Atherden v The State of Western Australia

[2010] WASCA 33

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   ATHERDEN -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 33

CORAM:   McLURE P

OWEN JA
WHEELER JA

HEARD:   2 DECEMBER 2009

DELIVERED          :   26 FEBRUARY 2010

FILE NO/S:   CACR 41 of 2009

BETWEEN:   ALAN DAVID ATHERDEN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :McKECHNIE J

File No  :INS 18 of 2009

Catchwords:

Criminal law - Murder - Weight to be given to intention - Effect of guilty plea

Legislation:

Criminal Code (WA), s 279(4)
Criminal Law Amendment (Homicide) Act 2008 (WA), s 10
Sentencing Act 1995 (WA), s 8(2), s 90

Result:

Leave granted
Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     Ms B J Lonsdale

Respondent:     Mr D Dempster

Solicitors:

Appellant:     Mark Andrews Legal Pty Ltd

Respondent:     Director of Public Prosecutions (WA)

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

Bertilone v The Queen [2009] WASCA 149

Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293

H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151

R v Novakovic [2007] VSCA 145

R v Warfield (1994) 73 A Crim R 516

Royer v The State of Western Australia [2009] WASCA 139

Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188

The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129

Vagh v The State of Western Australia [2007] WASCA 17

1. McLURE P: I agree with the orders proposed by Wheeler JA for the reasons she gives. The appellant was sentenced to life imprisonment for the murder of Sylvia Murray. The appeal is against the minimum period of 16 years the appellant must serve before being eligible for release on parole (non‑parole period). It was accepted by both parties that a non‑parole period is part of a sentence and thus s 8(5) of the Sentencing Act 1995 (WA) applies. That position is consistent with authority: Bertilone v The Queen [2009] WASCA 149 [29]. See also, Griffiths v The Queen (1977) 137 CLR 293; R v Warfield (1994) 73 A Crim R 516, 521 and R v Novakovic [2007] VSCA 145, 424.

2. For the reasons given by Wheeler JA, the sentencing judge made an express error in failing to reduce the appellant's non‑parole period for his plea of guilty.  That error enlivens this court's power to set aside that part of the sentence and re‑sentence the appellant.  Having regard to all relevant sentencing factors (in particular, that the offence was not pre‑mediated, the appellant had no intention to kill, he pleaded guilty and cooperated with authorities) a non‑parole period of 14 years is appropriate.  On review of the standards of sentencing imposed under the law as it stood at the time of the offence, a non‑parole period of 14 years is higher than that customarily imposed in comparable cases.  However, such a disposition is appropriate because it is consistent with the legislative changes made by the Criminal Law Amendment (Homicide) Act2008 (WA), which changes operate retrospectively.

3. OWEN JA:  I have seen the reasons that Wheeler JA intends to publish.  I agree with her Honour's conclusion that the appeal should be allowed and that the appellant should be resentenced to a minimum term of 14 years.  I also agree with her Honour's reasons for coming to that result.

4. In Royer v The State of Western Australia [2009] WASCA 139 [57] ‑ [59] I summarised the principles relating to pleas of guilty and their impact on the sentencing process. I went on to say [60]:

   The entry by an accused person of a plea of guilty and the reasons behind her or him taking that course of action are important considerations in the sentencing process.  In my view it is highly desirable that sentencing judges explain with some care how they have taken the plea (and associated questions such as remorse) into account and, if they have decided not to afford any reduction from the sentence, the reasons for taking this course.  The explanation need not be elaborate and it need not canvass every permutation and computation arising from the factual circumstances.  It should, however, give enough information to satisfy the public policy goal to which I have referred.  But the absence of such an

explanation does not, of itself, demonstrate appealable error.  This is quintessentially a question of substance over form: did the sentencing judge reduce the sentence by virtue of the plea or, if not, was that course of action justified in the circumstances of the case?

1. I have not been able to discern how, as a matter of substance, the early guilty plea was accommodated in the 16 year minimum term imposed in this case.  This is why I came to the view that ground 3 of the grounds of appeal had been made out.  In my view a minimum term of 14 years before the appellant can be considered for release on parole is an appropriate disposition.

