Crossland v The State of Western Australia

[2016] WASCA 93

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   CROSSLAND -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 93

CORAM:   McLURE P

MAZZA JA
MITCHELL J

HEARD:   4 MAY 2016

DELIVERED          :   9 JUNE 2016

FILE NO/S:   CACR 162 of 2015

BETWEEN:   JOHN PAUL CROSSLAND

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :JENKINS J

File No  :INS 197 of 2014

Catchwords:

Criminal law - Appeal against sentence - Murder - Whether sentence of life imprisonment with minimum period of 21 years manifestly excessive - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal on ground 1 refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms K J Farley SC

Respondent:     Mr L M Fox

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

Angliss v The State of Western Australia [2015] WASCA 8

Atherden v The State of Western Australia [2010] WASCA 33

Austic v The State of Western Australia [2010] WASCA 110

Cockram v The State of Western Australia [2011] WASCA 179

Egitmen v The State of Western Australia [2014] WASCA 198

House v The King (1936) 55 CLR 499

Johnston v The State of Western Australia [2012] WASCA 18

Khan v The State of Western Australia [2013] WASCA 193

Kowaleff v The State of Western Australia [2010] WASCA 183

Kuzimski v The State of Western Australia [2012] WASCA 202

Mack v The State of Western Australia [2014] WASCA 207

Mikhail v The State of Western Australia [2012] WASCA 200

Pedersen v The State of Western Australia [2010] WASCA 175

Prestidge v The State of Western Australia [2014] WASCA 16

R v Pham [2015] HCA 39; (2015) 90 ALJR 13

Rosewood v The State of Western Australia [2014] WASCA 21

Silva v The State of Western Australia [2013] WASCA 278

Stinson v The State of Western Australia [2014] WASCA 72

The State of Western Australia v O'Kane [2011] WASCA 24

The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285

The State of Western Australia v Smith [2015] WASCA 87

Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91

Zwerus v The State of Western Australia [2015] WASCA 174

1. McLURE P:  I agree that the appeal should be dismissed generally for the reasons given by Mitchell J.

2. MAZZA JA:  I agree with Mitchell J.

   MITCHELL J: 

Summary

1. On 11 May 2013, the appellant, who was a guest in the deceased's home, killed the deceased by stabbing him in the front of his right thigh and striking his head twice with a cricket bat.  The appellant took various items from the deceased's unit and left without offering or seeking any medical assistance for the deceased.  The deceased's body was undiscovered until 14 May 2013.  The appellant handed himself into police on 23 May 2013.  He was arrested and charged with the deceased's murder.  He was convicted after trial and sentenced to life imprisonment with a minimum term of 20 years 6 months' imprisonment.

2. The appellant appeals against that sentence.  His second ground of appeal, on which leave to appeal has been granted, alleges that the sentencing judge erred in failing to either backdate or give credit for a period of 21 months that the appellant spent on remand awaiting trial.  The application for leave to appeal on ground 1, which alleges that the minimum term was manifestly excessive, was referred to the hearing of the appeal.

3. For the following reasons, the sentencing judge gave the appellant credit for all the time he spent in custody prior to sentence and the minimum term was not manifestly excessive.  Leave to appeal on ground 1 should be refused and the appeal should be dismissed.

Circumstances of offending

1. The sentencing judge made the following unchallenged findings of fact concerning the circumstances of the offending.

2. The deceased lived by himself in a unit in a small block of units in South Perth.  He was 42 years of age.  He was an illicit drug user and he dealt in drugs to support his habit and his lifestyle.  Given his drug dealing and his lifestyle, the deceased had a lot of people visiting his unit, some of whom were drug affected.  He also kept drugs on his premises, which

would have made him a target for thieves.  The deceased kept a cricket bat in his unit.  He had used the cricket bat in the past, on at least one occasion, in a physical altercation.

1. The appellant was 24 years of age, homeless and unemployed.  A friend had introduced the appellant to the deceased when the appellant accompanied that friend to the deceased's unit.  The appellant became friends with the deceased as a result of their common drug use and because the appellant was homeless.  The deceased permitted the appellant to stay at his unit.  He was probably supplying drugs to the appellant.  The appellant, in turn, had sold or discussed selling a handgun to the deceased.  The deceased wanted the gun because he feared people robbing him of his drugs. 

