there was no suggestion that the injuries have caused significant ongoing issues for either of them;
(b)Jonathan was not the offender who inflicted the injuries upon Elvis and Deniz;
(c)Jonathan was unaware that James was going to arm himself with two knives;
(d)Jonathan had no relevant criminal history;
(e)Jonathan was relatively young; and
(f)he pleaded guilty to both charges.
We do not accept the submission made on behalf of Jonathan that the injuries sustained by both victims have not caused significant ongoing issues. This submission is contrary to the victim impact statements and the findings of the sentencing judge.
There can be no doubt that Jonathan's conduct was serious. Jonathan willingly associated himself in a concerted attack on both victims. The principal target of his offending was Deniz. Jonathan kept Deniz in the vicinity of the Mercedes by holding and punching him. Jonathan held Deniz and kicked him as James stabbed him. It may be accepted that Jonathan did not know James intended to arm himself with knives. However, he saw James with the knives as he returned to the Mercedes. It would have been obvious to him what James intended to do with them. Jonathan was highly complicit in the offence against Deniz.
However, with respect to the offence committed on Elvis, Jonathan played a lesser role than James and Phillip. His presence assisted to prevent Elvis from escaping. That is a significant feature relevant to the application of the totality principle.
As serious as Jonathan's offending was, he did not wield the knife and had no physical contact with Elvis.
Jonathan's antecedents were more favourable than James's. There was evidence that Jonathan was ashamed of his offending and was a low risk of reoffending. He pleaded guilty at the first reasonable opportunity and received a 25% reduction pursuant to s 9AA of the Sentencing Act.
We have already canvassed the standards of sentences imposed for the offences committed by Jonathan. It is unnecessary to repeat what has been written.
In our view, having regard to all of the circumstances of the case, including that Jonathan played a lesser role in the offence against Elvis, Jonathan's personal circumstances and all mitigating factors, we have not been persuaded that the total effective sentence imposed on Jonathan of 5 years 9 months' imprisonment infringed the first limb of the totality principle. The limited role which Jonathon played in the offence against Elvis, the fact that he was not the offender who used the knife to inflict the grievous bodily harm in either case, and his more favourable antecedents, distinguish Jonathon's case from that of James. Those distinguishing features were capable of leading the sentencing judge to the view that accumulation of the sentences for the two offences was not required to reflect the overall criminality of Jonathon's conduct. In these circumstances, it was open to the sentencing judge to take the view that concurrent sentences would bear a proper relationship to the overall criminality involved in all of Jonathon's offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to Jonathon personally. In our opinion, it was not unreasonable or plainly unjust to order concurrency on counts 2 and 3. We are not satisfied that the total effective sentence was erroneous. Inferred error has not been established. Ground 2 has not been made out against Jonathan.
Ground 2 - Phillip
The substance of the State's submissions with respect to James and Jonathan were replicated in its appeal against Phillip.
The written and oral submissions on behalf of Phillip were to the effect that he was 'third in the hierarchy in terms of what role was played in the offences'.[cix]
Phillip's offending was also, without question, serious. His offending was predominantly directed towards Elvis. He forcibly removed Elvis from the car and kept him there. Although he did not physically restrain Elvis as James stabbed him, he stood by, assisting to effectively prevent Elvis from leaving. With respect to Deniz, Phillip punched him when Deniz was being assaulted by Jonathon at a time when James was chasing Elvis.
Phillip's antecedents were favourable to the extent that he had not committed any violence offences in the past. He had youth on his side and there was evidence of remorse. Phillip pleaded guilty, although at a later point than his co‑offenders. Thus, the discount he received, pursuant to s 9AA of the Sentencing Act, was 20%, rather than the 25% that was applied to James and Jonathan.
As with Jonathan, we will not repeat our analysis of the comparable cases.