   WHEELER JA: 

The appeal

1. The appellant was convicted, by his own plea of guilty, of the murder of Sylvia Murray.  He was sentenced by McKechnie J on 8 April 2009 to life imprisonment with a minimum non‑parole period of 16 years.  The appellant now applies for leave to appeal against the minimum non‑parole period ordered by the sentencing judge.

Circumstances of the offence

1. The deceased, Ms Murray, was 58 years old at the time of her death and had been in a relationship with the appellant for about three and a half years before separating from him in January 2008.  On 18 March 2008, she was granted a violence restraining order against the appellant, which prohibited him from coming within 100 m of her home or work address, and within 20 m of her person.

2. In the early morning of Monday, 31 March 2008, Ms Murray's neighbour heard screams coming from her unit. This lasted for about 5 to 10 seconds.

3. The deceased was discovered by her ex‑partner, Mr Barber, about six hours after the screams were heard.  He had called her at work and was told that she had not come in.  Mr  Barber was concerned, so he drove to her unit, arriving at around 11.45 am.  He saw her lying on her back groaning, with a large wound to the right side of her skull.  He saw what looked like a large amount of blood, and jelly‑like liquid near her head.  She was bleeding from the nose, her hair was covered in blood, her face was white with her eyes rolled back and she was soaking wet and shivering.

1. Mr Barber called an ambulance and the police, and found a house brick covered in what looked like blood.  Neighbours brought over blankets and they tried to get her warm and dry.  The paramedics saw she had an open skull fracture that was oozing clear fluid, bruising to her eye socket and that she had sustained a significant head injury.

2. She was taken to hospital, operated on, and was recorded as having died at 3.00 pm 12 April 2008. 

3. In his video record of interview with police on the evening of the assault, the appellant admitted that he was responsible for the injuries to Ms Murray, but refused to make any further comment.  In a second interview that evening the appellant said that the night before the offence, he saw Ms Murray at a pub and starting thinking about the restraining order she had in place against him.  He wanted to speak to Ms Murray because he needed to get the violence restraining order removed so that it would not jeopardise the upcoming renewal of his yard manager's licence.

4. He drove to her place during the evening, approached the house, then left.  He later returned at about 6.30 am, parking his car at a nearby shopping centre.  He sat on the front door steps waiting for her to come out.  She started yelling at him to get off the property and pushed him.  He got a rubber mallet from inside the garage.  He hit her with the mallet "a couple of times" or "probably three" to the head until she lost consciousness and slumped down to the ground.  He picked up a brick that was sitting by the garage door and hit her with it.  She was lying on the brick paving near the front door when he left.  He put the mallet in a wheelie bin.  He told Dr Proud that he later returned to the house to collect a file he left there. 

5. The post‑mortem report of Dr Cadden found that the injuries to Ms Murray included injuries behind her ears, lacerations to the head, and multiple skull and facial fractures.  He concluded that she had sustained severe head injury with skull fracturing and brain injury, that would have been caused by multiple blows struck to each site of the gaping areas of skull laceration.  The injury to the right side of her head, which was an open wound exposing large fragments of bone and brain tissue, was likely inflicted while she was on the ground. Ms Murray's injuries were of the same severity as those Dr Cadden would expect to see in a high‑speed motor vehicle crash victim.

The appellant's personal circumstances

1. The appellant was 60 years old at the time of the offence.  He was raised in Perth and had a relatively stable home life as a child.  He was the only son out of four children and felt lonely and isolated at home.  His parents separated when he was 30 and his father remarried.  The parents maintained an amicable relationship.  The appellant was an average student who enjoyed his time at school.  He left when he was 15 to work in his father's accounting firm.  He left home when he was 18 to work in the north of the State in the mining industry and began working in the car industry some years later.  He was very successful in this industry and was working as a buyer and valuer for BMW Auto Classic at the time of the offending.

2. The appellant married his first wife at age 24, and remained married for 28 years.  They had three children together.  The appellant started to experience emotional and psychological difficulties after his first wife told him that she was leaving and had met someone else in 2000.  He felt humiliated and upset, but stated that the relationship is now amicable.  His ex‑wife wrote a letter to the sentencing judge in which she described the appellant as "a loving family man", and stated that he was never violent and never hit her in the years they were together.

