Trompler v The State of Western Australia
[2008] WASCA 265
•18 DECEMBER 2008
TROMPLER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 265
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 265 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:53/2008 | 8 OCTOBER & 28 NOVEMBER 2008 | |
| Coram: | WHEELER JA McLURE JA BUSS JA | 17/12/08 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant re-sentenced | ||
| D | |||
| PDF Version |
| Parties: | BRIAN KEITH TROMPLER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Unlawfully causing grievous bodily harm -Whether sentence manifestly excessive because of type of sentence or length of term Turns on own facts |
Legislation: | Criminal Code (WA), s 297 |
Case References: | Bruno v The State of Western Australia [2005] WASCA 149 Clements v The State of Western Australia [2006] WASCA 69 Collins v The State of Western Australia [2007] WASCA 108 Etrelezis v The Queen [2001] WASCA 327 Hayes v The Queen [2003] WASCA 230 R v Hodges [1999] WASCA 278 R v Whiteman (Unreported, WASCA, Library No 8297, 11 June 1990) The State of Western Australia v Camilleri [2008] WASCA 217 Vagh v The State of Western Australia [2007] WASCA 17 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TROMPLER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 265 CORAM : WHEELER JA
- McLURE JA
BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO DCJ
File No : IND POR 39 of 2007
Catchwords:
Criminal law - Sentencing - Unlawfully causing grievous bodily harm -Whether sentence manifestly excessive because of type of sentence or length of term - Turns on own facts
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Legislation:
Criminal Code (WA), s 297
Result:
Appeal allowed
Appellant re-sentenced
Category: D
Representation:
Counsel:
Appellant : Mr L M Levy
Respondent : Mr L Petrusa
Solicitors:
Appellant : David Manera
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bruno v The State of Western Australia [2005] WASCA 149
Clements v The State of Western Australia [2006] WASCA 69
Collins v The State of Western Australia [2007] WASCA 108
Etrelezis v The Queen [2001] WASCA 327
Hayes v The Queen [2003] WASCA 230
R v Hodges [1999] WASCA 278
R v Whiteman (Unreported, WASCA, Library No 8297, 11 June 1990)
The State of Western Australia v Camilleri [2008] WASCA 217
Vagh v The State of Western Australia [2007] WASCA 17
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1 WHEELER JA: This appeal was heard on 8 October 2008. On 28 November 2008, it was relisted because of a concern which some members of the court had about an apparent concession made by counsel for the appellant.
2 On 28 November 2008, counsel accepted that he had earlier conceded that the length of the sentence imposed on the appellant was appropriate, and that the sole complaint was that the sentencing judge, Martino DCJ, had erred in failing to suspend the sentence which he had imposed. However, counsel for the appellant sought to amend his grounds of appeal, essentially to reinstate what had been ground 1 of the draft grounds of appeal contained in the appeal notice dated 7 April 2008, which was to the effect that his Honour had erred in imposing a sentence which was manifestly excessive, in the light of certain matters particularised in that ground. In written submissions filed by the State pursuant to leave granted at that hearing, no submission is made as to whether leave should be granted; rather, submissions are directed to the question of whether or not the ground, if leave is granted, would succeed.
3 In my view, it is in the interests of justice to grant the leave to amend sought on behalf of the appellant. As the factors to be canvassed in determining whether a sentence should be suspended are effectively the same factors as are considered in determining the appropriate length of any term of imprisonment, no injustice is occasioned to the respondent by granting leave, but injustice might be occasioned to the appellant if leave were not granted. I would therefore grant leave to amend.
4 The sentence against which the appellant appeals is one of 2 years' imprisonment, imposed on one count of unlawfully causing grievous bodily harm. The facts out of which the offence arose are as follows. There are certain matters which were referred to by counsel representing the appellant in the course of a plea in mitigation made to the learned sentencing judge, which are not referred to in his Honour's sentencing remarks. Although the summary which follows is taken largely from his Honour's sentencing remarks, I have incorporated in it some of those matters referred to by counsel before his Honour, where it appears that those matters were not the subject of any dispute.
