The State of Western Australia v Radovic
[2020] WASCA 46
•8 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- RADOVIC [2020] WASCA 46
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 5 DECEMBER 2019
DELIVERED : 8 APRIL 2020
FILE NO/S: CACR 19 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
MILOS RADOVIC
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: FIANNACA J
File Number : INS 430 of 2017
Catchwords:
Criminal law - State appeal against sentence - Respondent convicted after trial of attempted murder of a police officer - Police officer acting in the course of his duties - Respondent also convicted on his plea of guilty of being armed with an offensive weapon in circumstances likely to cause fear to other persons - Both offences arose out of the one incident - Respondent sentenced to 9 years' imprisonment for the attempted murder and 4 years' imprisonment to be served concurrently for the other offence - Whether the sentence of 9 years' imprisonment for the attempted murder was manifestly inadequate
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA) s 68(1), s 283(1)
Result:
Appeal allowed
Sentencing decision of the primary judge set aside
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | Ms A L Forrester SC & Ms M M Yeung |
| Respondent | : | Ms K J Farley SC |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid WA |
Case(s) referred to in decision(s):
Ammoun v The State of Western Australia [2009] WASCA 182
Attorney General's Application (No 2 of 2002) [2002] NSWCCA 515; (2002) 137 A Crim R 196
Attwell v The State of Western Australia [2015] WASCA 84
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bromfield v The Queen [2002] WASCA 333
Byfield v The Queen [2002] WASCA 260; (2002) 133 A Crim R 307
CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346
DC v The State of Western Australia [2014] WASCA 121
Garlett v The State of Western Australia [2009] WASCA 44
Knox-Cumming v MacDonald [2018] WASC 164
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McAlpine v The State of Western Australia [2018] WASCA 195
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
R v E (a child) (1993) 66 A Crim R 14
R v Nagy [2003] QCA 175; [2004] 1 Qd R 63
Smith v The State of Western Australia [2015] WASCA 87
The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Hillier [2008] WASCA 184
The State of Western Australia v Radovic [2019] WASCSR 6
The State of Western Australia v Yamalulu [2019] WASCA 6
JUDGMENT OF THE COURT:
This is a State appeal against sentence.
The respondent was charged on indictment with two counts.
Count 1 alleged that on 19 July 2017, at Rockingham, the respondent was armed with an offensive weapon, namely a sword, in circumstances likely to cause fear to other persons, contrary to s 68(1) of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and in the same place as count 1, the respondent attempted unlawfully to kill Senior Constable Andrew Thomas Swift, contrary to s 283(1) of the Code.
On 26 March 2018, the respondent pleaded guilty to count 1 and was convicted of that charge. The respondent pleaded not guilty to count 2. On 12 October 2018, the respondent was convicted of count 2 after a five day trial in the Supreme Court before Fiannaca J and a jury.
On 24 January 2019, the trial judge sentenced the respondent to 9 years' imprisonment on count 2 and 4 years' imprisonment on count 1. The sentences were backdated to 19 July 2017 and ordered to be served concurrently. Therefore, the total effective sentence was 9 years' imprisonment. A parole eligibility order was made.
The sole ground of appeal alleges that the sentence imposed on count 2, namely 9 years' imprisonment, is manifestly inadequate.
We would allow the appeal. His Honour's sentencing decision should be set aside and the respondent should be re‑sentenced by this court.
The facts and circumstances of the offending
The facts of the offending, as found by the trial judge, were not challenged on appeal. They were summarised by his Honour in his sentencing remarks as follows.[1]
[1] The State of Western Australia v Radovic [2019] WASCSR 6 [11] - [41] (Sentencing Remarks).
The respondent and his former wife, Ms Radovic, separated in December 2014. In January 2015, Ms Radovic obtained a violence restraining order (VRO) against the respondent which prevented the respondent from contacting or communicating with Ms Radovic or any of their three children. This VRO was still in place at the time of the respondent's offending.
On 18 July 2017, the day before the offending, the respondent made an application in the Rockingham Magistrates Court to vary the terms of the VRO to allow him to have contact with his children. This application was opposed by Ms Radovic. The matter was adjourned until November 2017, which upset and angered the respondent.
