The State of Western Australia v WTG
[2016] WASCA 175
•12 OCTOBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- WTG [2016] WASCA 175
CORAM: MARTIN CJ
NEWNES JA
MITCHELL JA
HEARD: 12 SEPTEMBER 2016
DELIVERED : 12 OCTOBER 2016
FILE NO/S: CACR 226 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
WTG
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DERRICK DCJ
File No :IND 351 of 2015
Catchwords:
Criminal law - State appeal against sentence - Offences of aggravated grievous bodily harm, aggravated assault occasioning bodily harm and threat to harm - Offences committed in breach of suspended imprisonment order and in breach of violence restraining order - Where respondent and complainant were in domestic relationship - Whether sentence for offence of aggravated grievous bodily harm manifestly inadequate - Whether sentence infringed first limb of totality principle - Turns on own facts
Legislation:
Evidence Act 1906 (WA)
Sentencing Act 1995 (WA)
Result:
Appeal allowed
Sentence set aside
Appellant resentenced to total effective term of 5 years 6 months imprisonment
Category: B
Representation:
Counsel:
Appellant: Mr J McGrath SC
Respondent: Mr H Sklarz
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: Sklarz Lawyers
Case(s) referred to in judgment(s):
Bruno v The State of Western Australia [2005] WASCA 149
Hansen v The State of Western Australia [2014] WASCA 229
Mercanti v The State of Western Australia [2009] WASCA 109
The State of Western Australia v Camilleri [2008] WASCA 217
The State of Western Australia v Smith [2016] WASCA 153
Trompler v The State of Western Australia [2008] WASCA 265
MARTIN CJ:
Summary
This State appeal against sentence should be allowed for the reasons which follow. The sentences imposed upon WTG (the respondent) should be set aside and sentences imposed which result in a total effective sentence of 5 years and 6 months imprisonment.
The sentences imposed
The sentences below were imposed upon WTG following his conviction after trial.
Charge
Sentence
Aggravated assault occasioning bodily harm
12 months imprisonment ‑ cumulative
Threat to harm
10 months imprisonment ‑ concurrent
Aggravated grievous bodily harm
2 years and 10 months imprisonment (head sentence)
As a result of WTG's conviction of these offences, he was in breach of an order of suspended imprisonment previously imposed upon him. In respect of that breach he was sentenced to a term of 6 months imprisonment to be served concurrently with the other sentences imposed.
The sentences imposed gave rise to a total effective sentence of imprisonment for 3 years and 10 months.
The circumstances of the offences
The sentencing judge made detailed and comprehensive observations at the time of passing sentence, including detailed and comprehensive findings with respect to all relevant issues of fact, including the circumstances of the offences committed by WTG. None of those findings have been challenged on appeal. The following summary of the circumstances of WTG's offences is taken from the observations made by the sentencing judge.
WTG and the victim of the offences (the complainant) had been in an intimate relationship over a period of between 13 and 15 years, which commenced when both were in their mid to late teens. The relationship produced three children - two boys and a girl. The children were aged 12, 10 and six at the time of sentence.
The relationship was marred by significant domestic violence inflicted by WTG on the complainant. After previous temporary separations, WTG and the complainant separated on a more permanent basis approximately two years before the commission of the relevant offences.
In May 2014, WTG was living with his aunt a relatively short distance from the unit in which the complainant was living with the three children of the relationship. WTG had taken some steps to improve his life by abstaining from illicit substances, attending church and participating in courses designed to improve his prospects of employment. In that context, and despite the fact that the complainant had taken out a violence restraining order against WTG, and obtained orders from the Family Court which prevented WTG from having access to their children, she resumed contact with WTG because she believed that he was getting his life back on track.
On Friday, 20 June 2014, WTG and the complainant spent some of the day and the night together. During the night they both took methylamphetamine. Sexual relations took place. They spent most of the following day and all of that night together at the complainant's unit in the company of the children. Again, methylamphetamine was used by both and sexual relations took place.
The following morning, Sunday, 22 June 2014, the complainant took the children to football while WTG remained at the unit. He was unable to accompany them to the football because he could not afford to be seen with the complainant or the children, given the violence restraining order and the Family Court orders prohibiting contact.
