JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION : UGLE -v- THE QUEEN [2001] WASCA 268
CORAM : MALCOLM CJ
HEARD : 7 AUGUST 2001
DELIVERED : 31 AUGUST 2001
FILE NO/S : CCA 276 of 2000
BETWEEN : CHRISTOPHER RICKY UGLE
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Sentences of imprisonment for 3 years for assault causing bodily harm and 9 years for unlawful wounding with intent to cause grievous bodily harm - Complainant and applicant had been in de facto relationship with one child - Application for leave against total cumulative sentences of 12 years - First offence involved striking with fists - Second offence involved degree of premeditation and stabbing with knife with threats to kill - Need for personal and general deterrence in relation to domestic violence - Cumulative sentence excessive - Reduction to sentences of 1 year and 4 months for assault and 6 years for unlawful wounding with intent to cause grievous bodily harm - Total sentences of 7 years and 4 months would not offend totality principle
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Legislation:
Criminal Code (WA) s 294(1), s 317(1)
Result:
Application for leave to appeal granted
Appeal allowed
Category: D
Representation:
Counsel:
Applicant : Mr R G W Bayly
Respondent : Mr J Mactaggart
Solicitors:
Applicant : Bayly & O'Brien
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Chan (1989) 38 A Crim R 337
Gallegos v R [1999] WASCA 191
House v The King (1936) 55 CLR 499
Jarvis v The Queen (1998) 20 WAR 201
Langridge v The Queen (1996) 17 WAR 346
Lowndes v The Queen (1999) 195 CLR 665
Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007
McCormack v The Queen [2000] WASCA 139
McKenna v The Queen (1992) 7 WAR 455
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 72 ALJR 1416
R v Aloia [1983] WAR 133
Wicks v The Queen [1989] 3 WAR 372
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Case(s) also cited:
Nil
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The facts
1 This was an application for leave to appeal against sentence. On 2 November 2000 the applicant was convicted on his plea of guilty to two of seven counts on an indictment, namely, counts (3) and (7). Count (3) alleged that on 18 December 1999 at Kenwick the applicant unlawfully assaulted Charlene Rose Curtis and thereby did her bodily harm contrary to s 317(1) of the Criminal Code. Count (7) alleged that on 21 December 1999 at Kenwick the applicant with intent to do some grievous bodily harm to Charlene Rose Curtis unlawfully wounded her, contrary to s 294(1) of the Code. The maximum penalty for an offence under s 317(1) is imprisonment for five years. The maximum penalty for an offence under s 294(1) is imprisonment for 20 years. At the same time the applicant pleaded not guilty to the remaining offences alleged on the indictment, which were, count (1), the applicant made a threat to unlawfully kill Ms Curtis. Count (2) was that on the same date and at the same place the applicant unlawfully detained her. Count (4) was that on the same date and at the same place the applicant again unlawfully detained her. Count (5) was that on 21 December 1999 at Kenwick the applicant entered or was in the place of Nicholas George Curtis without his consent, with intent to commit an offence therein. Count (6) alleged that on the date and at the place referred to in count (5), the applicant attempted unlawfully to kill Ms Curtis contrary to s 283(1) of the Code. The pleas of guilty were accepted in full satisfaction of the indictment. The Crown entered a nolle prosequi in respect of the remaining counts on 12 December 2000.
Count (3): Assault causing bodily harm
2 The relevant facts giving rise to count (3) were that the applicant and the complainant, who was then 19 years of age, had been in a de facto relationship for some two years. There was a child aged 1 of that relationship as at 18 December 1999. The applicant telephoned the complainant at her parents' address. They were then separated. The applicant asked that the complainant come back to him. She refused. The applicant then threatened to kill her and her family. The complainant then hung up. The applicant attempted to call her back but she would not answer the telephone.
3 A short time later the complainant left her address with her 1 year old baby to walk to some nearby shops at Kenwick. She was approached
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by the applicant. The applicant repeatedly asked her to go with him to an area behind the shops so that they could talk. The complainant feared for her safety. She refused to accompany the applicant and kept walking towards the shops. The applicant followed her there. When she got to the shops the applicant grabbed her by the hair at the back of her head and forced her through a lane to a school nearby. He then assaulted the complainant by punching her with his fist to her back and head. Counsel for the Crown also stated that the applicant also picked up a piece of wood and hit her numerous times with it to the legs, back and arms. This latter allegation was denied by the applicant through his counsel. Whilst the assaults were being committed, the applicant continued to make threats to kill her. The complainant attempted to run away but the applicant caught her and dragged her back to the school.
