Yaqubi v The State of Western Australia [No 2] - [2016] WASCA 187

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: YAQUBI -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2016] WASCA 187

CORAM: BUSS P
MAZZA JA
MITCHELL JA

HEARD: 21 JULY 2016

DELIVERED : 31 OCTOBER 2016

FILE NO/S: CACR 77 of 2016

BETWEEN: OMAR SHOKRAAN YAQUBI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SWEENEY DCJ
File No  :IND 1660 of 2015

Catchwords:

Criminal law - Appeal against sentence - One count of unlawfully doing grievous bodily harm - Plea of guilty at the first reasonable opportunity - Appellant aged 18 at the time of the offending - Sentence of 16 months' immediate imprisonment - Manifest excess

Legislation:

Criminal Code (WA), s 297(1)
Sentencing Act 1995 (WA), s 6, s 7, s 8, s 39, s 76, s 81

Result:

Application dated 20 July 2016 dismissed
Leave to appeal on ground 3 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr B M Murray

Solicitors:

Appellant: D G Price & Co
Respondent: Director of Public Prosecutions (WA)

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

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Field v The State of Western Australia [2013] WASCA 209
Fogg v The State of Western Australia [2011] WASCA 11
HNA v The State of Western Australia [2016] WASCA 165
Hobby v The State of Western Australia [2011] WASCA 197
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McIntyre v The State of Western Australia [2016] WASCA 150
Mercanti v The State of Western Australia [2009] WASCA 109
Nayna v The State of Western Australia [2016] WASCA 169
Peake v The State of Western Australia [2015] WASCA 239
The State of Western Australia v Ellement [2016] WASCA 1
The State of Western Australia v Ghilardi [2015] WASCA 61
The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308
Trompler v The State of Western Australia [2008] WASCA 265
Winmar v The State of Western Australia [2016] WASCA 62

JUDGMENT OF THE COURT: This is an appeal against sentence.
The appellant was convicted, on his plea of guilty, of one count in an indictment which alleged that on 8 January 2015, at Cannington, the appellant unlawfully did grievous bodily harm to Mohammad Razouki, contrary to s 297(1) of the Criminal Code (WA) (the Code).
On 13 May 2016, Sweeney DCJ sentenced the appellant to 16 months' immediate imprisonment. A parole eligibility order was made.
We would dismiss the appeal. Our reasons are as follows.

The facts and circumstances of the offending

On 8 January 2015, at about 10.30 pm, the victim was with friends at the Cedar Café in Cannington.
The appellant was also with friends at the café that evening.
There had previously been some tension between members of the groups.
The victim and his friends decided to leave the café. As they were leaving, they spoke to one of the appellant's friends with whom they were acquainted.
The appellant made an insulting comment about the victim's mother. The sentencing judge rejected the appellant's claim that there had been a 'misunderstanding' in relation to the comment (ts 32 ‑ 33). The victim questioned the appellant twice about his comment. Although the victim's questioning was likely to have been demanding and aggressive in tone, he did not threaten or attack the appellant. It was merely words.
The appellant responded to the verbal confrontation by punching the victim forcefully to the left side of his face. The victim's mouth bled profusely.
People separated the appellant and the victim. As the appellant was being restrained, he lashed out with his feet and kicked the victim in his lower back. The kick may not have been aimed directly at the victim. The State did not rely on the kick as part of its case (ts 38 ‑ 39).
The victim was dazed but did not lose consciousness. He went to Royal Perth Hospital. An X-ray revealed that his jaw was fractured in two places. The following day, he underwent surgery. Two titanium plates were inserted into his jaw. If the injury had not been treated it was likely to have caused permanent injury to the victim's health. The injury was not, however, life‑threatening. Fortunately, the victim appears to have made a full recovery.
The appellant's assault upon the victim was spontaneous. It comprised the forceful blow to the head. There was not a sustained beating.

The appellant's personal circumstances and the sentencing judge's sentencing remarks

