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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KOWALEFF -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 183

CORAM: McLURE P
BUSS JA
MAZZA J

HEARD: 20 JULY 2010

DELIVERED : 17 SEPTEMBER 2010

FILE NO/S: CACR 163 of 2009

BETWEEN: PAUL GEORGE KOWALEFF
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McKECHNIE J
File No  :INS 103 of 2009

Catchwords:

Criminal law - Appeal against sentence - Murder - Minimum nonparole period of 26 years - Did sentencing judge err in finding that the appellant did not have a mental condition causally related to the offences - Was minimum manifestly excessive

Legislation:

Criminal Code (WA), s 279
Sentencing Act 1995 (WA), s 90(1)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P W Catalano
Respondent: Mr J Mactaggart

Solicitors:

Appellant: Henry Sklarz
Respondent: Director of Public Prosecutions (WA)

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

Alkhani v The Queen [2001] WASCA 55
Austic v The State of Western Australia [2010] WASCA 110
Butler v The State of Western Australia [2010] WASCA 104
Coates v The State of Western Australia [2009] WASCA 142
Fraser v The State of Western Australia [2009] WASCA 23
Gamble v The State of Western Australia [2007] WASCA 120
Lauritsen v The Queen [2000] WASCA 203; (2000) 32 WAR 442
Leyshon v The State of Western Australia [2007] WASCA 233
Lindsay v The State of Western Australia [2010] WASCA 142
Meko v The Queen [2004] WASCA 159
R v Engert (1995) 84 A Crim R 67
Roberts v The Queen [2003] WASCA 237
Stasinowsky v The State of Western Australia [2009] WASCA 20
Teakle v The State of Western Australia [2007] WASCA 15
Trompler v The State of Western Australia [2008] WASCA 265
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Vella v The State of Western Australia [2006] WASCA 177

McLURE P: I agree with Mazza J.
BUSS JA: I agree with Mazza J.
MAZZA J: On 2 November 2009, the appellant pleaded guilty to the murder of Darlene Neilson. Later that day, he was sentenced to life imprisonment with a minimum non‑parole period of 26 years to take effect from 20 August 2008. The appellant has appealed against the minimum non‑parole period alleging that it is manifestly excessive and that the sentencing judge wrongly decided that the appellant did not have, at the time of the offence, a mitigating mental condition.

Background

Circumstances of the offence

There was no material challenge to the facts of the case. They can be summarised in this way. The appellant and Ms Neilson had, prior to her death, been in a relationship for about two years. The relationship had been turbulent. During the course of it, the appellant had been served with a violence restraining order which he breached on numerous occasions. In February 2008, at a time when the appellant and Ms Neilson had briefly reconciled, the appellant was placed on a pre‑sentence order for those breaches. The reconciliation was short lived and the relationship finally ended in March 2008.
The appellant was unable to accept that the relationship had finally ended. In the months that followed the final separation, the appellant relentlessly pursued Ms Neilson. Once again, she obtained a violence restraining order. Notwithstanding the existence of this order, the appellant repeatedly breached the order by continually endeavouring to contact her.
The appellant heard a rumour in the weeks before the offence that Ms Neilson was seeing someone else. This made him angry. He began to plan her death. At some point prior to 18 August 2008 he had entered Ms Neilson's premises at an address in Port Kennedy without her permission and interfered with the laundry sliding door so that he could effect a quiet entry into the house. On 16 August 2008, he communicated with Ms Neilson's niece and said to her 'tell that slut she better move to a different country ... I'm going to kill her'.

