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CARRICK -v- THE STATE OF WESTERN AUSTRALIA - (22 Sep 2017)

An Appellate Court can only intervene if the Appellant demonstrates either an express or implied material error

Criminal

Present is an appeal against sentence. The Appellant and two others, Aaron Clifford Pierotti and Rhannan Ngaire Martinac, were charged that on 21st February, 2016 at Redcliffe they did grievous bodily harm to Mark Anthony Waghorn, contrary to Section 297(1) of the Criminal Code (WA) (the charge). The sentencing judge entered a judgment of conviction and held that, the only appropriate penalty was a term of imprisonment. Having regard to the seriousness of the offence, he declined to suspend the term he imposed, either with or without conditions. Appellant alleges that, sentence was manifestly excessive

The general legal principles applicable to appeals against sentence are well known and uncontroversial. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. Express error usually involves mistaking the law or facts or taking into account an irrelevant factor. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate Court would have exercised a sentencing discretion differently.

The Appellant was sentenced on the basis that, he was culpable for the injuries suffered by the victim, which constituted grievous bodily harm, being the fractured facial bone and the severely lacerated lip. This finding was not open to his Honour, in light of the Appellant's plea of guilty to the lesser charge of assault occasioning bodily harm and the State's express position that, the Appellant was not criminally responsible for the grievous bodily harm suffered by the victim. The error was material to the exercise of the sentencing discretion because it resulted in the appellant being sentenced on a more serious basis than he should have been. This court's discretion to re-sentence the appellant has been enlivened.

The maximum penalty for assault occasioning bodily harm, in circumstances not involving aggravation or racial aggravation, is 5 years' imprisonment. The Appellant had no legitimate reason to be at the Redcliffe house. Any dispute between Ms Walker, on the one hand, and Mr Pierotti and Ms Martinac, on the other hand, was none of his concern. He entered onto the premises in company and in circumstances where he and the co-accused were plainly not welcome. The victim offered no provocation to the Appellant. The Appellant's assault on the victim was preceded by him throwing objects at the victim. The Appellant effectively backed the victim into the shed, limiting his options to escape, thus increasing his vulnerability. The Appellant punched the victim, not once, but five times. The Appellant continued to punch the victim after he fell to the ground. The victim suffered injuries to his nose and mouth which bled.

General deterrence is a matter of importance in this case. This was, in essence, an unprovoked and serious assault. It did not occur on the spur of the moment and there is nothing whatever to have justified the appellant's presence in company at the Redcliffe house. Having regard to the seriousness of the offence and notwithstanding the mitigating factor, Court is satisfied that only a term of imprisonment can be justified in present case. The appropriate sentence to be imposed is 14 months' imprisonment. Accordingly, the Appellant should be resentenced to 14 months' immediate imprisonment for the offence of assault occasioning bodily harm. That sentence should be backdated to commence on 2nd June, 2017. The Appellant is to be eligible for parole. He will be eligible to be considered for release on parole on and from 2nd January, 2018. The appeal is allowed. The sentence imposed by Sentencing Judge is set aside. In lieu thereof, the Appellant is sentenced to 14 months' immediate imprisonment back dated to commence on 2nd June, 2017, with eligibility for parole.

Tags : SENTENCE   QUANTUM   LEGALITY  

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