Ward v The State of Western Australia
[2010] WASCA 64
•29 MARCH 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WARD -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 64
CORAM: JENKINS J
HEARD: 29 MARCH 2010
DELIVERED : 29 MARCH 2010
FILE NO/S: CACR 29 of 2010
BETWEEN: NORMAN DOUGLAS WARD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :McCANN DCJ
File No :IND 1286 of 2009
Catchwords:
Criminal law and procedure - Bail pending appeal - Unlawfully causing grievous bodily harm - Absence of exceptional circumstances
Legislation:
Bail Act 1982 (WA), sch 1, pt C, cl 1, cl 3, cl 4A
Result:
Application for bail refused
Category: B
Representation:
Counsel:
Appellant: Mr M T Trowell QC
Respondent: Mr D Dempster
Solicitors:
Appellant: Henry Sklarz
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dadswell v The Queen [2003] WASCA 212
Etrelezis v The Queen [2001] WASCA 327
Jones v The Queen (Unreported, WASCA, Library No 920406, 31 July 1992)
Mercanti v The State of Western Australia [2009] WASCA 109
Stalker v The Queen [2002] WASCA 364
The State of Western Australia v Camilleri [2008] WASCA 217
Tieleman v The Queen [2004] WASCA 285
Trompler v The State of Western Australia [2008] WASCA 265
JENKINS J: (This judgment was delivered extemporaneously and has been edited from the transcript.)
On 8 March 2010 in the District Court at Perth the appellant was sentenced to 3 years' imprisonment for one count of unlawfully causing grievous bodily harm. He has appealed against the severity of that sentence. He has also applied for bail pending the determination of the appeal. These are my reasons for refusing bail.
The application for bail must be determined in accordance with the Bail Act 1982 (WA), sch 1, pt C, cl 4A which states:
In deciding whether or not to grant bail to an accused who is in custody waiting for the disposal of appeal proceedings, the judicial officer shall consider whether there are exceptional reasons why the accused should not be kept in custody, and shall only grant bail to the accused if satisfied that-
(a)exceptional reasons exist; and
(b)it is proper to do so having regard to the provisions of clauses 1 and 3 or, in the case of a child, clauses 2 and 3.
There is no suggestion that the appellant should not be granted bail by reason of the provisions of cl 1 and 3 of sch 1 of the Bail Act. The question then becomes whether the appellant has shown exceptional circumstances as to why he should be granted bail. In Stalker v The Queen [2002] WASCA 364 Roberts‑Smith J said:
… I consider that something more than an arguable ground of appeal must be shown in order to establish exceptional circumstances for the purposes of cl 4 of Pt C of Sch 1 to the Bail Act. It must be shown, without detailed argument, that the appeal is most likely to succeed [40].
Although his Honour was referring to the then cl 4 the same comments apply with equal force to cl 4A. As the appellant has also pointed out, the question of exceptional circumstances was considered in the case of Tieleman v The Queen [2004] WASCA 285 [30], [48] where it was said that the phrase 'exceptional reasons' bears its ordinary meaning; that is, as something 'unusual or extraordinary or special, a reason not ordinarily to be seen out of the ordinary'.
The affidavit of the appellant's trial counsel, Henry Sklarz, sworn 12 March 2010 states that he is of the opinion that the appellant's appeal is 'strong' and the sentencing judge 'should have properly considered' a suspension of the 3 years' imprisonment. Mr Sklarz also says that as the appeal is unlikely to be heard before June or July 2010 the appellant ought to be granted bail.
As I have just said it is insufficient, and that is acknowledged by Mr Trowell who appears for the appellant today, to establish that the grounds of appeal are strong. It must be established that at least one ground of appeal is 'most likely to succeed'. In the context of an appeal against sentence, this means that it has to be shown that the Court of Appeal is most likely to find that a different sentence should have been imposed.