4 Eventually, the complainant managed to get away from the applicant. She ran back to the shop. The applicant followed her and prevented her from using the telephone there to call for help. She asked passers-by for assistance, but the offender threatened them. A short time later the complainant's father arrived and rescued her. At that time the applicant repeated his threat to kill the complainant. She was subsequently treated for bruising to her back and arms, as well as for a graze on her leg.
Count (7): Unlawful wounding with intent to cause grievous bodily harm
5 As to count (7), on the morning of 21 December 1999, a Tuesday, the offender telephoned the complainant several times making a request for assistance in relation to his obtaining bail and also making an attempt to resume their previous relationship. At that stage, however, the complainant regarded the relationship as at an end, but the applicant could not accept that it was. The complainant refused the requests. During one of the telephone calls the applicant again threatened to kill the complainant.
6 Later on the same day the applicant went to the complainant's address in Kenwick. He entered the house through an open door. The complainant was at the house with her 13 year old sister. The complainant went to the front door where she saw the offender. She told him to get out. She then attempted to close the front door on him, but he pushed it open and forced his way into the house. The applicant then dragged the complainant into the kitchen area where he opened a drawer and removed a large knife. The knife had a 20 cm blade. The applicant was then heard to say, both by the complainant and her 13 year old sister, "I should have done this a long time ago". The complainant also heard
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him say, "If I can't have you, no-one else can". The applicant then stabbed the complainant numerous times to the chest, back and neck. He also attempted to stab her in the face, although she was able to block that attempt with her hand. At one point during the attack and struggle, the complainant pretended to be dead in an effort to stop the attack. She then became aware of a gurgling sound. When she looked up she saw that the offender had cut his own throat. This resulted in a serious wound.
7 The complainant fled from the house and collapsed on the road outside. She was assisted by a passing motorist and was subsequently admitted to Royal Perth Hospital in a serious condition. She underwent surgery for the injuries sustained in the attack. The applicant inflicted no less than seven stab wounds to the complainant as well as a number of lacerations to her fingers in the nature of defence wounds. There were two stab wounds to the back, two to the neck, one in the chest, one in the stomach, two lacerations to her fingers on her left hand and across her left hand. There were a number of cuts and bruises to her face and all over her body. She was treated in Royal Perth Hospital for a day and a half. While she was in the emergency section, the applicant was in the bed next to her, an experience which she found terrifying. The complainant had ongoing problems with her back and was required to attend physiotherapy twice a week. When she was discharged from hospital she was in a wheelchair and not able to fully look after her daughter.
8 While the applicant was in remand, police officers made a number of telephone calls to the complainant on his behalf indicating that he wished her to visit him. Because she believed that he had attempted to kill her, she did not wish to have any contact with him. After her release from hospital she moved into a refuge for her safety, but her whereabouts were discovered by members of the applicant's family so that she was forced to move.
9 The complainant said that since the stabbing she is unable to use sharp knives and hid them every night for fear of someone coming to the house and using them on her. She has also suffered nightmares which got worse as the date of trial approached. Her daughter was clearly traumatised by the incident which occurred in her presence. Whenever she hears a man raising his voice or arguing, she starts to scream and clings to the complainant, has nightmares and wakes up screaming.
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Sentencing
10 In sentencing the applicant in respect of counts (3) and (7), the learned Judge said:
"The facts surrounding these two counts reveal an extremely serious chapter of criminality.
At the time of these events Ms Curtis, then aged 19, was living with her 1-year-old daughter. You had a relationship with Ms Curtis and you were the father of that child. You and Ms Curtis separated about 2 months before these events but you were obsessed with her and would not leave her alone. On 14 December 1999 you were arrested by the police after damaging Ms Curtis' front door. On 18 December 1999, the date in relation to count 3 on the indictment, Ms Curtis was at home and you rang her at about 8 am wanting to see her. You told her you wanted her back. You told her that you wanted her and the child to return to you.
It was obvious to you that Ms Curtis did not want reconciliation with you and she hung up on you. You kept calling Ms Curtis throughout the course of the morning. Ms Curtis had a shower and went to the shops, taking her daughter in a pram with her. You were obviously waiting for her and you saw her on the way to the shops and followed her. You called out to her but she refused to have anything to do with you. You came up behind her and held the baby's hand while she pushed the pram.
