Zhang v The State of Western Australia - [2013] WASCA 121

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ZHANG -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 121

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 22 NOVEMBER 2012

DELIVERED : 17 MAY 2013

FILE NO/S: CACR 94 of 2012

BETWEEN: JIAN JUN ZHANG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KEEN DCJ
Citation  :THE STATE OF WESTERN AUSTRALIA -v- ZHANG [2012] WADC 41
File No  :IND CAR 6 of 2010

Catchwords:

Criminal law - Appeal against sentence - Unlawfully doing grievous bodily harm with intent to do grievous bodily harm - Manifest excess

Legislation:

Criminal Code (WA), s 294
Sentencing Act 1995 (WA), s 6(1)

Result:

Appeal allowed
Sentence imposed by Keen DCJ of 10 1/2 years' imprisonment set aside and the appellant re-sentenced to 8 1/2 years' imprisonment
Orders made by Keen DCJ for parole eligibility and backdating shall stand

Category: B

Representation:

Counsel:

Appellant: Mr A J Robson
Respondent: Mr J A Scholz

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Abfahr v The State of Western Australia [2013] WASCA 87
Black v The State of Western Australia [No 2] [2010] WASCA 145
Bolton v The State of Western Australia [2012] WASCA 2
Eriha v The State of Western Australia [2011] WASCA 167
Gok v The Queen [2010] WASCA 185
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
King v The Queen [1999] WASCA 9
McCormack v The Queen [2000] WASCA 139
McMaster v The Queen [2004] WASCA 52; (2004) A Crim R 428
McNamara v The State of Western Australia [2013] WASCA 63
Minhaj v The Queen [2000] WASCA 52
Petrelis v The State of Western Australia [2012] WASCA 235
Smith v The State of Western Australia [2003] WASCA 57; (2003) 138 A Crim R 403
Stephens v The State of Western Australia [2005] WASCA 98
The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414
The State of Western Australia v Zhang [2012] WADC 41
Trompler v The State of Western Australia [2008] WASCA 265
Wilson v The State of Western Australia [2010] WASCA 82

McLURE P: I agree with Mazza JA.
BUSS JA: I agree with Mazza JA.
MAZZA JA: This is an appeal against sentence.
The appellant was convicted after trial of unlawfully doing grievous bodily harm to Alan Howard Brockman with intent to do grievous bodily harm, contrary to s 294(1) of the Criminal Code (WA) (the Code). This offence carries a maximum penalty of 20 years' imprisonment.
In the sentencing proceedings which followed, an issue arose concerning the appellant's mental state at the time of the offence. The sentencing judge, Keen DCJ, conducted a trial of the issues. On 3 April 2012, his Honour published his written reasons for decision on the trial of issues (The State of Western Australia v Zhang [2012] WADC 41) and then orally delivered his sentencing remarks. The appellant was sentenced to 10 1/2 years' imprisonment with eligibility for parole backdated to commence on 10 November 2011 (ts 966).
The appellant alleges no express error of law or fact on the part of the learned sentencing judge. The sole ground of appeal is that the term of imprisonment is manifestly excessive. I would uphold the appeal on this ground and resentence the appellant to 8 1/2 years' imprisonment.

The facts of the offending

The victim holds a doctorate in population health (ts 239). He was the Australian manager of the Learmonth Solar Observatory, situated on the North West Cape of Western Australia near Exmouth. The observatory is run on a joint basis between the Bureau of Meteorology and the United States Air Force Weather Agency. In about August 2009, the appellant, who holds a doctorate in geodesy, was employed for a probationary period of three months under the supervision of Dr Brockman. In effect, the victim was the appellant's boss.
In the months that followed the appellant's employment, the relationship between the appellant and the victim became strained over a number of issues which led to arguments. Neither of them got on with the other. The appellant's negative feelings towards the victim built up over time and he became emotionally stressed. The appellant complained that he was being bullied by the victim. The appellant felt that this complaint

was not properly investigated. He described his working environment 'as a horrible experience' (ts 952).