2. On the evening of 11 May 2013, the appellant was alone with the deceased in his unit.  Earlier in the evening, a female friend of the deceased had also been in the unit.  The deceased thought that the appellant had stolen his wallet and a gun from him.  While the female friend was present, the situation between the deceased and the appellant was not openly hostile, but there was tension between them.

3. At some point during the evening, the appellant stabbed the deceased in the front of his right thigh with a knife, and hit him twice across the head with the cricket bat.  The deceased was sitting on a couch in the living room when the appellant attacked him. 

4. The appellant stabbed the deceased first.  The stab wound measured 2.2 cm long on the skin surface when the edges of the wound were pushed together, and was about 13 cm deep.  The stab wound cut both the femoral vein and the femoral artery in the deceased's leg.  The wound endangered the life of the deceased, and was likely to be fatal.  The appellant did not know that the wound would cause death, but appreciated that his action in stabbing the deceased was likely to cause a serious bodily injury, which was likely to endanger the deceased's life.

5. The appellant then hit the deceased with the bat two times when the deceased was unarmed and sitting down.  This caused lacerations to the skin on the deceased's forehead and multiple fractures to the deceased's skull and jaw, mainly on the left side.  There was a fracture to the front of the jaw at the level of the chin.  There were also fractures through both cheekbones and both eye sockets, and multiple fractures at the front of the forehead extending towards the left side of the forehead.  There was also a complete fracture of the left jaw and significant fracturing to the inside of the skull and to the base of the skull.  There was a less obvious fracture to the right jaw.  The lacerations and fractures to the head could have endangered the deceased's life.

6. The appellant hit the deceased very hard in order to cause those injuries.

7. The deceased died in his living room from a combination of the stab wound to the leg and the head injuries which the appellant inflicted.

8. After the appellant had fatally injured the deceased, the appellant took the opportunity to steal various items from him, including a phone, money and a camera or cameras.  The appellant did not try to render first aid or attempt to obtain help for the deceased.

9. The appellant then left the flat, also taking with him the knife, bat and possibly a gun.  The appellant went to a friend's place and stayed the night there.  The following day, the appellant disposed of the bat down a well in the backyard of a nearby home, which was empty and soon to be demolished.  At some point, the appellant also disposed of the knife, which was never located.

10. The appellant told friends that he had hit the deceased, and did not express any remorse for having done so.  One of the friends said the appellant was calm, like he did not care.  Although another said that the appellant was depressed, he did not express to that friend any appropriate remorse for what he had done.

11. Over the next 11 days, the appellant buried the gun and sold or bartered the items he had stolen from the deceased.  The gun was a starter pistol, which the appellant used to commit various offences while the appellant was on the run in relation to the murder of deceased.

12. The appellant was still homeless and stayed with various friends and acquaintances.  He committed a number of other serious offences during this period of time.  As there is no appeal against the sentences imposed for those offences, it is unnecessary to set out the circumstances of those offences here.  The deceased's body remained undiscovered in his unit until Monday, 14 May 2013.  On that day, two of the deceased's friends broke into the unit and discovered his body.  The police were advised and commenced an investigation.

13. On 23 May 2013, the appellant handed himself into the police and was interviewed.  The appellant told the police that the deceased swiped a cricket bat across the top of his head, and he instinctively picked up the knife which was on a coffee table and stabbed the deceased in the front of his right thigh.  He said that the deceased dropped the bat, which the appellant picked up and used to strike the deceased to the head twice.

14. The sentencing judge did not accept as accurate the appellant's account to police of what happened in the unit.  She was not prepared to find that the appellant subjectively believed that his actions were necessary to defend himself from the deceased's harmful act.

15. The sentencing judge was also not prepared to find that the deceased did not assault the appellant in any way.  Given the tension between the two, she accepted that it was possible that the deceased swung the bat across the top of the appellant's head before the appellant fatally assaulted him.

16. At the time of committing the offence, the appellant was suffering from post‑traumatic stress disorder.  However, this was not a significant cause of his behaviour on the evening of the offence.  The appellant was under the influence of illicit drugs at that time, and this intoxication increased the chances of him becoming aggressive and violent with little or no provocation.

