Lauritsen v R
[2000] WASCA 203
•4 AUGUST 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: LAURITSEN -v- THE QUEEN [2000] WASCA 203
CORAM: MALCOLM CJ
WALLWORK J
MURRAY J
HEARD: 10 DECEMBER 1999
DELIVERED : 4 AUGUST 2000
FILE NO/S: CCA 106 of 1999
BETWEEN: ANTHONY GRANT LAURITSEN
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Wilful murder - Sentence of strict security life imprisonment with non-parole period of 27 years - Offence in worst category of its kind - Effects of mental illness on sentencing - Mitigation of mental illness to be taken into account in setting non-parole period - Non-parole period reduced to 20 years to account for mitigation of culpability on account of mental illness and allow for possibility of rehabilitation - Suitability for release on parole to be assessed by Parole Board on psychiatric advice
Legislation:
Criminal Code, s 27
Criminal Law (Mentally Impaired Defendants) Act 1996, s 4, s 5, s 19, s 21
Sentencing Act 1995, s 6, s 7, s 8, s 89, s 91, s 98
Result:
Appeal allowed
Representation:
Counsel:
Applicant: Mr T F Percy QC & Mr W J Chesnutt
Respondent: Mr B Fiannaca
Solicitors:
Applicant: Director of Legal Aid
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Anderson [1981] VR 155; (1980) 2 A Crim R 379
Baumer v The Queen (1988) 166 CLR 51
Bugmy v The Queen (1990) 169 CLR 525
Channon v The Queen (1978) 33 FLR 433; 20 ALR 1
Chester v The Queen (1998) 165 CLR 611
Deakin v The Queen (1984) 58 ALJR 367
Garlett v The Queen [2000] WASCA 72
Hoare v The Queen (1989) 167 CLR 348
Hobby v The Queen, unreported; CCA SCt of WA; Library No 990013; 22 January 1999
Kenneally v The Queen, unreported; CCA SCt of WA; Library No 980284; 27 May 1998
Langridge v The Queen (1996) 17 WAR 346
Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007
Miller v The Queen [1999] WASCA 66
Mitchell v The Queen, unreported; CCA SCt of WA; Library No 980720; 14 December 1998
Mooney v R, unreported; CCA SCt of Vic; 21 June 1978; [1978] Crim LJ 351
Parnis v R (1993) 49 FCR 304; 126 ALR 423
Power v The Queen (1974) 131 CLR 623
R v Aiton (1993) 68 A Crim R 578
R v Allinson (1987) 49 NTR 38
R v Anderson [1981] VR 155
R v Archibald (1989) 40 A Crim R 228
R v Arnold (1991) 56 A Crim R 63
R v Ashdown [1974] Crim LR 130
R v Campbell, unreported; SCt of Vic; 16 November 1987
R v Champion (1992) 64 A Crim R 244
R v Crowley (1991) 55 A Crim R 201
R v Currey [1975] VR 647
R v Denyer [1995] 1 VR 186
R v Dumas [1988] VR 65
R v Engert (1995) 84 A Crim R 67
R v Fahda [1999] NSWCCA 267 (31 August 1999)
R v Harding, unreported; SCt of Vic; 1 August 1988
R v Hodgson (1967) 52 Cr App R 113
R v Iddon & Crocker (1987) 32 A Crim R 315
R v Jarrett (1994) 74 A Crim R 121
R v Jolly (1990) 52 A Crim R 33
R v Kilmartin (1989) 41 A Crim R 22
R v Knight [1989] VR 705
R v Letteri, unreported; CCA SCt of NSW; 18 March 1992
R v Lowe [1997] 2 VR 465
R v Man (1990) 50 A Crim R 79
R v Mitchell [1999] NSW CCA 120, 21 June 1999
R v Morgan & Morgan (1980) 7 A Crim R 146
R v Morrison [1999] 1 Qd R 397
R v Nowell, unreported; CCA SCrt of Vic; 20 November 1987; BC8700446
R v Olbrich (1999) 73 ALJR 1550
R v Pollitt (1990) 51 A Crim R 227
R v Radich [1954] NZLR 86
R v Rushby [1977] 1 NSWLR 594
R v Ryan & Vosmaer [1989] 1 Qd R 188
R v Scognamiglio (1991) 56 A Crim R 81
R v Stone [1988] VR 141
R v Storey [1998] 1 VR 359
R v Taylor, Reed & Minogue, unreported; CCA SCt of Vic; 22 June 1989; BC 8900634
R v Tsiaris [1996] 1 VR 398
R v Von Einem (1985) 38 SASR 207
R v Williscroft [1975] VR 292
R v Wright (1997) 93 A Crim R 48
Reg v Dube & Knowles (1987) 46 SASR 118
Richards v The Queen [1999] WASCA 105
Sherratt v The Queen [2000] WASCA 112
Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998
The Queen v Peterson [1984] WAR 329
The Queen v Shrestha (1991) 173 CLR 48
The Queen v Wong (1995) 16 WAR 219
Thompson v The Queen (1993) 8 WAR 387
Veen v The Queen [No 1] (1979) 143 CLR 458
Veen v The Queen [No 2] (1988) 164 CLR 465; 33 A Crim R 230
Watson v The Queen [2000] WASCA 119
Case(s) also cited:
Australian Coal v Commonwealth (1953) 94 CLR 621
Mitchell v The Queen (1996) 184 CLR 333
Ngoc Hien Bui v The Queen, unreported; CCA SCt of WA; Library No 980271; 22 May 1998
R v Jackson (1989) 39 A Crim R 383
R v Verschuren (1996) 91 A Crim R 1
Re Weng Keong Chan (1989) 38 A Crim R 337
MALCOLM CJ: The applicant was convicted upon his plea of guilty to the wilful murder of his grandmother, Margaret Phyllis Lauritsen. He was sentenced on 12 May 1999 to strict security life imprisonment. The learned sentencing Judge ordered that he serve 27 years of that sentence before being eligible for release on parole.
The first ground of appeal was that:
"The learned sentencing Judge erred in adopting a starting point of 30 years' imprisonment on the non‑parole period, which was manifestly excessive in all the circumstances of the case."
The ground was somewhat inelegantly expressed but the submission was that the adoption of a non‑parole period of 30 years as a starting point for fixing the non‑parole period was to adopt a period which was itself manifestly excessive.
The second ground was that the term of 27 years fixed as the non‑parole period was manifestly excessive because:
"(a)The Learned Sentencing Judge failed to accurately place the offence in the scale of offences of wilful murder;
(b)The finding of the Learned Sentencing Judge that the offence of wilful murder was 'amongst the worst of its sort' was not correct;
(c)The sentence imposed by the Learned Sentencing Judge failed adequately to reflect:
the youth of the applicant;
his psychiatric condition;
the applicant's good antecedents."
The circumstances of the offence were very disturbing. The applicant was the 22 year old grandson of the 67 year old deceased in whose care and accommodation he had spent much time. The murder involved barbaric and lengthy violence that went beyond the horrific murder of a defenceless and innocent elderly woman to the senseless and extensive defilement of her body. Counsel for the applicant conceded that:
"In terms of its sheer brutality, it … ranked at the very highest end of the scale… But the real question, we would say, to be answered by this Court, is where it fell in terms of its criminality..."
The submissions for the applicant concentrated on the effect of the applicant's psychiatric condition on the assessment of the degree of criminal culpability for the offence. Reference was also made to the place in the scale of seriousness that this offence should occupy in comparison with other wilful murder cases in which, it was said, the offenders were more culpable. It was contended that the applicant's mental state, whilst not providing a psychiatric defence to wilful murder, was a mitigating factor which demonstrated that the applicant was not as culpable as completely sane and rational offenders who commit such offences.
The applicant's plea of guilty was a concession by him that his psychiatric condition did not provide a defence under s 27 of the Criminal Code. The question before the sentencing Judge was whether the appropriate sentence was one of life imprisonment simpliciter or strict security life. After submissions had been made on 3 May 1999, the case was adjourned to a special hearing on 6 May 1999 to consider that question. The sentence of strict security life imprisonment was subsequently imposed. Under s 91(1) of the Sentencing Act 1995 the sentencing Judge was required to set a minimum term of at least 20 and not more than 30 years that the offender must serve before being eligible for release on parole.
It was not argued that his Honour erred in his discretion to impose strict security life imprisonment. The appeal was against the length of the minimum term of 27 years' imprisonment before eligibility for release on parole. It was said his Honour erred in beginning with the top end of the range, having regard to the sentences imposed in and the circumstances of other recent wilful murder sentences, and having regard to the circumstances of this case in the light of the applicant's psychiatric condition. It was said that this in turn resulted in a non-parole term being fixed which was manifestly excessive.
Facts
The learned sentencing Judge recounted the relevant facts and circumstances as follows:
"You were born on 4 September 1975. You had an unfortunate childhood and your parents did not look after you. A number of the family, however, did fill that gap and among [them] was your grandmother. I propose to limit my remarks to a period of about 3 years prior to her death. During most of that time you lived with her and she provided you with a home. About a year before her death her daughter, your Aunt Helen, commenced to live in the same house. I'm told that initially things seemed to go quite well, but towards the end of 1997 things started to become difficult because you were drinking and you became angry at members of the family.
[On Christmas afternoon 1997] you told Aunt Dorothy's husband that you intended to kill your grandmother and Helen. Seven [sic: 5] weeks later there was an incident in your grandmother's house which caused you to be arrested.
In the mid-afternoon of 27 January you walked into the loungeroom where your grandmother and Aunt Helen were sitting. You physically attacked Aunt Helen, took hold of her, pushed her into her seat, restrained her. She was terrified. You then threatened her with an axe and the police were called. You were arrested. While in custody you said you were going to kill your aunt with a knife. The police arranged for you to be assessed under the Mental Health Act. The assessment was it was thought that you had a personality disorder, but there were insufficient grounds for you to be committed.
On 11 February 1998 you were convicted in the Court of Petty Sessions at Fremantle of assault and possessing an offensive weapon. … [T]hese were your first two and only previous convictions as I don't intend to refer to traffic offences. From that time onwards you were not permitted to continue to reside at your grandmother's house.