The complainant returned to the unit with the children around midday. WTG suggested that the complainant arrange for somebody else to look after the children that day. The complainant contacted her friend, ED, who agreed to look after the children for the day.
When the complainant returned to the unit after dropping the children at ED's house, WTG suggested sexual relations. The complainant declined, which angered WTG. Around 2.00 pm that afternoon, WTG and the complainant drove to WTG's grandmother's house in the complainant's car. WTG was still aggravated by the fact that the complainant had declined to have sexual relations and, at some point, and through some means not established by the evidence, armed himself with a knife while at his grandmother's house. He then asked the complainant about the person with whom she had had a relationship during the time WTG and the complainant were separated. The complainant said that she had nothing more to say on the subject, which further aggravated WTG. He struck the complainant to the top of the head with the knife, causing a small laceration in the region of her left temple. At the time she was struck the complainant did not realise she had been cut. She only realised this when she left the house and returned to the car and felt blood on her head. In those circumstances, the sentencing judge was not satisfied beyond reasonable doubt that WTG struck the complainant with the blade or the point of the knife, but was satisfied that the complainant was struck with some other part of the knife. That blow constituted the offence of aggravated assault occasioning bodily harm.
The sentencing judge was also satisfied beyond reasonable doubt that during this incident WTG said to the complainant, 'I should slice your throat'. He noted that the jury had acquitted WTG on a count of threatening to kill the complainant, but considered his finding to be consistent with that verdict, on the basis that the jury were not satisfied that those words did in fact constitute the declaration of an intention to kill the complainant. The sentencing judge did not consider that his conclusion that the words were spoken aggravated the seriousness of the offence of assault from a sentencing perspective.
WTG and the complainant then left WTG's grandmother's house and drove around aimlessly for a significant period of time, returning to the complainant's unit at around 6.00 pm. During the afternoon, WTG continued to press the complainant with respect to her relationship with another man. By the time the couple returned to the complainant's unit, the complainant was in a distressed state - distraught and crying. WTG went to the unit of a neighbour to seek assistance. One of the neighbours offered to provide assistance and spent between 20 minutes and half an hour with the complainant trying to calm her down. During this time WTG was telling the complainant to 'shut the fuck up'. The neighbour suggested that the complainant return with her to the neighbour's unit, but WTG prevented that from occurring. The neighbour then returned to her unit and contacted her mother (who also lived in the neighbouring unit) by telephone and expressed her concern with respect to the complainant. The mother returned home and went to the complainant's unit, where she found the complainant sitting quietly but still distressed, and WTG pacing around the house in an agitated state. WTG was on the telephone making derogatory comments to someone else about the complainant.
WTG and the complainant then drove to ED's house to retrieve the children, arriving at about 7.30 or 8.00 pm. However, the children would not get into the car with the couple because they could see that their mother was distressed and they knew that there was often trouble when WTG and the complainant were together. As a result, WTG and the complainant left ED's house without the children, returning to the complainant's unit. However, they did not remain long at the unit because WTG was concerned that the police would by then have been notified that he was in the complainant's presence, and would come looking for him. So, the couple went for another drive around the suburbs, during which WTG continued to ask the complainant about the person she had been sleeping with.
When the couple returned to the complainant's unit, WTG told the complainant that he had slept with a woman who was her sister-in-law and best friend, laughing as he conveyed that information. Understandably, the complainant did not react well to that information and went to leave the unit to go and see the woman concerned. However, WTG prevented her from leaving, after which the complainant picked up a bottle and struck WTG on the head with the bottle, which did not break or cause any serious injury.
The complainant then went upstairs into her son's bedroom and locked the door. By now it was around 1.00 or 2.00 am. WTG looked through the complainant's phone, seeing things that further angered him. He went to the bedroom and kicked open the locked door and then, without provocation, punched the complainant hard to the face once or twice, using a clenched fist. The blows caused the complainant to fall to the ground in an unconscious or semi-conscious state. The incident caused considerable noise which was heard by neighbours, who decided to telephone the police.