On 19 July 2017, the day of the offending, the respondent went to the workplace of Ms Radovic's brother-in-law (Mr Panic), taking a samurai sword with him in order to confront Mr Panic. The respondent took the sword into the premises but was told that Mr Panic was not there.
Sometime after 3.45 pm the same day, the respondent went to a residential unit in Rockingham where he knew Ms Radovic's sister lived with Mr Panic. Ms Radovic and the respondent's children lived in the unit immediately in front and to the side of her sister's unit. The trial judge proceeded on the basis that the respondent was unaware that Ms Radovic and his children were living at the adjacent unit.
When the respondent arrived at Mr Panic's unit, he banged on the door and shouted aggressively, 'I will fucking kill youse [sic] all'. He then left the premises. One of the respondent's sons witnessed this display. Another of the respondent's sons proceeded to call Ms Radovic, who called the police.
As a consequence of Ms Radovic's call, two police officers, one being Senior Constable Swift, attended Ms Radovic's unit. They parked their marked police vehicle on the road adjacent to the premises and went into Ms Radovic's unit to take statements from the respondent's sons. A number of other people arrived at the premises soon afterwards, including Ms Radovic.
At about 5.32 pm, the respondent returned to the premises in a vehicle, bringing with him the samurai sword. He drove past the house, did a U-turn and sped back before pulling into the driveway in front of a number of people. One of these people, Garry Martin, attempted to hold the respondent's car door closed in order to prevent him from exiting the vehicle. The respondent grabbed the sword from the passenger seat, causing Mr Martin to back away and allow the respondent to alight.
The respondent exited the vehicle and brandished the sword in a manner which caused fear to those present (count 1), shouting words to the effect of, 'I'm going to kill you all' and 'I want to die'.[2] His Honour found that the respondent was 'in a rage' and 'behaving irrationally'.[3] His Honour found further that the only reasonable conclusion to be drawn from the respondent's behaviour was that he was aware that police were in attendance, and was intent on causing harm in the expectation that he might be killed.
[2] Sentencing Remarks [23].
[3] Sentencing Remarks [23].
One of the witnesses went to Ms Radovic's unit to alert the police. In response, Senior Constable Swift and the other police officer came outside and approached the respondent. Senior Constable Swift had his Taser drawn.
The respondent approached Senior Constable Swift with the sword raised above his head. Senior Constable Swift shouted at the respondent to stop. The respondent ignored this and rushed towards him with the sword, prompting Senior Constable Swift to discharge his Taser at the respondent, to no effect. The respondent then swung the sword in a forceful downward motion, striking the top of Senior Constable Swift's head, which was shaved and unprotected (count 2).
The blow caused a large gash to the top of Senior Constable Swift's head and a second laceration to his forehead.
As he was struck by the sword, Senior Constable Swift managed to grab the respondent around the neck and wrestle him to the ground. The other police officer deployed her Taser at the respondent, which was also ineffective. Both police officers then managed to use their Tasers to stun the respondent. Eventually, they subdued him, put him in handcuffs and placed him in the back of the police vehicle, where the respondent yelled statements to the effect that others would 'feel [his] power' and that the community should 'rise up'.[4]
[4] Sentencing Remarks [33].
Following the attack, Senior Constable Swift was taken to Royal Perth Hospital for treatment. He suffered a fracture to his skull in the parietal cortical area. Fortunately, he did not suffer injury to his brain. The trial judge noted that it was fortunate that his life was not endangered once the wounds were treated.[5]
[5] Sentencing Remarks [36].
The trial judge found, consistent with the verdict of the jury, that the respondent struck Senior Constable Swift to the head with the intention of killing him. His Honour found that this intention was formed 'in the few moments between [the respondent] getting out of the car and being confronted by Senior Constable Swift'.[6]
[6] Sentencing Remarks [30].
His Honour rejected as implausible the respondent's explanation that he had brought the sword with him to 'protect [himself] against drug dealers'. His Honour was satisfied that the respondent had brought the sword with him to cause fear to those he intended to confront. His Honour also found that the respondent was prepared to use the sword to cause physical harm during this confrontation.[7]
[7] Sentencing Remarks [20].