Ms Curtis eventually tried to call a friend on the public telephone but you cut the call off. You grabbed her by the hair and took her to a bench and punched her once in the head. You then obtained a wooden stake and pushed it into Ms Curtis' back and threatened her. You hit her with the stake on the legs, the back and the arms about 10 times and again punched her to the head. Those events constituted count 3 on the indictment. Eventually Ms Curtis got away from you but you pushed her to the ground and only desisted from that assault when her father arrived and you ran away. Ms Curtis went to the police. That assault occasioning bodily harm is a very serious offence and in my view warrants a term of 3 years' imprisonment.
The second and more serious incident occurred on 21 December 1999 when Ms Curtis was at her parents' house with her baby
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and 13-year-old sister Alice in Kenwick. Ms Curtis' parents were at work. You later asked her in a subsequent telephone call to go bail for you but she refused. On that call you threatened to kill her. At about 1 pm you went to the home where Ms Curtis was staying and forced your way into the house. You grabbed Ms Curtis and told her that if you could not have her no-one else could. You took a long knife from the cutlery drawer and stabbed Ms Curtis in the stomach and then in the throat. You tried to stab her in the eye. You repeatedly stabbed her in the arms and body until she fell to the ground. Following that you then cut your own throat.
The complainant believed and genuinely believed that she was about to die. I do not intend to repeat the tragic circumstances outside the house where Ms Curtis was desperately concerned for the safety of the child. Ms Curtis was eventually taken to Royal Perth Hospital where her 10 wounds were treated, one to the left hand, two to the left fingers, where [sic] were apparently defensive wounds, two on the neck, one on the chest, one on the stomach and three on her back. It was extremely fortunate that Ms Curtis did not suffer more serious consequences from the protracted and frenzied attack upon her.
On 7 January this year you were spoken to by police but you exercised your right to remain silent."
11 The learned Judge then imposed a sentence of imprisonment for 9 years cumulative upon the sentence of 3 years imposed in relation to count (3), making a total sentence of imprisonment for 12 years. So far as the second incident was concerned, in imposing the sentence of 9 years the learned Judge also said:
"As you would appreciate, that conduct was extremely serious in the eyes of the law and constituted, as I have said, a protracted and frenzied attack upon Ms Curtis."
12 So far as parole is concerned, the learned Judge said:
"In my view you are only a marginal candidate for parole because of your extensive criminal record. I note that you are now aged 25 and your past criminal convictions run to several pages. They are mainly offences in the Courts of Petty Sessions and appear to involve the consumption of alcohol. In the District Court on 20 April 1998 you were convicted of
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assaulting a public officer and sentenced to 3 months' imprisonment. You have other offences involving violence and violent conduct. The pre-sentence report however indicates that you accept responsibility for your actions and regret your conduct. In addition your previous response to parole has been satisfactory and I take into account your letter which I received this morning and the document attached to it.
As I say, you are only a marginal candidate for parole but because of the length of the sentence and in the hope that you will take some steps to address your own behavioural problems during the course of your incarceration a parole order will be made, thus reducing the period you will spend in custody. You are sentenced to a total period of 12 years' imprisonment to run from 21 December 1999, the date upon which you were taken into custody. In relation to those terms of imprisonment there will be a parole order."
Grounds of appeal
13 The grounds upon which the applicant seeks leave to appeal against sentence are as follows:
"1. The sentence of 3 years imprisonment imposed for Unlawful Wounding was manifestly excessive, having regard to:
2. In imposing the sentence of 3 years imprisonment the Learned Trial Judge wrongly found that:
The Applicant had struck the Complainant 10 times with a stick.
3. The sentence of 9 years imprisonment imposed for Unlawful Wounding With Intent to do Grievous Bodily Harm was manifestly excessive having regard to:
a) the circumstances and background giving rise to the conviction.
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b) the Applicant's demonstrated remorse and a plea of guilty at the first opportunity.
Unlawful wounding
14 The imposition of a sentence is an exercise of judicial discretion. The principles upon which an appellate court must deal with an appeal against sentence were recently re-stated by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007. It is not sufficient that an appellate court may have taken a different approach or imposed a different sentence. It must be demonstrated that the sentencing Judge erred in the exercise of his or her discretion: House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ; Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 at 627 per Kitto J; and see Chan (1989) 38 A Crim R 337 at 344 per Malcolm CJ.
