Thurston-Moon v The State of Western Australia

[2021] WASCA 124

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   THURSTON-MOON -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 124

CORAM:   BUSS P

MAZZA JA

BEECH JA

HEARD:   22 JUNE 2021

DELIVERED          :   15 JULY 2021

FILE NO/S:   CACR 39 of 2021

BETWEEN:   KEITH EDWARD THURSTON-MOON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   STEVENSON DCJ

File Number            :   IND 1939 of 2020

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted of one count of being armed with an offensive instrument in circumstances likely to cause fear contrary to s 68(1) of the Criminal Code (WA) and one count of causing bodily harm with intent to harm contrary to s 304(2)(a) - Where offensive instrument was a whipper snipper - Whether judge erred in finding that there was a high degree of significant potential harm beyond that suffered by the victim - Whether the sentences imposed were manifestly excessive as to type and length

Legislation:

Criminal Code (WA), s 68(1), s 304(2)(a)
Sentencing Act 1995 (WA), s 9AA

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	S Vandongen SC
Respondent	:	K Cook

Solicitors:

Appellant	:	D G Price & Co
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Chikonga v The State of Western Australia [2017] WASCA 34

Greenland v The State of Western Australia [2017] WASCA 83

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Penny v The State of Western Australia [2016] WASCA 52

Quirk v The State of Western Australia [2019] WASCA 76

Ugle v The State of Western Australia [2018] WASCA 16

JUDGMENT OF THE COURT:

1. This is an appeal against sentence. 

2. The appellant was charged on indictment with two offences, both of which were alleged to have occurred on 31 August 2020 at Cloverdale. Count 1 alleged that the appellant was armed with an offensive instrument, namely a whipper snipper, in circumstances likely to cause fear to the victim, GCH, contrary to s 68(1) of the Criminal Code (WA) (the Code). Count 2 alleged that the appellant, with intent to harm, did an act as a result of which bodily harm was caused to GCH, contrary to s 304(2)(a) of the Code. The maximum penalty is 7 years' imprisonment for count 1, and 20 years' imprisonment for count 2.[1]

   [1] AB 34.

3. On 19 March 2021, the appellant was convicted on his pleas of guilty of both counts.  Stevenson DCJ sentenced him to 12 months' immediate imprisonment on count 1, and 18 months' immediate imprisonment on count 2.  His Honour ordered that the sentences be served concurrently, and that the appellant be eligible for parole.  The sentences commenced on 19 March 2021.[2] 

   [2] ts 62.

4. The appellant relies upon two grounds of appeal.  Ground 1 alleges that his Honour erred in fact in finding that there was a 'high degree of significant potential harm over and above that which actually was suffered by the victim'.  The appellant contends that there was insufficient evidence to be satisfied of this (aggravating) fact beyond reasonable doubt.  Ground 2 alleges that each of the individual sentences was manifestly excessive, both as to type and length.[3]

   [3] AB 6.

5. On 22 April 2021, Buss P ordered that the application for leave to appeal on these grounds be referred to the hearing of the appeal.[4]

   [4] Order of Buss P dated 22 April 2021; AB 4.

6. For the reasons that follow, we would refuse leave to appeal and dismiss the appeal. 

The facts

1. The appellant was, at the material time, the owner of a lawnmowing and gardening business.  At about 11.42 am on 31 August 2020, he was sitting outside a deli at a shopping precinct on Belgravia Street in Cloverdale with some work colleagues.  The victim, GCH, was in the vicinity asking members of the public for money and was looking to buy some food.[5] 

   [5] ts 5 - 6.

2. A verbal argument broke out between the appellant and GCH.  As a result, the appellant stood up and walked approximately 40 m to his vehicle, which was parked on the other side of the street.  There, he armed himself with a line trimmer (commonly known as a whipper snipper) from the trailer which was attached to his vehicle, and put on his earmuffs.[6]

   [6] ts 6.

3. The appellant walked back towards his colleagues, pulling the ripcord of the whipper snipper multiple times, and then placed the machine on the ground.  While the appellant retrieved the whipper snipper from the trailer, GCH entered a liquor store and was temporarily out of the appellant's sight.  However, after GCH left the liquor store, the appellant picked up the whipper snipper, started the motor and walked towards the victim, causing him to retreat into the liquor store.[7] 

   [7] ts 6.

