The State of Western Australia v Yamalulu
[2019] WASCA 6
•14 JANUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- YAMALULU [2019] WASCA 6
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 12 OCTOBER 2018
DELIVERED : 14 JANUARY 2019
FILE NO/S: CACR 225 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
JOSHUA SIMON YAMALULU
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SCHOOMBEE DCJ
File Number : BRO IND 47 of 2017
Catchwords:
Criminal law - State appeal against sentence - Respondent convicted on his plea of guilty of unlawfully doing grievous bodily harm in circumstances of aggravation - Victim suffered severe injuries - The most serious injury resulted in quadriplegia - Offending occurred in breach of a violence restraining order - Primary judge imposed a sentence of 3 years 8 months' immediate imprisonment - Whether sentence manifestly inadequate
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA), s 297
Sentencing Act 1995 (WA), s 6, s 7, s 8, s 9AA
Result:
Appeal allowed
Sentence imposed by the primary judge set aside
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | Mr J A Scholz |
| Respondent | : | Ms K E Heath |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Aboriginal Legal Service |
Case(s) referred to in decision(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Hansen v The State of Western Australia [2014] WASCA 229
Kim v The State of Western Australia [2018] WASCA 142
McAlpine v The State of Western Australia [2018] WASCA 195
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Ellement [2016] WASCA 1
The State of Western Australia v Jeffries [2007] WASCA 255
The State of Western Australia v Smith [2016] WASCA 153
Trompler v The State of Western Australia [2008] WASCA 265
Ugle v The State of Western Australia [2018] WASCA 221
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
JUDGMENT OF THE COURT:
This is a State appeal against sentence.
On 13 October 2017, the respondent was convicted, on his plea of guilty before Schoombee DCJ, of one count in an indictment.
The count alleged that on 23 February 2017, at Fitzroy Crossing, the respondent unlawfully did grievous bodily harm to Peggy Sue Button, in circumstances of aggravation, contrary to s 297(1) read with s 297(3) of the Criminal Code (WA) (the Code). The circumstances of aggravation pleaded in the count were that the respondent was in a family and domestic relationship with Ms Button and that the respondent was in breach of an order made or registered under the Restraining Orders Act 1997 (WA) or to which that Act applied.
On 13 October 2017, the sentencing judge sentenced the respondent to 3 years 8 months' immediate imprisonment. The sentence was backdated to 24 February 2017. A parole eligibility order was made.
The sole ground of appeal alleges that the sentence was manifestly inadequate.
We would allow the appeal, set aside the sentence imposed by her Honour and resentence the respondent. Our reasons are as follows.
The facts and circumstances of the offending
The offending occurred on 23 February 2017. The victim, Ms Button, was aged 38. The respondent had been in a relationship with Ms Button for about three or four years. They had one child who was aged three at the time of the offence.
When the offending occurred, the relationship between Ms Button and the respondent had ended. There had been a history of domestic violence. A violence restraining order was in force at the time of the offence for the protection of Ms Button. The order prohibited the respondent from contacting her or being within 50 m of her.
On 23 February 2017, between 8.00 pm and 9.20 pm, Ms Button was at a house in the Mindi Rardi Community at Fitzroy Crossing. She was with the respondent's brother. The respondent had been drinking heavily and was intoxicated. He returned to the house and found Ms Button having sex with his brother. The brother ran from the house.
The respondent violently assaulted Ms Button. He grabbed her, twisted her arm and threw her to the ground. When Ms Button was on the ground, the respondent jumped repeatedly onto her chest, legs and head. He then walked outside and sat down. Other people heard Ms Button screaming and pleading with the respondent to stop attacking her.
The respondent did not render first aid or seek any medical assistance for Ms Button. He fled when he saw a police car arriving at the house. The respondent was arrested the following day. He had attempted to hide from the police and, initially, gave the police a false name.
