Assault occasioning bodily harm - PDF document

AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 Assault occasioning bodily harm s 317 (1 ) Criminal Code From 1 January 2014 Transitional Sentencing Provisions: This table is divided into thirds based on the three relevant periods of Sentencing Provisions: - Post - transitional provisions period - Transition al provisions period - Pre - transitional provisions period These periods are separated by a row which shows when the transitional provisions were enacted, and another showing when they were repealed. Glossary: imp imprisonment susp suspended PG plead guilty a gg a ggravated b urg b urglary AOBH a ssault occa sioning bodily harm GBH g rievous bodily harm d ep l ib d eprivation of liberty a tt a ttempted c t count TES total effective sentence EFP eligible for parole VRO violence restraining order sex pen s exual penetration without consent AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 No. Case Antecedents Summary/Facts Sentence Appeal 29. Panicciari v The State of Western Australia [20 20 ] WASCA 1 5 4 Delivere d 17 /09/2020 28 yrs at time offending. 30 yrs at time sentencing. C onvicte d after trial . C riminal histo ry; prior conviction threats to injure and agg common assault involving assault on previous partner. El dest of three children; positive childhood and upbringi ng . Reasonable education; left school yr 10 . Good employment history; financia ll y assists his f ather . Three significant relationships; current partner pregnant with their first child at time sentencing. Good physical health; no substance abuse issues; depression and bipolar disorder; expressed suicidal ideation. Ct 1: Agg burglary . Ct 2 : AOBH. P a nicciari and Ms Brown ( the co - offender ) were in a relationship. The victim was Ms Brown ’ s former partner. Panicciari and Ms Brown went to the victim ’ s home . T hey spoke with the victim at the front door and p ushed t heir way into the house . Panicciari and Ms Brown claime d the victim had been harassing Ms Brown ’ s family and they told him to stop. T he victim went to call the police , but Panicciari s n a t ched his phone . The victim immediately snatched i t back. Panicci ari started punching the victim , continuing to assault him as he pushed his way further into the h ouse. He p unch ed the victim to the face, head, neck and back. One of the pu nches caus ed the victim to drop to his knees. Ms Brown joined in the assau lt, pun ching and kicking the victim while he was on the ground. A short time later Panicciari and Ms Brown left , taking with them a baseball bat Ms Brown had picked up inside the home during the assault . The victim was punched up to 40 times, w ith at least 90% of those punches being thrown by Ct 1: 2 yrs 6 mths imp. Ct 2 : No penalty. TES 2 yrs 6 mths imp. EFP. Ms Brown : Ct 1: 2 yrs imp conditionally susp18 mths. C t 2: 6 mths imp ( conc) conditionally su s p . The sentencing judge found the offending was serious; it was unplanned and unprovoked ; there was no reasonable explanation for it, o ther than po ssib le revenge or retribution ; both o ffenders were equally culpable in they willingly and toget her entered the victim ’ s home without consent and assault ed him . The sentencing judge found Ms Brown ’ s crimina lity was less than that of the appella nt; with regard to ct 2 she was Dismissed. Ap peal concerned parity principle and length of sentence (ct 1) . At [37] … the di fferences between the sentences imposed on the appellant and Ms Brown are not capable of giving rise to an objectively justi fiable sense of grievance on the appellant ’ s part. At [46] The appellant ’ s offending was a serious ex ample of an ag g home burglary. He forced entry into the victim ’ s home, knowing it was occupied, for the purpose of intimidating the victim, and inflicted a sustained attack on the victim which resulted in p hysical and psychological harm. … The criminality involved i n the offending dema nded a su bstantia l term of immediate imp. At [48] … in our view, the length of the term of imp AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 Panicciari . He suffered a broken nose, black eye s and bru ising and abrasions . sentenced on the basis that she was an aider; sh e delivered fewer blows; the blows she did deliver were not for ce ful and did not cause bodily harm; she withdrew from the altercation; she PG and received a 15% discount; she e xpressed remorse and had no prior cr iminal history. Victim physically scarred; continues to suff er psychological consequences of the offending ; suffered financially . No t remorse ful ; continued to deny the offending ; low risk of reoffending. imposed on the appellant was lenient. It is not reasonably arguable that the sen tencing jud ge erred in being positively satis fied that it was inappropriate to s uspend or conditi onally susp the term of imp. 28. Dunbar v The State of Western Australia [20 20 ] WASCA 90 Delivered 11/06/2020 37 yrs at time offending. Convicted after early PG (20% discount). Extensive cr iminal histor y WA ; NSW and QLD ; numerous con victi on s for serious offences, many involving violence; lengthy periods Ct 1: GBH with intent. Ct 2: AOBH. Dunbar wa s wit h the vi ctim , Mr F, and two female s in the cou rtyard of a motel . H e made advances towards one of the females , which were rebu ff ed . Mr F told him the woman was not interested in him . Dunbar left the courtyard and returned about 5 - 10 min utes later wit h a knife, con cealed on Ct 1: 10 yrs imp (cum). Ct 2: 6 mths imp (cum). TES 10 yrs 6 mths imp. The sentenc ing judge found the appellant ‘ a very dangerous man ’ and the of fending ‘ exceptionally serious ’ ; the attack on Mr F was Dismissed. Appeal concerned length of sente nce ct 1 and error in irrelevant co nsidera tion ( finding appellant should have been charged with att murder ) . At [6 5 ] It is crystal clear AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 of a dult life in prison. P arents separated when young; lived with his father; only occasionally saw his mother ; h ighly d ysfunctional upbrin ging; suffere d from and witnessed various ki nds of abuse; circumstances of very significant domestic violence; close with paternal grandmother who di ed when he was aged 15 yrs. F requently changed school s; left aged 16 yrs; struggled socially and academica lly. History of alcohol and illicit substan ce abus e; c ommenced taking drugs aged 16 yrs; methyl drug of choice. History of severe personality disorder; d eteriorating mental health at time offending; his person. W ithout w arning he embarked on a frenzied attack on Mr F , stabbing him with the knife a number of times to his neck and back. The force of the blows caused the knife bla de to break off its ha ndle . He continued to strike Mr F with th e handle. Mr F bled profusely from in juries to his neck. He suffered serious and life - threatening injuries and required surgery . Shortly after the attack he told the manager he had stabbed Mr F and he hoped he di ed. He then fled t he scene . At a nearby s ervice station he got into the back se at of a vehicle parked at a petrol bowser. He told t he victim, Mr G, who was seated in the front passenger seat , to let him into the car , that he had just stabbed someone and that he would stab him too. When the car owner approached Dunbar got out of the car and asked the owner for a lift . W ithout warning or provocatio n, he then punched Mr G once in the face. Dunbar fled the scene. completely unprovoked; p remediated; extraordinarily disproportionate and he intended to ca use life - threatening harm. The se ntencing judge found the appellant was menta lly unw ell at the time of offending and he may hav e been psychotic . No remorse shown ; very limited insight into his of fending and v ery high risk of future violent offending . from … his Honou r ’ s sentencing remarks that the appellant was sentenced consistently with the elements of the offence in the indictment, … He was not s en tenced on the basis that he intended to kill Mr [F]. At [73] … His Honour ’ s characterisation of the offending as ‘ exce ptionally serious ’ is entirely apt. … At [75] The offence was comp letely unprovoked and was premediat ed. … this can fairly be described as a ra ndom and senseless attack. The appellant armed himself with a dangerous weapon, a knife, which he concealed. Mr [F ] was seated with his back to the appellant. He was unaware that the appellant was behind h im. The a ttack occurred AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 suicida l. without any warning to the victim, who was not in a position to defend himself. The victim could hardly have been more vulnerable. The stab bing was not prolonged, but it was ferocious. At [77] … th e ap pellant forcibly and persisten tly stabb ed at the victim ’ s neck and upper b ack num erous times. [He] intended to inflic t life - threatening injuries to Mr [F]. His actions had their intended conseq uence. Fortunately for the victim, the blade of the kni fe broke off its handle early in the a ttack, re ndering the appellant ’ s further blo ws less effective. At [78] The appellant fled the scene without showing the slightest concern for the man he AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 had just stabbed . … At [79] The injuries infli cted by the appellant could have easily killed the vict im. Mr [F ] required intensive medical treatm ent to ensure his surviv al. His physical r ecovery was prolonged and the adverse physical and psychological consequences of the attack are significant an d ongoing. At [106] … the sentence imposed … , while undoubt edly high , was not, in our opinion, manifest ly exce ssive, having regard to the exceptionally serious circumstances of the offending, the effect of the offending on the victim, the need to provide general deterrence and, importantly, to protect the public. … AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 27. Kelly v The State of Western Australi a [20 2 0 ] WASCA 29 Delivered 06/03 /20 20 2 5 yrs at time sentencing. Convicted after early PG (25% discount). Prior crimina l history ; no pas t violent offending . Dysfunctional and di fficult upbringing ; raised by single mother who had substance abuse issue s; witn ess to domest ic violence ; a buse d from aged 8 yrs . Contact with his father and five younger half - siblings as an adu lt ; fath er died few y rs before sentencing. Did not complete high school; educat ion disrup ted by fr equent moves; completed sev eral edu cation a l programs whil st serving a p rior sentence of imp . Six yr relationship ; two young children; f in ancia lly s upporting f amily and sister - in - law , who requires a high degree of care ; family supportive . C t 1: Ag g burglary. Ct 2: AOBH. The victi m sent K elly a number of text mess ages , b laming him f or the death of a mutual friend . This incited Kelly to confront the victim. He and his co - offender, who had both been d rinking , walked to the victim ’ s home . Kelly knocked on the victim ’ s door and , together wit h the co - offe nder , pushe d him ins id e. Once inside Kelly and the co - offender immediately del ivered a flurry of punches to the victim ’ s face and body. The victim was punched and kicked multiple tim es . Kelly punched the victim in the m outh wit h his clenched fist and the co - offende r, who wa s wearing knuckledusters, punched him in the face twice. W hile the v ict im was on the fl oor Kelly put him in a chokehold, while the co - offe nder struck him with the wooden l eg from a table, broken durin g t he at tac k . The vic tim managed to fl ee his home , but t ripped . He was furthe r assaulted by the co - offender , who smashed a terracotta pot over his head. The victim then ran to a neighbo uring h ome calling for help. Three people came to his aid . The co - off ender ag ain punched th e vict im while we aring knuckled us te rs . Kel l y put the victi m in a chokehold, restricting his breathing, telling him he C t 1: 3 yrs 6 mths imp (cum) Ct 2: 6 mths imp ( cum). TES 4 yrs im p. The sen tencing judge observed the appe llant a nd his co - o ffender were equally culpable for the attack . The senten cing judge found t he appellan t went to the victim ’ s ho me with the intenti on of a ttacking him; the attack was sustain ed and continuing and with a ‘ level of ferocity ’ an d ‘ des ire to i nflict hurt an d pa in ’ ; he continue d the attack outside the victim ’ s home , i n the presence of witnesses. The sentencing judge f ound the vi ctim ’ s inj u ries w ere o n the ‘ high end ’ of bodily harm and in volved an invasion of his home . The sentencing judg e foun d the offendin g ‘ s imply t oo serious ’ for Di sm issed. Appeal concern ed total ity prin ciple ; l e n gth of sentence (ct 1) ; type of sent ence ( cts 1 & 2) and error in failing to apply s 1 1 of the Sentencing Act 1995 ( ct 2 ). At [29 ] - [30] … s 11 is engaged if, and only if, th e evidence necessary to establish the commission of one offence establishes, wit ho ut more, all elements of, and thus the commission of, ano ther offence. … The agg burgl ary offence required evidence that the assau lt occu rred while the appellant was in another person ’ s place without consent. The offence of AOBH required additional evide nc e as to the element of bod ily harm. Thus, s 11 d id not ap ply. At [ 43] … Th e appellant ’ s offence was in the more serious category of a vi olent home invasion. AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 C omplet ed occupational trade courses; FI FO wor ker a t time offending. Long his tory of substa nce abuse, a lcohol a nd ca nnabis use from aged 12 yrs ; methyl use from aged 18 yr s ; almost drug free . T rauma tized by the death of a friend ( su bject of text messages) ; o n o wn initiative u ndergoing c ounselling and tre atment for depression ; anx iety and PTSD. was going to die and that he would slit his thr oat if he said