DC v The State of Western Australia
[2014] WASCA 121
•13 JUNE 2014
DC -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 121
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 121 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:173/2013 | 2 APRIL 2014 | |
| Coram: | BUSS JA NEWNES JA MAZZA JA | 13/06/14 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | 1. Leave to appeal on ground 2 is refused 2. The appeal is allowed 3. The sentence imposed by Reynolds P on 13 August 2013 for the offence of attempted murder is set aside 4. The appellant is resentenced for that offence to 6 years' imprisonment with eligibility for parole, to commence on 23 October 2012 | ||
| B | |||
| PDF Version |
| Parties: | DC THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Attempted murder Juvenile offender Whether sentence manifestly excessive |
Legislation: | Criminal Code (WA), s 283(1), s 378 Sentencing Act 1995 (WA), s 9AA Young Offenders Act 1994 (WA), s 3, s 4, s 6, s 7 |
Case References: | Ainsworth v D (a child) (1992) 7 WAR 102 Aldridge v The Queen (Unreported, WASCA, Library No 980206, 23 April 1998) AM (a child) v The Queen (Unreported, WASCA, Library No 960263, 15 May 1996) Barbaro v The Queen [2014] HCA 2 Bell v The Queen (1992) 62 A Crim R 66 Bromfield v The Queen [2002] WASCA 333 Byfield v The Queen [2002] WASCA 260 C (a child) v The Queen (1995) 83 A Crim R 561 Chan v The Queen (1989) 38 A Crim R 337 F (a child) v The Queen (Unreported, CCA, Library No 960208, 19 April 1996) F (a child) v The State of Western Australia [2004] WASCA 193 G (a child) v The Queen (Unreported, WASCA, Library No 970455, 12 September 1997) Garlett v The State of Western Australia [2009] WASCA 44 House v The King (1936) 55 CLR 499 JSA v The State of Western Australia (2012) 42 WAR 473; [2012] WASCA 25 Lawson v The Queen (Unreported, WASCA, Library No 940439, 24 August 1994) Postiglione v The Queen (1997) 189 CLR 295 R v Kerr (Unreported, WASCA, Library No 970402, 15 August 1997) The Queen v E (a child) (Unreported, CCA, Library No 930234, 30 April 1993) The State of Western Australia v Hillier [2008] WASCA 184 Zhang v The State of Western Australia [2013] WASCA 121 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DC -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 121 CORAM : BUSS JA
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : REYNOLDS P
File No : CC 4537 of 2012
Catchwords:
Criminal law - Appeal against sentence - Attempted murder - Juvenile offender - Whether sentence manifestly excessive
Legislation:
Criminal Code (WA), s 283(1), s 378
Sentencing Act 1995 (WA), s 9AA
Young Offenders Act1994 (WA), s 3, s 4, s 6, s 7
Result:
1. Leave to appeal on ground 2 is refused
2. The appeal is allowed
- 3. The sentence imposed by Reynolds P on 13 August 2013 for the offence of attempted murder is set aside
4. The appellant is resentenced for that offence to 6 years' imprisonment with eligibility for parole, to commence on 23 October 2012
Category: B
Representation:
Counsel:
Appellant : Ms K J Farley SC & Ms N Sinton
Respondent : Mr J A Scholz
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ainsworth v D (a child) (1992) 7 WAR 102
Aldridge v The Queen (Unreported, WASCA, Library No 980206, 23 April 1998)
AM (a child) v The Queen (Unreported, WASCA, Library No 960263, 15 May 1996)
Barbaro v The Queen [2014] HCA 2
Bell v The Queen (1992) 62 A Crim R 66
Bromfield v The Queen [2002] WASCA 333
Byfield v The Queen [2002] WASCA 260
C (a child) v The Queen (1995) 83 A Crim R 561
Chan v The Queen (1989) 38 A Crim R 337
F (a child) v The Queen (Unreported, CCA, Library No 960208, 19 April 1996)
F (a child) v The State of Western Australia [2004] WASCA 193
G (a child) v The Queen (Unreported, WASCA, Library No 970455, 12 September 1997)
Garlett v The State of Western Australia [2009] WASCA 44
House v The King (1936) 55 CLR 499
JSA v The State of Western Australia (2012) 42 WAR 473; [2012] WASCA 25
Lawson v The Queen (Unreported, WASCA, Library No 940439, 24 August 1994)
Postiglione v The Queen (1997) 189 CLR 295
R v Kerr (Unreported, WASCA, Library No 970402, 15 August 1997)
The Queen v E (a child) (Unreported, CCA, Library No 930234, 30 April 1993)
The State of Western Australia v Hillier [2008] WASCA 184
Zhang v The State of Western Australia [2013] WASCA 121
1 BUSS JA: I agree with Mazza JA.
2 NEWNES JA: I agree with Mazza JA.
3 MAZZA JA: This is an appeal against sentence. The appellant, who was 17 years and 10 months old at the time of the offending, pleaded guilty in the Perth Children's Court to attempting to unlawfully kill JJG, contrary to s 283(1) of the Criminal Code (WA) and stealing property of JJG to the value of $2,000, contrary to s 378 of the Criminal Code.
