Wongawol v The State of Western Australia - [2011] WASCA 222

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WONGAWOL -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 222

CORAM: McLURE P
BUSS JA
MAZZA J

HEARD: 14 SEPTEMBER 2011

DELIVERED : 17 OCTOBER 2011

FILE NO/S: CACR 210 of 2010

BETWEEN: DAMIEN WONGAWOL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURRAY J
Citation  :THE STATE OF WESTERN AUSTRALIA -v- WONGAWOL [2010] WASC 324
File No  :INS 69 of 2010

Catchwords:

Criminal law - Appeal against sentence - Construction of s 279(1)(b) of the Criminal Code (WA) - Whether element of intention relates to nature of bodily injury as well as cause - Manifest excess

Legislation:

Criminal Code (NT), s 1, s 31(1), s 162(1), s 162(1)(a)
Criminal Code (WA), s 1, s 268, s 270, s 277, s 279, s 279(1), s 279(1)(a), s 279(1)(b), s 279(1)(c)
Criminal Law Amendment (Homicide) Act 2008 (WA)

Result:

Leave to appeal on grounds 1(b), (c) and 2 refused
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr P G Giudice
Respondent: Mr J McGrath

Solicitors:

Appellant: George Giudice Law Chambers
Respondent: Director of Public Prosecutions (WA)

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

Charlie v The Queen [1999] HCA 23; (1999) 199 CLR 387
Macartney v The Queen [2006] WASCA 29
Samson v The State of Western Australia [2011] WASCA 173
Wheeler v The Queen [No 2] [2010] WASCA 105

McLURE P: This is an appeal against sentence. The appellant was convicted on his plea of guilty of the murder of his partner of some years. The offence took place on the night of 19 August 2009 in Wiluna. The appellant was sentenced by Murray J on 29 October 2010 on the basis that the appellant's conduct was contrary to s 279(1)(b) of the Criminal Code (WA) (the Code). He was sentenced to a term of life imprisonment with a minimum period of 14 years.
The grounds of appeal for which leave was sought are in the following terms:
His Honour the sentencing Judge:
1.Erred in fact by
(a)Failing to recognise the significance of the stabbing being to the legs
(b)Placing insufficient weight on psychological and psychiatric assessments of the Appellant
(c)Placing excessive weight on the fact that the Appellant was affected by alcohol and drugs.
2.Imposed a sentence that was manifestly excessive.
It emerged from oral submissions at the hearing of the application for leave that ground 1(a) raised questions as to the proper construction of s 279(1)(b) of the Code and the factual basis on which the appellant had been sentenced. Leave to appeal was granted on ground 1(a). The application for leave on the remaining grounds was referred to the hearing of the appeal.
The issues need to be seen against the factual background. The sentencing judge made the following findings:
I note that you were, during the previous night and the previous day, apparently drinking heavily. You had quite a lot to drink. You were, as you said to the police yourself, drunk, at the relevant time. You had been smoking cannabis during that day and that no doubt also had an effect upon your state at the time, but you were still mobile and you were still actively making decisions about what to do.
When you decided to return home … you then looked for and located the deceased and got her to come home. I accept that at that time, when she was located, the circumstances were, at least from your point of view affected by alcohol as you were, suspicious that she had been misbehaving with another man sexually.
I need not go into the detail of those circumstances, but you found her and you required her to come home and the argument developed. I accept, because I think it is significant, that she confessed to a degree, that she had been sexually misbehaving herself, but said to you, 'Don't be wild about it. It's of no importance,' or words to that effect.
Nonetheless, you were wild about it. You became very angry. You are a person who may be adversely affected by jealousy. You became angry, I think … because of the fact that she was being unfaithful to you and because you were gravely intoxicated. The anger, I think, was certainly what produced the violence.
I think all the evidence supports the conclusion that you attacked her with the intention to punish her severely and to hurt her badly and that, as I say, in the end translated into an intention to cause her injury of sufficient severity to be able to be properly described as life threatening, or likely to be life threatening.
It is perfectly apparent that the attack was substantially with a knife, although I accept there that there may have been another weapon used at some stage. But certainly the major part of the attack was with a knife, and it was persisted in, despite what appears to be her efforts to defend herself, resulting in what Dr Hilton supposes to be defensive wounds received by her. She tried to defend herself but you soon overcame her.
The fact that the blows were struck particularly in the region of her legs does not seem to me to be of particular significance in reaching a conclusion about the intention with which those blows were accompanied. There is certainly no suggestion that you endeavoured to avoid striking her in the torso, in the chest or in an area that might more directly express an intention to do serious harm, indeed even to kill, and I think the blows were simply struck repeatedly and randomly with the intention of causing her serious harm, without them being struck particularly at a part of her body which was chosen for any reason.
There were a considerable number of blows which were struck with the knife and she suffered a great number of penetrating stab wounds, one to her head and mainly to the limbs. There were 18 incised wounds to the deceased, a majority to the right leg, as well as other numerous lacerations and superficial abrasions to her head, neck, limbs and torso. All the evidence supports a generalised attack upon her and one that was persisted in for some time [36] ‑ [43].
It was contended on behalf of the appellant that the appellant did not intend to endanger, actually or potentially, the deceased's life. It was accepted on behalf of the appellant that he intended to cause the bodily injuries suffered by the deceased at his hands and that those injuries were, as a matter of objective fact, likely to endanger the deceased's life.
A plea of guilty is an admission as to all the elements of the offence. Thus, it is necessary to determine the elements of the offence of murder under s 279(1)(b) of the Code and what the sentencing judge actually found.