anything. The victim was hospit alised. His teeth were knocked out of a lignm ent and the bone plate around h is t eeth wa s fractured, requiring a splint. He also rece ived serious lacerations to his mo uth and cuts and bruises all over his body. the sentence to be susp ended . The offending resulted in the vi cti m suffering physical , financial and emoti onal ha rm ; in cluding anxiety and difficult ies with speaking and sleeping. At [46] Giving full weight to the appellant ’ s dysfuncti onal backgro und and hi s lack o f prior vi ol en t offending, the appellant has fallen well short of dem onstrating that his sentence … for the agg home burglary offence was mani festly excessive. His offence was a planned and sustained violent attack on a person in their ho me, involv in g the use of wea po ns and causing significant and enduring harm. … At [49] … In o ur opinion, it was not only open, but was appropriate and necessary to imp ose a degree of accumulation in respect of ct 2. The appellant and his co - off ender contin ued their as sault upon the v ic ti m after he had escaped from his house. Thei r sustained assaul t upon the victim cause d him bod ily harm. At [50] … The judge obse rved, w ith respect correctly, that the AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 appellant ’ s offendin g was ‘ simply too serious ’ for the se ntence to be suspe nded. 26. Hansen v The State of Western Australia [2019] WASCA 1 70 Deliv er e d 0 1 /1 1 /2019 31 yrs at time offending. Convicted after PG (20% discou n t). Lengthy criminal h istory; prior convictions for violent offending. Rea sonably s table, secure ; h appy childhoo d ; devoid of abuse. Completed yr 12. Good employment history ; labouring po sitions; recent unemp loyment , citing a back injury. Suffer s seizu res; evidence of epilep sy; rece ivi ng treatment. History of methyl and alcoh ol abuse. Ct 1: Agg AOBH. Ct 2: Agg GBH. The victim , A, was aged 36 yrs . She and Hansen were in a f amily relationship . The vict im , T, was aged 67 yrs and Hansen ’ s neighbou r . Han sen made abusi ve and de rog at ory co mment s to A as they walked along the stree t . A walked away . Hanse n ran up to A fr om behind , grabbed her hair and punched her in the face and head . She fell to the ground . He then stood o ver her and punched , kicked and ra cially i nsult ed her . T he c ommo tio n caused several residents to c o me out of their homes . Fearing for A ’ s safety and w elfare T , armed with a wooden implement , app roached Hansen and yelled at him to stop . H ansen threw a single punch, stri king T i n t h e jaw . The blow knock ed T unco nscious and he fell backwa rds , causing him to hit the back of his head on the roadway. Hansen then pic ked up the wooden implement and resumed his assaul t upo n A, hitting her in the ribs with great force. Ct 1: 2 yrs 6 mths im p (cum). Ct 2: 4 yrs imp (cum) . TES 6 yrs 6 mths imp. EFP. The sent en cing judge chara cterise d the appellant ’ s overa ll beha viou r as ‘ extremely viol ent ’ and he subjected the victims to ‘ a terrify ing ordeal ’ . Th e sentencing judge found the assault on A was persistent in nature and the assault on T , which had the potential to result in his de ath , ha d ph ysical and psycholo gic al conseque nce s . The sent encing judge acknowledge d the offences occurred o ver a relatively brief period of time, but involved t wo victims in two sepa rate Dismissed. Appe al concerned totality pri nciple. At [26] … each offence was plainly a serious offence of its type. The appellant ’ s actions were borne out of anger and were completely unjus tified . The offences were comm itt ed in an or dinary suburban street , in the view of householders. Both victim s were vulnerabl e. A was no physical match for the appellant, and T was muc h older than him. The attack on A was brutal, sustained and merciless. … To the appellant ’ s knowledge, A m ay have bee n pregnant. At [27] … the offence comm itted against T involved a single punch, … delivered to T ’ s face with s u ch force as to cause facial fractures a nd immediately ren der him AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 Hansen eventually fl ed the s cene. He was arrested a short tim e later. A was take n to hospital and trea ted for pain and abrasion s. She was fortu nate not to have suffered fracture d ribs. T suffered facia l fractures and bleeding on h is brain. He required surgery . He continued to suff er adverse side effects from h is i njuries, includ ing p oor short - term memory ; headaches and disruption to his senses o f taste and smell. attacks. Co - operative ; expressed regret and rem orse; l im ited insigh t into his offending behaviour ; h igh risk of violent reoffe nding. u nconscious. It cannot be ov erlooked that T had acte d to protect A by attempting to prevent the appellant ’ s continuing assault upon her. Instead of desisting … the appellant escalated the situation and punched T. The co nsequences to T … have been v ery s ignificant. … At [31] … t he TES impose d … was entirely appropriate, hav ing regard to all of the r elevant circ umstances an d all of the relevant sen tencing factors. … 25 . B rindley v The St ate of W estern Australia [2019] W ASCA 1 5 3 Deliv er e d 0 4/10 /201 9 34 yrs at time offending. Convic ted after PG (20 % disc ount). Prior cri min al h istory; no history o f violent offending; prior sent ence of imp . Until incident subject of ap pea l has not re - off ended si nce release from prison in 2008. Completed yr 11. Ct 1: Agg burg . Ct 2: AOBH. The vi ctim , Na talie, was at home with he r four children ( aged 18, 15, 12 and 3 yrs) . V isiting the home w ere the v ic tims, D illo n ( 19 yrs ) a nd hi s c ous i ns Bra y den ( 21 yrs) an d Brodie (19 yrs) . Dill on an d B r ayden left th e h ouse to walk to the sh ops . On the way the y were c onfronted by a man who acc used Dillon of br eaki ng into his car. A fter a verbal altercation they con ti nued t o the shops and r eturn ed to t he hous e . On arrivi ng back at the house a uti lity arrived at the addre ss . Brindley and three ma le co - offenders C t 1: 3 yrs 6 mths imp (cum) . C t 2: 6 mths imp (cum) . T ES 4 yrs imp. E FP. T he senten cing judge found t he seriousness of the offe nding made a ter m of imp the only appropriate dispo sition. Th e sentence judge f ound t he app ellan t used Di smiss ed. A ppeal con ce rned l e n g th o f sente nce. At [40] T he … offen c e was in the more seri ous category of a violent home i nvasio n w ith intent to in timidate the occupants … We accept that some agg ra vatin g featur es – such as the use of weapons – w ere absen t. Howe ver, t he off endin g was ver y se rious, involving an at tack AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 Goo d spor tsman; played ru gby for WA. Hard - work ing; s u cce ssf ul tra de business . Marr ied; th ree young chi ld ren ; family orientated. Prio r substance abuse is sues . got out of the vehicle and approac hed the house. N atal ie and h er two youn gest ch ildren were outsi de the fr ont of her ho use . S he con f ront ed the g roup, who she did n ot know, yelling at them t o get off her property. B rindley yelled b ack an d p ushed Natalie in the che st , causing her to s t umble backwards. Bri n dley then st arted assaulting Brodie . Brayden at te mpted t o break up th e f igh t , but he w as grab bed fro m behind by o n e of the co - offenders and plac ed in a headlock and threatened w ith assau lt . Brodie was able to run off . T h e co - offender relea se d Brayden and he ra n inside the house , locking the security do or behind him. Brin d le y fo rced e ntry in t o th e home by kicki ng op en the security door . On s earch ing the house he loc ated a locked be d room doo r , which he kick ed op e n . Brayden had secured himse lf in the room a nd on being f ound by Brindley he was taken to th e front o f the h ouse . Asking for D illon a n d be ing una ble to locate h im Brindley said, ‘ Well, wher e the fuck is he bec ause our mate ’ s car ha s b een broken into five tim es and you cunts are going to face the mus ic ’ . After a short conversation with a co - offen der Brind ley wal ke d ov er to Brayd e n and s a id, ‘ Tell D illon this is f or him ’ . He then pu nched Bray den with a cl osed fi st to the head , causin g a laceration to h is eyebr ow . Brayden fell to the gr ound and was pun ched and kick ed several times by one of the co - o ffenders. Brindl ey a n d his c o - off enders u n prov oked vi olenc e; he wa s a str a nger t o the victim s; h e broke into the hous e of a vulnerabl e woma n w ith four childre n; he en tered the house in a viole nt way , knowing peopl e were i nside a n d terrorised the occupants ; he behav ed in a ‘ th ug gish w ay ’ ; he for ce f ully punche d a person he k new t o be un connected wi th t h e matter to send a m essage to others . The se ntencing judge f ound the offending was ‘ simply gra tu itous violence ’ ; it was not spontaneous and had a degree of pl anning an d preme dita ti on ; t h e app e llant ’ s acti ons tho se of a vigil an te , b u t went beyond thos e of a vigilante because he was not respo nding to a loss he had su ffered ; he was ‘ lending the musc le ’ . Demonstrated remo rse; acc eptance of responsibility and co - after dark by a gro u p of strangers o n a hous e occupied by a woman and her children , w ho must have been terrified by the experience. The offe nce was a significant violation of the s anc tity of t heir ho me, in which they w ere ent i tle d to fe el safe. … A t [41] The vigilante natur e of the attack w as also a significant ag g ra v at ing feature of the offendin g. … At [48] In consideri ng the significa nce o f any id entified range, it is necessary to be ar in m ind the need for fi rming up of se nten ces for serious case s of home burglary , especi ally home burglary accomp anied by violenc e to t he occupants. At [ 50] … th e TES … bears a proper r el ationship to the over all cr im inality involved in both of the off ences vie wed in entire t y, ha ving regard to all releva nt facts and AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 t h en l eft the house. op erative. ci rcumstan c es … a nd all re levan t sentencing factors . … 24. Castril li v T he State of Western Austra lia [2019] WASCA 135 Del ivered 29/08 /2019 27 yrs at t ime offending. 29 yrs at time sente ncing. C onvicte d afte r late PG ( altern ati ve c harge t o GBH ) (17% d is count) . Prior criminal histo ry ; including a conv iction for disor derly beh aviour, which in volved f ight s with other males in a public area. Unrem arkable childhoo d; one of three children; p arents se parated when young; fa ther rem arr ied ; s trong family suppo rt . S ta b le relationship; no ch il dren. Left scho ol towards e nd of yr 11; co mpleted trade ap prentice ship ; same employer since 2007. Co - offender Cr addock c harged and PG to GB H ; s entenced to 16 mths i mp. (25 % disc oun t ) EFP . 1 x AO BH. C astrill i and two of hi s frien ds were o n a rive r cru ise . Three o ther gue st s on the cruis e incl ude d a M r Craddock (co - offe nder) and the v ict im . The three did not know ea ch other . During the four and a hal f hr cr uise Cast rilli a nd his frien d s c onsumed a sign ificant amount of al co hol . By the end of t he c ruise Castrilli was drunk . Shortly after the b oat re turned Castri lli was talking and dancing with a girl when he felt wa ter bein g thrown over hi s back . He turned t o see the victim stand ing be hin d him ho ldi ng a n emp ty bottle of wa t e r. Ang r y , he yel led at the v ictim, the victim sh outed b ack. Some pushi ng and shoving occu rred bet ween the two before Castri lli walked off and le ft the b oat on his own . Looking to find an yone he k new Cas trilli walke d u p to a g rou p of people gat hered nea r the jet t y. This group in clud e d Mr Craddock. At a round the same t ime th e v ictim left the b oat with his girlfriend . H e went t o approach t he group but was restrained by his girlfriend . He th en starte d s crea ming. Cast ril l i saw t he vict im and instantly fel t angry . He walked up to h im an d punched h im in the head 1 2 m ths imp. E FP . The sent en cing ju dge characterised the appellant ’ s conduct as a very s eriou s inst anc e of AOBH and a ‘ serious escalation in [the] forc e used, harm caused an d potent ial for greater harm ’ . The sent enc ing judge found five f actors demonstrat ed the serious ness of the o ff ending: the degree of fo rce u sed to strike the vi ctim; the victim ’ s vul ner ability , in that he was totally unp repared for th e punch ; the appellant ’ s knowl edge of the risk of ser ous injur y t o the vic tim by virtu e of th e punch to his he a d; the seriousness o f the injuries suffered by the v ictim and the risk of further serio us inj ury ; the assault wa s unprov oked Dism issed. A ppeal c oncer n ed len gth of sent enc e; p arity p rinciple ; pl e a discount and error in ch aract erisation of the off ence a s ‘ very se rious ’ . At [44] In al l o f the ci rcums ta nces, the discount of 17% given to the a ppellant for his offer to PG to th e AOBH of fence was within a pr o per ex ercise of t he sent encing judge ’ s di s c r et ion . At [61] … While th e app ellant ’ s antecedents , and those of M r Crad doc k, were simil ar in a num ber of respects, … the mit igating factors appli cable in Mr Craddock ’ s case warran ted a mor e signifi cant di scoun t than the discoun t w arra nted fo r the appel l a nt ’ s mitigating factors. … AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 with consi derabl e f orce. The vict im did n ot see Castrilli ’ s ap proac h and was to tally unp repared for the assault . The force of the p unch rend ered hi m unco nsciou s a n d he fe ll to t he grou nd . As the v ic tim lay unconscious Mr C radd o ck , who was being re strained by othe rs, br oke free, approache d the vi ctim and stomped on h