Gore v The State of Western Australia
[2017] WASCA 163
•1 SEPTEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GORE -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 163
CORAM: MAZZA JA
MITCHELL JA
BEECH JA
HEARD: 17 AUGUST 2017
DELIVERED : 1 SEPTEMBER 2017
FILE NO/S: CACR 181 of 2016
BETWEEN: JODY CAROLYN GORE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :JENKINS J
File No :INS 327 of 2015
Catchwords:
Appeal against sentence - Murder - Whether term of life imprisonment appropriate - Whether nonparole period manifestly excessive - Turns on own facts
Legislation:
Sentencing Act 1995 (WA), s 90
Criminal Code (WA), s 279
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr H Sklarz
Respondent: Mr L M Fox
Solicitors:
Appellant: Sklarz Lawyers
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Corbett v The State of Western Australia [2016] WASCA 97
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Liyanage v The State of Western Australia [2017] WASCA 112
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McIntosh v The State of Western Australia [2017] WASCA 45
Pedersen v The State of Western Australia [2010] WASCA 175
R v Smith (1987) 44 SASR 587
The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397
The State of Western Australia v Churchill [2015] WASCA 257
REASONS OF THE COURT:
Summary
The appellant was convicted after trial of murdering the deceased, who was her former partner, on 13 June 2015. She was sentenced to life imprisonment with a non‑parole period of 12 years. The appellant now appeals against that sentence on the grounds that the trial judge erred in declining to order a term of imprisonment other than life imprisonment and in fixing a non‑parole period which was, in all the circumstances, manifestly excessive. For the following reasons, the appeal must be dismissed.
Circumstances of offending
The trial judge made the following findings about the circumstances of the offence.[1]
Offending conduct
[1] [2016] WASCSR 229 (Sentencing reasons) [3] ‑ [13].
The deceased was 39 years of age and the appellant's former partner. He was considerably taller and probably much stronger than the appellant.
On Saturday, 13 June 2015, the appellant went to a house in Kununurra to socialise. She drank a lot of spirits, both rum and whisky, and became intoxicated. She was playing cards for money with others at the house.
During the afternoon the deceased arrived. He was also very drunk. He asked if the appellant could let him in on the game of cards she was playing. This required the appellant to provide him with money to play. The appellant agreed to do so. The deceased used some of her money, which he then lost.
The deceased asked the appellant for further money, which she declined to give him. He then stole some money from the appellant. The appellant was angry with the deceased, and made that known to him. The deceased then started to physically assault the appellant by punching her. The appellant got out of her chair and responded by punching the deceased.
The resulting commotion caused another male who was present to intervene and to pull the deceased away from the appellant.
The trial judge accepted that the events described in the following testimony of the appellant 'may have occurred':[2]
You testified that you fell over, and when you looked up you saw the deceased. He was in the yard stooped over, looking on the ground. You said that you believed that he was going to pick up a rock to throw at you. You also testified that you believed that if he did that he would hit you, as he was a crack shot. You said that you then decided to go to your bag and get out a knife which you had with you to use to cut up food. The knife was a sharp kitchen knife with a blade about 10 cm long and 2 cm wide at its widest point.
[2] Sentencing reasons [6].
However, the trial judge did not accept the appellant's testimony that, when she was at her bag, she turned around and the deceased was right behind her. The trial judge did not accept the appellant's evidence that she believed that the deceased was going to attack her again and, consequently, she stabbed him once to the chest.[3]
[3] Sentencing reasons [7] ‑ [8].
Rather, the trial judge found that, after the appellant got the knife, she and the deceased were involved in an altercation in the yard. The appellant demanded her money back, and the deceased refused to provide it to her. The appellant lashed out twice with the knife towards the deceased. On the third occasion, she stabbed the deceased in the chest and fatally wounded him. That stab wound went into his chest and through his heart. The knife did not pass through any bone, and so only slight to moderate force was required to inflict the wound. The wound was approximately 9 ‑ 10 cm long.[4]
[4] Sentencing reasons [9].
There was a small superficial wound above the major stab wound on the deceased's chest. The trial judge sentenced the appellant on the basis that this wound was inflicted in the same motion with her arm which inflicted the major wound.[5] There were two score marks, one underneath the deceased's armpit and one on his upper forearm, which were inflicted when the appellant lashed out with the knife before inflicting the major stab wound.[6]
[5] Sentencing reasons [10].
[6] Sentencing reasons [11].
