The State of Western Australia v Smith
[2019] WASCA 42
•6 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- SMITH [2019] WASCA 42
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 15 FEBRUARY 2019
DELIVERED : 6 MARCH 2019
FILE NO/S: CACR 210 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
DESLEY SMITH
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LONSDALE DCJ
File Number : IND 773 of 2018
Catchwords:
Criminal law - Appeal against sentence - Unlawful assault causing death
Legislation:
Criminal Code (WA), s 281
Result:
Appeal allowed
Respondent re-sentenced
Category: D
Representation:
Counsel:
| Appellant | : | Mr J C Whalley |
| Respondent | : | Mr T Hager |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Aboriginal Legal Service |
Case(s) referred to in decision(s):
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
McAlpine v The State of Western Australia [2018] WASCA 195
TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297
The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397
The State of Western Australia v JWRL [2010] WASCA 179
The State of Western Australia v Walley [2008] WASCA 12
Ward v The Queen [1972] WAR 36
JUDGMENT OF THE COURT:
Summary
The respondent pleaded guilty to a charge of unlawful assault causing the death of the deceased, contrary to s 281(1) of the Criminal Code (WA). The maximum penalty for that offence is 20 years' imprisonment. The sentencing judge imposed a sentence of 2 years' immediate imprisonment, with eligibility for parole. The State now appeals against that sentence on the ground that it is manifestly inadequate.
The respondent concedes that the appeal must be allowed, and that he should be sentenced to a longer term of immediate imprisonment. For the following reasons, we would accept that concession, and resentence the respondent to a term of 4 years 9 months' immediate imprisonment.
Circumstances of the offence
The following are the unchallenged findings as to the circumstances of the offence.
The respondent and the deceased were both Aboriginal men who resided in Roebourne.[1] The respondent was 18 years 6 months old at the time of the offence, while the deceased was 33 years old.[2] They were the same height (185cm).[3] The respondent was of medium build, while the deceased was of solid build.[4]
[1] Primary ts 18.
[2] Primary ts 7, 17, 18.
[3] Primary ts 7, 18.
[4] Primary ts 10, 18.
The offence occurred at about 12.05 am on Sunday 27 August 2017.[5] The previous day, the respondent had been fishing, had consumed a considerable amount of alcohol and had eaten very little.[6] He had also smoked some cannabis.[7] The respondent then went to a party at a cousin's house, attended by members of his family and extended family.[8] The respondent was intoxicated when he arrived and continued to drink at the party.[9] The respondent became involved in a verbal altercation with the deceased's sister, and the deceased challenged the respondent to a fight.[10] Initially, the respondent did not want to fight, but the deceased continued to challenge him to come outside for a fight.[11]
[5] Primary ts 7, 18.
[6] Primary ts 8 - 9, 18.
[7] Primary ts 9, 18.
[8] Primary ts 9.
[9] Primary ts 9.
[10] Primary ts 9 - 10, 18.
[11] Primary ts 10, 18.
The respondent and the deceased were fighting with each other on the road in front of the cousin's house, when a marked police vehicle on a routine patrol approached them with its emergency lights activated.[12] The deceased dropped his guard and approached the police vehicle.[13] As he did so, the respondent punched the deceased once, hard, to the head with his clenched right fist.[14] The punch was, from the deceased's perspective, unexpected.[15] The punch caused the deceased to fall to the ground and hit his head on the bitumen.[16] The deceased convulsed and fell into an unconscious state, with bleeding from his nose and the back of his head.[17]
[12] Primary ts 7.
[13] Primary ts 7, 18.
[14] Primary ts 7, 18.
[15] Primary ts 18.
[16] Primary ts 7, 18.
[17] Primary ts 7, 18.
The police officers told the respondent to stay where he was.[18] The respondent racially abused the officers before running away from the scene.[19] The police apprehended him a short distance away and placed him under arrest.[20]
[18] Primary ts 7.
[19] Primary ts 7.
[20] Primary ts 7.
The sentencing judge found that the respondent may have run away because he panicked and was worried about what was going to happen.[21] He probably did not realise the deceased was seriously injured or that he could have died.[22] The respondent did not mean to kill the deceased or cause him serious injury.[23]
[21] Primary ts 19.
[22] Primary ts 19.
[23] Primary ts 19.
The deceased suffered from a subdural haematoma and was conveyed by ambulance to a nearby hospital.[24] He was placed in an induced coma and transferred to Royal Perth Hospital for emergency treatment.[25] The deceased remained on life support until he died from his head injury at 1.42 pm on 28 August 2017.[26]
[24] Primary ts 8.
[25] Primary ts 8.
