Woodhart v The Queen - [2022] SASCA 9

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)
WOODHART v THE QUEEN
[2022] SASCA 9
Judgment of the Court of Appeal

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
24 February 2022
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
The applicant and his co-accused were found guilty following a trial by jury of one count of aggravated causing serious harm with intent to cause serious harm, contrary to s 23(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) and one count of aggravated causing harm with intent to cause harm, contrary to s 24(1)(b) of the CLCA. The offending involved two victims.
On 23 January 2017 the applicant was sentenced by a Judge of the District Court to 14 years imprisonment. After allowance for time spent in custody and on home detention bail, the sentence was reduced to 13 years and eight months, with a non-parole period of eight years and eight months.
The applicant sought permission to appeal on the sole ground that the sentence was manifestly excessive. The applicant contended that the starting points identified by the sentencing Judge were manifestly excessive, and that the sentences for counts 1 and 2 should have been wholly concurrent as they arose out of the same set of circumstances. The applicant required an extension of time to appeal of approximately five years.
Held, (the Court) refusing permission to appeal:
1.It is not reasonably arguable that the sentencing Judge erred in declining to order complete concurrency.

2. It is not reasonably arguable that the sentence was manifestly excessive.
3.As the application for permission to appeal is without merit, it is unnecessary to rule on the extension of time.

4. The application for permission to appeal is refused.
Criminal Law Consolidation Act 1935 (SA) ss 23, 24; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Gikas v Police (1999) 202 LSJS 301; R v Fyfe [2004] SASC 391, considered.

WOODHART v THE QUEEN
[2022] SASCA 9
Court of Appeal – Criminal: Livesey P, Doyle and Bleby JJA