A short time after being stabbed, the deceased fell to the ground in the yard. Despite first aid being administered by others at the scene and, later, by ambulance officers, the deceased died shortly thereafter.[7]
[7] Sentencing reasons [12].
The appellant left the house and went home. She was arrested by the police later that evening. When interviewed by the police, the appellant admitted to stabbing the deceased. The appellant said that the deceased provoked her by stealing her money and refusing to give it back. The appellant also spoke to the police about the history of violence from the deceased towards her.[8]
Self-defence
[8] Sentencing reasons [13].
At trial, the appellant contended that she acted in self-defence or excessive self-defence. The elements of those defences are identified in Liyanage v The State of Western Australia.[9] By its verdict, the jury must have been satisfied, beyond reasonable doubt, that:
1.the appellant did not subjectively believe the act of stabbing the deceased was necessary to defend herself from a harmful act, including a harmful act that was not imminent; and/or
2.there were no reasonable grounds for such a belief.
[9] Liyanage v The State of Western Australia [2017] WASCA 112 [67] ‑ [71].
The trial judge sentenced the appellant on the basis that there were no reasonable grounds for her belief that stabbing the deceased in the chest was necessary to defend herself from his harmful acts. That is because a reasonable sober person in the appellant's circumstances would have seen that there were other ways, which would not have resulted in the deceased's death, by which she could have defended herself from him.[10] The trial judge continued:[11]
Further, I am satisfied that the violence between the two of you had ceased and a reasonable person would not have thought that it was necessary for you to physically assault the deceased in any way, in order to defend yourself from his harmful acts, even harmful acts which were not imminent. That is because at the time you stabbed the deceased, the violence from him to you had, in effect, ceased.
[10] Sentencing reasons [15].
[11] Sentencing reasons [16].
The appellant had given evidence that she stabbed the deceased because she feared for her life and believed the deceased was going to attack her again.[12] The trial judge did not expressly find that the appellant subjectively believed that stabbing the deceased in the chest was necessary to defend herself from a harmful act. Counsel for the appellant contended that such a finding was made when the trial judge referred to there being no reasonable grounds for 'your belief'.[13] We do not accept that submission, which is inconsistent with the trial judge's subsequent statement that the offence was aggravated:[14]
because the deceased was unarmed and you deliberately armed yourself with a very dangerous weapon. It is aggravated because you were angry with the deceased for taking your money. You wanted to get it back, and you also wanted to punish him for taking it.
The appellant's characterisation of the trial judge's reasons is also inconsistent with her Honour's earlier finding that the appellant lashed out at the deceased with the knife, and then stabbed him in the chest, after she demanded her money back, and the deceased refused to provide it to her.[15]
[12] Trial ts 396 ‑ 397, 400, 404, 406 ‑ 408.
[13] Sentencing reasons [15].
[14] Sentencing reasons [44].
[15] Sentencing reasons [8] ‑ [9].
Taken as a whole, the trial judge's reasons indicate that her Honour found that the appellant principally acted out of anger at the appellant for taking her money, rather than because she believed it necessary to do so in order to defend herself.
Intention
The trial judge noted that the State did not allege that the appellant intended to kill the deceased. Nor did the State allege that the appellant formed the intention to stab the deceased prior to getting the knife out of her bag. The trial judge sentenced the appellant on the basis that she formed an intention to cause a bodily injury, of such a nature as to endanger the deceased's life, shortly after she produced the knife from the bag and very soon before she inflicted the fatal injury.[16]
[16] Sentencing reasons [17].
Personal circumstances[17]
[17] The following account is taken from the trial judge's sentencing remarks at Sentencing reasons [19] ‑ [37].
The appellant is a single indigenous woman, aged 44 years at the time of sentencing. She was born in Wyndham and raised by her parents. The appellant had a good upbringing. Her father passed away in 1998, but she was still close to her mother. The appellant attended school until year 10. She then completed a number of courses, and maintained employment in various roles in Wyndham, Kununurra and surrounding areas. Since 2009, the appellant was living in Kununurra and had been the primary caregiver for her niece's three children (whose care was transferred to the appellant's aunt after her incarceration). She has no relevant prior criminal record.
The appellant's relationship with the deceased started in 1994. The appellant ended the relationship in 2008 due to ongoing violence, and because she was going to look after the children. During the relationship the appellant was regularly physically and verbally assaulted by the deceased. He developed a mental illness in about 2003. This, and his alcohol and cannabis misuse, made the abuse worse.