On 11 November 2009, Dr Brockman produced a report on the appellant which, although not overly complimentary, nevertheless recommended that the probationary period be extended by three months. The Bureau of Meteorology was only prepared to extend the period by one month.
On 23 November 2009, Dr Brockman made a further report on the appellant. In this report, he recommended that the appellant's employment be terminated. The appellant was given a copy of this report and was invited to prepare a response. The appellant was upset by the report.
On the morning of 24 November 2009, the appellant, Dr Brockman and another employee at the observatory, Ms Howse, travelled together to work in a work vehicle. At the end of the working day, Dr Brockman, a keen cyclist, planned to ride to his home in Exmouth. It was intended that the appellant would drive Ms Howse home.
At about 3.15 pm, Dr Brockman left work and rode towards Exmouth. At about this time, the appellant telephoned Dr Brockman but received no response. Ms Howse informed him that Dr Brockman had left and was cycling into town. The appellant told Ms Howse to find her own way home, because he wanted to work late until approximately 5.30 or 6 pm. Shortly after this conversation, and instead of staying at work late, the appellant left the observatory by car and drove along the road towards Exmouth.
His Honour found that prior to leaving the observatory, the appellant had formed the plan to run Dr Brockman down and do him serious harm. His Honour further found that the appellant was frustrated and upset about the prospect of losing his job and felt that he had been very unfairly treated. His Honour concluded that the appellant wanted to find a way to get rid of Dr Brockman, believing that he would then secure his position at the observatory. His Honour found that the appellant's feelings towards Dr Brockman were of such intensity 'as to cause a foundation of some form of revenge against him' (ts 958).
Just south of the Kailis Fish Processing Works, the appellant deliberately drove his vehicle at, and collided with, the victim, who was riding his bicycle. As his Honour put it 'the motor car was used as a weapon' (ts 962). At the time of the collision, the cruise control in the vehicle being driven by the appellant was set at 110 kph. It is not disputed that while driving his vehicle, but before the collision, the appellant experienced visual and auditory hallucinations.
The victim suffered very serious physical injuries. Those injuries and the other consequences to him will be set out later in these reasons. It is sufficient to observe that the injuries were life threatening and their consequences have, to say the least, negatively affected the victim and his family. Dr Brockman was very fortunate not to have been killed.
Although the appellant stopped after colliding with the victim, he did nothing to assist him and showed little or no remorse at the scene. The appellant was interviewed by police not long after the collision. In that interview, the appellant referred to Psalm 109 and said, in substance, that Dr Brockman deserved to be punished (ts 957).

The trial of the issues

The appellant's defence in the trial before the jury was non‑insane automatism. The appellant gave evidence in his defence. The appellant testified, in effect, that as a result of his difficult relationship with the victim, the imminent loss of his employment and other personal stressors, he committed the offence in a state of non‑insane automatism. He testified that just before the collision with Dr Brockman, he was hallucinating, seeing monsters and hearing music. The appellant called a psychiatrist, Dr Knox, to support the defence. The respondent called its own psychiatrist, Dr Patchett, in rebuttal.
The jury by its verdict rejected automatism. His Honour was bound by this finding. However, the finding did not preclude the appellant from arguing, as he ultimately did, that his offending was mitigated by reason of mental impairment. The respondent did not accept this proposition. Accordingly, his Honour conducted a trial of the issue.