4 On 13 August 2013, the appellant was sentenced to 7 years 6 months' imprisonment for the charge of attempted murder. The appellant was sentenced to 3 months' imprisonment for the charge of stealing. The sentences were ordered to be served concurrently, thus the total effective sentence was 7 years 6 months' imprisonment. The appellant was made eligible for parole and the sentences were backdated to commence on 23 October 2012.
5 Originally there were three grounds of appeal. Ground 1 was abandoned at the hearing of the appeal (appeal ts 5). It is unnecessary to say anything in respect of it.
6 The two grounds which were pursued, grounds 2 and 3, are in these terms:
2. The learned sentencing judge erred in finding that the circumstances of this case put it at the top end of the range of offences of its nature.
3. The sentence imposed was manifestly excessive in all the circumstances of the case, and particularly that it involved a young offender for whom the objectives and principles of the Young Offenders Act applied.
7 Leave to appeal has been granted on ground 3. The question of leave to appeal on ground 2 was referred to the hearing of the appeal.
The facts of the offending
8 There is no dispute as to the facts of the offending. The appellant, the victim and JTR were acquaintances. Each was aged 17 years and had been at a party on the evening of 19 October 2012. The appellant had drunk a substantial quantity of alcohol and was intoxicated. At about 2.00 am on 20 October 2012, they went to a shed at the rear of an abandoned house in Carrington Street, Hilton. The appellant sat on a couch with JTR while the victim fell asleep on a couch opposite them.
9 At some stage, JTR fell asleep. At about 5.00 am, he woke up and had a conversation with the appellant. The appellant told JTR that he was going to kill the victim. JTR tried to dissuade the appellant from that course of action. In his deposition, which was referred to in the hearing of the appeal without objection, JTR said that he spoke to the appellant for approximately five minutes, during which time the appellant 'kept on saying that he wanted to kill [the victim]' (AB 90). The appellant was adamant that he wished to kill the victim.
10 The appellant then told JTR that they should both leave the shed for some fresh air, which they did. A short time later, the appellant went back into the shed by himself. The victim was still asleep and had his back to the appellant. The appellant was armed with a fold-out knife with a blade approximately 3 inches long. He held it in both hands above his shoulders and plunged it into the victim's front chest cavity. The appellant struck the victim with the knife at least another three times, arousing the victim from his sleep who pleaded with him to stop.
11 The appellant left the shed and picked up a brick. He returned to the doorway and threw it at the victim's head. Fortunately, the brick missed its target. The appellant then left the shed and said to JTR, 'There's been a change of plans. [The victim] is still alive and I'm going to let him live'. The appellant went back into the shed and got the victim to call an ambulance. He told the victim not to tell the police that he had stabbed him and to say that a homeless man had caused the injuries.
12 The appellant then left the shed with JTR, but before doing so, he stole the victim's pants, backpack and laptop computer. The victim remained alone in the shed. After leaving the shed, the appellant walked past a quarry in nearby Beaconsfield where he disposed of the knife. The police subsequently recovered the knife on information supplied by JTR.
13 The victim required and received immediate hospitalisation due to his injuries. Stab wounds above the right nipple and to the right bicep were caused by the knife blade entering and exiting in the same motion. He suffered a collapsed right lung and a fracture to a knuckle on his right hand. A cut to the palm of his right hand required 40 stitches to be inserted, as well as plastic surgery. In all, the victim spent just under a week in hospital. He has largely recovered from his physical injuries. However, as the victim impact statement shows, the psychological effects of what occurred remain.
14 Out of fear, the victim initially told police that he had been stabbed by a 'random person'. It was only after JTR informed the police on 22 October 2012 of the appellant's involvement that he (the appellant) became a suspect.
15 On 23 October 2012, the appellant was arrested. He was, at the time, wearing the pants that he had stolen from the victim. The victim's laptop computer was found in the appellant's backpack.
16 The appellant took part in a video record of interview with police. After some dissembling, he made full admissions in relation to his intent and his actions.
The appellant's antecedents
17 By the time he was sentenced, the appellant was 18 years and 7 months old. He has been in custody since his arrest. Some of that time has been spent at Hakea Prison.
18 The appellant was born in New Zealand and has spent most of his life there. He was abandoned by his mother at a young age and was subsequently raised by his father and paternal grandparents. His grandparents are now deceased. When he was about 13 years old, he went to live with his mother for about a year. While there, he was subjected to physical abuse which eventually saw him return to the care of his father.