The trial judge said that the respondent was 'practised and proficient' in the use of the sword.[8] His Honour also said that the sword was sharp, and that the respondent was obviously aware of this. In his evidence, the respondent had described the sword as being 'sharp like a razorblade'.[9]
[8] Sentencing Remarks [19].
[9] ts 417.
His Honour rejected the respondent's assertion that he did not realise Senior Constable Swift was a police officer until after he struck him.[10] His Honour concluded:[11]
The inescapable conclusion, consistent with the verdict of the jury, is that [the respondent] intended to kill a police officer who was risking his life to protect others. Without hesitation, and with considerable courage, he put himself in harm's way to stop [the respondent], an angry and irrational, violent individual who was wielding a dangerous weapon and was capable of causing catastrophic harm. [The respondent's] response was an attempt to kill him. It may be that [the respondent] had a 'death wish', but [the respondent] had no hesitation in trying to cause [Senior Constable Swift's] death in the process.
[10] Sentencing Remarks [23].
[11] Sentencing Remarks [35].
The trial judge's sentencing remarks
The trial judge characterised the respondent's offending on count 2 as 'towards the upper end of the scale of seriousness' for offences of this nature, due to the following aggravating factors:[12]
(1)The victim's status as a police officer carrying out his duty in protection of the community.
(2)The nature of the weapon used, being a dangerous sword the very purpose of which is to kill or maim when used to inflict violence.
(3)The fact that the respondent aimed the blow at the victim's head, a vulnerable area with a high potential for fatal injury.
(4)The respondent's complete lack of remorse immediately following his attack, demonstrated by his continued behaviour of aggressively resisting the officers.
(5)The fact that the respondent was subject to a community based order imposed as a result of previous breaches of his VRO at the time of the offending.
(6)The impact of the offending on the victim. Senior Constable Swift has been detrimentally affected both professionally and personally. He became acutely aware of his mortality as a result of the offending. He has experienced self‑doubts and has an increased concern about the dangers of his work. He continues to have tenderness where he suffered the wounds. The offending has also detrimentally affected Senior Constable Swift's wife and family.
[12] Sentencing Remarks [49] - [55].
His Honour outlined the respondent's personal circumstances and antecedents,[13] referring to a pre-sentence reported dated 27 December 2018 and a psychiatric report dated 8 January 2019.[14]
[13] Sentencing Remarks [57] - [88].
[14] Sentencing Remarks [58].
The respondent was aged 45 at the time of the offending and was 47 when sentenced. He was in good physical health, although he had a history of mental health issues such as depression and anxiety. He had used illicit drugs in the past, but gave inconsistent accounts of the nature and extent of his substance abuse. The psychiatric report outlined that the respondent was distressed and angry at the time of the offending, but was not experiencing psychotic symptoms and was not affected by substances. The psychiatric report did not suggest any mental health issue causative of the offending.
The respondent's childhood was unremarkable and did not bear on his offending. He completed high school and spent 12 months studying civil engineering, before later qualifying as a boilermaker and working in that capacity. He was a talented sportsman and represented the State in karate and the country in boxing. After the breakdown of his marriage in 2014, the respondent ceased working as a boilermaker and has since received Centrelink benefits, as well as working intermittently as a labourer.
The respondent's father and one of his brothers died in 2002. His brother's suicide had an adverse emotional impact on the respondent. However, his Honour noted that despite this, for a long period of time the respondent was a productive and successful member of the community.[15]
[15] Sentencing Remarks [60] – [61].
The respondent was in a relationship with Ms Radovic for 24 years. They have three children who were aged 20, 17 and 15 years at the time of sentencing. The relationship ended in December 2014, after which Ms Radovic obtained the VRO against the respondent, preventing him from access to her or their children. His Honour accepted that the breakdown of the respondent's relationship was a significant factor in his criminal history.[16]
[16] Sentencing Remarks [69].
