Khan v The State of Western Australia
[2013] WASCA 193
•22 AUGUST 2013
KHAN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 193
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 193 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:104/2013 | 7 AUGUST 2013 | |
| Coram: | MAZZA JA HALL J | 22/08/13 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | FATTAR KELVIN KHAN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal sentence Whether learned sentencing judge erred in fact Whether minimum non-parole period was manifestly excessive |
Legislation: | Criminal Code (WA), s 279(1) Sentencing Act 1995 (WA), s 90(1) |
Case References: | Atherden v The State of Western Australia [2010] WASCA 33 Goodwyn v The State of Western Australia [2013] WASCA 141 House v The King [1936] HCA 40; (1936) 55 CLR 499 Johnston v The State of Western Australia [2012] WASCA 18 Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KHAN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 193 CORAM : MAZZA JA
- HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : SIMMONDS J
File No : IND 194 of 2012
Catchwords:
Criminal law - Application for leave to appeal sentence - Whether learned sentencing judge erred in fact - Whether minimum non-parole period was manifestly excessive
Legislation:
Criminal Code (WA), s 279(1)
Sentencing Act 1995 (WA), s 90(1)
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Ms L Tovey
Respondent : No appearance
Solicitors:
Appellant : Justine Fisher Barristers & Solicitors
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Atherden v The State of Western Australia [2010] WASCA 33
Goodwyn v The State of Western Australia [2013] WASCA 141
House v The King [1936] HCA 40; (1936) 55 CLR 499
Johnston v The State of Western Australia [2012] WASCA 18
Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91
1 MAZZA JA: This is an application for leave to appeal against sentence.
2 On 4 March 2012, the appellant stabbed to death Graham Stanley Wallam. On 5 March 2013, on the first scheduled day of his trial, the appellant pleaded guilty to the deceased's murder. On 22 April 2013, the appellant was sentenced to life imprisonment with a minimum non-parole period of 13 years.
3 The appellant seeks leave to appeal on two grounds. Ground 1 alleges that the learned sentencing judge erred in fact and law by using the adverb 'vigorously' when describing the stabbing and sentencing the appellant on that basis. Ground 2 alleges that the minimum non-parole period of 13 years was manifestly excessive.
4 For the reasons that follow, neither ground has reasonable prospects of succeeding. Accordingly, the appeal is to be taken to have been dismissed: s 27(1), s 27(2) and s 27(3) of the Criminal Appeals Act 2004 (WA).
The facts of the offence
5 The appellant and the deceased had been friends for many years. On 29 February 2012, the appellant travelled to Brunswick to visit family and friends. He stayed at the deceased's home. On 4 March 2012, the appellant and the deceased drank heavily together, ending up at a friend's house. Both men were significantly affected by alcohol, the deceased more so than the appellant. In the early evening a dispute of some kind broke out between the two men, which saw them trade blows. His Honour was unable to make any findings as to who started the confrontation.
6 The appellant then returned to the deceased's house. Not long after, the deceased followed, having indicated that he wanted to join the appellant.
7 When the deceased got home, there was a further physical altercation. Apart from the appellant and the deceased, no one else was present and the precise circumstances are unclear. What is known is that during this altercation, the appellant stabbed the deceased once in the stomach with a kitchen knife. The appellant immediately went to a neighbour's and asked for the emergency services to be called. He then returned to the deceased's house with the neighbour, where he attempted to render first aid and comfort the deceased. It is not disputed that the appellant displayed immediate regret for what he had done. The deceased was pronounced dead shortly after his arrival at a nearby hospital.
8 The appellant was arrested at the scene. At about 2.00 am on 5 March 2012, the appellant was interviewed by police. In that interview, he said that he had gone back to the deceased's house and had fallen asleep. He said that when he awoke, he found the deceased lying on the front lawn, bleeding and whispering to him that he had just been stabbed. When the appellant was asked directly if he had stabbed the deceased, he answered 'No'. Later that day, at approximately 2.00 pm, the appellant told the police that he wanted to change some of what he had told them earlier. This time, he told the police that he had been cutting meat in the kitchen when he heard a noise outside. He said that he went outside, carrying the knife, and without explanation as to how it came about, he said that the knife had 'gone into [the deceased]' while he was holding it. He maintained that he did not stab the deceased.