At the trial of the issues, the parties relied upon the evidence put before the jury that was relevant to the defence of automatism. In addition, the appellant adduced further written material and oral testimony from Dr Knox. The respondent adduced emails written by Dr Patchett.
It is unnecessary for the purposes of this appeal to detail the evidence of the psychiatrists. While at trial they disagreed as to whether the appellant committed the offence in a state of automatism, they agreed, in substance, that the appellant was, at the time of the offence, suffering from a significant psychiatric impairment.
In an email dated 16 December 2011, Dr Knox stated:
I am of the opinion that Dr Zhang was suffering from clinically significant psychiatric impairment amounting to 'psychotic misperception and misunderstanding', i.e. hallucinations and delusions, at the time of him driving his car into, and injuring his supervisor, Dr Brockman. Dr Zhang's behaviour in this regard was largely the result of his mental impairment, and would have been most unlikely had Dr Zhang been in normal psychiatric health.
Dr Patchett commented upon this email in an email dated 20 December 2011 in these terms:
Dr Knox sets out the case for major depressive disorder and for an element of post-traumatic stress (not frank disorder). He has also very elegantly described Mr Zhang's personality and life circumstances/life events filtered through that personality structure. He particularly describes a proud, disciplined, highly principled man who struggled with the stresses of his employment and deteriorating relationship with Dr Brockman and experienced an overwhelming loss of control over his otherwise disciplined and predictable life. While that loss of control was not the result of insanity or automatism, I believe his judgment and his ability to think and plan rationally were adversely affected by his psychiatric condition. So, in effect I do think it is reasonable to conclude there was a causal link between Dr Zhang's psychiatric condition and his offending behaviour.
His Honour made the following findings in his reasons given on the trial of issues. None of these findings have been challenged in this appeal.
1.At the time the appellant formed the intention to do grievous bodily harm to Dr Brockman and actually committed the offence, he 'was suffering from [a] clinically significant psychiatric impairment' [71].
2.At the time the appellant committed the offence 'there were a number of stressors in [the appellant's] life'. His Honour was satisfied that the appellant's work environment was 'probably difficult' and that the victim 'may very well have been demanding and hard upon [the appellant]' [73].
3.At the time of the offence, the appellant 'was experiencing an overwhelming loss of control over his otherwise disciplined and predictable life [which] had some effect upon his judgment and ability to think and plan rationally' [78].
4.The appellant's mental impairment was causally connected to the intention he formed to do grievous bodily harm to the victim, but the extent of that causal connection was 'debateable' [80].
5.At the point where the appellant formed the intention to do grievous bodily harm to the victim, the appellant's mental impairment modestly impaired his ability to exercise appropriate judgment and make calm and rational choices [83], [85].
6.The appellant's mental condition did not impair his ability to appreciate the wrongfulness of his conduct [84].
7.Despite the hallucinations the appellant experienced while driving the vehicle, there was no evidence to suggest that the appellant's mental condition was such as to impair 'his ability to exercise appropriate judgment or to make choices rationally' [88], [89].
His Honour's conclusions were as follows:
As I have noted, I am satisfied that Dr Zhang suffered a significant mental impairment. He was suffering that significant mental impairment at the time of forming his intent to do grievous bodily harm and at the time of the collision.
However I am not satisfied that it was so causally connected as to significantly reduce his culpability or blameworthiness. I accept that it had some effect upon the way in which he formed his intention and beliefs and, accordingly, it should and is given some weight, albeit modest, in mitigation in the sentencing process [90] ‑ [91].