After the police found Ms Button unconscious in the backyard of the house, she was taken to the Fitzroy Crossing Regional Hospital. Medical practitioners sedated and intubated her. Ms Button was then flown to Royal Perth Hospital. Initially, she was cared for in the intensive care unit. Later, she was treated in the trauma unit and the internal medicine unit.
Ms Button suffered very serious injuries including a broken right mandible, a subdural haematoma, cervical and thoracic spinal injuries, significant bruising and contusions, strangulation bruising around her neck, broken ribs and a broken clavicle. The most serious injury suffered by Ms Button was the subdural haematoma. This has resulted in quadriplegia.
As at 17 July 2017, Ms Button's medical condition was as follows:
(a)Ms Button is bedbound and requires a hoist to transfer her to a wheelchair and assistance in positioning her in bed.
(b)She is unable to move her lower limbs and has minimal hand function.
(c)She is completely dependent on others for all aspects of her care, including washing, changing and feeding.
(d)She has bowel and bladder incontinence.
(e)She requires ongoing occupational therapy for splinting to treat and prevent contractures and also requires ongoing physiotherapy for her limb and hand function.
(f)She is usually alert, but has difficulty communicating. Initially, she was unable to speak, but is now making some progress with vocalising sounds and with a 'yes/no' communication board.
(g)Initially, she was unable to swallow spontaneously, but has gradually been able to consume some sustenance orally under supervision.
(h)She still requires feeding by means of a PEG tube.
(i)She has had several episodes of apnoea, which have most likely been caused by her traumatic brain injury.
(j)She is awaiting transfer to Brightwater Rehabilitation Centre.
(k)It is anticipated that her progress will be slow. It is likely that her need for care and assistance will remain very high for the foreseeable future, if not indefinitely.
As at the date of sentencing, namely 13 October 2017, her medical condition had not altered materially.
The sentencing judge's sentencing remarks
The sentencing judge recounted the facts and circumstances of the offending. Her Honour outlined the effect of the offending on Ms Button as follows:
You turned a woman who was on all accounts a healthy young woman aged about 38 years into a disabled woman who cannot walk or stand, cannot speak or eat independently, cannot look after herself in any way and needs constant care, which is likely to remain the case for a very long time if not forever. So you've taken away all her joy in living and her freedom to do what she likes. You have removed her from her community and her friends and you have confined her to a bed or a wheelchair with hardly any communication with others, some brain damage, broken bones that will take a long time to heal and incontinence problems, so she can't control going to the toilet (ts 15).
Her Honour made these comments in relation to the respondent having discovered Ms Button having sex with his brother:
I can understand that you were angry when you saw [Ms Button] having sex with your older brother. However, that does not entitle you to jump on her in such a fashion repeatedly or to have kicked and punched her repeatedly to the extent that she suffered broken bones, bleeding and a brain injury. You obviously did not think, while you were doing this, how badly you could injure her if you were jumping all over her, including on her head.
It seems that the relationship was in any event over at that stage because she had a violence restraining order against you. Your counsel told me today that you were still hoping to repair that relationship and that she was seeing you from time to time even though the violence restraining order was in place against you, but the fact that there was a violence restraining order makes your offending worse because you shouldn't have gone near her (ts 15).
The sentencing judge elaborated upon those comments:
I accept that there was some provocation, not in the legal sense, but understand that you would have been very angry when you saw your ex-partner who you were hoping to continue a relationship with having sex with another man, on top of it, your older brother' (ts 16).
Her Honour noted the respondent's personal circumstances. The respondent was born on 4 February 1986. He was aged 31 when he committed the offence and he was 32 at the time of sentencing. The respondent was born in Derby and raised in the Fitzroy Valley region. He is a Walmajarri man, but his first language was English. The respondent's mother died when he was young. His father is still alive, but is itinerant and a very heavy consumer of alcohol. The respondent has two older brothers and two sisters, all of whom live in the Kimberley region. When he was young, the respondent often observed violence between his parents. After his mother died, the respondent was raised by an aunt and uncle who lived in communities near Fitzroy Crossing. His life with his aunt and uncle was stable. There was no drinking or violence in their home.