15 In Gallegos v R [1999] WASCA 191 at [28], in a judgment with which Murray and Parker JJ agreed, I said:
"It is now clear that in cases of domestic violence a sentence which gives effect to both personal and general deterrence will normally be called for. The circumstances may be such as to justify a substantial sentence of imprisonment: cf Game v The Queen, unreported; CCA SCt of WA; Library No 970113; 21 March 1997 at 7 per Malcolm CJ, Murray and Heenan J; Smith [unreported, CCA SCt of WA; Library No 980066; 17 February 1998], at 8 per Kennedy, Franklyn and Ipp JJ; Scott v The Queen, unreported; CCA SCt of WA; Library No 990004; 15 January 1999; and Badron v The Queen, unreported; CCA SCt of WA; Library No 990009; 4 March 1999 at 7-8 per Malcolm CJ, Ipp and Anderson JJ."
16 It was contended on behalf of the applicant in support of grounds 1 and 2 that it had been made clear in submissions to the learned trial Judge
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that, while the applicant agreed that he had struck the complainant with his fist, he specifically denied the claim that he had struck her with a stick on a number of occasions, or that he had prevented her from telephoning for assistance. The learned Judge also found that the applicant only desisted from his assault when the complainant's father arrived at the scene.
17 Counsel for the applicant told the learned sentencing Judge that, at the time of the first offence, the applicant had gone out to do some community work and met up with two of his uncles in Gosnells and they got drunk. When he went home there was an argument with the complainant because she would not let the applicant into the house. It was not suggested that her actions were unjustified. The police were called and took the applicant away, as a result of which he was charged. The complainant then moved to her parents' house.
18 The applicant kept telephoning and wanting to speak to the complainant. There were a number of occasions when he was not allowed to speak to her. She told him that she would be happy for him to be in gaol. This caused him anguish because he was concerned that his child would have a new father. He then became depressed and resorted to drinking and taking amphetamines. He was then living at the house of an uncle. He telephoned the complainant on a number of occasions. Eventually the complainant agreed to meet him at a park. Counsel for the applicant told the learned sentencing Judge that, while they were talking at the park there was an argument about drugs. According to the applicant, the complainant wanted some. There was a fight between them and the applicant admitted punching the complainant, although he denied that he hit her with a stick.
19 So far as the allegation that the applicant would not permit the complainant to telephone her father was concerned, counsel for the applicant referred the learned sentencing Judge to a statement made by Mr J C Digwood, the proprietor of the Liquor Baron store in Kenwick, who observed the incident. He said that while he was carrying alcohol to a customer's car he looked over and saw a young fair-skinned woman with a pram holding a mobile telephone. She was upset. He heard her say, "He's gonna stab me with a bottle" or words to that effect. About 15 metres away from her he saw an Aboriginal male about 5 ft 11 in tall with a moustache and in his mid-twenties. His hands were empty and he seemed calm. Mr Digwood said he put the alcohol in the customer's car and turned to walk back into the store. As he did so the woman called out to him to call the police. He told her to use her mobile telephone to do so,
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but she replied that she could not. Mr Digwood waited and watched to make sure nothing happened. After a short time the man walked away toward the Kenwick Primary School. Mr Digwood went back inside his shop and came back two or three minutes later to check on the girl. He found that she was gone. He did not hear the man say anything or see him do anything to the girl.
Unlawful wounding with intent to cause grievous bodily harm
20 Counsel for the applicant also told the learned Judge that the applicant continued to be depressed and continued to attempt to communicate with the complainant by telephone. He got it into his head that her parents were preventing him from seeing her and speaking to her. On the day the offence the subject of count (7) was committed, he attempted once again to speak to her on the telephone from near the Central Law Courts. He subsequently went to the house where she was staying. He did not take a weapon and he had no intention of assaulting her.
21 During the period leading up to this second incident the applicant had been drinking to excess, taking valium and amphetamines, so that he was in an agitated state when he arrived at the house. As the complainant said in her deposition:
"He stood at the front door with an evil look on his face. His face was very red and he was breathing heavily."
22 The applicant's position was that he went into the house. Words were exchanged. The applicant did not remember exactly what it was but he agreed that he did grab the complainant. He went into the kitchen. In a fit of anger the applicant took a knife out of the kitchen drawer and stabbed her. He thought that he had stabbed her three times, but conceded that what was in the medical report was correct. When medically examined later that day, she was found to have one stab wound to her anterior chest wall, two to her posterior chest wall on the left hand side, one in the left upper quadrant of her abdomen, one on her left hand and two on the anterior triangle of her right neck. She did not suffer any loss of consciousness, did not have any facial injuries, nor did she have any leg or pelvic injuries. She did not have any chest pain and was not short of breath. She did not have a cough and she did not have a wheeze. The nature of her injuries was consistent with them having been inflicted as the complainant alleged. Though they were of such a nature as to interfere with her health and comfort, they were not of such a nature as to
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endanger or be likely to endanger life or to cause or be likely to cause permanent injury to health.