The appellant's antecedents

The appellant was 41 years of age at the time of the offence and 43 years of age at the time he was sentenced. He was born and raised in difficult circumstances, including during the Cultural Revolution in China. He was involved in the tumultuous events at Tiananmen Square and as a result it is likely that he suffers from post traumatic stress disorder. In 2001, he arrived in Australia. The appellant is a highly educated man. As I have already said, he has a doctorate from the Royal Melbourne Institute of Technology. Further, he has done post doctoral work in his specialist field of geodesy. He has been employed in Australia as a satellite orbit analyst and atmosphere modeller. Between 2010 and his remand in custody, the appellant worked as a consultant surveyor (pre‑sentence report, 3).
The appellant was married but is now divorced. His two children live with their mother in the Australian Capital Territory. He has no prior criminal history.
After the commission of the offence, between May 2010 and July 2011, the appellant attended a mental health centre. He was diagnosed with paranoid schizophrenia with a secondary diagnosis of depression. Since his remand in custody, the appellant has shown no signs of paranoid schizophrenia, although, at the time of his sentencing he was medicated for depression.

The victim's physical injuries and the victim impact statement

At the trial before the jury, there was no dispute that the victim's physical injuries constituted grievous bodily harm as defined in s 1 of the Criminal Code. A brief medical report written by Dr Siamak Seresti was read by consent to the jury (ts 234 ‑ 235). In the sentencing remarks, the injuries were described as spinal fractures, multiple rib fractures, an occipital fracture, nerve injuries, a closed head injury, fracture of the nasal bones and nasal septum and comminuted fractures of the left knee with tears (ts 950).
As a result of his injuries, Dr Brockman was admitted to intensive care and was hospitalised for a lengthy period of time. He spent approximately four months both in hospital and rehabilitation.
No up to date medical report as to the victim's physical injuries or their effect was put before his Honour in the course of the sentencing proceedings. Given that the extent and effect upon the victim of the injuries he received is a matter of relevance to sentencing, it is surprising that this information was not provided to the sentencing judge. There was no expert report at all about the psychological effects of the offence upon the victim.
His Honour had before him a detailed and eloquent victim impact statement written by Dr Brockman dated 14 November 2011. No challenge was made to the contents of the statement either before his Honour or in this court. It describes his treatment and the severe physical and other consequences to Dr Brockman of the offence. He underwent a painful, invasive and distressing course of treatment and rehabilitation. Prior to the offence he was in a highly paid and important position as a space weather scientist. At the time he made the victim impact statement he was facing the prospect of unemployment and needing to apply for a disability support pension. Dr Brockman had pursued a number of sporting, recreational, intellectual and social activities and plainly led a full and productive life outside his work. It is clear from the victim impact statement that between the date of the offence and the making of the victim impact statement he has been unable to pursue these activities and, in his mind, there is great uncertainty as to whether he will be able to pursue these activities in the future. Dr Brockman set out in the victim impact statement the adverse consequences that the offence has had on his wife and children.
After describing the victim's injuries, his Honour, having referred to the victim impact statement, said:
Part of his psychological injuries are related to the considerable loss of enjoyment of life that he has sustained as a result of these injuries. They have affected and will no doubt continue to affect him in the future and in his ability to carry out his professional duties as a scientist. There is no doubt that Dr Brockman was a very fit man and achieved in sporting activities, particularly cycling at a very high level.
All of this has been brought to nought by the injuries sustained by him as a result of your criminality. He has also been affected in his other recreational, intellectual and social activities. His family life has been impacted to a considerable degree by reason of his injuries and residual disabilities.
There can be no doubt that this will not be a short term effect of your actions but one that will continue into the future, probably for many years to come if not indefinitely.

The sentencing remarks

His Honour characterised the offence as a 'very serious example' of its type (ts 960 and 962).
He found that the appellant's decision to injure Dr Brockman, made as it was prior to leaving work on the day of the offence, was not a spontaneous decision. His Honour described it as a callous act done in anger to a vulnerable victim with the possibility of reaping a benefit in his employment (ts 958).
His Honour made the point that the appellant was driving what he described as a large motor vehicle and was travelling at 110 kph. He found that the way in which the vehicle was driven was bound to lead to the serious injuries the victim sustained (ts 962).
His Honour had regard to the severe consequences to Dr Brockman (ts 962 and 963). His Honour emphasised the need for general deterrence. As he put it:
People cannot take the law into their own hands or seek revenge against others or further their own position at the expense of others by using violence of this sort. It will not be tolerated and those who act in this way must accept that they will be dealt with severely. This is particularly so where people use a motor vehicle as a weapon (ts 963).
As I have already mentioned, his Honour said that the appellant had shown no remorse for what he had done and had shown little concern for the welfare of Dr Brockman (ts 965).
His Honour considered that there was not much need for personal deterrence because the appellant's background did not show 'a violent inclination' (ts 963).
His Honour said that there was little in the way of mitigation. He acknowledged that the appellant was a high achiever and that his actions had 'destroyed' his achievements. He also acknowledged that the appellant had no criminal history. However, he considered that the appellant's favourable antecedents carried little weight in light of the seriousness of the offence (ts 966).
As to the appellant's mental impairment, his Honour referred to his reasons in the trial of issues. He said that there was some mitigation, albeit modest, by reason of this factor.

Although his Honour regarded the case as 'very high up on the scale of this sort of offending', he fell short of concluding that the offence fell in the worst category of cases (ts 966). It was not suggested by the respondent in this appeal that the case came within the worst category.

General legal principles applicable to appeals against sentence

The relevant appellate legal principles applicable to this case are uncontroversial and were succinctly and accurately described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. A claim of manifest excess is an allegation of implied error, that is, any error must be inferred from the result. This court will only allow an appeal on this basis when it is demonstrated that, in all of the circumstances, the outcome is plainly unjust and unreasonable.

The parties' submissions

Mr Robson, for the appellant, emphasised three points. First, he submitted that the sentence imposed upon the appellant was outside the range of sentences customarily imposed. Second, he submitted that the sentence could not be justified having regard to the appellant's favourable antecedents and the absence of the need to provide personal deterrence. Third, because of the appellant's mental impairment, general deterrence was 'somewhat' reduced.
Mr Scholz, on behalf of the respondent, accepted that the sentence imposed upon the appellant was 'a very severe sentence' but was justified because of the extremely serious nature of the offence (appeal ts 14). Further, he acknowledged that the sentence imposed was outside the range of sentences customarily imposed. He submitted that having regard to the particular circumstances of the offending highlighted by his Honour, the sentence imposed was not plainly unjust and unreasonable.