3. Some time around 2001, the appellant was in a relationship with a woman named Jane.  When that relationship ended, he stalked her for some time, and in 2003 punched her a number of times in the face, in what appeared to be a premeditated assault.  She obtained a violence restraining order against him.

4. The appellant met Ms Murray in 2004 and they lived in a de facto relationship from late 2004 to June 2006.  In January 2008, Ms Murray ended the relationship.  The appellant became very upset and began to increase his alcohol consumption.  He tried to contact her by email, phone calls and through her friends, receiving no response.  He visited her house at the end of February and was asked to leave.  He described his behaviour to the author of the psychological report as "pestering and stalking".  In early March, he saw Ms Murray at a restaurant and she left immediately after he tried to approach her.  Shortly afterwards, on 18 March 2008, he was served with an interim violence restraining order preventing him from approaching her or her residence.  He admitted breaching the violence restraining order by texting and calling Ms Murray, saying that he needed to ask her to remove the violence restraining order, as his licence as a car dealer was being renewed the following month, and if notified of the violence restraining order, the licensing board may not have renewed his licence.

5. The appellant's criminal record contained a number of minor traffic offences which were dealt with by fine, demerit points or disqualification.  The only violent offence was the assault recorded by the Court of Petty Sessions in 2004, punished with a $600 fine.

6. The appellant did not seek any medical attention for Ms Murray before he left the scene.  He said that after the offence, he wanted to end his life and took (over‑the‑counter) sleeping pills and a large amount of wine.  He drove to the beach and contacted his sister about the assault.  After talking to a solicitor, he was advised to turn himself into a police station.

7. The reason he gave for the offence was that "I was focussed on myself to some extent and she didn't see the importance of the impact [of the violence restraining order] on my life and dealers licence".  The author of the pre‑sentence report stated that "Mr Atherden appeared to show some remorse for his actions, although also attempted to justify his actions and show the victim as being unreasonable".  Ms Hasson, the author of the psychological report states "Mr Atherden accepts responsibility for his offending behaviour and acknowledges that his actions caused the death of Ms Murray.  He has some, although limited insight into his actions".  Dr Proud, the author of the psychiatric report, states that "He shows remorse and guilt and understands the wrongfulness of his actions that led to the death of his previous partner … He believes that he should be punished for what he has done".

Sentencing remarks

1. McKechnie J adopted the prosecution's outline of material facts at [3], and noted the appellant's personal circumstances and relationship history at [6] ‑ [11].  He considered the presence of the violence restraining order to be a significant aggravating factor ([12]) and emphasised the need for general deterrence in relation to domestic violence ([13]).  He noted a "callous disregard" for the victim but accepted that there was no intention to kill her ([14]).  The crime took place after an explosion of rage which was partially explained by the breakdown of the relationship and her refusal to speak to him.  However, the appellant knew Ms Murray needed immediate medical attention and did nothing to help her.  He focussed instead on his own issues, remembering to dispose of the mallet and coming back to collect his file ([16]).

2. His Honour noted the changes in the penalties for murder and stated at [19] ‑ [20]:

   I should make it clear that I do not consider myself bound by [the previous] range. Instead, I regard my discretion to set a minimum term is at large and subject to the sentencing principles set out in s 6, s 7, and s 8 of the Sentencing Act and other principles of common law established by superior courts in this country.

   My view is that while some guidance must be taken of past minimum terms, I am not bound by them because Parliament has expressly provided for a new regime.

Grounds of appeal

1. There are three grounds of appeal:

   1.The minimum term of 16 years was in excess of the range of sentences imposed for such an offence.

   2.The learned judge failed to give sufficient weight to the States concession that the offender only intended to cause grievous bodily harm, not death.