5 The appellant was a man of 46 years of age. He was an American citizen. He had no prior convictions and no reputation for aggression or violence. Just after midnight on 21 July 2007, he was outside the Finucane Island Sports and Recreation Club in South Hedland. He was with a friend. He was confronted by a former work colleague, who was
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- accompanied by the complainant. The former colleague wished to discuss with the appellant some grievance which the colleague had against the appellant, arising out of their having earlier worked together. The appellant suggested to the former colleague that they should discuss the issue at another time. The appellant and his friend walked some 100 m up the road or thereabouts, followed by the former colleague and the complainant. By then, the complainant had approached the appellant and some words were exchanged between them. The complainant punched the appellant twice in the chest. The appellant said, "That's enough". He then took from his pocket a Swiss army knife, and opened the blade. He held it so that the blade faced the complainant. The complainant then punched or pushed the appellant a third time, and the appellant slashed him across the stomach with the Swiss army knife.
6 Although the wound which resulted at first appeared to be a small one, by the time the complainant arrived in hospital, a large part of his small bowel was seen to be lying exterior to his abdomen. He was treated in hospital for seven days. He made a complete recovery, but has been left with a large scar across his stomach. It is clear that without medical treatment, the injury would have been a life-threatening one.
7 Police arrested the appellant shortly after the offence. He voluntarily participated in a video recorded interview with police and admitted what had occurred. He said that he had felt threatened by the complainant and that was why he had acted as he did. The appellant entered a plea of guilty. It was not a fast-track or early plea, but the learned sentencing judge accepted that any delay had been caused by consideration on the part of the appellant's legal advisers of the possibility of a defence of self-defence.
8 The learned sentencing judge accepted that the appellant's conduct was out of character. There were before him many references referring to the appellant's good character and lack of aggressive behaviour. It was accepted that he had particular skills in railway maintenance which are rare, and that it was for that reason that he had come to Australia as a skilled worker to engage in work in the mining industry.
9 There are three matters which are generally of significance, in assessing criminality involved in an offence of doing grievous bodily harm. One is plainly the nature of the harm which results. While any grievous bodily harm is, by definition, a serious matter, it may range from a permanent injury which the particular complainant is able to accommodate, to a severe and life-threatening injury resulting in serious
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- permanent disability. I would not describe the injury in this case as being at the lower end of the scale, since it was plainly life-threatening. However, on the other hand, the complainant has made a complete recovery and so I would also not describe the injury as towards the upper end of the scale.
10 The second factor which is generally relevant is the nature of the act which causes the injury. Again, in the present case, there was not that deliberate and repeated violence which can be seen in some cases. There was only a single act. However, that act involved the deliberate decision to use a weapon and I accept that such conduct is conduct of a serious kind which the courts must be at pains to discourage.
11 The third factor which is generally relevant is, of course, the background to and circumstances of the offence. A deliberate attack carried out in order to obtain some personal advantage, or for revenge, would place the conduct towards the upper end of the scale, as would random and senseless violence or aggression, whether fuelled by alcohol or other drugs, or not. In other cases, there may be, for example, a response to some provocative conduct by the complainant, and much will depend upon the nature and extent of that conduct. Finally, as in the present case, the conduct may be in response to a threat perceived by the offender, in circumstances where a defence of self-defence is not open, and much will depend upon the apparent nature of the threat as perceived by the offender, and what, if anything, the offender did in order to avoid the threat before resorting to the conduct which caused the grievous bodily harm.
12 So far as the circumstances of the offence are concerned, I have already noted that the appellant had, in discussions with his former work colleague, suggested discussing the issue at another time, and that he had walked some distance away from the place where the confrontation first began. It would appear that it was, of course, open to him to have retreated further, and I accept that the use of a knife was disproportionate to the threat apparently posed by the complainant, who had punched the appellant; although he had punched the appellant more than once, it does not seem to have been with particular force. Nevertheless, it appears to me that the appellant was in a situation where, with reason, he felt himself to be threatened and had to make a decision in a very short space of time as to how he would respond. Ordinary members of the community, who have presumably no regular or frequent exposure to aggression, and no professional training in dealing with it, cannot always react in the most rational and proportionate of ways when faced with what they perceive as
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- a threat to their personal safety. Where a person has done nothing to provoke or initiate such a threatening situation, but has overreacted to a threat created by others, it is, in my view, important for the court to afford a measure of leniency.