9 An autopsy found the deceased to have been suffering from arteriosclerosis and the effects of a penetrating wound which had caused extensive internal and external bleeding. In the opinion of the forensic pathologist who performed the autopsy, Dr Cadden, the primary cause of death was the stab wound.
The respondent's concessions
10 The plea of guilty was the culmination of negotiations between the appellant and the respondent. When the appellant entered his plea of guilty, the prosecution made the following factual concessions:
(a) the appellant did not intentionally kill the deceased, nor did he intentionally cause him a life threatening injury;
(b) the appellant's only intention was to cause the deceased a bodily injury which, objectively, turned out to be life threatening;
(c) the appellant's intention to cause the deceased a bodily injury was not long held and may have been only momentary. Further, once inflicted, it was immediately regretted;
(d) there was no allegation of premeditation, and the stabbing occurred on the spur of the moment; and
(e) the plea of guilty was indicative of remorse and it was conceded that the non-parole period should be at the lower end of the scale (5 March 2013, ts 21).
The offence of murder
11 The definition of murder is set out in s 279(1) of the Criminal Code (WA), which reads:
279. Murder
(1) 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.
The appellant's antecedents
13 The appellant is an indigenous man who, at the time of the offence, was 33 years of age. The appellant came from a dysfunctional family background. From an early age, he suffered from physical abuse, deprivation and neglect. He was subjected to, and witnessed, domestic violence. He commenced drinking alcohol at the age of 13 years. He has abused both alcohol and cannabis throughout his teenage and adult life. His education was limited, and he has had little paid employment.
14 The appellant has a history of violent offending, which commenced in his childhood and has continued. In 2003, he was imprisoned for 3 years for an offence of aggravated robbery. In 2009, he was convicted in the Magistrates Court of Western Australia on three occasions for offences of violence, being three counts of common assault, one count of assault occasioning bodily harm, one count of aggravated assault occasioning bodily harm, and assaulting a public officer.
15 In addition to the offences of violence I have mentioned, the appellant has convictions as an adult for stealing, aggravated burglary, carrying a controlled weapon in a manner likely to cause fear, disorderly conduct, unlawful damage, and breaching a violence restraining order.
The reports
16 The pre-sentence report and psychological report that were before his Honour paint a bleak picture.
17 The pre-sentence report revealed that the appellant's most recent convictions for assault were against his then partner, relatives and a prison officer. Previous offers extended to the appellant to participate in intervention programs designed to rehabilitate him were declined, and his previous response to supervision has been consistently unsuccessful.
18 The appellant has a long history of depression, for which he has been prescribed relevant medication. It was thought that his depressive personality features were formed in the context of his deprived and abusive childhood. According to the psychologist, the appellant's pattern of aggression is 'more general than specific to a context'. Further, 'his aggressive behaviour is not solely related to alcohol misuse'.
19 The psychologist noted that the appellant has a long established pattern of using violence to resolve interpersonal difficulties across situations and circumstances. He has an inability to discuss his violent offending. The appellant offends in this manner in different contexts and for different purposes. The psychologist suggested that these circumstances demonstrate that the appellant has 'little awareness of strategies to avoid high risk situations and [suggest] that he does not have the emotional capacity to not act on violent impulses'.
20 Using the Violence Risk Scale, the psychologist concluded that the appellant's risk of violent recidivism is high.
21 The psychologist's summary and conclusions were expressed in this way:
[The appellant] presents as a highly defended man whose early experiences were extremely difficult, resulting in disruption to his personality development. As a result, it appears he has long adopted antisocial, often interpersonally violent and avoidant strategies to help him manage his world. He requires significant therapeutic assistance to process the impact of his childhood on his functioning and to provide future pro-social strategies and awareness of risk factors predictive of violent reoffending. Without treatment he is assessed to be at high risk of violent reoffending. He will also require assistance to manage his emotional responses to the murder offence and the shame and distress around his behaviour and the loss of a long term friend. …
Whilst [the appellant] expressed extreme reluctance to engage in offence specific treatment during the current assessment, it is considered critical that he engage in such prior to future release to the community. His fear of intervention may be overcome by individual preparatory work and inclusion in a briefer (and therefore less self-directed) program first.