23 The applicant then made a very serious attempt to commit suicide and sustained by his own hand a severe cut to his throat. It was common ground that the applicant was lucky to have survived the attempted suicide.
24 Clearly, by his plea of guilty to count (7), the applicant accepted that he intended to do grievous bodily harm. Counsel for the applicant informed the learned sentencing Judge that the applicant had been most concerned for the health and welfare of the complainant. He said that she had visited him in prison since the time of the incident on about seven occasions. Some of these were contact visits, but some were not. She had taken their child out to see the applicant and, until he saw the victim impact statement prepared by the complainant, he thought that there was a prospect of the two of them getting back together. According to the complainant's victim impact statement she was treated in Royal Perth Hospital over a day and a half. While she was in the emergency section the applicant was in the next bed to her. She found this "terrifying". She says that since the attack on her she has had ongoing problems with her back and has had to attend physiotherapy twice per week. She was discharged from hospital in a wheelchair and was unable to fully look after her daughter, who was 2 years old as of November 2000.
25 According to the complainant, while the applicant was in remand, she was telephoned regularly by prison officers and the applicant requesting that she visit the applicant and telephone him. She says that she resented the prison officers trying to pressure her to have this contact. She did not wish to have contact with the applicant because she believed that he had tried to kill her. She says that the applicant's family had found out where she lived and had harassed her since the applicant was arrested. She fears revenge from his family for having him charged. After her release from hospital she had to move into a refuge for her safety. When she got there she found that some of his family were also present so she had to move again.
26 Whenever she hears voices that she recognises as connected to the applicant, she becomes very anxious, shakes and fears that she will be assaulted. Since she was stabbed, she is unable to use sharp knives and hides them every night for fear of someone coming into the house and using them on her. She also suffers nightmares and, as the hearing approached, her nightmares became worse which resulted in making her
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irritable and less tolerant. She says she cannot bear anyone to touch the stab wounds on her neck or body as it makes her feel frightened and gives her flashbacks. The scarring has brought her modelling career to an end.
27 The complainant's daughter was in the house when the stabbing occurred. Now, whenever the complainant or another female goes into the kitchen near the kitchen bench, where the stabbing occurred, she screams and tries to push them away. Her daughter becomes upset whenever she sees a big Aboriginal man, or if she hears a man raising his voice or arguing. She starts to scream and clings to the complainant and will not go. She has nightmares and wakes up screaming. The complainant is afraid that, when the applicant is released, he will make life difficult for her.
28 At the time of sentencing, the applicant had undertaken a drug rehabilitation course and was proposing to do an anger management course. Counsel told the Court that the applicant was concerned about what had happened and that this had been expressed by his early plea of guilty. There was some discussion prior to sentencing regarding the making of a threat to kill the complainant on 21 December 1999. In this respect, reliance was placed on a statement by the applicant immediately prior to the attack on that date, namely, "If I can't have you no-one else can". This was the only evidence relied upon by the Crown as amounting to a threat to kill, apart from a statement made in the course of the commission of the offence when the applicant said, "I should have done this a long time ago". The complainant then said, "Okay, you've got me, I'm dying". She then pretended to be dead.
29 It was contended by counsel for the Crown before the learned sentencing Judge that the fact that the applicant cut his own throat added to the seriousness of the offence by virtue of its impact upon the complainant. While the complainant's 13-year-old youngest sister had been present when the applicant arrived, she fled from the house with the complainant's 1-year-old baby before the first wound was inflicted. The baby was taken next door, but both the applicant and the complainant were unaware that this had occurred.