4. At this point, the appellant shouted, 'Run, fat boy.  Run, fat cunt', while holding onto the whipper snipper.  The appellant revved the whipper snipper.  Several witnesses became concerned that someone was going to be hurt as a result of the appellant's actions.  The appellant stood at the front of the liquor store, pointing, shouting and revving the whipper snipper motor.  Fearing for his safety, the victim picked up a wine bottle from the shelf for protection and held it by his side.  The appellant briefly walked away and the victim put down the wine bottle and left the liquor store.[8]

   [8] ts 6.

5. The victim then walked past a number of parked cars and onto the roadway.  The appellant continued to yell 'Fat boy' to the victim.  The victim walked onto the roadway and the appellant pursued him, revving the motor of the whipper snipper.  At about the middle of the roadway, the appellant lunged at the victim with the whipper snipper, striking him on the arm, but this did not cause any injury.  The appellant said words to the effect of, 'Are you bleeding now?  I hope you're bleeding now'.[9] 

   [9] ts 6 - 7.

6. The victim ran to the other side of the street while the appellant walked back in the direction of his colleagues.  The victim continued walking away from the appellant.[10] 

   [10] ts 7.

7. Then, without provocation, the appellant ran diagonally across Belgravia Street and pursued the victim for approximately 20 m with the whipper snipper's line spinning.  The appellant lunged at the victim and struck him with the spinning line of the whipper snipper, inflicting multiple bleeding lacerations to the victim's buttocks.  The victim continued to run away from the appellant and left the area.[11]

   [11] ts 7.

8. The appellant walked back to his colleagues with the whipper snipper.  As he did so, he smiled and gestured to them with a thumbs up.[12]

   [12] ts 7.

9. The incident was captured on CCTV and was witnessed by multiple bystanders.

10. We have viewed the CCTV footage.  The assault we have described occurred in broad daylight in and about a shopping precinct on a suburban street.  It is clear that the appellant was the aggressor and was pursuing the victim who was attempting to avoid contact with the appellant.  At no time did the victim approach the appellant in a way that would warrant any physical response. 

11. There is no apparent explanation for the appellant's behaviour on the day in question. 

Appellant's personal circumstances

1. At the time of the offending, the appellant was 41 years of age.  He was 42 years of age at sentencing.

2. Little information was provided to the court about the appellant's childhood.  It is clear that he has no prior criminal record as an adult, is married with two children, has his own lawnmowing and gardening business and, as the character references that were provided to the sentencing judge show, is well-regarded by those who know him.  He appears to be in good mental health.  There was no psychological or psychiatric evidence put before the sentencing judge capable of explaining or mitigating his offending behaviour.

The sentencing remarks

1. His Honour stated that the offending was 'plainly on any view objectively very serious'.[13]  His Honour described the offence as 'wanton, gratuitous violence which was totally unjustified and in respect of which you were at all times the aggressor'.[14]  A short time later in his sentencing remarks, his Honour added that the offending was 'premeditated and sustained over a period of time[,] ignoring the plight of the victim and ignoring the concern[s] of other innocent members of the public who happened to be in the vicinity'.[15]

   [13] ts 51.

   [14] ts 51. 

   [15] ts 51.

2. His Honour observed that the offence was not committed in the spur of the moment, and that, when the appellant inflicted the bodily harm, he made comments about whether or not the victim was bleeding and added that he hoped that the victim was.[16]  His Honour noted that, after committing the offence, the appellant gave his colleagues the 'thumbs up'.[17]

   [16] ts 52 - 53.

   [17] ts 53.

3. His Honour took into account the appellant's plea of guilty and gave a discount from the head sentence of 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA).[18]  His Honour had regard to the appellant's favourable antecedents and said that he accepted that the offending was out of character.[19]

   [18] ts 54.

   [19] ts 55.

4. His Honour did not find that the appellant was genuinely remorseful for his conduct or that he had any real insight into the seriousness of his offending.[20]

   [20] ts 56.

5. His Honour accepted that the appellant was well supported in the community and that he posed a low risk of reoffending in a similar way in the future.[21]

   [21] ts 57.

6. His Honour emphasised the need for 'very strong denunciation' of the appellant's conduct and the need to generally deter others 'who might be like‑minded from committing similar offences'.[22]

   [22] ts 57.

7. His Honour was unable to find any reason for the offending other than anger[23] and 'some element of … vigilantism'.[24]

   [23] ts 56.

   [24] ts 60.

8. His Honour accepted that the appellant did not offend out of revenge.  He elaborated on this point and, in doing so, made the following comment which is impugned by ground 1:[25]

   Of course there is no issue of revenge in this case and by reason of the nature of the weapon used to attack the victim there was a high degree of significant potential harm over and above that which actually was suffered by the victim.

   [25] ts 60.