The respondent attended school. He asserted that he had left school at the age of 9 or 10, but there were reports which indicated that he remained at school until year 9 or 10. He did not perform well at school and did not enjoy the experience. He was, however, good at sport.
After leaving school the respondent obtained employment with a community development employment program in the Noonkanbah community. He also worked as a teachers' assistant and a gardener at an Aboriginal school. At the time of sentencing he was unemployed and spent his time moving from one Aboriginal community to another.
The respondent has abused alcohol from the age of 17 and has smoked cannabis since he was 18. His physical health is good apart from high blood pressure for which he takes prescribed medication.
The respondent has a significant prior criminal record. He has previous convictions for numerous offences of violence. He also has previous convictions for burglary, setting fire to bushland, attempting to pervert the course of justice and breaching a violence restraining order.
The respondent's previous convictions for violence include offences of domestic violence against Ms Button and an earlier partner. Of particular relevance is his conviction for the offence of aggravated unlawful wounding against Ms Button. The respondent committed this offence in February 2014 when Ms Button was 22 weeks pregnant with their child. He punched her several times without warning. She fell to the ground. The respondent then bashed her with a rock on her head and her back. Next, he smashed a wine bottle and swung the broken bottle at her. She suffered a severe laceration. The tendons in her forearm were exposed. Ms Button also suffered bruising and swelling to her head and face. She was flown to the Fitzroy Crossing Regional Hospital. The respondent pleaded guilty to the offence of aggravated unlawful wounding. On 20 October 2014, he was sentenced in the Magistrates Court at Broome to 12 months' imprisonment, suspended for 18 months.
During the 18 month period of suspension of the term of imprisonment imposed on 20 October 2014, the respondent reoffended. On 2 June 2015, he committed another offence of aggravated unlawful wounding against Ms Button. That offence was also committed in breach of a violence restraining order, which had been served on the respondent on 28 May 2015. The further offence involved the respondent threatening to harm their young child if Ms Button did not leave the house and come with him into bushland away from other people. When the respondent and Ms Button were alone, the respondent used a large empty glass bottle to strike Ms Button around the head. He then punched her repeatedly in the face. Next he grabbed her around the head with his hand and twisted her head. Ms Button suffered a deep laceration to the top of her head, bleeding and bruising to her nose and bruising to her neck. The respondent pleaded guilty to the further offence. On 25 June 2015, he was sentenced in the Magistrates Court at Derby in respect of the further offence, the offence of breaching the violence restraining order and the breach of the earlier suspended term of imprisonment. A total effective sentence of 18 months' immediate imprisonment was imposed.
In the present case, the material before the sentencing judge included a neuropsychological report dated 20 September 2017 from Dr Elizabeth Vuletich and a presentence report dated 22 September 2017.
As her Honour noted, Dr Vuletich asked the respondent to perform some tests. The results showed very low scores, which would normally indicate an impairment in the respondent's intellectual functioning. However, Dr Vuletich was of the view that the respondent did not engage fully with the assessment process. She concluded that the respondent's test scores underestimated his actual level of functioning. The test results could not be relied upon as valid or meaningful. Dr Vuletich considered that it was not possible to determine whether the respondent was suffering from any cognitive impairment. She said the respondent did have capacity in some areas, such as visual memory, basic speed of processing, acquiring new verbal information and planning. She also said that the respondent was suffering from depression, had limited coping mechanisms and had poor emotional regulation. It was not possible for her to comment on the respondent's victim empathy or on his capacity to manage the risks of future reoffending. Dr Vuletich was unable to express an opinion on whether the respondent might suffer from foetal alcohol syndrome disorder.
The author of the presentence report said that the respondent 'was difficult to engage in the interview'. He did not display or express any remorse or victim empathy. He presented with risk factors for domestic violence ideations, substance abuse, anger management deficits and a recidivist offending pattern.