is he ad . The victim suffe red a fr actured jaw, requiring surgery. H e spent sev eral da ys in hospit al. and it was a respo nse entirely disproporti onate to the earlier incident where the vic t im spray ed wate r ont o the a ppellant. Re duce d risk o f re - offend i ng ; a ppellant ge nuinely re morse ful ; recognised alco hol contributed to his of fending and step s taken to address this beha viour . Continuing physica l and ps ycho logical effects on victim. At [62] … there was no object ive basis on whi ch th e appellant co uld have a legitimate or justifiab le sense of grievance about t he extent of the disparity between his sente nce and the s entenc e i m posed o n M r Cr addock. At [66] T h e … sentencing judge proper ly to ok into account the fact t hat the fo rce wi th wh ich the appell ant punc hed the victim in the head , and without any war ning to the victim, clearly carrie d with it the risk that t he vi c tim wo uld suffer a v ery serious injury, or e ve n death, either from the blow itself, or as a res ult of being kno cked u nco ns cious and fall ing to t he ground and hitting his head. I ndeed the forc e of the punch, and its likely conseque nces , were as pects o f the ci rc um stances of the com mission of the AOBH of f ence which the … senten cing judge was obliged to take into accou nt in ass essing the AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 serio usness o f that offence . At [67] … a single punch to a victim ’ s head, delivered with considera ble force whe n the v ic tim is t ak en by surpr ise and standi ng on a hard su r face, obviously carries the potential to cause v ery serious inju ries, or even de a th … . Th at obvio us and inherent risk was a n outcome which the a ppellant could properly be taken to hav e kn own. That knowle dge c l earl y added to th e s erio usness of his offen d in g conduct. At [68] … To infl ict a blow with such force as t o ren der a vic tim imm ediately unconsci ous is a very serious assa ult. At [82] … it wa s not ap propriate to suspend or condi tional ly suspen d the t erm of i mp. Neither the ty pe o f sente nce impo se d n o r t h e length of the term of im p was unreasonable o r plainly unjust . … 2 3. T homp so n v 39 yrs at time offending. Ct 1: AOB H. Ct 1: 6 mth s imp (co n c). Dismiss ed. AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 The S tate of Western Australia [201 9] WASCA 68 Deliver ed 02/05 /20 19 41 yrs at time sentenc ing . Co nvic ted after t ria l. P rior c rimi nal hi sto r y WA and N Z ; assault and drug offending. Arrived in Austra lia 200 2. Cu rre n t pa rt ner; one child; t wo children from former re lationshi p. Suppo rt i ve fa mil y. Emplo y ment history. Ct 2: GBH wit h i nte nt . Ct 3: Unlawfu l w ound i ng. A rran gement s w e r e made by a third party for C adman (a co - offender ) to be i ntroduc ed to H ar r is ( vi ctim ct 1 ) . A me eting was arranged at a ho tel room, t he purp os e of w hic h was to d iscuss a drug deal . Thom pson drov e Cadma n a nd Ta main u (the seco nd co - o f fender ) to the h ote l . The thr ee planned to s teal drugs from Harris. T amainu wa s armed with a m a chet e and he an d Thomps on both took with them b ea nies, to be worn a s b alacl ava s. Harri s went to the hotel with H ayes (vic tim ct 2) and L ayto n (victim c t 3 ) as back u p to ensur e t h e proposed drug deal with Cadm an went according to plan. D uring t he mee tin g Tho mp son and T amainu w aited outside the room. Wh en Cadman gave a p re d eterm ine d signal, by flicking the cu r tains, they bot h enter ed the r oom. Cadman too k p osse s sion o f Ha rris’ dru g s and mone y before leavin g . Th ompson and Tamainu t hen attac ked Har ris. Du r ing th e attack Hayes an d Layton entered the roo m. Ct 2: 4 yrs 6 m ths im p (conc). Ct 3: 1 y r 1 0 mths imp (cum). T ES 6 yrs 4 mths imp. EF P . The tri al judge found the i ncident was a planne d stealin g ; ther e was a p r epar ed ness to u se viole nce; the machete, a ‘hug e weapon’, would be us e d in the event th a t it was required a nd it was ‘inco nceivab le’ th e appe llant did n ot know about the machet e b e f ore the i ncident; there was a n intent to cause GB H in the use of the ma che t e. Th e trial j udge fou nd the offending aggrava te d by the use of th e m achet e; the appel l ant was in company ; there had been some p lan nin g and preparation ; i t oc c urred at n ight a nd i n a place were members of the public were present. Ap peal c onc e rned t otality p rinciple . At [61] … the appella nt ’s offend ing was, no doubt , s er i ous. T h e offending arose f rom ‘a planned stealin g o f M r Harr is’ drugs i n w hich there was a prep are d n ess to us e violence’. … A mac hete, capable of inf licting s ignific ant an d, p oten ti ally, fat al injur ies, was carried by one of the offe nders and u s ed to as sault Mr H ayes and Mr Layton . … The appellan t made no att t o wi thdraw from th e of f ending or preven t M r Tamainu f rom wielding th e mac hete. The offending occurred at nigh t when me m bers o f the pub lic were staying at the hotel. T he offences were com mi t ted f or purposes r elating to prohibi t ed dru gs. Mr Ha yes …. s uf fer ed sig nificant in jur ies … . At [ 70] … it i s n o t reasonab ly arguable … t hat AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 Harris was punch ed to th e h ead and s u ffered cuts to his mouth and bruis ing to his ba ck and thighs (ct 1) . H a yes wa s st ruck b y t h e machete on his knee, th igh a nd foot . His injurie s require d surge ry (ct 2) . La yt on was st ruck wit h the machete on his elb ow and back (ct 3). t he TES … infringed t he first limb of the t ota l ity pr inciple. Each of the offences involved a di fferent v ictim. A cu s todia l t erm of 6 y rs 4 mths was nece s sary i n order p roperly to re fl ect the serious na ture of the app ellant ’s o f fending, viewed as a who le, a nd properly to recog nise the importa nt sen ten c ing co nsiderati ons of p ersonal and general dete rr ence. The TES bear s a prop er relations h ip to the criminal i ty inv olved in all of the of fe nces , … 22. Th e S tate of Wes tern Aust ral i a v TLP [ 2019] WASCA 66 Deli vered 24/04/2019 24 yrs at ti me offe nding. 25 yrs 6 mths time sentenc ing. Convicted after PG ( 20% disco unt). No p r ior c rim inal hist o ry. Unstable upbr i nging; parents separat ed bef or e ag ed 2 yrs; l ive d wi t h vari ous family an d friends a s a child (incl uding grandmother, Ct 1: Agg G BH. Ct 2: Agg AO BH. C ts 3 - 7 & 9: Agg sex pen. Ct 8 : Att agg sex pen. TLP went to his grandp are n ts’ ho me. His g randmoth er, P, aged 73 yrs, and hi s half - si ster E, a ge d 17 y rs were home . P let him into th e house . After a time, and wi th out warning, he at tack e d P by gra bbing her b y the nec k, throwing her to t he ground and punchi ng her re peatedl y to h er f ace an d head (c t 1). T LP then assaulted E by g ra bbing her by the C t 1: 3 yr s imp ( conc). Ct 2: 1 6 mths imp (conc). Ct 3: 18 mths imp (cum). C t 4 - 5 & 8 - 9: 18 mt hs imp ( con c). Ct 5: 18 mths imp (conc) . Ct 6: 5 yrs im p (cum) . C t 7 : 2 yr s (conc). TES 6 y r s 6 mt hs i mp. E FP. Allow e d. Appeal concern e d leng th of sen tence ( cts 1, 3 - 5, 7 - 9) and to tal ity p rincip le. Re - se nte n c ed to: C ts 1; 5 & 9: 4 yrs i mp (cum). Ct 2: 16 m ths imp ( conc). Ct 3: 4 y r s im p (conc). C ts 4 & 7 : 5 yrs imp AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 victim P); moth er ofte n live d e l sewh er e. Compl eted yr 10. Bullied at school; so cially is olated; r et r eated in to comput e r gaming world; ac c essed pornograp hy at a yo ung a ge, exposed to exp lici t porno grap hy dep ict i n g incest and bondage. E mploy ed various casual ro les; unem ployed 18 mth s p r ior to offendin g. Hist ory of alcohol and illic it drug use ; escalat ed prior to offendin g ; intoxicated with alcoho l and can nabis a t t ime o ffen ding. h ai r and pun ching her in the face and he a d repe atedly (c t 2). He dra gg ed E to where t he vict i m P wa s st ill ly ing a nd, in he r presence, he commi tted and att to comm it acts o f sexua l viol enc e aga in st E (cts 3 - 9). During the sexual assau lt s he repe atedly to ld E and P that if t h ey did not do what he sai d he woul d kill the m. T LP t hen left, t aki ng h i s gran dfat her’s car . He travel led to Collie w here he was arrested. The sente ncing judge cha racte rised the offending as extrem ely ser ious; inv o lvin g a sustain ed, prol onged, vicious and viole nt attack o n P and E ; h is co ndu ct ‘obvio u sly degrading’; it inflic ted serio us phys ica l i nj urie s and psych olo gica l traum a on the v ict i m s. Remor seful; co - opera tive with police. Modera te to hig h risk of re - off e ndin g in a sexu al manne r; particularly if alcoh ol and cann abis use no t addr ess ed. (conc). Ct 6 : 6 yrs imp (conc). Ct 8: 3 yrs imp (con c ). TES 12 yrs imp . EFP. Ct 1 At [87] – [8 8] Th e ci rcumstances … of t h is off ence … are se l f - evidentl y extremely ser ious. The victim was the responden t’s gra ndmoth er. She wa s 73 yrs old …. T he respondent was much y ou nger than his gran dm o ther and there wa s a significant siz e diffe rence bet ween hi m a nd hi s vi ctim. P was co mple t ely vu lner able. The r espondent attacked her w ithou t warning. She had n o ability or mea ns wit h w h ich to fight ba ck. … At the time the respondent w as senten ced, P wa s s till rec eiving me d ical and AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 psycholog i cal tr eatment. At [89 ] T he ac ts o f the respo nde nt c a n fair ly b e char act e r ised as c allous, brutal and s ustained. … The resp ondent di d nothi ng to hel p P, de spite her injurie s. Instead, he forced E to humiliat e and the n k ick P . T he respon d ent forced P to wi t ness t he respon dent’s sex ual a ttac ks on E. C ts 3, 4 , 5, 7, 8 a nd 9 A t [ 9 0 ] … it is clear that the offe nding was at the upp er end of the ra nge of se r ious ne ss for of fences o f agg GBH. At [96] Each o f the off ences … w as a ver y s erious ex a mple of its type. … He di d so with a high le vel o f vi olence and whi le t h reaten ing to kil l h e r . E’s hum iliation and di stres s in each case was c ompounded by the AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 respo nde n t co mm itting th e offenc e in the presence of P. Th e respond ent traum at i sed E , w ho had no t previously engage d in se xual inte rcourse . T he re spon dent expose d h er t o the r isk of pre gna n c y. Each o f the offences … was cruel and was commi tted with out a m odicum of pity f or the or deal he inflicted upon E. … 21. D uncan v T he State of Weste rn Australia [2018] WASCA 154 Delive red 31/08 /2018 3 7 y rs at tim e offending . Conv i cted a fter trial . ( a l ternative charge to GBH) . Si gnificant criminal h istory; n umerous offen ces invo lv ing viole n t assau lt , including domestic v io lence; ma nslaughte r c onvic tio n for dea t h of his 22 mth ol d daugh ter. Abo riginal ; r ais ed by relatives; goo d up b ringin g. Educat ed t o yr 10; n o learning or s ocial 1 x A OBH. Dunca n an d the vic t i m, NFB, w ere in a de fac to re lationship. The offe nce was c ommitte d abou t o n e mo nt h after N FB gave birth to their third chi ld . At a b irthday c el e brati on Duncan sm o ked cannabis and c o nsumed alcohol. NFB al so dra nk alc ohol, becom ing so i ntoxic ated she f ell o ver a num ber of times. On th e journey home NFB f ell aslee p in th e car and woke u p to find they ha d broken down. As she we nt to get o ut of the c a r she fe ll and st r uck her head, inju r ing he rself. D uncan, fru str at ed t he car was not wor k ing, t ook his fr ust r a tion out on NFB, kicking her in the 3 y r s imp . EFP. The sentencing judge f o und th e offendi ng very se rio us ; it was a sust ain ed ; c omplet ely unprov oke d ; cowardly attack on a vu lnera ble victim who was a lone with the ap pellan t i n an is olated ar ea ; seve rely intoxicate d and who h e knew wa s in no c on d ition to run away or defend herself . The s entencing judge Dis missed. A ppe al con cerned leng th of s e ntence . A t [36] … t h e offence in question wa s a v ery serious instance of the o ffence of AOB H. … It wa s an enti rely unp rovoked assault on a def en celess, h eavily in to x icate d w oman, who was lying on the g r ound a nd alread y injur ed, at t he t ime. … when th e ap p ellant was weari ng b o ots. At [38] The domest ic AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 difficulties at sch ool. Ext ensive work h ist o ry; em ployed va rious ca ttle stations in Kimberl ey and NT; including i n supe rvi sory posi t ions. Nine childr e n born from six differ ent re la tion ships. head, face an d body . H e then dragge d h e r al on g as he p unched h er. NFB screamed at him to stop. D uncan eve nt u ally sto pped and h elped NFB back int o the c ar. Some relativ es of NF B ha ppened to p ass by a nd the y to ok her ba c k to their home. NFB wen t to hospital and was flo wn to Per th for treatm ent . She s uffered a broken jaw, lacerations and sub st antial br uising. fou nd th e of fending agg by the fact t he v ictim had o nly recen tly given birth to h er youngest child an d they we re in a domes tic rela ti onship. L ack of remorse ; responsibility an d victim empathy; hi g h ris k o f re - offe n ding against a fem a le par tner. re lationship between t he appell ant and NFB w as a n ag g factor wh ich adde d to the seriousness of th is offenc e. At [3 9] … the of fence was properly regarded a s more serious because it wa s comm itted by th e a ppel l ant on his partn er, w ho had on ly very recentl y del ivered his child, an d who was ent itl ed to his care , rather th an to an abject demonstration of h is comple te lack o f r espec t f or her an d for her human dig n ity. At [59] T he sent enc e i mp osed in this ca se was u ndoubt edly a sig nif i c ant sente nce for an AOBH . How ever, the seriousnes s of the offendi ng … w arr a nted t he imposi tion of a significant term of im p. 20. Sp irovski v T h e Sta te of Wester n Australia [2017] WASCA 230 25 yrs at tim e o ffen d ing. 2 7 yr s at t ime s entencing . Con victed af ter t rial (alternative ch arge to G BH). 