Butler v The State of Western Australia - [2010] WASCA 104

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BUTLER -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 104

CORAM: McLURE P
OWEN JA
PULLIN JA

HEARD: 7 OCTOBER 2009

DELIVERED : 31 MAY 2010

FILE NO/S: CACR 24 of 2009

BETWEEN: AARON BUTLER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JOHNSON J
File No  :INS 142 of 2004

Catchwords:

Criminal law and procedure - Sentencing - Wilful murder - Life imprisonment with a minimum term of 19 years - Whether minimum term manifestly excessive - Appellant suffering from druginduced psychosis - No underlying mental illness - Impact of druginduced psychosis in sentencing process

Legislation:

Nil

Result:

Extension of time refused

Category: A

Representation:

Counsel:

Appellant: Mr R J Nash
Respondent: Mr J Mactaggart

Solicitors:

Appellant: Robert Nash
Respondent: Director of Public Prosecutions (WA)

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

Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358
F v The State of Western Australia [2008] WASCA 100
Fraser v The State of Western Australia [2009] WASCA 23
Krijestorac v The State of Western Australia [2010] WASCA 35
Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442
Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190
Payne v The Queen [2002] WASCA 186; (2002) 131 A Crim R 432
Power v The Queen (1973) 131 CLR 623
R v Martin [2007] VSCA 291
R v Tsiaras [1996] 1 VR 398
R v Wright (1997) 93 A Crim R 48
Stasinowsky v The State of Western Australia [2009] WASCA 20
The Director of Public Prosecutions v Arvanitidis [2008] VSCA 189
Thompson v The Queen [2005] WASCA 223

McLURE P: I agree with the orders proposed by Owen JA. These are my reasons for doing so. The facts and circumstances giving rise to this appeal against conviction are detailed in the reasons of Owen JA and need not be repeated.
The appellant is a central desert Aboriginal man who grew up in a traditional community. On 8 October 2003, whilst under a drug‑induced psychosis, the appellant took his heavily pregnant wife out into the bush, strangled her and then burned her body on a fire. He was aged 26 at the time. The appellant was convicted after trial of wilful murder and sentenced to life imprisonment with a non‑parole period of 19 years.
This court can only intervene if the appellant establishes that the sentencing judge made an express or implied material error of fact or law. The sole ground of appeal is that the non‑parole period of 19 years is manifestly excessive. That is a claim of implied error. The legal principles governing a challenge to a non‑parole period for wilful murder are detailed in Stasinowsky v The State of Western Australia [2009] WASCA 20 [84] ‑ [88].
The circumstances of the offending and of the offender identified in the particulars (which are set out in full in the reasons of Owen JA) are relied on to support the claim of manifest excess. Those circumstances include the following:
-the appellant's traditional Aboriginal lifestyle and the isolated nature of his community;
-the appellant's actions occurred when he was in a drug‑induced psychotic state;
-at the time of his offending, the appellant was experiencing community ill-feeling and ostracisation as a consequence of his drug and alcohol use and as a result of an incident where a woman had collapsed from a medical condition and died whilst hunting for food with the appellant and his wife in 2000. The appellant received tribal punishment for the woman's death because he was regarded as responsible for it;
-the appellant was subjected to tribal punishment by spearing in both his left and right legs for killing his wife. The punishment was of such severity that he would have died in the absence of immediate medical care;
-by submitting himself to tribal punishment the appellant demonstrated general remorse.
At the hearing of the appeal, the appellant relied on particulars (1) and (2) as giving rise to an express error. The substance of the contention as revealed in oral submissions is that the sentencing judge erred in her characterisation of the offence as being at the very highest of its type and one of the most serious murders that has been committed (ts 89) and thus she failed to give adequate weight to the fact that the appellant's actions were attributable to a drug‑induced psychosis (and other matters personal to the appellant). I do not understand the appellant to contend that the sentencing judge should have found that the appellant had an underlying mental illness in addition to his drug‑induced psychosis. The gravamen of the appellant's complaint is that the sentencing judge's categorisation of the seriousness of the offending equated the appellant's conduct in the course of a drug‑induced psychotic episode with a cold‑blooded, calculated, clear-eyed wilful murder. There can be no doubt that the latter circumstances are aggravating factors that would increase the level of seriousness: see Fraser v The State of Western Australia [2009] WASCA 23.
However, her Honour's categorisation of the offending needs to be understood in the context of the legal framework that then applied to the sentencing of the appellant. A judge sentencing an offender for wilful murder under that framework had to make a determination as to whether to impose strict security life imprisonment or life imprisonment. If the judge concluded that strict security life imprisonment was applicable it was then necessary to determine whether to order that the offender be imprisoned for the whole of his life and if that was not necessary, to set a minimum period of at least 20 and not more than 30 years. If the court determined that life imprisonment was the appropriate sentence, the court had to set a minimum period of at least 15 and not more than 19 years. This statutory framework resulted in courts classifying offences of wilful murder according to where they sat in the hierarchy of seriousness.
On my reading of the sentencing judge's reasons, her categorisation relates to the objective circumstances of the offending, which would indeed have warranted strict security life imprisonment. However, when regard was had to the subjective factors relating to the appellant, including his mental state, the sentencing judge rejected strict security life imprisonment as an option and instead imposed life imprisonment with the maximum non‑parole period.