As to this criminal history, most seriously, the respondent was convicted in 2015 of assaulting a police officer and obstruction of a police officer. The latter offence involved brandishing the same samurai sword at police officers in a threatening manner as they attempted to apprehend him. A wholly suspended term of imprisonment was imposed on the respondent for these offences.
The trial judge noted, correctly, that while the respondent's criminal history was not an aggravating factor, it meant that he did not come before the court as a person of prior good character. Additionally, the respondent's repeated attitude of disrespect to and defiance of police officers increased the need for personal deterrence.
In addition to the respondent's history of offending against police officers, his Honour referred to the psychiatrist's assessment of the respondent's risk of reoffending. The psychiatrist characterised the respondent's aggressive tendencies as 'impulsive retaliatory', meaning the respondent had a tendency to respond aggressively to perceived hostility or threats, particularly to himself or his children. His Honour characterised the respondent as 'a danger to the community', whose 'risk of reoffending [was] obvious'.[17]
[17] Sentencing Remarks [91] - [92].
As to mitigation, his Honour noted that there was 'very little in the way of mitigation' in the respondent's case.[18] The respondent had taken steps towards his rehabilitation while in custody for the current offences. He had expressed some late remorse for the injury suffered by the victim and the impact on him, but had not expressed regret or taken responsibility for his intention to kill the police officer. The respondent maintained that he did not intend to kill Senior Constable Swift.[19] While the respondent was entitled to proceed to trial, his plea of not guilty to the attempted murder charge meant that he did not have the mitigation that a plea of guilty would have afforded him.
[18] Sentencing Remarks [101].
[19] Sentencing Remarks [95].
His Honour outlined that the most significant factor in sentencing the respondent was general deterrence, both regarding the carrying and use of deadly weapons and, in particular, the need to protect police officers.[20] Personal deterrence was also important in the respondent's circumstances.[21]
[20] Sentencing Remarks [97] - [98].
[21] Sentencing Remarks [100].
The sole ground of appeal
As we have mentioned, the State's sole ground of appeal alleges that the sentence of 9 years' imprisonment imposed on count 2 was manifestly inadequate.
The State's ground asserts that the sentence was manifestly inadequate having regard to the following:
(a)the maximum penalty for the offence (being life imprisonment);
(b)the serious nature of the offence and the circumstances in which it was committed, including:
i.the person the respondent intended to kill was a police officer carrying out his duty;
ii.the respondent knew the victim was a police officer before he struck him;
iii.the respondent came to the premises armed with a samurai sword which he knew was sharp and which he was adept at using;
iv.the respondent used the sword to strike the victim to the head, a vulnerable area which was likely to result in fatal injury;
v.the offence was committed in front of witnesses including the respondent's juvenile son;
vi.the offence was committed in breach of the respondent's VRO and community based order;
(c)the serious impact of the offence on the victim and his family;
(d)the personal circumstances of the respondent;
(e)the importance of personal deterrence considering the respondent's criminal history; and
(f)the importance of general deterrence and punishment for offences of this nature.
On 9 April 2019, Buss P granted leave to appeal on the sole ground of appeal.
The State's submissions
Counsel for the State reiterated the six aggravating factors outlined by his Honour, which we have reproduced at [27] above. In particular, counsel focused on the need to provide general deterrence for the attempted killing of a police officer acting in the course of his or her duty.
Counsel elaborated:[22]
The discharge of police officers' duties involves maintaining law and order and necessitates the maintenance of public confidence in and respect for the police service and its members. It carries with it appreciable risks of injury and even death. Because of these matters, and because of the need to facilitate the exercise of powers by police officers, courts have accepted the need to mete out salutary punishment to those who harm or impede them. Police officers are thus in a special category for present purposes.
…
Police officers undertake a difficult, dangerous and usually thankless task. They run significant risks in the normal execution of their duties. The authority of the police, in the performance of their duties, must be supported by the courts. In cases involving assaults against police there is a need to give full weight to the objective of general deterrence.
While it is unrealistic to expect that police officers will be able to discharge their duties without being subjected to random acts of violence, they are nevertheless vulnerable by the very nature of their duties. The community depends on police officers being willing to shoulder that risk, and police officers deserve to be protected from it to the extent that it is possible, consistent with sentencing rules. (footnotes omitted)
[22] AB 13.