Between midnight and 1.00 am on 18 August 2008, the appellant went to the Port Kennedy address. He was in possession of two bags which collectively contained a black handled knife, a hammer and a tomahawk. He went to the premises with the intention of killing the deceased and her dog.
Upon arriving at the house, the appellant jumped the side fence and went to the laundry sliding door. Ms Neilson was inside the house in her bedroom. The appellant unlocked the laundry door with a key and, over the next hour, slowly slid the door open so as not to disturb Ms Neilson or her dog. He entered the house armed with the knife, hammer and tomahawk. The appellant then waited outside Ms Neilson's bedroom for about 30 minutes.
The appellant entered Ms Neilson's bedroom. He strangled her and punched her in the face rendering her bloody and unconscious. The appellant placed both his hands around Ms Neilson's throat and pushed his thumbs hard into her larynx area until he believed she was dead. The appellant then turned his attention to the dog. He attempted to kill it by beating it. He left the animal motionless on the kitchen floor. At some point during the appellant's attack on the dog, the dog bit and injured the appellant, as a result of which the appellant trailed blood inside the house. After attacking the dog, the appellant returned to Ms Neilson's bedroom.
He noticed that Ms Neilson was still breathing. He made no attempt to revive her, or call for medical assistance. Instead, he removed her from the bed and dragged her to the en suite bathroom where he attempted to shower the blood from her body and clean her with a towel. The appellant placed her onto her bed. Ms Neilson was still alive. He then committed three acts of sexual penetration upon her at a time when it must have been plain to the appellant that she was dying.
Some time later, the appellant, believing that Ms Neilson was dead, left her house in her vehicle. It did not take long for the police to find and arrest the appellant.
On 19 August 2008, the appellant was interviewed by two detectives. There is no need to canvass the interview in detail. It is sufficient to say that the appellant admitted that he was obsessed with Ms Neilson and that he had carefully planned her death. As he put it, 'shit loads' of planning went into the offence. He admitted that a couple of months before the offence he had been served with the violence restraining order and that he had breached it 'god knows how many times'.
The appellant was asked about his mental state. He said that at the time of the offending he was 'in a highly agitated, anxious state'. He said he had not been affected by drugs or alcohol. He was asked if he was suffering from any diagnosed mental condition such as schizophrenia or bipolar disorder. He replied 'not that I know'.

The appellant's antecedents

At the time of the offence, the appellant was 39 years of age. Although born in Canada, he was raised in Perth. He was happy and healthy as a child and did well at school. After leaving school, he studied surveying at TAFE and worked in that field for about nine years. During that time, he met and married his ex‑wife with whom he has three children. Eventually he and his ex‑wife separated.
The appellant's criminal history shows that in 1990, he was convicted of offences of being on premises without lawful excuse and breach of a restraining order in relation to a former partner or girlfriend. In 2001, and then later in 2004, in Victoria, the appellant was convicted of offences in relation to his ex‑wife including breaching an intervention order, stalking and burglary. In 2007 and early 2008, the appellant was convicted of offences of breaching a violence restraining order in relation to Ms Neilson.

