Attwell v The State of Western Australia
[2015] WASCA 84
•30 APRIL 2015
ATTWELL -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 84
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 84 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:34/2014 | 3 DECEMBER 2014 | |
| Coram: | MARTIN CJ BUSS JA MAZZA JA | 30/04/15 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted with respect to grounds 1 and 3 Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BRIAN VINCENT ATTWELL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Attempting to procure another to commit murder 8 years 6 months' imprisonment Whether sentencing judge applied the wrong maximum sentence Whether sentence manifestly excessive |
Legislation: | Criminal Code (WA), s 88, s 143, s 279, s 283, s 552, s 556 |
Case References: | DC v The State of Western Australia [2014] WASCA 121 Gulyas v The State of Western Australia [2007] WASCA 263 Tarzia v The Queen (Unreported, WASCA, Library No 8761, 15 March 1991) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ATTWELL -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 84 CORAM : MARTIN CJ
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : SIMMONDS J
File No : INS 69 of 2013
Catchwords:
Criminal law - Appeal against sentence - Attempting to procure another to commit murder - 8 years 6 months' imprisonment - Whether sentencing judge applied the wrong maximum sentence - Whether sentence manifestly excessive
Legislation:
Criminal Code (WA), s 88, s 143, s 279, s 283, s 552, s 556
Result:
Leave to appeal granted with respect to grounds 1 and 3
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr T F Percy QC & Ms B Lonsdale
Respondent : Mr J McGrath SC
Solicitors:
Appellant : Jonathan Wagenaar and Associates
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
DC v The State of Western Australia [2014] WASCA 121
Gulyas v The State of Western Australia [2007] WASCA 263
Tarzia v The Queen (Unreported, WASCA, Library No 8761, 15 March 1991)
1 MARTIN CJ: This appeal against sentence should be dismissed for the reasons given by Mazza JA with which I agree.
2 BUSS JA: I agree with Mazza JA.
3 MAZZA JA: This is an appeal against sentence.
4 The appellant was convicted on 29 November 2013 after a trial in the Supreme Court before Simmonds J and a jury of one count of attempting to procure another to murder Michelle Patreena Attwell, the estranged wife of his son, contrary to s 279 and s 556 of the Criminal Code (WA). On 28 January 2014, his Honour sentenced the appellant to 8 years 6 months' imprisonment with eligibility for parole, backdated to commence on 1 August 2013.
5 There are three grounds of appeal. Ground 1 alleges that the primary judge erred in law by applying the wrong maximum penalty for the offence. Grounds 2 and 3, in substance, allege that the sentence was manifestly excessive.
6 Leave to appeal has been granted in respect of ground 2. The question of leave in respect of grounds 1 and 3 has been referred to the hearing of the appeal.
7 For the reasons that follow, none of the grounds have been made out.
Background
8 At the time of the commission of the offence, the appellant was 72 years old. He had lived and conducted a successful business in Albany over many years. Ms Attwell was the estranged wife of one of the appellant's sons. Proceedings for property settlement between Ms Attwell and the son had been commenced in the Family Court of Western Australia. Those proceedings were being conducted in an atmosphere of acrimony. The appellant developed a hatred for his daughter-in-law which reached the point where he wanted her dead.
9 On 10 September 2012, the appellant had a conversation with a man who was identified at trial by the pseudonym, Mr R. Mr R had come to the appellant to explore the possibility of employment. In that conversation, without any prompting by Mr R, the appellant offered him $30,000 to get rid of his daughter-in-law. Mr R treated the suggestion dismissively and said that he knew someone who was a lot bigger and scarier than him who would probably be willing to do the job and that he would telephone him to find out.
10 Mr R later spoke to his mother, who advised him to report the conversation to the police, which he did. On 18 September 2012, Mr R telephoned the appellant. Their conversation was recorded by the police. Mr R told the appellant that he had been thinking about their earlier conversation and that he had a mate named 'Josh' (in truth, an undercover police officer) who would be 'pretty keen' and would probably want to meet the appellant. Mr R told the appellant that 'Josh' was 'a bit of a nasty bastard'. The appellant said that was all right. Mr R indicated that 'Josh' was prepared to travel to Albany to meet the appellant. The appellant indicated that 'Josh' should telephone him. The appellant agreed to pay Mr R a spotter's fee.