30 Prior to sentencing the applicant the learned Judge obtained a pre-sentence report and a psychological report.
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Ground 2: Use of stick
31 It is convenient to deal with ground 2 of the grounds of appeal first. In my opinion, given that the applicant clearly denied and contested the assertion that he had struck the complainant 10 times with a stick, the learned Judge was in error in proceeding to make a finding about that matter without first taking evidence on a trial of the issue. In Langridge v The Queen (1996) 17 WAR 346, a case heard by this Court constituted by five Judges, Kennedy J said at 367:
"Having reviewed the authorities, I have concluded that the general rule should be that it is for the Crown to prove beyond reasonable doubt the facts going to sentence and which, if found, would be likely to result in a more severe sentence than would otherwise be the case. Clearly, however, just as in the course of a trial, not all facts in the sentencing process need to be proved beyond reasonable doubt: see Shepherd v The Queen (1990) 170 CLR 573. The rule which I favour accords with the preponderance of authority and the approach appears to me to be correct in principle. In particular, it accords I believe, with the majority view in the High Court in Anderson v The Queen [(1993) 177 CLR 520]. I do not consider that Deane, Toohey and Gaudron JJ were limiting their observations to the position in South Australia. In fact, they cited authorities from the Australian Capital Territory and New South Wales in support of their view. It should certainly not be the case that differing rules should continue to be applied as between the various States and Territories. Accordingly, in my view, the decision in Liu v The Queen [(1989) 40 A Crim R 468] should not now be followed."
Kennedy J went on to say at 367:
"The application of the suggested rule avoids the anomalous situation which would otherwise arise in relation to circumstances of aggravation. If pleaded, circumstances of aggravation are required to be found beyond reasonable doubt. If not so pleaded, on the authority of Liu v The Queen [(1989) 40 A Crim R 468], the circumstances may be found on the balance of probabilities. However, in practice, the consequences from a sentencing point of view will almost certainly be the same: see Criminal Code, s 656. The occasions on which it is necessary to resort to the higher maximum
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penalty which a proven circumstance of aggravation which has been pleaded carries with it are extremely rare.
It is unnecessary for the disposal of this appeal to express a view as to the proof of facts put forward by the defence in mitigation, as to which, however, see R v Aloia [[1983] WAR 133] (at 136)."
32 In R v Aloia [1983] WAR 133 the respondent was convicted on his plea of guilty to an offence of unlawful wounding. He was discharged on a bond to come up for sentence if called upon. The Crown appealed against the sentence under s 688(2)(d) of the Criminal Code claiming that the sentencing Judge had erred in law in failing to reflect the deterrent aspect of the sentencing process. There had been no preliminary hearing and counsel for the Crown had stated the facts to the Judge pursuant to s 617(a) of the Code. In stating such facts, counsel for the Crown did not specifically allege premeditation or deny provocation. In a plea in mitigation counsel for the defence brought evidence of good character, alleged provocation and denied premeditation by the respondent. The statement of facts in mitigation was not disputed before the sentencing Judge. On appeal, counsel for the Crown endeavoured to dispute the facts stated by defence counsel and to allege premeditation. It was held by this Court that facts extending beyond the elements of the offence stated by counsel (whether for the Crown or the offender) when challenged require evidence to support them. When a matter of mitigation is asserted by counsel for the offender in mitigation, that fact may be accepted by the sentencing Judge, if not challenged by the Crown. It was also held that, except "in truly exceptional circumstances", counsel for the Crown on an appeal may not allege additional facts in aggravation.
33 In my opinion, ground 2 of the grounds of appeal has been clearly made out. It was not open to the learned Judge to find that the applicant had struck the complainant 10 times with a stick otherwise than after a trial of the issues in that respect. This course was not followed. In regard to the deposition of Mr Digwood, I do not consider that any useful purpose would be served by submitting the issue to the learned Judge for re-consideration. In my opinion, it would be consistent with the interests of justice for this Court to re-sentence the applicant. Taking into account all of the circumstances as I have described them, it is apparent that the sentence originally imposed was manifestly excessive. In my opinion, while this was a serious assault, it did not warrant a sentence of imprisonment of 3 years. Having regard to all the circumstances and the plea of guilty, an appropriate sentence for the initial assault without the
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unproved circumstance of aggravation would be a sentence of imprisonment for substantially less than 3 years. The alleged beating with the stick was a serious circumstance of aggravation in the context of this offence. It could have been charged as a separate offence. In my opinion, the sentence imposed by the learned Judge should be set aside. I shall return to the question of what sentence should be substituted for it. In these circumstances it is unnecessary to say anything further at this stage regarding ground 1 of the grounds of appeal.