19 The appellant disclosed to a psychologist that when he was 14 years old he suffered more abuse at the hands of another male. Thereafter, he said, he has suffered symptoms of trauma including fear, anxiety, nightmares, flashbacks and avoidance of people and places. This trauma has dissipated over time.
20 In April 2011, the appellant and his father relocated to Australia. Initially they went to Victoria, but in approximately May 2011 they moved to Western Australia where they have remained.
21 Against his father's advice, the appellant left home in approximately February 2013, seeking 'more freedom and independence'. During this time he experienced periods of homelessness, although at the time of the present offences he was residing with a young couple whom he had met through a friend.
22 The appellant attended many primary schools in New Zealand and suffered 'significant school adjustment problems' as a result. When he arrived in Western Australia he went to TAFE, but failed to complete the course in which he was enrolled. He obtained a number of short-term jobs, including one with his father. After leaving that job, he became unemployed and often associated with antisocial peers, who abused substances. The appellant used cannabis on a fairly regular basis in New Zealand from the age of 13 years. The reports refer to the appellant's more recent abuse of alcohol and hallucinogens. On the night the offences were committed, not only had he been drinking but he had used methylamphetamine and LSD.
23 The appellant does not suffer any physical impairment, nor any mental illness. A psychiatrist, Dr Patchett, reported that the appellant displayed the symptoms and characteristics of an adjustment disorder. The adjustment disorder was a reflection of the appellant's abandonment in his childhood and, on the night in question, was compounded by issues relating to his peer group, including the suicide of a number of his friends, and concerns the appellant had about the victim's treatment of the appellant's female friends. According to Dr Patchett, '[t]hat combination of events and destabilisers has appeared to uncover powerful repressed anger and resulted in this normally quiet, non-aggressive youth attacking [the victim]'. Dr Patchett's report makes no reference to any risk factors relating to the appellant's mental state.
24 A clinical psychologist, Ms Tanina Oliveri, conducted psychometric testing on the appellant. However, the results were invalid because he was found to have exaggerated his responses in what she thought may have been a 'cry for help'. Ms Oliveri concluded that the information available to her suggested the appellant 'has many factors in his history known to correlate with increased recidivism'. She did not quantify such risk. She concluded that the appellant 'has many concerning risk factors that need to be considered when managing him' and that he 'is likely to be best suited to long-term individual psychological therapy'.
25 The appellant has no prior record of convictions either in New Zealand or Western Australia.
The sentencing remarks
26 Reynolds P commenced his sentencing remarks by stating that, in his view, the offence of attempted murder was 'in the top end range of seriousness for offences of its kind' (AB 58). His Honour said that he had come to this conclusion because of the combination of the following factors:
1. The offence was premeditated.
2. The appellant and the victim were associates and the victim, to a degree, trusted the appellant and felt 'comfortable enough to go to sleep when [the appellant] [was] present at the same place'. The victim was thus defenceless when the appellant started to stab him.
3. The appellant deliberately inflicted a number of stab wounds on the victim and 'each and every one … was carried out with the intention to kill … in circumstances where [the victim] had no capacity at all to defend himself'.
4. After stabbing the victim, the appellant picked up and then threw a brick at the victim's head which, fortunately, missed him.
5. After the commission of the offence, the appellant left the victim alone and unattended with the full knowledge of what he had just done to him.
6. The appellant told the victim not to tell the police about what he had done. His Honour regarded this conduct as having appeared to the victim to be both threatening and intimidating. His Honour noted that when the victim initially spoke to the police, he did not reveal the true identity of his assailant.
27 His Honour characterised the offending as 'vicious, repetitive, callous and remorseless'. He said that 'great weight' had to be given to general deterrence (AB 60).
28 His Honour made the point that it was 'good luck rather than good management' that the victim was not killed (AB 61). His Honour referred to the physical injuries suffered by the victim and the psychological effects of what had occurred.
29 His Honour then referred to the mitigating factors in the case, being:
(a) The appellant's pleas of guilty.
(b) The appellant's 'genuine remorse' and insight.
(c) The appellant's youth - his Honour said that he attached 'a great deal of weight to youth as I am required to'. In the context of the appellant's youth, the sentencing judge correctly referred to the requirement that he sentence the appellant according to the objectives and principles in the Young Offenders Act 1994 (WA) (YOA), even though at the time of sentencing he was over the age of 18 years. His Honour referred expressly to the key objectives of sentencing young offenders and, in particular, the objective of rehabilitation (AB 63).
(d) His Honour noted that the appellant had been on remand before sentencing for approximately 294 days, of which roughly half was spent in what were described as extremely difficult and extremely harsh conditions at Hakea Prison (AB 64).
(e) The appellant had no prior convictions in either Western Australia or New Zealand.