Disposition of the appeal

In order to determine whether a sentence is manifestly excessive, it is necessary to view it within the perspective of:
(a)the maximum sentence prescribed by law for the offence;
(b)the standards of sentence customarily observed with respect to the offence;
(c)the place which the criminal conduct occupies on the scale of seriousness of crimes of that type; and
(d)the personal circumstances of the appellant.
As I have already said, the maximum penalty for an offence contrary to s 294(1) of the Code is 20 years' imprisonment. The offence is in a substantially higher category of seriousness than the offence of causing grievous bodily harm contrary to s 297 of the Code which has no requirement for proof of any intention and carries a maximum penalty of 10 years' imprisonment: King v The Queen [1999] WASCA 9 [90] and Black v The State of Western Australia [No 2] [2010] WASCA 145 [27].
The written submissions filed on behalf of the appellant referred the court to a large number of sentencing decisions, mostly from this State but also from elsewhere in Australia. The cases cited by the appellant concern sentences imposed for offences contrary to s 294 of the Code and to other offences, including attempted murder and causing grievous bodily harm, said to have been committed in circumstances analogous to the present case. Some were concerned with offences where a motor vehicle was used as a weapon.
It is unnecessary to refer to all of the cases that were cited. Instead, I will focus on cases at the upper end of seriousness concerning sentences imposed after trial for offences against s 294 of the Code. I will convert the sentences imposed prior to the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (the transitional provisions) on 31 August 2003 to reflect the terms of that Act so that they may be compared with sentences imposed after its commencement.
I also have regard to the effect of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) (the Amendment Act), which repealed cl 2 of the repeal Act. In The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, the majority said that the Amendment Act had the following effects:
In summary, the Amendment Act has, in our view, the following effects:
(1)In cases falling within the "worst category" it enables the imposition of the statutory maximum penalty, or something approaching it. Whether, in any particular "worst category" case, a sentencing judge will be required to impose a penalty at or near the statutory maximum will depend not upon the Amendment Act, but upon established sentencing principle.
(2)In cases not falling within the worst category, and where there is an established range of sentences capable of affording comparison, it requires a sentencing judge to have regard to the minimum terms which would have been required to have been served under that range of sentences, and to tailor the sentence to be imposed so as to avoid unjustifiable disparity in respect of the minimum custodial period.
(3)It facilitates the development of sentencing ranges which change over time, by reason of factors such as prevalence or other relevant matters.
(4)Where new offences are created, it makes it clear that the court is not to discount sentences imposed in respect of those offences by one-third.
This list may not be exhaustive, but it is sufficient for the purposes of the present case [43].
As I have said, the learned sentencing judge did not find that the offence was in the 'worst category'. Bound as he was by what was said in BLM, the learned sentencing judge was not able to impose the maximum penalty or something approaching it. Further, his Honour was required to have regard to the minimum custodial terms imposed in other cases to avoid unjustifiable disparity.
In Minhaj v The Queen [2000] WASCA 52, the appellant doused his wife with mineral turpentine and set her alight, at a time when she was carrying a 7‑month‑old child and her three‑year‑old son was next to her. The offence involved some premeditation, albeit very brief. As a consequence of the appellant's actions, the victim was very seriously injured, suffering gross and permanent scarring. A sentence of 12 years' imprisonment (8 years post the transitional provisions) was described as 'undoubtedly severe and at the upper end of the scale' [63], but was found not to be manifestly excessive.
In McCormack v The Queen [2000] WASCA 139, the appellant stabbed his wife in the chest, causing a pneumothorax which, if left untreated, would have led to her death. At the time, the victim was asleep or attempting to sleep. A sentence of 8 years' imprisonment (5 years 4 months post the transitional provisions), described as 'at the top end of the range' [29], was not disturbed on appeal.
In Smith v The State of Western Australia [2003] WASCA 57; (2003) 138 A Crim R 403, the appellant inflicted two stab wounds to the victim, one of which was to the neck and resulted in a gaping 10 cm wound to the throat. The appellant then left the victim for dead and took measures to avoid detection. On a Crown appeal, at a time when double jeopardy applied, the appellant's sentence was increased from 6 years to 8 years' imprisonment (4 years to 5 years 4 months post the transitional provisions). The Court of Criminal Appeal said that 'a sentence of 11 years' imprisonment was a more appropriate starting point' but this should be reduced to 9 years 'to take account of the mitigating circumstances' and further reduced to 8 years because the Crown appeal involved 'an element of double jeopardy' [90].