17. The sentencing judge sentenced the appellant on the basis that he intended to cause the deceased a very serious injury, falling short of death, when he inflicted the deceased's injuries.  Whilst the appellant's actions were only consistent with an intention to cause a very serious and life‑threatening injury, it was reasonably possible that he did not, at that point, intend to kill the deceased.

Appellant's personal circumstances

1. The sentencing judge made the following findings in relation to the appellant's personal circumstances.

2. The appellant was 27 years of age at the time of sentence and 24 years of age at the time of the commission of the murder and most of the other offences.  He had a difficult and disadvantaged childhood.  His parents failed to properly care for him and he was abandoned by his mother.  The appellant's grandparents cared for him and have remained substantially supportive of the appellant throughout his life.   The appellant was also cared for by an aunt and an uncle, and claimed that his uncle physically abused him. 

3. The appellant started living on the streets at about the age of 12, when he left the home of his uncle and aunt.  From that point, he was involved in criminal activities.  The appellant described running drugs and firearms for others.  The appellant had a lengthy prior criminal record for offences involving drugs, dishonesty, weapons and violence, including a conviction for armed robbery in 2009.  Prior to the murder, the appellant spoke of himself as a gangster, and carried weapons as if he was a gangster.  He spoke about being involved in criminal activities to such an extent that, when he told his friends that he had killed someone, they did not think he was serious and brushed it off as another one of his stories.

4. When still a teenager, the appellant was involved in a relationship which produced two children, with whom he continued contact.  The appellant had one other significant relationship, which also produced two children with whom the appellant hoped to continue contact.

5. The appellant had experienced little employment.  He said he had a job which he lost when injured at work, leading to the breakdown of the appellant's second relationship.  He was also a carer for his grandparents for a while. 

6. The appellant had a long history of substance abuse.  He started using illicit drugs at an early age.  During his second relationship, he used fewer drugs and his life was more stable.  When that relationship broke down, the appellant recommenced using a broad range of illicit drugs and reconnected with his criminal associates.  This was the period of time in which the offences dealt with by the sentencing judge occurred.

7. The appellant had some health problems.  In early 2013 the appellant was involved in a fight, or was assaulted.  His jaw was broken in multiple places.  This required surgery and plating.  The appellant had repeated hospital admissions in 2013 as a result of that injury.  Hospital records showed that the appellant also had many admissions for injuries received either as a result of assaults, fights or self-harm.  The appellant claimed to have suffered 59 broken bones and received many other injuries.  Some, but not all, of these claims are verified in medical records.

Sentencing judge's approach

1. In the course of her reasons, the sentencing judge identified a number of aggravating circumstances of the murder offence.

   1.The use of two weapons, both of which were employed with considerable violence to inflict very serious injuries which ultimately led to the deceased's death.

   2.The appellant's actions in stealing items from a small living room in the presence of a dead or dying man without any attempt to render first aid or obtain help were selfish, callous and disturbing.

   3.The appellant removed and disposed of the knife, bat and possibly a gun, which may have implicated him in the commission of the offence.

   4.The appellant's failure to attempt to obtain medical assistance, or even render first aid, increased the likelihood of serious consequences resulting from the stab wound.

   5.The significant effect which the offence had on the deceased's only sister and mother, who was additionally traumatised by the fact that the deceased might have died slowly and alone and was troubled by the fact that items were stolen from the deceased.

2. The sentencing judge accepted that the appellant was to be sentenced on the basis that the murder was not premeditated.  She took account, as mitigating factors, of the appellant's relative youth, his disadvantaged background, his post‑traumatic stress disorder and the remorse he had expressed, albeit very late in the day.

3. The sentencing judge described the appellant's post-traumatic stress disorder as a double‑edged sword for him because she was satisfied that it, along with the appellant's personal characteristics, made the appellant a dangerous person in the community.  She said that the appellant was, at the time of sentence, at high risk of violent reoffending, without significant drug rehabilitation and psychiatric and psychological assistance.

4. The sentencing judge then imposed a sentence of life imprisonment for the offence of murder, with a minimum term of 20 years 6 months' imprisonment, backdated to 20 November 2013.