(f) The appellant's background in New Zealand, which his Honour described as 'very distressing' and involving rejection and abandonment. His Honour noted that at the time of the offence, the appellant had left the care of his father and had experienced homelessness or at least a lack of stability with respect to his housing and a lifestyle which involved the abuse of substances, including methylamphetamine. His Honour observed that the appellant's father was in court and appeared to offer support to the appellant.
(g) The appellant's adjustment disorder. However, his Honour stated that he did not give this factor substantial weight (AB 66).
(h) The appellant will have to serve his sentence in an adult prison, an environment which his Honour said was 'very undesirable for young people'.
30 His Honour referred to sentencing decisions of this court and its predecessor, the Court of Criminal Appeal, in relation to both adults and children, with respect to the offence of attempted murder. He said he considered cases involving adults because it was 'necessary to know what sentences are imposed on adults because a child cannot be treated more harshly than an adult for the same wrongdoing committed in the same circumstances' (AB 68). His Honour also referred to cases of unlawfully doing grievous bodily harm with intent to do grievous bodily harm, by reference to the recent decision of this court in Zhang v The State of Western Australia [2013] WASCA 121.
31 When referring to other cases, his Honour said he was mindful of the various points of distinction between them and that ultimately the sentences he had to impose must take into account all of the relevant circumstances of the particular case.
32 His Honour then concluded:
Now, in the end, … I've formed the view that the offence, being in the top end of seriousness for the circumstances that I have mentioned and the need for a substantial amount of weight for general deterrence, all of that overwhelms some very weighty mitigating factors, singly and in combination that I have referred to: your plea of guilty, youth, no prior convictions, the personal history of maladjustment disorder operating in combination with other circumstances to which Dr Patchett has referred and on an overall consideration, I think that the appropriate sentence in relation to the attempted murder is 7 1/2 years immediate imprisonment. You've been eligible for parole (AB 69).
33 His Honour made no reference to any need for personal deterrence, the appellant's prospects of rehabilitation or the risk of recidivism.
Ground 2 - The top end of the range
34 Senior counsel for the appellant submitted that his Honour's characterisation of the offence as being 'at the top end' was 'too high', having regard to the appellant's age and that the only evidence of an intention to kill came from a discussion between the appellant and JTR when they were intoxicated (appeal ts 8). Counsel accepted that the expression used by his Honour did not amount to a finding that the offence was in the worst category of offences of its type (appeal ts 7).
35 Having regard to his Honour's sentencing remarks as a whole, it is clear that in context his Honour used the expression 'the top end of the range' to refer only to the seriousness of the objective circumstances of the offending without consideration of the subjective factors in the case.
36 In my view, having regard to the reasons that his Honour gave for the characterisation, it cannot reasonably be said that his Honour fell into any error with respect to it. In any event, whether or not the objective circumstances of the offending were 'at the top end of the range', on any argument, what the appellant did was undoubtedly very serious. It seems to me that there is little to be gained in this case by an argument about whether the offending was at the top end of the range or very serious. The outcome of this appeal will not turn on the label that is given to the offending. Rather, the real focus must be upon whether, on a proper analysis of all of the circumstances of the case, the sentence that was imposed for the offence of attempted murder was manifestly excessive. This is the issue raised by ground 3.
37 Ground 2 has no reasonable prospects of success. Leave to appeal should be refused.
Ground 3 - Manifest excess
38 The appellant's submissions can be reduced to the proposition that, having regard to the appellant's youth, his rehabilitation and other subjective factors, the sentence of 7 years and 6 months' imprisonment was manifestly excessive.
39 The imposition of a sentence (save for mandatory sentences) is a discretionary judgment. The discretion must be exercised having regard to any relevant statutory provisions and common law principles. Because of its discretionary nature, there is no one correct sentence and sentencing judges are accorded a wide measure of latitude: Postiglione v The Queen (1997) 189 CLR 295, 336.
40 The allegation that a sentence is manifestly excessive is governed by the well-known principles relating to appellate intervention in discretionary decision-making, described in House v The King (1936) 55 CLR 499. The appellant must establish that the sentence was 'unreasonable or plainly unjust', thus enabling the appellate court to infer error in the exercise of the sentencing discretion: Barbaro v The Queen [2014] HCA 2 [26].
41 The orthodox approach to the analysis of an allegation of manifest excess is to examine it having regard to the maximum penalty, the standards of sentencing customarily observed, the place which the criminal conduct occupies in the scale of seriousness of crimes of the type in question and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
42 The appellant's sentencing was governed by the YOA, which embodies the special sentencing principles relating to young offenders. Although the appellant was an adult when he was sentenced, he was, at the time of the offence, under the age of 18 years and thus a person to whom the YOA applied: s 3 and s 4 of the YOA.
43 Two of the main objectives of the YOA are to '[embody] the general principles of juvenile justice, for dealing with young persons who have … committed offences', and 'to integrate young persons who have committed offences into the community': s 6(b) and s 6(e) of the YOA.