9. After imposing the individual sentences of imprisonment in respect of counts 1 and 2, his Honour considered the application of the totality principle, and ordered that the sentence on count 1 be served concurrently with the sentence on count 2, producing a total effective sentence of 18 months' imprisonment.  His Honour then addressed the question of whether the term of imprisonment should be suspended.  His Honour decided that, having regard to the objective seriousness of the offending and notwithstanding the mitigating factors, only an immediate term of imprisonment was appropriate.[26]

   [26] ts 62.

Ground 1

1. The impugned passage appears just before his Honour announced the length of the term of imprisonment on count 2.

2. The appellant contends that the impugned passage is materially erroneous.[27] 

   [27] Appellant's written submissions, par 25; AB 11.

3. The appellant submitted that there was no direct or circumstantial evidence capable of supporting the impugned finding.  Further, it was submitted that the direct evidence, in effect, contradicted the finding. Senior counsel for the appellant pointed to the appellant's own assessment of the degree of risk involved with the operation of the whipper snipper in the victim‑offender mediation report.[28]  As to this, the author of the report wrote:

   Later in this interview [the appellant] said he selected the whipper snipper in part because it gave him 'reach' (enabling him to keep the victim 'at bay') but also because it was perhaps the least offensive item in his trailer, in terms of how much injury it could cause.  He explained that he has been 'hit' several times by a working whipper snipper in his job and, while it hurts, it isn't that serious in terms of the injury it causes.  When challenged, he readily agreed that none of that explained or justified what he then did, or justified his use of that item to threaten and assault the victim.

   [28] Appellant's written submissions, pars 28 - 30; AB 11 - 12.

4. The respondent submitted that the contention now put by the appellant had not been made to the sentencing judge.  The respondent pointed to the written sentencing submissions made on behalf of the appellant, in which it was stated that '[t]he injuries are fortunately minor'.[29]  The respondent also pointed to unchallenged statements made by the prosecutor, in his oral submissions to the sentencing judge, that:[30]

   Anyone who has used a whipper snipper before knows how dangerous it can be.  It's a matter of luck that the victim didn't sustain more serious injuries.  It is a very dangerous instrument that can be hard to control.

   [29] Respondent's written submissions, pars 6 - 7; AB 23.

   [30] ts 48.

5. The respondent submitted that the sentencing judge was not bound to accept the passage in the mediation report referred to at [31] above.

Ground 1 - legal principles

1. The impugned finding is, we accept, a finding by the sentencing judge of an aggravating factor.  Among the factors relevant to sentencing an offender under s 304(2) of the Code is the potential, as distinct from the actual, consequences of the offender's conduct.[31]  Where an alleged aggravating fact is disputed, the sentencing judge must be satisfied beyond reasonable doubt of it.  The relevant legal principles were explained by this court in Greenland v The State of Western Australia.[32]  Essentially, the principles referred to by the High Court in M v The Queen[33] are to be applied by analogy.

Ground 1 - disposition

[31] Ugle v The State of Western Australia [2018] WASCA 16 [23].

[32] Greenland v The State of Western Australia [2017] WASCA 83 [114] - [115].

[33] M v The Queen [1994] HCA 63; (1994) 181 CLR 487.

1. In the impugned passage, his Honour found that the 'high degree of significant potential harm' derived from 'the nature of the weapon used to attack the victim'.  This invites a consideration of the material that was before the sentencing judge about the nature of the whipper snipper and the manner in which the appellant carried and used it.  The CCTV footage shows the whipper snipper, but at a distance.  The appellant can be seen holding it as he walks from his trailer to the area near the deli.  He appears to be holding it at about hip height and the end of it is just above ground level.  Although there is no evidence as to the precise length of the tool, it would, as the appellant explained to the writer of the victim‑offender mediation report, have given the appellant sufficient 'reach' to strike the victim without the victim being close enough to strike the appellant. 

2. It is a notorious fact that a whipper snipper is a kind of line‑trimmer for lawn or garden edges.  The cutting mechanism comprises a number of flexible lines, usually made of some durable material such as nylon, which rotate at high speed.  It appears that the whipper snipper used by the appellant was powered by an internal combustion motor, having regard to the fact that the appellant may be seen to be pulling at a ripcord on the device.  There was no evidence before the sentencing judge (or this court) as to the location of the on/off switch and how quickly the device, once operating, can be turned off. 

3. Having regard to the nature of the machine and the injuries sustained by the victim, there can be no doubt that the whipper snipper was, if used as a weapon, capable of inflicting laceration‑type injuries as a result of the impact of the rotating lines on the body.  It was not suggested that these lines, which are not solid blades, could inflict wounds capable of penetrating the skin and cutting vital organs.  This is not to say that there was no potential for a whipper snipper to inflict harm greater than superficial lacerations. 