11 On Wednesday 19 September 2012, the undercover police operative posing as 'Josh' telephoned the appellant. An arrangement was made for 'Josh' to call the appellant on 25 September 2012, after 'Josh's' arrival in Albany.
12 On the afternoon of 25 September 2012, 'Josh' telephoned the appellant and arranged a meeting later that day at Middleton Beach. At about 5.40 pm, 'Josh' met with the appellant at the Middleton Beach car park and got into the appellant's vehicle. The meeting was audio and visually recorded (exhibit 4). After initial introductions, 'Josh' asked the appellant whether the appellant intended 'to do the deal'; that is, kill Ms Attwell. 'Josh' indicated that he was willing to do so. 'Josh' asked for a photograph of Ms Attwell, but the appellant did not have one. 'Josh' told the appellant that he needed Ms Attwell's address and he inquired of the appellant what kind of car she drove. The appellant gave 'Josh' the information as well as a physical description of Ms Attwell. The appellant offered to drive 'Josh' to Ms Attwell's address.
13 It is evident that the appellant had given Ms Attwell's death considerable thought. He told 'Josh' that he did not want anything done that could come back to him if the police searched for her. He told 'Josh' that he wanted Ms Attwell 'strangled or something'. The appellant indicated to 'Josh' that he ('Josh') might arrange to meet Ms Attwell, bind her with duct tape and strangle her. Further, he did not 'want any blood anywhere. I want no signs left'. The appellant said that he wanted it to appear that she had 'just vanished'.
14 It is also clear from the conversation that the appellant was not acting at the spur of the moment. He spoke to 'Josh' about how Ms Attwell's body was to be disposed of. The appellant told 'Josh' that he had a lot of land, but he did not want her buried on any of it because the police would come to him. The appellant offered 'Josh' one of his excavators to dig a big hole and 'put her down 30 feet'.
15 'Josh' confirmed with the appellant that the payment of $30,000 was 'for everything'. 'Josh' told the appellant that he wished to be paid a deposit, and once he had done the 'job' he would contact the appellant, they would meet and he would get the rest of the money. The appellant agreed with this and gave 'Josh' $7,000. He promised to give him $3,000 the following day.
16 The appellant accepted 'Josh's' advice that when the intended killing was to happen that he (the appellant) should be somewhere where people would recognise him so as to provide him with an alibi. The appellant told 'Josh' that if the police approached him after the killing, he would deny everything.
17 During this conversation, the appellant spoke disparagingly of Ms Attwell, calling her 'this cunt of a thing' and a 'maggot'. He repeatedly referred to her as 'the fucking thing'. The appellant told 'Josh' that he wanted Ms Attwell gone 'without a doubt'.
18 The appellant and 'Josh' met as arranged the following day, again at Middleton Beach. This meeting was also recorded. The appellant paid 'Josh' the $3,000 as promised. He corrected a detail he had given 'Josh' about the colour of Ms Attwell's vehicle and told him that he had been unable to get a photograph of her. The appellant gave 'Josh' details of a second address for Ms Attwell. He settled with 'Josh' that it would not be a very good idea to bury Ms Attwell's body at any of his properties. The appellant acknowledged that he would give 'Josh' $20,000 when 'it was done'. The meeting concluded on the basis that 'Josh' would call the appellant prior to the killing so that the appellant would, as suggested, go somewhere to be seen.
19 Later that day, the police arrested the appellant. He agreed to be interviewed by the police. The interview was audio-visually recorded (exhibit 7).
20 Initially, the appellant gave police a false account of his movements that day and did not mention going to Middleton Beach. When asked whether he met a person called 'Josh', he acknowledged that he had, but said that he 'wouldn't know him from a bar of soap'. The appellant said that he and 'Josh' had discussed 'very little'. When asked what he had discussed with 'Josh', the appellant replied, 'I said to him, "what do you do". Well I didn't say what do you do' and that 'Josh' said, 'If you want the job done I'll do it for you'. When asked what he was asking 'Josh' to do, the appellant said, 'Well, like to put somebody to sleep which is being a pain in the arse and cost [sic] us a bloody near a million dollars up to date'. And we're tired of it fuckin' goin' on [indistinct] to be quite honest. We've had a gutfull [sic] of it'.
21 The appellant was again asked what he told 'Josh' to do. The appellant replied, 'Didn't ask, I told him to make some enquiries whether he can get rid of this bloody animal, the maggot but I've heard no more from it'.