The absence of aggravating factors (such as clear‑eyed calculation) may put the offending at a lower level of relative seriousness but it does not render the appellant's drug‑induced derangement mitigatory. Where a condition is self‑induced, it is not generally to be regarded as mitigating the offence because the offender may be regarded as morally responsible for his or her condition: Damiani v The State of Western Australia [2006] WASCA 47 [41] ‑ [42]; R v Martin [2007] VSCA 291; R v Wright (1997) 93 A Crim R 48. That statement of principle recognises the possibility of exceptions to the general rule, none of which apply on the facts in this case.
In the circumstances, it is unnecessary to state the sentencing principles governing the relevance and effect of a mental disorder or condition that is not self‑induced. It is sufficient for present purposes to note that its relevance does not depend upon establishing that the disorder is serious or causally related to the offending: Krijestorac v The State of Western Australia [2010] WASCA 35; Thompson v The Queen [2005] WASCA 223; F v The State of Western Australia [2008] WASCA 100.
I am not persuaded that the sentencing judge made any express error in the sentencing exercise. I agree there is no merit in particulars (3) and (4) for the reasons given by Owen JA. I also agree with Owen JA for the reasons he gives that the non‑parole period of 19 years is not manifestly excessive. It is within the range of a sound exercise of the sentencing discretion.
OWEN JA: The appellant was convicted by a jury of the wilful murder of his wife. He was sentenced to life imprisonment with a minimum term of 19 years to be served before being considered for release on parole. The appellant advances a single ground of appeal; namely, that the minimum term of 19 years' imprisonment was manifestly excessive.
The appellant was sentenced on 6 October 2006. The notice of appeal was filed on 26 March 2009, some two and a half years out of time. The appellant's applications for an extension of time and for leave to appeal were heard together with the substantive appeal.

Background

The appellant was born in Warburton in 1977 and as a small child he moved with his family between this town and other communities before settling at Tjukurla, living a relatively happy life in a traditional Aboriginal community and enjoying strong family relationships. His first

language is Ngaanyatjarra. He left school at 13 and had been employed from the age of 17 until his arrest for this offence.

The appellant began using cannabis and alcohol when he was 15. In 1998 he left his community to live in Blackstone with his wife in a marriage arranged according to custom. He had difficulties adjusting to the change and felt that his wife's family were making things difficult and that members of the community disliked him. He maintained however that he and his wife got on well and that he loved her. Between the ages of 20 to 26 he was a very heavy user of cannabis and alcohol, travelling far and wide to obtain the substances.
In 2000 the appellant and his wife were with another woman in the bush looking for food when the woman collapsed from a pre‑existing medical condition and subsequently died. The appellant was held responsible for her death according to custom. Evidence at trial suggested the appellant considered the tribal punishment which was administered to him for this incident was unfair. This increased his sense of grievance against the community and his sense of isolation which resulted from the perception that he was not accepted by the community.
In February 2002 the appellant presented to the Mental Health Services in Alice Springs suffering from a drug-induced psychosis as a result of his cannabis use. He was treated but not admitted to hospital. In May 2002 he was admitted to Graylands Hospital for 11 days with a final diagnosis of drug‑induced psychosis. Despite this awareness of the dangers of cannabis, he continued its use.
On the morning of 8 October 2003 the appellant went with his wife, who was then eight months' pregnant with their first child, to the community medical clinic for a pre‑natal check. The appellant spoke to the clinic nurse and expressed a desire to burn his wife. The clinic nurse talked to him and believed she had convinced him that this was 'wrong thinking'.
Shortly afterwards the appellant borrowed the community's four wheel drive vehicle and drove his wife out of the community. They argued in the car and he became physically abusive towards her. A community youth worker who was driving in another car with another person observed the appellant driving very fast and, when the appellant pulled over onto the side of the road, observed the appellant's wife frantically trying to get out of the car, 'half in and half out'. The appellant grabbed her with both hands while she was calling for help. The men in the other car tried to encourage the appellant to let his wife go but he would not allow it.
Shortly after this incident the appellant stopped further from the community at a youth camp, then drove to another area outside the community and choked his wife to death in the car. He made a large fire and burned the body. He then returned to the community and sat down inside the house. He refused to answer questions asked by his wife's mother and community members about his wife's whereabouts. Eventually he told his wife's mother that his wife was 'finished' which she understood to mean that her daughter was dead. He told another community member his wife was 'in the fire', but did not disclose the location of her body. Members of the community were left to search for and find the remains of his wife and the unborn baby smouldering on the fire. The body was unrecognisable and was later identified through DNA analysis.
The appellant suffered immediate tribal punishment by being speared five or six times in the right leg. Four or five of the wounds were superficial and one had greater depth. He was later speared in the back of his left leg through the upper thigh. He required resuscitation after the second spearing and was taken to the emergency section of Royal Perth Hospital. The appellant participated in a police video record of interview on 9 October while in Royal Perth Hospital.
On 8 October 2003 the appellant was arrested and charged with the wilful murder of his wife. At trial, the appellant's defence was that he was not criminally responsible for his actions due to unsoundness of mind. However, on 13 April 2006 the jury returned a verdict of guilty of wilful murder.
On 23 June 2006 the sentencing judge heard submissions before adjourning the sentencing to obtain a psychiatric report and further material on relevant Indigenous issues. The appellant remained in custody until 6 October 2006 when he was sentenced to life imprisonment with a minimum term of 19 years to be served before he became eligible for parole. The sentence was back‑dated to 8 October 2003.