[26] Primary ts 8.
Personal circumstances
The respondent was the youngest child of his parents' union.[27] His parents separated when he was about 10 years old.[28] He had a good upbringing, but was exposed to some alcohol growing up.[29] After his parents' separation, the respondent lived with an older brother before returning to Roebourne to live with his father and other family members at the age of 16.[30] Defence counsel said in his plea in mitigation that considerations of the type referred to in Bugmy v The Queen,[31] with respect to an offender's upbringing, did not apply in this case.[32]
[27] Primary ts 14.
[28] Primary ts 14.
[29] Primary ts 14 - 15.
[30] Primary ts 14.
[31] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
[32] Primary ts 15.
The respondent left school half way through year 11, and had not been in full time employment.[33] He was single without any children.[34]
[33] Primary ts 15.
[34] Primary ts 15.
The respondent had no convictions as an adult, and only traffic convictions in the Children's Court.[35] The sentencing judge treated him as a first offender.[36]
[35] Primary ts 14.
[36] Primary ts 20.
The sentencing judge found that the respondent was remorseful and had insight into the effect that his offence had on everyone in his extended family.[37] Her Honour found that the respondent had good prospects of rehabilitation in the future.[38]
[37] Primary ts 19 - 20.
[38] Primary ts 20.
Victim impact
The court received a victim impact statement from the deceased's father, which described the predictably dreadful effect which the deceased's death had on his family. The deceased's parents, his siblings, and his 10 year old niece, have had enormous difficulty in dealing with the deceased's death.
Sentencing judge's approach
The sentencing judge referred to the above matters, and identified the main sentencing considerations to be general deterrence and punishment.[39] The sentencing judge said that there was a need to send a message to other people who might be minded to fight after having too much to drink that they will be dealt with severely if they assault people and cause their death.[40]
[39] Primary ts 20.
[40] Primary ts 20.
The sentencing judge also took into account the recent increase in the maximum penalty for the offence from 10 years' to 20 years' imprisonment. Her Honour accepted that Parliament intended for sentences for the offence to be increased. [41]
[41] Primary ts 18.
The sentencing judge accepted that the respondent had pleaded guilty at an early opportunity, although not the earliest reasonable opportunity.[42] Having regard to that fact, and the strength of the prosecution case (given the offence was committed in front of police officers and other persons), the judge considered a discount of 20% under s 9AA of the Sentencing Act 1995 (WA) to be appropriate.[43]
[42] Primary ts 19.
[43] Primary ts 19.
The sentencing judge said:[44]
Now, no sentence that I impose can adequately reflect the value of the life lost or to compensate the deceased’s family for their feelings of loss and grief. What I am required to do is impose a sentence having regard to all of the aggravating circumstances and mitigating circumstances and the vulnerability of the victim in arriving at a sentence which reflects the criminality of your conduct.
[44] Primary ts 21.
The sentencing judge then imposed a sentence of 2 years' immediate imprisonment.[45] Her Honour expressed the view that the offence was too serious to be suspended.[46] The respondent was made eligible for parole and the sentence backdated to 30 August 2018 to take account of time spent in custody on remand.[47]
[45] Primary ts 21.
[46] Primary ts 21.
[47] Primary ts 21.
Ground of appeal
The State appeals against the respondent's sentence on the sole ground that the sentence was so inadequate as to manifest error. The respondent concedes that the appeal must be allowed on that ground.
The general principles governing appeals contending that a sentence is manifestly inadequate are well established:
(1)A ground of appeal which alleges that a sentence is manifestly inadequate asserts an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
(2)The discretion conferred on sentencing judges is of fundamental importance and 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. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.
(3)The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that 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 that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
(4)A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual 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.
(5)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.
Disposition
The sentencing judge correctly recognised that general deterrence was an important sentencing consideration in this case. As McLure JA observed in The State of Western Australia vWalley (a manslaughter case):[48]
[O]ffences against the person are widespread in the community in general and in Aboriginal communities in particular. A great number of such offences are caused or contributed to by alcohol and other substance abuse. The failure to give any weight to general deterrence has the practical effect of reducing the severity of the sentence that would otherwise be imposed. That is to send the wrong message to potential offenders and fails to adequately protect the interests of potential victims.
[48] The State of Western Australia vWalley [2008] WASCA 12 [39].