WTG then picked up the complainant and took her out to the car and then drove around aimlessly. At one point he pulled into a service station where he shouted at the complainant, telling her that it was her fault that he was going back to prison because of what he had done to her. WTG then continued driving around with the complainant in the vehicle. During this time he punched the complainant again in the face, saying that it was her fault that he would be returning to prison. Eventually, the couple returned to the complainant's unit at around 3.00 or 4.00 am. When they returned to the unit, WTG continued to tell the complainant how good other women were and kept 'putting her down'. The complainant was in a distraught state.
At about 4.00 or 5.00 am the complainant showered and started packing her children's clothes, which they would need to go to school that morning. She intended to go to ED's house to collect the children and take them to school. WTG would not let her go alone and went in the car with her. The complainant drove the car on this occasion. WTG was angry and was punching the dashboard, saying, 'How am I going to get out of this?' and that it was all the complainant's fault.
When the pair arrived at ED's house and parked the car, WTG again asked her questions about the man she had been with. The complainant advised that she had nothing more to say. WTG then punched the complainant with a closed fist to the left side of her face. He would ask the complainant questions and if she did not answer, strike her to the face. This occurred at least four or five times. One of the punches caused the complainant's head to hit the window of the car. During this incident WTG stated that he could kill the complainant and bury her where her mother would not be able to find her. That statement constituted the offence of threatening to harm.
Eventually, ED came outside her house because she could hear the complainant screaming. The complainant was in a dazed state and got into the back seat of the car. ED got into the driver's seat and drove off. While the evidence was not entirely clear, it was found that at some point they went to WTG's aunt's house before returning to the unit. Shortly after returning to the unit, WTG and the complainant left the unit in the complainant's car because WTG was concerned about being apprehended by police. In fact, police did apprehend the vehicle as it drove away from the unit and WTG was placed under arrest.
Later that day the complainant attended hospital, where she was examined by a doctor who found her to be suffering from visible bruising to the right eye and swelling of the right eyelid; tenderness over the right maxilla and left mandibular; movement of the jaw limited to a 1 cm opening; a left mandibular neck fracture; a split lower right lip; and a small laceration to the left temple area of the head which I have already mentioned.
The sentencing judge noted in his observations that the prosecution case was conducted on the basis that the offence of aggravated grievous bodily harm was constituted by the punches delivered in the bedroom of the complainant's unit, in the car after the car left the service station, and in the car outside ED's house, and that the jury must have been satisfied beyond reasonable doubt that WTG struck all of those blows. He also noted that the prosecution case was conducted on the basis that the grievous bodily harm was constituted by the fracture of the left mandibular neck (the jaw).
The impact of the offences on the victim
The sentencing judge made findings with respect to the impact which the offences had on the complainant based on the evidence she had given at trial and two victim impact statements which he had received. He found that, although the complainant did not undergo surgery for her injury, it prevented her from opening her mouth properly for some time, and, at the time of sentence, she still feared that if she opened her mouth too suddenly or widely she would reinjure her jaw. The complainant was, at the time of sentence, still unable to eat certain foods due to the injury and still suffered pain and discomfort. She continued to experience nightmares with respect to the incident, and did not like to look at herself in the mirror because she felt as though her physical appearance had changed as a result of the offences. She had difficulty concentrating and found herself crying often, and felt great sadness and hurt as a result of what occurred. In her own words, she felt like a broken woman who was completely worthless and powerless. She tried to avoid places that reminded her of the incident and of WTG. She also felt as though she could not trust another man or be in a relationship with another man as a result of the way in which she had been treated by WTG. She believed that WTG destroyed her emotionally and found the obligation of having to give evidence against WTG to be a terrifying experience.
The sentencing judge found that the offences committed by WTG caused the complainant to suffer significant adverse consequences not only to her physical wellbeing but also to her emotional wellbeing, and he expected those impacts to continue for some time.