The appellant's mental condition

Apart from an episode of depression following the appellant's separation from his ex‑wife, the appellant does not appear to have a history of mental illness prior to the offence. In a report provided by a clinical psychologist Dr Serene Tay, dated 15 February 2008, which was prepared for the magistrate who sentenced the appellant for breaching a violence order which protected Ms Neilson, she noted that the appellant reported no medical or psychiatric issues in the past.
However, for some time before the offence, the appellant had insomnia and was taking excessive doses of an over‑the‑counter antihistamine called Phenergan, the main ingredient of which is promethazine. Studies into this drug have revealed that overdose can cause delirium and psychosis. I note that in his interview with police the appellant did not mention symptoms of delirium and psychosis. Nor, apparently, did he mention such symptoms when he was seen by Professor Paul Skerritt, a psychiatrist, on 6 September 2008.
The sentencing judge had before him five psychiatric assessments of the appellant, all of which were performed after the commission of the offence. Two of them, one by Dr J R Jayawardana, which is undated, but appears to have been written in December 2008, and one by Dr Schineanu dated 24 February 2009, do not refer to the appellant's mental condition at the time of the offence. For present purposes, these reports can be put to one side.
Three reports were provided to the sentencing judge which dealt with the appellant's psychiatric condition at the time of the offence. These reports were from Professor Paul Skerritt dated 11 September 2008, Dr Zdenek Srna dated 9 July 2009 and Dr Sam Febbo dated 28 October 2009. I will deal with each of these reports in turn.
Professor Skerritt thought that the appellant had a personality disorder, but no psychiatric condition which had any causal connection to his offending. Professor Skerritt did not think that the appellant was suffering from bipolar disorder. He said:
I think that his personality was of possible participation of some anxiety leading to a state, perhaps not quite a dissociation but of impaired self‑control when he committed the alleged [offence]. His tendency to overvalue the relationship with [the complainant] was related to these personality characteristics and a contributor [to] the commission of the alleged offence. This provides some understanding rather than a formal defence.
Dr Srna saw the appellant on 2 July 2009, more than 10 months after the commission of the offence. Dr Srna said that the appellant told him that he was hearing voices telling him to go inside Ms Neilson's house. He said that when he felt her pass out the voices were telling him 'she's gone, she is gone'. He said he also heard the voices at the time that he was sexually assaulting the victim.
The appellant told Dr Srna that he had, prior to the offence, explored paranormal science and black magic and that he experienced perceptual disturbances.
In Dr Srna's opinion, the appellant was not acting in a psychotic state at the time of his offending. Dr Srna said at page 9 of his report:
[The appellant] developed a dysfunctional relationship with the victim that led to several breakups and reunions. The evidence suggests that he was unable to accept the victim's decision to terminate the relationship, and that he interpreted her behaviour as an indication of her desire for reunion, without any grounds for it. The level of his denial of the obvious and his intellectualisations and rationalisations of this denial he demonstrated on some of the video material is strongly indicative of erotomanic fixation on the victim. This is further supported by his non‑compliance of violence restraining orders taken against him by the victim, regardless [of] the consequences. [The appellant's] alleged behaviour towards the victim on the night [of] the index offences that had allegedly led to her death and the indifference to the victim's death are suggestive that he may have acted in a state of rage resulting from the narcissistic injury caused by the victim's revelation that she was dating another man.
In the process of attempts to increase the power over the victim and to gain an emotional dependence on him [the appellant] went into a considerable exercise to explore paranormal science and black magic, in the process of which he began to experience various perceptual disturbances the description and character of which strongly suggests pseudo‑hallucinatory phenomena, illusions and over valued ideation. This is not unusual in susceptible individuals in emotionally charged situations. They do not represent true psychotic phenomena, however it is possible that the excessive doses of promethazine (a central antihistamine) [the appellant] was taking around the time the index offences occurred, may have enhanced these phenomena and may have given them the true hallucinatory character described by [the appellant].
Dr Febbo saw the appellant on 21 October 2009. At page 7 of his report he said:
In my opinion, considering all the information I have, the most appropriate diagnosis is that of a psychotic disorder, a schizoaffective disorder. This diagnosis allows for the presence of psychotic symptoms in the absence of mood symptoms (for example [the appellant's] delusional interest in witchcraft at times when he was not depressed) and escalating psychotic symptoms at times of depression, for example, just prior to the killing when it is likely that there was a depressive syndrome in addition florid psychotic symptoms prior to the killing. The cannabis abuse may have had a further negative impact on his mental state.
In my opinion [the appellant's] severely impaired mental state significantly contributed to the offending.
However, Dr Febbo was not provided with the opportunity of viewing the appellant's record of interview with the police, nor was he provided with the reports of Professor Skerritt and Dr Srna.

The relevant legislative provisions

This offence was committed after 1 August 2008. On that day, s 10 and s 19 of the Criminal Law Amendment (Homicide) Act 2008 (WA) came into operation. The effect of these provisions was to abolish the offence of wilful murder, repeal the previous definition for the crime of murder and replace these provisions with a new offence of murder. The new offence of murder, in s 279(1) of the Criminal Code (WA), which applied to the present case, is 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 that a person who is guilty of murder must be sentenced to life imprisonment subject to certain exceptional circumstances, 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, a court must either set a minimum term 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.