The statutory framework and background

Section 279 of the Code relevantly provides:
(1)If a person unlawfully kills another person and ‑
(a)the person intends to cause the death of the person killed or another person; or
(b)the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or
(c)the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life,
the person is guilty of murder.
(2)For the purposes of subsection (1)(a) and (b), it is immaterial that the person did not intend to hurt the person killed.
That section was inserted into the Code by the Criminal Law Amendment (Homicide) Act 2008 (WA) (the Amending Act). The second reading speech for the bill which became the Amending Act stated that its purpose was to implement recommendations made by the Law Reform Commission of Western Australia (the Commission) in its report on the law of homicide (Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report (2007)) (LRC Report).
The Amending Act abolished the longstanding distinction between wilful murder and murder, creating a single offence of murder which incorporated a sub‑set of the definition of 'grievous bodily harm'.
Prior to the Amending Act, the former s 279(1) relevantly provided:
[A] person who unlawfully kills another under any of the following circumstances, that is to say ‑
(1)If the offender intends to do the person killed or to some other person some grievous bodily harm;
…
is guilty of murder.
The term 'grievous bodily harm' was not amended by the Amending Act. It is defined in s 1 of the Code to mean:
[A]ny bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health.
The Commission concluded that an intention to cause a bodily injury of such a nature as to endanger, or be likely to endanger, life had 'close proximity or correspondence' with the harm done. However, it recommended that an intention to cause, or be likely to cause, permanent injury to health should not constitute an element of the offence of murder.
The Commission's understanding of the former law relating to murder was that the 'nature' of the bodily injury for the purpose of establishing an intention to cause grievous bodily harm was an objective requirement. That understanding was based on observations of Callinan J (with whom Gleeson CJ and McHugh J agreed) in Charlie v The Queen (1999) 199 CLR 387. The Commission recommended that should continue to be the law. It said:
The Commission is of the view that … the failure to think about the consequences to human life of inflicting a life‑threatening injury is sufficiently blameworthy to justify a conviction for murder. Therefore, the Commission does not consider that it is appropriate or necessary to require that the prosecution must prove the accused was aware that death may result. The requirement … to prove that the accused intended to cause the relevant injury respects the principle that an accused should not be convicted of murder in the absence of subjective blameworthiness (LRC Report (50)).
In Charlie v The Queen the High Court considered the meaning of 'grievous harm' in the context of s 162(1)(a) of the Criminal Code (NT) (the NT Code). Section 162(1) relevantly provided:
[A] person who unlawfully kills another under any of the following circumstances, that is to say:
(a)if the offender intends to cause the death of the person killed or of some other person or if the offender intends to do to the person killed or to some other person some grievous harm;
…
is guilty of murder.
Grievous harm was defined in s 1 as:
[A]ny physical or mental injury of such a nature as to endanger or be likely to endanger life or to cause or be likely to cause permanent injury to health.
The issue before the High Court was whether s 31(1) of the NT Code (which required that an 'event' ‑ in that case, death ‑ be intended or foreseen as a possible consequence of the person's conduct) applied to s 162(1)(a). A majority of the High Court said no. The proper construction of s 162(1)(a) also arose for consideration. The appellant's submissions relating to the scope of the 'intention' in s 162(1)(a) provide the backdrop. They are recorded in the authorised report as being to the following effect:
There are two possible interpretations of the requirement of intention to do grievous harm in s 162(1)(a). First, it may be partly subjective and partly objective, with the offender subjectively intending to cause an injury which, objectively, endangers life, would be likely to endanger life, would cause permanent injury to health or would be likely to cause permanent injury to health. Secondly, it might be entirely subjective, with the offender intending to cause injury which the offender knew would endanger life, be likely to endanger life, cause permanent injury or be likely to cause permanent injury (389).
On this subject, Callinan J said:
[A]s the proper construction of the latter part of [s 162(1)(a)] was argued some consideration should be given to it. The question is whether the word 'likely' when used in the definition of 'grievous harm' in s 1 of the Code means, objectively likely or subjectively likely, or whether the definition taken as a whole contains both a subjective and an objective element. If the intention were that the definition was to have a subjective operation it would be necessary that the offender be shown to have intended to cause an injury which he was aware would endanger life, or be likely to endanger life, or to cause permanent injury to health or be likely to cause permanent injury to health. There is some authority which appears to assume that an entirely subjective meaning is the correct one.
…
In my opinion, according to its ordinary meaning, the definition of 'grievous harm' does not require any element of awareness of result. It is sufficient for the purposes of s 162(1)(a), for a conviction of murder to be sustained, that the offender intended to do an act or to cause a physical or mental injury which was of such a nature as actually to endanger, or objectively viewed be likely to endanger, life, or to cause, or objectively be likely to cause permanent injury to health. The absence of any reference to foresight and awareness in the definition of 'grievous harm' supports such an interpretation.
Angel J who preferred an entirely subjective interpretation was of the view that a person who intended only permanently to maim or disfigure, or to cause permanent injury to health would ordinarily have intended that the victim live, and did not contemplate the likelihood of the possibility of death. It is not inconsistent with ordinary notions of criminal responsibility that an offender, seeking to maim or disfigure somebody so as to cause permanent injury to health and who in the course of doing so causes death should be convicted of murder. The common law has never thought it anomalous that an offender having such an intention and taking such a risk should, if the consequences of the act exceed the intended purpose, be convicted of murder [74], [76] ‑ [77]. (emphasis added)