1 x AOB H. Th e vict im, aged 19 yr s, w a s out drin king w ith a friend, H, at a tavern. Spi rovski was a securit y officer at the taver n, a nd 18 m ths imp. EFP. Th e trial judge fo und the vi cti m did not threate n t he Dismissed. Appeal c oncerned leng th an d n ature of sentence . At [58] The degr e e of f orce AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 Deli vered 2 8/1 1/2 01 7 P rior c rim i nal hi story; co mprising traffic matters. Stron g work ethi c; good c om m unity su pport. P o sitive relationshi p with partner. h e and anoth er offic er observed H to be into xi cated and asked hi m t o lea ve. H tried to persuade the of f icers to let hi m stay. T his w as r efused and Spi rovs k i bega n to usher hi m towards t he exit. T he vict im said to Spirovski , ‘You do n’t hav e to b e c u nts ab out it’. He resp onded by punching the vi ct im in the face , kn oc k ing h im to the gr o und and removing h i m . T he victim was co nve yed t o ho spital by a mbu lanc e . He s uffe red a bro k e n nose wh ich was pressed inwa rds and fractures to his mid face ex tendin g t o the o rbits on both sid es, requiring surgery an d the inser tion of s ev e ral p lat es. a p pellan t or spit at h i m. The t rial judge foun d the appellant’s reactio n to the victim’ s use of a pro fa nity whol ly dispr oportionate to what was sa id to him ; the pun ch was f orc eful and u nnecessary. The t r ial ju dge found the of fen ce wa s a serious cas e o f it s kind give n the deg r e e of forc e used and the serio usness of the injuri es. Expr essed s ome re mor s e; p ri or good c haracter . used by the ap pel la nt i n striking the com p lainan t an d the ser i o usness of the injuries w hich [he] suffered were s ignifican t facto rs in eva l uati ng the obje ctive se riousness of the offence , whether t he offend in g was a s erious ex a mple of its kind a n d the appropria teness of a t er m of immediate imp . Th e appel lant was t he a g gressor. He used conside rable force in striking t he compla inant. The ap pel l ant’ s action ha d the po tential easily to cause ev en more s erious in ju r ies t han the comp l ainant in fact suf f ered. The absen ce of s ome of t he a gg factors tha t ex i sted i n pr evious ca s e s does no t mitigate the serio usness of what the a ppellant actuall y did. A t [59 ] Her Honou r was en titled, … to characteris e the appel lant’s of fe n ding as a serious example of its kin d . At [60] Gene ral det err enc e AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 was an importan t s ente n cing c onsi derati on. V iolence i n public places is a matter of genuine c oncern in the co mmunit y. At [ 71 ] … culpa bility w as increased by the degr ee of force he used in gratu ito usly stri k ing the complainan t and, also, by the app ell ant ’s sta tus as a se cur ity o fficer at the pr emi s e s where t he assault occu rred. 19. Allen v The St ate of We stern A ustral ia [201 7] WASCA 20 3 Deliv ered 31/10/2017 Allen 32 y rs at tim e offendi ng . 35 y rs at time s e ntencing. Convict e d afte r late PG (10% d isc oun t) . F irst trial abo rted , PG ac cept ed wee k p r i or to sec ond trial comme ncing . Substantial crimi nal histo ry, inc luding th r ee p ri or convic tions fo r AOBH; released from pr is on about one month b e fore com mitting p r esent offence. Pa r ents d eceased; single; no A llen and Ga starov 1 x AOBH. M arsandi 1 x GBH. L ate a t night t he vict im a nd hi s h eavily preg nan t pa r t ner a ttend ed a c ar p ark to col lect his car. He u sed a baseball bat t o smash a window to ga in ac cess t o his ca r, causi ng the vehicle’s alarm to sound. Th e proprie to r of t he adjacent w orkshop was woken b y the alarm. H e had p revi ou sly be en engaged by Mars a n di to work on th e ve hicle so h e telephoned o ne of the appellants to i nform them of wh at was ha pp enin g. A shor t time l ater Marsandi and Allen a r rived. Mar sandi spo ke to th e victim. Du r ing the A llen 2 yrs 10 m ths imp. E FP. Gastarov 3 yrs 6 mths imp. EFP. M arsandi 6 yrs 4 mths i mp. E FP. T he sente ncing ju dge characterised each ap p ellant’s o ffence as o bjecti ve ly very se r ious and at the hi g h end of the o bjectiv e cr im ina lit y for offen ces of i t s kin d. Al lowed. A ppeals conc er ned le ngths of se nte nces . Re - s enten ced to : A llen 20 mt hs imp. EFP. Gasta rov 2 yrs 4 mths imp . EFP. Ma rsandi 5 yrs im p. EFP . Marsand i AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 de pe nden ts. Suppor tiv e ex - partne r. Busine ss o w ner - opera tor; successful for a while. Leg injury resultin g in a limp; pos t ural p roblems a nd heada ches. Suffers from depre ss ion. Pri or histor y o f dru g a buse. Ga s tarov 38 yrs at ti m e offe nding. 41 yrs at ti me se nten cing. Conv ict ed a f ter la te P G (10% di s c ount). F irst trial abor ted, PG accepted week pri or to sec ond tri al com men c ing. Prior cri minal hi story; mostly traffic of fe nces; con victions fo r dep of liberty a n d AOBH. Born Aust r alia; raised in the US A a fte r pare nts ’ separa tio n. T w o chi ldren to ex - w if e; conversati o n Mar sandi pic ked up the vi cti m’s baseball b at and w i thout warn ing sw un g the bat th e victim’s hea d. T he victim fell to th e ground. Marsan di swu ng at the v ictim wi th the b at a further five or six t imes. Not all of th os e stri ke s made con t act with the victi m . Th e victim got to his fe et and run. At th is time G astar ov ar rived an d he pursed the victim in his c ar, while Allen ran after the victim on fo ot. When G astarov and Alle n caught up with the vict i m he start ed joggin g back t ow ards the c a r park. Allen cont i nued to chase the vic tim on fo ot and unsucce ssf ully a ttemp ted t o kick t he victim fr om behind. Ma rsand i remained at the ca r park and when the vi cti m retu rn ed, rush ed towar ds him. Gastarov arrived a nd also ru shed towa rd s the vi ctim with t he raised baseball bat, before pu nching and ki cki ng him. Gastar ov then p ulled the victim t o the ground where Marsand i con tinued to kick and s tomp on hi m seve ral ti mes . Th e appellan ts then allowed the victim and hi s partner t o leave. M arsand i and Allen t hen hosed down the car a nd the ca r park wher e the as sault took pla ce. T h ey al so ch anged th ei r clothes. Gastarov coll ected the baseball bat an d left. T he sen te nc ing judge found it was a sus tained attack and th e injuries to th e vict im re pres en ted seri ous exam ples of the respective of f ences; car ried out in a bra ze n manner w h ile in company. At [61 ] … A sentence in the ran g e of 3 to 5 yrs wil l common ly be impose d in cases involvin g the use of we apons. At [6 8] ... The beatin g w hich t he vi ctim suffer ed w as severe, …. While the injur ies were moderately severe exa mples of GBH , t he y we re not est ablished to have resulted in seri o us permane nt disabi li ty. A t [69] … It m ay be inferred tha t at l east most of the inj ur ies co nstituting GBH wer e cause d by [his] in it ial use of a baseball ba t to repeatedly and force fully stri ke the victi m's h ead. … The sus tained n ature of the assault, and the fact t hat a wea po n was us ed in a ma n ner which was obje c tivel y likely to caus e se ri ous in jury, were sig nifi c a nt ag grava ting f ea tu res of the offence. At [70] The victim did not o ffer any p rovoca tion f or th e as sa ult. AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 one chi ld to current partn er. Completed yr 12 equivalen t in U SA. C ons is tent w ork hist ory; own tattooing business befor e suffering financia l diffic ul ties. Mar s andi 28 yrs at tim e offe nding. 31 yrs at tim e sen ten cing. Conv ict ed a f t er la te PG (10% di sc ount). Fi rst trial abor ted, PG accepted week pri or to seco nd tri al com men ci ng. L imited p rior cri minal history in WA; no p r evious ter ms of imp . After th is offence convicted in NSW o f AOBH . Close and sup port iv e f ami ly; support ive fri e n ds. De fa cto re la ti onship; go od and loving fathe r to three young chi ldren. Ed ucated to yr 11 ; T he ass ault w as ca ptur ed on CCTV footage installed at the worksho p premises. At some po int it w as manuall y deleted, however i t was later ab le to b e re co ver ed by police. La ter t h e sam e day Gasta ro v also attem pted to obtain the CCTV footage from a nearby bus iness, but i t h ad alr ea dy been seized b y police. The victim was hospitalis ed and re qu ired s ur gery for a number of injuries , incl uding the insert ion of a met al plate in hi s he a d . A t [72] T he conclusion that the ap p ellant fel t he coul d seriou sl y assault o thers with impunit y elev ated the signifi canc e of per sonal deter ren ce a n d comm unity prote ct io n as sente ncing consider ation s. … It is capable o f explaini ng the impos iti on of a sentence greater than the sentences custo m arily impo sed for s er ious e xa mples of c a using GBH. However , it d oes not e xplain the ex ten t o f the dispa rit y in t his c ase. At [7 3] … the sente nce imposed … was n ot commensurate with the serio usness of Ma rsa nd i’s of fence … At [76] … In all the circumstan c es, while Marsandi' s offenc e is a serio u s example of the o f fence of unlaw fully d oing G BH , a sentence of 6 yrs 4 mths imp i s unre as on able or pl ainly unjust. AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 comp le ted appr enticesh ip; good trade and work h i story. Alle n At [81] Allen did not himsel f actu ally i nfl ic t an y of the i njuries which the victim sustaine d . His crim inal resp on sibili ty is to be a ssessed on the bas i s tha t, by his presen ce a nd su ppo rt … he aid ed … Ma r s andi and G astaro v, i n assaulti ng the victim … At [82] … Allen did no t actually infli ct any in ju ry, an d did no t instig ate the violence initiall y directed towards t he victi m … Gastaro v At [87] Gastarov w as no t present when t he i nj uri es constitutin g G BH w e r e inf licte d. … H is c ulpability is reduced by the fact that he was not present f or the whole of t he s us tained a ssault o n the victim, although it is aggrava ted by th e fact t ha t he himse l f assaulted the vi c tim w ho [he] m ust hav e ap pr eci ate d was alrea dy seri o u sly i njure d. 18 . Ca rrick v Th e State of Wes tern 2 1 yrs at t ime offe nding. 23 yrs at time sen t encing. 1 x AO BH . 2 yrs imp. Allowe d. AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 Australia [2017] WA SCA 175 D eliver ed 22/ 09/ 20 17 C onvict ed af ter la te PG on day trial was to start (17.5 % discoun t). C h arge d wit h G BH. PG acc ept ed i n full satis factio n . Co - operati on in prosecut ion o f co - accused in that provided witnes s stat eme nt whi ch led to PG by co - offender. Prior crimina l history. Supporti ve famil y. Educated to yr 10; interrup t ed by periods of juve nile d ete nti on. Father of thr e e ; par tner pregna nt w ith fourth child ; stay a t hom e dad . Performed so me seasona l work ; was a c om merc ia l fisher man . Hi story of illicit substanc e abuse. Pie ro tti and Ma r tinac , the co - offe n ders , were liv ing tem pora ri ly wit h Pierotti’ s m othe r at he r hom e. The v ic tim was al so staying at the h ouse. Following an argument P ierott i and Mar ti nac we re asked to leav e. The co - offenders went to the app ellant’s ho me, wh er e Pierotti and the victim exc h anged text mes sages. Pie ro tti se nt a text t o t he v i c tim , threa tening h im . In the morning the ap pella nt and co - offenders returned t o Pier otti’s mo th er’s h ouse . Ou t of fea r, t he victim armed himse l f with an ornamenta l sword. O utside the house t he three of f ender s threw g lass bo ttle s and ot her objects at the v ictim , who tried t o ward off t he objects wit h the sword. The appella nt backed the vi ctim i nto a she d . T he app ellant p unched him in the face ab o ut five ti mes , caus in g rela ti vely minor injuries to his no s e and mouth wh ich ble d ( i nj uri es constitut in g b odil y harm , subj ect of t he off ence c ommitted by th e app ellant). Martinac t hen threw an obj ect at th e vict im , which struck h im in the face , severely l acerati ng his lip a nd fract ur ing a faci a l bone . He require d hosp italisati on ( inj urie s con sti tut ing GBH ) . The S t ate’s case was t ha t the appell ant and co - off ender Pierotti not respon sible for GBH su ffered by t he v ic tim , tha t Martin ac was solely criminally r esponsible for thos e injuri es . EFP. The se n tenci ng judge found P iero tt i, Mar tinac and t he appe l l ant w ere a t the ho me for a com mon purpose an d the three were ‘equally culpable’ for t he con seq ue ntia l injuries suffere d by the victim. H aving r egard to t he seriou sn ess of t he offence the sentencing jud g e dec lined to suspend the t erm of imp impose d. On p r emise s in compan y an d when not welcome. No provo cation to the appell ant. The appell ant th rew o bjec ts at the victim b efore then assaulting him . Appellan t increas ed vulne ra bility of v ictim by backing h i m int o a shed. Victi m pu nc hed fi ve times in clu ding a fter had R esentenced to 14 mths imp . EFP . Appeal concerne d factual basis on which s entenced a nd length o f sent en ce. At [2 6 ] It is clear … in the s entencing remark s th at th e a ppellant wa s s ente n c ed on the basis th at he was cu lpable for the inju ries suffered by the victim, w hich c onstit ute d GBH … . This fi nding wa s not open to his Honour, in light o f the app el lant’s P G to the l e sser charge of AOB H and the State ’s expr ess po sit ion that the a ppe