22 The appellant denied that he had asked 'Josh' to kill Ms Attwell. Rather, 'Josh's' task was to 'bring her to her bloody senses and come and grab her or do something with her'. 'No, killing, would be a, a bit rich'. The appellant agreed that it would have been very wrong to ask 'Josh' to kill Ms Attwell.
23 The appellant gave evidence in his defence at trial. He said that the statements he made to 'Josh' were 'all huff and puff' (ts 279).
24 The jury, by its verdict, plainly rejected the notion that the appellant was not serious in his attempt to procure 'Josh' to kill Ms Attwell.
The appellant's antecedents
25 The appellant was 74 years of age when he was sentenced. As I have already said, he had been a successful businessman over many years and was highly regarded in Albany and in the region surrounding that city. Character references tendered to the primary judge spoke highly of his personal qualities and significant, and often generous, contributions to the community.
26 As far as his physical health is concerned, the appellant suffers from type 2 diabetes, which has necessitated special dietary requirements and regular ophthalmological care. He also suffers from vascular disease and has some limitations to his mobility and stamina: report of Dr Elizabeth Tompkins, 11 February 2013.
27 With respect to the appellant's mental health, the appellant does not present with symptoms or signs of serious mental illness. Prior to being sentenced, he underwent a comprehensive neuropsychological assessment by Dr Elizabeth Vuletich and psychiatric assessments were also undertaken by Dr Paul Skerritt and Dr Daniel de Klerk. It is unnecessary to refer to their reports in detail. His Honour's unchallenged findings were that, at the time of his offending, the appellant was not mentally impaired by a neurocognitive disorder or dementia, although the appellant's high blood pressure and diabetes were risk factors for the development of neurocognitive disorder in the future. There might 'well be' some subtle signs pointing to some frontotemporal dysfunction, but these were insufficient to produce a diagnosis of that kind.
28 Despite his age and illness, the appellant was actively involved in his business interests on a day-to-day basis, where he undertook complex tasks and made important decisions. That business, AD Contractors, supplies machinery, operators and material for civil engineering projects and, as at early 2014, employed 43 staff.
29 The appellant has a minor criminal record of traffic offences which, for present purposes, was irrelevant. In 2012, as a result of an interview undertaken by the police with the appellant over allegations that he had threatened an employee of the Family Court, he was charged with firearms offences for which he pleaded guilty and was fined.
30 The appellant did not accept any responsibility for his offending. He neither expressed any remorse for what he had done to, nor any empathy towards, Ms Attwell.
The sentencing remarks
31 His Honour said that the maximum penalty for the offence committed by the appellant was life imprisonment. He rejected a submission put to him on behalf of the appellant that the maximum penalty was 14 years' imprisonment.
32 His Honour identified the aggravating factors as:
1. The offence involved elements of premeditation and planning, although these were not 'of the most sophisticated kind'.
2. The offence was carried out with 'significant persistence'.
3. The offence was motivated by 'considerable animus' on the appellant's part towards Ms Attwell and by a desire 'to resolve' the Family Court proceedings.
4. The appellant paid 'a not insignificant sum' to 'Josh' to bring about the murder of Ms Attwell.
33 His Honour characterised the offence as being 'a serious example of a serious offence', although he accepted that it was 'some distance from the most serious form of the offence that might be imagined'.
34 As to mitigating factors, his Honour expressly referred to the appellant's prior good character and the likely adverse effect that imprisonment will have upon the appellant's health in the light of his advancing age. As to the appellant's health, his Honour noted that, while the appellant's physical health could be satisfactorily managed in custody, he accepted that imprisonment would be more difficult for the appellant when compared to 'an ordinary prisoner'.
35 His Honour acknowledged that, because the appellant was dealing with an undercover police operative, there was no actual risk of harm to Ms Attwell. However, and consistent with the jury's finding of guilt, he regarded the appellant's efforts as a serious attempt to procure her murder. His Honour found that the idea originated from the appellant and that it was no less serious because the appellant was unable to provide a photograph to 'Josh'. His Honour was satisfied that the appellant provided 'Josh' with enough information and assistance to enable 'Josh' to kill Ms Attwell. His Honour did not accept a submission to the effect that there was no question of Ms Attwell being murdered by means other than those initiated by his conversation with Mr R. His Honour found that the appellant was prepared to explore other ways of killing her.