Counsel cited R v Nagy;[23] The State of Western Australia v BLM;[24] Attorney General's Application (No 2 of 2002);[25] and Knox-Cumming v MacDonald[26] in support of the State's case.
[23] R v Nagy [2003] QCA 175; [2004] 1 Qd R 63 [74].
[24] The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [44].
[25] Attorney General's Application (No 2 of 2002) [2002] NSWCCA 515; (2002) 137 A Crim R 196 [25] - [26].
[26] Knox-Cumming v MacDonald [2018] WASC 164 [41].
In addition to the importance of general deterrence, counsel argued that there was an increased need for personal deterrence when regard was had to the respondent's criminal record, namely the respondent's conviction in 2015 for threatening police officers with a sword. This, combined with the aggravating factors noted by his Honour and the lack of mitigating factors, demonstrated that the sentence imposed on count 2 was manifestly inadequate.
Finally, the State referred to the sentencing standards for attempted murder as demonstrated in previous cases,[27] and submitted that while the sentence imposed on count 2 was 'conceivably within the range that was ordinarily given in cases of attempted murder, this case should have attracted a higher sentence than that apparently established range'.[28] In any case, only one previous case had involved the attempted murder of a police officer.[29] None of the cases were truly comparable to the respondent's offending.[30]
[27] Specifically, Attwell v The State of Western Australia [2015] WASCA 84; Garlett v The State of Western Australia [2009] WASCA 44; DC v The State of Western Australia [2014] WASCA 121; The State of Western Australia v Hillier [2008] WASCA 184; Bromfield v The Queen [2002] WASCA 333; R v E (a child) (1993) 66 A Crim R 14.
[28] Appeal ts 6.
[29] R v E (a child).
[30] AB 20.
The respondent's submissions
Counsel for the respondent submitted that the respondent's offending behaviour was 'bizarre'. The respondent was irrational and in a rage. Whilst not mitigating, this behaviour provided 'context' to his offending.[31]
[31] AB 25.
Counsel conceded (properly, in our opinion) that there was little in the way of mitigation, the exceptions being the respondent's steps toward rehabilitation whilst in custody, and his expression of remorse for the injuries suffered by the victim.[32]
[32] AB 25.
Counsel acknowledged the seriousness of the respondent's offending, particularly having regard to the victim's status as a police officer and the respondent's criminal history of offending against police officers.[33] However, counsel argued that his Honour carefully considered all matters before him, including the aggravating and mitigating factors, the pre-sentence and psychiatric reports, sentencing standards apparent from previous cases and the submissions of both parties. In addition, his Honour had the benefit of having presided over the trial and having seen and heard the witnesses, including by the respondent. His Honour gave careful consideration to all relevant matters and exercised his sentencing discretion in a manner open to him.
[33] AB 26.
Counsel for the respondent emphasised the well-established principle that in sentencing appeals an appellate court must not substitute its own decision for that of the primary judge merely because the appellate court would have exercised the sentencing discretion differently, especially where the primary judge has had the benefit of hearing the evidence at a trial.[34] Counsel submitted that 'care needs to be given in this particular circumstance that whilst another judge or another number of judges may have imposed a different penalty … this penalty is not so insufficient as to constitute manifest inadequacy'.[35]
[34] AB 27, citing Smith v The State of Western Australia [2015] WASCA 87.
[35] Appeal ts 10.
The merits of the appeal
As we have mentioned, the sole ground of appeal alleges that the sentence imposed on count 2 was manifestly inadequate as to length. The State does not challenge the sentence imposed on count 1 or the order that the sentences be served concurrently,[36] or allege that his Honour made any express error of fact.[37]
[36] AB 12.
[37] Appeal ts 6.
The general principles governing a ground of manifest inadequacy are well-established and were summarised recently by this court.[38] A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.
[38] The State of Western Australia v Yamalulu [2019] WASCA 6.