13 The learned sentencing judge accepted that the appellant had been placed in what his Honour referred to as a "difficult situation". He accepted that the situation would have been "to a significant extent ... frightening". However, I am of the view that his Honour gave insufficient weight to this matter. There were a number of facts to which his Honour did not refer, and it appears to me that, while his Honour said that he was "not belittling the situation in which the appellant was faced", his failure to refer to those matters suggests to me that he erred in his appreciation of that situation. It is likely that that appreciation in turn led to what I would consider to be the manifest excess of the sentence.
14 Matters of significance which his Honour did not mention appear to me to be these. First, it seems to have been accepted that the knife used by the appellant was a Swiss army knife which he carried with him at all times and used for work and other purposes. There is no suggestion that he took it with him on the evening in question because he anticipated any trouble or difficulty.
15 Next, Mr Tavo, the person with the complainant, was the person who first approached the appellant, wishing to talk about a grievance. Mr Tavo's statement, which was not reproduced in the appeal book, but which was incorporated into the State's statement of facts (AB 35), says that Mr Tavo asked the complainant to come with Mr Tavo when he spoke to the appellant "just in case there was any trouble between us". As it is accepted that the appellant has no criminal record, no reputation for violence, and seems not to have ever been involved in an incident of this kind, it is difficult to avoid the conclusion that Mr Tavo considered that it was possible that his own conduct would result in "trouble". That lends force to the submissions made on behalf of the appellant that the appellant repeatedly attempted to avoid confrontation and to diffuse the situation, but was wholly unsuccessful.
16 Finally, it was submitted to his Honour, on behalf of the appellant, that the video surveillance footage showed that Mr Tavo was a "very big man" while the appellant, it appears, was not. That submission was not disputed. Both the complainant and Mr Tavo were approximately 20 years younger than the appellant and his companion.
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17 The situation which the appellant and his companion faced then, was that they were confronted by two younger men, one of them very large, who acted persistently in an aggressive manner and were not deflected by offers to discuss any grievance at a later time. One of them - the complainant - had already pushed or punched the appellant more than once, before the appellant resorted to the use of a knife. Although by his plea the appellant accepted that the force that he used in stabbing the complainant was excessive, and although the use of a knife is a serious matter, it is my view that the sentence made insufficient allowance for the difficult situation in which the appellant, a mature man of hitherto unblemished character, found himself.
18 In support of the submission that the sentence imposed by his Honour was within an appropriate range, the State relies upon Clements v The State of Western Australia [2006] WASCA 69 and R v Whiteman (Unreported, WASCA, Library No 8297, 11 June 1990). It is said that they involved a "similar degree of criminality". However, there are significant differences which, in my view, make each of those cases more serious. In Clements, the offender had pleaded guilty to an assault upon a crowd controller. The complainant had earlier in the evening, perfectly reasonably, asked a member of the offender's party to remove a cap, since that was not consistent with the dress code of the premises in question. That person's friends then, during the course of the evening, made many offensive comments and gestures to the complainant. Much later, the complainant spoke to two members of the party who were on the dance floor with drinks, which they were not permitted to have on the floor. They were spilling the drinks. One tripped the complainant and others pushed one of the party into the complainant. The complainant took that person's arm to remove him, when the offender threw a glass, which the offender knew to be broken, at the complainant's face from a short distance away. The complainant lost his eye as a result. Although the injury was not life-threatening, the result was a permanent and serious disability. The offence was not committed in circumstances where there was any threat to the offender, who apparently acted out of drunken anger. The offender's personal circumstances were very good, he being 22 years of age with no previous convictions and being very remorseful. However, the circumstances of the offence are, in my view, plainly much more serious.
19 Whiteman involved three serious and life-threatening stab wounds, rather than, as in the present case, one. As in the present case, the offender was a mature man with no history of violence (although he had minor drug convictions). As in the present case, the knife was one he
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- ordinarily used in his employment. However, there were two important differences. One was that the offender had not pleaded guilty. The second was that, as the learned sentencing judge found, the injuries were inflicted at a time when the offender had been brooding over an earlier incident, which had involved a fist fight, and he then lost his temper, went outside the hall where he had been brooding, and then stabbed the victim. Again, there was no response to any threat. For the sake of completeness, I would note that in Camilleri (The State of Western Australia v Camilleri [2008] WASCA 217), I reviewed a number of cases involving offences of grievous bodily harm. They reveal that, as one would expect, serious offences of the kind inevitably attract sentences of imprisonment of some severity and that, prior to the increase in the maximum penalty from 7 years to its current maximum of 10 years, relatively serious examples of that kind of offence would result in a range of sentences (pre-transitional) of 3 to 5 years. Allowing for the effect of the transitional provisions and the effect of the increase in the maximum, one would expect a post-transitional range of 3 to 5 years for those offences which are towards the upper end of the range, although not of the most serious kind.