WTG's prior offending
The sentencing judge noted that WTG had a significant prior record as an adult involving offences that were relevant to the sentences to be imposed. Since January 2006, WTG had been convicted of four offences of assault causing bodily harm, two offences of aggravated assault, two offences of breaching protective bail conditions, two offences of carrying a weapon with intent to cause fear, one offence of aggravated burglary on a dwelling, six offences of breaching a violence restraining order and two offences of aggravated assault causing bodily harm.
Of those offences, three of the offences of assault occasioning bodily harm, two offences of aggravated assault, two offences of aggravated assault causing bodily harm and five of the offences of breaching a violence restraining order were committed against or in relation to the complainant. As the sentencing judge noted, the facts relating to those offences were adduced in evidence during the trial as evidence of WTG's propensity, pursuant to s 31A of the Evidence Act 1906 (WA). Because the circumstances of those offences are also relevant to specific deterrence, it is appropriate to set them out in detail.
In January 2006, WTG was convicted of three offences of assault occasioning bodily harm committed against the complainant. The first of those offences occurred on 23 November 2005 when WTG attended the residence of the complainant's mother, then described as his ex-partner, in order to discuss access to their then two children. After an argument, WTG punched the complainant to the head with a closed fist while he was holding one of their children, who was then 10 months old.
The second and third of the offences which were dealt with in January 2006 occurred on 10 December 2005, when the complainant, accompanied by her mother, took their oldest child to WTG's house to meet with members of WTG's family. Another argument took place with respect to the children, after which WTG punched the complainant to the right side of the face using a clenched fist. Later in the course of the argument WTG pushed the complainant up against a chest of drawers and again punched her to the top of the head with a clenched fist, causing a minor laceration to the right side of the complainant's forehead. The complainant called for her mother to intervene. WTG refused to let either the complainant or her mother leave the room, although eventually both left the house and tried to leave in the car. However, a further disturbance took place when WTG tried to retrieve the children before the complainant left, resulting in the complainant calling the police.
In February 2010, WTG was convicted of the offence of aggravated common assault committed against the complainant on 19 December 2009. During the afternoon of that day, the complainant was proposing to drive her mother home with the children in the car. WTG yelled at her to not take the children. When the complainant went to retrieve their daughter, WTG struck her to the head, in the vicinity of the left eye.
In November 2012, WTG was convicted of two offences of breaching a violence restraining order protecting the complainant. Both of those offences occurred in July 2012.
In May 2013, WTG was convicted of one offence of aggravated common assault against the complainant, one offence of breaching a violence restraining order protecting the complainant, and two offences of aggravated assault occasioning bodily harm committed against the complainant. Those offences were committed in November 2012, when WTG attended the complainant's unit, notwithstanding the violence restraining order to which he was subject. He entered the unit and without provocation punched the complainant to the face with a clenched fist, causing her to fall to the floor. He then kicked the complainant three or four times to various parts of the body while she lay on the floor. After the complainant got up and sat on the couch, WTG punched her three times to the right side of her face. Their three-year-old daughter was present during this assault. WTG then went to an upstairs bedroom. Later that evening WTG and the complainant left the house in the complainant's car. The complainant was driving. Without provocation, WTG punched the complainant twice to the left side of her ribs with a clenched fist. A short time later, after they arrived at one of their destinations, WTG punched the complainant to the face and to the left arm, and then grabbed her around the neck in a headlock. The complainant suffered severe swelling and bruising to the face and was bleeding profusely from her injuries. She also had severe bruising to both her arms and was having difficulty breathing.
In April 2014, WTG was convicted of three offences of breaching a violence restraining order protecting the complainant. Those offences were committed in February 2014 and March 2014. Following his conviction for those offences, WTG was sentenced to a term of imprisonment of 6 months and 1 day, suspended for a period of 12 months. The offences the subject of these appeals were committed less than three months after the term of suspended imprisonment was imposed.
As a result of the other convictions to which I have referred, WTG was sentenced to varying terms of imprisonment to be served immediately.