Her Honour accepted, however, defence counsel's submission that the respondent was remorseful.
The sentencing judge afforded the respondent a discount of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), for his plea of guilty.
The sentencing judge took into account, in arriving at the sentencing outcome, that the respondent grew up in circumstances of significant disadvantage. Alcoholism and violence were the usual way of living. The respondent regularly observed his father drinking alcohol to excess and assaulting his mother. He also regularly observed other relatives and community members committing acts of violence against each other, especially when they had been drinking alcohol. All of this was likely to have caused the respondent to perceive excessive alcohol consumption and the use of violence against others, notably his female partners, as normal.
Her Honour also took into account that 'there was a good reason for [the respondent] being so very angry [on the night of the offending] because [he] found [his] partner with whom [he was] hoping to still have a relationship having sex with [his] brother' (ts 21). Her Honour added, however, that the respondent could not control what other adult people want to do, particularly, in the case of Ms Button, if she did not want to continue with the relationship, and that there must be other ways for the respondent to deal with his anger.
The ground of appeal
As we have mentioned, the sole ground of appeal alleges that the sentence of 3 years 8 months' immediate imprisonment was manifestly inadequate.
On 22 December 2017, Mazza JA granted leave to appeal.
The respondent's application in the appeal dated 22 May 2018
By an application in the appeal dated 22 May 2018, the respondent applied for leave to adduce additional evidence in the appeal in the event that this court decided to allow the appeal, set aside the sentence imposed by the sentencing judge and resentence the respondent. The application was supported by an affidavit of the respondent's solicitor affirmed on 22 May 2018.
On 24 May 2018, this court ordered in relation to the respondent's application in the appeal dated 22 May 2018 that a new neuropsychological assessment report be obtained from Dr Vuletich.
The additional evidence sought to be relied upon by the respondent comprises a report dated 5 October 2018 from Dr Vuletich, a letter of apology from the respondent addressed to this court, and a bundle of certificates awarded to the respondent since he was taken into custody on 24 February 2017 in relation to the offence in question.
Dr Vuletich's report dated 5 October 2018 was prepared after she had carried out a further neuropsychological assessment of the respondent including an interview, clinical observations and cognitive testing. The purpose of the further neurological assessment was to enable an updated assessment to be made of the respondent's cognitive functioning.
In the report dated 5 October 2018, Dr Vuletich summarised the results of the further neurological assessment as follows:
(a)The respondent's overall general intellectual ability is estimated, conservatively, to be at least within the borderline range, although it is likely to be stronger.
(b)His focussed and sustained attention appear to be preserved.
(c)His working memory capacity is sound.
(d)He has preserved motor and processing speed.
(e)He has reduced acquired verbal abilities (in English) and verbal fluency, likely longstanding and secondary to educational factors.
(f)His basic perception, visual scanning and spatial abilities appear to be intact, although there were variable results on measures involving a higher level of visual organisation.
(g)He has preserved visual memory, although poor recognition performance which appears to be a product of low confidence.
(h)He has pervasive verbal memory encoding impairment. He has some vulnerability to intrusive errors during learning, but no rapid or excessive forgetting.
(i)His executive functioning is variable. For example, his abstract reasoning is variable, his verbal generativity is impaired, his non-verbal fluency is sound, he has adequate mental flexibility and he has qualitatively preserved self-monitoring and insight. He has some difficulties with planning. He does not appear to be disinhibited or, as he had been previously, impulsive.
Dr Vuletich also said in her report that the respondent has 'a very obvious pattern of stronger visual/perceptual cognitive capacities over verbal abilities'.
Dr Vuletich noted that in 2017 she had formed the view that the respondent was experiencing a depressive episode and that he appeared to have very limited and maladaptive coping mechanisms. Further, in 2017 she was of the view that 'early negative life experiences were likely contributing factors to his development of dysregulated emotional responses' and that this characteristic 'was likely exacerbated by his chronic substance misuse'. However, when Dr Vuletich examined the respondent more recently he did not meet the criteria for depression, although he continued to experience low frustration tolerance and low capacity consistently and effectively to regulate his emotions.
