Tunney v The State of Western Australia

[2013] WASCA 286

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   TUNNEY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 286

CORAM:   NEWNES JA

MAZZA JA

HEARD:   14 NOVEMBER 2013

DELIVERED          :   17 DECEMBER 2013

FILE NO/S:   CACR 171 of 2013

BETWEEN:   MATTHEW CHARLES TUNNEY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :O'NEAL DCJ

File No  :IND 327 of 2013

Catchwords:

Criminal law - Application for leave to appeal sentence - Aggravated assault occasioning bodily harm - Wilfully and unlawfully damaged property - Aggravated burglary - Section 32 notice offences - Seriousness of offence - Manifest excess - Totality principle

Legislation:

Bail Act 1982 (WA), s 51(2a)
Criminal Code (WA), s 70A(2), s 317(1), s 401(2), s 444(1)(b)
Restraining Orders Act 1997 (WA), s 61(2a)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     No appearance

Solicitors:

Appellant:     Marilyn Loveday

Respondent:     Director of Public Prosecutions (WA)

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

Butler v The State of Western Australia [2012] WASCA 249

Gallegos v The Queen [1999] WASCA 191

Giglia v The State of Western Australia [2010] WASCA 9

Kjellgren v Cameron [2012] WASC 80

Mead v Couper [2000] WASCA 345

Messiha v Plaucs [2012] WASC 63

Mippy v The State of Western Australia [2012] WASCA 254

Paskov v Hull [2008] WASC 163

Roffey v The State of Western Australia [2007] WASCA 246

Wilson v The State of Western Australia [2010] WASCA 82

1. NEWNES JA:  I agree with Mazza JA.

2. MAZZA JA:  This is an application for leave to appeal against sentence. 

3. The appellant pleaded guilty before a District Court judge on the fast‑track system to various offences on an indictment and in a notice pursuant to s 32 of the Sentencing Act 1995 (WA). On 9 August 2013, he received a total effective sentence of 3 years 8 months' imprisonment with eligibility for parole to commence on 23 July 2013.

4. The details of the offences, the relevant maximum penalties and the individual sentences imposed are as follows:

Indictment	Offence	Contrary to Criminal Code	Maximum penalty	Sentence
Count 1	Aggravated assault occasioning bodily harm	s 317(1)	7 years' imprisonment	18 months' imprisonment cumulative
Count 2	Wilfully and unlawfully destroyed or damaged property	S 444(1)(b)	10 years' imprisonment	2 months' imprisonment concurrent
Count 3	Aggravated burglary	s 401(2)	20 years' imprisonment	22 months' imprisonment cumulative

Section 32 notice:

Charge	Offence	Contrary to	Maximum penalty	Sentence
1	Breach of a police order	s 61(2a) of the Restraining Orders Act 1997 (WA)	2 years' imprisonment or fine of $6,000 or both	1 months' imprisonment concurrent
2	Trespass on a place without lawful excuse	s 70A(2) of the Criminal Code	12 months' imprisonment and fine of $12,000	4 months' imprisonment cumulative
3	Breach of protective bail conditions	s 51(2a) of the Bail Act 1982 (WA)	3 years' imprisonment or fine of $10,000 or both	2 months' imprisonment concurrent

1. There are three proposed grounds of appeal.  Grounds 1 and 2 relate to the sentence imposed for the offence of aggravated assault occasioning bodily harm (count 1 in the indictment).  Ground 1 alleges that the learned sentencing judge erred in describing the offence as 'a serious example of that kind of offence'.  Ground 2 alleges that the sentence of 18 months' imprisonment was manifestly excessive.  Ground 3 alleges that the total effective sentence infringed the first limb of the totality principle.

2. Leave to appeal is required in respect of each of these grounds.  Leave to appeal can only be granted if the ground has reasonable prospects of succeeding.  If no ground of appeal has reasonable prospects of succeeding, the appeal is taken to be dismissed:  Criminal Appeals Act 2004 (WA) s 27(1), (2) and (3).

The facts of the offending

1. The appellant was sentenced on the basis of the facts as read to the learned sentencing judge by the prosecutor.  Defence counsel then acting for the appellant took no issue with them.

2. The appellant and the victim had been in what was described as an 'on and off' domestic relationship for approximately three years.