Sentencing remarks

In this section I propose to set out the main features of the sentencing remarks. In doing do I will use language similar to that adopted by the sentencing judge without, on each occasion, reminding the reader that it represents the thoughts as expressed by her Honour. It should be borne in mind that the grounds of appeal (which I will set out later) do not challenge findings of fact made by the sentencing judge. The challenge mounted in the appeal is to her Honour's conclusions rather than to specific factual findings.
In the events leading up to the commission of the offence the appellant had several opportunities to desist from what he was doing and to take control of his actions. He borrowed a vehicle specifically for his intended purpose. He was capable at this time of lying about his intentions, telling people that he was going hunting. This was deliberate conduct, although it was accepted that the appellant's motivating factors were influenced at least in part by the psychotic effect of cannabis.
The appellant refused the community youth workers' entreaties to let the woman go. The description given by these men that the woman was 'half in and half out' trying to climb out of the car, and considering how heavily pregnant she was at the time, indicated how desperate she was to get out of the car. Despite being under delusions from his cannabis use he was still able to drive and converse with these people and force his will upon his wife.
A second opportunity to let the woman go arose when he stopped at the youth camp. Again, the appellant did not take the opportunity. Instead he drove to another location away from the community and killed his wife. He went to considerable effort to make a fire of sufficient intensity to burn her body. Having done so, he returned to his home in the community and refused to answer questions about his wife's whereabouts from concerned community members. He left it to the community to search for and find his wife's and her baby's remains smouldering on a fire. The remains were so damaged by fire it was barely possible to tell they were of a human being. While there were mental issues at play that affected his reasoning, he was acting in a relatively controlled manner.
Evidence from community elders and the deceased's mother indicated how the effects of the crime extended beyond the deceased's immediate family to the community of which she was a member. Almost immediately the community administered tribal punishment, the consequence of which was that he suffered injuries that could have been fatal had he been in a traditional setting unaided by modern medical attention.
The sentencing judge then said:
For all these reasons I believe it is obvious that this offence is at the very highest of its type and one never ceases to be amazed as to what human beings will do to their fellow human beings, but I do believe that this is one of the most serious murders that has been committed.
There is nothing in your background that would explain what occurred, which simply reinforces the fact that this was a result of your deliberate choice to use cannabis when you are not a person, if indeed there is such a person, who is able to do so (ts 50).
Her Honour outlined some aspects of the appellant's background before returning to the topic of substance abuse. While the appellant also abused alcohol it did not appear that it played any part in these offences. He felt unwelcome in the community into which he married but it appeared that he had failed to consider how the community's views had been influenced by his conduct, in particular his increased use of cannabis and alcohol and the changes its use wrought on his character. The appellant's sense of grievance about his unfair punishment for the 2000 death of the woman with whom he and his wife had gone out hunting, was another example of his complete lack of insight into his responsibilities and lack of acceptance of blame, which was reflected instead back on the community.
A recent psychiatric report had made it clear that there was no underlying level of paranoia fuelling the appellant's feelings. There was a psychosis induced by cannabis. While that may have fuelled his reaction to the feelings he had which he considered not to be of his making, it was fertile ground upon which the psychotic beliefs operated. It was of concern to her Honour that the appellant's explanation for his terrible crime was that he had smoked some 'bad ganja' or cannabis in the days leading up to the offence. Again the appellant passed the responsibility for his conduct to some other matter for which he did not accept responsibility.
It was also of concern that, despite the appellant's treatment and admission at mental health facilities in 2002 and his awareness of the dangers cannabis use posed to him, he continued its use. It was apparent that cannabis use gave him violent psychotic episodes or at the very least made him aggressive and well and truly impaired his judgment.
Her Honour said that because the appellant had been in prison he had abstained from alcohol and cannabis and had been enjoying good health. A psychiatric report suggested there had been a complete change in the appellant's mental health. This indicated that the only basis upon which the appellant had suffered from psychotic problems was because of cannabis use and that he was 'not one of those unfortunates who have an underlying mental illness which is something they do not want and cannot control' (ts 522). Her Honour noted reports in which the appellant had said he was adamant he would not return to such heavy levels of cannabis use when released from custody. The sentencing judge expressed alarm at these statements because they suggested the appellant would not abstain completely from the substance. It was apparent to her Honour that the appellant was someone who could not in any circumstances use cannabis, and this added to her alarm and concern about the risk the appellant presented in the future.
One of the many difficulties her Honour faced in sentencing the appellant was that the jury found him guilty of wilful murder and that there was no issue of insanity relevant to their consideration. There were two possible interpretations underlying the verdict: either the jury did not accept that the appellant was suffering a mental illness at the time or, if he was mentally ill, his conduct was not excused because he had deliberately ingested the drug that gave him the illness. It probably did not matter which interpretation was used by the jury because the ultimate result was that the appellant's deliberate act led to the mental problem contributing to his conduct on that day and either way the responsibility lay squarely with the appellant.