44 The general principles to be observed in performing the functions of the YOA are set out in s 7. Relevantly to this case they are:
(a) there should be special provision to ensure the fair treatment of young persons who have, or are alleged to have, committed offences; and
(b) a young person who commits an offence is to be dealt with, either formally or informally, in a way that encourages the young person to accept responsibility for his or her conduct; and
(c) a young person who commits an offence is not to be treated more severely because of the offence than the person would have been treated if an adult; and
(d) the community must be protected from illegal behaviour; and
…
(h) detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for as short a time as is necessary; and
…
(j) punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways; and
…
(l) in dealing with a young person for an offence, the age, maturity, and cultural background of the offender are to be considered.
…
45 Part 7 of the YOA concerns the sentencing of young offenders. Section 46 of the YOA relevantly provides:
(1) When dealing with a young person who has been found guilty of an offence, the court, in disposing of the matter, is to apply -
(a) the principles applying generally for disposing of charges of offences, except as those principles are modified by this Act; and
(b) the general principles of juvenile justice.
(2) The court is to consider any information about the offender or the offence that may assist the court to decide how to dispose of the matter, and in particular -
(a) the nature and seriousness of the offence; and
(b) any history of offences previously committed by the offender; and
(c) the cultural background of the offender; and
…
(e) the extent, if any, to which any person was affected as a victim of the offence.
(3) The court is to dispose of the matter in a way that is in proportion to the seriousness of the offence and is consistent with the treatment of other young persons who commit offences.
46 Section 50B, which applies to young offenders aged 18 years or over at the time of sentence, is relevantly in these terms:
(1) This section applies to and in respect of a young person found guilty of an offence who at the time of being sentenced is 18 years old or older (the offender).
(2) Subject to the Sentencing Act 1995 the court dealing with the offender must dispose of the matter by sentencing the offender under that Act, and that Act and the Sentence Administration Act 2003 apply to and in respect of the sentence imposed.
(3) …
(4) …
(5) Despite subsection (2), section 46 applies to the court dealing with an offender.
47 Section 118(1) reads:
118. Offences punishable by imprisonment, options
(1) If the statutory penalty for an offence is or includes imprisonment and the court dealing with the offender decides to impose a custodial sentence, the court may -
(a) impose a term of imprisonment under Part 13 of the Sentencing Act 1995 but may not impose suspended imprisonment under Part 11 of that Act or conditional suspended imprisonment under Part 12 of that Act; or
(b) sentence the offender to a term of detention that is not longer than the term of imprisonment to which the offender would have been liable if the offender were not a young person.
49 Section 120(1) provides that a court must not impose any custodial sentence 'unless it is satisfied that there is no other appropriate way for it to dispose of the matter'.
50 The following propositions may be drawn from the case law in relation to young offenders. This list is not intended to be exhaustive.
1. The ultimate aim in sentencing a young offender is the protection of the community by the imposition of a sentence proportionate to the gravity of the offence, having regard to the circumstances of its commission and the circumstances personal to the offender: AM (a child) v The Queen (Unreported, WASCA, Library No 960263, 15 May 1996).
2. Youth is normally a powerful mitigating factor and the rehabilitation of the young offender is generally a dominant sentencing consideration: Ainsworth v D (a child) (1992) 7 WAR 102, 117.
3. A young offender must not be treated more severely than an adult for the same offence: s 7(c) and s 118(1)(b) of the YOA.
4. Deterrence, both personal and general, punishment, retribution and public protection are accommodated in the YOA and are relevant to the sentencing of young offenders, although their role will generally be tempered. However, when in a particular case the rehabilitation of an offender appears unlikely, the offending is serious and the character and personal circumstances of the offender justify it, these factors may become significant: JSA v The State of Western Australia (2012) 42 WAR 473; [2012] WASCA 25 [35].
5. Young offenders, even those with good antecedents, may, having regard to the circumstances of the case, be sentenced to detention or imprisonment: F (a child) v The State of Western Australia [2004] WASCA 193 [14].
6. The age and maturity of a young offender are relevant factors. Thus, a very young offender who is immature may be dealt with differently to an older child who, while still young, has a greater awareness and responsibility.
51 The offence committed by the appellant carries a maximum penalty of life imprisonment.
52 The circumstances of the offence are unquestionably very serious. As I have already mentioned, his Honour's characterisation of them was justified.
53 I now turn to the comparable cases. Because the sentencing principles relating to young offenders are significantly different to the principles applicable to adults, it is not appropriate to use the range of sentences customarily imposed on adults and then make a deduction for youth: C (a child) v The Queen (1995) 83 A Crim R 561, 570 (Wallwork J). However, it is, in this case, necessary to have regard to the sentences in cases involving adults to ensure that the sentence imposed on the appellant is not more severe than the sentence an adult would have received for the same offence.