Ground of appeal 2:  backdating

1. It is convenient to deal first with the appellant's second ground of appeal, which alleges that the sentencing judge failed to give credit for time the appellant spent on remand.  Senior counsel for the appellant correctly conceded that there was no merit in this ground.

2. When the appellant was sentenced on 17 August 2015, a complication arose because the appellant had served a term of imprisonment during 6 of the 27 months he had spent in custody since 23 May 2013.  The sentencing judge could not take the 6‑month period into account when backdating the life sentence as, during the 6‑month period, there was a reason for the appellant being in custody other than the murder offence.[1]  However, her Honour did reduce the minimum term of the life sentence to take account of time spent in custody on a sentence which would have been served concurrently with the life sentence if imposed at a later time.

   [1] Section 87(1)(a) and s 87(1)(d) of the Sentencing Act 1995 (WA).

3. The sentencing judge gave the appellant full credit for the 27 months he spent in custody by backdating the sentence by 21 months to 20 November 2013 and also reducing the 21‑year minimum term she would otherwise have imposed by 6 months.  Ground 2 must be dismissed.

Ground of appeal 1:  manifest excess

1. Ground of appeal 1 contends that the minimum term imposed in this case was manifestly excessive.  In light of the discussion in relation to ground 2, the minimum term which must be assessed for this purpose is 21 years.  This is the minimum term which would have been imposed before taking account of time spent in custody after being charged with murder.

Principles

1. An allegation of manifest excess is an allegation of implied error.  Such an error may be inferred where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[2]

   [2] House v The King (1936) 55 CLR 499, 505.

2. Appellate intervention on the ground of manifest excess or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.[3]

   [3] R v Pham [2015] HCA 39; (2015) 90 ALJR 13 [28].

3. To determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standards of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender.[4]

Maximum penalty

[4] TheState of Western Australia v Smith [2015] WASCA 87 [163].

1. The mandatory penalty for murder by an adult is life imprisonment unless that sentence would be clearly unjust given the circumstances of the offence and the offender, and the offender is unlikely to be a threat to the safety of the community when released from imprisonment.[5]  When imposing a life sentence, the court may either order that the offender never be released or set a minimum period of at least 10 years that the offender must serve before being eligible for release on parole.[6]  The Act does not provide for an upper limit where the court sets a minimum term.

Customary standards of sentencing

[5] Section 279 of the Criminal Code.

[6] Section 90 of the Sentencing Act.

1. A non‑parole period is the minimum period of imprisonment that justice requires the offender to serve.  It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period.  The principles concerning the fixing of a minimum term for the offence of murder are well established and need not be repeated here.[7]

   [7] See Pedersen v The State of Western Australia [2010] WASCA 175 [40] ‑ [46].

2. In considering this issue, it is important to remember, as has frequently been observed in this court,[8] that the guidance afforded by comparable cases is flexible rather than rigid.  The mere fact a non‑parole period is within the range of other non‑parole periods imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case.  Similarly, the mere fact a non‑parole period is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

   [8] See, for example, Smith [166] ‑ [169].

1. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence (including a minimum term) is manifestly excessive.  A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

2. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

3. The appellant's written submissions contend that the minimum term imposed in this case is considerably longer that any of the minimum terms imposed in an attached schedule of other cases of murder without intent to kill.  The appellant submits that the minimum term imposed on him seems more to reflect some sentences imposed after a finding of intent to kill.  He also notes that a number of cases where an intention to kill was established resulted in minimum terms significantly less than that imposed on the appellant.  The appellant's submissions recognise that it is difficult to compare any two cases of murder.  However, he submits that the disparity in minimum terms between this case and those referred to in the schedule indicate, in the circumstances of this offence and offender, that the effective 21‑year minimum term is manifestly excessive and should be reduced.

4. It is not uncommon for minimum terms in the range of 17 - 23 years to be imposed for single offences of murder,[9] including in cases where there has been a plea of guilty and/or an absence of any intention to kill.[10]  The appropriate sentence in any particular case will depend on a careful and detailed consideration of all the circumstances of the offence and offender and all applicable sentencing principles. 