3. With respect to count 1 on the indictment, between 9 pm and 10.30 pm on 9 July 2012, a domestic incident occurred at the victim's home in a southern suburb of Perth.  The incident descended into physical violence, to the point where the victim was on the floor in the living room with the appellant standing over her.  While the victim was in this position on the floor, the appellant, who is significantly taller and heavier than the victim, kicked her in the groin.  The victim described the manner of the kick as being akin to the appellant kicking a football.  The blow caused the victim to cry out and curl up into the foetal position in agony.  After some time, the victim telephoned the police.  When the appellant became aware of this, he fled on foot.   The appellant was apprehended by police, who issued him with a 24‑hour police order.  The kick caused extensive bruising and resulted in pain and discomfort for more than a week after the incident.

4. With respect to count 2 on the indictment, at around 3.15 pm on 10 July 2012, the victim drove out of a car park onto Hay Street in Perth.  After driving a short distance, she noticed that the appellant was following her in his truck.  The victim attempted to drive away from the appellant in the traffic.  While she was doing so, the appellant telephoned her and asked where she was going.  The victim declined to answer the question and hung up on the appellant.  Despite this, the appellant continued to follow the victim and sent her text messages as she drove to a suburban shopping centre.  When she arrived at the shopping centre, she got out of her car and entered the building.  When she returned a few hours later, she found that her front right tyre and left rear tyre had been deflated.  In an interview with the police on 1 December 2012, the appellant admitted the offence.  This conduct constituted a breach of the 24‑hour police order that had been issued the night before.  In due course, the appellant pleaded guilty to being in breach of the order and was fined $400.  This is the only criminal offence on the appellant's record.

5. With respect to charge 1 on the s 32 notice, on 13 November 2012, at about 6.30 pm, the victim arrived home in the company of her two children and found the appellant inside her home. The appellant began shouting at the victim. The victim fled the house. The appellant took a bag from the victim's vehicle containing her passport and other personal belongings. The police attended and issued the appellant with a 72‑hour police order with an expiry time of 8 pm on 16 November 2012. In breach of that order, on 14 November 2012, the appellant made numerous telephone calls to the victim at work. The appellant in fact called her every minute between 10 am and 11 am. He later admitted to the police that he was fully aware of the police order and understood its conditions, but said that he did not care about the police order.

6. With respect to charge 2 on the s 32 notice, on 29 November 2012, the appellant entered the victim's home via a locked front door, using a set of keys that he had cut without the victim's knowledge or permission. He did not have permission to enter or be in the victim's home.

7. With respect to count 3 on the indictment, at about 8.30 pm on 30 November 2012, the victim arrived home and found the appellant inside her house.  It would appear that he had again gained entry to her home using the copied set of keys. 

8. Almost immediately after the victim entered the house, the appellant attempted to kiss her mouth and touch her breast.  The victim resisted these advances and repeatedly told the appellant to leave.  The appellant refused to do so.  Instead, he continued to attempt to kiss the victim.  He demanded to know who else she had been sleeping with.  He badgered the victim in this manner over an extended period of time in an increasingly aggressive tone.  The victim repeatedly told the appellant that she was not seeing anyone, but this failed to placate him.

9. At one point, the appellant grabbed the victim and threw her onto a bed.  He then sat on her chest and grabbed at her hair, face and neck, still demanding to know with whom she had been sleeping.  During this incident, the appellant ripped a necklace from the victim's neck, stating that it was his as he had bought it for her.  Eventually, in the hope that it would satisfy the appellant, the victim agreed that she was seeing other people.  This false admission incensed the appellant who struck her to the face with an open hand, causing bruising and swelling to her forehead and both her eyes.  In the struggle that ensued, the victim was hit on her head with the appellant's knees while he pinned her down.  Eventually, the victim managed to free herself from under the appellant and get off the bed.  The appellant pushed her onto a mattress on the floor, where the struggle continued.  In the process, the victim's head hit a bedside table. 

10. Eventually, the victim escaped from her house, locked herself inside her car and called the police.  When the appellant became aware that this had occurred, he fled the scene.  The appellant was later located at his home address.