The ground of appeal: counsel for the State's submissions
Counsel for the State submitted that the sentence imposed by the sentencing judge was so inadequate so as to manifest error, having regard to:
(a)the maximum penalty for the offence;
(b)the exceptionally serious nature of the injuries inflicted upon Ms Button;
(c)the serious nature of the offence and the circumstances in which it was committed;
(d)the need for the sentence adequately to reflect personal and general deterrence as well as appropriate punishment for offending of this nature;
(e)the respondent's personal circumstances; and
(f)the requirement that the sentence be consistent with the standards of sentencing customarily observed for offending of this nature.
Counsel argued that the respondent's offending was an extremely serious example of its type and that there was no comparator in previously decided cases. The sentence of 3 years 8 months' immediate imprisonment was so far outside the appropriate range of sentences open to her Honour in the sound exercise of her discretion as to manifest implied error.
A curious feature of the State's written submissions (which were not prepared, settled or signed by counsel for the State who appeared at the hearing of the appeal) is that the submissions allege two express errors. First, that the sentencing judge erred in finding that there was 'some provocation' for the offence and that there was therefore 'good reason' for the respondent being 'so angry' on the night in question. Secondly, that her Honour erred in finding that the respondent was remorseful for the offending. Those features are curious because, as we have mentioned, the sole ground of appeal relied upon by the State alleges manifest inadequacy; that is, an implied error.
Counsel for the State conceded, properly, that this court should proceed by reference only to the sole ground of appeal as drafted (appeal ts 2). This concession reflects this court's practice that appeals against sentence are decided on the basis of the grounds of appeal and not on the basis of alleged errors which are referred to in submissions but not in the grounds. That has been our approach in the present case in considering the merits of the State's appeal. It should not be thought, however, that we agree with or approve her Honour's comments about there having been 'some provocation' for the offence and that there was therefore 'good reason' for the respondent being 'so angry' on the night in question. Indeed, to the contrary, in our opinion nothing that occurred prior to the respondent's attack on Ms Button could reasonably be characterised as 'provocation' for what occurred. We will, however, as we are bound to, decide the appeal on the basis of counsel for the State's concession.
The ground of appeal: counsel for the respondent's submissions
Counsel for the respondent conceded, properly, that the State's ground of appeal had been made out and that the appeal should be allowed. Counsel accepted, properly, that the sentence of 3 years 8 months' immediate imprisonment was so inadequate as to manifest error. Counsel also accepted, properly, that the respondent's offence was 'at the upper end of seriousness for offences falling within the category of aggravated grievous bodily harm' (ts 5 - 6).
As to any resentencing by this court, counsel for the respondent relied upon:
(a)the respondent's concessions that the ground of appeal had been made out and that the appeal should be allowed;
(b)his ongoing remorse and acceptance of responsibility (as evidenced by his concessions, his spontaneous expression of remorse to Dr Vuletich and his letter of apology to this court);
(c)his progress in custody by achieving the award of the certificates; and
(d)his dysfunctional upbringing and deprived background, which had limited his prospects in life generally, had impacted upon his development and progress as an adult, and may explain why prior interventions by the criminal justice system had been, at best, of limited success.
Counsel for the respondent acknowledged that it was apparent from Dr Vuletich's further report that the respondent did not have a general cognitive impairment. There was no evidence of foetal alcohol spectrum disorder. The respondent does, however, have language and verbal impairments, and those deficits may explain his limited educational achievements.
Counsel submitted that the absence of a general cognitive impairment may provide some prospect of progress towards rehabilitation while the respondent is in custody.
The ground of appeal: its merits
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.
The maximum penalty for unlawfully doing grievous bodily harm to another, if the offence is committed in circumstances of aggravation, contrary to s 297(1) read with s 297(3) of the Code, is 14 years' imprisonment.