In McMaster v The Queen [2004] WASCA 52; (2004) A Crim R 428, the appellant entered a crowded nightclub armed with a concealed loaded .22 calibre handgun. While inside the club, he racked the weapon and deliberately pointed it at two men. He then fired it five times at a range of 2 to 3 m, hitting one victim in the lower abdomen and the other in the upper abdomen just below his chest. Each victim could have died from the wound that was inflicted. The appellant was sentenced to 7 years' imprisonment (4 years 8 months post the transitional provisions) for each offence. The sentences were structured so that the total effective sentence was 9 years' imprisonment (6 years post the transitional provisions). An appeal against that sentence, alleging that it infringed the totality principle and based on additional evidence was dismissed.
In Stephens v The State of Western Australia [2005] WASCA 98, the appellant after a confrontation at a tavern, pursued the victim, who was on foot, in his Nissan Patrol four‑wheel drive. The appellant taunted the victim by driving close behind him, but stopping the vehicle before hitting him. Eventually, the victim ran onto a bitumen carpark but slipped and fell under the four‑wheel drive, becoming wedged beneath it. Realising what had occurred, the appellant deliberately drove his vehicle forward some 30 m. As a consequence, the victim suffered permanent physical and emotional injuries which had a significant impact upon him and his family. The sentence imposed at first instance of 6 years' imprisonment, which was described as being 'at the high end of the range of sentencing discretion' [24], was not disturbed.
In Bolton v The State of Western Australia [2012] WASCA 2, the appellant was convicted of several offences resulting from an affray in the context of a long‑running feud between two families. He deliberately fired two shotgun blasts. One hit a woman who was pushing the intended target out of the way, perforating her bowel. The other struck a man not involved in the brawl in the abdomen. The appellant was found guilty of doing grievous bodily harm with intent to maim, disable or do grievous bodily harm and unlawful wounding with intent to maim, disable or do grievous bodily harm. He was sentenced to 5 years' imprisonment and 4 years 6 months' imprisonment, respectively. He also received a sentence of 1 year 3 months' imprisonment for firing a third shotgun blast at a vehicle. The learned sentence judge imposed a total effective sentence of 6 years 3 months' imprisonment. Leave to appeal against the total effective sentence was refused. This court described the sentence as 'well within the range of a sound exercise of the sentencing discretion' [42].
In Petrelis v The State of Western Australia [2012] WASCA 235, the appellant attended the victim's house at night, in breach of a violence restraining order. Out of sympathy for the appellant, the victim allowed him inside. While there, he stabbed the victim at least 11 times with a very large and dangerous knife in a manner described by the trial judge as 'ferocious, persistent and violent'. The victim sustained severe injuries including a stab wound to the stomach from which she probably would have died in the absence of medical treatment. The victim impact statement revealed significant physical and psychological consequences. The sentencing judge said that the offence was towards the upper end of the range of seriousness and imposed a sentence of 7 years 9 months' imprisonment. Leave to appeal on the basis that the sentence was manifestly excessive was refused.
In Abfahr v The State of Western Australia [2013] WASCA 87, the appellant's wife alighted from a bus and walked along a footpath in a suburban street. The appellant drove along the road in his motor vehicle, mounted the footpath and struck the victim with the middle of the vehicle's bonnet. He then drove off without stopping. The victim sustained serious physical injuries including a broken right femur, a broken left ankle, a broken nasal bone and soft tissue injuries. The appellant, who was 50 years of age and had no prior criminal history, was sentenced to 5 years' imprisonment. His application for leave to appeal against that sentence was refused.
In each of the cases I have mentioned the offender was convicted after trial. However, in some of the cases the offender had been charged with attempted murder but convicted of the lesser offence of unlawfully doing grievous bodily harm with intent. Also, there were differences in the mitigating factors available to the offenders.
