Gamble v The State of Western Australia

[2007] WASCA 120

GAMBLE -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 120

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 120
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:117/2006	Heard:	18 MAY 2007
Coram:	STEYTLER P McLURE JA MILLER AJA	Delivered:	29/05/07
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	BRIAN WILLIAM GAMBLE THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Sentencing Wilful murder Unprovoked frenzied killing of de facto wife Violence restraining order in place at time of offence Killing in the presence of 9­year­old boy Whether imposition of sentence of strict security life imprisonment constituted an error of law and whether sentence of life imprisonment should have been imposed Turns on own facts
Legislation:	Sentencing Act 1995 (WA), s 91(1)
Case References:	Roberts v The Queen (2004) 28 WAR 381 Williams v The Queen (1996) 17 WAR 17

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GAMBLE -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 120 CORAM : STEYTLER P

McLURE JA
MILLER AJA

HEARD : 18 MAY 2007 DELIVERED : 29 MAY 2007 FILE NO/S : CACR 117 of 2006 BETWEEN : BRIAN WILLIAM GAMBLE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MURRAY J

File No : INS 113 of 2005

Catchwords:

Criminal law - Sentencing - Wilful murder - Unprovoked frenzied killing of de facto wife - Violence restraining order in place at time of offence - Killing in the presence of 9­year­old boy - Whether imposition of sentence of strict security

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life imprisonment constituted an error of law and whether sentence of life imprisonment should have been imposed - Turns on own facts

Legislation:

Sentencing Act1995 (WA), s 91(1)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr G Giudice
Respondent : Mr R E Cock QC

Solicitors:

Appellant : George Giudice
Respondent : State Director of Public Prosecutions

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

Roberts v The Queen (2004) 28 WAR 381
Williams v The Queen (1996) 17 WAR 17


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1 STEYTLER P: I agree with Miller AJA.

2 McLURE JA: I agree with Miller AJA.

3 MILLER AJA: The appellant was indicted on the crime of wilful murder and in the alternative murder. It was alleged that, on 21 February 2005, at Beresford (Geraldton) he had wilfully murdered Julianne Faye Kowald. The alternative count related to the same incident.

4 The appellant came before Murray J in the Supreme Court at Geraldton on 12 June 2006, and pleaded guilty to the count of wilful murder. The trial of the appellant had been set for that day and the jury panel was present, but was not required. It appears that instructions were given by the appellant to his counsel on the morning of the trial to plead guilty, and that he instructed his counsel that it was his intention to plead guilty to "save the family from the trauma, especially ["M"]" (the 9-year-old son of the deceased).

5 Submissions in relation to sentence were put before the learned sentencing Judge on the morning of 12 June and the prosecutor foreshadowed that it would be the submission of the prosecution that a sentence of strict security life imprisonment was called for. The learned sentencing Judge remanded the appellant in custody for pre-sentence report and psychiatric reports.

6 The matter came before the learned sentencing Judge again on 16 August 2006. The pre-sentence and psychiatric reports were referred to by counsel for the appellant. Counsel for the State repeated the submission that a sentence of strict security life imprisonment was appropriate. The learned sentencing Judge proceeded to sentence the appellant and imposed a sentence of strict security life imprisonment, with a minimum term before eligibility for parole of 20 years' imprisonment. This was the minimum term that could have been imposed.

Appeal

7 The appellant appeals against the sentence of strict security life imprisonment. There is one ground, and it is in the following terms:

"1. His Honour the sentencing judge erred in law in finding that the appropriate sentence was strict security life imprisonment instead of life imprisonment;

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Particulars:

a) Insufficient weight was placed on one or more of the following factors:

(i) the plea of guilty;

(ii) the expressions of relief of the family as to the plea of guilty;

(iii) the psychiatric health of the appellant;

(iv) the recommendation of parole in the pre sentence report;

(v) the lack of a relevant record of convictions;

(vi) the age and personal circumstances of the appellant;

(vii) the absence in the psychiatric report of an opinion that the appellant is a danger to the community.

b) Excessive weight was placed on the actual physical carrying out of the offence.

c) His Honour was wrong in declaring the opinion in the pre sentence report that the appellant is suitable for parole as being innocuous;

d) His Honour was wrong in finding that there was no substantial mitigation in the personal circumstances of the appellant;

e) Hi[s] Honour was wrong in finding that there is concern about the appellant in the future finding himself in similar circumstances in which this offence was committed."