THE COURT: This is an application for permission to appeal against sentence.
The applicant requires an extension of time of approximately five years.
In 2017, following a trial by jury, the applicant was convicted and sentenced for:
·one count of aggravated causing serious harm with intent to cause serious harm, contrary to s 23(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA); and
·one count of aggravated causing harm with intent to cause harm, contrary to s 24(1)(b) of the CLCA.
The maximum penalties for these offences were, respectively, imprisonment for 25 years and imprisonment for 13 years.
For the offence of aggravated causing serious harm with intent to cause serious harm, the sentencing Judge imposed a sentence of 12 years imprisonment. For the offence of aggravated causing harm with intent to cause harm, the sentencing Judge imposed a sentence of imprisonment of six years. After making the second sentence partially concurrent as to four years, this resulted in an overall sentence of imprisonment of 14 years. The sentencing Judge fixed a non-parole period of nine years. His Honour then reduced both the head sentence and the non-parole period by four months to reflect the time spent in custody and on home detention bail, resulting in a head sentence of 13 years and eight months, and a non-parole period of eight years and eight months.
Turning to the circumstances of the offending, the applicant and his co-accused were in a relationship at the time of the offending. The co-accused had previously been in a relationship with the primary victim, Mr Brinias.
On 8 November 2013, the applicant, the co-accused, and another person (a female friend of the co-accused) made arrangements to lure Mr Brinias to an isolated location. The co-accused led Mr Brinias to think she wished to obtain drugs, use drugs, and possibly resume a physical relationship. An earlier attempt to lure Mr Brinias had failed.
Mr Brinias arrived at the location in the early hours of 9 November 2013 with a passenger. After Mr Brinias arrived, the co-accused and the other woman approached the car and spoke with Mr Brinias about drugs. The co-accused then gave an excuse and she and her friend walked away.
The applicant then approached Mr Brinias on the driver’s side of the vehicle, and, at the same time, another person approached the passenger side. That person squirted petrol, or a similar accelerant, into the car and onto the two men inside. He set the accelerant alight, starting a fire inside the car and on the two men. Whilst this occurred, the applicant reached into the car, apparently trying to prevent Mr Brinias escaping.
Mr Brinias sustained third degree burns to 15 per cent of his body, including his face and hands. As part of his treatment, he was placed into an induced coma and spent four days in the Intensive Care Unit and a further seven days in hospital. As a result of the offending, Mr Brinias found it difficult to use his hands, could not remain in sunlight for sustained periods, was susceptible to skin infections, required assistance with the activities of daily living, suffered nerve damage to his fingertips, and lost his employment as a chef due to a combination of heat sensitivity and fire phobia. He has experienced recurring nightmares, a lack of trust in others and claustrophobia in crowds.
The other victim of the attack sustained burn injuries to his face and spent 10 days in the burns unit of the Royal Adelaide Hospital. He has been left with facial scarring. He lost his employment as an outdoor worker due to the sensitivity of his skin. He has experienced stress when in motor vehicles as well as embarrassment due to his facial scarring. This has adversely impacted his ability to be involved with his children’s sporting activities.
The applicant seeks permission to appeal on the ground that the sentence imposed is manifestly excessive, and in particular that the sentencing Judge erred in declining to make the sentences for the two counts wholly concurrent.
After setting out the circumstances of the offending, and canvassing the applicant’s personal circumstances in some detail, the sentencing Judge commenced his explanation of the sentence he imposed by noting that, because count 1 was a prescribed designated offence, he was precluded by s 18A(2) of the Criminal Law (Sentencing) Act 1988 (SA) from imposing a single penalty for both offences under s 18A(1). While this required the sentencing Judge to expose the penalty he intended to impose for each offence, it did not affect the ordinary operation of the principles of concurrency and totality. The sentencing Judge remained obliged to ensure that the overall sentence was proportionate having regard to the overall criminality of the applicant’s offending and to his personal circumstances.
Addressing first the complaint in relation to concurrency, the sentencing Judge allowed a significant level of concurrency. Indeed, his Honour made the sentence for count 2 (six years imprisonment), concurrent as to four years or two-thirds. We accept that the offending may be described as involving one course of conduct, and perhaps even one action. While this warranted a significant level of concurrency, we do not think that it can be said that it warranted, let alone required, that the sentences be made wholly concurrent in circumstances where there were two victims of the offending. We do not think that it is reasonably arguable that the sentencing Judge erred in failing to make the two sentences he imposed wholly concurrent.
Turning to the more general submission of manifest excess, there is no need to recite the applicable principles. They are well known.
The essence of the applicant’s argument was that, when compared with sentences imposed in other cases involving the same offences, as well as sentences imposed for offences of attempted murder and manslaughter, the sentence imposed in the present case (particularly the sentence of 12 years imprisonment for count 1) can be seen to be too high. In making this comparison, and while acknowledging all of the limitations inherent in attempts to rely upon other cases (particularly those involving different offences), the applicant emphasised that although the present offending was very serious, it did not involve the intent to kill that is an element of attempted murder, and did not involve the death of a human being.
It is true that the sentence of 12 years imprisonment for count 1 was high, relative to the sentences in many of the other cases to which the Court was referred. However, in our view the sentence was justified given the significant degree of pre-meditation and violence in the applicant’s offending. The offending in the present case was not spontaneous or in the heat of the moment. Rather it was the product of a carefully devised and executed plan to inflict harm of a most horrific kind upon the victim of count 1 by using accelerant to set fire to him while he was physically confined within a vehicle. The sentencing Judge properly recognised the potential for offending of this kind to cause death.
Given these features of the offending it must be recognised that, on the scale of seriousness of crimes of this type, the applicant’s offending was at the highest end, and was properly described by the sentencing Judge as both “sinister” and “very serious”.
In addition to these features of the offending, it is important to bear in mind: the very significant maximum penalties prescribed by Parliament for the two offences (25 years and 13 years imprisonment respectively); the significant and long-term injuries and psychological trauma suffered by the victims; and the fact that the applicant had previous convictions for serious violent offending.
Bearing all of these considerations in mind, we are satisfied that the overall sentence imposed for the applicant’s offending was within the permissible range. Indeed, even though they might be described as high, we do not think it is reasonably arguable that the sentences imposed for the two offences, either individually or in combination, were manifestly excessive.
For these reasons, we would refuse the application for permission to appeal.
The principles relating to extensions of time are well understood.[1] The applicant’s affidavit evidence, it must be said, does not satisfactorily explain all of his delay. It is however unnecessary to rule on the extension given that the application for permission to appeal is otherwise lacking in merit.
[1] Gikas v Police (1999) 202 LSJS 301; [1999] SASC 139, [25]-[28] (Lander J); R v Fyfe [2004] SASC 391, [10] (Doyle CJ, with whom Perry, and Vanstone JJ agreed).
Permission to appeal is refused.