The appellant's prior convictions were relatively minor and of no significance to the sentence to be imposed, although (and significantly) the convictions mostly related to excessive use of alcohol and (or) cannabis.
The sentencing judge described the psychiatric evidence led at trial as 'far from convincing' as it depended almost exclusively on the appellant's own explanations for his conduct, and her Honour believed that the jury also found that to be the case. There were inaccurate assumptions made as to his motivating factors because of the cultural divide between the psychiatrist and the appellant. The position was made clearer by the more recent psychiatric report and the particularly useful opinion from the court's Aboriginal advisory officer, which indicated that the appellant's reference to 'feather foot' and to people in the community wishing him ill was perhaps no more than his way of explaining what was happening to him at the time.
While it was accepted that there was a certain degree of rationalising his conduct by cultural beliefs, nevertheless this was not a case where someone was acting according to a cultural belief or obligation: it was no more than the appellant's way of explaining or rationalising what had occurred on the day.
The appellant's case was different to offenders who commit terrible offences because of an illness beyond their control. The appellant had it in his power to desist from the conduct which caused him to think in the way that he did. Her Honour accepted there was an underlying element of getting back at the people who had treated him unfairly and she was firmly of the view that he well understood the questions he was being asked and the significance of his answers.
Her Honour took the view that the offence resulted from a complex set of factors ultimately relating directly to the appellant's use of cannabis. He had a certain degree of control over his actions on that day that he chose not to exercise. The appellant said he had not used cannabis for three days prior to committing the offence. But the evidence seemed to indicate that psychotic episodes can occur either from use or from withdrawal in a short period of time. In comments which are material to the outcome of the appeal, her Honour said:
The information available to me has led me to form the view that your moral culpability for this offence is only slightly reduced by the psychiatric problems you experienced at the time (ts 525).
…
As I have indicated, you are not a person whose moral culpability is significantly reduced by reason of a mental illness over which you have no control but which can be treated. In any event, I am satisfied that impaired mental functioning was only one aspect of your conduct and was in any event self-induced. You were well aware of the impact on your behaviour of using cannabis but continued to use it (ts 527). (emphasis added)
The sentencing judge said that '[t]he crime itself is worthy of the most serious of punishments', which I take to be a reference to the sentencing option of strict security life imprisonment, which was open under the law as it then stood. But her Honour indicated that she would not take that option for two reasons. The first of them related to the impact of prison on persons of the appellant's background. The appellant had a stable and traditional Indigenous background. Social factors experienced by Indigenous people with a disadvantaged background, which was not his life, played no part in his decision to use drugs or persist in taking them despite his knowing the very serious consequences that would occur. Because of his background there was no doubt that imprisonment would have a greater adverse effect on the appellant. Her Honour was told the appellant currently suffered from depression. If it related to unresolved grief it was a consequence of his own actions and he should not receive any benefit from it. However it was also indicative of the difficulties faced by a traditional Indigenous person who would be in the prison system for a long time. Her Honour accepted that the time the appellant served would be more difficult than for someone of a different background.
The second reason militating against the imposition of 'the most serious of punishments' was the question of tribal punishment. The sentencing judge remarked that had the punishment been meted out in a truly traditional community the appellant would almost certainly have died. But the intervention of high level medical care had saved his life. Nonetheless, he had suffered a punishment over and above that which a non‑Indigenous person would have suffered and it had left him with permanent problems.
The sentencing judge told the appellant she was required by the legislation to sentence him to either a term of life imprisonment or a term of strict security life imprisonment. Given the circumstances of the offence, when taken together with the appellant's personal circumstances, her Honour decided to impose life imprisonment with a substantial minimum term. The punishment already suffered by the appellant and the fact that his time in custody would be more attended by difficulties not encountered by some other offenders were considerations reflected in her Honour's decision not to impose the strict security life term which would otherwise be appropriate for an offence of this type.
The sentencing judge said there were real difficulties in prognosticating about the future and the term was not meant to be an indication that, at the end of the minimum custodial period, the appellant would no longer present a risk to the community. The sentence had to reflect the seriousness of the appellant's actions in killing his young wife and unborn child and burning the bodies. That conduct was preceded by violence toward her which put her in fear of her life. The tragedy of the death of the woman and her unborn child had an enormous impact on her family and the community. Her Honour then said:
For these reasons and taking into account all matters, including all matters personal to you, I don't believe I would be discharging my responsibility to the community if I ordered that you serve anything less than 19 years before being eligible for parole.