However, another aunt, Aunt Carol, took you into her household at Gosnells. I'm told despite this there were more incidents showing violence on your part. You again made threats against your Aunt Helen, causing your Aunt Carol to ring your grandmother and express concern that you may visit that household. Aunt Carol, in her deposition, refers to the fact of your hostility towards Aunt Helen and your blaming her for your not being able to be at your grandmother's house.
A little later your grandmother and Aunt Helen came to the house where you were living and there was a further incident where you pounded a large concrete brick into the ground saying abusive words in respect of your Aunt Helen. Aunt Carol refers to a further incident where you said to her, 'Auntie Helen will be dead tonight'. I am told that you removed knives from the kitchen and hid them around the house.
You were during this time looking at videos of a very violent nature. In fact, one of the reports refers to the fact that you looked at a video depicting disembowelling. You expressed admiration for the killer in Tasmania [Martin Bryant]. The family were becoming extremely worried about the threats you were making and the fact that knives were disappearing. They were attempting to persuade you to receive psychiatric help.
… [On] the day of the murder, 16 March 1998 [y]ou left [Aunt Carol's] house where you were then living at about 8.30am. It is known that you were at your grandmother's house at 11.20am. She was alone as your Aunt Helen had left for work. The only account I have is your account. You say you came across your grandmother accidentally at the shopping centre and she gave you a lift back to her house.
The violence I am about to describe took place about 4pm. The next known fact is that you had been drinking. The evidence indicates that your blood alcohol level at the time was approximately .143 per cent. You said you bought some Guinness stout and a 4-litre cask of riesling at the shopping centre and the police later found some empty bottles and remains of a cask of riesling.
You say you had lunch at your grandmother's. What is now known as to what occurred a little after 4pm is what the police later saw, what a neighbour heard, together with your descriptions to the police. You attacked her using a lawn edger and possibly a hammer. The lawn edger was in the nature of a small axe with a semicircular head and metal handle, a very vicious weapon.
A neighbour heard what was occurring. At about 4.10pm he heard your grandmother talking in a loud voice but he could not hear what she was saying. He thought this went on for 10 minutes. He heard coming from the lounge room what he described as a crash bang noise as if things were being thrown around the room. He went to investigate and heard loud rock music coming from inside which he knew was music your grandmother did not like. He heard a dragging noise coming from the floor. He then heard her poodle yelp and squeal. It stopped and things were silent.
The police were phoned. The evidence indicates that in the lounge room she was subject to a number of swinging blows. She was then dragged from the lounge room into the hallway. She was then dragged to the foot of her bed where she ended up. Behind the bedroom door there is an area of blood and brain matter, and the evidence showed that at that point there were a considerable number of blows prior to her being dragged to the foot of the bed.
I do not propose to refer to further detail other than to say you attempted to sever her head. The evidence is that she may still have been living when this commenced, but she would not have been conscious. You then disembowelled her. She was by then dead. You handled the contents, taking them out of the body.
At some stage you cut your fingers. You then killed her poodle… The police arrived and you ran from the scene. You ended up at a school where you appeared in a dazed condition. You told a school teacher that you had killed your grandmother. You were then apprehended by the police when you told them what you did."
The applicant was then taken to hospital for medical treatment of the cut to his hand. He made admissions to the police at the hospital. He then participated in a video‑recorded interview with police. He claimed not to remember much of what had occurred. Afterwards he was charged and remanded to Graylands Hospital. There he underwent extensive assessment and treatment.
Psychiatric Reports
There were five psychiatric reports before the sentencing Judge. They primarily addressed whether the applicant was fit to stand trial and whether his mental state would provide a defence under s 27 of the Criminal Code. The reports concluded that, whilst the applicant was not insane and was fit to plead, he suffered some form of mental illness which was difficult to diagnose. There was some inconsistency in the reports, partly on account of misleading information given by the applicant. The most recent report was the second report of Dr Finlay‑Jones dated 30 April 1999, which concluded that the applicant was "now mildly depressed but not psychotic … [although] he may develop psychotic illness in the years to come". The reports also referred to the fact that his biological father, who had committed suicide when the applicant was 15, had suffered schizophrenia, which may be hereditary.
Dr Skerritt's report of 14 April 1998 recounted the applicant's explanation of the offence to him. The applicant had told him that when he was at his grandmother's house he opened the door to his Uncle Adrian. He hated Uncle Adrian because, he said, Adrian had used him as a "whipping post" when he was living with his aunt and Uncle Adrian as a child. The applicant said that on this particular occasion they had argued, his uncle left, his memory lapsed and he came to seeing his grandmother's dead body on the floor. After relating other factors personal to the applicant, including the applicant's violent fantasies and his complaint of being subject to "mind blasts" by people, Dr Skerritt concluded that "paranoid schizophrenia is the most likely diagnosis". He referred to "misidentification syndrome where [the applicant] believed his disliked uncle was disguised as other people in persecuting him."
In a second report of 15 June 1998 after a further assessment on 6 June 1998, Dr Skerritt was "inclined to consider a diagnosis of psychotic depression". He was unable to form a conclusion as to possible defences to the offence. The applicant was on anti-psychotic drugs and manifested commonly associated "extrapyramidal [symptoms], resembling Parkinson's Disease" and depression. He had continued to deny memory of the events surrounding the death of his grandmother. Dr Skerritt concluded tentatively that "his attack on his grandmother was a direct result of a severe psychotic illness probably of a depressive nature."
In an extensive report (undated) to the presiding Magistrate by Dr Komeda, who interviewed and made psychiatric examinations of the applicant over three days from 23 to 25 March 1998, Dr Komeda found that the applicant had been suffering from:
"a chronic functional psychotic illness, namely Delusional Disorder, for at least one year prior to the index offence. His psychotic symptoms significantly impaired his reality judgement and were incorporated in well systematised delusional beliefs which included his family members. These psychotic symptoms contributed to chronic emotional arousal and limited his impulse control."
Dr Komeda said this was further affected by intoxication at the time of the offence and the stress of the anniversary of his father's suicide. Dr Komeda believed his condition met the criteria of "Mental Illness" under s 4 of the Mental Health Act 1998, but that he was fit to plead. The applicant's account to Dr Komeda was also to the effect that he was involved in a dispute with Uncle Adrian and had gaps in his memory. The applicant spoke of "mind blasts", which he said could be directed at him by people including his Uncle Adrian and Aunt Helen. The applicant told Dr Komeda that his grandmother was supportive of him, that she was his "saviour" and that her house was "a heaven" to him. He said alcohol helped him to analyse things and "put a shield around me". He said over the last few years he had been "stuck on a bare rock" and felt like he was "falling into a black hole", losing control of his life and disintegrating. He said that he had to be aggressive in order to "survive another day". He had violent dreams about warfare and killing. Dr Komeda regarded the applicant as suffering from "Delusional Disorder DSM IV 297.1, of persecutory type", but he did not think that a diagnosis of paranoid schizophrenia was justified at that stage without further psychiatric assessment. Dr Komeda also referred to a battery of psychological tests by Mr Patrick O'Connor including WAIS-R, MMPI-2, Rorschach and Intelligence Quotient, which revealed the applicant as a person of superior intellectual functioning, but with:
"… a personality profile [which] reveals a person with severe and long‑term psychological problems most likely due to the development of a psychotic process. His personality profile also shows a person not only with feelings of low self-esteem, but also being extremely suspicious and distrustful of others. His projective testing, including Rorschach test showed a highly disorganised picture consistent with a possibility of a significant mental illness."
Dr Komeda concluded that the applicant's actions in the offence were:
"… determined by his persecutory delusional thoughts about his family members. These distressing thoughts, coupled with the effect of alcohol consumed at the that time, led to increased emotional arousal and loss of destruction impulse control."
A report by Dr Joyce dated 23 April 1999 was directed to the effects of alcohol. Dr Joyce concluded from blood samples and witness accounts that the applicant was "at least moderately affected by alcohol at the time of the offence", such as to impair impulse control and judgment, but not such as to induce automatic behaviour. He said it was unlikely that alcohol could have contributed to any memory loss on the part of the applicant because the applicant remembered immediately after the event what had happened. This was shown by the fact that he described it to police when at the hospital. But the applicant's abuse of alcohol "may have played a role in the evolution of the underlying psychiatric illness".
The report upon which much weight was placed by the sentencing Judge was the second report by Dr Finlay‑Jones dated 30 April 1999, following a further interview with the applicant on 28 April 1999. His first report was dated 13 January 1999. When interviewed before the first report the applicant was being treated with Zuclopenthixol. On that occasion he claimed that the events leading to his grandmother's death involved a fight with his Uncle Adrian in which he was defending himself against Adrian with a spade, until he blacked out. He said he came to and saw his dead grandmother. He also reported that on other occasions he heard voices and feared that people and his family were trying to kill him. He reported getting "mind blasts", which he described as "shots" or "balls of energy" through his brain that confused and disoriented him. He said that he believed that people could project these onto him by concentrating their will on him. Dr Finlay‑Jones referred to what he considered to be the "salient elements" of the applicant's history, including his father's schizophrenia and suicide; the date of the offence being the anniversary of that suicide; abuse at the hands of his uncle; his use of drugs and alcohol; and the suggestions of delusions. Dr Finlay‑Jones did not accept that the applicant believed he was fighting Uncle Adrian at the time he killed his grandmother, but said that it was "highly possible that he suffers a psychotic illness such as paranoid schizophrenia or psychosis", and that he may have experienced delusions and paranoia. He considered this may have made the applicant more "vulnerable to over-reacting to fairly ordinary stresses". In his opinion:
"[P]eople suffering from a psychosis do kill more often than coincidence, but often there is not necessarily a clear link with delusions and hallucinations. A popular view now among English forensic psychiatrists is that patients with schizophrenia commit homicides because they are driven by delusions and hallucinations, but my experience is that their illness seems to be more of an indirect influence. They seem to be made vulnerable by their illness to over-reacting to fairly ordinary stresses, i.e. their illness acts in the same way as drug intoxication does."