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. See Munda v The State of Western Australia;[1] The State of Western Australia v Doyle;[2] McAlpine v The State of Western Australia.[3]
[1] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[2] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[3] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
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. See Barbaro v The Queen.[4]
[4] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, 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.
A sentencing judge is obliged to sentence an offender in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.
By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. Section 9AA regulates the extent to which the court may reduce, on account of an offender's plea of guilty to a charge for an offence, the sentence that the court would have imposed for the offence if the offender had been found guilty after a plea of not guilty and there were no mitigating factors. Section 9AA does not prevent the court from reducing the 'head sentence' (as defined in s 9AA(1)) for an offence because of any mitigating factor other than a plea of guilty (s 9AA(6)).
In Munda, French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ distinguished between an offender's moral culpability, on the one hand, and the objective seriousness of his or her offending, on the other:
The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant's offending [57].
In Bugmy v The Queen,[5] French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ observed that the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending. Their Honours said:
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest … that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult (Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ; [1988] HCA 14). An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender [44].
[5] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [44].
In Veen v The Queen (No 2),[6] Mason CJ, Brennan, Dawson and Toohey JJ explained that a relevant sentencing factor (for example, a mental abnormality which makes an offender a danger to society when he or she is at large, but diminishes his or her moral culpability for a particular offence) has two countervailing effects: one which tends towards a longer custodial term of imprisonment and the other which tends towards a shorter term.
[6] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 476 - 477.
We have examined previous cases in which this court has considered sentences imposed for the offence of unlawfully doing grievous bodily harm, in circumstances of aggravation, contrary to s 297(1) read with s 297(3) of the Code. See The State of Western Australia v Jeffries;[7] Hansen v The State of Western Australia;[8] The State of Western Australia v Ellement;[9] The State of Western Australia v Smith.[10] Our examination of those cases confirms that there are no previous cases that are directly comparable to the respondent's case.
[7] The State of Western Australia v Jeffries [2007] WASCA 255.
[8] Hansen v The State of Western Australia [2014] WASCA 229.
[9] The State of Western Australia v Ellement [2016] WASCA 1.
[10] The State of Western Australia v Smith [2016] WASCA 153.
We note the range of sentences commonly imposed for the offence of:
(a)unlawfully doing grievous bodily harm, without circumstances of aggravation, contrary to s 297(1) of the Code, for which the maximum penalty is 10 years' imprisonment: see, for example, Ugle v The State of Western Australia;[11] and
(b)unlawfully doing grievous bodily harm, with intent, contrary to s 294(1) of the Code, for which the maximum penalty is 20 years' imprisonment: see, for example, Kim v The State of Western Australia.[12]
[11] Ugle v The State of Western Australia [2018] WASCA 221.
[12] Kim v The State of Western Australia [2018] WASCA 142.
The seriousness of the facts and circumstances of offending and the personal circumstances of offenders, in the context of offences against s 297(1) read with s 297(3) of the Code, can be highly variable. The sentences imposed for offences of this kind are therefore significantly variable.
In Trompler v The State of Western Australia,[13] Wheeler JA (with whom Buss JA agreed) identified three matters which are, in general, significant in determining the criminality involved in an offence of unlawfully doing grievous bodily harm, without circumstances of aggravation:
(a)The nature of the resulting harm (which may range from a permanent injury which the victim is able to accommodate, to a severe and life‑threatening injury resulting in serious permanent disability).
(b)The nature of the act which causes the injury (which may involve deliberate and repeated violence or only a single act, and which may or may not involve the use of weapons).
(c)The background and circumstances of the offence (whether a deliberate attack carried out in order to obtain some personal advantage, or for revenge, as opposed to senseless violence or aggression, and whether the offender's act is a response to provocative or threatening conduct).
[13] Trompler v The State of Western Australia [2008] WASCA 265 [9] - [11].