11. On 18 December 2012, the appellant entered into a bail undertaking in relation to the above matters to appear in the Perth Magistrate Court on 14 March 2013. The bail undertaking was subject to conditions, including that the appellant not contact or attempt to contact, directly or indirectly, the victim or to approach within 50 m of her or 500 m of her address. On 2 March 2013, the appellant contacted the victim in breach of his bail conditions and claimed that he was very unwell. He asked the victim to look after him. She came and collected him and took him, at his insistence, back to her home. He remained at the victim's house, drinking heavily, until he was apprehended by police on 6 March 2013. This breach is charge 3 on the s 32 notice.

The appellant's antecedents

1. The appellant was 29 years of age at the time he was sentenced.  He experienced unhappiness as a child, feeling abandoned by his mother.  He had a constant record of employment since leaving school at the age of 15 years.  Apart from the conviction for the breach of the police order referred to at [10], he had no criminal record.  A number of character references were tendered on the appellant's behalf which spoke favourably of him, although it was not clear to the learned sentencing judge whether the referees fully appreciated what the appellant had done.  The relationship with the victim was the only serious relationship the appellant had been in.

2. The court‑appointed psychologist, Ms Buktenica, described the appellant as being lonely and isolated.  Ms Buktenica noted underlying anger issues.  She also observed that the appellant blamed the victim for his offending and minimised not only his violent nature, but the seriousness of what he did.  It is apparent that he lacks any victim empathy.  Ms Buktenica described the appellant as having a high arousal level that quickly escalates to a point of anger and aggression and noted that his tolerance for other people is low.  She also noted that the appellant has significant difficulties with emotional regulation and that he holds several cognitive distortions that help him to normalise and justify his behaviour to himself.  She noted that the appellant showed little remorse.

3. The learned sentencing judge was provided with a victim impact statement dated 15 July 2013.  That document eloquently describes the adverse emotional and physical effects of the appellant's offending on the victim.  A letter to his Honour dated 31 July 2013 and signed by the victim was presented to his Honour on behalf of the appellant.  It appeared in that letter that the victim accepted part of the blame for the appellant's offending and requested leniency from the sentencing judge.  As it turned out, the appellant had coerced the victim into signing the letter.  At the sentencing hearing, defence counsel expressly told his Honour that he did not rely on it and accepted that it did not inform the court of the victim's true feelings. 

His Honour's sentencing remarks

1. His Honour regarded the appellant's pleas of guilty and the absence of any prior record of convictions (apart from the conviction for breach of police order on 10 July 2012) as the most significant mitigating factors. His Honour gave a 20% discount for the pleas of guilty pursuant to s 9AA of the Sentencing Act. 

2. His Honour characterised the appellant's overall offending as serious.  He described the appellant's behaviour as constituting a 'sustained pattern of violent offending against a vulnerable victim'.  He noted that the appellant minimised both the violent nature and seriousness of the offending and continued to blame the victim.  His Honour said that the appellant was not truly remorseful for what he had done.  He attached particular importance to the need for personal deterrence. 

3. He said that counts 1 and 3 on the indictment were particularly serious.  In doing so, he made the statement that is the subject of ground 1 in the appeal.  His Honour said:

   Counts 1 and 3 are particularly serious offences standing on their own.  Count 1, although the worst - there was one particularly significant blow, it is a serious example of that kind of offence.  You kicked a woman in the groin as she lay on the ground.  I've seen the photographs.  It's obviously a serious and painful … injury.  But both counts 1 and 3 are relatively serious offences standing on their own.  They are, however, just the low points of a persistent pattern of criminal offending (ts 50).

Appellate sentencing principles

1. The general sentencing principles applicable to this case are well known.  They were concisely and accurately described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not need to be repeated here.

Ground 1 - Did his Honour err in his description of count 1 on the indictment?

1. The appellant submitted that the sentencing discretion miscarried because his Honour wrongly categorised the offending the subject of count 1 as being a 'serious example of that kind of offence'.  The appellant submits that the offence lacked most of the characteristics that would act to elevate the seriousness of the assault because:

   (a)no weapon was involved;

   (b)the injury followed a single blow;

   (c)the appellant was alone and not in company; and

   (d)the offending did not occur in the presence of children.

2. The absence of these circumstances does not mean that the circumstances in which count 1 was committed were not serious.  The appellant attacked a defenceless victim.  The appellant, who is bigger and stronger than the victim, forcefully kicked her in the groin while she was on the floor in a defenceless state.  The blow was to a sensitive and vulnerable part of the body and caused pain and discomfort which lasted a considerable period of time.  The incident must have been terrifying for the victim.  His Honour's description of the offence was fair and could not reasonably be said to be erroneous.  Ground 1 has no reasonable prospect of success.