Dr Finlay-Jones' second report came to a different conclusion from that in his first report. The applicant was no longer heavily medicated, but was on anti-depressant drugs at a dosage of 450mg/day. The applicant reported that he had hit his grandmother with an edging tool that he had got from the garden shed or his bedroom. He said this was after his grandmother had told him he should never have been born and should hang himself like his father did. He said he did not remember hitting her, but remembered seeing her slump at her chair and then him dragging her into her bedroom. He remembered cutting her down her side, and cutting his own hand in the process. He remembered cleaning the floor in the passageway. He said he wanted to wait for his Aunt Helen to come home and kill her too, but "I just lost it. My mind just dissolved. I just started panicking". He said he made up the story about hitting Adrian "because I was in a lot of trouble, I needed a defence. I am still intending to say [in Court] that I was angry with her, but I went blank and I did not mean to kill her".
Discussing his condition generally, Dr Finlay-Jones reported that the applicant said he left his job because "creepy guys were hanging shit on me". He related his feelings of violence towards people who "messed with" him, including his Uncle Adrian and people at work and at school. He mentioned his abuse of alcohol and cannabis and experiencing "mind blasts" from people including Aunt Helen. Dr Finlay‑Jones concluded that the applicant was:
"… now mildly depressed, but not psychotic… There was stronger evidence this time of a long standing preoccupation with violence, and of the likely role of anger in the alleged offence. He still seems very odd mentally, and he may develop a psychotic illness in the years to come. However, I am more convinced than I was after the first interview that he does not have a psychiatric defence to his current charge."
Frenzy or deliberation
The learned sentencing Judge referred to the applicant's explanation that the offence resulted from a "triggering factor" which caused the frenzied attack. The applicant said the trigger was his grandmother saying to him that he was a drunkard like his father, that he should never have been born, and that he should kill himself like his father did. The sentencing Judge said:
"Even if all you say had been said by your grandmother it would provide no excuse or mitigation".
Counsel for the applicant said this was not a defence of provocation in the legal sense, but an explanation which should have been taken into account in mitigation.
The learned Judge referred to what he considered to be the relevant factors militating against this case being considered as a frenzied attack brought on by a trigger factor:
"Thoughts of killing had long been - had earlier been present in your mind. You were living at Gosnells and it would not be expected that you would go to Kwinana to shop and meet your grandmother by chance. You must have gone somewhere to obtain the lawn edger and bring it back into the lounge room. The moving of the deceased from the lounge room to the places I have mentioned and your actions at those places shows deliberation."
Counsel for the applicant submitted that his Honour erred in finding deliberation on the part of the applicant. In particular, it was said that the learned Judge erred in finding that the applicant went to the shopping centre with the intention of killing his grandmother. That was not the Crown case. The learned sentencing Judge did not expressly find that the applicant went to the shopping centre intending to kill his grandmother. However, the quoted portion of the sentencing remarks does read as though his Honour treated the applicant's going to the shopping centre, together with those other actions referred to, as evidence of "deliberation". This in turn was evidence against the attack being a spontaneous and frenzied one and was therefore an aggravating factor. To the extent that his Honour did treat the applicant's going to be shopping centre as indicative of deliberation, there was, in my respectful opinion, an error because that was not the Crown case. Indeed, for that to be treated as an aggravating factor it would need to be established beyond reasonable doubt. Facts in aggravation which would increase the sentence otherwise applicable must be established beyond reasonable doubt, but facts in mitigation which would reduce an otherwise appropriate penalty must be established on the balance of probabilities: see Langridge v The Queen (1996) 17 WAR 346; R v Olbrich (1999) 73 ALJR 1550; Miller v The Queen [1999] WASCA 66; R v Storey [1998] 1 VR 359; R v Morrison [1999] 1 Qd R 397; and The Queen v Wong (1995) 16 WAR 219.
His Honour also referred to the way in which the offence had been carried out, which was not disputed by the applicant, as indicating "deliberation". The learned Judge went on to say:
"There is no need to consider the matter further because even if it all occurred in the way you now say it would still be a wilful murder amongst the worst of the sort."
His Honour referred to the "savageness of the attack", the victim's "awareness of what was to befall her", as evidenced by the defensive wounds she had on her hands and forearms, the desecration of her body, and the killing of her dog. He said these factors outweighed the mitigating factors so that a sentence of strict security life imprisonment was warranted.
In setting the non-parole period the learned sentencing Judge took into account that the applicant, who was 22 years of age, was a young man, "but not a youth". His Honour said: "[a]ny person of the age of 22 must know how wrong the acts were". He referred to the psychiatric reports, saying that the earlier ones were of little use because of the misinformation that the applicant had given. His Honour went on:
"The final report refers to depression. The information in the report and what I have heard of your earlier state of mind would not be a sufficient mitigating factor to reduce the sentence … [and] cannot account for or in any way reduce your culpability for the extreme violence you inflicted on an elderly person for the purposes of ending her life." (emphasis added)
Danger to Family and Community
In setting the minimum term his Honour said that the dominant factor was that the applicant posed an "extreme and dangerous threat to members of your family and the community". In arriving at that conclusion his Honour referred to other threats to kill by the applicant and statements to other people, including members of his family, the police and psychiatrists, of his intention to kill his Aunt Helen and other people. When the applicant was arrested after the murder of his grandmother, he told the police that they were lucky that they had caught him because he intended to go around killing more people. The learned Judge also referred to prior violent episodes and behaviour showing an "unnatural preoccupation with violence and killing"; the applicant's acting out what he had seen in a violent video movie; the fact that he kept a knife in the bag which he carried with him; and the fact that he hid knives around his Aunt Carol's house when he stayed there.
The ongoing fear amongst the victim's family of the applicant was clear from their victim impact statements. The learned sentencing Judge concluded:
"The danger which you present is a dominant factor. I weighed up your preoccupation with violence and killing, combined with the very acts that you are capable of doing when you did this to your grandmother, combined with your expressed intention in respect of your Aunt Helen."
His Honour considered that it was "unreal to talk of remorse in circumstances such as this". He referred to the false accounts that the applicant had given to the psychiatrists and the fact that the guilty plea came late, namely a day before the commencement of the trial. Consequently, the witnesses had the thought of giving evidence hanging over them until then.
Effect of psychiatric illness on sentencing
This appeal concerns the relevance and impact of the applicant's mental illness on his sentence in the context of fixing the non‑parole period where strict security life imprisonment has been imposed. It is unfortunate that the psychiatric reports before the learned sentencing Judge were not directed to that question. There were no Pre‑sentence Reports. The reports addressed the question of the possible existence of a defence under s 27 of the Criminal Code and the applicant's fitness to plead. They made little, if any, prognosis for rehabilitation. What is significant for the present purposes is that they report that the applicant was suffering from some form of mental illness. There were differences of opinion and diagnosis, partly on account of the applicant's confabulations in some of his explanations of the offence. In cases involving mentally ill offenders, both confabulations by, and differences in diagnosis of, the offender are common. Although it is impossible for this Court to determine with any certainty what precise condition the applicant suffered from at the time of the offence, clearly it was more than a "mere personality disorder": cf R v Arnold (1991) 56 A Crim R 63 at 72 per Ipp J. In my opinion, with great respect to the learned sentencing Judge, his Honour appears to have understated the extent and effect of the applicant's medical condition and to have erred in his assessment of its impact on the applicant's culpability. To the extent that the medical condition of the applicant explained or contributed to the offence, his moral culpability was not as great as it might have been if he were not thus afflicted. As against that, the condition may indicate a risk of re-offending. In other words, the effect of the condition on the sentence can be argued both ways.
The applicant's counsel contended that the diagnoses were consistent in attributing the applicant's actions, at least in part, to his mental illness, showing reduced culpability and justifying a more lenient sentence. Conversely, while the Crown conceded that the applicant was obviously "a very disturbed young man", it was submitted that "[t]his was a case in which any mitigation afforded by the applicant's mental abnormality was counter-balanced by the danger he posed". Reference was made to Veen v The Queen [No 2] (1988) 164 CLR 465; 33 A Crim R 230, per Mason CJ, Brennan, Dawson and Toohey JJ at CLR 476—477; A Crim R at 237 - 238.
Sentencing typically involves balancing conflicting considerations, aggravating and mitigating factors, including matters personal to the offender, and the interests of the community in justice, safety and good order. The presence or absence of any particular factor does not produce automatic sentencing consequences. The sentencing Judge is required to exercise a discretion in furtherance of the objectives of sentencing having regard to the particularities of the case at hand: see R v Engert (1995) 84 A Crim R 67 at 78 per Gleeson CJ. The established objectives of sentencing "are protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform": Veen [No 2] at 476.
There were two components to the sentence imposed in this case: the mandatory "head sentence" of strict security life imprisonment and the non‑parole period of not more than 30 nor less than 20 years.
Whether to make an order that the offender be eligible for parole and after what period they should be eligible are matters of judicial discretion. Section 89 of the Sentencing Act provides:
"(1)A court sentencing an offender to one or more fixed terms may, if it considers that it is appropriate to do so, order that the offender be eligible for parole by making a parole eligibility order.
(2)In determining whether it is appropriate to make a parole eligibility order, a court may have regard to all or any of the following:
(a)the seriousness and nature of the offence;
(b)the circumstances of the commission of the offence;
(c)the offender's antecedents;
(d)circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made;
(e)any other reason the court decides is relevant."
In the present case s 89 has no express application because the sentence of strict security life imprisonment is not a fixed term for the purpose of s 89. It is apparent, however, that the factors relevant to determining whether it is appropriate to make a parole eligibility order as set out in s 89(2) would also have some relevance to determining the length of a non‑parole period under s 91(1) of the Sentencing Act. In the context of consideration of the seriousness, nature and circumstances of the offence and its commission, any aggravating or mitigating factors as referred to in s 6, s 7 and s 8 of the Sentencing Act would also be relevant, particularly when assessing the applicant's criminal culpability for the offence.