Those matters also apply, in general, in determining the criminality involved in an offence of unlawfully doing grievous bodily harm in circumstances of aggravation.
In the present case, the respondent's offending was extremely serious. Although it was not within the worst category of the offence of unlawfully doing grievous bodily harm in circumstances of aggravation (see R v Kilic),[14] it was undoubtedly at the upper end of the range of seriousness.
[14] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [17] - [20] (Bell, Gageler, Keane, Nettle & Gordon JJ).
The respondent committed a frenzied, savage and relentless attack upon a vulnerable, unarmed and defenceless woman. He inflicted shocking injuries. The respondent ignored Ms Button's repeated pleas for him to stop attacking her. He showed no mercy. Ms Button is permanently disabled and has an exceptionally high level of impairment. Her prospects of improvement are limited.
The relationship between Ms Button and the respondent had ended before the offending occurred. He was not deterred by the violence restraining order that was in force for her protection.
The respondent was aged 31 when he committed the offence. He was not youthful or inexperienced for sentencing purposes.
The respondent had a significant prior criminal record including previous convictions for violent offending against Ms Button and an earlier partner. 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 any leniency on the ground that he was ordinarily of good character. His history of violence (in particular, domestic violence towards his partners) underscored the importance of personal deterrence as a sentencing factor. The protection of vulnerable women and general deterrence were also important sentencing factors.
The principal mitigating factors were the respondent's plea of guilty, his remorse and acceptance of responsibility, and the continuing effects of his dysfunctional upbringing and deprived background.
The continuing effects of the respondent's childhood deprivation diminishes his moral culpability, on the one hand, but the impact of the respondent's behaviour consequent upon those effects make him a serious danger, at least when intoxicated, to women with whom he is or has been in a relationship, on the other. It was necessary for those countervailing effects to be assessed and weighed in the sentencing process.
In our opinion, the sentence of 3 years 8 months' immediate imprisonment was not commensurate with the seriousness of the offence. 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 of Ms Button); the general pattern of sentencing for offences of this kind; the importance of personal and general deterrence and the protection of vulnerable women as sentencing considerations; and all aggravating and mitigating factors. The sentence was not merely 'lenient' or 'at the lower end of the available range'. It was substantially less than the sentence that was open to her Honour on a proper exercise of her discretion.
The ground of appeal has been made out.
As we will explain, we consider that, in the exercise of this court's discretion to resentence the respondent, a different and substantially higher sentence of immediate imprisonment should be imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
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 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).[15]
[15] CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34] (French CJ & Gageler J), [66] (Kiefel, Bell & Keane JJ).
In our opinion, there is no basis, in the present case, for invoking the residual discretion. As we have mentioned, the sentence imposed by the sentencing judge 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 her Honour should be set aside.
This court has the material necessary to resentence the respondent. We would grant the respondent's application for leave to adduce additional evidence in the appeal.
Like the sentencing judge, we would allow a discount of 25%, pursuant to s 9AA of the Sentencing Act, on the head sentence we would otherwise have imposed, on account of the plea of guilty. We have also reduced the sentence we would otherwise have imposed on account of the other mitigating factors.
After taking into account the maximum penalty; the facts and circumstances of the offence; the seriousness of the offending (including the vulnerability of Ms Button); the general pattern of sentencing for offences of this kind; the importance of personal and general deterrence and the protection of vulnerable women as sentencing considerations; and all aggravating and mitigating factors (in particular, the mitigating factors referred to by her Honour, the respondent's concessions in the appeal and the mitigating factors revealed by the additional evidence which we would admit in the appeal), we would impose a sentence of 7 years 6 months' imprisonment for the offence of unlawfully doing grievous bodily harm in circumstances of aggravation.
The new sentence is to be taken to have taken effect on 24 February 2017.
The respondent remains eligible for parole. He will be eligible to be considered for release on parole upon having served 5 years 6 months in custody calculated from 24 February 2017.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KL
Associate14 JANUARY 2019
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