Further, I am of the opinion that in this case it would be insufficient to show that it is likely that the Court of Appeal would reduce the term of imprisonment. What must be shown is that the court is most likely to allow the appeal and substitute a non‑custodial sentence of some description.
Mr Trowell has said that the appellant does not rely on the issue of delay in the hearing of the appeal. That, in my view, is a correct concession. If, for example, the appeal was heard in July the appellant would have been in custody for four months. I would not regard this factor as lending support to a finding of exceptional circumstances unless I was also of the opinion that it was most likely that the appeal would be allowed and a non‑custodial sentence imposed.
The appellant also says that in determining exceptional circumstances other relevant factors can be taken into account; for example, the applicant's or the appellant's personal and familial circumstances. It is said that these may constitute exceptional circumstances or exceptional reasons. I accept that that may be so and I will consider those circumstances in the course of these reasons.
It has also been said in respect of bail applications made pending an appeal that they are not the occasion for a judge to hold a preliminary appeal hearing. Having said that, it is necessary for me to consider the merits of the grounds of appeal.
Mr Trowell has handed up proposed amended grounds of appeal. The first ground states that the sentencing judge erred in the exercise of his sentencing discretion by imposing a sentence that was, in all of the circumstances, manifestly excessive having regard to a number of factors. The second proposed ground of appeal alleges that the sentencing judge erred in finding that the appellant had displayed no remorse, and the third ground alleges that the sentencing judge erred in failing to have sufficient or proper regard to s 76 (2) of the Sentencing Act 1995 (WA) which is the section relevant to the issue of a suspended sentence.
Mr Trowell has said that in this application for bail he does not rely upon the strength of grounds 2 or 3. It is primarily in respect of ground 1 that he says that the appeal is likely to succeed and thus bail ought to be given to his client.
Turning to ground 1, what is alleged, as I have said, is that the sentencing judge erred in the exercise of his discretion. It is thus necessary for me to consider matters relevant to the exercise of that discretion. The factual background to the conviction is that the appellant was, as I have said, convicted after trial of one count of unlawfully causing grievous bodily harm.
During a social occasion on 23 January 2009 the appellant bit completely off a portion of the distal joint of the victim's right thumb. I have had clarified for me today what portion of the thumb that was. It appears that it was approximately 50% of the top joint of the right thumb. Thus the appellant severed not only the flesh but also the bone of the thumb.
The appellant had challenged the victim to an arm wrestle. When they were about to commence the wrestle, the appellant punched the victim to the face and they then fell to the ground. Whilst the appellant had the victim pinned to the floor, he bit off the portion of the victim's thumb. This was despite the fact that the victim tried to pull his thumb free and others tried to pull the appellant off the victim. The victim's hand only came free when the thumb was severed. The appellant then bit the victim's left thumb. Other people at the party had to intervene to stop the appellant from further assault. There was no severing of any part of the left thumb. However, the sentencing judge noted that there is still a scar from where the appellant bit that thumb.
The offence was unprovoked and there was no issue of self‑defence arising from the facts. The sentencing judge found that the assault was intentional and premeditated, although the severing of the thumb was not intentional. The appellant appeared to be under the influence of alcohol and/or other unknown substances. The victim's thumb was never recovered and the appellant continued partying afterwards without any apparent regard to the offence he had committed or the suffering of the victim. In those circumstances, the sentencing judge found that there was no remorse shown on behalf of the appellant, even though he did apparently apologise to the victim before the victim left the party to obtain medical assistance.
The victim has permanent injuries as a result of the offence. He is right‑hand dominant. He cannot now do things with his right hand that he used to do.
In respect to the appellant's personal circumstances it is sufficient to say that he has very good antecedents, if not impeccable antecedents. He, as the sentencing judge has said, has no relevant prior criminal record. He has an excellent work history and an excellent professional history. He had an extremely responsible job as a ship's master. His employment in that capacity is probably over as a consequence of his imprisonment, if not his conviction. The sentencing judge accepted that the offence was out of character for the appellant.