llan t was n ot cr iminal ly r esponsible for the GBH s uffer ed by the victim. A t [32] … W hile t he ple a w as ent er ed to a lesser c harge, there is nothing t o suggest t hat it co ul d not ha ve been of f ered at a much ear l ier s tage in t he proc eedi ng s. … I n our view, ha ving r egard to t he lat e en try of the plea and that it w as entered in the fa ce of what appea rs to AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 f allen to t he ground. Appellant re morse ful. hav e been a strong prosecut ion case, we would give a discount o f 10% for t he PG. At [37] … T his was … an u n pro v oked and serio us assa ult. I t d id not occur o n t he s p u r of the m oment an d there is n othing whateve r to have justified the a ppellant’s prese nce in co mp any at the … h ouse. Ha ving regard to the seriou s ness of th e offence … we ar e satisfied t hat only a term of imp c an be jus tified in t hi s c ase . At [38] … i t wo u l d be inapp ropria te t o suspend the term of im p … h aving regard to the serious ci rcumst ances in wh ich th e offenc e was co mmitted … 17. Pureau v T h e State of Western Au strali a [2017] WA S CA 115 Delivered 2 6/06/ 2017 24 yrs at time o ffe ndi ng. 26 yrs at time s enten cing. Conv ic te d after tr ial. Bo rn in NZ; a rrived in Australia aged 17 yr s. Pr ior cr imi na l hi st ory; inc luding a conviction of Ct 3: T h re at t o kill. Ct 4: Ag g AO B H . Ct 5: De p lib. Th e victim, M , was several wks pregnant and had bee n in relat ionshi p with ap pe llan t approx 6 wks . Th ey shared a home with thr e e other pe ople. M le ft to attend appoi n tments, borrowing t he ap pellant’s mobile ph o ne an d c ar . W hen sh e Ct 3: 3 yr s imp (cu m) . Ct 4 : 2 yrs imp ( conc). Ct 5: 3 yrs imp ( cum). TES 6 yrs im p . EF P . The judge fou nd a p p ellan t’s o verall Di smiss ed. Appeal challeng ed the ind ividua l sent enc es on ct s 3 and 5 and co ncerned totality. At [75 ] … M was d efenceles s and pa rticularly v u lnerable by AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 AOBH in a d omestic se tting . E mp loyed . N o illicit substanc e or a lcohol use. r etur n e d he was a ngry w it h her for be ing away for s o lon g . They argued and h e abused a nd spa t in M ’s fa ce . Sh e called out for someone to call the poli c e , however other oc cu pants did not do s o as illicit substa n ces w ere in the house. T he a p p el lant left t he hous e . O the r occ upants b ou nd M with tape and assau lted her. Bulk of injurie s caused b y othe rs. T he a p pell an t return ed . Arme d with a knife and taser a nd wearing gloves , he order ed M into a r oom and to ld her h e was going to kill her . H e poi n te d the knife an d th r e atene d her with th e taser , tel ling her the m ore s he scream ed the more pain he w ould i nflict . He att t o taser M in the face but s he raised her a rms to pro tect hers el f , t he taser cut h e r thumb . The a ppe l lant pulled M’s hair and dr agg e d her from ro om . She w as su bject ed to fu rt her threat s and assaults befo re she was able to e scape. Be tween everyo ne in volv ed , the or deal las t ed more than five h ou rs. o ff ending con stituted a ver y ser ious example of dome s tic viole nce an d the rea l seri ou sness of the off ence was his threats to u n lawfully k ill M and t he dep rivation of l iberty. The real h a rm wa s psychological. A p pe lla n t d enied the off endi n g . L a ck of remor se a nd genuine empathy. reason of th e greater physical s tr eng t h of the appe lla nt a n d her pregn ancy. Th e offences o ccurred in a d omest ic setting. The fact that the offenc es wer e c om mitt ed in such a setti ng increases the seriousn e ss of what the appe ll ant di d. It does n o t matter that thei r rela tionship was brief. A t [ 7 6] … Although th e of f e nces occur red in t he one trans action, the im posit ion of conc sentence s would ha ve res ulted in a TES th at would be an i nadequate and inappropria t e reflecti on of the o verall criminality of the appellant’s condu ct. 1 6 . McCoombe v Th e S t at e of Wester n A ustr a l ia [ 2016] WASCA 2 27 Delivere d 13/12/2016 4 7 yrs at time sentencing. Convicte d afte r PG ( 20% d isco un t on ct 4) . Lon g criminal history ; m any i nvolving v iolence . Recen tly released from prison for of f ences of 4 x A gg AOBH. McCoombe a nd the vic tim, D , were in a n ab us ive rela tionship . McCoombe would accuse D of infide lity caus in g him to become je a lous. Following a n argu ment McCoombe punch e d D t w o or three ti mes to t h e fac e wit h a cl en ch ed fist, c ausing bruisin g and swelling. He then strangled her so she w as un able t o breath e , bruis ing her Ct 1: 1 yr 2 mth s imp (cu m) . Ct 2 : 1 yr imp ( c onc). Ct 3: 1 yr 2 mths imp (conc). Ct 4: 5 yr s i m p (cum). TES 6 yrs 2 mths imp. EFP. Di smisse d – on paper s . Appeal concerne d leng th of sentence on c t 4 . A t [34] Ct 4 w as no a b e rrati on. I t was pa rt of a patt ern of serious and ongoing domestic vio lence agai nst D. AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 violence toward s t his vi ctim. Indi gen ous A u stral ian. P osit iv e relationsh ips with his s iblin gs. Educated to yr 11. U nemp loyed for a num be r of y ears. T hree chi ldren from a previous rel a tionship ; y oung chi ld with victim of th e se offences. Hist o ry of alcohol abuse ; com m en ced dr inking at a n e arly a ge. No hi story of i llicit sub stance abuse. neck (ct 1). McC o ombe force fully swu ng a met al chair , st r iking D on the bac k of t he head. The wound b le d p r of usely (ct 2 ). McC o o mbe s truck D wit h a plastic cr ate to her lef t leg , ribs and head. He later hit her in the a rm wi th t he crate. D susta ined bruising to her leg a nd a cut t o her hea d that b led profusel y (ct 3). McCoombe was v erbally abusive to D s o s h e went into t he toil e t to g et aw ay fro m hi m. He fol lowed and kick ed in the door. D attemp ted to esc ape th e home . A s she di d so McC oombe go t a kettle full of boilin g water and poured t he boili ng water on h er. He also pushe d D on to a mattress and p u nc hed an d kicked he r ( ct 4 ) . D w as pr evente d fr om obtaini ng medical tre atmen t for several days. She suffe red ex tensiv e s ec ond an d third - degree b urns down her back. Th e sentenci ng judge found the circumstances of ct 4 ‘especia lly se rious’ an d were ‘ in the m ost seri ous category of offending of this ki nd ’ . T he a ppella nt’s c rimina l history one of th e wors t records of vi olen t o ffe n di ng seen . U n fav o u rable ante cedent s an d retribut ion, deterrenc e and protection of socie ty were im portan t sent enc in g co ns ideratio ns in th is case. Little insight i nto his of fending. At [ 35] T he a pp ellant h as no re al insight into his offen d ing. He so ught to j us tify w hat he did b y blaming D. … he p o ses a high risk of furth e r ser i ou s violent o ffe ndin g again st hi s dome st ic partners. At [36] We a re ac utely aware of the s everity of the s entenc e i mp osed o n ct 4 … the sen tence was very close to t h e maximum penalty f or the o ffence. Howe v er, when all the r e levan t circumstances are co nsi d er ed, includi ng the a p pella nt’s PG and h is anteceden ts, ct 4 was p lainl y an offence of the utmost gra vity o f its kin d. 15 . Sophiada kis v Th e State of Western Austra l ia [2016] WASCA 20 3 Deliv ered 25/11/2 0 16 28 yrs at time o ffend ing. 29 yrs at time se nte n ci ng. Convic ted aft e r earl y PG (25% d is co unt). Th e appellant wa s on a pre - sentence order for the t wo agg AOBH off en ces at time of fending on indictment. Significa n t prior cr iminal I nd ict m en t 1 x With int ent t o harm did an act l ik ely to end anger life, he alth or safety. Section 32 Notice Ch 1: Agg A OBH . Ch 2 : Agg AOBH . Ch 3: Criminal damage. Ch 4: B r each of ba il. Ch 1 & 2 I ndic t m ent 4 yrs imp. S ec tion 32 No tice Ch 1: 15 mths imp (conc) . Ch 2: 15 mths imp (cum) . Ch 3: 18 m ths im p (conc) . Ch 4: 3 mths imp (conc) . TES 5 yrs 3 mths imp. EF P. Dism i ssed. Appeal conc e rned the facts for Agg A O BH ch a rg es and tota lit y . A t [27] … nei ther t he p rosecutor nor defence co unsel who appeared in the District Court was aw are o f th e negotiat ions and agreement on the AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 hi st ory , i ncluding con v ictions of unlawfu l dama ge, use of prohibit e d dru g s, wounding, AOB H, a s s ault a dri ver, c om mo n assault and breach of bail. Deprived childhoo d; exposed to vi olence . I llic it drug ad diction at time offending; d rug f r ee at time sentenci ng . Dr ug - fuelled v i olence not out of c harac ter. Mental health is sue s ; stabilised sin ce t h e appe llant had b ee n in custody and ceased ta king illicit drugs . The appellant had as serted at s ente nc ing that she was upset with C because C h a d shown he r daughte r pornog raphy and be l ieved that C was g r oomin g her daughter. A verbal alte r cation occurred be t ween the appellant and t h e vic t im A . After the app e l lant’ s chi ldren th re w sand and grass on A’s car, the victim’s partner (B) confr onted the ap pel la nt a nd flicked the gra ss at her. The appellant t hen attack ed B , rep ea tedly punching him to the head (ch 1) . A a ttempted to stop th e f igh t . The appella nt grab b e d A b y the hair an d punched he r left eye. A fell to the ground and th e appellan t repe atedly pu nc hed he r to the head as she lay on the ground (c h 2) . Ind ictment a nd ch 3 The victim C lived with the a p pella nt. The appellant v e rb all y a bused C a bo ut a mi s s ing t elevi sion. Wh en C t ried t o placate the appel lant, the appellant became agg ressiv e and irr at iona l. C bent over to pick up food that the ap p e llant had thrown on t he flo or. T he appe l lant then raised a hamme r, said “I’m going t o f uc k in g kill you” an d st r u ck C repea tedly to t he head. C r aised her ha nds t o protect herself an d the appe llant hit he r a rm s an d legs. C suffered bruising to her arms and legs and r equired 1 4 staple s to her hea d . The appellant p ursue d C out of the hous e a nd s tr uck the win dsc reen a nd do or pa nel of t he C’s car ( ch 3). $500 da mage was caused to the ca r. The appell ant’s you ng chi ld ren witn essed pa rt of the offending. The sentencing j u dge observed that t he se ntences for the two ag g A O BH offences w ere sho r t e r th an th e offe nc es deserved because of tot ality reasons. The sent encing jud ge acc epted for s ente nc ing purp oses tha t C was the appellant’s d r ug supplie r. Sent en cing j udge found t h at the flicking of grass by B was pretty mi n or , b u t probably in fla med t h e sit uatio n; the a pp ellant was in a highly v olati le state anyway and may well h ave ov erreac ted e ven if B had t reated h er with kid gloves. The a ppellant's mental h ea lth wa s of limited mitigatory value. T he se ntencing judge foun d t hat il licit drug use was t he ap pella nt's p re do minant pro blem, bu t acce pted that there was also an underly ing me ntal f rag il ity wh ich was materia l facts whi ch occurr ed befor e the appell a nt entered her PG i n the Magistrates Court … At [ 28 ] … the fac ts as s t a ted i n the Magis tr at es Court a sserted that R odney Smith had flicked g rass into the ap pellan t's f ace an d that R odney Sm ith had raised his fist t o wards the appellant b efore she struck h i m. By contrast, th e fact s as stated in the D is tri c t Court … ass ert ed t h a t Rod ney S mith h ad f licked gra ss at the appe llant and the stated fact s did not includ e the ass er tion t hat Rodn ey Smith had raised his fist towa r ds the app ellant be fo re she struck him. At [33] … the app e llant 's response was gro s sl y d i sp roportionat e o n ei t h er ve rsion of th e fa cts …. even if the appell ant s hould have been sent enced on t he bas is of the f acts a s allege d in the Magistrates Court, no di f ferent ind ividual s en tences should have been AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 Ch 4 The appel lant fail ed to ap pear at the M agistrates Court f o r the return date of her pr e - s e nt ence order. exacerba ted by the use of drugs. T he appe lla nt had ab us ed ill icit drugs k n owing that she had a ten dency to behave vio l en tl y wh en both und er the i n fluen ce of and w he n coming dow n from drugs. Hig h risk of violent re offending if rel apses int o subs ta nce abus e and ha s further contact with C . No eviden ce of rem or se abo ve PG. imposed for t h e off ences of agg AOBH a n d no d if ferent TES sho uld h a ve be en im posed. A t [34] … t he level of vi olenc e inflicted by the a ppellant o n Sama ntha S mit h, as al leged in the Mag istrates Court, was less t han the le vel of vi ol ence, as alleged i n the District Cour t , is significant, to the ex ten t i t was alleg ed in t h e Dist rict Court th at the appel lant struck Sa manth a Smith to the head after she had fa llen t o t he gro un d, but l ess sign ificant, to the extent it was allege d in the Di strict Court that t he appellant grabb e d Sam antha Smith by the h ai r. H ow ever … even i f t he a p p ellan t sho uld ha ve b een senten ced on the bas is of the facts as allege d in the M agistr ates C our t, no di fferent individu al sentences should have b een impose d for … a gg AOBH an d no diffe r ent TES should hav e been imposed. 1 4 . AMH v T he S ta te of Weste rn 31 yr s at time offending. Ct 1: Dep libert y . Cts 2, 6 & 7: A g g AOB H. C t 1: 3 yrs imp ( conc). C t 2: 1 yr im p (conc). Dismissed. AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 Aust r a lia [2016 ] WASC A 18 0 Deliver ed 19/10/ 2016 Convicte d afte r PG t o C t 7 (1 0% discoun t) . Conv icted after trial remaini n g counts. Minor cr im inal h istory ; no p r evious relevant of f endin g. 15 - 16 yrs w itne s se d h i s mother in a ph ysic a l ly ab usive relat io ns hip. Emot ionally unstab le as a result of a succe ssion of f amily traged ies . His to ry of he roin abu se ; abstinent from the dr u g at time offending . Ct 3 & 4: Agg se x p en. Ct 5: Sex co erc ion . AMH a nd th e vict im , A, had a v iolent and abu sive de - facto relationshi p . They s eparat ed and AM H spie d and stal ked A , a nd committed acts of viol e nce upon h er. The ti me bet ween the ini t ial offending and t he re port to police was a pp rox . 