After they separated, the appellant remained friends with the deceased. At times, she provided him with money, food and accommodation. Up until the day he died, there had been no incidents of violence between the two since their separation, although the deceased had made threats towards the appellant. There was no evidence that, prior to that date, the appellant had ever fought back or assaulted the deceased.
The appellant had a long history of alcohol abuse. She commenced drinking at the age of 17, and had a pattern of drinking to excess on weekends and at social occasions. The trial judge was of the view that the appellant's drunkenness greatly contributed to the commission of this offence.
The appellant's health is poor. In 2013, she was diagnosed with kidney failure, for which she receives dialysis three times a week. The appellant has also been diagnosed with a rheumatic heart, and is on medication for high blood pressure. The appellant is treated in custody, and receives dialysis at the Midland dialysis centre three times a week. The Department of Corrective Services does not currently have the capacity to enable the appellant to undergo dialysis on a permanent basis in Derby, which would be the nearest prison to her usual place of residence. Aside from short term trips back to the Kimberley to see her family, it is likely that the appellant will be kept in custody in Perth, rather than being held closer to her home.
Each of the appellant's medical conditions is serious. Her kidney disease is progressive, and considerably reduces the appellant's life expectancy. Her rheumatic heart disease is serious, and contributes to more complications related to kidney disease. The appellant has had severe life threatening high blood pressure in the past and is at risk of this again, given her end stage renal failure and rheumatic heart disease. The appellant is at much greater risk of infection due to her chronic diseases. While all of the appellant's medical conditions are managed appropriately in prison, they are severe and put the appellant at risk of infection, heart failure, septicaemia and sudden death.
Trial judge's approach
The trial judge made findings as to the circumstances of the offence and the appellant's personal circumstances in terms outlined above.
The trial judge firstly considered whether the appellant should be sentenced to life imprisonment or, alternatively, a limited term of imprisonment for a maximum of 20 years. The trial judge noted that the penalty must be life imprisonment unless that sentence is clearly unjust given the circumstances of the offence and the appellant's circumstances, and it is also unlikely that the appellant will be a threat to the safety of the community when ultimately released.[18]
[18] Sentencing reasons [38].
The trial judge was satisfied that it is unlikely that the appellant will be a threat to the safety of the community when ultimately released,[19] and recognised that there were many personal circumstances in her favour. The trial judge said:[20]
Nevertheless, your offence is so serious that, in my view, it is appropriate that you receive a sentence of life imprisonment. When grossly intoxicated, you used a dangerous weapon to stab the deceased in the chest, intending to hurt him. He was not at that time assaulting you or posing an immediate threat to you. Whilst the deceased had provoked you, in fact, by stealing your money and assaulting you, his actions were not such as to justify what you did to kill him. It was clearly a serious offence.
[19] Sentencing reasons [39].
[20] Sentencing reasons [40].
The trial judge then turned to consider the minimum term, of not less than 10 years, during which the appellant must remain in custody before being eligible for release on parole. The trial judge said that the community's interests in punishment and deterrence did not require an order that the appellant never be released.
In fixing a non-parole period of 12 years, the trial judge observed:[21]
In summary, your offending is aggravated because the deceased was unarmed and you deliberately armed yourself with a very dangerous weapon. It is aggravated because you were angry with the deceased for taking your money. You wanted to get it back, and you also wanted to punish him for taking it.
I also take into account the need to impose a generally deterrent sentence. There is far too much drunken violence in the Kimberley. Offenders must appreciate if they commit offences of this nature, they will receive significant sentences.
Nevertheless, there are many things that can be said in your favour. In summary, there is the fact that the deceased initiated the argument between the two of you by stealing your money. There is the fact that the deceased initiated the violence between the two of you by punching you, in a context where he had assaulted you in the past and you were aware of how violent he could be. By saying this, I do not in any way cavil with the jury's verdict. It is simply a recognition that your response was not as heinous as that of an offender who had no reason to fear violence from the deceased.
I also take into account your cooperation in the prosecution process by making some formal admissions at the commencement of your trial. I take into account in your favour your poor health and reduced life expectancy. I take into account that you will be kept in custody away from your family and country. I take into account your prior good character. I take into account the lack of a need for a personally deterrent sentence because, in my view, there is little risk that you will reoffend in a similar manner when released.
Taking into account all of these matters, I am of the opinion that despite the objective seriousness of your fatal actions, the matters personal to you mean that your offence, as a whole, is at the lower end of the scale of seriousness of murders. I am satisfied that the unusual and exceptional circumstances should be reflected in a lower minimum term than would usually be imposed for murder.