Ground 3: Sentence of imprisonment for 9 years manifestly excessive
34 It was contended in support of ground 3 of the grounds of appeal that the sentence of imprisonment for 9 years for unlawful wounding with intent to do grievous bodily harm was manifestly excessive, having regard to the circumstances and the background giving rise to the conviction and the applicant's demonstrated remorse and plea of guilty. There can be no doubt that the attack by the applicant armed with a knife was a pre-meditated, vicious attack which could have resulted in the commission of a more serious offence. The life of the complainant was clearly at risk. During the attack the applicant said things such as, "If I can't have you, no-one else can". It was a terrifying attack involving the infliction of a number of wounds. The complainant's 13-year-old sister was present when the attack commenced, but she fled from the house with the complainant's baby before the first knife wound was inflicted. It is important to bear in mind that the intent alleged was an intention to cause grievous bodily harm. It was not alleged that there was an intention to kill. At one point, however, the complainant said, when stabbed with the knife, "Okay, you got me. I'm dying".
35 In the context of manslaughter where the maximum is imprisonment for 20 years, it has been held that a penalty at the upper end of the range is warranted though the offence is one coming quite close to the offence of murder: cf Wicks v The Queen [1989] 3 WAR 372 at 378 - 382 per Malcolm CJ. In that case it was submitted that certain earlier authorities had established a "tariff" of 10 to 12 years' imprisonment for the "worst category" of manslaughter. That submission was rejected: see per Malcolm CJ at 380 - 381; Wallace J at 389 - 390; and Brinsden J at 391 - 393. The effective sentence in that case was imprisonment for 15 years.
36 In McKenna v The Queen (1992) 7 WAR 455, the applicant, when aged 18, stole a motor vehicle and used it while under the influence of drugs. He was identified by two police officers who requested him to stop. In order to avoid the police officers, the applicant drove away at
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very high speed. After colliding with three cars the applicant's vehicle collided with a pushbike. The rider of the pushbike was fatally injured as a result of the collision. The applicant had previously been convicted of numerous offences relating to the use of motor vehicles as well as breaking and entering offences. The applicant had an emotionally traumatised background and a long history of anti-social and addictive behaviour. By a majority (Seaman and Ipp JJ), this Court refused an application for leave to appeal against sentence of imprisonment for 8 years based upon the degree of criminality involved and the need for general deterrence having regard to the circumstances of the offence. In that case, the age of the applicant, who was 18 when the offence was committed, was a factor requiring a very substantial sentence reduction. There was also required to be a modest reduction for the applicant's plea of guilty and demonstration of remorse. However, the applicant's antecedents, notwithstanding his emotionally deprived upbringing, and having regard to prior offences, did not favour any sentence reduction.
37 In the present case, it is important to bear in mind that the mere fact that a crime occurs in a domestic context is not a mitigating factor: Gallegos v R, supra, at [11] per Malcolm CJ.
38 Counsel for the Crown drew attention to the fact that count (7) on the indictment had originally been pleaded as an alternative to count (6) which was that the applicant had committed the offence of attempted murder under s 283(1) of the Criminal Code. In McCormack v The Queen [2000] WASCA 139 a sentence of 8 years was held by Kennedy J to be at the higher end of the scale. That case was also one of doing grievous bodily harm with intent. It involved nine stab wounds, seven of which were superficial and two of which penetrated to a depth of 3 cms. One of these penetrated the cavity between the chest wall and the lung of the complainant leading to a tension pneumothorax. The weapon was a steak knife with a serrated edge. The complainant struggled and flailed her arms and legs in an attempt to defend herself. She then ran from the room. Just before she reached the door she was stabbed in the back of the neck. The first of the wounds was potentially fatal. While holding that the sentence was at the top end of the range for unlawful wounding, Kennedy J (with whom Pidgeon and Ipp JJ agreed) concluded at par 29 that it was not a sentence which justified any interference by the Court of Criminal Appeal merely because the Court would have exercised its discretion differently: cf Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
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39 It was also submitted on behalf of the applicant that the learned Judge erred in failing to take into account the fact that the applicant had pleaded guilty at the first realistic opportunity and his demonstrated remorse. The remorse was said to be contained in a letter written by the applicant. That letter, however, contains an assertion that the complainant has "wholly forgiven" him for what he has done and was visiting him in gaol. This was, at best, an inaccurate statement.
40 It is important to bear in mind that in relation to each of the offences, there was in effect an early plea of guilty. Section 8(2) of the Sentencing Act 1995 provides that:
"A plea of guilty by an offender is a mitigating factor and the earlier in the proceedings that it is made or an indication is given that it will be made, the greater the mitigation."
Section 8(4) provides that:
"If because of a mitigating factor a court reduces the sentence which would otherwise have been imposed upon an offender, the court must state that fact in open court."
41 On a number of occasions this Court has stressed the importance of bringing home to offenders and others that there has been a discount given for an early plea of guilty, as well as the desirability of identifying the extent of the discount. This is, of course, of particular relevance in the District Court.