Sentencing

8 When the learned sentencing Judge imposed the sentence of strict security life imprisonment, he recounted the facts in some detail. He first pointed out that the appellant was in a de facto relationship with the

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deceased which had begun in 2004. The deceased then had an 8-year-old son, who was 9 years of age at the time of the offence.

9 The learned sentencing Judge accepted that there was an element of violence in the behaviour of each of the appellant and the deceased towards each other. He described the relationship as "intense and intensely regarded on both sides". The relationship broke up in acrimonious circumstances in 2005.

10 An offence of deprivation of liberty was committed by the appellant against the deceased on 22 January 2005, when the appellant locked the deceased in her house and threw a pair of secateurs at her. They struck her and caused her bruising. She retaliated by throwing the secateurs at the appellant. She went to a refuge in Geraldton, where she spent the night.

11 On 23 January, the appellant committed an offence of assault occasioning bodily harm against the deceased. She had gone to band practice on a Sunday, and the appellant confronted her at the conclusion of band practice. It was an aggressive confrontation. The appellant persuaded the deceased to drive him home, but when the vehicle arrived at his home, he refused to get out and there was a physical altercation in which the appellant took hold of the throat of the deceased with some pressure. The deceased was able to persuade the appellant to let her go and she drove to a coffee shop, where she requested somebody to call the police.

12 On 24 January 2005, the deceased obtained a violence restraining order against the appellant. It was served on him on 25 January. The learned sentencing Judge described this as being significant in the factual circumstances which led up to the commission of the offence of wilful murder.

13 It appears that the appellant remained substantially in Geraldton between 25 January and 21 February. He was advised by a friend to go back to his family in New South Wales, but he was away for only four or five days, before returning to reside at the Geraldton Hotel. He told his friend (a man named Patterson) that he had "unfinished business". The learned sentencing Judge took this comment to indicate that the appellant planned some sort of action in relation to the deceased. He did not suggest that it was evidence which would entitled the Court to conclude that there was an intention to kill the deceased.

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14 On 21 February 2005, the appellant left the Geraldton Hotel. The learned sentencing Judge thought it was possible that he took with him a knife which he had obtained from the hotel. Shortly after 8 am, the appellant went to the house where the deceased and her young son were living. He went to the rear of the house. The deceased and her son emerged from the house and the appellant attacked the deceased. He attacked her with a knife without any warning. She called to her son to get the police and he went into the house to do so.

15 What then occurred was a sustained attack by the appellant on the deceased. There were a number of wounds inflicted. A post-mortem report indicated that the deceased was stabbed in the centre of the chest, twice below the left breast, twice to the side of the left upper arm and to both sides of the throat. The injuries to the throat resulted in the complete severance of her jugular vein and caused her death. There were also defensive wounds. The prosecutor described the significant wounds as six in number to the torso, upper arm and throat.

16 The attack was described by the learned sentencing Judge as one of "considerable ferocity" pursued with some determination. A neighbour observed the appellant standing over the deceased after he had attacked her. It appears that he then stabbed himself several times in the abdomen, dropped the knife and drove her car from the scene. He later crashed the car and, after being observed by civilians, was spoken to by police. He said that he had killed somebody. The learned sentencing Judge described this as a "remorseful reaction".

17 The appellant then asserted a loss of memory of the events which had led up to the position in which he found himself. There was a question about whether that was feigned, but shortly afterwards he suffered a genuine loss of memory of the events in question.