   3.The learned sentencing judge failed to give sufficient weight to the offender's early plea of guilty

Grounds 1 and 2

1. These two grounds tended, to an extent, to run together.  The written argument in support of them relies significantly upon sentences previously imposed for the offence of murder.  However, on 1 August 2008, the Criminal Law Amendment (Homicide) Act 2008 (WA) (the Amendment Act) came into force. Section 10 of the Amendment Act had the effect of repealing s 278, s 279 and s 282 of the Criminal Code (WA) and replacing them with one offence of murder. There is a new sentencing regime applicable to that offence. Section 279(4) of the Code now provides:

   (4)A person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless ‑

   (a)that sentence would be clearly unjust given the circumstances of the offence and the person; and

   (b)the person is unlikely to be a threat to the safety of the community when released from imprisonment,

   in which case the person is liable to imprisonment for 20 years.

2. Assuming that, as in this case, it is appropriate to impose a sentence of life imprisonment, s 90 of the Sentencing Act1995 (WA) provides:

   90.Imposing life imprisonment for murder

   (1)A court that sentences an offender to life imprisonment for murder must either ‑

   (a)set a minimum period of at least 10 years that the offender must serve before being eligible for release on parole; or

   (b)order that the offender must never be released.

3. Clause 2(3)(b) of sch 1 (transitional provisions) of the Amendment Act makes it clear that where the offence was committed prior to the Amendment Act, but the sentencing takes place afterwards, the new sentencing provisions are to apply.

4. In the present case, therefore, having concluded that a sentence of life imprisonment was appropriate, his Honour was obliged to impose a minimum term of 10 years' imprisonment.

5. In oral submissions, the appellant's counsel on this appeal conceded that the legislature did not intend that sentencing judges would be bound by the range of sentences previously considered appropriate to the offence of murder.  That concession was plainly correct. 

6. It follows from the creation of a new offence, which may be committed by a person who has either an intention to kill or an intention to cause bodily injury of such a nature as to endanger life, with the same penalty range available in relation to offenders holding either intention, that it will not invariably be the case that killing with an intention to cause bodily injury of such a nature as to endanger life must be regarded, for sentencing purposes, as necessarily less serious than killing with an intention to cause death.  Examples of cases in which an intention to cause bodily injury of such a nature as to endanger life may be more seriously regarded than an intention to cause death can be imagined.  For example, the case of a revenge attack, where a person deliberately wishes to cause bodily injury of such a nature as to endanger life, but not cause death, in order that the victim may experience a lengthy period of suffering, may be regarded as more serious than killing with an intention to cause death, if the latter type of killing could reasonably be regarded as a "mercy killing", or took place in the heat of the moment, after significant provocation.  Further, in many cases, it may be difficult to discern precisely what the offender's intention was, so that the offender will fall to be sentenced largely for his or her conduct, rather than for his or her intention. 

7. Broadly, it may be accepted that the value which the community places on human life is such that it is likely that, other things being equal, killing with an intention to cause death will be more seriously regarded.  However, to state that is to say no more than that the offender's intention is one of a range of circumstances which will be relevant to determining an appropriate sentence.

8. Grounds 1 and 2, then, really raise an issue concerning the weight given by the learned sentencing judge to the intention which it was accepted the appellant had in the present case.  If his Honour did give it some weight, then the appellant faces a difficult task in making these grounds out, since a failure to give adequate weight to a relevant sentencing factor will constitute appellable error only if it amounts to a failure to exercise the discretion actually entrusted to the court:  Vagh v The State of Western Australia [2007] WASCA 17.

9. In this case, it was accepted by the sentencing judge that the offence was not premeditated and that it occurred in an explosion of rage.  However, there can be no doubt that the appellant was aware of the gravity of her injuries when he left her lying in her courtyard.  Nevertheless, he chose not to seek any medical attention for Ms Murray.  Following his "explosion of rage", and after he had driven away, it appears that he returned to collect his file.  He spoke to his sister about what had occurred, and a lawyer was contacted.  He still did not attempt to obtain medical assistance for Ms Murray.  As the learned sentencing judge noted, the callous disregard he showed for her need for urgent medical attention was a significantly aggravating factor.  It evidenced a complete indifference as to whether his actions resulted in her death.  His Honour considered that the appellant's intention was a relevant factor, and referred to it in his sentencing remarks.  He did not appear to regard it as a factor calling for significant mitigation of punishment, counterbalanced as it was by the appellant's callous indifference.  I am unable to perceive any error in the way his Honour approached this issue. 