WTG's personal circumstances
The sentencing judge noted that WTG was 31 years of age at the time of sentence. He accepted that WTG had experienced a difficult childhood without positive parental guidance. WTG had no significant employment history and had used illicit substances over a significant period. However, prior to the commission of the offences the subject of this appeal, WTG had embraced the Christian faith, and had pursued that faith while in custody awaiting trial. Further, prior to his arrest for the offences the subject of this appeal, WTG had engaged in training programmes with a view to improving his prospects of employment, and had also taken steps to obtain assistance with respect to his reliance upon illicit substances. The sentencing judge also accepted that WTG had taken the opportunities available to him whilst in custody on remand to try and improve himself by taking courses which would enhance his prospects of employment. Taking those matters into account, the sentencing judge concluded that there was some prospect that WTG might be rehabilitated to the point where he could abstain from drug abuse and live a law abiding life.
Remorse
The sentencing judge noted that WTG had exercised his right to plead not guilty to the offences of which he had been convicted. Earlier in his remarks, the sentencing judge had noted that WTG had given evidence in his defence which the jury must be taken to have rejected by their verdicts. The sentencing judge noted that WTG's exercise of the right to plead not guilty to the charges did not, of course, aggravate the offences but it did deprive him of the opportunity of a discount for pleading guilty, and the course which he had taken was inconsistent with a finding that he was remorseful for his conduct. The sentencing judge found, as a fact, that WTG was not genuinely remorseful for his offences and did not accept responsibility for what he had done to the complainant.
Aggravating factors
The circumstances of aggravation alleged in the indictment in respect of each of the offence of assault occasioning bodily harm and the offence of grievous bodily harm, and which can be taken to be established by the jury's verdict, were the existence of the domestic relationship between WTG and the complainant, and the fact that the offences constituted a breach of the violence restraining order that had been made against WTG. The sentencing judge noted other aggravating factors, being most particularly the fact that the offences also constituted a breach of the order of suspended imprisonment; the fact that the offences were committed against a slightly built, defenceless and vulnerable former partner who had placed a degree of faith and trust in WTG by recommencing contact; the fact that the actions constituting the offence of grievous bodily harm took place over a sustained period; the fact that striking the complainant on the head with a knife was dangerous conduct which could have resulted in more serious harm; the lack of any reasonable explanation or justification for WTG's conduct; and the impact which the offences had upon the complainant.
Mitigating factors
The sentencing judge identified two mitigating factors - namely, WTG's dysfunctional childhood, and the attempts which he had made at rehabilitation before the commission of the offences and while in custody on remand awaiting trial.
Totality
I have set out above the sentences imposed by the judge in respect of each of the counts on the indictment and the breach of the order of suspended imprisonment. It should be noted that the sentence of 12 months imprisonment for the offence of aggravated assault occasioning actual bodily harm was reduced by the sentencing judge from a term of 16 months imprisonment that would have been imposed but for considerations of totality. The orders that the sentencing judge made with respect to the concurrent service of the sentences imposed were also made in the interests of totality in order to produce a total effective sentence of 3 years and 10 months, which the judge considered appropriately reflected the totality of WTG's criminal behaviour. The sentences were backdated to commence on 23 June 2014, being the date upon which WTG was taken into custody.
The grounds of appeal
There are two grounds of appeal:
1.The sentence of 2 years and 10 months imprisonment imposed for the offence of aggravated grievous bodily harm was so inadequate as to manifest error, having regard to:
(a)the maximum penalty of 14 years imprisonment;
(b)the standards of sentencing customarily imposed for offences of this type;
(c)the serious nature of the offending and the circumstances in which it was committed;
(d)the need for the sentence to adequately reflect general and personal deterrence and punishment for offending of this nature; and
(e)the personal circumstances of the respondent.
2.The learned sentencing judge erred in imposing a total effective sentence of 3 years and 10 months imprisonment that infringed the first limb of the totality principle in that it failed to reflect the overall criminality of the offending conduct.
Neither ground alleges express error, nor did any party to the appeal assert that there was any relevant fact, circumstance or factor, either aggravating or mitigating, not identified by the sentencing judge in the course of his observations at the time of sentence.
So, the questions posed by the grounds of appeal are whether the sentence of 2 years and 10 months imprisonment imposed for the offence of aggravated grievous bodily harm, and the total effective sentence of 3 years and 10 months imprisonment, were so inadequate as to manifest implied error. The principles properly applied in the resolution of those questions are embodied in ground 1 and are so well established that they do not require restatement in these reasons.