In our view, having regard to all of the circumstances of the case, including that Phillip played a lesser role in the offence against Deniz, Phillip's personal circumstances, and all the mitigating factors, we have not been persuaded that the total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle. As was the case with Jonathon, it was open to the sentencing judge to take the view that concurrent sentences would bear a proper relationship to the overall criminality involved in all of Phillip's offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to Phillip personally. In our opinion, it was not unreasonable or plainly unjust to order concurrency on counts 2 and 3. Inferred error has not been established. Ground 2 has not been made out against Phillip.
Resentencing for James
This court has all the materials necessary to resentence James.
We will not repeat what we have already said about the seriousness of the offences committed by James, his personal circumstances or the comparable cases. The only mitigating factors of significance were his pleas of guilty. On each count, a reduction of 25% for the pleas of guilty pursuant to s 9AA of the Sentencing Act is appropriate. Individual sentences on counts 2 and 3 of 6 years and 6 months' imprisonment are appropriate. As we have said, some accumulation of the sentences was required to reflect the separate and distinct attacks upon the victims. In our opinion, an appropriate total effective sentence for James is 8 years and 6 months' imprisonment. We would order that the sentence on count 2 commence on 19 November 2015 and that the sentence on count 3 commence on 19 November 2017. James should remain eligible for parole.
We are mindful that the resentencing of James means that he will serve a substantially longer sentence than both Jonathan and Phillip. Potentially, this raises a parity issue. However, in our minds, James's criminality was substantially greater than that of Jonathan and Phillip. The disparity of the total effective sentence now imposed upon James with the total effective sentences previously imposed upon Jonathan and Phillip could not, in our opinion, give rise to an objectively justified sense of grievance.
Conclusion and orders
With respect to James, we would make the following orders:
1.Leave to appeal on grounds 1 and 2 is granted.
2.The appeal is allowed.
3.The sentencing judge's order that the sentences on counts 2 and 3 be served concurrently is set aside and substituted with an order of partial concurrency, so that the sentence imposed on count 2 shall commence on 19 November 2015 and the sentence imposed on count 3 shall commence on 19 November 2017.
4.For the avoidance of doubt, James's total effective sentence is 8 years and 6 months' imprisonment, with parole eligibility, commencing on 19 November 2015.
The orders in Jonathan's appeal are:
1.Leave to appeal on grounds 1 and 2 is granted.
2.The appeal is dismissed.
The orders in Phillip's appeal are:
1.Leave to appeal on grounds 1 and 2 is granted.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
RESEARCH ASSOCIATE TO MURPHY & MAZZA JJA20 APRIL 2018
[i] ts 86 ‑ 87.
[ii] ts 86 ‑ 87.
[iii] ts 87.
[iv] Appeal ts 4 ‑ 6.
[v] Appeal ts 13.
[vi] Order Buss P, 19 April 2017.
[vii] ts 40.
[viii] ts 39.
[ix] ts 39 ‑ 40.
[x] ts 47.
[xi] ts 40.
[xii] ts 39.
[xiii] ts 39.
[xiv] Statement of James's partner, WAB 122 ‑ 126.
[xv] ts 42.
[xvi] ts 37.
[xvii] ts 37.
[xviii] ts 37 - 38, CCTV footage 9.24.07.
[xix] ts 38, CCTV footage 9.24.19 ‑ 9.25.09.
[xx] CCTV footage 9.24.14 ‑ 9.25.14.
[xxi] ts 38.
[xxii] ts 39, CCTV footage 9.25.16.
[xxiii] ts 38, CCTV footage 9.25.
[xxiv] ts 38.
[xxv] ts 38, CCTV footage 9.25.24.
[xxvi] ts 79, CCTV footage 9.25.40.
[xxvii] ts 39, CCTV footage 9.25.47 ‑ 9.25.59.
[xxviii] ts 39.
[xxix] ts 39.
[xxx] ts 38, report of Dr Joseph Luo, dated 27 November 2016.