1 0 days. AM H t ried t o per suade A to at te nd a funct ion with him . He dr ove to where she was staying , forced her i nto h is c ar and dro ve towar ds Ravenswood (ct1) . D u ring the d rive and at a n is olated area A MH verbally abused and r epeatedly struck A i n the he ad (ct2) an d f orce d A to perfo rm fel la ti o on him ( ct3). T hreate ning to insert a rusty to ol into A’ s anus , he u sed i t to s trike A on the l egs. He also kicked her i n the ribs (ct 6). F or cing A , naked, ont o all fours he inse r ted a spa nner into her a n us (c t 4 ). He forc ed A to p ut a drink bottl e in to her vag ina and threat en ed to kick it in if she didn’t pu sh it all th e w ay in (c t 5). H e repeat edly bashed her to the he a d and ribs (ct 7). A MH bur nt her with a cigarette or ligh t er . H e also plac ed the f l am e c l os e to her ge nit als. He co ntinu ingly th re atened to harm A and her fami ly. AMH forced A to telepho ne her emplo yer a nd q ui t her jo b . At v arious points he got A to call and s end text me ssages , so that po l ice would not Ct 3 : 4 y rs imp (conc). Ct 4: 7 yrs 6 m ths im p (cum ). Ct 5: 3 yrs 6 mt hs imp ( cum). Ct 6: 1 yr 6 mths i m p (conc). Ct 7: 2 y rs 8 mth s imp (conc) . TES 11 yrs imp. EFP . The sentencing jud g e fou n d the offendi ng prem e d i t ate d and very se ri ous exampl es of their ki nd an d agg ‘ by his callou s, selfish and … cruel an d evil b ehaviour s after the event …’ . T he offend i ng was fou nd to be no t abou t sexual gra t ification , but abo u t sex ual dominance, emba r ra ssm e nt and humili ati on. N o re morse or vi ct im empathy. Appea l concerned length o f sentence ; indi vidual se nt ence s not chal lenged . At [42] … the appellant’ s overall o ffending wa s extr emely seriou s . While it was not in th e worst category of of fen d in g of its ki nd, it a p proac hed t hat le ve l. The offen ding was preme diate d, sustained, cruel and humili ating … The app el lant ’s post - of fence co nduct cannot be ignored a n d undersco res the a pp ellant ’s criminali t y. AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 look for h er. AMH took A to h is mo t he r’s house a nd when p olice atte nded t ol d her she ha d to get over the f ence. She complied, d espite be ing ba dly in jur ed . A s uffered a swolle n ear , severely bruised e y eball and eye socke t , and b ruising and b urns to her body. Her r ib cage and left le g w ere ba dly injured . 13. The Stat e of W estern Australia v W TG [ 2 01 6] WASCA 17 5 Deli v e red 1 2/10/ 2016 3 1 yr s at time sentencing. C onvic ted after trial. At time offe nding, WTG w as su bjec t to an SI O for co nvictions of 3 x breach V R O protecti ng the vi ct im. S ignificant p r ior criminal histo r y, in cluding AOBH, agg a s sa ult , b reaches of pro tect i v e bai l, ca rrying a w eapon with intent to cau se fe ar, agg burg, breach es of VRO and ag g AOBH . A n umbe r of convi ctions o f agg assault, agg AOBH a n d breach V RO agains t this v ictim. Diff i cult childhood, wi t hout positive parental g u id anc e . No signifi can t em p l oymen t his tory. 1 x Agg AO BH. 1 x Thr eat t o harm . 1 x Agg GBH. WTG and the victi m had been in a rela tionship, marred by do mes ti c vi ol ence, fo r approx . 15 yrs. They had been s eparated a pprox. 2 yr s and, despite a V R O, the victim had c ontac t with WTG. WTG st a ye d a we ekend at th e v icti m ’ s hom e wit h thei r ch ildren. Th ey both took d rugs and had sexual relat ions. On the Su nday a fte rn oon, h aving ma de arran gements for the children t o be looke d after b y a frie nd, WTG beca m e aggravated with t he vi ctim over her decli n in g t o h ave sex wit h h im a n d her prior relat io ns hip with a nother man. WT G bec ame increasingly agg ravated by the v ictim' s r ef usal t o discus s the pr ior relationship. Over th e course of the Sund ay eveni ng and into t he early hours of M onday morning, WTG assau l te d t h e victim a nu mbe r of t imes. He s truck th e top of the victim's head with a knife, cutting he r near her left temple (A gg AOB H) . Ag g AOBH : 12 mths imp (cum). Threat to ha rm: 10 mths imp (con c). Agg GB H: 2 y rs 10 mth s imp (h ead sent ence) B reach of SIO: 6 mths imp ( conc). T ES 3 yrs 10 mths imp. The se n tencing judge foun d that the offences cause d t he v ic tim to suff er sign i f icant adve rse co ns eq uence, phy sically and em otion ally. No genuine re morse. T he off ences wer e comm it ted agai nst a sl ightly built, defenceless and vulner able form er partn er who had p l aced a All owed. Appellant challeng ed length of sen tence and t otal it y. Sent ence set aside. WTG re - sentenced t o: Agg AO BH: 6 mth s imp (c um with head sentence). Threat t o har m: 9 mths imp (conc ) . Agg GB H: 4 yrs 6 mth s im p . Bre ach: 6 mths i mp (cum). T ES 5 yrs 6 mon ths i mp. EFP. At [44] - [ 51] Discus sion o f comp ara ti ve c as es. At [52]… th e sentence AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 T hr ee childre n with the vic tim. Long history of ill icit subst ance a buse. Pr io r to o ffences and whil st on remand in custody a t tempts mad e to reha bi litate himself, th r ough religion, reh a bilit ation and training p ro gra m me s. Later , the vi ctim locked herself in a b edroom. WT G kicked op en the door and pu n ched her hard to t h e fac e once or twice wit h a cl e nc hed fist, k noc king h er to the ground u nc onscious. WTG then drove the victim around, and p unched her in th e face ag ai n. L at er, when the car was parked, WTG asked th e victim ab out the p ri or rel ationship an d when she refused t o ans wer he punched her i n the le ft side of the fac e . This occu rred a t le ast four o r five times. One b low caused her head to hit the car w indow. Du ri ng t hi s incide nt WTG s aid he would kill the vic t im (threat to harm) . The v ictim suffer e d bruising and swe l ling to the eye, a split li p a n d a fractured ja w (A g g GBH) . degree of f a ith a nd trust in WTG by r ec omm e nc ing contact . The G B H too k pla ce ove r a sustained period. imposed in thi s case for the offen ce of ag g GBH is so f ar outside the ran g e of sentences open to t h e sen t en cing judge in the s o und e xerci se of hi s discretion as to manifes t imp lied error. At [54] As I have concl uded t hat t he h ea d senten ce was m anifestly inadequate, it f ollows tha t the TES w as als o manifestly inadequate… 12 . McInt yre v The State of W es ter n A ustralia [ 201 6] W A S CA 15 0 De livere d 26 /08/2016 A ppellant H 54 yrs a t time offending. C onvicted a fter e arly P G ( 25 % di sc ount). No prior criminal history. Good e mployment history a nd offen ding out of c haracter. No subs t ance abuse issues. Moth e r ter m in ally ill. App ella n t M 20 yrs at tim e of fending. Ct 1: Agg burg. Ct 2: AO BH. The appellants ar e f a th er and son. B oth a t tende d the victi m’ s house to d emand payment of a $700 debt or the ret urn of a t rail b ike. M w as arm ed with a wooden a xe and H with a tyre iron . The appe llants ar ri ved at the front o f the victim’s hous e . Wh en told to leave M s ma she d a window at the rea r of th e hou se wit h th e axe hand le. H used the tyre iron to smash a win dow at the front of th e h ou se. Both ap pellants entered the house throug h the broke n front w in dow an d demanded t h e victim give them the t rail bike or paymen t f or t he bike. Appell ant H Ct 1: 2 yrs imp. Ct 2: No p e nalty. Ap pellant M C t 1: 1 8 mths imp. C t 2: No penalty. T he se ntencing judge acce p te d t h at the appell ant s’ p l a n was to g et eit he r the money or the trail b ike, rather than “simply to go ther e to g ive hi m a f logg in g”. The sentenc ing judge considered the s eriousness of the o ff ence a nd the Dism issed. A pp ellant s challenged type and length of sente nce. At [17] It ha s b een re cognised th at agg b u rgs a re pr evalen t an d the sent encing objecti ves o f general deterrence and denun ciatio n are of pa rtic ul ar impor tance in the exercise of the sent e ncing disc retion. At [19]… it was open to the sentencing j udge to conclude that th e s eri o us ness of the ag g bu r g AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 Convicted afte r ear ly PG (25% discount) . No prio r crim inal h ist or y. Go od emplo yment hi story and offending out o f character . No sub st ance a buse issues. H s tru ck t h e vict im to the f or eh ead with t he tyre iron. M the n pinned down the vi ctim with the ax e hand le wh ilst H punched the vic tim. The victim suffered a lacerati on near h is eye t hat required two stiches, two b r oken ribs and abrasions a nd br u is ing to vari ous par t s of h is bo dy. He a ls o suffered panic attacks and lost his job because he was un able t o leav e t he hou se . need f or general deterre n ce pr ecluded the suspens i on of th e term of i mp. H d e monst rated littl e or no remors e. M was re morse ful and had empathy for his vi ctim; ashame d b y what h e had do ne, offe nding encouraged by his f a ther. offe nce a nd con si de rations of general deter rence outweighed the miti gating fac tors a nd mad e i t inap pr opriate to suspe nd or conditionally suspe n d the sent ences of im p. 11 . Dos Santos v The State of Wes t ern A ustralia [2016] WA S CA 46 D elivered 16 /03 /201 6 34 y r s at time o ff en ce. 36 yrs at time sente nce. Convicted after tri al. Prior crimi nal hi sto ry ; tr af fic and minor cr iminal offences, mostly f o r public d isorder. N o prev ious sentenc e s of imp. Left sc h ool a fter yr 10. Good e m pl oym e nt record and hi ghly r egard ed in his f ie ld . Unemplo yed at time of offe nce. Two daugh ters from a pre vious marria ge ; 2 yr ol d son (M J) with victim. Ct 1: Agg burg, co m mit o ffence (A gg AOBH), t hr eat s , knew other per son i n plac e, ha bitati on . Ct 2: Agg AOBH. The vic tim, EDS, is Dos Santos’ former par tner. I n a j ealo us rage he broke i nto EDS’ home . She and h e r children (B and M J) we re home at the t ime. Dos Santos confr onted and verbally a bu sed ED S as she wa s h oldi n g MJ. He st ruck h er t hree times in the head w ith a closed fist and con tinued to hit he r as s he tr ied to escape. B tr ied to pull Dos Santos aw a y from his mother a nd begge d him to lea v e her alone. Wh e n she fell to the ground Do s S a nt os grabbed EDS by t h e hai r and bange d he r head int o the floor an d thr eatened to kill her . Ct 1: 5 y rs 6 mth s imp. (conc ) . Ct 2: 3 yrs 6 mt h s imp . (conc). TES 5 yr s 6 th s i mp. EFP T he s ent e n cing judge chara ct er ised the o ffending as be ing ‘ a ve ry serious examp le’ of its type . The att ac k wa s prolonge d, susta ined and repeated and had police not arrived wh en the y did, the c o nsequences would h a ve be en tragic. D ismiss ed. Appe ll ant chal lenged l ength of sentence for ct 1 . At [41] … The ap pe llant’ s criminalit y is particularly e l evate d by the extreme vu l ne rab i li ty of EDS. Not onl y was t he ap pellan t ph ysically b igger than her ; she was unable to prote ct herself becau se she wa s atte mp ting to shield M J and B from the appellan t . AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 Occasional heavy drinker ; n o history o f subs tance abuse. EDS su ffered multi ple b ruis es over he r face, head, forearms and down h e r back. The off e nd ing re presented a si gnif i c ant e scala tion o f vi olence not uncharacteris tic o f the appellant. La ck of remo rse. 10. Gittos v Th e Stat e of Western Australia [2016] W ASCA 7 Delivered 13/01/ 2 01 6 2 9 y rs at time off endi n g . C onvic tion a ft er PG (10% d iscount for in dicta ble offences; 15% fo r s 32 off ences) . Prior c r imin al history , includ ing violent offences. D y sfunctiona l childho od ; ADHD as a child. Left school at ag e 14; good employment hist or y. N o contact wi th thre e child ren. Supp or ti ve new par tner. Substan ce ab use from age 13. Indictment Ct 1: Agg a rme d robb er y. Ct 2: Agg arm ed assault with intent to rob. Sect ion 32 No ti ce Ch 1: Criminal d amage. Ch 2: Agg a s sault . Ch 3: AOBH. Ch 4: Dr ive M V with numbe r p late s not i ssued for t ha t vehicle. C h 5: Poss drug para phernalia containing methyl. Ct 1 T he app ell an t wa s the fron t seat p assenger in a car that dr o ve up and parked ou ts ide th e victim’s h o use. The appellant deman ded $150 from the vi ct im, t h rough the o pen car w indow . Th e vict im s tated that he did not ha ve an y money. The appell ant pointe d a do uble - b arr el led sh otgun at the vic tim at very close range , t hrough the open car w indow. He demanded the victim give al l prop erty he was carrying . The v i ctim compli ed. Th e appel lant then s ta te d “Bring t he $150 in cas h to [a stated address] w ithin the hour, or I’l l b lo w yo ur fucking head of f”. Ct 2 Ind ict me nt C t 1: 4 yrs imp. Ct 2: 3 yrs 6 mths imp to s t art 6 mths after Ct 1 (conc ). Section 3 2 Notice Ch 1: 8 m t hs im p . Ch 2: 6 mths imp. C h 3 : 1 0 mths imp . Ch 4: $ 2 00 fi ne. C h 5: 2 m th s imp (cum ). Ch 1 - 3 con c wit h each other, but cu m with sen tence on ch 5. TES 5 yrs imp. EFP. Sentencing judge found th a t the appe llant’s a cc eptanc e of respons i bility and remorse for c ts 1 and 2 were qual if ied b y the appell ant sho w i ng li ttle insigh t in to Dismiss ed – on p ap ers. Appeal conce r ned totality princ i ple. Individual sentences w ere n o t challenge d. At [ 30] B oth i ndicta bl e offences … involved…an a ppare nt element of premed itation an d