Applying those principles to the circumstances of this case, I have set out the relevant aggravating and mitigating factors and the personal circumstances of WTG in my review of the observations made by the judge at the time of sentence. The maximum penalty for the offence of grievous bodily harm committed in circumstances of aggravation is 14 years imprisonment, the maximum penalty for the offence of assault occasioning actual bodily harm committed in circumstances of aggravation is 7 years imprisonment, and the maximum penalty for the offence of threatening to harm is 3 years imprisonment.
Turning now to the standards of sentencing customarily observed, in Trompler v The State of Western Australia[1] McLure JA[2] noted that the sentences actually imposed for the offence of unlawfully doing grievous bodily harm absent circumstances of aggravation ranged between 8 months to 5 years 4 months imprisonment.[3] The cases establishing the parameters of that range, The State of Western Australia vCamilleri[4] (at the lower end of the range) and Bruno v The State of Western Australia[5] (at the upper end of the range) were both cases in which pleas of guilty were entered.
[1] [2008] WASCA 265.
[2] As her Honour then was.
[3] Trompler [38].
[4] [2008] WASCA 217.
[5] [2005] WASCA 149.
In Trompler, Wheeler JA observed that after allowance for the effect of the transitional provisions, and the effect of the increase in the maximum penalty for the offence of unlawfully doing grievous bodily harm (not in circumstances of aggravation), one would expect a post‑transitional range of 3 to 5 years for offences towards the upper end of the range, although not of the most serious kind.[6] In Mercanti v The State of Western Australia[7] Miller JA expressed a similar view.[8]
[6] Trompler [19].
[7] [2009] WASCA 109.
[8] Mercanti [35] ‑ [36] (Wheeler & Pullin JJA agreeing).
The aggravating factors identified by the sentencing judge, which need not be repeated, compel the conclusion that the offence of grievous bodily harm committed by WTG is towards the upper end of the range of such offences, although plainly not a case of the most serious kind. So, the sentence imposed in this case fell outside the range identified following the review of various cases in Trompler even though:
(a)the offence was committed in circumstances of aggravation, with the result that the relevant maximum penalty was 14 years imprisonment, rather than 10 years imprisonment;
(b)WTG was not entitled to any discount for a plea of guilty; and
(c)there are very few mitigating factors in WTG's favour.
These considerations strongly suggest that the sentence imposed for the offence of grievous bodily harm was so inadequate as to manifest implied error. That suggestion is confirmed[9] by a consideration of two more recent and comparable cases.
[9] Although individual cases can seldom establish implied error.
Hansen v The State of Western Australia[10] is directly comparable to the present case. The appellant was in a family and domestic relationship with his victim. After the victim declined sexual relations, the appellant became angry and punched her seven to 10 times to the face with a closed fist in what was described by the sentencing judge as 'a savage beating' and as 'random and senseless violence'. The blows caused a fracture to the eye socket of the victim which required surgical reconstruction using titanium mesh. As with the present case, the impact statement provided by the victim related the terror she experienced during the assault and the adverse ongoing psychological effects caused by the offence.
[10] [2014] WASCA 229.
As in the present case, the offender was convicted of aggravated grievous bodily harm after trial. As in the present case, the offender had a lengthy criminal record and did not accept responsibility or demonstrate any remorse for his offence. However, the offence in Hansen was not committed in breach of a violence restraining order or a suspended term of imprisonment. The offender was sentenced to 4 years and 6 months imprisonment for the offence of aggravated grievous bodily harm. That sentence was affirmed on appeal.