Proportionality and protection of the community
These basic legislative provisions have been supplemented by the principles and objectives of sentencing established in the cases. Although, as Brennan J said in Channon v The Queen (1978) 33 FLR 433 at 437; 20 ALR 1 at 5 (see also FLR 442; ALR 6), the "necessary and ultimate justification for criminal sanctions is the protection of society", the over‑arching principle governing sentencing is proportionality. In Hoare v The Queen (1989) 167 CLR 348 at 354, the High Court comprising Mason CJ, Deane, Dawson, Toohey and McHugh JJ said:
"… a basic principle of sentencing law is that a sentence of imprisonment … should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen … [No. 2]." (emphasis in original)
Seriousness or gravity in this context is measured by the culpability of the offender and the harm done by his or her offence.
It is firmly established law that the principle of proportionality in sentencing would be offended by the imposition of a sentence more severe than is warranted by the seriousness of the offence, even where imposing the disproportionate sentence is in order to achieve protection of society: Veen v The Queen [No 1] (1979) 143 CLR 458; Veen v The Queen [No 2] at 472 per Mason CJ, Brennan, Dawson and Toohey JJ (the majority); at 485 - 486 per Wilson J; 490 – 491 per Deane J; and 496 per Gaudron J; Chester v The Queen (1998) 165 CLR 611 at 618; Baumer v The Queen (1988) 166 CLR 51 at 58; Hoare v The Queen, supra; Bugmy v The Queen (1990) 169 CLR 525. See also Professors Fox and Freiberg, in Sentencing - State and Federal Law in Victoria (2nd ed, 1999) ("Fox and Freiberg") at 293 - 294 and the authorities and articles cited there.
In contrast to these cases are cases which have stressed that matters personal to the offender ordinarily must be of subsidiary importance to the need to protect the public: R v Williscroft [1975] VR 292 at 298; R v Radich [1954] NZLR 86 at 87; R v Rushby [1977] 1 NSWLR 594 at 597 - 598. However, these cases precede Veen [No 1].
The statutory exception in s 98(3) of the Sentencing Act to the proscription against disproprotionate sentences is where the legislature has clearly expressed an intention that the court shall have power to impose a disproportionate sentence where the circumstances would justify the imposition of an indefinite sentence. This power should only be exercised in exceptional circumstances and is not applicable in this case. In Victoria there is similar provision in Part 2A of the Sentencing Act 1991 (Vic) which empowers a court to impose disproportionately long sentences if protection of the community warrants it. In England disproportionate sentences have been sanctioned because, first, they are suitable in cases where the offender has proved to be a recalcitrant offender and an intractable danger to the community and, secondly, there is provision for earlier release pursuant to an order of the Home Secretary: R v Ashdown [1974] Crim LR 130 at 133; R v Hodgson (1967) 52 Cr App R 113. See the discussion of this in Veen [No 1] at 473 - 477 per Jacobs J and in Veen [No 2] at 472 - 474 per the majority.
The leading Australian case in this area is Veen [No 2]. There an application by a 28‑year‑old brain damaged offender for leave to appeal against a sentence of life imprisonment was refused by the High Court on the basis that the seriousness of the offence warranted a life sentence. The proportionality of the sentence to the offence had to be assessed in the light of the applicant's mental condition and history of serious offences of violence. He came from a deprived background that included working as a prostitute. His victim had invited him home for sex. For no apparent reason he killed the victim by stabbing him many times. The Crown accepted the lesser plea to manslaughter on the ground of diminished responsibility. As a juvenile he was convicted for malicious wounding after he stabbed his landlady several times. Some 8 years prior to the index offence he had been convicted and sentenced to life imprisonment for manslaughter, also after a violent stabbing murder, which was also associated with a homosexual engagement. He was then 20 years old. On that occasion the jury had found him guilty of the lesser offence of manslaughter on the grounds of diminished responsibility due to his mentally retarded state. Upon appeal to the High Court his sentence was reduced to 12 years' imprisonment by a majority decision: Veen [No 1] (Mason and Aicken JJ dissenting). In Veen [No 2] the majority held that, having regard to the "objective circumstances" of the second homocide, namely its serious nature, the culpability and dangerousness of the offender reflected by that offence, his previous conduct and his mental condition, the life sentence was not disproportionate to the crime. Their Honours said at 473:
"It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible."
The majority remarked at 476 that sentencing is not a science and is "not a purely logical exercise". Their Honours went on:
"… and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment… The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality."
The particular difficulty of sentencing mentally ill offenders has often been remarked on. For example, in Channon v The Queen (1978) 20 ALR 1 at 4 - 5; 33 FLR 433 at 436 - 437 Brennan J commented:
"The difficulty arises in part because the factors which affect the sentencing give differing significance to an offender's psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is severe."
Similarly, in Engert, supra, at 71 Gleeson CJ (with whom Allen and Sully JJ agreed) said:
"The existence of such a causal relationship [between the mental disorder and the commission of the offence] in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence. … For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system."
Deterrence and punishment
While general and personal deterrence are important sentencing objectives, it is as well to bear in mind their limitations. See, for example, The Queen v Peterson [1984] WAR 329 at 332 per Burt CJ and R v Ryan & Vosmaer [1989] 1 Qd R 188 at 190 per Carter J; and at 191 per Dowsett J where doubts were expressed about the deterrent value of increasing penalties. Yet, as King CJ said in Reg v Dube & Knowles (1987) 46 SASR 118 at 120, "courts have to make the assumption that the punishments they impose operate as a deterrent".
The special way in which considerations of deterrence and punishment are approached in relation to mentally ill or impaired offenders has been the subject of much judicial and academic discussion. Young CJ said in Mooney v R, unreported; CCA SCt of Vic; 21 June 1978; [1978] Crim LJ 351 (extracted in Anderson [1981] VR 155 at 160; (1980) 2 A Crim R 379 at 384):
"General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. The mental condition of an offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than whether the offender's responsibility for the offence should be regarded as having been reduced."
See also Engert, supra, at 68 per Gleeson CJ. In R v Wright (1997) 93 A Crim R 48 at 50 - 51, Hunt CJ at CL said:
"It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is the not the appropriate medium for making an example to others. In most of the cases in which that principle is applied, the offender has suffered from a significant mental illness or retardation, but such a condition is not a necessary condition for the principle to be applied. Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great."
As Hunt CJ at CL pointed out, just as the existence of mental illness affects considerations of deterrence so it will affect the need for punishment. To the extent that a mental illness contributed to or explains the offence and thereby reduces the offender's culpability, the need for punishment is reduced. However, as is seen from the authorities referred to above, whether that results in a reduced sentence is a separate question, the answer to which depends on balancing all the objectives of sentencing, including the countervailing considerations of protection of the community, in the particular circumstances of this case.
R v Fahda [1999] NSWCCA 267 (31 August 1999) is an illustration of the application of these principles. The applicant sought leave to appeal against a sentence of 7 years' imprisonment with a non‑parole term of 4 years which was imposed for unlawful wounding with intent to do grievous bodily harm. The conviction followed a brutal attack by the offender on his wife where he struck her on her head with a heavy pan, stabbed her several times and attempted to strangle her. He said he believed that his wife had been unfaithful. The night before she had rejected his sexual advances. He gave inconsistent and disbelieved accounts of the incident including one that his wife had initiated the attack.
Medical evidence was adduced to the effect that at the time of the assault the offender was suffering "pathological jealousy syndrome" associated with psychotic depression. The psychiatric reports considered that the applicant's condition was treatable and that he was not an ongoing risk to the community or to any particular person. The trial Judge, however, found that the seriousness of the offence warranted a more severe sentence. Although he did not consider that the questions of general and personal deterrence cancelled out the psychiatric considerations, it was held on appeal that he did not give sufficient weight to the latter considerations. Simpson J (with whom Studdert J agreed) held at [6] that because of the offender's mental illness, less weight should have been attached to the requirements of personal and general deterrence, and that because he was not assessed to be an ongoing risk, his sentence should be reduced to one of 5 years' imprisonment with a non‑parole term of 2‑1/2 years. In arriving at that conclusion her Honour referred to the following authorities on the effect of an offender's mental illness on sentencing: R v Wright, supra; R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri, unreported; CCA SCt of NSW; 18 March 1992; R v Engert, supra; R v Champion (1992) 64 A Crim R 244; R v Mooney, supra; R v Anderson [1981] VR 155 at 160 – 161; (1980) 2 A Crim R 379; R v Kilmartin (1989) 41 A Crim R 22; and R v Man (1990) 50 A Crim R 79. See also Parnis v R (1993) 49 FCR 304; 126 ALR 423 at 425; R v Dumas [1988] VR 65 at 72 and Richards v The Queen [1999] WASCA 105 at [44] per Pidgeon J.
In Watson v The Queen [2000] WASCA 119 at [88], after referring to the quoted passage of Hunt CJ at CL in R v Wright, I said:
"Likewise, while the presence of psychiatric or psychological factors can be an important sentencing factor, the mere existence of a condition is not of itself sufficient. It must be shown that it contributed to the commission of the offence or that its existence reduced moral culpability of the offender: Miller v R [1999] WASCA 66 per Pidgeon J at [23]."
Those comments were made in a case where it was submitted that the sentencing Judge had failed to give sufficient weight to the offender's mental condition as a mitigating factor which reduced culpability. As Gleeson CJ pointed out in Engert, supra, at 71:
"… there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system."
Hence mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of imposition of a sentence which exceeds the seriousness of the offence. This was also stated in R v Tsiaris [1996] 1 VR 398 which was referred to by Steytler J in Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998. See also Miller v The Queen [1999] WASCA 66 at [26] per Pidgeon J. In Symonds at 9 Steytler J referred to two cases as follows:
"In the first of these, R v Tsiaras [1996] 1 VR 398, the Victorian Court of Appeal, comprising Charles and Callaway JJA and Vincent AJA said, at 400, that:
'Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.'