His Honour's sentencing remarks

His Honour described the appellant's crime as one of deliberate premeditated murder. His Honour gave particular emphasis to deterrence, because the offence was committed in breach of a violence restraining order.
His Honour found that the appellant was not remorseful. Rather, he had behaved in a remorseless and ruthless manner. He noted the appellant's degrading behaviour in sexually assaulting Ms Neilson in her final moments. In light of the appellant's criminal history, his Honour said that the appellant posed a danger 'to any woman that comes across your path'. His Honour referred to the many victim impact statements. He said that retribution, deterrence and the protection of society warranted the imposition of a severe penalty.
His Honour expressly took into account as a mitigating factor the appellant's plea of guilty.
With respect to the appellant's mental condition at the time of the offence, his Honour was not satisfied, on the balance of probabilities, that he suffered from a mental illness that affected his actions on the night in question so as to lessen his moral or criminal responsibility.
In coming to this conclusion, his Honour referred to the psychiatric and psychological evidence before him, including the reports of Dr Febbo, Dr Srna and Professor Skerritt. He noted that Dr Febbo did not apparently have regard to the appellant's video record of interview. Although his Honour did not expressly reject Dr Febbo's opinion that the appellant's mental state was impaired at the time of his offending, that is the clear inference to be drawn from his sentencing remarks.
In relation to the interview, his Honour said:
In that video record of interview just a day after [the commission of the offence] you were asked whether you were on medication that might affect your judgment and you said 'No'. You denied schizophrenia. You did not mention hearing voices [8].
In his Honour's opinion, the appellant's offending was motivated by 'jealousy, rage, lust and the desire to control' [11].

Counsel's submissions

On behalf of the appellant, it was submitted that his Honour, against the weight of expert psychiatric evidence, wrongly gave no mitigation to the appellant's mental condition at the time of his offending. Counsel submitted that the combined effect of all the expert evidence, and the circumstances of the offending, showed that the appellant was suffering from a psychotic condition when he killed Ms Neilson.
The appellant's counsel further submitted, on the assumption that there was evidence to support the contention that the appellant had a mental condition at the time of his offending, that the mental condition was mitigatory because it reduced his moral culpability.
It was submitted that his Honour should not have placed reliance on the police interview when coming to the conclusion that the appellant did not have any mental condition at the time of the offence.
With respect to the contention that the minimum term was manifestly excessive, the appellant's counsel submitted that his Honour did not give appropriate weight to the appellant's plea of guilty, his age and prospects of rehabilitation. It was submitted that his Honour gave too much weight to the appellant's previous criminal record, his sexual offending on the night in question and his breaches of the violence restraining order.
It was submitted that the non‑parole period of 26 years was excessive having regard to other sentences imposed for murder. The appellant's counsel submitted that a non‑parole period in the range of 21 to 23 years was appropriate.
Counsel for the respondent submitted that the sentencing judge rightly concluded that the appellant, at the time of the offence, was not suffering from any mental condition which affected his actions or lessened his moral or criminal responsibility.
Counsel for the respondent submitted that the appellant's conduct was extremely serious and that the non‑parole term imposed upon him by his Honour reflected a proper exercise of sentencing discretion and should not be disturbed.

Analysis of the grounds of appeal

It is convenient to deal first with the ground of appeal which alleges that the sentencing judge erred in giving no weight to the appellant's mental condition. If Dr Febbo's opinion was properly rejected, there was no evidence which supported the contention that the appellant was suffering from a mental illness at the time of his offending.
Both Professor Skerritt and Dr Srna denied the existence of any such condition. There is nothing in the other material before his Honour to indicate that the appellant had a mental illness.