The ground of appeal

The appellant advances a single ground of appeal; namely, that the sentencing judge erred in law in imposing a minimum term of 19 years before being eligible for parole when sentencing the appellant to life imprisonment in that the minimum term before parole was manifestly excessive. Four particulars are then given to support the ground.
1.The sentencing judge erred in characterising the offence as 'the highest of its type' and 'one of the most serious murders that has ever been committed'.
2.By so characterising the offence, the sentencing judge failed to take into account adequately the personal circumstances of the appellant at the time of offending and the fact that his actions were substantially attributable to the drug‑induced psychosis he was suffering at that time.
3.The minimum non-parole period of 19 years did not adequately take into account the additional hardship that a long term of imprisonment placed upon the appellant by reason of his traditional Aboriginal lifestyle; the fact that he had been subjected to severe tribal punishment; and that by submitting himself to tribal punishment the appellant had demonstrated genuine remorse for his actions and full acceptance of his wrongdoing.
4.The sentencing judge placed undue emphasis on the risks the appellant posed to society when such prognostications have less significance where the appellant is required to serve a minimum term of imprisonment of not less than 15 years and was still a relatively young man at the time of the offending.
A ground of appeal that contends that a factor was not 'adequately taken into account' is not a ground of appeal at all. However, it is apparent from the preamble to the particulars that the gravamen of the challenge is that error is to be inferred from the result.

Mitigating factors

I can deal with the third particular in short order. The sentencing judge considered the additional hardship that a long custodial term would visit on a person of the appellant's background and the whole question of tribal punishment in considerable detail. They were significant factors in her Honour's decision not to impose strict security life imprisonment (ts 526). But in my view, her Honour did not limit those considerations to the choice between life imprisonment and strict security life imprisonment. She said 'I think that it is clearly the case that the time you serve will be more difficult than for someone who does not have your particular background'. (emphasis added)
The entire area of traditional punishment and the role that it plays in the sentencing process is not without difficulty: see Law Reform Commission of Western Australia, Aboriginal Customary Laws: Background Papers, Project No 94 (January 2006) Ch 1 pages 9 ‑ 13. In my view it is not necessary, in the context of this case, to enter into any of the areas of controversy that traditional punishment raises. The ground of appeal does not allege an express error by, for example, contending that it was a relevant consideration that was not taken into account. The complaint is that it was not adequately taken into account. A proper reading of the sentencing remarks shows that her Honour had regard to the issue and considered it in some detail.
The contention that these factors were not adequately taken into account (whatever that may mean in an appellate context) has no merit.

Predicting the future

The fourth particular can also be dealt with in short order. The sentencing judge took what the appellant had said to the author of one of the reports as an indication that he was not motivated to abstain completely from cannabis use. Her Honour formed the view, based on the appellant's history, that he could not safely return to any use of that invidious substance. It is difficult to fault that conclusion. The comment about the appellant posing a risk in the future cannot be divorced from its context. What her Honour said is this:
Those comments, which seem to indicate that there is a level that you would be able to tolerate, as I have said, does cause me to be concerned about the risk you pose in the future. On that basis it must be made clear any minimum term I impose, whilst it reflects all relevant factors, is not intended to be a clear statement that you will be eligible for or it will be appropriate to release you at that point in time (ts 522, 523). (emphasis added)
In other words, the comment is directed at eligibility for parole, not at the length of the term to be served before release on parole could be considered. The fourth particular has no merit.

Characterising of the offence as the highest of its type

There were some factors that elevate the seriousness of the appellant's offending conduct by a significant margin. They include the following:
1.The appellant lied about his intention and had numerous opportunities to desist from what he was doing. Before her death the deceased was subjected to some hours of violent confrontation and she was clearly frightened and distressed.
2.Despite mental issues affecting his reasoning, he acted in 'a relatively controlled manner'. He had deliberately ingested cannabis with reckless disregard for the fact that it had, on previous occasions, made him violent towards his wife.
3.There were elements of premeditation. For example, at the health clinic earlier on the morning the offence occurred the appellant had expressed an intention to burn his wife.
4.The offence was unprovoked and committed against a woman who was (to the appellant's knowledge as it was his child), eight months' pregnant.
5.The appellant's conduct brought about the end of the life of an unborn child as well as that of the deceased, whose death was the subject of the charge.
6.The appellant desecrated the bodies by burning them in a substantial fire that he had assembled and lit. It was, as the sentencing judge described it, a 'cruel and heartless slaying'.
7.The appellant gave no assistance to the deceased's family and community members to find the bodies.
8.The ramifications of the murder went beyond the deceased's family and extended to the entire community.
At the sentencing hearing counsel who appeared for the appellant conceded that, were it not for evidence of mental illness or psychosis, the offence would be 'at the higher end of the scale'. This was a concession repeated by counsel for the appellant at the hearing of the appeal, save that counsel added (as an ameliorating factor) the issue of tribal punishment. I have already dealt with the question of tribal punishment in discussing the second particular.
It has to be borne in mind that her Honour considered, but rejected, the option of imposing strict security life imprisonment. There is no cross-appeal in relation to that conclusion. But it is of some significance in the context of this appeal. Logic suggests that a homicide which attracts a sentence of strict security life imprisonment has some features that have been seen to be more serious than those in a similar crime for which life imprisonment is the more appropriate disposition. It must follow that once the decision has been made that the case does not warrant strict security life, the relative seriousness of the circumstances of the offence fall to be considered in the scale of seriousness of homicides that have attracted, or are likely to attract, sentences of life imprisonment.
In my view, given the objective facts of this case it is difficult to fault the sentencing judge's conclusion that the circumstances place it at the higher end of the scale of seriousness of cases for which life imprisonment would be imposed. I would reject the argument advanced in the first particular