Ground 1
22 During the course of his Honour's sentencing remarks, when describing the circumstances of the offending, his Honour said:
During that altercation you had a knife which you had apparently acquired in the house if not immediately at that time not long beforehand. It was not put to me that you had taken a hold of that knife pursuant to a plan you had formed earlier and upon which you had been pondering to do harm to the deceased. There is simply no sufficient evidence before me as counsel for the State conceded upon which I could find any such premeditation and planning.
Indeed, in the statement preceding your plea of guilty counsel for the State indicated that your having that knife might have been a momentary thing. It simply could not at this stage be determined. What is clear - your plea of guilty is your acceptance formerly of this, that with knife in hand you applied the knife vigorously to the abdomen of the deceased (ts 70). (emphasis added)
23 The appellant submitted that on the evidence before his Honour, the only conclusion that could be reached is that the appellant stabbed the deceased once to the abdomen with a knife. In these circumstances, the use of the word 'vigorously' was inapt and overstated the criminality involved in the commission of the offence. It was submitted that as a result of the alleged error, the learned sentencing judge imposed a longer minimum non-parole term than was justified on the facts.
24 In context, his Honour's use of the word 'vigorously' appears to me to be a synonym for the word 'forcefully'. Used in that way, it describes what the appellant did, that is, he used the knife forcefully to stab the deceased in the abdomen. When one reads his Honour's sentencing remarks as a whole, it is clear that he sentenced the appellant on the basis that he had, at the spur of the moment, inflicted a single stab wound to the deceased, which he immediately regretted. His Honour was aware of all of the relevant circumstances and referred to them. His Honour did not, as submitted, overstate the appellant's criminality.
25 When considering a ground such as this, where it is alleged that a sentencing judge has inaptly used a word or expression, it is important to examine the sentencing remarks in context as a whole, remembering that they are oral reasons for decision, often delivered on an extempore basis, and due allowance should be made for errors and infelicitudes of expression. Ground 1 has no reasonable prospect of succeeding.
Ground 2 - manifest excess
26 The offence of murder was amended by the Criminal Law Amendment (Homicide) Act 2008 (WA) (the Act) which came into operation on 1 August 2008. One of the effects of the new provisions was to abolish the offence of wilful murder, repeal the previous definition for the crime of murder, and replace these provisions with s 279(1). The Act also introduced a new sentencing regime. Under that regime, a person who is guilty of murder must be sentenced to life imprisonment, subject to certain exceptions which do not apply to this case. Section 90(1) of the Sentencing Act 1995 (WA) provides that where an offender is sentenced to life imprisonment for murder, the court must either set a minimum period of at least 10 years, or order that the offender must never be released. In this case, the State did not seek an order that the appellant must never be released.
27 The determination of an appropriate minimum non-parole period requires the sentencing judge to decide the minimum period of imprisonment that justice requires the offender to serve before he or she may be considered for release on parole. It is a discretionary judgment. An appeal from such a judgment is subject to the well-known principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. This court cannot intervene unless error is demonstrated.
28 Ground 2 is an allegation of implied error. Establishing such an error is no easy task. The appellant must show that the minimum non-parole period of 13 years was, in all of the circumstances, so unreasonable or unjust that a substantial wrong has occurred: Johnston v The State of Western Australia [2012] WASCA 18 [19].
29 The appellant submitted that having regard to the concessions made by the respondent and the outcomes in such cases as Atherden v The State of Western Australia [2010] WASCA 33; Johnston and Goodwyn v The State of Western Australia [2013] WASCA 141, the minimum non-parole period imposed in this case was plainly unjust and unreasonable.
30 In light of the concessions made by the respondent and accepted by the sentencing judge, a minimum non-parole period towards the lower end of the statutory range was appropriate. Indeed, the minimum non-parole period set by his Honour was at the lower end of the statutory range.