54 There is no tariff for attempted murder whether committed by a young person or an adult. It is an offence which can be, and often is, committed in varying circumstances by offenders whose personal circumstances are also variable.
55 There are only two appellate sentencing cases concerning child offenders with respect to attempted murder: The Queen v E (a child) (Unreported, CCA, Library No 930234, 30 April 1993) and F (a child) v The Queen (Unreported, CCA, Library No 960208, 19 April 1996).
56 In The Queen v E (a child), the respondent, who was 16 years of age at the time of the offence, was convicted after trial of three counts of attempted murder (which the court considered should have been six counts). The respondent and another, motivated by revenge, hatched a plan to kill police officers. The plan was to entice police officers to chase stolen cars driven by the respondent and his co-offender, and to use the stolen vehicles to ram the pursuing police vehicle from both behind and in front. The plan was carried out on three occasions with what Ipp J described as 'remarkable persistence'. None of the police officers involved in the offending were seriously injured. The respondent had a seriously deprived upbringing and had grown up in very difficult circumstances. He had a long criminal history and his prospects of rehabilitation were slim. Ipp J described him as posing a danger to the community. The appellant was sentenced at first instance to 15 months' imprisonment on each charge of attempted murder to be served concurrently and a total effective sentence, having regard to various other offences to which the respondent pleaded guilty, of 23 1/2 months. The Crown appeal (to which the now abrogated double jeopardy principle applied) against sentence was allowed. The individual terms for the offences of attempted murder were increased to 6 years (4 years post-transitional) with a total effective sentence of 6 years.
57 In F (a child) v The Queen, the appellant, who was 17 years old at the time of the offences, burgled the victim's flat at night. The victim was awoken by the noise created by the appellant. The victim told the appellant to leave the flat. The appellant forced his way into the victim's bedroom armed with a knife. He stabbed the victim in the chest and inflicted other wounds. The injury to the chest endangered the victim's life. The appellant had a record of prior offending, which the sentencing judge said had some extremely disturbing features. Among the convictions were prior convictions for sexual penetration of children. The appellant had been released from detention only three weeks before the commission of the attempted murder. The appellant was sentenced to a total effective sentence of 12 years' imprisonment (8 years post-transitional), the major component of which was a 10 year sentence (6 years 8 months post-transitional) for the attempted murder. The appellant's appeal against the total effective sentence was dismissed. Wallwork J, with whom Franklin and Murray JJ agreed, described the appellant as too dangerous to be allowed loose in the community.
58 Two cases do not constitute a customary range. Not much can be drawn from them. What can be said is that each of the offenders in The Queen v E (a child) and F (a child) v The Queen went to trial and had poor antecedents in contrast to the appellant in the present case. The offending in each case was serious. The offending in F (a child) v The Queen was worse than the present case. The sentences imposed in each of those cases, when adjusted to take into account the transitional provisions, was less than the sentence imposed upon the appellant.
59 Before turning to the sentencing cases involving adults, I am aware of the decision of the Court of Criminal Appeal in G (a child) v The Queen (Unreported, CCA, Library No 970455, 12 September 1997). In that case, the Court of Criminal Appeal refused an appeal against sentence of 8 years' imprisonment (5 years 4 months post-transitional) for the offence of wilful murder committed by a 16-year-old in the course of a planned armed robbery. The offender was not the principal offender.
60 I now turn to deal with cases involving adults.
61 In The State of Western Australia v Hillier [2008] WASCA 184, the respondent, four days before the commencement of his trial, pleaded guilty to attempting to murder his wife. In an intoxicated state, he entered the bedroom where his wife was asleep, put a pillow over her head and stabbed her in the neck and in the right eye socket. The injury to the neck was life threatening. The respondent was 27 years old and had led an otherwise blameless life. The sentencing judge found that the attack was unpremeditated, but nevertheless fell within 'the worse category of offending'. The respondent was sentenced to 5 years 2 months' imprisonment with eligibility for parole. The State appealed, alleging manifest inadequacy. This court upheld the appeal and the respondent was resentenced to 6 years 10 months' imprisonment. The appeal was decided before the abrogation of the double jeopardy principle.