The appellant's diminished culpability - effect of a drug-induced psychosis

The second particular raises two discrete issues. First, the sentencing judge failed adequately to consider the appellant's personal circumstances. Secondly, the sentencing judge failed adequately to consider that at the time of offending the appellant's actions were substantially attributable to the drug‑induced psychosis from which he was suffering at that time.
The first aspect is devoid of merit. In neither the written nor the oral submission did those representing the appellant identify the 'personal circumstances' that were (allegedly) discounted. Again, a fair reading of the sentencing remarks reveals that the sentencing judge gave due considerations to the background and personal circumstances of the appellant. This leaves what I regard as the most difficult aspect of this appeal; namely the impact of the drug‑induced psychosis that afflicted the appellant.
The law accepts that a mental disorder may be a relevant consideration in the exercise of the sentencing discretion. In R v Tsiaras [1996] 1 VR 398 at 400, the court described the rationale for this principle in this way:
First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
This passage has been cited with approval and followed in a number of decisions of the appellate courts in this State: see, for example, Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 [48]; Payne v The Queen [2002] WASCA 186; (2002) 131 A Crim R 432 [40]; and Thompson v The Queen [2005] WASCA 223 [52].
Of the five reasons enunciated in Tsiaras the impact on moral culpability is the one most relevant to the circumstances of this case. It must necessarily be the case that, the greater the contribution of the psychiatric illness, the more the moral culpability will be lessened. For the presence of a psychiatric condition to reduce the offender's moral culpability in respect of the offence and thus to mitigate punishment, a causal connection between the condition and the commission of the offence must be established, in the sense that the psychiatric condition must have contributed to the commission of the offence: Thompson [53]; see also the distillation of principles established by authorities in Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190 [49] ‑ [53].
But what of an offender who is found to be suffering from a drug‑induced psychosis at the time of the offence being committed, and the psychosis has no underlying identified physical disease or mental illness? Generally speaking, without a causal connection between a drug‑induced psychotic state and a non‑drug related mental illness, the fact that the offender acted in the course of a drug‑induced state was not mitigatory and did not lessen the offender's moral culpability for the offences. In Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358 [41] ‑ [42], McLure JA (with whom Roberts‑Smith and Pullin JJA agreed) said:
Where a condition is self-induced, it is not generally to be regarded as mitigating the offence because the offender may be regarded as morally responsible for his or her condition: Hinchliffe v The Queen [2001] WASCA 15 at [24] citing R v Redenbach (1991) 52 A Crim R 95 at 99. On the other hand, as noted by the Court in Redenbach, where the Court is satisfied that there is something which wholly or partly excuses the taking of drink or drugs, it will treat that circumstance as going to mitigation. It gave as an example drug addiction resulting from the medicinal use of prescription drugs …
The appellant did not tender any medical evidence that he was suffering from a mental disorder as distinct from being dejected or despondent … I am not persuaded that the appellant's drug induced psychotic state was causally connected with any non drug-related depression. Thus, I do not regard the fact that the appellant acted in the course of a drug-induced psychotic state as mitigatory or lessening his moral culpability for the offences.
The Court of Criminal Appeal in Victoria discussed the relevance of a self‑induced drug psychosis to moral culpability in R v Martin [2007] VSCA 291. In that matter the court upheld the conclusion of a trial judge that the fact the offender was suffering from a self-induced illegal drug psychosis at the time of committing the offences was an aggravating factor. The critical factor leading to that conclusion was the degree of knowledge possessed by the offender as to the effect the drug would have on his mental state.
The court did not endorse the general proposition that drug-induced psychosis can never be a mitigating factor because it is the result of the offender's own illegal act. The court cited two examples where it could mitigate; first, where the offender had no awareness due to lack of prior knowledge or experience that the ingestion of a drug might trigger a psychotic reaction. The resultant impairment of mental capacity may be regarded as involuntary notwithstanding that the taking of the drug was a voluntary act. Secondly, where the offender is attempting to withdraw from drug use and the psychosis occurs in the course of the attempt to withdraw from use of the drug which was nevertheless the cause of the psychosis. In such a case the drug‑induced psychosis was seen as substantially reducing the offender's level of culpability. The court concluded [30]:
Voluntary ingestion of drugs should be approached no differently from intoxication, in our view. The critical question will be what the probable consequences of the ingestion of the particular drug by the particular offender were, and whether the offender foresaw those consequences.