36 His Honour considered that both personal and general deterrence were relevant matters, although personal deterrence was less significant than general deterrence. He found that there was nothing in the appellant's mental condition which justified the significance of deterrence being moderated.
37 None of these findings were challenged in this appeal.
The victim impact statement
38 His Honour took into account a victim impact statement written by Ms Attwell. It eloquently described the adverse psychological and other consequences the offending has had upon her.
Ground 1 - did his Honour apply the wrong maximum sentence?
The submissions
39 Senior counsel for the appellant submitted that the maximum penalty for the offence of attempting to procure another to commit murder is 14 years' imprisonment. His argument proceeded in this way. First, by virtue of s 279 of the Criminal Code, the maximum penalty for murder is life imprisonment. Then, by virtue of s 552(1) and s 552(2)(a) of the Criminal Code, which read:
552. Attempt to commit indictable offence
(1) Any person who attempts to commit an indictable offence (the principal offence) is guilty of a crime.
(2) A person guilty of a crime under subsection (1) is liable -
(a) if the principal offence is punishable on indictment with imprisonment for life - to imprisonment for 14 years;
- the maximum penalty for the offence is 14 years' imprisonment.
40 The State submitted that the maximum penalty for the offence committed by the appellant is life imprisonment. The State submitted, in substance, that the appellant's arguments were misconceived. The State submitted that neither s 279 or s 552 are applicable where the offender is convicted of an offence contrary to s 556 of the Criminal Code. The State argued that s 556 is a substantive offence and not an attempt of the sort to which s 552 of the Criminal Code applied. Having regard to the text of s 556, the State submitted that the appellant was liable to the same maximum penalty as a person convicted of attempted murder contrary to s 283 of the Criminal Code, that is, life imprisonment.
Disposition of ground 1
41 The State's submissions are correct and must be accepted.
42 The starting point is s 556 itself. The section reads as follows:
556. Attempt to procure commission of criminal act
Any person who attempts to procure another to do any act or make any omission, whether in Western Australia or elsewhere, of such a nature that, if the act were done or the omission were made, an offence would thereby be committed under the laws of Western Australia, or the laws in force in the place where the act or omission is proposed to be done or made, whether by himself or by that other person, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself attempted to do the same act or make the same omission in Western Australia.
Provided that if the act or omission is proposed to be done or made at a place not in Western Australia, the punishment cannot exceed that which he would have incurred under the laws in force where the act or omission was proposed to be done or made, if he had himself attempted to do the proposed act or make the proposed omission.
Provided also, that in the last-mentioned case, a prosecution cannot be instituted except at the request of the Government of the State having jurisdiction in the place where the act or omission was proposed to be done or made.
43 The ordinary and natural meaning of the words used in that section make its effect clear: relevantly, a person who attempts to procure another to do an act or omission of such a nature that, if the act were done or the omission were made, an offence would thereby be committed under the laws of Western Australia, is guilty of an offence of the same kind, and is liable to the same punishment as if that person had himself or herself attempted to do the same act or make the same omission in Western Australia.
44 In the present case, the 'act' the appellant attempted to procure 'Josh' to do was to murder Ms Attwell. It is, of course, an offence in this State to murder another. See s 279 of the Criminal Code. Section 283 of the Criminal Code provides for the substantive offence of attempted unlawful killing. The maximum penalty for that offence is life imprisonment.
45 Thus, by an application of the ordinary and natural meaning of the language in s 556, read with s 279 and s 283, of the Criminal Code, a person who attempts to procure the murder of another is liable to the same punishment as if that person had attempted to murder the other; that is, life imprisonment.
46 The flaw in the appellant's argument is that it ignores the statutory language of s 556 of the Criminal Code and fails to recognise that the section, although dealing with an attempt, is a substantive, stand-alone offence with its own maximum penalty. It is not an offence to which s 552 of the Criminal Code applies. It is, in this sense, similar to other offences in the Criminal Code, which include an attempt as an element and which Parliament has decided should attract its own punishment, such as attempting to pervert the course of justice (s 143 of the Criminal Code) and other offences, including bribing or attempting to bribe a parliamentarian (s 88 of the Criminal Code).
47 The question raised by ground 1 was considered by the Court of Criminal Appeal in Tarzia v The Queen (Unreported, WASCA, Library No 8761, 15 March 1991).