plan ning, alb ei t of a simple kind. Th ey were calculated to for c e the firs t complai na nt to pay to the a p pellant money he c o nside red he was owed from a dr ug transaction . B oth i n volve d the use o f a firearm wh ich was not si mply brandished by the ap pellant … E ach ac t was acc om pani ed by what was, in effect, a threat to kill . .. The fa ct that a f irearm was used, a n d the manner in wh i ch it was used, make thes e off en c es particul arl y AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 40 minutes late r , the vict im attend ed the s tated addres s with two others, t o giv e the appellant $100 . The a p pellant aim ed the s h otgun at t he vic ti m and then p ressed the bar rels of the shotgun again st his hea d. The appel lan t dema nd ed an ad ditional $300 from the victim and made simil ar threat s as ear lier. The v ictims left and re p orted the incidents to po li ce. Section 32 Not ice T h e sec ond v ictim is t he mother of the appella nt’s 10 - mth - old son. In attempt to gain entry to th e vi ct im’s hou se, the appellant caused substant i al damage to the ga ra ge doo r (ch 1). Th e appellant gained e ntry through a window and , in th e presence o f t heir s on , r epeat edly p un ch ed and kic ked the second vict im’s mother (ch 2). The appell ant th en pun che d the se cond vic tim in t he face while she was car r ying their son (ch 3) . O n another da t e, the appellant d r ove a car with number pla te s t ha t were not i ssu ed f o r that car (ch 4) . A glass pipe containing tr aces of methyl was found in the car (ch 5 ). his off ending. Sente ncing judge found signifi cant quali ficati ons on th e appe ll ant’s pr ospects of rehabilitation. se r i ous. At [ 32] Th e [s ection 32] offences … we re al so serious offences. Again, th ese of fences we re not t he r esul t of a m omentary aberration … Giv e n the natu re of the a ssault s, it is onl y a matter of good f ortun e that the victims d id no t s uffer more ser ious i njuri es. At [33 ] In relation to these [ sect ion 3 2] offences, there a ppears on the pa rt of the a ppel la nt to ha ve been no acceptance of responsi b ility, rem orse or i ns ight, apart from t h e pleas of guilty a nd th e appellant's unders ta ndi ng of his ange r m anag e m ent p roble m . At [ 34 ] … there is cause for c oncer n about the appellan t's prospe cts of rehab ili ta tion a nd that without substantial change on the appellant' s part th er e is a real risk t h at he will reoffen d . 9. Lawrence v The 34 yrs a t tim e sentencing. C t 1: Act with intent to caus e bod ily harm. Ct 1 : 5 y rs imp. Dismissed. AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 Stat e of We s tern Austra lia [2 0 1 5] WA SCA 1 87 De li ve red 14/09/ 2015 Conv icted afte r tria l. Le ngt hy cri mi nal hist ory, inc luding numerous convictio n s of viole nt offenc es . Of fences commi t ted six months aft e r rel ease from prison. D if fic ul t and dysfun cti onal u pbrin ging. Ct 2: AOBH . Ct 3: St ealing . The ap pe llan t and co - o ffender, Winmar, were highly into x icated. Ct 1 The ap pellan t and Winmar were in an aggress i ve mo od and approached th e vic ti m ’s group . A st are - d o wn en sue d betwee n Wi nmar and t he victim . Win mar t ook up a boxing stan ce and the victi m trie d t o calm t he situa tion dow n. A fistfight broke out a nd each la nded blow s on the other. The appellant punched t he vi ctim in the back of th e h ea d from behin d, caus i n g a c ut to his c hi n. The victi m fell to the groun d and lapsed in and out of con scious ness. The a ppel la nt and W inmar ki cked and stomped on the v i ctim’s upp er body a nd head. The victi m received 11 stitc h ed to his chin and sustai ne d a c o ncussion, s cal p ha e m atoma s, bl ack ey e, f acial swel ling and bruis ing a nd soreness to his u pper body and ne ck are a. Cts 2 - 3 The ap pellant and Winmar the n came acro s s the seco nd victim . The vi ctim attempt e d to avoid the app e llant and Winmar. The a pp ell an t and Winmar co rral l e d the vict im. Th e ap pellant pu nched the vict im’s left eye with substa ntial forc e, kno cking him t o th e ground. The appe llant and Winmar punched a nd kicked him Ct 2: 1 y rs i m p (cum ). Ct 3: 3 mt hs imp (conc ). TES 6 yrs imp. EFP. Sentencing ju dge charac terise d the off en ding a s ‘at th e high e nd involving gratuitous v i olence in company a ga inst i nnocent memb e rs of the communit y ’. S entencing judge foun d tha t t here was a rea l po t e ntial that harm mi gh t have bee n caused to bo th vi ctims by reason of t he force u sed by the a ppe ll ant an d Winmar . Sent encing judge found appell a nt ha d no remorse, no insig ht into seri o usness of his acti o ns an d no concern for vic ti ms. A t [3 4 ] … hi s ant eceden ts , offending behaviour, lac k of insight and absence of remorse belie genui ne re habi li tation. At [41] His criminal history is d isturbing. .. the ap pe llant represents a danger to the comm u nity… AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 while o n the ground. Th e victim got to his feet and ran away, leavin g his m o bile on the gr ound . Railw ay po lice l at er found the mobile in the appe llant’s pocket. The victim su staine d a bl ack e ye, fa cial bru ising an d swelling, grazing and a b rasions to his knee s and ha nds and exte n sive bruising to h i s inn er left thigh. 8. Oxenham v The St ate o f Western Au str alia [2015 ] WAS CA 30 D el ivered 18/ 02/2015 36 yr s at time sentencing. Co nvicted af ter la te PG. N o rele va nt prior crimina l record. Good and privi l eged upbri nging wit ho ut any trauma; sup p ortive parents; on l y eng aged in one signific an t p er s onal relati ons hip; f ather of 2 young c hi ldren. Ed ucated to y r 12 ; good employ ment histo ry. N o alco hol o r dr ug abuse i ssues. Received counselling whil e on remand . Ct 1: A g g AOBH Ct 3: GBH w i th intent. The ap p ellan t and the first vict im (R aso ) w ere pre v iou sly i n a de fact o rela ti on ship and h ad 2 young chi ldren . They separated in April 2012 . In A ugust 201 2, Ras o commence d a rela tionship with the second v ictim (Rob ertson). Th e appe llant reacte d poorly to Raso se e ing s omeone else and made m ult ipl e t hreats t o h arm R o berts on. Durin g th e day of 1 2 October 2012 , the appellant confirmed twice wit h the childr en' s nann y that she would n ot be at Raso’s house. At approx. 1. 30am the fo llowin g morning, t h e appellant went t o Raso ’s house. Raso opene d the do or to the a ppe llan t , who plead ed wit h he r to give the relationsh ip on e more chance. Whi le Raso he ld the ir 1 - y r - o ld , an d in the p resence of their 5 - yr - old, the ap p ellant dem anded tha t Raso g ive him her m obile telep hone. S h e ref used. He grabbed her b y t he hai r, shou t ing 'gi v e me y our f ucking p ho ne,' and t ook the phone from her. He read through the text messag es whi ch ha d C t 1: 18 mths imp (cum). C t 3: 6 yrs imp. TES 7 yrs 6 mths imp. E FP. Sente ncing j u dge n oted that both offen ce s w ere ‘c learly j eal ous a n d ang er - fu elled ra ge offences’ . Sentencing judge regarded the GBH wi th intent offenc e as ‘ a v er y se ri ous exam ple of t his type of offence’ and f ound it wa s premedi ta ted. Sentencing j udge accept ed that the a ppellant was remorse fu l a nd tha t his b e hav iour Dismissed . At [30] In Tromp ler v The State of W estern Aus tralia , Whee ler J A no te d that i n genera l, there are three matter s of signif icance to b e cons idered in as s essing the crimina l ity i nvolved in an offenc e of doi ng GBH ... . Alt houg h these obse rvatio ns w ere not ma de in the cont ext o f the offence of doi ng GBH wit h inte nt, th ey ar e re le vant to that off ence by analogy. At [32] The attack upon Mr Ro bertso n was premed i tated, orch estrate d by d eception, brutally a dm ini ste red and su s tai ned o v er a signi ficant p er iod of tim e. AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 pa ss ed betwe en Raso and Robertson while threa t ening to h arm and k il l her. H e r epeated l y kicked he r in th e shin s and abused her ver ba lly . Th e appel l ant lur e d Robe rtson to th e ho use by sen ding him text messa ges, constructed to appear as if the y had bee n sent b y Raso , from Ras o's pho ne. He forced Ras o to call R obertson an d to m ake him come over . When Robert s on ar rived at the house a ro und 2. 00a m , the a ppe llan t was w aitin g for hi m and immedi ately attacked him. He p unched him in t he face an d , whe n he f ell t o th e ground, repeated ly kicked and punched him in the hea d and bod y. He ju mp ed on him w ith both fe et. The appel lant punched Raso in t he fac e w ith his cle nche d right fist . Raso o bs erved the appellant cont inue kicking an unrespons ive Robert son. T hrough out t he a tt ack, the appella nt taunted and humiliated Raso. Poli ce arrive d at aro und 2.20am. Raso receiv ed larg e ly su perficial soft tissu e inj uri es. Robert s on ’ s in j u ries were very s er io us ; he wou ld have died w ithou t medical interventi on . He has perma nent i nju ri es t o his righ t eye. w as ou t of charac te r. At [35] Mr Oxen ham did not use a we apon to in flict injury up on Mr Ro bertson… However , the absence of an aggra v ating fact or is not t o be e quated with a mitigating factor . At [37] To the extent t ha t a ra nge can be dis cern e d from the previo us ly determine d cases… That range equates approximate ly to a ra nge of betwe en 4 ½ an d 8 yrs un der the current sentencing system . At [40] – [48] D is cussio n of compara t ive cases. At [49 ] Havi ng regard to all rel ev ant ci rcu mstance s , M r Ox e n ham’s offe nce wa s pr operly cha racterised as lying toward the upper en d of the s cale o f seri ous ne ss w hi le not w ithin th e worst category of case. 7. Hansen v The St at e of W estern Austr a lia 54 yr s a t t ime sen t enc ing. Convi cted after tr ia l. 1 x Agg AOBH. 1 x Agg GBH. The victim ( L ee) was in a family a nd dom estic 1 yr 6 mth s imp. 4 yr s 6 m t hs im p (cu m). T ES 6 yrs imp. Dism is se d – on pap ers. At [24] The offences were each s erious exa mples of AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 [2014] WASCA 2 29 D elivered 11/12/2014 Long c riminal record incl uding minor, mostly traffic of fences ; agg AOB H and co mmon ass ault. Good upbringing; c omplete d year 10; r egular e mp loymen t. Indigeno u s; h as stan ding an d resp ect amongst indigeno us pe opl e i n the B u nbu ry a r e a. Fathe r of s ev en children; four of whom are a dults. Hereditary heart cond ition and hy per te nsio n. relati o nship with the app e llant . She had previously b een in a relatio n shi p wi t h the victi m (Hil l) . The victim ’s had a child who was in Lee’s care. L ee was pre gnant with t he ap pell an t’s chil d. The victim’s and their two c h ildren wer e walking a long a street. The appellant f ollowed them in his vehicle. He s to ppe d a nd alighte d fr om t h e vehi cle c arryin g a wooden imp lement. The ap pella nt stru ck Hill with the stick, possi bly se ven o r ei gh t times, to the ribs, kidney and elbow. H i ll suffere d a large l ump - ty pe bruise to the left el bow, a f ractu re to the ulna bone, b rui sin g a nd a la c era tion a nd bl eedin g in a nd a round the kidney. A s hort time later Lee misca rried and Lee we nt and st ay ed w it h a frie nd. Abo ut 20 days later Lee and t he appella nt were d ri nking together at a reserve th en retu r ned t o the friend’s house . The ap pel lant as k ed Lee f o r sex , but she r ef us ed. The ap pellant became angr y and punched her se ven to ten times to he r f ac e wi th a close d fist. Lee was taken to hospital and airlif ted to RP H where she underwen t surgery to repair a fra ctured eye socket. EFP. Denied resp onsibility; No victi m empathy or rem orse. S en tenc in g judge characte rised Agg AOBH as ‘in the mid - range of offenc es of th is kind’; Ag g GBH as ‘in the mi d to u pper range of seriou sn ess ’. Mo derate r isk of r e - offe nding . the ir ty pe. Ea ch was b orn out of anger and was brutal, s ustained a nd comple te ly wit hout justifi c ation. On b oth occ a sions , the victim was def en cel ess . 6. Flet c her v T h e Stat e of Wester n Au stralia [ 2014] WASCA 21 9 De livered 21/12/2014 3 8 yrs at t ime se ntenci ng. Con vi cted aft er trial . Lengthy criminal reco r d includin g convict io ns for violent off e nding. Reg ularly e mploy ed. 1 x AOB H. 1 x S tealing. 1 x Thr eats to kill. The appell a nt believe d his par tn er was having a re l ationship w ith ano t her. The appellant teleph on ed his pa rtner a n d t hrea t e ned a nd ab used h er , demandin g where to know he wo uld find the victim. She decli ned to provi de th e in fo rmation. 16 mths imp ( cum) . 3 mths i mp (conc ). 8 mths imp (conc). T E S 2 yrs im p. EFP. Signif icant delay i n A llowed . (M azza disse nting as to re asons in respect of groun d 2 ). Re - senten ced to a to tal of 16 mths imp. A t [25] Unjustifiable AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 Committed the se of fen ces shortl y af ter b e ing r eleas ed to pa ro le and the day after his paro le was cancelled; Fl ed to Qld; Extra dited to WA and s erved ba lance of sentence. On bail for t hese offen ces but c an celled as a result of failure to atte n d cou rt. Co - offender Cli nt on Luc as convict e d o f AO B H and steal ing an d fi ned $4000 for AOBH and $ 1000 for stealing. Fine p ayable to victim . The app ellant arranged for his c o - offender to go to a gymnas ium where th e victim fre quented . Eith er the appellant or co - of fen der punche d th e vi c t im to the side o f th e face. Th e victim suffe red b ruising and tenderne ss to his jaw, f ell in to th e ga rd en and d ropped h is bag. Both offenders fo u nd the bag and the co - offen der picked i t up and lef t. Th e appe llant telephoned his p art ner on occasi o ns, inc l u ding an oc casion w he n the appe llant told her he h ad “ sorted out ” the victim. Th e appe llant mad e thre at s to his partner that he was going to tie her to a c hair, dou se her w ith petrol a n d set fire to her. The a ppellant did not int en d t o c arr y out t h e t hrea t . It w as ma de to in ti midate and overbear his partn er’s will and it had that effe ct. proceedin gs. N o PSR or Psychological Rep or ts bef ore the Se n ten cing J udge. disp a rity is an appealab le error although it may not alw ays lea d to a n appeal being allow ed an d i f a llowed, ide ntit y of pu nishm ent in r es entencing is not require d. At [32] There is in my view an unjus tifiab le di spar it y in the type of sentences imposed on the co - offende rs becaus e a fine for the co - o ffender is the wro n g typ e of sentence. 