Kuzimski v The State of Western Australia
[2012] WASCA 202
•12 OCTOBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KUZIMSKI -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 202
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 30 AUGUST 2012
DELIVERED : 12 OCTOBER 2012
FILE NO/S: CACR 55 of 2012
BETWEEN: BRETT NICHOLAS RICHARD KUZIMSKI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :JENKINS J
Citation :THE STATE OF WESTERN AUSTRALIA -v- KUZIMSKI [2012] WASCSR 29
File No :INS 44 of 2011
Catchwords:
Criminal law - Appeal against sentence - Murder - Manifest excess - Utility of comparisons with sentences imposed prior to commencement of the Criminal Law Amendment (Homicide) Act 2008 (WA) - Turns on own facts
Legislation:
Criminal Code (WA), s 279, s 444(1)
Criminal Law Amendment (Homicide) Act 2008 (WA)
Sentencing Act 1995 (WA), s 90(1)(a), s 90(1)(b)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S Watters & Ms S J Monck
Respondent: Mr B Fiannaca SC & Ms S Linton
Solicitors:
Appellant: Stephanie J Monck
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Mikhail v The State of Western Australia [2012] WASCA 200
McLURE P: This is an appeal against sentence. The appellant was convicted after trial of two counts of murder contrary to s 279 of the Criminal Code (WA) (Code) and one count of criminal damage by fire (arson) contrary to s 444(1) of the Code.
On 29 February 2012 Jenkins J sentenced the appellant to life imprisonment with a minimum (non‑parole) period of 32 years on each offence of murder and 7 years' imprisonment, concurrent, for the arson offence.
There is only one ground of appeal. The appellant contends that the non‑parole period of 32 years is manifestly excessive. The facts found by the sentencing judge are as follows.
On 30 April 2010 the appellant went to Mars Street in Carlisle to visit a woman called Carol Ripper who he knew as a drug dealer. She was living in a shed at the rear of the Carlisle address. The appellant thought that if he had the opportunity, he would rob Ms Ripper of her drugs or her money. The murder victims, Melanie Carle, 26, and Kellie Maree Guyler, 32, shared a house at the Carlisle address with a house mate, Stephen Andrijasevich.
During the afternoon of 30 April 2010 Ms Ripper introduced the appellant to the victims and he spoke to them at various times throughout the day and night. The appellant's plan to rob Ms Ripper did not come to fruition and she eventually left the Carlisle address in her car. The appellant remained at the house and some time later that evening, he and the victims left in a Toyota Landcruiser owned by Mr Andrijasevich. Just before 5.00 am on 1 May 2010 Mr Andrijasevich's Landcruiser was found on fire on the verge of the southbound lanes of Tonkin Highway in Wattle Grove. The fire brigade attended and put out the fire. The bodies of the victims were then discovered in the vehicle. Post‑mortem examinations revealed that both women were murdered before the vehicle was set alight.
Ms Carle had three penetrating injuries to the right side of her face, two of which caused or contributed to her death. The three injuries were consistent with having been caused by a long object such as a screwdriver. She also had areas of bruising which were consistent with strangulation and a gaping injury to the top of her head. Ms Carle had a high concentration of methylamphetamine in her blood.
Ms Guyler died as a result of a penetrating injury at the inner aspect of her right eye which went through to her brain. That injury was also consistent with the use of an object such as a screwdriver. She also had a high concentration of methylamphetamine in her blood.
The sentencing judge found that the appellant's attack on the two victims was ferocious and must have continued for a period of time. She also found that neither of the victims died immediately and both would have suffered considerably prior to death.
When the Landcruiser was parked on the verge of Tonkin Highway with the victims' bodies inside it, the appellant set it alight. He opened the petrol cap so the petrol would fuel the fire and also placed timber in the vehicle to provide additional fuel. The sentencing judge found that the appellant set fire to the vehicle with the intention that the victims would be burned and evidence connecting him to the victims and to the vehicle would be destroyed. The appellant returned to his father's home where he showered and later disposed of his clothing in a garbage bin at a railway station.
After his arrest, the appellant told police that the Landcruiser had been followed by another car and that the driver of that car had run the Landcruiser off the road; that the male occupants of the car attacked the appellant and Ms Guyler; and that he fled the scene, leaving the victims behind. The appellant gave evidence to the same effect at trial.