Following the decision in Martin, in The Director of Public Prosecutions v Arvanitidis [2008] VSCA 189 Redlich JA, with whom Buchanan and Nettle JJA agreed, said [29]:
Martin makes clear that the fact that a psychiatric illness that has been induced by the offender's own illegal act will not always prevent the mental condition from constituting a mitigating circumstance. In each case the Court must consider 'what the probable consequences of the ingestion of the particular drug by the particular offender were and whether the offender foresaw those consequences'.
In this case, the sentencing judge had before her a number of reports relating to the appellant's mental condition (which I have also read). They include:
(a)a psychiatric report from Dr Steven Patchett dated 19 April 2004 (that had been obtained to address the appellant's capacity to plead to the charge);
(b)an undated psychological report and a further report dated 11 September 2005 by Dr Tracy Westerman from Indigenous Psychological Services;
(c)a psychiatric report from Dr V Pascu dated 13 September 2005;
(d)a psychiatric report from Dr Z Srna dated 19 September 2005;
(e)a psychological assessment by a forensic psychologist, Ms Claire Lynn, dated 16 June 2006; and
(f)a psychiatric report from Dr Adam Brett dated 5 October 2006.
The sentencing judge referred to one of the reports from the psychologist which left open the question whether the appellant's psychological issues 'provided fuel for some level of paranoia'. Her Honour then moved to consider the more recent psychiatric report (which I take to mean the Brett report dated 5 October 2006) and said:
However, I believe the more recent psychiatric report puts that into better perspective, that indeed there was no underlying level of paranoia, that instead there was a psychosis induced by cannabis, and that whilst that may well have fuelled your reaction to the feelings … that you had, which as I have said you consider to be not of your making, certainly were playing on your mind and was the fertile ground upon which the psychotic beliefs operated.
…
It would appear that because you have been in prison you have abstained from alcohol and cannabis and that you are enjoying good health as a result. It is also significant from the psychiatrist's report and from the complete change in your mental health that the only basis upon which you suffered any psychotic problems was because of the cannabis and you are not one of those unfortunates who have an underlying mental illness which is something which they do not want and cannot control (ts 522).
Her Honour then moved to a factor which she described as 'concerning':
[A]nd I believe it is something which is fundamental to the outcome in this case, is that according to the evidence you had previously suffered from a drug-induced psychosis as a result of your cannabis use … Despite being aware of these dangers for you, you continued your cannabis use.
It is also apparent from the evidence at trial that the use of cannabis not only gave you psychotic episodes but that [they] were clearly violent in nature, or at the very least made you aggressive and impaired your judgment well and truly (ts 523).
Having commented that it probably did not matter whether the jury had rejected the insanity defence because the appellant was not suffering a mental illness that impaired his relevant capacities at the time (Criminal Code s 27), or because, even if he was, his conduct was not excused because he deliberately ingested the drug that gave him the illness (Criminal Code s 28), her Honour said:
[T]he ultimate result is that it was your deliberate act which led to the mental problem that contributed to your conduct on the day and either way the responsibility lies squarely with you (ts 523).
I am not sure that this statement fully captures the impact of mental illness in the sentencing approach. A person with a mental disorder may still be criminally responsible for an offence. But that same disorder may still be a relevant consideration in the exercise of the sentencing discretion. But in the circumstances of this case no error has been demonstrated in the way that the appellant's mental condition was taken into account.
The sentencing judge accepted the Brett report of 5 October 2006. In it, the author reached a number of conclusions. He found that the appellant suffered from cannabis induced psychosis (in remission) and 'possible underlying depressive disorder'. He recorded a belief that the appellant was acutely psychotic at the time of the offence but the aetiology (cause) of the psychosis was likely to be related to his cannabis use. The appellant's symptoms were more consistent with delusional than cultural beliefs (an opinion supported by the court's Aboriginal advisory officer). The author said:
I believe [the appellant] had a drug induced psychosis not an underlying mental illness such as schizophrenia as the symptoms have resolved quickly with his abstinence from [cannabis] use. He is currently not taking any anti-psychotic medications and there is no evidence of ongoing psychosis. His risk of relapse will relate to his risk of reusing illicit substances.
Dr Brett also commented on the appellant's depressive disorder which he believed 'could be consistent with unresolved grief' and with a fear that he may suffer further punishment following his prison sentence. It seems to me to follow that even if the appellant was suffering from a depressive disorder it was not an underlying medical condition existing at the time the offence was committed.
Dr Patchett's report was directed at the appellant's fitness to stand trial. The author opined that there was no lack of fitness. There is nothing in the report to suggest that the appellant was suffering from an underlying mental illness. He did, however, mention the 2002 presentation to the Mental Health Services in Alice Springs and commented that it was of short duration 'thought to be drug related'. The psychological report from Dr Westerman dated 11 September 2005 referred to the appellant's 'documented history of drug induced pyschosis', and said 'that history, together with the possibility that he had smoked cannabis in the days leading up to the incident, … raises the possibility that the voices were drug-induced psychotic phenomena'. Dr Pascu opined that the appellant was fit to stand trial and that there was no evidence of any underlying psychotic or affective disorder. Under a heading 'clinical disorders' she noted: 'history of drug induced psychosis - currently mentally well'. In his report Dr Srna opined that it was unlikely that the phenomenology demonstrated by the appellant could be explained simply by abuse of cannabis. Dr Srna thought it reasonable to assume that the appellant had been suffering from a major psychiatric disorder, namely schizoaffective disorder, with episodes exacerbated by cannabis abuse.
Aside from Dr Srna, all of these reports point to drug‑induced psychosis and doubt the existence of an underlying mental illness. In my view it was open to the sentencing judge to accept that diagnosis and to proceed in accordance with the views expressed by Dr Brett.
It seems to me that the sentencing judge made a number of important findings in this respect. First, the appellant was suffering from drug‑induced psychosis and that he was not afflicted by an underlying mental illness. Secondly, the appellant had previously suffered drug-induced psychosis as a result of cannabis use. Thirdly, the drug‑induced psychosis made him aggressive and impaired his judgment. Fourthly, the deceased had been mistreated during these prior episodes. Fifthly, he had continued to use cannabis despite being aware of the dangers of its use upon him.
Her Honour did not indicate whether in her view the deliberate use of cannabis by the appellant was either a mitigating or an aggravating factor. She simply regarded it as a significant factor.
In the hearing of the appeal, counsel for the appellant submitted that when looking at culpability and criminality in regard to wilful murder, there is a distinction to be made between a 'cold-blooded, callous, perverted, calculated murderer' and a person who is 'negligent, reckless in their consumption of drugs that gives rise to a psychosis, knowing by virtue of that attitude of recklessness or negligence that they could do something violent'. That may be so but it is all a question of degree. Assuming for the sake of argument that the appellant falls into the latter category, he cannot claim the benefit of either of the exceptions mentioned in Martin. He could not say he was unaware that smoking cannabis might trigger a psychotic reaction. Nor was there any evidence that he was attempting to withdraw from the use of cannabis. In my view the level of recklessness in the appellant's behaviour was significant.
In the light of the evidence and the factual findings I think it was open for her Honour to conclude, as she did, that the appellant's moral culpability was only slightly reduced by the drug-induced psychosis he experienced at the time of the offending. I can see no error in her Honour's assessment of moral culpability as a factor in setting the minimum term.