5. K ni ght v The State o f W este r n Aust ralia [201 4] W ASCA 217 Delivered 21/1 1/201 4 55 yrs at time sen tencing. Convi cted a fte r tria l. Crimi nal reco rd including firearms, tr a ffic, drug sales an d posses sion charges . Father o f four c hildr en. Constant work r ec ord . Hi story o f ca nnab i s and amphe tamine u se . Appell ant’s son conv icted Ct 1: Agg burg ( home invas ion). Ct 2: GBH. Ct 3: AOBH. As a result of an e arlie r incident involving o ne of the appell a nt’ s so n s , the appe llant wi th three oth ers drove to t he vi ctim’s house to seek revenge. Three of the fo ur men w ere arme d. The a ppellant picked up a meta l weights b ar from t he outsi de front por c h and all o ffender s then forced their way in to th e h ous e. The v ict im a n d two of hi s frie nd s were set u pon. The appel lant started striking the victim wi th the metal ba r befo re escapin g outsid e. Outside the victim was restrained by the a pp ellant ’s son. The a ppellant th en stru c k the victim again. The a pp ell ant al so Ct 1: 3 yrs imp (conc) . Ct 2: 3 yrs 6 mth i mp. Ct 3: 18 mths i mp (cum). TES 5 y r s imp . EFP. No remorse. Pr inc ipa l offen d er. S e n tenci ng ju dge de sc ri bed attack as ‘a violent and senseless Dismissed – on pap e rs. AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 of agg burg; senten ced to 2 y rs 4 m ths im p c on diti on ally sus pended f or 2 yrs. stru c k a sec o n d vic tim a t leas t tw ice with t he metal bar t o the leg. The victim s uffered a left t ension pn eu moth or ax, brui sing to his right ankle and shin a nd a lacer ation to hi s righ t knee. If n o t for medic al assi s tance and treatment, the pn eum oth ora x was l i kel y to h ave e ndang ered h is l ife. The s econd victim s ustai ned a fractured righ t ankle an d bad bruisi ng an d sw el ling on his thig h. attack’ bo rn out of anger from a n e ar lier i ncident; also fo und attack was a premedit a ted and pl anned ‘ac t of ret ribution’. 4. Eric v Bull [201 4] WA SC 342 Deliv e red 24/ 0 9 /2014 Conv icted af te r PG. Cri minal record o f tra ffic offences and di sorderly c onduct in pu bli c plac e. Marri ed; one small child; partner preg n ant. Sta ble accom mo dation , employment and family support . Vo luntarily attended p sy cho log ist . 1 x A OBH. The a ppell ant wa s at a hardwar e store. He ha d arr anged to collect a h ire vehicl e from the s tor e but wh en he ar rived he was told it was not avai l able. An a rgument e ns ued be tween the ap p ellant and staff m e mbers . The appellant left t he sto re angry a n d f rust r a ted. The victim w as a 17 year old employee of th e store. The victim followed t he app ellant ou t of t he store. The appe llant and victim argued i n the carpa rk as the y walked to where th e appellant had par k ed hi s motorcycle. The ap pe lla nt pun ched th e vi ctim t o the face , caus in g a broking nose, three br oken teeth and cuts. Th e appellan t rema ined a t t he sce ne . 7 mths imp. F ull admissions; a dmitted h e had just ‘snapped ’ as a r esult of per s onal pressu res and frust ration over not bein g abl e t o h ire the veh icle . Hig h lev el of vi ct im empathy and remorse; wrote letter of apology t o victim. Agre ed to par ti cipa te in vict im media tion programme. Allowed. Re - sentenc ed to 7 m th s CSIO suspended f o r 12 mths. At [3 3 ] The fact that the appel la nt had ap parentl y ac ted i m pulsi vely and ou t of character also provided the appropriate context within whi ch to assess th e fact or s that a dmittedl y mitigated the seriousne s s of the o ffence an d the pa ttern of sen t encing for the off e nce. At [35] A term of i mme dia te impriso n men t wa s , in t his i nstanc e, m anifestly excessive, hav ing r egard to the pattern of senten cing f or the of fe nce of AOBH AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 id entified by the CoA. At [38] Al t hough the Magistrat es Court is not a pr e scribed cou rt for t he pu rpose of s 81 of the S ent enc ing Act so tha t th e magis trate could n ot have made a CSIO, this court can make such an or der on re - senten cing f oll ow ing an appeal from the Magistrates Court. 3. T e la v The S tate of W es tern A ustralia [No 2] [2014] WASCA 1 0 3 De livered 15/05/2014 1 8 yrs at ti me offe n din g. 1 9 yrs a t tim e sent en ci ng. Convi cted after ear ly PG . Criminal record including posses s cont rol le d we ap on. Emp loyed si nce left school. Positi v e referenc es. Goo d and su pportive fam i ly. Breac hed 6 m t h CRO by committing agg b ur g. Ind ict ment Ct 1: Agg b u rg. C t 2: Agg bu rg . Ct 3: Burg Section 32 C t 1: Drive reckless to es cape pursu it Ct 2: Agg fa il to st op Ct 3: No MDL Ct 4: AOBH Indictment Th e appellant and othe rs commi tted burglar y on homes i n order to ob tain bicycles, off - r oa d m oto rcy cles an d as soci a t ed eq uipme nt. Se ct ion 32: Ct 1, 2 & 3: Th e app ellant was riding an off - road motorc ycle w ith o ther s. Police received a number of calls from m e mbers of t he public t hat th ere were sev e ral motorcy cles dr i ving around on roads with Indictmen t Ct 1: 1 yr 6 m ths im p ( cu m). Ct 2: 1 yr 6 mths imp (conc) . Ct 3: 1 yr im p (conc). Section 3 2 Ct 1: 1 yr imp (cu m ). Ct 2: 3 mths im p (con c). Ct 3: Fine $1000 . Ct 4: 3 m ths imp (cu m). T ES 2 yrs 9 mths im p. EFP. Mo tive was greed . Good future prospect s. Dismiss ed – o n pape rs. At [1 9] The i ndictabl e offences were undoubted l y serious. They wer e premed itated and t a rgeted. Sub stantia l amou nts of property were t ake n o n e ach occ a sio n. … T he as sault occas io ni ng bodily harm was unpro voked , involved the use o f a weapon and i nflict ed mu ltip le injurie s on an innocent victim. AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 n o l igh ts on. Pol i ce purs u e d the appe llant an d two others in vehicles & by h elicopter. The appel lant rode his mo torcyc le at an ex cessivel y high s peed, with lights off and drove on t he incorr ec t side of the road . At the tim e the a p pella nt’s licence was can ce lle d. C t 4: Th e ap pell a n t ass aulte d the vi ct im in an u nprovoked atta ck. T he appellant swung a baseball bat at the v ict im , na rr owly mis sing the victim’s legs. The appel l ant contin ued to sw in g the bat and even t ually struc k the v i ctim in the back and the fa ce. Th e v ictim s u ffe red a bruis ed hi p, a b ro ke n nose and severe swelli ng to the face. 2. Blur t on v The S tate of W es tern A ustralia [2 0 14] WASCA 6 1 Deli v ered 21/03/2014 26 yrs a t tim e o ffe nding. 2 7 y rs a t time sente ncing. Co nvicted af ter late PG ( PG Ct s 1 & 2 in full sati sfaction o f indi ctment ). R ecen t violent criminal history; including armed robbery, d eprivatio n of lib erty, common assault & u nlawful damag e. Father of five y ou ng chi ldr en. No t of goo d chara cter. Int ox ic ated and a ngry on the ni ght o f the offence. Ct 1: AOB H. Ct 2: Act s w it h in te nt to ca use bodi ly harm. Ct 3: Unlawful w o unding. Ct 4: Crimi na l dama ge. The app e llant was a t a fam i ly pa rty at a Cavesham Ha ll . L ate in the ev e nin g th e appel lant had an a rg ument with his partner a nd as a result, he left. Drunk and angry, he wa lke d onto W est Swan Road an d remained there, posing a hazard to himself. The t wo victims, b oth off - dut y polic e offi cers, were passenger s in a m oto r vehic l e d rivi n g on W est S wan Ro ad . The appell ant stood in f ront of their vehicle on the roadwa y caus ing th e d ri ver to slow do wn and d rive around him. As she d i d and with out reaso n, the a ppellant str u ck the vehi cle sev e ral t imes with his fist. Th e d riv er stopped the car . Ct 1: 1 2 m ths i m p. Ct 2: 2 yrs 6 m th s imp. TE S 3 yrs 6 mths imp. EFP. Little victi m empathy. Volu ntaril y h an ded hi mself in to Polic e. Appellant and co - off e nder assis ted polic e in the prosecution of third co - offend e r. In VROI admitted to fi ght ing wi th vict i ms but d e nied using anyth in g as a Dis missed . At [38 ] … As his Honour rightly said, the offence s were unpr ompted an d unprov oked by the v ictims. The appell a nt as saulted both men out o f a nge r b rought o n b y se l f - indu ced i ntoxic at io n, a facto r which afford s no mitigation . t AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 One of t he vic ti ms got out o f the car and appro ached the appellant. The appel lant s wung a nu mb er o f punches at him, which missed, but eventua l ly the vic tim was s tr uck to the left si d e of the ja w with a clen ched fist. At this p oi nt, ot her s who h a d b een a t the party , incl ud in g two co - o ffenders, join ed in the attack. The vic tim as kno cked t o the gro un d, k ic ked and punched by various people. The s econd vict im got ou t of the car to assi s t. He made known t o the victim that he was a p oli ce off icer. T h e a ppel l a nt ap proac hed th e se cond victi m and punched him i n the face. Others a lso attack ed him . The vic ti m en de d up on the grou nd, struggling with the c o - offenders . As a re su lt he sustained a l aceration t o his l i p. T he first victim then c ame to th e secon d vi ctim ’ s aid and p ushed hi s attacker’s away. The two men retreated towards th eir vehicl e. As the fi rst v icti m was retr eating, the appellant and co - offe n ders conti nued to a tt empt t o strike him . Bottles we re thro w n, on e hitting him on the b ack of th e head. The app e l lant; arme d with a w ooden pick et struck him on th e forehead with such force as to sna p the pic ke t in t wo. Both victims managed to get into thei r vehicle. Objects c ontinu ed to be thr o wn at the c ar; one a bot tle; smashing a wind ow , h itt ing victim 1 o n th e jaw a nd sh owered h im with shat tered with gla ss. A t the time the victi m’s wives and a 10 yea r - o ld gir l were in the car. The second victim had se v en weapo n. Sentencing judg e found was principa l offender . AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 stitche s inserte d inside his mouth. T he first vi ctim su f fered a laceration to his f ore hea d. 1. Sin clair v Th e Stat e of W est er n Au st ralia [ 2014] WA SCA 22 Delivered 29/01/2 0 14 18 yrs at time o ff ending . 20 yrs at t ime sentenc ing. C t 1: C onvicted after Trial . Ct 2: Con victed a fte r PG . Exte nsive crimi na l record; mi nor offences o f dis honesty and public d isorder an d comm on ass aul t. P ar ents sep arated p rior to birth; father sho w n only int ermittent i nteres t in him; mo t her support ive of h im. Diagnosed with ADHD at 8 yrs ; u ntreate d si nce 1 5 yrs. His tory o f al cohol and substance abus e; ef forts so far failed to rehabil itate him. Po or his to ry of Ch ildren’s Court order compliance. Co - offende rs not ap pr ehende d and not de a lt with. C t 1: Ag g arme d robbery. Ct 2: AOB H Th e a ppe llant k n ew the v i ctim and h eld a gr ud ge against him. On the night of the incident the appellant was i n comp any w ith hi s two co - offende rs. The co - offenders had m ade an arr angement to meet the victim a t a park for a drug trans action. When the app el lan t a nd co - offe n der s go t to th e par k, the a pp ellant rec ognised the vi ctim. The appellant and co - offende rs cha sed th e v ic tim. T he co - of fenders, who were armed, one with a screwdri ver and t he other a pole, int e nded to rob the vi c tim. The appellant, who w as ar med wi th a br i ck and m o tivat ed by his g ru dg e, intende d to assault h im. E ach offender used th eir implem ents t o rob and i nfli ct serious injury on the victim. The appell a nt came to know his c o - offe nders were r o bbing the v ictim a n d ass isted and encouraged t hem . Th e victi m re ceiv e d lace ratio ns to hi s face, a fr actured nose a nd br oken elbow. The appe llant deri ved no benef it fr om t he robbery . The sentencing judge was unab l e to make a finding a ttribu ting particu l ar injuries to eac h offe nder; however found th e a ppe lla nt’s as s aul t ‘u n d oubte dly’ contri bu te d to the i njuries. Ct 1 : 3 y rs 11 mths imp. Ct 2 : s11 no s entenc e. E FP. Limi te d remors e. ADH D was a contributor to th e offending . Desc ri bed by judge as ‘a serious exa mple of a ser ious offence’. Foun d cri min al respons i bil ity o f appe llant was l es s than his c o - offenders al thoug h not vast. Modera te risk of futur e viol ent o ffen di ng. All owed. Re - sentenced to 2 yrs 9 m t hs imp. A t [32] … a senten ce of immedi a te imprison ment is impos ed for an offence of a rme d r obb ery. A n on - imme d i ate c ustod ial di sp os ition is e xceptional. At [4 8] [the judge]… havi ng decided that the pl ea of gui lt y to cou nt 2 mer ited some mitigation of t h e penalty on count 1, neede d only to ha v e taken it into ac c ount as part of the intui ti ve syn the sis of a ll of t h e rele vant circum st an ces of the case… His hon our w as not required to e xpress the amoun t of a ny di scou nt for thi s factor . AOB H 317(1 ) 1 7.09 .20 Cu rr ent as at 17 September 2020 Transitional Provisio n s Repealed (14/01/2 00 9) Trans i tional Prov isions E nacte d (31/08/2003)