Proper construction of s 279(1)(b)

The construction of s 279(1)(b) of the Code should be considered in the context of the elements of the offence of murder. The element of intention in s 279(1)(a) and s 279(1)(b) only arises for determination if the accused has unlawfully killed another person (s 277). There will be an unlawful killing if the accused has caused the death, directly or indirectly, by any means whatever (s 270) and such killing is not authorised, justified or excused by law (s 268).
Under s 279(1), the focus of attention is on the intention of the accused at the time he or she engaged in the act (or acts) causing the death. However, the issues fall to be considered in the context of acts and events that have actually occurred.
In s 279(1)(a), the intention directly relates to causing the ultimate outcome (death), not the bodily injuries leading to that outcome. It is a wholly subjective test.
In s 279(1)(b), the accused must (at least) intend to cause bodily injuries which are linked, objectively or subjectively, with endangerment of life.
Section 279(1)(c) incorporates a wholly objective test. The focus is on the act which caused death and requires that act to be of such a nature as to be likely to endanger human life. The italicised words also appear in s 279(1)(b). Section 279(1)(c) has been held to connote an act which, regarded objectively, is of such a nature as to give rise to a substantial, real and not remote chance that the life of the victim would be endangered: Macartney v The Queen [2006] WASCA 29 [139].
The two limbs of s 279(1)(b) are:
(1)the person intends to cause a bodily injury of such a nature as to endanger the life of the person killed or another person; and
(2)the person intends to cause a bodily injury of such a nature as to be likely to endanger the life of the person killed or another person.
In my view, the natural and ordinary meaning of the text of s 279(1)(b) does not support a wholly subjective construction; that is, one that requires an intention to cause bodily injuries as well as an intention that those injuries endanger life or be likely to endanger life. That is most obviously so in relation to the second limb which contains language (likely to endanger) which suggests an objective requirement. Further, the notion of 'endangering life' is concerned with the potential for, or risk of, death. A requirement of intention does not sit comfortably with potential and uncertain outcomes, the risk of which can vary from a threshold of 'a substantial, real and not remote' chance of death. Moreover, a person cannot intend a result if they are not aware that the bodily injuries intentionally inflicted would, or could, endanger life. This is reflected in the formulation of the wholly subjective test in Charlie v The Queen which recasts the statutory language in terms of knowledge or awareness of the potential consequences of the intended bodily injuries.
The expression 'of such a nature' as to endanger, or be likely to endanger, life is in my view intended to define the scope or types of bodily injuries that must be intended, being bodily injuries that have the (objective) potential consequence or effect. That is, s 279(1)(b) is partly subjective and partly objective; the accused must subjectively intend to cause bodily injuries which objectively endanger life, or would be likely to endanger life.
This construction of s 279(1)(b) of the Code is consistent with the decision of the High Court in Charlie v The Queen on statutory language that is not materially different and with the extrinsic material on which s 279(1)(b) is based. It is clear from the nature of the changes to the statutory text that the legislature did not intend to change the former law relating to murder except to the extent recommended by the Commission.
The parties agreed, correctly in my view, that this subjective/objective test was applied by the sentencing judge in this case. Against that background, I can turn to the grounds of appeal.