62 Steytler P, with whom Wheeler and Miller JJA agreed, reviewed a number of sentencing cases relating to offences of attempted murder, being Bell v The Queen (1992) 62 A Crim R 66; Lawson v The Queen (Unreported, WASCA, Library No 940439, 24 August 1994); R v Kerr (Unreported, WASCA, Library No 970402, 15 August 1997); Aldridge v The Queen (Unreported, WASCA, Library No 980206, 23 April 1998); and Byfield v The Queen [2002] WASCA 260. Steytler P noted that the sentences imposed in those cases vary enormously depending upon the circumstances. His Honour's review of the sentences, although lengthy, bears repeating:
In Bell v The Queen (1992) 62 A Crim R 66 the appellant was convicted, after a trial, of breaking into his estranged wife's house and attempting to murder her by stabbing. The attack was planned, calculated and premeditated. The appellant had learned that his wife was having an affair. This led to arguments and episodes of violence. Not long afterwards the appellant separated from his wife. He had difficulty in accepting the separation and became obsessed by his marital situation. This culminated in his decision to kill his wife. The offence was out of character and the only injuries that had been sustained by the appellant's wife were cuts on her hands. The appellant had himself telephoned the police and had demonstrated remorse. He was sentenced to a total term of 10 years' imprisonment, 11 months of which related to the offence of breaking into his estranged wife's house. This equates to a term of approximately 6 years after the operation of the transitional provisions enacted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA). The Court of Criminal Appeal declined to interfere with the sentence imposed.
In Lawson v The Queen (Unreported, WASCA, Library No 940439, 24 August 1994) a 28-year-old man with a record of violence pleaded guilty to one count of attempted murder, one of unlawful detention and five of sexual assault. He was sentenced to a total term of 21 years' imprisonment, 14 years of which related to the count of attempted murder. The appellant had gone to the home of his wife, from whom he was separated, and attacked her with a knife, stabbing her repeatedly. Having left her for dead, he drove to her girlfriend's home and forced her to go with him to a remote location where he sexually assaulted her on a number of occasions while armed with a knife. He demonstrated no remorse and blamed the prison system for not rehabilitating him when he was in prison for previous offences of violence. He had had a childhood marked by neglect and abuse and had been a ward of the State since the age of 12. He had suffered physical abuse from his mother and sexual abuse from others. The appeal was dismissed. The sentence of 14 years' imprisonment imposed in respect of the attempted murder equates to one of 9 years and 4 months' imprisonment after the operation of the transitional provisions.
In R v Kerr (Unreported, WASCA, Library No 970402, 15 August 1997) the offender was convicted after a trial of an offence of attempted murder. He had attempted to kill his de facto wife by shooting her in the head with a bullet fired from a .22 calibre rifle held about 4 inches away from her head. The bullet had passed through her eye and into her skull. The complainant had sustained brain damage which affected her ability to recollect events. The offender was aged 27 at the time of the offence. He had consumed alcohol and cannabis. He and the complainant had been involved in a domestic argument. After a successful Crown appeal the offender was sentenced to a term of 10 years' imprisonment. This equates to a term of 6 years and 8 months after the application of the transitional provisions.
In Aldridge v The Queen (Unreported, WASCA, Library No 980206, 23 April 1998) the 50-year-old appellant had commenced a relationship with a woman described as Miss T. The two of them had planned to go to England to attempt the finalisation of the appellant's divorce. There was a late change of plan and Miss T remained in Australia. On the appellant's return from England, he found that she had broken off the relationship and had stripped the house that they had shared of furniture. She had also sold a car which the applicant had owned, or had owned jointly with her. Miss T's mother, Mrs T, told the applicant that her daughter wanted nothing more to do with him. During the night immediately preceding the offences, the appellant had consumed alcohol. After brooding for a time, he decided to kill both mother and daughter. He armed himself with a knife and drove to their home. He arrived there at about 4.00 am. He thrust the knife at Mrs T, intending to kill her, but the knife broke. He then grabbed Miss T, pulled her head down and punched her with his fists. Miss T struck him with a baseball bat. After striking her again, he turned to the mother and continued his attack upon her. The two women managed to eject him and then contacted the police. Mrs T sustained considerable bruising and some lacerations. A psychologist described the appellant as having suffered from an acute stress disorder. He had no criminal history and was unlikely to reoffend. He pleaded guilty to the attempted murder of Mrs T, of assault with intent to do grievous bodily harm in respect of Miss T and of burglary whilst armed. He was sentenced to a term of 9 years' imprisonment on the attempted murder charge, to a term of 7 years, to be served concurrently, on the burglary charge and to a term of 3 years' imprisonment, 2 years of which was to be served concurrently, on the assault charge. The appeal was unsuccessful. The sentenced imposed in respect of the attempted murder is equivalent to one of 6 years' imprisonment after application of the transitional provisions.
In Byfield v The Queen [2002] WASCA 260; (2002) 133 A Crim R 307, the appellant pleaded guilty, on the fast-track, to a charge of attempted murder. He and a co-offender had been at a football oval with other people. They saw the complainant, who had allegedly been responsible for an assault upon the co-offender at an earlier date. The appellant and his co-offender went to the appellant's home and obtained a piece of wood similar to an axe handle. They returned to the oval in the co-offender's car. He stopped it in front of the complainant. The two men got out and the co-offender struck the complainant with the piece of wood, rendering him unconscious. The co-offender struck the complainant a second time while he lay on the ground. The co-offender then drove his car over the complainant before leaving the area. The two men did not know whether or not they had killed the complainant. They returned, at the suggestion of the appellant. The co-offender then drove his car over the complainant a second time. The complainant was very severely injured. At the time of sentencing, the appellant was 19 years old. He had no previous convictions and the crimes were out of character for him. He was sentenced to a term of 12 years' imprisonment (8 years, after application of the transitional provisions). The appeal was dismissed [30] - [34].