Plea of guilty (ground 3)

1. The appellant submits that in this case there was both a guilty plea at the earliest opportunity and remorse, and that his Honour's failure to note the guilty plea in his sentencing remarks, combined with the long non‑parole period, show that his Honour failed to give any weight to the guilty plea. 

2. The respondent points out that the sentencing judge noted during submissions that the appellant pleaded guilty at the earliest opportunity, saying:

   I would see in all of this for what it's worth effectively a plea of guilty at the earliest possible opportunity because he did hand himself in and the charge that was ultimately preferred by the prosecution he has pleaded to.

3. He also referred to the guilty plea at the commencement of the sentencing remarks:

   You come for sentence now, having pleaded guilty earlier today to the murder of Sylvia Murray.

4. However, his Honour did not state during the sentencing remarks that the guilty plea was a mitigating factor for which some reduction would be made to the minimum non‑parole period. 

5. The relevant principles concerning the way in which this court will approach a sentence appeal where a judge has failed to observe s 8(2) of the Sentencing Act were set out by Steytler P in H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 at [10]:

   Section 8(2) of the Sentencing Act 1995 (WA) provides that a plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation. Section 8(4) provides that if, because of a mitigating factor, a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court. Given the provisions of s 8(4), the failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judge has overlooked it: see, for example, R v Thompson (2000) 49 NSWLR 383 at 395 [52]; and Chivers v The State of Western Australia [2005] WASCA 97 at [18], [53]. However, the fact that the requirement of s 8(4) (as opposed to the existence of the plea itself) has been overlooked will not be a reason for overturning the sentence imposed if it is obvious that a reduction has in fact been made on account of the plea: Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998 at 6 per Malcolm CJ, with whom Franklyn and Ipp JJ were in agreement; Little v The Queen [2000] WASCA 87 at [13] per Kennedy J, with whom Wallwork and Murray JJ were in agreement; and Shipley v The Queen [2003] WASCA 247 at [19]). Also, the sentence will not be overturned for this reason if the Court of Appeal is of the opinion that, even making an appropriate reduction on account of the plea of guilty, no different sentence should, in the light of other circumstances, have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA)

6. In my view, it is not "obvious" in the present case that a reduction has been made on account of the plea of guilty.  His Honour's earlier comment, containing, as it did, the expression "for what it's worth" suggests that at that time his Honour may not have reached a decision about whether this was one of the exceptional cases in which, notwithstanding that the mitigating factor of a plea of guilty was present, it was not appropriate for it to result in any actual reduction in sentence.  Of course, it may also be that his Honour simply had not determined what was an appropriate reduction.  However, the point is that it is not clear from what his Honour said that he was effecting any reduction in sentence as a result of the plea of guilty. 

7. The reference to the guilty plea at the commencement of the sentencing remarks shows that his Honour was aware of it as part of the history of the proceedings, but does not necessarily indicate that his Honour discounted the sentence as a result.  Further, it was accepted, I think, on both sides in the present appeal, that the sentence imposed of 16 years' imprisonment was a severe one for an offence involving no apparent premeditation, and a relatively brief (although undoubtedly very violent) attack.  It is not obvious from the sentence imposed that there was a reduction on account of the plea of guilty.

8. There is the complicating factor in the present case that there is a minimum term of imprisonment prescribed by law for this offence.  The significance of that factor was explained by Pullin JA, with whom, in relation to this issue, Roberts‑Smith and Buss JJA agreed in Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188. In that case, his Honour said (referring to the earlier sentencing regime) at [19]:

   When sentencing to life imprisonment for wilful murder, for example, a sentencing Judge has a limited discretion as to the final sentence and the minimum period he or she sets before parole (see Mitchell v The Queen (1998) 20 WAR 257 per Ipp J). Whilst it is technically possible for a Judge to reduce the minimum term before parole for both a life and a strict security life by 25 per cent (from the maximum non-parole periods of 19 and 30 years respectively), this is only for sentences at the very top end of the scale. For example, the period of 30 years before parole could be reduced to 22.5 years with a 25 per cent discount, but a mid‑range sentence of 25 years, if discounted by 25 per cent, would drop below the prescribed minimum of 20 years. Judges must be allowed to set a sentence which they feel is appropriate in all the circumstances, without being constrained by having to allow a set discount, or range of discounts, for a plea of guilty.