In The State of Western Australia v Smith[11] the offender had been in a domestic relationship with his female victim for about eight months at the time he committed a series of offences. The offences were committed after the offender became agitated after both he and the victim had used amphetamines earlier in the day. The offender armed himself with a claw hammer, and after striking the victim to the head (which was the subject of another charge) went to strike the victim again as she attempted to flee the house in which they were living. The victim raised her right hand to protect herself from the blow. The hammer struck her hand, causing a fracture to the third metacarpal, which necessitated the insertion of a titanium plate in order to prevent permanent disabilities which were likely to include stiffness and reduced function of the hand. Those actions were the subject of the charge of causing grievous bodily harm in circumstances of aggravation. As with the present case, at the time the offences were committed, the offender was subject to a suspended imprisonment order although, unlike the present case, he was not subject to a violence restraining order. Further, unlike the present case, despite a varied and extensive criminal record the offender had not previously been sentenced to a term of imprisonment to be served immediately.
[11] [2016] WASCA 153.
After allowing the offender the maximum reduction of 25% available under s 9AA of the Sentencing Act 1995 (WA) for his plea of guilty, the sentencing judge imposed a sentence of 18 months imprisonment in respect of the offence of aggravated grievous bodily harm. The State's appeal against sentence was upheld by this court and the offender was resentenced to a number of terms of imprisonment, including a term of 3 years and 6 months for the offence of causing grievous bodily harm in circumstances of aggravation. That sentence was also imposed after allowing a discount of 25% as a result of the offender's plea of guilty at the earliest reasonable opportunity. As that discount is applied before any discount for other mitigating factors, it follows that the head sentence from which the discount was deducted must have been a sentence of 4 years and 8 months or more.
When proper allowance is made for the points of comparison and the points of distinction between the circumstances of those cases and the circumstances of the present case, the sentence imposed in Smith, and the sentence affirmed in Hansen, confirm the conclusion which would otherwise have been drawn from the review of comparable cases in Trompler to the effect that the sentence imposed in this case for the offence of aggravated grievous bodily harm is so far outside the range of sentences open to the sentencing judge in the sound exercise of his discretion as to manifest implied error.
It follows that ground one of the appeal must be upheld.
That conclusion is an appropriate starting point for the consideration of ground two, which is concerned with the first limb of the totality principle. The sentencing judge took the view that the additional culpability occasioned by the offence of aggravated assault occasioning bodily harm, the offence of threatening to harm, and the offences which had given rise to the suspended term of imprisonment should result in an additional term of 12 months imprisonment over and above the sentence imposed for the offence of aggravated grievous bodily harm. That approach was not challenged by the State and appears, with respect, to be unobjectionable provided that the head sentence was appropriate. As I have concluded that the head sentence was manifestly inadequate, it follows that the total effective sentence was also manifestly inadequate, and that ground two should also be upheld.
The result of the appeal and the resentencing of WTG
For the reasons I have given, the appeal should be allowed and the sentences imposed upon WTG set aside. Consistently with the range identified in Trompler, and the sentences imposed in Hansen and Smith, I would sentence WTG to a term of imprisonment of 4 years and 6 months for the offence of aggravated grievous bodily harm. For the offence of threatening to harm, I would impose a term of 9 months imprisonment to be served concurrently with the term imposed in respect of the offence of aggravated grievous bodily harm, in part due to considerations of totality
and also because the threat of harm was part of the same transaction as the offence of aggravated grievous bodily harm. However, in my view, a separate and cumulative term of imprisonment should be imposed in respect of the offence of aggravated assault occasioning bodily harm which preceded the offence of grievous bodily harm and which involved the use of a potentially dangerous weapon. Further, an additional term of cumulative imprisonment should be imposed in respect of the offences the subject of the suspended imprisonment order, which were committed quite separately from the offences of which WTG was convicted after trial. I would, however, modify the sentences to be imposed in respect of those offences to take account of the first limb of the totality principle. For that reason, I would impose a term of 6 months imprisonment for the offence of aggravated assault occasioning bodily harm to be served cumulatively upon the head sentence for aggravated grievous bodily harm, and a further term of 6 months imprisonment, also to be served cumulatively upon the other sentences imposed, in respect of the offences the subject of the suspended imprisonment order. The sentences I would impose result in a total effective term of 5 years and 6 months imprisonment. WTG should be made eligible for parole, and the sentences should be backdated to take effect from 23 June 2014.
NEWNES JA: I agree with Martin CJ.
MITCHELL JA: I agree with Martin CJ.
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