As we have mentioned, the maximum penalty for attempted murder, contrary to s 283(1) of the Code, is life imprisonment. This penalty demonstrates the seriousness of the offence.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the inadequacy of a sentence.[39]
[39] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600; The State of Western Australia v Doyle [2017] WASCA 207; McAlpine v The State of Western Australia [2018] WASCA 195.
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law.[40]
[40] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58.
The discretion conferred on sentencing judges is, of course, of fundamental importance and as the respondent correctly identified, this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.[41]
[41] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.
We have examined a number of previous cases in which this court has considered sentences imposed for the offence of attempted murder, contrary to s 283 of the Code. See, for example, Byfield v The Queen;[42]Bromfield; Hillier; Garlett; Ammoun v The State of Western Australia;[43]and DC. We have also considered this court's decision in Attwell where the offender was convicted after trial of attempting to procure another to murder the complainant, contrary to s 279 and s 556 of the Code. At all material times the maximum penalty for that offence has been life imprisonment. The offender's appeal against sentence in Attwell was dismissed.
[42] Byfield v The Queen [2002] WASCA 260; (2002) 133 A Crim R 307.
[43] Ammoun v The State of Western Australia [2009] WASCA 182.
In Hillier [30] ‑ [34], Steytler P (Wheeler and Miller JJA agreeing) reviewed a number of previous sentencing cases relating to the offence of attempted murder. After observing that the sentences imposed in the cases he had reviewed varied enormously, depending upon the circumstances, his Honour said:
In Bell v The Queen (1992) 62 A Crim R 66 the appellant was convicted, after a trial, of breaking into his estranged wife's house and attempting to murder her by stabbing. The attack was planned, calculated and premeditated. The appellant had learned that his wife was having an affair. This led to arguments and episodes of violence. Not long afterwards the appellant separated from his wife. He had difficulty in accepting the separation and became obsessed by his marital situation. This culminated in his decision to kill his wife. The offence was out of character and the only injuries that had been sustained by the appellant's wife were cuts on her hands. The appellant had himself telephoned the police and had demonstrated remorse. He was sentenced to a total term of 10 years' imprisonment, 11 months of which related to the offence of breaking into his estranged wife's house. This equates to a term of a approximately 6 years after the operation of the transitional provisions enacted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA). The Court of Criminal Appeal declined to interfere with the sentence imposed.
In Lawson v The Queen (Unreported, WASCA, Library No 940439, 24 August 1994) a 28‑year‑old man with a record of violence pleaded guilty to one count of attempted murder, one of unlawful detention and five of sexual assault. He was sentenced to a total term of 21 years' imprisonment, 14 years of which related to the count of attempted murder. The appellant had gone to the home of his wife, from whom he was separated, and attacked her with a knife, stabbing her repeatedly. Having left her for dead, he drove to her girlfriend's home and forced her to go with him to a remote location where he sexually assaulted her on a number of occasions while armed with a knife. He demonstrated no remorse and blamed the prison system for not rehabilitating him when he was in prison for previous offences of violence. He had had a childhood marked by neglect and abuse and had been a ward of the State since the age of 12. He had suffered physical abuse from his mother and sexual abuse from others. The appeal was dismissed. The sentence of 14 years' imprisonment imposed in respect of the attempted murder equates to one of 9 years and 4 months' imprisonment after the operation of the transitional provisions.
In R v Kerr (Unreported, WASCA, Library No 970402, 15 August 1997) the offender was convicted after a trial of an offence of attempted murder. He had attempted to kill his de facto wife by shooting her in the head with a bullet fired from a .22 calibre rifle held about 4 inches away from her head. The bullet had passed through her eye and into her skull. The complainant had sustained brain damage which affected her ability to recollect events. The offender was aged 27 at the time of the offence. He had consumed alcohol and cannabis. He and the complainant had been involved in a domestic argument. After a successful Crown appeal the offender was sentenced to a term of 10 years' imprisonment. This equates to a term of 6 years and 8 months after the application of the transitional provisions.