Having reviewed all of the evidence that was before his Honour, I am satisfied that his Honour reached the correct conclusion. Apart from the episode of depression the appellant had when he separated from his ex‑wife, he did not have any history of psychiatric illness. It is clear, from the video record of interview, that in the days leading up to the commission of the offence and on the night of the offence, his behaviour was inconsistent with someone who was psychotic, given the deliberate and calculated way he planned and carried out Ms Neilson's murder. It is significant that in the appellant's video record of interview, one day after the offence was committed, the appellant made no mention of hearing voices and that he denied being affected by drugs, alcohol or mental illness. Three weeks later, when he spoke to Professor Skerritt, he did not mention any symptoms of psychosis.
Having regard to all this, his Honour was right to reject Dr Febbo's opinion, particularly as Dr Febbo had not seen the appellant's interview or the contrary opinions of Dr Srna or Professor Skerritt.
It was suggested that any psychosis may have been linked to the appellant's use of promethazine. In light of the appellant's denial that he was affected by drugs, it is difficult to sustain any notion that he was affected by promethazine. However, even if he was and that drug caused him to act psychotically on the night of the offence, that psychosis would have been self‑induced and not as a result of any mental illness. It would not have been mitigating: Butler v The State of Western Australia [2010] WASCA 104.
Finally, even if the appellant had been suffering from a psychosis that was not self‑induced, on the facts of this case, it would not have changed the outcome. While mental impairment will in many cases mitigate punishment, it is not always the case. Mental impairment may have two countervailing effects; it may on the one hand lessen culpability and on the other it may make the offender a danger to the community when at large. Consequently it may, in the end, have little or no mitigating effect: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 476 ‑ 477; R v Engert (1995) 84 A Crim R 67, 71; Lindsay v The State of Western Australia [2010] WASCA 142 [23]. Here, the evidence established that the appellant poses a serious and continuing danger to the safety of the community, especially to any women with whom he forms a relationship. That factor balances out any mitigation which may have been a consequence of any mental impairment.
In my opinion, contrary to the appellant's counsel's submissions, the evidence before his Honour supported the conclusion reached by him. His Honour's conclusion was not against the weight of the evidence, and was plainly correct.
I now turn to the appellant's contention that the non‑parole period was manifestly excessive. This was a murder of the utmost seriousness. The appellant killed with an intention to kill. His actions were carefully planned, ruthless, degrading and cruel. The offence was committed in the face of a violence restraining order in circumstances where the appellant had obsessively pursued Ms Neilson over a period of months.
Apart from the appellant's early plea of guilty, there was no mitigation to be found in any aspect of the appellant's offending or in his antecedents. His offending and his antecedents show, as I said earlier, that the appellant poses a danger to the community. I agree with his Honour that retribution, deterrence and community protection were important factors in this case. A severe non‑parole period was warranted.
In Austic v The State of Western Australia [2010] WASCA 110 [171] ‑ [176], Buss JA made five observations in relation to the determination of the non‑parole period where, as in this case, an offender has been sentenced to life imprisonment for the new offence of murder. He said:
Several observations may be made in relation to the determination of the non-parole period where an offender is to be sentenced to life imprisonment for the new offence of murder and the sentencing court has decided to proceed under s 90(1)(a) of the Sentencing Act and fix a minimum period (instead of proceeding under s 90(1)(b) and ordering that the offender must never be released).
First, the considerations which the sentencing court must take into account in setting the non-parole period are all relevant sentencing factors, including the circumstances of the offence, all aggravating and mitigating factors and the offender's personal antecedents.
Secondly, the non-parole period must be set by reference to achieving or satisfying all relevant sentencing objectives, including punishment, retribution, person deterrence and general deterrence.
Thirdly, sentencing dispositions under the previous legislative scheme will generally be of some assistance in determining the length of the non-parole period for the new offence of murder where the sentencing court has decided to impose life imprisonment and set a minimum period under s 90(1)(a) of the Sentencing Act. It is essential, however, to bear in mind the following:
(a)The increase in the statutory minimum period from 7 to 10 years was made in the context of eliminating from the definition of murder, the unlawful killing of another person where the offender (merely) intends to cause bodily injury of such a nature as to cause, or be likely to cause, permanent injury to the health of the person killed or another person. See [163] and [167] above.
(b)The strict ranges of available non-parole periods based on the distinctions under the previous legislative scheme between wilful murder and murder, and between wilful murder carrying strict security life imprisonment and wilful murder carrying (merely) life imprisonment, have been abolished. These strict ranges were not always appropriate to the facts and circumstances of a particular offender and his or her offending. The proper exercise of the sentencing discretion is no longer constrained by the rigidity of the previous legislative scheme (including the sentencing framework).
(c)The comments of Wheeler JA in Atherden [30] - [31].
Fourthly, the offender's intention in relation to the particular killing is a relevant fact or circumstance (invariably, if not always, a very significant matter) to be considered together with all the other relevant facts and circumstances of the offending and the offender in determining the appropriate non-parole period.
Fifthly, the removal of the demarcation between wilful murder and murder, and the abolition of the strict ranges of available non-parole periods under the previous legislative scheme, may result in some increase in the non-parole period for offending that would formerly have attracted a non-parole period at or very close to the upper limit of a previously applicable range [171] ‑ [176].
The appellant's counsel's written submissions include a table of cases which it is submitted demonstrate that the non‑parole term was manifestly excessive. The table refers to Coates v The State of Western Australia [2009] WASCA 142; Fraser v The State of Western Australia [2009] WASCA 23; Stasinowsky v The State of Western Australia [2009] WASCA 20; Leyshon v The State of Western Australia [2007] WASCA 233; Gamble v The State of Western Australia [2007] WASCA 120; Teakle v The State of Western Australia [2007] WASCA 15; Vella v The State of Western Australia [2006] WASCA 177; Meko v The Queen [2004] WASCA 159; Roberts v The Queen [2003] WASCA 237; Alkhani v The Queen [2001] WASCA 55; and Lauritsen v The Queen [2000] WASCA 203; (2000) 32 WAR 442.
I am not persuaded that these cases demonstrate manifest excess in this case. As McLure JA pointed out in Fraser [23], the court in Stasinowsky conducted a detailed review of the relevant case law (including Leyshon, Gamble, Teakle, Vella, Meko, Roberts, Alkhani and Lauritsen) and concluded that the approach taken in Lauritsen has resulted in excess weight being given to the potential for rehabilitation in some cases: Stasinowsky [71].
Each case must be dealt with on its merits. The offence of murder is committed in a very wide variety of circumstances. The new sentencing regime for murder provides sentencing judges with a wider sentencing discretion than previously existed. This was done, in part, as the Honourable J A McGinty explained in his Second Reading Speech, referred to in Austic by Buss JA, to 'significantly increase the power of judges to set non‑parole periods that are commensurate with serious murders'.
Finally I turn to the submissions that his Honour failed to give appropriate weight to the plea of guilty and too much weight to the circumstances surrounding the offence. These submissions were made in support of the ground that the non‑parole period was manifestly excessive.
The submissions are misconceived. They are not reasons for concluding that the non‑parole period was manifestly excessive. This was explained by McLure JA in Trompler v The State of Western Australia [2008] WASCA 265 [32]:
A sentence is manifestly excessive if it is unreasonable or plainly unjust, in which event error is inferred. A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the sentence is manifestly too long. Manifest excess is not determined by reference to the reasons or reasoning of the sentencing judge. That fact is often obscured because appeal courts sometimes explain their decisions on manifest excess (or inadequacy) by reference to the weight accorded to particular sentencing considerations by the primary judge. The failure to give adequate weight to a sentencing consideration can, in very limited circumstances which do not apply in this case, give rise to an express error: Vagh v The State of Western Australia [2007] WASCA 17 [76]. Otherwise, a weighting error is just a conclusion that is implicit in, and flows from, a finding that a sentence is manifestly excessive; it is not a reason for concluding that a sentence is manifestly excessive.
No express error was alleged, nor could it be established, by the way his Honour dealt with the plea of guilty and the circumstances surrounding the offence.
I have not been persuaded that his Honour erred in the exercise of his sentencing discretion by imposing a non‑parole period of 26 years in the circumstances of this case. None of the appellant's grounds of appeal has been made out. Consequently, the appeal must be dismissed.