48 In Tarzia, the appellant was convicted after his plea of guilty of attempting to procure another to wilfully murder his estranged wife's de facto partner. The sentencing judge considered that the relevant maximum penalty was 14 years' imprisonment. The Court (Malcolm CJ, Wallace & Pidgeon JJ) considered that the learned judge had fallen into error in this respect and that the correct maximum penalty was life imprisonment. Their Honours considered that the effect of s 556 of the Criminal Code with respect to an attempt to procure another to commit wilful murder was as follows:
The effect of this provision is that a person who attempts to procure another to commit wilful murder is liable to the same punishment as if he had himself attempted to commit wilful murder. The offence of wilful murder is defined in s 278 of the Code. The offence of attempted murder under s 283 of the Code encompasses an attempted wilful murder. The maximum penalty for attempted murder under s 283 of the Code is life imprisonment.
49 It may be seen that the approach taken in the present case is consistent with that taken in Tarzia.
50 Ground 1 fails.
Grounds 2 and 3 - was the sentence manifestly excessive?
The appellant's submissions
51 Senior counsel for the appellant submitted that the sentence of 8 years 6 months' imprisonment was manifestly excessive because of the aged and alleged infirmity of the appellant and the relative seriousness of the offence. It was further submitted that the sentence did not sit well with the outcome in Tarzia.
General principles - manifest excess
52 The general principles applicable to a ground of appeal which alleges manifest excess are well-known and are uncontroversial. This court cannot intervene simply because it would have imposed a different sentence if it had been sentencing the appellant at first instance. The appellant must establish that the sentencing judge made an express or implied material error of fact or law in the sentencing process. A claim of manifest excess requires this court to infer error on the basis that the end result is so unreasonable or unjust that a substantial wrong has occurred. In order to establish manifest excess, the appellant must establish that the sentence was outside the range of a sound exercise of the sentencing discretion having regard to the maximum penalty for the offence, the seriousness of the offence, sentences customarily imposed for offences of that nature and matters personal to the appellant.
Disposition of grounds 2 and 3
53 The maximum penalty of life imprisonment reflects the serious nature of the offence, which is underpinned by the importance of upholding the sanctity of human life.
54 The present offence was clearly a serious example of its type. The appellant was serious in his desire to have Ms Attwell murdered. The offence was not committed on the spur of the moment by someone who was weak or suggestible. To the contrary, the appellant initiated the offence and executed it with premeditation, planning and significant persistence. He directed 'Josh' as to how Ms Attwell should be killed and her body disposed of. As to the disposal of the body, he was prepared to provide 'Josh' with the means of doing so for the purpose of making it difficult, if not impossible, for the body to ever be found. He was prepared to pay a considerable sum of money for the killing and advanced 'Josh' $10,000 of his fee. The appellant and 'Josh' discussed the making of a false alibi and the appellant expressed his intention to lie to the police after Ms Attwell had been done away with. Although the offence was inchoate and Ms Attwell was never at risk of being harmed, the appellant wanted her killed and did all that he could to achieve this end.
55 While the motive for an offence of procuring someone to commit murder will invariably be base, there were twin base motives in play in the present case: first, the appellant acted out of hatred for Ms Attwell; second, he intended to defeat the Family Court proceedings which were then on foot.
56 The appellant's counsel cited examples of worse offending. The present case does not fall within the worst category of offences of this type and it may be readily accepted that more serious examples of this kind of offending may be contemplated. However, this does not detract from the seriousness of what the appellant did. His Honour was correct to give emphasis to deterrence and, in particular, general deterrence, with a view to providing a strong disincentive for like-minded persons to attempt to procure another to kill.
57 I turn to the comparable cases. The purpose of examining comparable cases is to ensure broad consistency in sentencing. The guidance afforded by comparable cases is flexible rather than rigid. The fact that a sentence is within or outside the range of other sentences imposed for similar offending does not necessarily establish error in the exercise of the sentencing discretion in the particular case. When an appellate course dismisses an appeal against sentence or allows an appeal against sentence and re-sentences the offender, the court's decision does not, of itself, fix the upper or lower limit of the range. In the end, what is required is a determination of whether the sentence imposed fell within a proper exercise of the sentencing discretion by reference to its own facts and circumstances.