The appellant was born on 19 April 1996. He was aged 18 at the time of the offending and was 20 when sentenced. He had an uneventful childhood without any notable personal issues. He is in a committed relationship and hopes to get married. His family supports him.
At the time of sentencing, the appellant was employed as a data entry operator in the motor vehicle industry. He was studying for the degree of Bachelor of Construction and Management.
The appellant has no physical or mental health problems. He does not drink alcohol or use illicit drugs.
The author of a pre‑sentence report dated 12 January 2016 said the appellant did not have adequate insight into the seriousness of his offending. He sought to blame the victim and minimised the seriousness of his behaviour. The appellant's 'level of empathy for the victim was considerably lacking'. The author concluded that the appellant did not appear to have extensive anger management issues. The offending was related to his immaturity, impulsivity and lack of consequential thinking.
Counsel for the appellant placed before the sentencing judge a number of written references as to the appellant's character. The references spoke well of him.
The appellant has a criminal record. He was fined and a spent conviction order was made on a charge of common assault. That offence was committed about six weeks after the offence the subject of this appeal. The magistrate sentenced the appellant before her Honour sentenced him. The common assault involved the appellant punching another young man two or three times in the head (ts 34). The appellant was not on bail when he committed the common assault.
The sentencing judge said that the later offence of common assault indicated that violence was not wholly out of character for the appellant (ts 35).
During a video‑recorded interview with police, the appellant claimed, falsely, that he had only pushed the victim. Initially, at the sentencing hearing, the appellant asserted that he had punched the victim in retaliation for the victim having struck him. That assertion was withdrawn when her Honour informed defence counsel that she would require the appellant to satisfy the court, on the balance of probabilities, as to the alleged provocation.
The sentencing judge found that the appellant had initiated the incident with the victim and that the appellant was the physical aggressor. At the time, the victim was a juvenile, aged 17. He is of smaller physical stature than the appellant.
Her Honour identified the relevant mitigating factors. In particular:
(a)The appellant was aged 18 and immature at the time of the offending. His youth and immaturity were significant.
(b)The appellant pleaded guilty at the first reasonable opportunity. Her Honour allowed a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA).
(c)The appellant was of good character before he committed the offence.
(d)The appellant was in a committed relationship and hoped to get married, his family supported him, and he was in steady employment and studying for a degree.
Eventually, the appellant wrote a letter of apology to the victim. This indicated a greater level of insight into his offending than he had shown previously.
The appellant regretted having committed the offence because of the 'consequences for … [himself] and for [his] family', but the degree to which the appellant felt genuine remorse was 'not convincing', notwithstanding the positive comments by the character referees (ts 38).
The sentencing judge emphasised the need for both personal and general deterrence. Her Honour said the community is 'sick to death of young people engaging in this sort of unnecessary over‑the‑top violent behaviour over mere words or the fact that someone gave them a hostile look' (ts 38). Also, there was a 'real need' to deter the appellant from 'resorting to [his] fists in the future' and to send 'a message out to the community that engaging in this sort of senseless violence will be met with serious punishment' (ts 38). She decided that the seriousness of the offending and the importance of personal and general deterrence made it inappropriate to suspend the term of imprisonment. The mitigating factors were reflected in the length of the custodial term which, in her Honour's view, was lenient.

The grounds of appeal

Originally, the appellant relied on three grounds of appeal. However, at the hearing, counsel for the appellant abandoned ground 1 (appeal ts 17 ‑ 18).
Ground 2 alleges, in effect, that the sentence of 16 months' immediate imprisonment was manifestly excessive in that the wrong type of sentence was imposed. The term of imprisonment should have been suspended.
Ground 3 alleges that the length of the term of imprisonment, namely 16 months, was manifestly excessive.
The appellant does not challenge any of the sentencing judge's findings of fact.
On 3 June 2016, Mazza JA granted leave to appeal on ground 2 and referred the application for leave to appeal on ground 3 to the hearing of the appeal.