4. Clearly, the appellant was not using the whipper snipper in a manner for which it is intended to be used.  The appellant chose to use the whipper snipper as a weapon.  He twice struck the appellant with it by holding the spinning lines in a more or less horizontal position, hitting the victim on the arm and his buttocks.  The movements of people involved in confrontations of the kind in which the appellant engaged are notoriously unpredictable.  The protagonists are rarely static and their positions may change suddenly, whether deliberately, instinctively or accidentally.  A victim such as GCH may be expected (as he did) to take evasive action, in an attempt to avoid an operating whipper snipper being waved or thrust at him.  It is not uncommon for people to stumble, trip or fall in this process.  An attacker may, himself or herself, suddenly change positions.  In such unpredictable and sudden circumstances, the spinning lines of a whipper snipper could have potentially lacerated the victim in such areas as his genitals, hands or fingers and, if he had crouched or fallen, his face, eyes or ears, all with the potential to cause significantly more serious injury than that which he actually suffered.  In this regard, we do not accept the appellant's submission[34] that no form of laceration injury, whether of the genitals, fingers, eyes or otherwise, could properly be characterised as significantly greater harm than the laceration injury actually suffered.

   [34] Appeal ts 4 - 5.

5. The statements made by the appellant to the writer of the victim‑offender mediation report relate to the use of a whipper snipper as a tool and not a weapon.  While one may accept that a whipper snipper, when it is being used for the purpose for which it was manufactured, is unlikely to cause a serious laceration injury, the same cannot be said for when it is being used for a purpose for which it was not manufactured, namely as a weapon.

6. The appellant submits that the impugned passage should be taken to be a finding that there was a high risk of significantly greater injuries than those that were in fact suffered.[35]  We do not accept that the impugned passage should be so understood.  Rather, understood in its context in oral sentencing remarks, the reference to 'high degree' is to be understood as emphasising the extent to which the harm that might have been suffered could have been worse than the injuries that were in fact suffered.

   [35] Appeal ts 2 - 3.

7. In our opinion, having regard to the evidence that was before the sentencing judge, it was well open to his Honour to conclude, as he did, that by reason of the nature of the whipper snipper there was a high degree of significant potential harm which could have been caused to the victim over and above that which was actually suffered by him.

8. Moreover, we accept the submissions made by the respondent that it was not in issue in the court below that the appellant's use of the whipper snipper had the potential to cause a significantly more serious injury to the victim than that which he actually suffered.  As the respondent pointed out, defence counsel stated that 'the injuries are fortunately minor'.  Implicit in this statement is an acknowledgement that it was by good fortune that no more serious injury was inflicted on the victim.  Defence counsel did not challenge the prosecutor's statement that it was a matter of luck that the victim did not sustain more serious injuries, the whipper snipper being a very dangerous instrument.  As to the dangerousness of what he did, the appellant, in a letter of apology that he drafted and which was annexed to the victim‑offender mediation report (but was not actually sent to the victim), wrote that his conduct in using the whipper snipper constituted a 'dangerous act'. 

9. Thus, it may be seen that, at first instance, there was no dispute that the victim could have suffered a significantly more serious injury than he did.  The impugned finding was a reflection of this position. 

1. Having regard to all of the abovementioned circumstances, it was well open to the learned sentencing judge to make the impugned finding.  His Honour did not err as alleged in ground 1.  Leave to appeal should be refused.

Ground 2

1. As stated earlier, ground 2 alleges that the sentences were manifestly excessive as to type and length.

2. Senior counsel for the appellant accepted the seriousness of the appellant's offending and, in effect, accepted that nothing short of imprisonment for each offence could be imposed.  However, having regard to the mitigating factors, particularly the appellant's plea of guilty, his prior good character and that the offending was 'a moment of madness' which is highly unlikely to be repeated, senior counsel submitted that it was not open to the sentencing judge to be satisfied that a suspended or conditionally suspended term of imprisonment was inappropriate.  Alternatively, in the event that an immediate term of imprisonment was the only appropriate disposition, senior counsel contended that a lesser term of imprisonment should have been imposed.[36]

   [36] Appellant's written submissions, pars 36, 41, 60 - 61; AB 13 - 14, 17.

3. The respondent submitted that the serious features of the appellant's offending which were identified by the sentencing judge were, in combination, so serious as to make a suspended or conditionally suspended term of imprisonment inappropriate, notwithstanding the mitigating factors.  The respondent submitted that, having regard to the seriousness of the offending, the length of the term of imprisonment was not manifestly excessive.[37] 

   [37] Respondent's written submissions, pars 45 - 46; AB 31 - 32.