It was also important for the sentence imposed to take account of the tragic loss of life which resulted from the respondent's conduct. As Martin CJ (with whom Buss JA agreed) noted in The State of Western Australia v JWRL:[49]
When considering the appropriate level of punishment to be imposed for an offence contrary to s 281 of the Criminal Code, the court should give full weight to the high value attached to human life. This weight is reflected in parliament's enactment of s 281. Because of the wide range of conduct and circumstances capable of constituting an offence contrary to s 281 of the Criminal Code, the imposition of a term of imprisonment to be served immediately is no more inevitable nor axiomatic than it is in the case of a conviction for manslaughter or dangerous driving causing death. However, given the sanctity of human life, and the value properly placed upon the loss of human life, as with offences of manslaughter and dangerous driving causing death, it will be an unusual case in which a sentence of imprisonment to be served immediately is not imposed. (citations omitted)
[49] The State of Western Australia v JWRL [2010] WASCA 179 [140].
The sentencing judge also correctly recognised the significance of the recent increase in the maximum penalty for an offence against s 281 of the Criminal Code.[50]
[50] See The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397 [121] - [123].
While the sentencing judge correctly identified these relevant principles, the sentence imposed on the respondent failed to give effect to those principles. A sentence of only 10% of the maximum penalty fails to reflect the seriousness of the offence, even taking account of the substantial mitigating factors in the respondent's favour (youth, good antecedents, an early plea of guilty, remorse and insight into the offending, and good prospects of rehabilitation). While the offence is not in the most serious category, the respondent brazenly inflicted a heavy blow to the head of an unsuspecting victim who was walking towards the onlooking police officers. A sentence of only 2 years' immediate imprisonment imposed in this case fails to properly reflect the high value of human life, or to have an appropriate deterrent effect.
The parties both accept that there are no decisions of this court which establish customary sentencing standards for an offence against s 281 of the Criminal Code. There have been no appeal decisions concerning the adequacy of sentences under s 281 of the Criminal Code since the maximum penalty was increased. Appellate authorities dealing with sentences imposed under the old maximum of 10 years' imprisonment concerned juvenile offenders,[51] which provide little guidance given the different sentencing principles which apply under the Young Offenders Act 1994 (WA).
[51] Being JWRL (where a sentence of 2 years' imprisonment, suspended for 2 years, was upheld on a State appeal) and TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297 (where this court imposed sentences of 2 years' and 2 years 8 months' detention on two juvenile offenders who assaulted and chased the deceased, causing him to run and hit his head on a bitumised surface).
The State refers to sentences imposed for manslaughter at a time when the maximum penalty for that offence was 20 years' imprisonment and cases concerning unlawfully doing grievous bodily harm (for which the maximum penalty is ordinarily 10 years' imprisonment). However, the different basis for criminal responsibility for those offences limits the utility of these cases. To establish those offences in cases of an intentional assault, the prosecution must ordinarily prove that the death or grievous bodily harm was not an event that occurred by accident.[52] Death or grievous bodily harm will have occurred by accident if it was not intended by the accused, was not foreseen by the accused and would not reasonably be foreseen as the consequence of the accused's conduct.[53] By contrast, an accused is criminally responsible for an offence against s 281 of the Criminal Code even if the accused does not intend or foresee the death of the other person and even if the death was not reasonably foreseeable.[54]
[52] Section 23B of the Criminal Code.
[53] Ward v The Queen [1972] WAR 36, 47.
[54] Section 281(2) of the Criminal Code.
As was recently noted in McAlpine v The State of Western Australia:[55]
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. (citations omitted)
[55] McAlpine v The State of Western Australia [2018] WASCA 195 [54] and cases there cited.
Notwithstanding the absence of comparable cases, in our view, the sentence imposed on the respondent cannot be seen to be commensurate with the seriousness of the respondent's offence. It is properly characterised as unreasonable or plainly unjust.
There is nothing in the circumstances of this case which would warrant the exercise of the court's residual discretion to dismiss a State appeal even though a ground of appeal has been established.
In our view, a different sentence should have been imposed. In reaching that conclusion, we have had regard to the circumstances of the offence and the mitigating factors referred to above. We have also taken account of the respondent's concession that the appeal should be allowed as reflecting his remorse and acceptance of responsibility for the offence. Allowing for a discount of 20% under s 9AA of the Sentencing Act, we regard a sentence of 4 years 9 months' immediate imprisonment to be commensurate with the seriousness of the offence. The respondent should remain eligible for parole with his sentence backdated to 30 August 2018.
Orders
For the above reasons, the following orders should be made in the appeal:
(1)The appeal is allowed.
(2) The sentence imposed by the District Court of Western Australia in indictment IND 773 of 2018 is set aside and a sentence of 4 years 9 months' immediate imprisonment is substituted.
(3)The respondent is eligible for parole.
(4)The sentence imposed by order 2 is taken to have begun on 30 August 2018.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell6 MARCH 2019
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