42 Counsel for the applicant informed the Court that under the fast-track system which operates in the District Court, it would be very rare that a Judge did not articulate what reduction was being given for a fast-track plea. In my opinion, this practice is commendable. It is also reflected in the vast majority of cases in the Supreme Court. In my opinion, an appropriate starting point for the sentence the subject of count (3) would have been imprisonment for 2 years. The applicant was entitled to a discount for his plea of guilty and all other matters in mitigation in the order of one-third. This would reduce the sentence to one of 16 months having regard to the applicant's antecedents. The applicant had a significant record, and there was little else by way of mitigation. In my opinion, an appropriate sentence, therefore, would have been one of imprisonment for 1 year and 4 months in respect of count (3).
43 So far as count (7) is concerned, I consider that a starting point of 12 years was excessive. In my view, a starting point of 9 years would
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have been appropriate. The position was that the applicant was prepared to plead guilty to count (7). The Crown had to be persuaded to accept that plea in full satisfaction of the count of attempted murder as well as to accept the plea to assault causing grievous bodily harm in full satisfaction of all of the other counts on the indictment. In the circumstances, the applicant was entitled to a discount on account of his plea of guilty and all other mitigating factors. It is noted, however, that the applicant had an extensive record and was assessed as posing a significant risk of his re-offending, particularly if he continues to abuse amphetamines. It was considered that it would be appropriate for him to undertake prison-based Alternatives to Violence programmes so that he can develop more appropriate strategies in resolving conflict in his relationships. He also needed to take part in drug and alcohol education programmes as well as vocational skills training which may give him a sense of purpose and direction when in the community. It was also recommended that, if possible, when released into the community, he be appointed a mentor to assist in organising and fulfilling a purposeful lifestyle. In my opinion, an appropriate discount would have been one-third to 6 years on account of the plea of guilty and all other circumstances in mitigation. This would produce a total sentence of 7 years and 4 months if the sentences were to be served cumulatively. In each case, however, there is very little that can be said by way of additional mitigation. Notwithstanding that the applicant has had a series of relatively minor convictions, he was not sentenced to any term of imprisonment until 1996 when he was 21 years of age, when he was sentenced to imprisonment for 14 months for stealing a motor vehicle. Following his release from prison from that sentence, he has been sentenced to short terms of imprisonment for a series of relatively minor offences, although I note that he was sentenced in the District Court on 20 April 1998 to 3 months' imprisonment for assaulting a public officer.
44 In my opinion, the total sentences of imprisonment for 12 years imposed by the learned sentencing Judge infringed the totality principle, but it could not be said that a total sentence of 7 years and 4 months would do so. Given the individual sentences to which I have referred, there is now no room for the application of the totality principle. As stated in Jarvis v The Queen (1998) 20 WAR 201, if two or more sentences are imposed at the same time and directed to be served cumulatively, the Court is required to determine whether the total term is properly proportionate to the totality of the criminal behaviour involved. This may require a reduction of the total term, although the individual
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sentences are entirely proper in themselves. As Ipp J said in Jarvis v The Queen, supra, at 207:
"… the reason for such a reduction is that the severity of the term of imprisonment increases exponentially as it increases in length."
45 In my opinion, it is appropriate that the sentences which I consider should be imposed in the present case be served cumulatively. Taking a last look at the sentences, I do not consider that their combined effect could be crushing or otherwise require a further reduction on account of the totality principle: cf Mill v The Queen (1988) 166 CLR 59; and Pearce v The Queen (1998) 72 ALJR 1416 at [45].
46 For these reasons, I would grant the applicant leave to appeal against sentence, allow the appeal, set aside the sentences imposed by the learned sentencing Judge and substitute sentences of 1 year and 4 months in respect of count (3) and 6 years in respect of count (7). Those sentences are to be served cumulatively, making a total of 7 years and 4 months. In my opinion, while the learned Judge considered that the appellant was only a marginal candidate for parole, by reason of his extensive criminal record, it needs to be borne in mind that he was 25 years of age at the time of sentencing. While he has previous convictions for offences of violence, the pre-sentence report indicated that the appellant accepted responsibility and expressed regret for his conduct. His previous response to parole has been satisfactory. The order for eligibility for parole should stand.
47 STEYTLER J: I have had the advantage of reading the reasons for decision to be published by the Chief Justice. I agree with them and have nothing to add.
48 BURCHETT AUJ: I agree with the orders proposed by the Chief Justice, and with his reasons.