18 The learned sentencing Judge pointed out that no provocation whatever had been offered by the deceased. She was described as a "completely innocent victim" at the time she was killed.

19 The impact of the deceased's death was revealed in victim impact statements received by the learned sentencing Judge. They came from members of her family and revealed the extent of the loss suffered by the family. A particularly poignant poem from the deceased's son was tendered to the learned sentencing Judge. The deceased's father was forced to take over the care of the deceased's son, to provide for his education and support. The deceased's sister, Alayne Kowald, spoke

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eloquently in her victim impact statement dated 8 July 2006 of the extent of the loss to the family occasioned by the violent death of the deceased.

20 The learned sentencing Judge took account of the fact that the appellant pleaded guilty with the intention of sparing members of the family (in particular the deceased's son) from the need to give evidence and go through the trauma of a trial. Although the plea was late, it was described as a powerful mitigating factor.

21 The learned sentencing Judge pointed out that the appellant was 49 years of age at the date of sentencing. He had no relevant prior convictions. A pre-sentence report and a psychiatric report were of assistance. The pre-sentence report suggested that the appellant would benefit from the support of parole supervision upon release. Obviously a term had to be set before eligibility for parole, but the learned sentencing Judge took account of the fact that it was thought that parole would be supportive for the appellant.

22 The psychiatric report was from Dr Bryan Tanney, a consultant psychiatrist at the Frankland Centre at Graylands Hospital. His report is extensive. Amongst other things, it dealt with the appellant's mental health prior to the commission of the offence. It was noted that, in June 1986, the appellant had been assessed for post-trauma neurological and psychological deficits. It was revealed that he had "mild diffuse atrophy of left [?] cerebral hemisphere, consistent with mild post-traumatic atrophy" and a moderately severe and generalised brain injury. Neuropsychological consultation showed that emotionally he suffered from "some impulsiveness and only fair control over fairly strong aggressive impulses". Dr Tanney concluded in his report compiled for the learned sentencing Judge on 3 August 2006 that the appellant suffered from organic mental impairment which was categorised as "Organic Mental Disorder - chronic, frontotemporal localization", including an additional diagnosis of "Organic Affective Disorder".

23 Dr Tanney's summary was in the following terms:

"Summary

There is mental disease related to demonstrated, permanent organic brain pathology of traumatic origin. Cognitive, emotional and personality disorders can be diagnosed. Relating these diseases and disorders to effects on Mr Gamble's thoughts and feelings at the time of offending is difficult due to inconsistent memory deficits that prevent him from reporting

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his mental and emotional state at [the] time of alleged offending. These deficits in recall serve a protective function for him that is, however, maladaptive.

Pathological jealousy (non-delusional) appears to be a strong contributor to his behaviour in this event, but is not a recognized mental disorder diagnosis in psychiatric nomenclature."

24 The learned sentencing Judge pointed out that Dr Tanney made no observations on the question whether the appellant would be a danger to the community. The learned sentencing Judge's conclusion was:

" ... from my point of view it seems to me that the proper view of the court is not that you would be a danger generally in the community but that there is cause for concern about you arising out of the very circumstances in which this offence was committed and what I accept are the triggers within you which have led to it and help to explain how it came about."

25 The learned sentencing Judge's concluding remarks were in the following terms:

" ... it seems to me that there is explanation but not substantial mitigation in relation to your personal circumstances and the situation in which you were placed because it is nowhere suggested that there was any incapacity on your part to control the violence of your reactions so that you might be regarded as being the less culpable author of the actions which you committed, violent and sustained as they were, to bring about the death of this unfortunate woman. So the matters which I regard as being substantially mitigatory and to which I have had affect are essentially those concerned with your response ultimately in accepting responsibility in entering the plea of guilty and the expression of remorse which that graphically provides for the conduct by which you killed this lady.