Grounds 2 and 3 - The real issue is totality

1. Grounds 2 and 3 may be dealt with together. 

2. While there will be times when it is appropriate to examine an individual sentence because, for example, it may be tainted by express or implied error, generally speaking, where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence:  Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA, with whom McLure P & Pullin JA agreed).

3. The appellant submitted that the sentence imposed for the offence of assault occasioning bodily harm was tainted by implied error because it was manifestly excessive.  The maximum penalty for assault occasioning bodily harm committed in circumstances of aggravation is 7 years' imprisonment.  I have already set out the facts and circumstances surrounding the commission of the offence.  I agree with his Honour's characterisation of the offence as a serious offence of its kind.  The cases cited by the appellant for the proposition that the sentence for the aggravated assault occasioning bodily harm offence was excessive were all single judge appeals from sentences imposed by magistrates, namely Mead v Couper [2000] WASCA 345; Paskov v Hull [2008] WASC 163; Messiha v Plaucs [2012] WASC 63 and Kjellgren v Cameron [2012] WASC 80. These cases are insufficient to provide a meaningful range and, in any event, there is no tariff for offences of aggravated assault occasioning bodily harm. Further, sentences imposed in other cases do not limit the range of a proper exercise of the sentencing discretion.

4. While the appellant pleaded guilty and has favourable antecedents, he is not truly remorseful.  Matters of personal and general deterrence loom large.  Having regard to all of the facts and circumstances of the offending, the maximum penalty and the mitigating factors, the appellant's ground of appeal that the sentence imposed on count 1 in the indictment is manifestly excessive is not reasonably arguable and must fail.

5. The real question in this appeal is whether the total effective sentence breaches the first limb of the totality principle.  The totality principle is well known.  A generally accepted statement of that principle was made by McLure JA (as her Honour then was) in Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26]. There are two limbs to the totality principle, but this case is only concerned with an alleged infringement of the first limb. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. A practical application of this is for a sentencer, having determined the penalties to be imposed for the individual offences, to take 'a last look' to ensure that the aggregate properly measures the overall criminality.

6. A relevant consideration when determining whether the totality principle has been infringed is to examine analogous cases to ensure broad consistency. The appellant submitted that, having regard to such cases as Mippy v The State of Western Australia [2012] WASCA 254; Butler v The State of Western Australia [2012] WASCA 249 and Gallegos v The Queen [1999] WASCA 191, the total effective sentence imposed in the present case was too much.

7. I have had regard to the cases cited on behalf of the appellant.  As one would expect, the facts and circumstances of each of the cases are different to the facts and circumstances of the present case.  The combination of offences and their nature and duration distinguish the present case.  It is true that some of the individual offences of assault or burglary mentioned in the cases cited by the appellant may be viewed as more serious than the present case.  However, when looked at from an overall perspective, the circumstances of the present case were very serious. 

8. The appellant engaged in sustained offending against the victim.  The design and effect of the offending was to intimidate the victim both physically and psychologically.  The appellant was not deterred from committing further offences by police orders or bail conditions.  The offending occurred over a period of months.  It clearly had a significant adverse effect on the victim.  While the penalty for the aggravated assault occasioning bodily harm was significant, the penalty for the aggravated burglary was, in light of its very serious circumstances, moderate.  The appellant's entry into the house was premeditated and committed with stealth.  While inside the house, he physically assaulted the victim.  Although the appellant was only sentenced for the offences for which he was convicted, his behaviour in intimidating the victim to write a misleading letter in mitigation highlights his lack of remorse and underscores the need for personal deterrence. 

1. Despite the matters in mitigation to which I have already referred, and taking into account all of the circumstances of the case, including those personal to the appellant, a substantial term of imprisonment was required to reflect the overall criminality of what he did.  In my opinion, it cannot reasonably be argued that the total effective sentence imposed by his Honour of 3 years 8 months' imprisonment infringed the totality principle.  Ground 3 has no reasonable prospects of success.

Conclusion and orders

1. None of the proposed grounds of appeal have reasonable prospects of success.  Accordingly, the appeal must be dismissed. 

2. The orders I would make are:

   1.Leave to appeal is refused.

   2.The appeal is dismissed.