   [9] Pedersen; The State of Western Australia v O'Kane [2011] WASCA 24; Cockram v The State of Western Australia [2011] WASCA 179; Johnston v The State of Western Australia [2012] WASCA 18; Lee; Silva v The State of Western Australia [2013] WASCA 278; Prestidge v The State of Western Australia [2014] WASCA 16; Rosewood v The State of Western Australia [2014] WASCA 21; Stinson v The State of Western Australia [2014] WASCA 72; Mack v The State of Western Australia [2014] WASCA 207; Angliss v The State of Western Australia [2015] WASCA 8; Smith; Zwerus v The State of Western Australia [2015] WASCA 174; and cases referred to in those authorities.

   [10] Pedersen; O'Kane; Johnston; Prestidge; Rosewood.

5. 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 less serious than killing with an intention to cause death.[11]  As Wheeler JA, with whom McLure P and Owen JA agreed, noted in Atherden:

   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 [31].

   [11] Atherden v The State of Western Australia [2010] WASCA 33 [30].

6. Further, the appropriateness of the sentence will be informed by matters other than the objective seriousness of the offending conduct, such as matters personal to the offender.  For example, a number of the cases to which the appellant refers where intention to kill was not established involved pleas of guilty which would have attracted a significant discount.  Even if account is taken only of the plea and the absence of an intention to kill, the disparity between the sentence imposed in the present case and those imposed in cases such as Rosewood (18 years), O'Kane (23 years) and Pedersen(19 years), where the offenders pleaded guilty, is not obvious.

7. More importantly, it is not appropriate to compare cases by reference to only one or two sentencing factors.  That would constitute an inappropriately simplistic approach to the sentencing exercise.

8. I have read and considered the detail of the cases referred to in the appellant's schedule which involve appeals to this court against sentences imposed for murder under the current sentencing regime.[12]  All of the other cases referred to have one or more distinguishing features from the present.  The present sentence is broadly consistent with the sentencing standards reflected in these decisions considered as a whole, having regard to all the circumstances of the offenders and offences and all relevant sentencing principles.

Seriousness of the circumstances of the offending

[12] Being Smith; Angliss; Egitmen v The State of Western Australia [2014] WASCA 198; Mack; Stinson; Rosewood; Silva; Lee; Kuzimski v The State of Western Australia [2012] WASCA 202; Mikhail v The State of Western Australia [2012] WASCA 200; Cockram; The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285; Kowaleff v The State of Western Australia [2010] WASCA 183; Austic v The State of Western Australia [2010] WASCA 110; Rosewood; Prestidge; Khan v The State of Western Australia [2013] WASCA 193; Goodwyn; Johnston; Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91; O'Kane; Pedersen and Atherden.

1. Notwithstanding that an intention to kill was not established, this was a comparatively serious case of murder.  The deceased was attacked in his own home by a person to whom the deceased had extended hospitality.  The appellant employed a very high level of violence using two weapons to inflict serious injuries that were objectively highly likely to cause death, particularly when they were not treated.  Having inflicted those injuries on the deceased, the appellant left him alone in his home without any assistance or (given his likely unconscious state) any ability to obtain assistance.  The deceased remained undiscovered in his unit for a number of days.  While he was dead or dying, the appellant stole some of his property.  The appellant took active steps to conceal his crime by taking and disposing of the murder weapons.

Personal circumstances

1. The appellant's personal circumstances are described above.  There is little by way of mitigation to be found in them, apart from the appellant's dysfunctional upbringing and relative youth at the time of committing the offences.  He did not have the mitigating benefit of a plea of guilty.  As the sentencing judge noted, he presented a high risk of future violent offending.

Conclusion as to manifest excess

1. Having regard to all of the above considerations, the minimum term of 21 years' imprisonment imposed on the appellant, before taking account of time spent in custody, was not manifestly excessive having regard to the nature and seriousness of the offence, the circumstances of the offender and all other relevant sentencing factors.  Ground of appeal 1 is not established.

Orders

1. Leave to appeal has already been granted on appeal ground 2.  For the above reasons, appeal ground 1 is not reasonably arguable.  Leave to appeal should be refused on ground 1 and the appeal should be dismissed.