In the second case, R v Lippiatt, unreported, CCA SCt of WA; Library No 980065; 17 February 1998, the Western Australian Court of Criminal Appeal (Kennedy, Franklyn and Ipp JJ) said, at 10, that while mental illness has been held to have a limited mitigatory effect in cases in which imprisonment will be harder to bear because of that illness it was open to argument whether the wider approach in R v Tsiaras should be followed in this State. …"
In Symonds the applicant had committed three sexual offences against a 19 year old complainant whom he had also unlawfully detained. Physical violence was used. There was psychiatric evidence that the applicant was suffering from major depression. He had been subject to treatment and the psychiatrist was of the opinion "with reasonable medical certainty" that the applicant was unlikely to re-offend. Steytler J concluded:
"While it might be so that a serious psychiatric illness might reduce the moral culpability of an offender there is nothing in the evidence in this case to suggest that the applicant's depression had any marked effect on his moral culpability so far as his commission of these offences was concerned or that it was or is such that it should have any significant impact on ordinary principles of general deterrence."
As observed above, the required level of demonstration of the mitigatory impact of a mental illness in any case is on the balance of probabilities.
Fox and Freiberg at 293 - 294 provide a convenient summary of the law in Victoria, which, in my view, is substantially consistent with this State and the authorities to which I have referred in these reasons. The learned authors show that, first, mental disorder may reduce culpability so as to affect punishment. Secondly, it affects the weight to be accorded to deterrence, whether general or personal. Thirdly, it may affect the kind of sentence which is imposed. Finally, it may mean that the sentence imposed may weigh more heavily upon the offender than upon a normal prisoner. As Steytler J remarked in Symonds, it is open to question whether this last point represents the law in this State, but it is not necessary to decide the question here.
Reform and parole eligibility
Setting the non-parole component of the sentence involves the same considerations as, but with a different emphasis from, those relating to fixing the head sentence. In R v Morgan & Morgan (1980) 7 A Crim R 146 at 155, Jenkinson J said:
"[T]he minimum [or non-parole] term is fixed by reference to both misericordious and utilitarian considerations. Nor is the minimum term fixed without regard to all those other interests of the community which imprisonment of offenders is designed to serve. … They will be considered again when the minimum term is being fixed, when they will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice."
The relationship between the two components of the sentence is important. The head sentence marks the community's view of the seriousness of the crime. The non‑parole period is set as the minimum period needed to serve the punitive and deterrent objectives of the sentence, and that which must be served before the offender is eligible to be considered by the Parole Board for release to complete his sentence and rehabilitation under conditional freedom in the community. In short, the non-parole term should reflect the seriousness of the offence, the need for deterrence and punishment, and the offender's prospects for rehabilitation. The objectives of parole are to lessen the burden on the offender, recognise that the offender will eventually be released and provide for rehabilitation under supervision to promote greater self‑determination and the development of social skills: Thompson v The Queen (1993) 8 WAR 387; Bugmy v The Queen (1990) 169 CLR 525 at 531 - 533 per Mason CJ and McHugh J; and at 536 - 538 per Dawson, Toohey and Gaudron JJ; R v Denyer [1995] 1 VR 186 at 193-194 per Crockett J, at 195-196 per Southwell J; Power v The Queen (1974) 131 CLR 623 at 628 - 629 per Barwick CJ, Menzies, Stephen and Mason JJ; The Queen v Shrestha (1991) 173 CLR 48.
While s 89 of the Sentencing Act does not expressly apply to this case, the factors referred to in that section are clearly relevant. Having regard to s 89, the factors to be taken into account in setting a minimum term of a strict security life sentence are: (i) the seriousness of the offence; (ii) the culpability of the offender; (iii) the antecedents of the offender; (iv) the age and life span of the offender; (v) the possibility of reform or repentance; (vi) the danger the offender poses to the community; (vii) judicial compassion; and (viii) any other matters relevant to release on parole.
In my opinion the following passage by Black CJ, Foster and Higgins JJ in Parnis v R (1993) 49 FCR 304 at 307; 126 ALR 423 at 425 - 426 is apposite to the present case and has much to commend it:
"We consider that consistently with the principle we have discussed [of giving less weight to deterrence in cases of mentally ill offenders], but having regard to the serious nature of the offences and the general need that they be deterred, the appropriate place for the mental condition to be balanced against the need for deterrence is in the fixing of the non-parole period… [W]e would impose a head sentence of the same magnitude as that previously imposed, but with regard to the non-parole period we would take into account the contribution which the appellant's mental condition at the time of the offences made to their commission and also the effect of that condition in relation to the serving of the sentence of imprisonment…"
The court also made recommendations for the offender to be "given all possible psychiatric assistance".
In Dumas, supra, it was held that the trial judge had not departed from the principle that the punishment be proportionate to the crime when he imposed a life sentence with non‑parole term of 18 years, even though the offender suffered a mental disorder. That was because the deliberate and gross nature of the offence indicated that the mental disorder constituted, or contributed to, the future danger that the offender presented. The offender, who had a history of psychiatric illness, gagged and handcuffed the victim then shot her with a cross bow. While she was dying he sexually assaulted her. After she had died he stabbed her several times. Their Honours said at 70:
"… cases of violent and serious crime in which the convicted person is demonstrated to have a propensity and it is likely that if released he will continue to commit such crimes, a sentence of life imprisonment will rarely if ever be disproportionate to the crime."
Significantly, their Honours added:
"This is particularly so having regard to the power of the Court, which was exercised, to fix a minimum term. The sentence of imprisonment cannot be viewed on its own. It must be viewed in the light of the fact that after the applicant has served the minimum term [of 18 years] it will be open to the relevant authorities, at present the Parole Board, to release him on parole and to impose whatever conditions seem to the Board to be appropriate by way of further treatment and supervision." (emphasis added)
In my opinion there is force to this reasoning on the relationship between the two components of a sentence. Although there are two components to a sentence, there is only one sentence which must be considered as a whole: Power v The Queen (1974) 131 CLR 623 at 628 - 629 per Barwick CJ, Menzies, Stephen and Mason JJ. Consequently, just as the ordering of parole eligibility may make appropriate a sentence which might otherwise be perceived to be excessive, an excessive or inadequate non-parole period may render a sentence excessive or inadequate and therefore justify the interference of a court of appeal. R v Iddon & Crocker (1987) 32 A Crim R 315 at 325-328 per Crocket, Murray and Hampel JJ; R v Von Einem (1985) 38 SASR 207 at 218 - 221 per King CJ; R v Jarrett (1994) 74 A Crim R 121 at 123 per Mohr J and at 124 per Debelle J; R v Denyer [1995] 1 VR 186 at 193-194; (1994) 74 A Crim R 47 at 54-55 per Crockett J. Making reference to these cases, Fox and Freiberg say at 877:
"[C]ombining a head sentence of life imprisonment with a substantial non-parole period represents a compromise between the desire of the community to retain the most severe penalty short of capital punishment while still recognising that most offenders can and should be returned to the community after an appropriate period of time."
Although these authorities are concerned with indeterminate life sentences, in my opinion the principles apply equally here. The High Court has said that the more severe a sentence, the greater becomes the importance of setting a non-parole period: Deakin v The Queen (1984) 58 ALJR 367.
Prognosis
In Thompson v The Queen (1993) 8 WAR 387 at 396 it was said by the Court comprising Malcolm CJ, Pidgeon and Owen JJ that the matters raised by the equivalent to s 89(2)(d) of the Sentencing Act (set out above) required:
"… the sentencing judge to prognosticate circumstances which might be relevant to the offender at the time when he or she would be eligible for release, thus recognising the relationship between punishment of the offender on the one hand and the need to consider factors leading to the offender's rehabilitation on the other - Archibald v R (1989) 40 A Crim R 228 at 233 - 234 per Wallace J."
The purpose of the prognosis is to enable some preliminary consideration of the question whether in terms of rehabilitation of the offender, he or she is likely to benefit from serving the relevant portion of the sentence under supervision in the community: R v Archibald (1989) 40 A Crim R 228 per Malcolm CJ at 230. However, as stressed by Young CJ in R v Currey [1975] VR 647 at 650, in setting parole eligibility the court is not concerned with the offender's suitability for release on parole, but whether and at what stage the offender should be eligible for parole. The prognistic considerations and the bearing of the offender's antecedents, particularly the prior commission of similar offences, on those considerations were stated in Garlett v The Queen [2000] WASCA 72 at [94] by Anderson J (with whom Pidgeon J agreed) as follows:
"[Section] 89(2) of the Sentencing Act, which enumerates the matters to which a court may have regard in considering whether to make a parole eligibility order, … go to the question whether the proper sentence which has been imposed should be mitigated in favour of rehabilitation. … One of the most important and difficult tasks for the sentencing Judge has always been to estimate the capacity of the prisoner for reformation: Power v The Queen (1974) 131 CLR 623 at 629. … The nature of the offences and the antecedent character of the prisoner who committed them are obviously very important matters and must weigh heavily with the sentencing court in deciding whether the sentence must be served without the benefit of parole."
Garlett concerned an application for leave to appeal against a refusal to make a parole eligibility order and against the imposition of an indefinite sentence imposed under s 98 of the Sentencing Act. The offender had a horrendous record for violent sexual crimes against women. The psychiatric evidence was to the effect that he suffered depression and harboured a pathological hatred of women, which manifested itself in violence against them at times when he was suffering emotional turmoil. Pidgeon and Anderson JJ held that regard could be had to the offender's conduct in committing the index offences and to his or her past actions in making a prognostication as to their future likely risk. Anderson J refused the applications because of the applicant's "long record of persistent offending, [which was] strongly indicative of an entrenched criminality": [103]. There were four previous sentences of imprisonment and many instances of offending whilst under conditional release "indicating that neither punishment nor the constraint of conditional release has been sufficient to curb his disposition to commit serious offences": [103]. The offences for which he was given an indefinite sentence were committed while he was on parole for other offending and involved aggravated sexual penetration of six separate women aged from 15 to 48 years in their homes at night over a period of three and a half years.