63 To this list of cases I would add two more: Bromfield v The Queen [2002] WASCA 333 and Garlett v The State of Western Australia [2009] WASCA 44. In Bromfield, the appellant entered early pleas of guilty to offences of assault occasioning bodily harm and attempted murder. The victim in both offences was the appellant's wife. On 25 March 2002, he punched her in the head a number of times inflicting bruises and causing headaches and pain. On 29 March 2002 at 10.45 pm, he attended his wife's house with a knife. He entered the house without her consent and took something from a kitchen drawer. He chased her into the street with a meat cleaver. He caught up with her, pinned her on the ground and attempted to kill her by strangling her. The appellant only desisted when a neighbour struck him in the head with a baseball bat. The appellant was sentenced to a total effective sentence of 9 years' imprisonment (6 years post-transitional). For the attempted murder he received 7 years' 6 months' imprisonment (5 years post-transitional). His appeal against sentence on the grounds of manifest excess was dismissed.
64 In Garlett, the appellant was convicted after trial of attempted murder by stabbing a man in the neck with a knife. The victim, who had been operating an ATM, staggered away calling for help and an ambulance. The appellant laughed at the victim's distress. The victim suffered serious injuries and would have died but for assistance given to him at the scene and later in the hospital. The learned sentencing judge placed the offence in the 'worst category', but at the hearing of the appeal, the State conceded that it was not in that category but was nevertheless a very serious example. The reasons for decision in the appeal do not detail the appellant's antecedents apart from a reference to his identity as a member of the stolen generation. The appellant's appeal against the sentence of 10 years' imprisonment with parole eligibility was dismissed.
65 Accepting the variability in the sentencing outcomes and, even allowing that some of the sentences were imposed after State appeals when double jeopardy was in play, it is clear that the sentence imposed in the present case was more than the sentences (where necessary, adjusted for the post-transitional provisions and decisions to plead guilty or proceed to trial) in such cases as Hillier, Bell and Kerr, the facts of which were worse than this case. When looked at in the context of all of the sentencing cases involving adults, the sentence was, in my opinion, of the severity one would expect to be imposed upon an adult offender.
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66 The maximum penalty for the offence of attempted murder reflects its inherent seriousness. His Honour did not fall into error in the way he categorised the seriousness of the objective circumstances of the offending.
67 The appellant, although on the cusp of adulthood, had to be sentenced according to the principles embodied in the YOA, the essence of which recognises the substantial mitigation to be given to youth and rehabilitation. Where the detention of a young person is required, the length of that detention must be for the shortest possible time.
68 There is no escaping the reality that the seriousness of the appellant's offending required his Honour to impose a long sentence of imprisonment. However, with great respect to the learned sentencing judge, the sentence imposed in this case was erroneously long. My reasons for arriving at this conclusion are as follows.
69 The subjective circumstances of the appellant were favourable. He had no prior criminal history in either New Zealand or Australia. He pleaded guilty at the earliest reasonable opportunity. He was genuinely remorseful for his actions. While I acknowledge Ms Oliveri's observations, there is nothing in the expert material which indicates that he is not amenable to rehabilitation; certainly his Honour made no comment to this effect.
70 Further, as I have pointed out, the length of the sentence imposed upon the appellant was of a severity one would have expected to have been imposed upon an adult.
71 Finally, the sentence was more than was required to provide protection of the public, proper punishment and denunciation and did not sufficiently reflect the appellant's youth and his prospects of rehabilitation.
72 I have been persuaded that his Honour has erred in the exercise of his sentencing discretion in this case. In my opinion, having regard to all of the circumstances, the sentence imposed upon the appellant was unreasonable or plainly unjust. Thus, this court's power to intervene has been enlivened and I would resentence the appellant.
73 Having regard to all of the circumstances of the case and the sentencing principles embodied in the YOA, and adopting the same percentage discount pursuant to s 9AA of the Sentencing Act 1995 (WA) as given by the learned sentencing judge, I would sentence the appellant to 6 years' imprisonment with eligibility for parole. His sentence for the charge of stealing and the order for concurrency stand. I would order that the new sentence commence on 23 October 2012.
74 The orders that I would make are as follows:
1. Leave to appeal on ground 2 refused.
2. The appeal is allowed.
3. The sentence imposed by Reynolds P on 13 August 2013 for the offence of attempted murder is set aside.
4. The appellant is resentenced for that offence to 6 years' imprisonment with eligibility for parole, to commence on 23 October 2012.
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