In Aldridge v The Queen (Unreported, WASCA, Library No 980206, 23 April 1998) the 50‑year‑old appellant had commenced a relationship with a woman described as Miss T. The two of them had planned to go to England to attempt the finalisation of the appellant's divorce. There was a late change of plan and Miss T remained in Australia. On the appellant's return from England, he found that she had broken off the relationship and had stripped the house that they had shared of furniture. She had also sold a car which the applicant had owned, or had owned jointly with her. Miss T's mother, Mrs T, told the applicant that her daughter wanted nothing more to do with him. During the night immediately preceding the offences, the appellant had consumed alcohol. After brooding for a time, he decided to kill both mother and daughter. He armed himself with a knife and drove to their home. He arrived there at about 4.00 am. He thrust the knife at Mrs T, intending to kill her, but the knife broke. He then grabbed Miss T, pulled her head down and punched her with his fists. Miss T struck him with a baseball bat. After striking her again, he turned to the mother and continued his attack upon her. The two women managed to eject him and then contacted the police. Mrs T sustained considerable bruising and some lacerations. A psychologist described the appellant as having suffered from an acute stress disorder. He had no criminal history and was unlikely to reoffend. He pleaded guilty to the attempted murder of Mrs T, of assault with intent to do grievous bodily harm in respect of Miss T and of burglary whilst armed. He was sentenced to a term of 9 years' imprisonment on the attempted murder charge, to a term of 7 years, to be served concurrently, on the burglary charge and to a term of 3 years' imprisonment, 2 years of which was to be served concurrently, on the assault charge. The appeal was unsuccessful. The sentenced imposed in respect of the attempted murder is equivalent to one of 6 years' imprisonment after application of the transitional provisions.
In Byfield v The Queen [2002] WASCA 260; (2002) 133 A Crim R 307, the appellant pleaded guilty, on the fast‑track, to a charge of attempted murder. He and a co‑offender had been at a football oval with other people. They saw the complainant, who had allegedly been responsible for an assault upon the co‑offender at an earlier date. The appellant and his co‑offender went to the appellant's home and obtained a piece of wood similar to an axe handle. They returned to the oval in the co‑offender's car. He stopped it in front of the complainant. The two men got out and the co‑offender struck the complainant with the piece of wood, rendering him unconscious. The co‑offender struck the complainant a second time while he lay on the ground. The co‑offender then drove his car over the complainant before leaving the area. The two men did not know whether or not they had killed the complainant. They returned, at the suggestion of the appellant. The co‑offender then drove his car over the complainant a second time. The complainant was very severely injured. At the time of sentencing, the appellant was 19 years old. He had no previous convictions and the crimes were out of character for him. He was sentenced to a term of 12 years' imprisonment (8 years, after application of the transitional provisions). The appeal was dismissed.
In the present case, the parties accepted that none of the previous cases concerned offending truly comparable to that of the appellant.[44] Our examination of those cases confirms the correctness of that proposition.
[44] AB 20, 26.
Although all offences of attempted murder will, no doubt, be very serious, the degree of seriousness of the facts and circumstances of particular offending and the degree of mitigation revealed by the personal circumstances and antecedents of particular offenders will vary significantly. The sentences imposed for offences of attempted murder are therefore variable. There is no tariff or usual sentencing range.
In the present case, the respondent's offending, the subject of count 2, was a very serious example of offending of the kind in question. The very serious nature of the offending is readily apparent from the aggravating factors specified by the trial judge in his sentencing remarks. His Honour's findings of fact in his sentencing remarks are not challenged. The respondent inflicted grievous injuries upon Senior Constable Swift who was, at the material time, acting courageously in the discharge of his public duties. The respondent ignored Senior Constable Swift's direction to cease approaching him and his fellow officer. The respondent had the capacity to carry out his intention of killing Senior Constable Swift. It is fortuitous that Senior Constable Swift did not suffer fatal injuries. The impact of the offending upon Senior Constable Swift and his family was, unsurprisingly, traumatic.
Police officers are often required to place their safety at risk in carrying out their duty to protect the public. It is vital that the courts impose significant custodial sentences upon offenders who intentionally cause serious injury to police officers acting in the course of their duties. The sentencing factors of personal and general deterrence are of particular important in cases of that kind.