4. Ground 2 alleges implied error on the part of the sentencing judge.  The appellant must establish that the sentence imposed upon the appellant was unreasonable or plainly unjust.  The orthodox approach to the question of whether a sentence is manifestly excessive is to consider it having regard to the maximum penalty for the offence, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type, and the offender's personal circumstances.

5. The focus of the argument in respect of ground 2 was upon the individual sentence imposed for count 2.  Senior counsel for the appellant conceded that, if a term of immediate imprisonment was the only appropriate sentence for count 2, a suspended or conditionally suspended term of imprisonment could not, as a matter of law, be imposed for count 1.[38]

   [38] See s 76(3)(b) of the Sentencing Act 1995 (WA).

6. There is no tariff for offences contrary to s 304(2) of the Code.  This reflects the fact that such offences occur in widely varying circumstances of seriousness and are committed by offenders whose personal circumstances also vary widely.

7. In their written and oral submissions, the parties referred to a number of cases said to be comparable, including Penny v The State of Western Australia;[39] Quirk v The State of Western Australia[40] and Chikonga v The State of Western Australia.[41]  In oral submissions, senior counsel for the appellant emphasised, without focusing on a particular case, cases which involved the use of a car as a weapon.[42]  Senior counsel submitted that the potential injury that may be inflicted by a car is greater than that which could potentially be inflicted by a whipper snipper, yet the sentence imposed in the present case was 'broadly comparable' to the sentences in such cases.  While it is true that a motor vehicle is potentially a far more lethal weapon than a whipper snipper, this does not mean that the use of a less lethal weapon inevitably results in a materially lower sentence.  Rather, it depends upon all of the particular facts of the case. 

   [39] Penny v The State of Western Australia [2016] WASCA 52.

   [40] Quirk v The State of Western Australia [2019] WASCA 76.

   [41] Chikonga v The State of Western Australia [2017] WASCA 34.

   [42] Appeal ts 10, 12 - 13.

8. His Honour's statement that the offending was, objectively, very serious, can hardly be disputed.  Nor can his Honour's characterisation that the appellant's actions involved the unjustified infliction of gratuitous violence upon the victim.  At all times, the appellant was the aggressor.  He chose to walk to his work vehicle, pick up the whipper snipper from the trailer and, over a period of minutes, pursue his unarmed and vulnerable victim.  Having first hit GCH in the arm with the spinning lines of the whipper snipper without drawing blood, the appellant pursued the victim to the other side of the road, where he inflicted the laceration injuries that constituted the bodily harm.  It is clear from the appellant's words and actions that he was intent upon inflicting harm and, by giving his colleagues the 'thumbs up', was pleased with himself for what he had done.

9. The laceration wounds were relatively low‑level having regard to the range of injuries that may constitute bodily harm.  However, as his Honour correctly found, the use of the whipper snipper had the potential to cause significantly more serious injuries than those that were actually inflicted.  Furthermore, it is evident from viewing the CCTV that the victim was pursued across a road on which cars were travelling, and then along a footpath, where he had to avoid a vehicle entering the road from a driveway or laneway.  Thus, the victim was exposed to further potential injury as a result of being struck by a vehicle, either on the roadway or the footpath.

10. The appellant's conduct was completely senseless.  Plainly, he was angry and his Honour found that the appellant acted out of some sense of vigilantism.  Apart from describing what occurred as 'a moment of madness', the offending has not been explained.  To describe what occurred as 'a moment of madness' underplays what the appellant actually did.  The offending was not momentary, but was sustained over a period of time.  While it may be accepted that the conduct was out of character, it was seriously aberrant behaviour which terrified the victim.  While the appellant now regrets his actions, he is not truly remorseful for them.

11. The mitigating factors identified by his Honour (set out in [22] and [24] of these reasons) are significant, but, when weighed against the very serious circumstances of the offending and the need to denunciate and deter such conduct, they did not permit a shorter term of imprisonment or leave open a suspended or conditionally suspended term of imprisonment.

12. For the abovementioned reasons, we are of the opinion that the sentences imposed upon the appellant for counts 1 and 2 were not unreasonable or plainly unjust.  Implied error has not been demonstrated.  Ground 2 has not been made out.

Conclusion and orders

1. The grounds of appeal have not been made out.  The appeal must be dismissed.  The orders that we would make are as follows:

   (1)Leave to appeal is refused.

   (2)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

NF

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

15 JULY 2021