The appellant also, at least in part, financially supports his 16‑year‑old son, although he does not reside with his son due to his separation from his son's mother. I have also had regard to an affidavit filed in support of this application, that being the affidavit of the appellant sworn 27 March 2010. In that affidavit he says that he is employed as a ship's master, which is a specialised and highly skilled position. He says that he has worked in the position for at least eight years, having advanced to it by obtaining upgraded qualifications and certificates over the years of his working life. He says that whilst he is at sea, which can be for periods of up to 10 weeks, he is the ultimate decision‑maker and has the ultimate responsibility for 11 crew and a vessel worth over $15 million.
He refers to his income, which he says is essential to support his family and to finance his appeal. He says that if he is granted bail, he believes that his employer will continue to employ him. He says, on the other hand, if he remains in custody, he is of the view that his employer will terminate his employment even if his appeal is ultimately successful. He says that he believes that will be the case because his job cannot be kept open for him. He says that if his employment is terminated, he believes that he will not be able to find a similar job because of the fierce competition for the kind of position which he held. The majority of these matters were also known and taken into account by the sentencing judge.
The parties have referred to a number of cases which help to set the standards of sentencing for this offence. They include the cases of Trompler v The State of Western Australia [2008] WASCA 265 and Mercanti v The State of Western Australia [2009] WASCA 109. There are other cases referred to within those two cases.
I have also had regard to the decision of Dadswell v The Queen [2003] WASCA 212. In that decision the court also cited Jones v The Queen (Unreported, WASCA, Library No 920406, 31 July 1992). There is also the decision of Etrelezis v The Queen [2001] WASCA 327. In the case of Etrelezis a number of other cases were referred to. There is also the case of The State of Western Australia v Camilleri [2008] WASCA 217.
I do not intend to refer extensively to those cases. In my view, it is sufficient for me to refer to some of what was said in Trompler. Her Honour McLure JA, as she then was, said:
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). [38]
Her Honour said she also had referred to many of the cases in between. What is apparent from a review of the cases is that a sentence of imprisonment of that range, that is post‑transitional range of 8 months ‑ 5 years 4 months, is the range of sentences for offences of unlawfully doing grievous bodily harm. However, this is not to say that it is not sometimes appropriate to impose a suspended sentence for this offence. All that can be said is that, generally speaking, it is appropriate to impose a sentence of immediate imprisonment.
I discern from the cases that there is no tariff for the offence of unlawfully causing grievous bodily harm and that each case must be determined on the basis of its facts. A suspended sentence may be imposed if the circumstances warrant it. However, a sentence of imprisonment to be served immediately is the usual sentence for such an offence. This is so even where the offender has good antecedents.
For example, in the case of Trompler an immediate sentence of 2 years' imprisonment was upheld in respect to a man of 46 years of age who had no prior convictions and no reputation for aggression or violence. That was in a situation where there was an earlier assault on the offender by the complainant and the offender had retaliated by producing a Swiss army knife. The complainant's stomach was then slashed with the knife. The complainant made a complete recovery although he was left with a large scar.
Mr Trowell on behalf of the appellant has quite rightly pointed out that there are a number of personal matters in the appellant's favour. I have referred to those. They are primarily his excellent antecedents and also the effect of this sentence of imprisonment on his work and his financial position. In addition, Mr Trowell has pointed out that there were no weapons involved, the appellant was not acting in company, it was a relatively quick incident and these were unusual circumstances.
All those matters may be accepted, and I do accept them. However, the cases show that, as I have said, even where there are matters going to mitigation of the offence and the offender has good antecedents, the general and usual sentence for an offence of this type is one of immediate imprisonment. Having regard to the cases, the statutory maximum penalty, the facts and the appellant's antecedents, I am not convinced that there are exceptional reasons why the appellant ought to be released on bail.
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