In the present case, personal and general deterrence were of great significance in the sentencing process. The criminality of the respondent's conduct was increased by the fact that he attempted to murder a police officer who was executing his duties. This was a profoundly aggravating feature of the offending. As Wheeler and Pullin JJA observed in BLM [44]:
[W]hile all citizens are equally deserving of protection from attack, a premeditated and wholly unjustified attack on a police officer as a result of that officer carrying out his duties is in a real sense an attack on the community as a whole, as members of the community rely upon the police to protect them from criminal conduct and to maintain the peace.
As we have mentioned, the respondent was aged 45 when he committed the offence charged in count 2. He was not youthful or inexperienced for sentencing purposes.
The respondent had a significant prior criminal record, including previous convictions in 2015 for assaulting a police officer and obstructing police. That offending did not result in any injury, but the respondent brandished his samurai sword at police officers in a menacing fashion when they were endeavouring to arrest him. Although the fact that the respondent had a prior criminal record and the fact that previous sentences imposed on him had not achieved the purposes for which they were imposed did not aggravate the seriousness of the offending in question, they indicated that the respondent was not entitled to leniency on the ground that he was ordinarily of good character. His criminal history (in particular, his previous offending against police officers) underscored the importance of personal deterrence as a sentencing factor.
Although the respondent was entitled to proceed to trial, he did not have the mitigation that a plea of guilty would have brought.
The mitigation available to the respondent was limited.
In our opinion, the sentence of 9 years' imprisonment was not commensurate with the seriousness of the offence charged in count 2. We are satisfied, after considering all relevant facts and circumstances and all relevant sentencing factors, that the length of the sentence was unreasonable or plainly unjust. That is the only conclusion reasonably open when the sentence is viewed from the perspective of the maximum penalty; the facts and circumstances of the offence; the seriousness of the offending (including the vulnerability, in the circumstances, of Senior Constable Swift); the general pattern of sentencing for offences of this kind; the importance of appropriate punishment, personal and general deterrence, and the protection of police officers who are often required to discharge their duties in difficult, stressful and dangerous situations; and all aggravating and mitigating factors. The sentence of 9 years' imprisonment was not merely lenient. In particular, the sentence was not merely at or towards the lower end of the sentencing outcome open to his Honour on a proper exercise of his discretion. The sentence was substantially less than the sentencing outcome that was properly open to his Honour.
The ground of appeal has been made out.
The outcome of the appeal and the resentencing of the respondent
Counsel for the respondent did not submit that the residual discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. The respondent does not, of course, 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. See CMB v Attorney General (NSW).[45]
[45] CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34], [66].
In our opinion, there is no basis, in the present case, for invoking the residual discretion. As we have indicated, the sentence imposed by the trial judge for count 2 was substantially less than the sentence open on a proper exercise of the sentencing discretion. Appealable error has been very clearly established. This court's intervention is necessary to ensure that proper sentencing standards are adopted and maintained for the relevant offence.
We would allow the appeal.
The sentence imposed by his Honour should be set aside.
This court has the material necessary to resentence the respondent.
Like the trial judge, we would allow a discount of 15%, pursuant to s 9AA of the Sentencing Act, on the head sentence we would otherwise have imposed on count 1, for the plea of guilty. We have also reduced the sentence we would otherwise have imposed on count 1 to recognise the other mitigating factors. Like his Honour, we would impose a sentence of 4 years' immediate imprisonment for count 1.
After taking into account the maximum penalty; the facts and circumstances of the offence; the seriousness of the offending (including the vulnerability, in the circumstances, of Senior Constable Swift); the general pattern of sentencing for offences of this kind; the importance of personal and general deterrence, and the protection of vulnerable police officers, as sentencing considerations; and all aggravating and mitigating factors (in particular, the mitigating factors referred to by his Honour), we would impose a sentence of 13 years' imprisonment for count 2.
The new sentences for count 1 and count 2 are to be served concurrently. The new total effective sentence is therefore 13 years' imprisonment.
The new sentences are to be taken to have taken effect on 19 July 2017.
The respondent remains eligible for parole. He will be eligible to be considered for release on parole upon having served 11 years in custody calculated from 19 July 2017.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss8 APRIL 2020
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