The sentencing judge found that the appellant murdered the victims because he wanted to experience what it was like to kill another person.
The appellant was aged 37 at the time of sentencing. He had completed year 10 at school and an apprenticeship in cabinet‑making. He ceased working after two years because of his escalating drug use. The appellant had a history of chronic use of cannabis, amphetamines and heroin. He had been in several long‑term relationships but never married and has a daughter who was aged 16 at the time of sentencing.
The appellant does not suffer from a serious or medically treatable mental illness. He has a lengthy prior criminal record which commenced when he was aged 16. As an adult he had convictions for, inter alia, assault, burglary, armed robbery and weapons offences. He had served numerous sentences of imprisonment. The expert psychiatric and psychological evidence identified a causal relationship between the appellant's substance abuse and his risk of violent offending in the future, which was assessed as high. The sentencing judge found that the appellant was at a very high risk of committing serious violent offences in the future.
The sentencing judge found that the appellant intended to kill Ms Guyler but did not make the same finding in relation to Ms Carle. However, she said:
In these two cases my sentences would not be different, whether I found that you intended to kill the victims or not. The reason is that your actions show that even if you did not intend to kill, your actions were so persistent, callous, violent and motiveless that an assessment of their seriousness does not depend on whether you intended to kill at the time you inflicted the fatal injuries or not. Further, your actions afterwards in incinerating the bodies is other evidence that you were utterly indifferent to the lives of your victims [48].
Although the sentencing judge found that the appellant had insufficient time to plan the murder of his victims, she identified as significantly aggravating the brutality and violence directed towards them and the length of time the attack would have taken. There were no mitigating circumstances.
The sentencing judge concluded that the only appropriate sentence for the murders was life imprisonment. The State did not apply for a 'never to be released' order under s 90(1)(b) of the Sentencing Act 1995 (WA). However, the sentencing judge observed that the circumstances came close to requiring such an order.
Manifest excess
The appellant must establish that the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess depends upon establishing the implication of an error from the sentence itself. This court cannot intervene merely because it would have imposed a different minimum period.
There is no challenge to the finding that the only appropriate sentence for the murders was life imprisonment. Accordingly, s 90(1)(a) of the Sentencing Act1995 (WA) applies. By that section, a court that sentences an offender to life imprisonment for murder must set a minimum period of at least 10 years that the offender must serve before being eligible for release on parole.
As explained in Mikhail v The State of Western Australia [2012] WASCA 200, prior to the commencement of the Criminal Law Amendment (Homicide) Act 2008 (WA) (the Homicide Amendment Act) on 1 August 2008, the non‑parole period for the offence of murder in the most serious category (wilful murder with strict security life
imprisonment) was subject to an upper limit of 30 years. The upper limit for an offender sentenced to life imprisonment for murder was 14 years.
All statutory maximum non‑parole periods for murder have now been removed. As explained in the second reading speech for the Bill that became the Homicide Amendment Act, the purpose of the change in the legislative framework was to significantly increase the power of judges to set non‑parole periods that are commensurate with serious murders (Western Australia, Parliamentary Debates, Legislative Assembly, 19 March 2008, 1210). Thus, minimum terms imposed in wilful murder and murder cases prior to the commencement of the Homicide Amendment Act do not provide a benchmark against which broad consistency is to be measured: Mikhail [30]. Under the former legislative scheme, the maximum non‑parole period for the murder of Ms Carle (in the absence of a finding of the requisite intention) would have been 14 years and the maximum non‑parole period for the murder of Ms Guyler, 30 years. Under the current legislative scheme there are no maximum non‑parole periods for murder; the seriousness of the offending is to be judged by reference to all relevant facts, not just the intention which accompanied the unlawful killing. The sentencing judge found, correctly in my respectful opinion, that the appellant's culpability for the murder of each victim was relevantly the same.
Having regard to all relevant sentencing considerations, the non‑parole period of 32 years for each offence is well within the sound discretionary range. The appellant killed two people in a ferocious and brutal attack which eventually resulted in their deaths after they endured considerable suffering. The sentencing judge did not overestimate the seriousness of the appellant's offending. In addition, there were no mitigating circumstances and the appellant remains at a very high risk of committing serious violent offences in the future. The appeal should be dismissed.
BUSS JA: I agree with McLure P.
MAZZA JA: I agree with McLure P.
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