[xxxi] ts 39, deposition of Dr Christopher Peyton, dated 7 November 2015.
[xxxii] ts 82.
[xxxiii] ts 80.
[xxxiv] ts 81.
[xxxv] ts 81.
[xxxvi] ts 81.
[xxxvii] ts 81.
[xxxviii] ts 81.
[xxxix] ts 79.
[xl] ts 80.
[xli] ts 80.
[xlii] ts 80.
[xliii] ts 80.
[xliv] Pre-sentence report, page 2.
[xlv] Pre‑sentence report, page 3.
[xlvi] Pre-sentence report, page 3.
[xlvii] Psychological report, page 4 - 5.
[xlviii] Psychological report, page 5.
[xlix] ts 80.
[l] ts 51, 82.
[li] ts 82.
[lii] ts 82.
[liii] AB 92 - 93.
[liv] Pre-sentence report, page 2.
[lv] Pre‑sentence report, page 2.
[lvi] Pre-sentence report, pages 1 - 2.
[lvii] Pre-sentence report, page 2.
[lviii] ts 83.
[lix] ts 83.
[lx] ts 83.
[lxi] ts 83.
[lxii] ts 83.
[lxiii] ts 83.
[lxiv] ts 83 - 84.
[lxv] ts 84.
[lxvi] ts 85.
[lxvii] ts 85.
[lxviii] ts 85.
[lxix] ts 83.
[lxx] ts 86.
[lxxi] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
[lxxii] Roffey v The State of Western Australia [2007] WASCA 246 [24].
[lxxiii] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37].
[lxxiv] Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343.
[lxxv] Dickens [11] ‑ [12].
[lxxvi] Attorney General v Tichy (1982) 30 SASR 84, 93.
[lxxvii] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [120].
[lxxviii] The State of Western Australia v Miller [2005] WASCA 53; (2005) 30 WAR 38 [15].
[lxxix] Miller [17].
[lxxx] See, for example, Walgar v The State of Western Australia [2007] WASCA 241. See also R v Dunn [2004] NSWCCA 41; (2004) 144 A Crim R 180 and, in the case of drug offending, Birch v The State of Western Australia [2011] WASCA 101.
[lxxxi] Walgar [10].
[lxxxii] R v Wilson [2005] NSWCCA 219 [38].
[lxxxiii] ts 86.
[lxxxiv] ts 86.
[lxxxv] AB 12 ‑ 13.
[lxxxvi] AB 13.
[lxxxvii] AB 13 - 14.
[lxxxviii] AB 14.
[lxxxix] AB 14 - 15.
[xc] Appeal ts 22.
[xci] Appeal ts 26, AB 34 ‑ 41.
[xcii] McMaster v The Queen [2004] WASCA 52; (2004) 144 A Crim R 428.
[xciii] Black v The State of Western Australia [No 2] [2010] WASCA 145.
[xciv] Bolton v The State of Western Australia [2012] WASCA 2.
[xcv] Trompler v The State of Western Australia [2008] WASCA 265 [9] ‑ [11]; Oxenham v The State of Western Australia [2015] WASCA 30.
[xcvi] Appeal ts 24.
[xcvii] The State of Western Australia v Khasay [2014] WASCA 58 [33] ‑ [35].
[xcviii] Oxenham [36] ‑ [48].
[xcix] Oxenham [36].
[c] Oxenham [37].
[ci] McMaster v The Queen [7].
[cii] Black v The State of Western Australia [No 2] [33].
[ciii] Black v The State of Western Australia [No 2] [42].
[civ] For example, Wallam v The State of Western Australia [2012] WASCA 115 [13] and Poduti v The State of Western Australia [2011] WASCA 169 [14].
[cv] Appeal ts 25.
[cvi] See CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34], [66].
[cvii] AB 13, appellant's submissions, par 8.
[cviii] AB 33, respondent's submissions, par 27.
[cix] Appeal ts 33.
5