Ground 1(a)

The appellant challenges the sentencing judge's finding that the fact the blows were struck particularly in the region of the deceased's legs was not of particular significance in reaching a conclusion about the intention with which the blows were accompanied [42]. The sentencing judge explains the basis for the finding in [42] ‑ [43] set out above.
As I understand the submission, the appellant contends the finding was not open having regard to the following: the appellant is a traditional full‑blood tribal Aboriginal, familiar with the concept of spearing or stabbing in the legs by way of punishment; the sentencing judge found that the appellant intended to hurt the deceased severely by way of punishment for his perception of her sexual misbehaviour; and in the past the appellant had self‑harmed by stabbing himself in the leg and had stabbed the deceased in the thigh (for which he had been convicted of unlawful wounding).
The number (18) and distribution of incised wounds (head, neck, arms and legs) as well as the number and distribution of lacerations and abrasions (head, neck, trunk, arms and legs) reflect the frenzied nature of the appellant's attack on the deceased and more than adequately support the sentencing judge's finding. This ground is without merit.

Grounds 1 (b), (c) and 2

Grounds 1(b) and (c) do not give rise to independent, arguable grounds of appeal. They can only be relevant to the appellant's claim that the minimum period of 14 years is manifestly excessive.
It is necessary to refer to additional background. The appellant, a traditional Aboriginal man, was aged 29 at the time of the offence. He pleaded guilty to the charge and the sentencing judge found that he was genuinely remorseful.

The appellant has a lengthy record of convictions, including for offences of violence. The sentencing judge noted that the appellant's 'ordinary behaviour of idleness, aimlessness, lack of purpose in … life, habitual intoxication, habitual use of cannabis, have exacerbated the tendency to offend' [60].
The sentencing judge also accepted that the appellant's extremely violent attack on his partner was a reflection of the awful situation in which he had been placed as a child growing up and the breakdown of the community of which he was a part. In particular, from early in his life and then on into adulthood, the appellant was a witness to regular violent responses to disagreement and, as a result, the extreme expression of violent behaviour had become normalised for him [52], [58]. The appellant was assessed at being at a moderate to high risk of reoffending.
It seems the gravamen of the appellant's claim is that the sentencing judge placed too much weight on 'lifestyle issues', including the appellant's long term, excessive consumption of alcohol and cannabis and insufficient weight on his diagnosed mental condition and his grossly dysfunctional and deprived background.
The psychiatric report states:
[I]t is likely that [the appellant's] mental state was impaired at the time of the offence. There was a history in keeping with a paranoid personality disorder (a pervasive distrust and suspiciousness of others such that their motives are interpreted as malevolent), and it is not uncommon for this personality structure being a fertile ground for the development of overvalued ideas and delusional ideation. Although a degree of uncertainty remains, the possibility of a delusional disorder, delusional jealousy, and psychotic symptoms related, at least in part, to heavy alcohol consumption cannot be excluded. Heavy cannabis abuse can also be associated with psychotic symptoms particularly in the context of a paranoid personality structure. I also noted the presence of an antisocial personality disorder.
The psychiatrist concluded that the appellant's impaired mental state contributed to his actions at the time of the offences. The sentencing principles on this subject are settled and do not require repetition: Samson v The State of Western Australia [2011] WASCA 173; Wheeler v The Queen [No 2] [2010] WASCA 105.
The psychological report confirms that the appellant uses violence as a form of relieving tension and resolving conflict, that his substance abuse contributes to his offending and that he has limited insight into his problems. The clear inference is that all aspects of the appellant's lifestyle which contribute to his offending are normalised. The prospects of rehabilitation appear to be poor.
This is a case where the protection of the community in which the appellant lives and both personal and general deterrence are very weighty sentencing considerations. The incidence of alcohol and drug fuelled violence within Aboriginal communities is distressingly high. A new generation of children are scarred. The cycle continues. Having regard to

all relevant sentencing factors, there is no merit in the claim that the minimum period of 14 years is manifestly excessive.

I would refuse leave to appeal on grounds 1 (b), (c) and 2 and dismiss the appeal.
BUSS JA: I agree with McLure P.
MAZZA J: I agree with McLure P.