31 The concessions did not mean, as the appellant submitted, that a minimum non-parole period of 10 years or close to that length was the appropriate outcome. Although the offence was committed without premeditation and on the spur of the moment, the appellant armed himself with a kitchen knife and inflicted a stab wound in a vital part of the deceased's body. The danger to the deceased was obvious. The tragic result that eventuated was entirely predictable and unnecessary.
32 The appellant is no stranger to violent behaviour. Although his deprived and dysfunctional background must be acknowledged and taken into account, the appellant has long adopted antisocial violent strategies to resolve interpersonal difficulties. Without treatment, he is a high risk of violent reoffending. Unfortunately, both now and in the past, the appellant has been reluctant to engage in rehabilitative programs. Thus, the prospects of the appellant changing his behaviour to reduce the risk of reoffending are not at all promising. Accordingly, the sentencing objectives of public protection and person deterrence were significant in this case.
33 The three cases relied upon by the appellant are insufficient to establish a customary range of minimum non-parole periods for murders pursuant to s 279(1)(b) of the Criminal Code, but I will deal with each of them briefly. The appellant in Goodwyn was convicted after trial. The appellant, after an angry exchange with the deceased, obtained a kitchen knife and stabbed the deceased with it inflicting five wounds, one of which was fatal. At the time of the offence, the appellant was 35 years of age and had no prior criminal history involving violence. He was sentenced to life imprisonment with a minimum non-parole period of 15 years. His appeal against sentence on the basis that the minimum non-parole period was manifestly excessive was dismissed.
34 In Johnston, the appellant and a co-offender entered the deceased's house, without her consent, with the intention of stealing money and drugs. The appellant punched the deceased, struck her with a hammer and choked her. The deceased died as a result of the injuries the appellant inflicted. The appellant was 25 years of age when sentenced and had good antecedents. He was assessed as having a low risk of further violent offending. He alleged that the 18-year minimum non-parole period imposed after trial was manifestly excessive. Leave to appeal was refused and the appeal was dismissed.
35 In Atherden, the appellant pleaded guilty to the murder of his former partner and was sentenced to a minimum non-parole period of 16 years. The appellant struck the deceased with multiple blows using two weapons, which resulted in fatal head injuries. It was accepted that the appellant had not intended to kill the deceased, but had intended to cause her grievous bodily harm. The sentencing judge found that the offence was not premeditated and that it had occurred in an explosion of rage. However, after the offence, the appellant had shown a callous disregard for the deceased by failing to obtain medical assistance for her. The appellant's criminal record contained a number of minor traffic offences. The only violent offence recorded against him was for common assault, for which a $600 fine was imposed. The appellant's appeal against the minimum non-parole period succeeded, not on the ground that it was manifestly excessive, but because it was not obvious that the sentencing judge had reduced the sentence for the appellant's plea of guilty. This court resentenced the appellant to a minimum non-parole period of 14 years.
36 Each case must be decided on its own facts and circumstances. While the killing in the present case may not have been committed in as serious circumstances as the killings in the cases cited on behalf of the appellant, it was, for the reasons I have given, nevertheless, serious. I recognise that, unlike the appellants in Goodwyn and Johnston, the appellant in the present case pleaded guilty. Having said this, the mitigating weight to be given to his plea was limited by reason of its lateness. Unlike all of the appellants in Goodwyn, Johnston and Atherden, the appellant in the present case has poor antecedents, a history of violence and poses a high risk of reoffending in the future. Accordingly, here, public protection and personal deterrence were important sentencing factors.
37 Having regard to all of the circumstances of the case, I have not been persuaded that it is reasonably arguable that the minimum non-parole period imposed upon the appellant was plainly unjust and unreasonable. Ground 2 has no reasonable prospect of succeeding.
Conclusion and orders
38 Neither of the appellant's two proposed grounds of appeal have reasonable prospects of succeeding. Accordingly, the appeal must be taken to be dismissed. The orders that I would make are as follows.
1. Leave to appeal is refused.
2. The appeal is dismissed.
39 HALL J: I agree with Mazza JA.
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