[21] Sentencing reasons [44] ‑ [48].
The trial judge then sentenced the appellant to life imprisonment, backdated to commence on 13 June 2015 (when the appellant was taken into custody). The trial judge directed that the appellant must serve a minimum of 12 years before becoming eligible for release on parole.
Statutory context
Section 279(1) of the Criminal Code defines the offence of murder in the following terms:
If a person unlawfully kills another person and:
(a)the person intends to cause the death of the person killed or another person; or
(b)the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or
(c)the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life,
the person is guilty of murder.
Section 279(4) of the Criminal Code provides for the penalty for murder in the following terms:
A person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless:
(a)that sentence would be clearly unjust given the circumstances of the offence and the person; and
(b)the person is unlikely to be a threat to the safety of the community when released from imprisonment,
in which case, subject to subsection (5A), the person is liable to imprisonment for 20 years.
The requirement in s 279(5A), which was introduced after the appellant's offence, is for a minimum sentence of 15 years' imprisonment where a life sentence is not imposed and the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary. That provision is not presently relevant.
Section 90 of the Sentencing Act 1995 (WA) required the trial judge, if she imposed life imprisonment, to set a minimum period of at least 10 years that the appellant must serve before being eligible for release on parole (there being no suggestion that an order that the appellant never be released was appropriate).[22] There is no maximum nonparole period.
[22] Provisions introduced since the appellant's offending mandate a non-parole period of at least 15 years where the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary.
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 non-parole period is determined by reference to what justice requires, having regard to all relevant sentencing factors including the circumstances of the offence, all aggravating and mitigating factors and the offender's antecedents. Many of those factors (including such matters as a plea of guilty, remorse and age) will bear on an assessment of the prospects of rehabilitation. The minimum period will be determined by a reference to achieving the recognised sentencing objectives including punishment, retribution and deterrence (both personal and general).[23]
[23] McIntosh v The State of Western Australia [2017] WASCA 45 [108] ‑ [109]; Corbett v The State of Western Australia [2016] WASCA 97[97]; The State of Western Australia v Churchill [2015] WASCA 257 [26] ‑ [28]; Pedersen v The State of Western Australia [2010] WASCA 175 [40] ‑ [46].
Grounds of appeal
The appellant appeals against her sentence on the following two grounds:
1.The learned Sentencing Judge erred in law and in fact in declining to order a term of imprisonment other than that of life imprisonment.
2.The learned Sentencing Judge erred in imposing a sentence of life imprisonment with a non-parole period of 12 years imprisonment, which in all the circumstances was manifestly excessive.
On 1 March 2017, Mazza JA granted leave to appeal on ground 1 and referred the application for leave to appeal on ground 2 to the hearing of the appeal.
Appellant's submissions
The appellant submits that the trial judge erred in imposing a term of life imprisonment which, in the circumstances, is clearly unjust. It is submitted that the appellant had been a victim of the deceased's violence over a number of years and, critically, had been a victim of the deceased immediately prior to her grabbing the knife and inflicting the stab wound. The appellant says that her dire ill health means there is a real possibility that she will die in custody and away from her family in Derby. It is on this basis that the appellant submits that the imposition of a life sentence was clearly unjust.
The appellant relies on the same circumstances in support of her contention that the length of the non-parole period was manifestly excessive. The appellant submits that, while the non-parole period imposed by the trial judge fell within the range imposed for offences of murder, the circumstances of her offending were unique and warranted a show of mercy to her.
Disposition of ground 1: sentence of life imprisonment
Under s 279(4) of the Code, life imprisonment 'must' be imposed unless that sentence would be 'clearly unjust'. This statutory language indicates that the imposition of a sentence other than life imprisonment for the offence of murder will be an exceptional course. Whether a sentence is clearly unjust is a matter for the evaluative judgment of the sentencing judge, having regard to all of the circumstances of the case. That judgment is to be made by reference to the principles of sentencing set out in s 6 of the Sentencing Act, and having regard to the circumstances of the offence and the offender. The sentence imposed must be commensurate with the seriousness of the offence.