9. His Honour was there pointing out that in relation to at least some offences which fall towards the lower end of the range of culpability, the presence of a minimum term makes it impossible for a sentencing judge to apply the quantum of discount for a plea of guilty which he or she would ordinarily apply, because to do so would mean that the sentence imposed would fall below the statutory minimum.  Where an offence is right at the bottom of the range of culpability, it may be that no discount at all can be given, for the same reason. 

10. However, I do not think it follows that the principles governing the awarding of a discount for a plea of guilty cease to apply in cases where there is a statutory minimum term.  Rather, the result will be that there is a compression of sentences towards the lower end of the range, with offences at the bottom of the range of culpability treated effectively in the same way as those which are towards the lower end, but not at the extreme lower end, of culpability. 

11. While such compression may engender some feeling of grievance in those offenders whose culpability is at the bottom end of the range, and who receive no discount for even the earliest plea of guilty, the result does not seem to me to be so unreasonable as to implicitly require departure from the general principles governing discounts for pleas of guilty.  Sentencing is not an exact science, and there is not, in every case, a smooth, linear progression of sentence, with sentences gradually increasing in a manner which is proportionate to the gravity of the crime:  see, for example, The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129.

12. Where there is a plea of guilty, and a statutory minimum sentence, I apprehend that sentencing principle requires the following course to be taken.  In all cases, as the Sentencing Act requires, a sentencing judge must regard a plea of guilty as a mitigating circumstance and the degree of mitigation will be greater, the earlier the plea is made.  Where the court is able to reduce the sentence it would otherwise have imposed because of that mitigating factor (assuming the case is not the exceptional one in which, for some reason, the court does not consider that mitigating factor should be marked by any reduction in sentence), the court must state in open court that a reduction has been made for that reason.  As a practical matter, a desirable side effect of following what I apprehend to be the statutory requirement will be that this court on appeal will be able to ascertain more readily how seriously the sentencing judge has characterised the circumstances of the offence.  It may, of course, be that, because of the existence of a statutory minimum, the sentencing judge is not able to reduce the sentence as much as he or she otherwise would have done, by reason of the plea of guilty, but where there is any reduction by reason of the plea of guilty, that fact must be stated. 

13. In some, and probably relatively rare, cases a court may decide that the appropriate sentence, absent the plea of guilty, would be the statutory minimum term.  In that case, the court will be unable to effect any reduction by reason of the plea of guilty.  If there is no reduction by reason of the plea of guilty, the court is not required to state that fact, or the reason for it.  However, it would be desirable if sentencing judges did so.

14. In the present case, it seems to me that ground 3 is made out. 

15. Error having been established, it falls to this court to resentence the appellant.  The sentencing range is very wide in relation to offences of this kind, with non‑parole periods ranging from the statutory minimum of 10 years up to the term of the offender's natural life.  I agree with the sentencing judge in the present case that the aggravating features of this offending included the brutality of the attack on a defenceless woman, the fact that two weapons were used, the stalking behaviour which occurred in the months leading up to the attack, the presence of the violence restraining order, and the appellant's callous disregard for the victim's obvious need for medical attention.  The mitigating factors were the early guilty plea, the co‑operation with authorities, the expressions of remorse (albeit remorse of a somewhat limited kind), his positive work history and his good references.  Although he does not have a lengthy record, he could not be regarded as a person of unblemished character, particularly in the light of his prior conviction for assault of a former partner.  As I have noted, although the attack was brutal, it was unpremeditated and relatively brief.  The lack of premeditation, however, is to a large degree counterbalanced by the fact the appellant attended at the deceased's house at all in circumstances where there was a violence restraining order which prohibited him from doing so.  Taking all of those factors together, it appears to me that an appropriate non‑parole period which would give weight to the plea of guilty would be 14 years' imprisonment. 

Conclusion

1. I would grant leave, allow the appeal, and in lieu of the 16‑year minimum non‑parole period, substitute a term of 14 years.