In Veen [No 2] at 474 - 475 the majority reiterated that where the offender's antecedents and mental illness demonstrate a significant risk of recidivism, this is a relevant sentencing factor. At 474 their Honours referred to the following passage in the judgment of Jacobs J in Veen [No 1] at 489:
"[I]n the great majority of cases where mental disorder has been treated not as mitigation but as a reinforcement of the need for the longest permissible sentence, the psychiatric evidence, frequently accompanied by a substantial and more or less prolonged confirmatory history, was overwhelming and most frequently unanimous that there was a present abnormal mental condition of a severe kind." (emphasis added)
In Veen [No 2] at 477 the majority said:
"[T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence… [It] is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders…"
What distinguishes the present case from cases such as Veen and Garlett are, inter alia, the following: first, those offenders had significant prior histories of violent offences indicating entrenched and recalcitrant criminality; secondly, they had served prior terms of imprisonment which had failed to result in rehabilitation and what treatment they had received had proven unsuccessful in resolving their psychiatric illnesses; thirdly, they were older than the present applicant. Whilst the applicant does have one prior conviction arising out of a threat to his Aunt Helen with a wood splitting axe about six weeks before the index offence, he received a summary conviction and no treatment. Indeed, it would appear that the applicant received no significant medical or psychiatric treatment for his condition prior to the index offence.
In the present case, the horror of the offence itself inclines toward a lengthy non‑parole term. As against that, seriousness is a matter not only of the grossness, effect or impact of the offence, but also the culpability of the offender. As I have said, in my opinion, this applicant had a diminished responsibility on account of his mental illness. There is also the fact of his relative youth at age 22. For young offenders rehabilitation is an important consideration.
There are obvious difficulties and dangers in reaching any conclusion at this stage that the applicant is beyond reform or treatment, even when relying on psychiatric or other expert opinions: see Bugmy, supra, at 537; Denyer, supra, at 194 per Crockett J and at 196 per Southwell J; Fox and Freiberg at 218. It has not been conclusively shown, either by medical evidence or the applicant's track record, that he is beyond reform and cannot be treated. It is for exactly that reason that parole eligibility must be ordered, so that the authorities can make the proper assessment at the time. There are clearly grave difficulties for a sentencing Judge endeavouring to assess the possibility of rehabilitation in 20 to 30 years' time. The possibility cannot be discounted, but before releasing the applicant on parole the Parole Board would need to be satisfied at the relevant time, no doubt having made reference to contemporary psychiatric opinion and advice, that the prospects of rehabilitation and the need of the community for protection were such as not to justify continuing detention.
Other cases
Regarding references to other cases, two principles need to be balanced. On the one hand, "uniformity of sentencing is a matter of importance": Bugmy, supra, at 538. On the other hand, there is an important need for flexibility in the application of sentencing principles to the particular circumstances of a particular case: Engert, supra, at 70 - 71 per Gleeson CJ. The crime of wilful murder is of the utmost gravity, but particular murders vary in gravity and sentences must take into account the particular circumstances. Courts are justifiably cautious and reticent in definitively categorising the offence of murder, but broad categories are said to exist, for example by Fox and Freiberg. They refer at 876 - 883 to an inexhaustive list of types of cases which fall into the worst category, including murders in the following circumstances: terrorist attacks on the state, law enforcement or government (R v Taylor, Reed & Minogue, unreported; CCA SCt of Vic; 22 June 1989; BC 8900634: car bomb detonated outside police headquarters causing death: life/28 years minimum; R v Nowell, unreported; CCA SCrt of Vic; 20 November 1987; BC8700446: murder of policeman: 30 years/18 years minimum); sadistic, depraved killings, especially those involving sexual offences and/or children (R v Lowe [1997] 2 VR 465: life/no parole; R v Stone [1988] VR 141: life/22 years minimum; R v Dumas, supra, life/18 years minimum; R v Harding, unreported; SCt of Vic; 1 August 1988: sexual assault and murder of 3 year old girl: life/14 years minimum; R v Aiton (1993) 68 A Crim R 578: prolonged battery and reckless murder of 2 year old boy: 22 years/18 years minimum; Von Einem, supra, sexual torture and murder of 14 year old boy: life/24 years minimum); indiscriminate killing of a number of people (R v Knight [1989] VR 705: life/27 years minimum); killing of crown witnesses (R v Crowley (1991) 55 A Crim R 201: 36 years/24 years minimum with a previous sentence); and contract killing (R v Pollitt (1990) 51 A Crim R 227: life/18 years minimum; R v Campbell, unreported; SCt of Vic; 16 November 1987; R v Jolly (1990) 52 A Crim R 33: life/14 years minimum).
Counsel for the applicant gave a similar list of what he said were worse cases than the present one: murders involving multiple victims; attempting to pervert the course of justice by killing a Crown witness (Hobby v The Queen, unreported; CCA SCt of WA; Library No 990013; 22 January 1999); involving others in doing so; where the killing is accompanied by savage sexual assaults (Kenneally v The Queen, unreported; CCA SCt of WA; Library No 980284; 27 May 1998; Mitchell v The Queen, unreported; CCA SCt of WA; Library No 980720; 14 December 1998). In these cases the offences were committed by a person with all their faculties. Counsel said that the applicant, being a 22 year old with a mental illness, had a justifiable grievance at being given a longer term than such offenders.
Other cases do not lay down any tariff and, although providing a useful guide to the collective wisdom of judges and general trends in sentencing, they are only of general assistance: R v Allinson (1987) 49 NTR 38 at 40 per Kearney J. There is not a great deal to be gained by saying "this case is not as bad as that one". It is a question of a category and, because those which would otherwise justify strict security life imprisonment open up the possibility of a minimum sentence to be served before eligibility for parole between 20 and 30 years, they are within that category to be ranked in terms of eligibility for parole. While this was one of the worst cases of its kind, it was contended that it would be unjust to deprive the applicant of the opportunity to be considered for parole until after the expiration of 27 years when he will be 49 years of age.
Conclusion
In Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007, the High Court affirmed the established principle that an appeal court may not substitute a different sentence for that of the sentencing Judge merely because the appellate court holds a different opinion on the appropriate sentence. There needs to be a demonstrable error by the sentencing Judge before the sentence will be interfered with: see s 689(3) of the Criminal Code. At [14] – [15]; 1010, the High Court comprised of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said:
"Sections 89 and 98 of the [Sentencing] Act … involve the making of discretionary judgments. The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well-established … Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of a sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. [House v The King (1936) 55 CLR 499.] The discretion which the law permits to sentencing judges is of vital importance in the administration of our system of criminal justice."
In my opinion, given the youth of the applicant, the lack of a "substantial and more or less prolonged confirmatory history" (Veen [No 1] at 489) of violent offences and the difficulties in prognosis to which I have referred, the learned sentencing Judge did not make due allowance for the applicant's mental condition in mitigation of or explanation for the offence. As a consequence, the setting of a minimum term of 27 years deprived the applicant of consideration of the possibility of his suitability for release on parole at an earlier time.
Whilst proper regard must be had to the full horror of the offence and the danger that that offence indicates that the applicant presents, care must be taken not to lose sight of the broader objectives of sentencing, or of the fact that the applicant will eventually be released from prison.
For these reasons I would grant leave to appeal, allow the appeal and vary the sentence imposed upon the applicant by substituting a minimum term of 20 years for the period of 27 years before the appellant becomes eligible for release on parole.
Post script
This case highlights an unfortunate and dangerous gap between the criminal justice system and the health system. In his report of 13 January 1999, Dr Finlay‑Jones pointed out the high coincidence between murder or violent offences and mental illness. There is provision in other states for alternatives to imprisonment for mentally ill offenders which are worthy of mention here. In Victoria, where the offender pleads or is found guilty, if the court finds the offender to be mentally ill and in need of treatment, it may make a "hospital order" under s 93(1)(d) of the Sentencing Act 1991 (Vic) instead of imposing a sentence, or may impose a hospital security order pursuant to s 93(1)(e) by way of sentence. The proviso is that the treatment must be available in a mental health institution and be necessary for the offender's health or safety, or for the protection of the community: s 93(1)(ii) and (iii). In arriving at an appropriate period of institutionalisation, equivalent considerations apply as do to a normal sentence, namely the seriousness of the offence, a non‑parole period and so on.
In New South Wales the Mental Health (Criminal Procedure) Act 1990 (NSW) makes provision for special hearings of charges against those who are mentally ill. Section 2(1) states: "A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings." The accused person is to be taken to have pleaded not guilty in respect of the offence charged and may raise any defence that could properly be raised if the special hearing were an ordinary criminal trial.
Under the New South Wales Act a person is not sentenced in the ordinary way. Instead the sentencing judge is required to nominate a "limiting term". The limiting term is the court's "best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial" and is the maximum period for which the offender can be detained in institutional care: s23(1)(b). After the limiting term is nominated the court refers the offender to the Mental Health Review Tribunal with such orders for custody as it deems appropriate: s 24(1). The Tribunal determines the appropriateness of hospital treatment and notifies the court (s 24(2), s 24(3)) which then makes an order as to custody: s 27. The offender is detained as a "forensic patient" pursuant to Schedule 1 of the Mental Health Act 1990 (NSW) and is subject to treatment, assessment and six-monthly review, which may result, inter alia, in earlier release at any time before the expiry of the limiting term: s83 and s84 of the Mental Health Act. See R v Mitchell [1999] NSW CCA 120, 21 June 1999 (Beazley JA, Sperling and Hidden JJ) on the regime generally.
The Crimes Act 1914 (Cth) makes provision for hospital orders (s 20BS to s 20BU), psychiatric probation orders (s 20BV to s 20BX), and program probation orders (s 20BY), which are imposed in lieu of passing a sentence upon offenders suffering mental illness. See also the Sentencing Act 1995 (NT), s 80 (hospital orders) and s 83 (treatment orders); the Mental Health Act 1963 (Tas), s 48(1) and s 49(1) (hospital and guardianship orders), and s 48(2) (hospital restriction orders).