The merits of grounds 2 and 3

A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
In Western Australia, the statutory sentencing principles are set out in pt 2 of the Sentencing Act. By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
The maximum penalty for unlawfully doing grievous bodily harm to another, if the offence is not committed in circumstances of aggravation, contrary to s 297(1) of the Code, is 10 years' imprisonment.
We have examined numerous cases of offending against s 297(1) including Trompler v The State of Western Australia [2008] WASCA 265; Mercanti v The State of Western Australia [2009] WASCA 109; The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308; Peake v The State of Western Australia [2015] WASCA 239; Winmar v The State of Western Australia [2016] WASCA 62; and decisions cited in those cases. We have also considered other cases cited by counsel for the appellant and counsel for the State including Hobby v The State of Western Australia [2011] WASCA 197; Field v The State of Western Australia [2013] WASCA 209; The State of Western Australia v Ghilardi [2015] WASCA 61; and The State of Western Australia v Ellement [2016] WASCA 1. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
In Taylor [35] ‑ [39], Buss JA made these remarks (McLure P and Mazza JA agreeing):
In Trompler, Wheeler JA (Buss JA agreeing) noted that there are, in general, three matters of significance in determining the criminality of an offence which involves unlawfully doing grievous bodily harm. First, there is the nature of the harm which is inflicted. Although any grievous bodily harm is necessarily serious, it may range from a permanent injury with which the complainant is able to cope, to a severe and life-threatening injury which occasions significant permanent disability. Secondly, there is the nature of the act which causes the harm. This may range from a single act, to repeated acts of violence. Thirdly, there is the background to and circumstances of the offence. This may range from a response to a provocative act of the complainant, to random and senseless violence. See Trompler [9] - [11]. See also Hussaini v The State of Western Australia [2009] WASCA 207 [23] (Wheeler JA).
McLure JA made these comments in Trompler about the broad range of sentences (post-transitional) for unlawfully doing grievous bodily harm:
'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) [38].'
In each of The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394, Bruno v The State of Western Australia [2005] WASCA 149, R v Hodges [1999] WASCA 278, Hayes v The Queen [2003] WASCA 230 and Clements v The State of Western Australia [2006] WASCA 69, the offender entered a plea of guilty.
In Trompler, Wheeler JA observed:
'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 [19].'
In Mercanti, Miller JA (Wheeler & Pullin JJA agreeing) held that the general range established in cases of unlawfully doing grievous bodily harm is between 8 months and 5 years 4 months, but more like 3 to 5 years for offences towards the upper end of the range [35]. His Honour added that these ranges were 'post-transitional' and, in view of the decision of the majority in The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, this was the appropriate range to apply [36]. See also Djiagween v The State of Western Australia [2012] WASCA 141; Holden v The State of Western Australia [2011] WASCA 238; Hobby v The State of Western Australia [2011] WASCA 197; Steel v The State of Western Australia [2010] WASCA 118; Ward [No 2].
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
By s 6(4) of the Sentencing Act:
A court must not impose a sentence of imprisonment on an offender unless it decides that -
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.
Section 76 of the Sentencing Act provides, relevantly:
(1)A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.
(2)Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.
The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).
As this court noted recently in HNA v The State of Western Australia [2016] WASCA 165 [27] ‑ [30] (Buss P, Mazza & Mitchell JJA):
(a)A sentencing judge must be positively satisfied that suspended and conditionally suspended imprisonment are not appropriate sentencing options before imposing a sentence of immediate imprisonment.
(b)In considering whether suspended or conditionally suspended imprisonment is not appropriate, the provisions relating to those sentencing options must be considered.
(c)Otherwise, considering what sentencing options are not appropriate involves an evaluative judgment which is broad but not at large. The determination of what is 'not appropriate' must be reached by applying the relevant sentencing principles and considerations to all the circumstances of the offence and the offender.
(d)Where a sentence is said to be manifestly excessive as to type, the question for this court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and considerations and in all the circumstances, to be positively satisfied that earlier listed sentencing options were not appropriate.

The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] (Kirby J). The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation. See Dinsdale [86].
In the present case, the offending was serious. The victim suffered a significant injury as a result of the appellant's gratuitous violence. The injury required surgery. The victim has apparently made a full recovery, but the appellant's conduct had the potential to result in a more serious injury than was in fact suffered. The victim did not provoke the attack. The sentencing judge was rightly sceptical about the degree to which the appellant was genuinely remorseful.
The facts and circumstances which militated in favour of suspending the term of imprisonment were the mitigating factors identified by her Honour.
The facts and circumstances which militated against suspending the term of imprisonment were the seriousness of the offending, the importance of personal and general deterrence as sentencing considerations and the lack of genuine remorse.
After taking into account:
(a)the maximum penalty for the offence;
(b)the objective facts and circumstances of the offending;
(c)the standards of sentencing customarily observed;
(d)all mitigating factors; and
(e)all other relevant sentencing considerations,
we are satisfied that the sentence of 16 months' immediate imprisonment was within the range open to the sentencing judge on a proper exercise of her discretion.
It is, of course, a serious step for a court to impose a term of immediate imprisonment on young or youthful offenders of prior good character. This is because of the potentially destructive effect that immediate imprisonment can have on the life of a young person. However, there are circumstances where the seriousness of the offending requires the imposition of immediate imprisonment even for young or youthful offenders of prior good character. While mitigating factors must be given appropriate weight, they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence. See Fogg v The State of Western Australia [2011] WASCA 11 [13] (McLure P, Mazza J agreeing); McIntyre v The State of Western Australia [2016] WASCA 150 [18] (Buss P, Mazza & Mitchell JJA); and Nayna v The State of Western Australia [2016] WASCA 169 [56] (Buss P, Mazza & Mitchell JJA). In the present case, it was open to the sentencing judge to be satisfied that, despite the appellant's youth and prior good character and the other mitigating factors, the seriousness of the offending, the need for personal and general deterrence and the lack of genuine remorse made a sentence of immediate imprisonment the only appropriate sentencing option.
So, in summary, we consider that:
(a)it was open to her Honour to conclude that a term of imprisonment to be served immediately was the only appropriate sentencing option; and
(b)the length of the term was not unreasonable or plainly unjust.
Grounds 2 and 3 have not been made out.

The application in the appeal

The appellant filed an application dated 20 July 2016 in the appeal for leave to rely on additional evidence in the appeal. The additional evidence was an undated letter written by the appellant to this court. At the hearing, counsel for the appellant accepted, correctly, that the letter was irrelevant unless the court decided to allow the appeal and resentence the appellant (appeal ts 15 ‑ 16).

Conclusion

We would dismiss the application dated 20 July 2016 in the appeal.
Leave to appeal on ground 3 should be refused. The appeal itself must be dismissed.