It seems to me that this is a case where the choice between strict security life imprisonment and life imprisonment is, having regard to all the relevant matters, to be answered by the imposition of strict security life imprisonment but I think I may mitigate punishment to the extent that the minimum term which I fix within the range provided by the law of 20 to 30 years will be a minimum term of 20 years' imprisonment."

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Ground of appeal

26 At the hearing of the appellant, counsel for the appellant contended that, for the reasons set out in the particulars annexed to the ground, the learned sentencing Judge had erred in imposing strict security life imprisonment. No specific errors were identified, although the particulars annexed to the ground allege three errors; namely: (c) declaring the opinion in the pre-sentence report that the appellant is suitable for parole as being innocuous; (d) finding that there was no substantial mitigation in the personal circumstances of the appellant; (e) finding that there is concern about the appellant in the future finding himself in similar circumstances in which this offence was committed.

Strict security life imprisonment

27 The circumstances in which a sentence of strict security life imprisonment may be imposed for the crime of wilful murder are well settled. If (which I doubt) there was any ambiguity before Roberts v The Queen (2004) 28 WAR 381 about the principles which govern the circumstances in which a sentence of strict security life imprisonment may be imposed, the position is now well settled and clear as a result of the decision in Roberts v The Queen. Malcolm CJ in Roberts v The Queen, referred to Owen J's summary of the principles to be applied in Williams v The Queen (1996) 17 WAR 17, at 26. That summary (with which Kennedy and Pidgeon JJ agreed) indicated that three key factors were to be taken into account in making the choice between strict security life imprisonment and life imprisonment. They were:

"(a) the circumstances of the offence and the gravity of the crime so as to place it somewhere in the scale of other crimes of wilful murder;

(b) the antecedents of the offender, with the phrase 'antecedents' being given a broad meaning to include matters such as character, previous criminal history, upbringing and personal circumstances; and

(c) the risk to the community posed by the likelihood of the person committing serious offences of violence in the future."

28 Malcolm CJ made it clear that, whatever might have been said in earlier cases, no one factor had primacy over any other factor. At [13], Malcolm CJ said:
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"In my opinion, when Owen J commented that 'No one factor has primacy over other factors', the meaning sought to be conveyed was that all of the factors which were relevant fell to be considered in any particular case, although the first matter to be considered was the circumstance of the commission of the offence and the gravity of the crime so as to rank it in the scale of other crimes of wilful murder."

29 Steytler J made a comprehensive review of the cases in which the principles to be applied in the choice between strict security life imprisonment and ordinary life imprisonment were expressed. His Honour concluded, at [46] - [47]:

"There is, in this last respect, some ambiguity which arises out of what was said by the court in Griffin. I have mentioned that the Court there said that the gravity of the crime has primacy over other factors, but that it also approved what had earlier been said by the Court in Williams, to the effect that no one factor has primacy over the other factors. In my opinion, no one factor was intended by the legislature to have primacy, as a matter of general predisposition, over any other factor. I agree, in that respect, with what was said by Owen J (with the concurrence of Kennedy and Pidgeon JJ) in Williams. As will be apparent from the remarks of the Attorney-General at the time of his second reading speech in respect of the Bill which first introduced the concept of strict security life imprisonment, the seriousness of the offence was regarded as a matter of some significance to the exercise of the discretion but so, too, was the need for protection of the community. More importantly, the legislature has seen fit not to impose any criteria for the exercise of the discretion.

It consequently seems to me that the decision in each case should turn upon the whole of the circumstances of the case. That does not, of course, mean that a court may not conclude that, on the whole of the circumstances before it in a particular case, one factor overrides all others. So, for example, an offender's antecedents might reveal that he posed an ongoing substantial risk to the community such that a wilful murder of the kind committed by him is likely to be repeated, justifying strict security life imprisonment on that ground alone. Equally, a particular murder may have been so horrific as to justify a sentence of that kind upon that ground alone. However, all

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factors would have to be considered, without any predisposition as to weight, before a conclusion of that kind could be arrived at. It would, in every case, also have to be borne in mind that a sentence of strict security life imprisonment is one of extraordinary severity, requiring very careful consideration before it might be imposed."