58 I have already mentioned Tarzia. It may be accepted that the facts and circumstances of that case were somewhat more serious than the facts and circumstances of the present case. In Tarzia, the offender had, prior to the commission of the offence, unsuccessfully attempted to have someone else kill his estranged wife's de facto partner. That person had, according to the offender, 'ripped him off'. Despite this, the offender sought to procure another killer. As in the present case, the person the offender sought to hire was an undercover police officer.
59 The offender in Tarzia was sentenced, in effect, to 6 years' imprisonment (4 years' imprisonment post-transitional). The offender's appeal against sentence was dismissed.
60 The sentence imposed upon the appellant in the present case is much greater than that imposed upon the offender in Tarzia, even when it is considered that in Tarzia, the offender pleaded guilty. Nevertheless, Tarzia is of little assistance in this case for three reasons. First, one sentence does not constitute a range of sentences customarily imposed. Second, since Tarzia was decided, the penalties for homicide offences, whether murder or manslaughter, have firmed up. Third, the sentencing judge in Tarzia imposed sentence on the basis of the wrong maximum penalty.
61 This court was referred to some Queensland sentencing decisions, but, having regard to the different sentencing regime, they were of little assistance.
62 Of some assistance in the present case are sentences imposed for offences of attempted murder. The range of sentences customarily imposed for offences of attempted murder was recently discussed in DC v The State of Western Australia [2014] WASCA 121 [61] - [64]. I will not repeat what I wrote on that occasion. It is sufficient to acknowledge that the sentence imposed in the present case is comparable to that imposed in serious cases of attempted murder.
63 The appellant was a man of prior good character and had done many good works over a long period of time within the community. He is also a man of advanced years with some difficulties with his health. The principles to be applied when sentencing a person of advanced years were examined by Steytler P in Gulyas v The State of Western Australia [2007] WASCA 263. Australian courts have often extended a degree of mercy in cases of advanced age. Whether leniency will be afforded to a particular offender of advanced age depends on the circumstances of the case. Age is but one factor in the sentencing process; the punishment must still be fairly proportionate to the crime. Some offences will be so serious that long sentences of imprisonment are necessary, whatever the age of the offender. Sometimes offences are so serious that little, if any, account can be taken of age.
64 At [54], Steytler P summarised the broad general principles as follows:
It seems to me that the following broad general principles might be extracted as being ordinarily applicable in a case such as the present:
(1) Where moral culpability is reduced by reason of advanced age (which will inevitably mean that the advanced age is coupled with some other factor that is a consequence of it, for example when there is an age related mental impairment), allowance should be made for that factor.
(2) Where there is evidence sufficient to justify the conclusion that circumstances associated with advanced age (for example, continuous ill health, or ill health coupled with physical or mental frailty) will make imprisonment more arduous for the offender than is normal, allowance should be made for this.
(3) Account may also be taken of hardship for the offender arising out of his or her knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release. However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release.
(4) Deterrence and denunciation are important even in the case of an offender of advanced age. However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served. However, if this is to be achieved, the punishment must still reflect the seriousness of the crime.
65 In this case, there is no evidence that the appellant's age contributed to or resulted in any factor that lessened his moral culpability. Given that the appellant's health difficulties can be properly managed in prison, they are not matters which attract substantial mitigation, save that it may be accepted that they will make imprisonment more arduous for the appellant than is normal.
66 However, that is the limit of the mitigation that can be afforded to his advanced age. It is significant that, at the time the appellant committed the offence, he was still very much involved with the day-to-day running of his business and making complex and important decisions. His age was not a barrier in these respects. The appellant committed the present offence despite his advanced age in circumstances where he must have known that he was committing an offence which, if detected, exposed him to a substantial term of imprisonment. Nevertheless, he chose to offend in the manner that he did. I do not regard this case as being one where advanced age reduced the weight to be given to considerations of personal and general deterrence, particularly as the appellant refused to accept responsibility for his offending and showed no remorse.
67 Having regard to all relevant factors, I regard the sentence that was imposed upon the appellant as being within the upper levels of the range of sentences available to the sentencing judge in the proper exercise of the discretion conferred upon him. The sentence that was imposed was not unjust or unreasonable. I am unable to infer error. In these circumstances, this court has no warrant to intervene. Although I would grant leave to appeal in respect of grounds 1 and 3, they have not been made out.
Conclusion and orders
68 None of the grounds of appeal have been made out. The appeal must be dismissed. The orders I would make are as follows:
1. Leave to appeal is granted with respect to grounds 1 and 3.
2. The appeal is dismissed.
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