20 Taking into account all of the factors to which I have referred, it is my view that the learned sentencing judge was correct in taking the view that the offence was so serious, involving as it did the deliberate use of a knife, and resulting in a life-threatening wound, that it was not appropriate to suspend the sentence of imprisonment. However, in my view, a pre-transitional term of 3 years' imprisonment is manifestly excessive when one has regard to the difficult situation in which the appellant, a man apparently not accustomed to engaging in aggressive behaviour, found himself. In my view, a pre-transitional term of 2 years would have been appropriate; after allowing for the transitional provisions that would result in a term of imprisonment of 16 months.
21 I would therefore grant leave to appeal on the amended ground, allow the appeal, quash the sentence imposed by the learned sentencing judge, and substitute a term of 16 months' imprisonment, with eligibility for parole.
22 McLURE JA: This is an appeal against sentence. The appellant was convicted on his own plea of guilty of one count of unlawfully causing grievous bodily harm contrary to s 297 of the Criminal Code (WA). On 17 March 2008 he was sentenced by Martino DCJ to a term of immediate imprisonment of 2 years and was made eligible for parole.
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23 The appellant appealed on the sole ground that the sentence was manifestly excessive because the sentencing judge failed to suspend the term of imprisonment. At the hearing of the appeal the appellant's counsel conceded that the length of the term was appropriate. The hearing of the appeal was relisted at the instigation of the court. At that hearing the appellant applied for leave to amend his grounds of appeal to add an additional ground to the effect that the length of the term of imprisonment was also manifestly excessive.
24 The facts of the offending, taken from the sentencing judge's reasons and the plea in mitigation advanced on behalf of the appellant, are as follows. Just after midnight on 21 July 2007 the appellant was outside the Finucane Island Sports & Recreation Club in South Hedland. The appellant, who was in the company of another man, was confronted by a former work colleague who was with the complainant. The appellant sought to avoid the confrontation by walking away. The former colleague followed him and there was a verbal exchange between the two. When the former colleague was engaged with the appellant's companion, the complainant approached the appellant and they had a verbal exchange. The complainant punched the appellant twice in the chest. The appellant responded by saying 'that's enough'. The appellant then produced from his pocket a Swiss army knife and opened the blade. The complainant punched the appellant a third time and the appellant then slashed the complainant across the stomach with the Swiss army knife.
25 What are described in the facts as punches by the complainant are referred to by the appellant in his police record of interview as pushes. I take the contact to have been comparatively benign. Although the former colleague is described by the appellant as a big man, he was at the time of the offence engaged with the appellant's companion. The appellant described the complainant as around his height but of slimmer build. The appellant did not attempt to physically resist the complainant's punches/pushes but instead drew his knife, opened it and after the third punch/push, used it to slash the complainant in the stomach.
26 The police arrested the appellant a short time later. He voluntarily participated in a video-recorded interview with police and made full admissions as to the circumstances giving rise to the offence. The appellant claimed he had acted in self-defence.
27 The wound was of such a nature and extent that by the time the complainant arrived in hospital a large part of his small bowel was lying exterior to his abdomen. The complainant was treated in hospital for
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- seven days. But for medical intervention the injury would probably have been fatal. He made a complete functional recovery but has been left with a large scar across his stomach.
28 The appellant pleaded guilty at a late stage. He was aged 46 at the time of the offence and had no prior record. The sentencing judge noted that his conduct was out of character. This is confirmed by the many references before the sentencing judge. The appellant is an American citizen who was working in the mining industry in the north-west of the State. He has, as the sentencing judge described it, outstanding skills in railway maintenance.
29 The sentencing judge accepted that the appellant had been placed in a difficult situation. He said:
I accept that you were in a difficult situation that to some extent - and I'm not belittling it - to a significant extent would have been frightening for you being approached by the [complainant] in the manner that I have outlined, outside the club at midnight, but as you accept by your plea of guilty, the use of a knife to slash [the complainant's stomach] … was an inappropriate and criminal response to the situation that you found yourself in (ts 11).