In Western Australia the Criminal Law (Mentally Impaired Defendants) Act 1996 ("the Mentally Impaired Defendants Act") provides for dealing with mentally impaired people in criminal proceedings in any court (s 4). The definition of mental illness set out in s 4 of the Mental Health Act 1996 is adopted, namely, "disturbance of thought, mood, volition, perception, orientation or memory that impairs judgment or behaviour to a significant extent". A person may be detained pursuant to a hospital order rather than be granted bail (s 5). A superior court can impose a custody order upon those unfit to stand trial or those found not guilty on account of unsoundness of mind, if imprisonment would otherwise have been an available disposition and the strength of the evidence, the nature of the crime, matters personal to the defendant and the public interest require it: s 19(5) and s 21.
There is no provision in the Mentally Impaired Defendants Act, like those in other jurisdictions, for hospital or institutional custody orders by way of or in lieu of sentence. In my view this represents a deficiency in the options available to courts in cases involving mentally ill offenders. Although the Court must take cognisance of the offender's mental illness in assessing the appropriate punishment, when imprisonment is required the Court is required to impose a sentence on the mentally ill offender as if the person concerned were an ordinary offender. Prison is not necessarily appropriate to the proper treatment and rehabilitation of such persons, nor is that form of punishment always a proper reflection of the different class of offenders to which such persons belong. There is scant evidence that special measures can properly be taken within the prison system to deal with such persons without an unnecessary drain on resources. The consequence is that there is a risk of further degeneration by the offender and there is a risk to the other inmates and staff.
Although not part of domestic law, the Declaration on the Rights of Mentally Retarded Persons (NY 20 Dec 1971), which is reproduced in Schedule 4 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), does cast obligations on Australian governments to pursue fulfilment of its principles. Article 6 of that Declaration provides that:
"The mentally retarded person has a right to protection from exploitation, abuse and degrading treatment. If prosecuted for any offence, he shall have a right to due process of law with full recognition being given to his degree of mental responsibility."
Article 2 states:
"The mentally retarded person has a right to proper medical care and physical therapy and to such education, training, rehabilitation and guidance as will enable him to develop his ability and maximum potential."
See also R Hayes and S Hayes, Mental Retardation: Law, Policy and Administration, LBC, Sydney, 1982.
It seems to me that this is an aspect of the present system which needs examination. At present, the disposition of such offenders is a matter of administration which is not subject to adequate measures or safeguards.
WALLWORK J: I agree with the reasons for judgment of the Chief Justice and to the orders proposed by his Honour.
The question raised by this application is the time at which, after the applicant has served a term of 20 years' imprisonment, the authorities should be able to consider his eligibility for release from prison. When that time comes the protection of the community will be the primary consideration for those who are considering whether the applicant should be released. In my view, the mental condition of the applicant at that time will be of great importance. Because of that, the state of medical knowledge and the treatment available in the meantime will be relevant.
In my opinion, this Court should take account of the fact that there is at the present time, and particularly in the United States, considerable research being conducted into mental conditions such as schizophrenia, in order to find the causes of, and treatments for, such conditions. It may be that by the time 20 years have passed, the mental condition from which the appellant suffers will have been treated successfully. If the past 20 years are any guide, the methods of treatment in the future will be much advanced. At least at the relevant time the authorities will be in a much better position than they are at present to consider any danger which the applicant might present to the community on his release from prison.
MURRAY J: This application for leave to appeal against sentence is against a sentence of strict security life imprisonment in respect of which the sentencing Judge fixed a non‑parole period of 27 years. The application was argued upon amended grounds of appeal which complained that the sentencing Judge erred "in adopting a starting point of 30 years imprisonment on the non‑parole period, which was manifestly excessive in all the circumstances of the case". Complaint is made of error in respect of the non‑parole period of 27 years fixed by the sentencing Judge which is said to be "manifestly excessive in all of the circumstances", particularly having regard to the asserted failure of the Judge to accurately place the offence in the scale of offences of wilful murder, his finding that the offence of wilful murder in question was among the worst of its sort, and the sentence imposed is said to fail adequately to reflect the applicant's youth, his psychiatric condition and his good antecedents.
I have had the considerable advantage of access to a draft of the very comprehensive reasons for decision published by Malcolm CJ. They relieve me of the need to refer in any detail to factual matters or to the reasoning of the learned sentencing Judge.
The applicant pleaded guilty to the wilful murder of his grandmother, a woman aged 67 years, on 16 March 1998. At that time the applicant
was aged 22. The plea of guilty was made on the day before the trial was due to commence. That robbed the plea of much of its mitigatory effect: Sentencing Act 1995 (WA), s 8(2), but the sentencing Judge nonetheless allowed a credit for the fact that the witnesses, particularly members of the applicant's family, had ultimately been spared the trauma and distress of having to give evidence at his trial.
But it was not a remorseful plea and the sentencing Judge so found, remarking on the fact that initially the applicant had told lies to a number of psychiatrists who had been engaged or appointed by the Court to give opinions on the applicant's mental state. They were particularly concerned to make an assessment of his fitness to plead and to determine whether his mental condition might have been such as to afford him the defence of unsoundness of mind. Ultimately, and necessarily, because the lies involved readily verifiable matters of fact, such as the arrival at the house of his Uncle Adrian, the applicant abandoned his deceptive behaviour and spoke more openly and honestly to an investigating psychiatrist whose opinion in the end the sentencing Judge did accept. However, the damage had been done because more favourable earlier opinions had been rendered useless and otherwise because of the adverse impact upon the sentencing process which his deceptive behaviour obviously entailed.
The sentencing Judge described the case as "one of the most brutal murders to come before this Court for some time." In my respectful opinion his Honour was right to do so having regard to the facts as he found them to be. The applicant undoubtedly had a disturbed childhood. It seems that he was raised, particularly following his father's suicide of which the date 16 March was the anniversary, by other family members, not the least of whom was his grandmother. He had lived with her for some three years, but he had ceased to do so and moved to the home of an aunt after disturbing episodes of violence and threatening behaviour in the months leading up to the killing.
He had threatened to kill both his grandmother and an aunt who lived with her. Indeed he had attacked the aunt as recently as 27 January 1998. On that occasion he threatened her with an axe and threatened to kill her, his grandmother and a neighbour. The police were called and he was charged. That resulted in his only relevant previous convictions for assault and the possession of an offensive weapon. Unsurprisingly, relatively minor penalties were imposed by a Court of Petty Sessions, and, although an assessment of his mental state was ordered and produced the opinion that the applicant suffered from a personality disorder, he was not committed to a hospital for treatment. Although urged to seek treatment by family members, it appears that he declined to do so.
It seems that his hostility, particularly towards the one aunt and his grandmother, with whom he was now prevented from living, grew. There were other incidents of disturbing violence and the making of death threats. During this period the applicant appears to have been obsessed by violence. He watched the movie "The Silence of the Lambs" many times. In it his favourite scene was the killing, disembowelling and mutilation of a police officer by the principal character in the film. The applicant expressed his admiration for a Tasmanian mass murderer.
On the day of the murder the applicant had met his grandmother, probably by accident, at a shopping centre where he had purchased liquor. He returned with her to her home during the morning. He had lunch with her. He must have been drinking quite heavily because by the time of the killing his blood alcohol content was said to have been high. What started the events which led to the death of the applicant's grandmother is known only from the account he later gave. He said that his grandmother was critical of his drinking and drug taking, described him as a drunkard and perhaps said in a heated exchange that he should kill himself as his father had done. His Honour said that even if that had been said, it could provide no excuse or mitigation for what followed. In my respectful opinion his Honour was right to take that view.
It is a fair reconstruction of the events that the applicant then left the house, went to a shed at the rear of the house, obtained a hammer and the lawn edger described by his Honour, returned to the house and attacked his grandmother in the way related by Malcolm CJ. It was overheard by a neighbour. Initially it seems the attack occurred in the loungeroom. There is evidence that the deceased fought back. She suffered defensive wounds. When she was seriously disabled she was dragged down the hallway to her bedroom. She was there attacked again in two separate places. While she was probably still alive, but no doubt unconscious, the applicant attempted to sever her head with a knife which it appears the applicant was carrying on that day. He was still carrying the knife when he made his escape over a back fence after the police, who had been called by the neighbour, arrived. There was also an attempt to disembowel the deceased after she was dead, removing and handling her intestine. Finally, by blows with the lawn edger, the applicant killed the deceased's small dog, apparently because it was identified with her.
The hammer and the lawn edger were washed and placed on the bed in the bedroom of the aunt whom he had previously attacked. These events occurred between about 4.10 pm and 4.30 pm. The aunt was due home at about 5.00 pm. The applicant later said that he planned to wait and kill his aunt, but of course, as I have mentioned, he was disturbed by the arrival of the police and made his escape. When he was apprehended later he told the arresting police officers that they were fortunate that they had caught him as he had planned to return to the house, take the car and drive around killing people.
The sentencing Judge rejected the defence submission that the applicant had killed his grandmother in a frenzy, triggered by her remarks about him and his father. His Honour said there was evidence of deliberation and in my respectful opinion that was a finding well open to the sentencing Judge. Whatever was said during the exchange he had with his grandmother (in earlier versions he did not say that she said he should kill himself), there was evidence that the applicant left the loungeroom, went outside the house into the shed, chose the implements he wished to use as weapons and returned to the house, attacking his grandmother as she sat in the loungeroom.
The attack continued there, but was suspended and resumed after he dragged the deceased to her bedroom. The attempts to sever the deceased's head and to disembowel her were further changes in the process which showed decisions being taken by the applicant, as did his washing of the murder weapons and their placement in his aunt's bedroom, where presumably he planned to wait for her to return from work, no doubt with the idea of attacking her when she came to her bedroom or when she discovered her mother's body. Then there was the escape made when the police arrived and the plan to kill others of which he spoke to the arresting officers. There was much to show the taking of decisions relative to the killing, albeit decisions the product of a disordered mind, to which aspect of the facts I shall now turn.