30 Parker J agreed with Steytler J's judgment in Roberts v The Queen and added, at [53] - [55]:

"The observations in Williams were in the decision of Owen J (at 26). Kennedy and Pidgeon JJ agreed with them. Both Owen J and I concurred with what was said by the Chief Justice in Griffin. In Griffin the relevant passage is at [44]. However, the Chief Justice went on in his reasons to state expressly that the applicable principles had been summarised by Owen J in Williams and to quote the relevant passage from Owen J's reasons.

It is only on reading what has now been published by Steytler J that the potential for ambiguity became apparent to me. Speaking only for myself, no departure from the principles enunciated by Owen J in Williams was intended by me in Griffin.

I respectfully confirm my entire concurrence with what was said by Owen J in Williams, and also with what has now been said by Steytler J."

31 There can be no doubt that the present position in this State is that which was expressed by Steytler J in Roberts v The Queen, at [46] - [47]. There is no need to make reference to any further authority on the subject.

Was the sentence of strict security life imprisonment erroneously imposed?

32 The learned sentencing Judge clearly regarded the wilful murder of the deceased as so horrific as to justify a sentence of strict security life imprisonment on that ground alone (see Roberts v The Queen per Steytler J at [47]). His Honour was also concerned about the "triggers" which caused the appellant to commit the offence in question and which led to a general concern about his future in the community. This conclusion rightly fell short of any conclusion that the appellant was a danger generally in the community, but the learned sentencing Judge was, in my view, entitled to express concern about how the appellant might

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react in a similar situation to that which confronted him on the day upon which he committed the offence.

33 In my view, it was clearly open to the learned sentencing Judge to conclude that the circumstances of the commission of the offence and the concern for the appellant's future behaviour in similar circumstances dictated a sentence of strict security life imprisonment.

34 The learned sentencing Judge did take full account of mitigating factors. He expressed those factors as being the plea of guilty and expression of remorse. There were no other mitigating factors. The appellant's mental condition was not a causative factor in the offence. He did have an organic mental impairment which the learned sentencing Judge took into account, but, as Dr Tanney concluded in a report to the appellant's solicitor dated 4 April 2006, this caused a diminished capacity in the appellant to control his actions. It was a two-edged conclusion, because whilst on the one hand it offered some explanation for the appellant's conduct on the day of the killing, it was justifiably a basis for the learned sentencing Judge's concern about the appellant's future.

35 One of the primary submissions of counsel for the appellant was that the sentence of strict security life imprisonment had clearly failed to take account of the appellant's plea of guilty. However, in my view, the plea of guilty was properly taken into account in the fixing of the minimum term. This was the minimum that could have been imposed for strict security life imprisonment: s 91(1) Sentencing Act1995 (WA). The learned sentencing Judge certainly saw it that way, because he spoke of mitigating punishment to the extent of providing the minimum term of 20 years. In my opinion, he was correct in treating the plea of guilty and other mitigating factors in that way. They mitigated the minimum term, but were not such as to affect the sentence of strict security life imprisonment. That sentence was imposed because the offence of wilful murder was truly horrific, consisting as it did of a sustained, ferocious and violent stabbing by the appellant of the deceased. It was an offence which commenced in the presence of the deceased's 9-year-old son. The injuries revealed the extent of the violence. The presence of numerous stab wounds, including the severance of the jugular vein, confirmed the learned sentencing Judge's description of the offence.

36 In my view, there is no substance in the appellant's contention that the sentence of strict security life imprisonment was erroneously imposed. The learned sentencing Judge has not been shown to have been in error in any way. His Honour took account of all mitigating factors and imposed

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the lowest term that could have been imposed as a minimum term before eligibility for parole. I would therefore dismiss the appeal.