The trial judge imposed a life sentence because she was not satisfied that the sentence was clearly unjust given the circumstances of the offence and the appellant. There is nothing to suggest that the trial judge misunderstood the question which she was required to address or misapprehended the considerations relevant to answering that question. Absent any express error of principle of that kind, the issue on appeal is whether it was open to her Honour to fail to be satisfied that a sentence of life imprisonment was clearly unjust given the circumstances of the offence and the appellant. Framing the question in that way recognises the fundamental importance of the sentencing discretion conferred on sentencing judges, and that this court may not substitute its opinion as to sentencing for that of a sentencing judge merely because it would have exercised the discretion in a different manner.[24] In this regard, the sentencing judge's discretion encompasses the evaluative judgment as to whether life imprisonment would be 'clearly unjust'.
[24] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
In this case, it was open to the trial judge not to be satisfied that a sentence of life imprisonment would be clearly unjust.
The background of domestic violence which the appellant experienced was properly acknowledged by the trial judge as a significant mitigating factor. However, on the findings noted above, the primary motivation for the offending was anger at the deceased for stealing money, rather than a belief (for which there were no reasonable grounds) that stabbing the deceased in the chest was necessary for self-defence. The appellant's drunken state at the time of committing the offence was not a mitigating factor. While not premeditated, and not done with any intention to kill, the appellant's act of stabbing the deceased in the chest with a kitchen knife was objectively highly likely to result in his death.
The trial judge also appropriately took into account the appellant's prior good character and her very serious medical conditions. The tragic outcome of the offending is that, subject to the exercise of the Royal Prerogative of Mercy by the executive government, the appellant is likely to die in custody away from her family and country. In sentencing the appellant, it was necessary to take account of the more arduous nature of imprisonment for the appellant in these grim circumstances.[25] However, the appellant's personal circumstances must be balanced against the need to impose a sentence which is commensurate with the seriousness of the offence. The punishment must still reflect the seriousness of the crime.
[25] Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [54]. Although Gulyas dealt with an offender of advanced age, the same considerations inform the sentencing of a younger offender whose serious health conditions substantially reduce life-expectancy: The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397 [130]; R v Smith (1987) 44 SASR 587, 589.
The seriousness of the appellant's offending conduct was such as to be capable of supporting a conclusion that a sentence of life imprisonment was not clearly unjust, even taking into account the significant mitigating circumstances. Ground 1 is not established.
Disposition of ground 2: Manifest excess
Ground 2 challenges the length of the 12 year non-parole period fixed by the trial judge on the ground of manifest excess.
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. Appellate intervention on the ground of manifest excess 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. To determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty and any upper or lower limits on the available minimum term 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.[26]
[26] See McIntosh [106] ‑ [107]; Corbett [93] ‑ [95].
The maximum penalties for the offence of murder are referred to above. It is significant that, given the trial judge was not satisfied that a sentence of life imprisonment would be clearly unjust, the minimum sentence which could be imposed was life imprisonment with a non‑parole period of 10 years.
The non-parole period in this case was lower than those commonly fixed when sentencing offenders for the offence of murder. As was noted in Corbett:[27]
It is not uncommon for minimum terms in the range of 17 - 23 years to be imposed for single offences of murder, including in cases where there has been a plea of guilty and/or an absence of any intention to kill. 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. (citations omitted)
[27] Corbett [101] and cases there cited. See also the cases cited in McIntosh [114].
The circumstances of the present case were such as to justify the fixing of a non-parole period which was substantially lower than the not uncommon range identified in Corbett. Those significant and unusual mitigating features were accounted for in the 12 year minimum term which was imposed. While the fact that the non-parole period is below that not uncommon range does not necessarily preclude a conclusion of manifest excess,[28] it is an indicator that the appellant's sentence is not manifestly excessive.
[28] As to the role of customary sentencing standards in assessing whether a non-parole period is manifestly excessive, see Corbett [98] ‑ [100]; McIntosh [110] ‑ [112].
The offence in the present case was not in the most serious category of murder, there being no premeditation and no intent to kill the deceased. However, the appellant stabbed the deceased in the chest with a kitchen knife, principally out of anger at her money being stolen, at a time when she had no reasonable grounds for believing there to be any necessity to act in self-defence. While the appellant's personal circumstances demanded a reduction in the non‑parole which might otherwise have been fixed, they did not necessarily demand the fixing of the lowest available non-parole period of 10 years. The appellant did not enjoy the mitigating effect of a plea of guilty to the offence.
Having regard to all of the relevant sentencing principles and the circumstances of this case, we are not satisfied that the fixing of a 12‑year non‑parole period was unreasonable or plainly unjust. The sentence has not been shown to be manifestly excessive.
Orders
For the above reasons, the following orders should be made in the appeal:
1.Leave to appeal on ground 2 is refused.
2.The appeal is dismissed.
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