There is one other case I will mention, namely Eriha v The State of Western Australia [2011] WASCA 167. In that case, the appellant, a relatively young offender, pleaded guilty to five offences of violence against the victim, one of which was an offence contrary to s 294 of the Code. The pleas of guilty were 'indicated' within a short time of the appellant's arrest and were entered at an early stage in the proceedings [40]. At the time of the offending the appellant was aged 22. For the offence in question he was sentenced to 9 years' imprisonment out of a total effective sentence of 11 years' imprisonment. The appellant appealed, alleging this sentence was manifestly excessive and that the total effective sentence infringed the totality principle. Both grounds failed and the appeal was dismissed. Eriha is in a category of its own. The appellant, in company with others, tortured the victim over a period of time, inflicting very serious physical injuries, and left him in the bush alone, without adequate clothing, food, water or shelter, knowing that his health and safety would be endangered. The consequences, both physical and psychological, to the victim were severe. Unlike the present case, the circumstances were found to be in the worst category of cases. The sentencing judge was not bound by the range of sentences imposed prior to the Amendment Act, and it was open to him to impose a sentence at or near the statutory maximum. Accordingly, for the purposes of this case, Eriha can be put to one side.
My analysis of the cases reveals that in serious cases of offences contrary to s 294(1) not in the worst category of cases, the range of sentences customarily imposed after trial has not exceeded 8 years' imprisonment. It is obvious that the sentence imposed in this case is markedly above that range.
That finding does not necessarily lead to the conclusion that the appeal must be allowed. The range of sentences customarily imposed is not the only matter relevant to the question of manifest excess. As the High Court explained in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, while regard must be had to what has occurred in other cases to ensure consistency, the range of sentences imposed in the past does not fix the boundaries within which future judges must, or even ought to, sentence [53] ‑ [54]: McNamara v The State of Western Australia [2013] WASCA 63 [115].
Ultimately, the sentence in each case must be tailored to its own facts and circumstances so that it complies with the requirement in s 6(1) of the Sentencing Act 1995 (WA) that it is 'commensurate with the seriousness of the offence'.
The assessment of the criminality of offences involving the commission of grievous bodily harm will generally include an evaluation of such factors as:
1.the nature of the harm inflicted upon the victim;
2.the nature of the act which causes the harm; and
3.the background to and circumstances of the offence: see Trompler v The State of Western Australia [2008] WASCA 265 [9].
It is beyond dispute that the nature of the harm inflicted upon the victim in this case was severe, life‑threatening and has, on the basis of the unchallenged victim impact statement, radically and adversely changed his life.
The nature of the act which caused the injury was extremely serious. The appellant deliberately drove a motor vehicle at high speed into the victim who was, at the time, riding a bicycle and extremely vulnerable. Very serious injury was inevitable in these circumstances.
With respect to the background and circumstances of the offence, the appellant acted with a degree of premeditation (relating to a short period of time prior to the offence) and out of hostility and anger. He intended to benefit from his actions. He hoped that the injuries he intended to inflict upon the victim would, in effect, enable him to keep his job. However, the appellant was, at the time of the offence, experiencing an overwhelming loss of control over his otherwise disciplined life that had some effect upon his judgment and his ability to think and plan rationally. He was suffering from a mental impairment which was, to some extent, causative of his offending. These factors cannot be overlooked.
The appellant's personal circumstances were favourable. He has no prior criminal history. He does not appear to pose a threat of further violent offending. Personal deterrence was not a relevant sentencing consideration. The evidence before his Honour suggested that the prospects for the appellant's rehabilitation are positive.
I unreservedly accept that the appellant's offending was extremely serious and had severe and very long‑lasting, if not permanent, consequences to the victim. It was conduct which, on any argument, warranted a long term of imprisonment. General deterrence was an important factor despite the appellant's mental impairment. His mental state was not such as to make him an inappropriate medium for making an example to others: Gok v The Queen [2010] WASCA 185 [59] and [60]. Nevertheless, the sentence imposed upon the appellant was markedly outside the range of sentences customarily imposed and is inconsistent with those sentences. This is especially so when it is compared with sentences at the upper end of the range, particularly those imposed in McCormack, Stephens, Petrelis and Minaj.
In my opinion, and with great respect to his Honour, the sentence imposed upon the appellant was manifestly excessive. I would substitute a sentence of 8 years and 6 months' imprisonment which, in my view, properly satisfies the objectives of general deterrence, punishment and rehabilitation of the offender. I would not disturb his Honour's orders for parole eligibility and backdating.
The orders I would make are:
1.The appeal is allowed.
2.The sentence imposed by Keen DCJ of 10 1/2 years' imprisonment is set aside and the appellant is re‑sentenced to 8 1/2 years' imprisonment.
3.The orders made by Keen DCJ for parole eligibility and backdating shall stand.