WA v Babakarkhil

[2022] WASCA 59

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Appeal against sentence
4. › State appeal
5. › Unlawfully doing grievous bodily harm
6. › Aider under s 7(c)
7. › Whether sentencing judge erred in factual findings as to circumstances of offence
8. › Whether sentence manifestly inadequate as to type and length
9. › Criminal Code (WA), s 297(1)
10. › Criminal Appeals Act 2004 (WA), s 31(4)(a)
1. Criminal Law
2. › Complicity
3. › Aiding
4. › Mental element of aiding
5. › Whether aider must know of particular severity of assault or only that assault was occurring or about to occur
6. › Criminal Code (WA), s 7(c)
1. Criminal Law
2. › Sentencing
3. › Grievous bodily harm
4. › Offence committed in company
5. › Alcohol-fuelled violence in public entertainment areas
6. › Parity principle
7. › Whether suspended sentence appropriate
8. › Criminal Code (WA), s 297(1)
1. Criminal Law
2. › Appeal
3. › State appeal against sentence
4. › Residual discretion
5. › Whether residual discretion should be exercised in respondent's favour
6. › Criminal Appeals Act 2004 (WA), s 31(4)(a)

Quick Take

For criminal responsibility as an aider under s 7(c) of the Criminal Code (WA) in relation to an offence of unlawfully doing grievous bodily harm, the prosecution need only prove that the aider knew the victim was being, was about to be, or might be assaulted; it is unnecessary to prove the aider knew or expected the assault would be of a particular severity or have a particular result. A sentencing judge must not artificially segment a short, continuous altercation when assessing which acts constituted aiding. Ordinarily, immediate imprisonment is the only appropriate sentence for unlawfully doing grievous bodily harm committed in company in a public entertainment area, and the objective features of such offending will outweigh personal mitigating circumstances favouring suspension.