Manifest excess

The offence committed by the appellant was by all measure within the upper end of the scale of seriousness for offences of its type. But for the additional hardship of imprisonment upon him by reason of his traditional Aboriginal lifestyle and the fact that he had already received tribal punishment, the appellant may have been sentenced to strict security life imprisonment.
The appellant brutally killed his young wife and unborn child and burned them to ashes. Prior to killing her, he had subjected her to hours of violence which must have put her in fear of her life. Her death and that of her unborn child had an enormous impact on the family and the community. The appellant's moral culpability in respect of his drug-induced psychosis was not significantly reduced by mental illness.
The non-parole period is the minimum time determined by the judge that justice requires the offender serve, having regard to the circumstances of the case: Power v The Queen (1973) 131 CLR 623, 629. Those circumstances include all relevant sentencing factors including the circumstances of the offending, aggravating and mitigating factors and the offender's antecedents. Her Honour had to consider the imposition of a minimum term between 15 years and 19 years. The result arrived at in this case is, therefore, as long a term as could have been imposed. This will always call for comment and close examination but I have not been persuaded that the minimum term of 19 years is so unreasonable that error has to be inferred. In my view the sole ground of appeal, with its attendant particulars, has not been made out.

The application for an extension of time to appeal

The last date for appealing this matter was 27 October 2006. The Appeal Notice was filed on 26 March 2009, a delay of some 29 months. By any reckoning the delay is gross. Counsel charged with the conduct of the appeal submitted in an affidavit in support of an extension of time within which to appeal the following reasons for the delay:
•A request to provide advice regarding possible grounds of appeal was received from the Legal Aid Commission in October 2006.
•Counsel wrote to Legal Aid requesting provision of the appellant's file, which had not been provided at the time the initial request was made, and was advised to contact the solicitor who had been handling the matter at trial.
•From materials then received in July 2008 which did not include the sentencing transcript counsel did not have sufficient information upon which to express any view as to the sentence, however his initial impression on review of the materials was that there was little or no prospect of a successful appeal against sentence.
•The matter was left by counsel for several months. After he received a prompting letter from Legal Aid as to his progress he contacted the appellant's trial counsel and was provided with a copy of the sentencing transcript in February 2009.

Not all of the delay is adequately explained. But the biggest problem facing the appellant is that in my view there is no substance in the appeal. There will, therefore, be no miscarriage of justice if time is not extended. I would therefore refuse an extension of time to appeal.

Conclusion

The application for an extension of time within which to appeal is refused. In any event I would have dismissed the appeal.
PULLIN JA: I agree with Owen JA.