30 The sentencing judge expressly considered whether to suspend the term of imprisonment. He said:
I have taken into account all of the factors to which I have referred in considering whether or not I should suspend that term, in the end I have decided that the use of a knife to cause an injury of the kind that was caused in this offence is so serious that a suspended term is not appropriate (ts 11).
31 The sentencing judge made a judgment that a term of immediate imprisonment was the only appropriate sentencing option. This court cannot intervene simply because it would have imposed a different sentence. It is only entitled to intervene if the sentencing judge made a material error of fact or law. The appellant does not contend the sentencing judge made an express error. In particular, there is no claim (nor basis for one) that the sentencing judge expressly erred in failing to take into account a relevant consideration. The appellant relies solely on the claim that the sentence is manifestly excessive.
32 A sentence is manifestly excessive if it is unreasonable or plainly unjust, in which event error is inferred. A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the sentence is manifestly too long. Manifest excess is not
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- determined by reference to the reasons or reasoning of the sentencing judge. That fact is often obscured because appeal courts sometimes explain their decisions on manifest excess (or inadequacy) by reference to the weight accorded to particular sentencing considerations by the primary judge. The failure to give adequate weight to a sentencing consideration can, in very limited circumstances which do not apply in this case, give rise to an express error: Vagh v The State of Western Australia [2007] WASCA 17 [76]. Otherwise, a weighting error is just a conclusion that is implicit in, and flows from, a finding that a sentence is manifestly excessive; it is not a reason for concluding that a sentence is manifestly excessive.
33 When determining whether a sentence is manifestly excessive regard is had to the maximum sentence for the offence, the standards of sentencing customarily imposed for offences of that type, the level of seriousness of the circumstances of the offending and matters personal to the offender.
34 The maximum penalty for the offence of causing grievous bodily harm is 10 years. Ordinarily, a sentence of immediate imprisonment is imposed for offences at the level of seriousness in issue here. However, each case must be considered and determined on its own facts: Collins v The State of Western Australia [2007] WASCA 108.
35 There are a number of mitigatory circumstances in this case. They include the appellant's good antecedents, his (late) plea of guilty and his remorse. In addition, there are positive factors relating to the circumstances of the offending. In particular, the appellant walked away from the initial confrontation. He was then assaulted and placed in a frightening position. However, the appellant's conduct in producing and using a weapon was unjustifiable, significantly disproportionate and magnified the seriousness of the situation. Unarmed assaults have the capacity to produce serious but often unforeseen injury, including death. The use of a weapon significantly increases the risk of serious injury and the seriousness of the offending. The use of weapons must be discouraged. The trial judge was correct to conclude that the use of a knife to cause an injury of the kind suffered by the complainant has the consequence that it would be inappropriate to suspend the term of imprisonment.
36 I turn now to the length of the term. The question for the appeal court is whether the length of the sentence is outside the range of a sound sentencing discretion or outside the appropriate sentencing range.
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37 The notion of a sentencing range reflects the fact that there is no single correct sentence. Sentencing is an evaluative and judgmental process on which reasonable minds can differ. It follows that a sentence is not outside the range merely because it is not the same as a sentence imposed in a closely comparable case or cases (which itself is a rare beast). In seeking leave to amend, the appellant relied on the recent decision of The State of Western Australia v Camilleri [2008] WASCA 217. A single case or indeed a small number of cases cannot establish the range of sentences customarily imposed nor the appropriate range. In any event, Camilleri is not closely comparable and the sentence in that case was undoubtedly merciful.
38 The sentences actually imposed for offences of this type have a post-transitional range of 8 months (Camilleri) to 5 years and 4 months (Bruno v The State of Western Australia [2005] WASCA 149). I have reviewed many of the cases in between (including R v Hodges [1999] WASCA 278; Hayes v The Queen [2003] WASCA 230; Clements v The State of Western Australia [2006] WASCA 69; Etrelezis v The Queen [2001] WASCA 327). Although the length of the sentence imposed on the appellant is on the high side, I am satisfied the appellant's counsel was correct in his initial concession that its length is not outside a sound sentencing range. I would grant the application for leave to amend but dismiss the appeal.
39 BUSS JA: I agree with Wheeler JA.
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