As the sentencing Judge noted, the various psychiatric investigations presented a confused picture with opinions ranging from a delusional disorder to a psychotic illness, probably of a depressive nature. As I have mentioned his Honour rejected much of it because of deliberate falsification by the applicant of what was going on in his mind on the day of the killing and before that date. In the end the sentencing Judge felt that he could only rely upon a report dated 30 April 1999 based on an examination conducted on 28 March 1999. The report was that of Dr Finlay‑Jones who had originally on 13 January 1999 expressed the opinion that, "It is highly possible that he suffers a psychotic illness such as paranoid schizophrenia", marked by hallucinatory experiences and delusions, with his conduct on the day in question being also affected by the disinhibiting effect of the overconsumption of alcohol.
In the later report Dr Finlay‑Jones described the applicant as being mildly depressed, but not psychotic. He went on to note the inconsistent stories he had been given, the first story now being admitted by the applicant to have contained significant aspects of fabrication. The applicant said that he had made it up because he "needed a defence". The psychiatrist said that the applicant "now denied many of the psychotic symptoms that he had agreed to having in the first interview." The balance of this report has been quoted by Malcolm CJ, including reference to the applicant's "long standing preoccupation with violence" and to the "likely role of anger in the alleged offence." Dr Finlay‑Jones said that the applicant "still seems very odd mentally, and he may develop a psychotic illness in the years to come."
In my opinion it is clear that if the applicant wished to rely upon the psychiatric reports as having a mitigatory effect, then it was for him to establish that ground on the balance of probabilities: Langridge v The Queen (1996) 17 WAR 346; R v Olbrich (1999) 73 ALJR 1550. This, in my opinion, he patently failed to do. He did not establish to the satisfaction of the sentencing Judge any mental illness. There were disordered thought processes undoubtedly, and at the very least it might be said that he had grave personality problems, a disordered obsession with violence and a propensity to harbour grudges. He developed an extreme dislike for others, including family members who generally tried to help him, so that on the day in question when his grandmother really uttered or was imagined to have uttered provocative and insulting words, he reacted with anger of an extreme nature and, without any true provocation, embarked upon the savage process of killing which has been described.
None of that was mitigatory in effect; indeed, quite to the contrary because it demonstrated the extreme dangerousness he presented to family members and to any person who insulted or annoyed him. Many violent offenders of course do have serious anger management problems, but in this case they appear to be particularly severe. The sentencing Judge considered the applicant to present "an extreme and dangerous threat to members of your family and the community" arising out of his mental state and his thought processes which, his Honour thought, did not "account for or in any way reduce your culpability for the extreme violence you inflicted on an elderly person for the purpose of ending her life." In my respectful opinion those findings were amply supported by the evidence before the Court.
When the applicant was assessed by Dr Findlay‑Jones for the second time, his state of depression appears to have been much relieved by medication. He was then described as mildly depressed. On the other hand he had not been responding when seen by Dr Skerritt on 6 June 1998. Otherwise, the psychiatric reports and the other evidence before the Court was devoid of any information as to the likely prospect that the applicant might be rehabilitated by counselling or other treatment calculated to deal with his disordered thought processes ‑ his obsession with extreme forms of violence and killing, his hatred of persons whom he felt had injured him and his incapacity to control a violently angry over‑reaction to a perceived slight or criticism.
I turn to consider the process of fixing the minimum or non‑parole period. That is not a process in this context dealt with in the Sentencing Act 1995, s 89 which deals with the making of a parole eligibility order when a court sentences an offender to one or more fixed terms, ie, as defined by s 85(1), terms that are not life imprisonment or strict security life imprisonment. However, as will be seen, it is my view that in fixing a minimum period in this context a court is to have regard to the sort of factors which are enumerated in s 89(2). That result derives from the application of the general law.
The imposition of the sentences of life imprisonment and strict security life imprisonment are dealt with in s 90 and s 91. Where strict security life imprisonment is imposed, the first question for the sentencing Court following the passing of that sentence is to consider whether an order is to be made under s 91(3) that the offender be imprisoned for the whole of his or her life without the opportunity of eligibility for parole, an order which is to be made "if it is necessary to do so in order to meet the community's interest in punishment and deterrence." In that regard, by s 91(4), the only matters relating to the offence that are to be taken into account are the circumstances of its commission and any aggravating factors. They are potentially difficult subsections, but they do not require further consideration in the context of these reasons.
If that course is not taken, as it was not in this case, then the decision to impose strict security life imprisonment having been made, a minimum period of at least 20 and not more than 30 years was to be fixed, being the period "that the offender must serve before being eligible for release on parole." Although the periods are different, the same concepts precisely emerge from s 90 which deals with the fixing of minimum non‑parole periods where sentences of life imprisonment are imposed for the offences of wilful murder or murder. In each case the relevant section makes it clear that the minimum period is not itself the sentence imposed, but is part of the mandatory indeterminate sentence of life imprisonment or strict security life imprisonment which is passed on the offender.
The sentencing process involved in fixing the minimum period was considered by this Court, I think most recently, in Sherratt v The Queen [2000] WASCA 112; 5 May 2000 per Murray J, with whom Pidgeon J agreed, Wallwork J dissenting in respect of the application of the relevant principles to that case. I need not here repeat all that was there written. Suffice it to say that subject to one particular aspect, I concluded that the minimum period bore the same character in relation to a sentence of strict security life imprisonment as did the minimum term which earlier versions of the legislation required a sentencing Judge to fix as part of a finite term which used colloquially to be called the head sentence.
I relied particularly on the decisions of the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367, Bugmy v The Queen (1990) 169 CLR 525 and Inge v The Queen (1999) 73 ALJR 1563. I concluded that, subject to the fact that one could not sensibly speak of preserving a due proportion between the minimum period and the indeterminate life sentence (the one aspect distinguishing such a period from the minimum term formerly required to be fixed), as I put it at [39] ‑ [43]:
"…the legislative scheme and the authorities discussed support the conclusion that in a case where a mandatory sentence of life imprisonment or strict security life imprisonment is imposed, the decision whether or not to fix a minimum period where that is required to be made and if so, the length of that period within the statutory parameters provided, involve discretionary judgments which will be informed by applying to the case the ordinary principles of sentencing.
It will be necessary to bear in mind the seriousness of the offence per se as signalled by the fact that a mandatory sentence of life imprisonment or strict security life imprisonment is to be imposed. …
Where the court decides that a minimum period is to be fixed, it remains in this context, as it was conceived to be in the context of the imposition of a finite sentence, the period which in the judgment of the court is the period which the offender must serve in prison before being eligible to be released on parole, if that should be the decision which the Governor makes. In fixing that period the court is to have regard to the circumstances of the offence and the circumstances personal to the offender, whether they be aggravating or mitigating in their effect, in so far as they bear upon the length of the period which must be served before the offender might be released. The protection of the community will be an important consideration as will the offender's prospects of rehabilitation, bearing in mind that the purpose of punishment, including the fixing of the minimum period, is not only the protection of society from this offender and such offences generally, but also the ultimate reformation of the prisoner.
In this exercise of fixing the minimum period, as in the case of the making of a parole eligibility order in the context of a finite sentence of imprisonment, there is an inevitable element of prognostication on the part of the sentencing Judge. It will be necessary to consider what may be the position when, after serving the minimum period, the offender would become eligible for release on parole."
That being so, to frame grounds of the application for leave to appeal which complain that the minimum period was manifestly excessive is unhelpful. It misconceives the nature of the process involved in the discretionary judgment which must be made. The question must be whether a shorter period should have been fixed as the minimum time which must be served, having regard to all the circumstances, before the offender might be released on parole "to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom": Power at 629.
Treating that as the question which it was meant to raise by the grounds of this application, I note that the first ground complains about the period of 30 years as "a starting point" said to have been adopted by the sentencing Judge. That would certainly make the period of 30 years operate as if it were a fixed term, a maximum punishment to be reserved for the worst possible case of wilful murder. If that what was done error would be revealed, but that was not what his Honour did.
Having discussed in the way that I have mentioned above all the relevant circumstances, be they aggravating or mitigating and whether they related to the offence committed or were personal to the applicant, overlooking none and in my respectful opinion taking account of nothing which was irrelevant, his Honour said that he found the other cases to which he had been referred in the context of the fixing of the minimum period to be of little assistance because in relation to that exercise, "there are so many personal factors which play a part." His Honour continued:
"The danger which you present is a dominant factor. I weighed up your preoccupation with violence and killing, combined with the very acts that you were capable of doing when you did this to your grandmother, combined with your expressed intention in respect of your Aunt Helen. These factors combined point to a minimum term of 30 years. I am reducing that by reason of your plea and the positive factors to which I have referred and that has caused me to reduce it to a minimum term of 27 years."
In other words his Honour simply said that he would have fixed a minimum period of 30 years having regard to all the circumstances had it not been for such matters as the plea of guilty and positive factors such as the relative youth of the applicant and his disturbed upbringing, the only matters having a mitigatory tendency which appear to have been present in the case.
As to the 27 year period, it was as I have mentioned not an appropriate exercise in fixing the minimum period to try to determine where this offence of wilful murder fell in the range of offences of wilful murder which might be contemplated. Nor did his Honour do that. However, as I have said, he did describe the offence as being "among one of the most brutal murders to come before this Court for some time." In that summation of the nature of the case I can discern no error.
Did his Honour's discretion miscarry having regard to the age of the applicant, his state of mental health and his antecedents? I think that has not been established. The offence was committed in circumstances of such horror as to beggar belief. There was nothing established in the applicant's mental state which reduced in any way, not only his criminal responsibility, but also his moral culpability for the offence committed. There was minimal mitigation in the plea of guilty and there was no expression of remorse. The applicant's established mental state did not speak well of his prospects of rehabilitation. Rather, if it contributed anything at all, it reinforced the conclusion to which his Honour came about the extreme dangerousness of the applicant. The protection of the community was indeed, as his Honour found, the predominant consideration. His age had little bearing upon the fixing of the minimum period and his antecedents were disturbing to say the least. In my opinion the fixing of the minimum period of 27 years does not in the circumstances of this case indicate that his Honour's discretion in that regard miscarried.
While I would grant leave to appeal to enable the matters of substance raised to be addressed, I would dismiss the appeal.
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