Leyshon v The State of Western Australia

[2007] WASCA 223

LEYSHON -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 223

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 223
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:10/2007	Heard:	14 SEPTEMBER 2007
Coram:	OWEN JA WHEELER JA BUSS JA	Delivered:	23/10/07
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	JONATHON LEWIS LEYSHON THE STATE OF WESTERN AUSTRALIA
Catchwords:	Sentence Wilful murder Strict security life imprisonment with minimum of 20 years Sentence upheld Turns on own facts
Legislation:	Nil
Case References:	Gamble v The State of Western Australia [2007] WASCA 120 Griffin v The Queen [2001] WASCA 11 Roberts v The Queen [2003] WASCA 237; (2003) 28 WAR 381 Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 Williams v The Queen (1996) 17 WAR 17

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LEYSHON -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 223 CORAM : OWEN JA

WHEELER JA
BUSS JA

HEARD : 14 SEPTEMBER 2007 DELIVERED : 23 OCTOBER 2007 FILE NO/S : CACR 10 of 2007 BETWEEN : JONATHON LEWIS LEYSHON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MILLER J

File No : INS 125 of 2004

Catchwords:

Sentence - Wilful murder - Strict security life imprisonment with minimum of 20 years - Sentence upheld - Turns on own facts

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Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters
Respondent : Mr D Dempster

Solicitors:

Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)

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

Gamble v The State of Western Australia [2007] WASCA 120
Griffin v The Queen [2001] WASCA 11
Roberts v The Queen [2003] WASCA 237; (2003) 28 WAR 381
Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188
Williams v The Queen (1996) 17 WAR 17


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1 OWEN JA: This is an appeal against a sentence of strict security life imprisonment with a minimum of 20 years which was imposed following the appellant's conviction for wilful murder.

Background

2 In the years before 2004, the appellant had a history of amphetamine use. He had undergone rehabilitation to overcome the habit and had apparently broken the cycle of drug addiction. For some years the appellant had been living with a woman, DW. There was a child (K) from the relationship. K, who was approximately 2 years of age at the time of the offences with which the appellant was charged, lived with DW. It seems that during the currency of relationship both DW and the appellant were amphetamine users and that DW had not overcome the habit. The relationship was described as 'abrasive'. It had broken down shortly after the birth of K, some two years before the events which were to bring the appellant before the courts.

3 On 19 January 2004, the appellant had been drinking heavily since the early morning. Some time after, he went to the house of a friend. The friend told the appellant that he had been informed by DW, the appellant's former partner, that the appellant was back on drugs. Upon hearing what DW had allegedly said about him, an argument ensued. The appellant became aggressive and challenged his friend to a fight.

4 The appellant was furious about what DW was saying and went around to her house, which was nearby, in a state of anger. He did this despite being subject to a violence restraining order which prohibited him from being at her premises unless there was a special reason. He admitted breaching the restraining order.

5 DW let the appellant into the house and a fight ensued. The evidence showed that DW received a multitude of blows. During the fight DW was taken to the floor and was lying face down. The appellant saw a dressing gown behind the door. He removed a tie that was on it, wrapped it twice around her neck and tied it tightly in a double knot. The appellant pulled on the tie and DW died from a ligature strangulation of the neck. There were areas of bruising around DW's neck and the evidence was that at least moderate force must have been used to have caused the injuries and the consequences that then ensued. DW's air supply was choked off and she must have died within a short period of time, perhaps 30 seconds or so.

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6 The sentencing judge accepted that DW had a very high level of amphetamines in her system at the time of her death and that was likely to have made her aggressive. His Honour could not make a finding as to who had started the fight but said that the combination of the drugs and the physical injuries meant DW was probably not able to offer much resistance.

7 The appellant walked out of the house. He locked the door, leaving K inside (although there is no evidence that K witnessed the attack). He borrowed a phone from someone in the street and made a short telephone call to DW's mother in which he told her to go to DW's house because there was something tied around 'her' neck. It is not clear whether the appellant mentioned that it was DW to whom he was referring. A family friend was the first to arrive at the house and found the body. He called DW's mother who came to the residence and saw her daughter's body. That, in itself, was to have serious consequences, which I will mention shortly.

8 The appellant gave himself up at the local police station shortly after. He co-operated with the police but denied ever having any intent to kill or do grievous bodily harm to DW.

The sentencing remarks

9 The sentencing judge described the offence as 'a very serious act of wilful murder'. His Honour made specific mention of the fact that a good deal of force must have been required to produce the bruising that was apparent on the body and to bring about the strangulation. He noted that 'a young woman with the whole of her life ahead of her and the mother of [the appellant's] young child was strangled to death in her own home'. He went on to say:

In sentencing you, Mr Leyshon, I must first take account of the gravity of this offence. The gravity of this offence includes the circumstances of the offence. The combination of the two will allow me to place the wilful murder in the scale of crimes of wilful murder. I have already said this was a very bad case of wilful murder. To strangle a young woman in the way in which you did was a callous and brutal act and it certainly places the crime in the higher range of offences of wilful murder.

I take account of the attitude of the victim. I have had the opportunity of reading the victim impact statement [of DW's father]. It is clear that [DW's] family has endured great suffering in consequence of the crime you committed. [DW's mother] suffered a heart attack after seeing her dead daughter and had to be hospitalised and given surgery.

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It was necessary for [DW's parents] to take custody of [K] and they had to contest Family Court proceedings because you were seeking access to that child. The families found it very difficult to explain to [K], who is now approximately four, just what happened to his mother. Further, both [DW's parents] and the child have all undertaken regular psychological counselling for at least a year. So you will appreciate the consequences of what you did have been of great significance to [DW's] family.

10 The appellant had previously been convicted of, and sentenced for, wilful murder but the conviction had been set aside on appeal and a re-trial ordered. In the context of the appeal, this is relevant for two reasons. First, at a sentencing hearing on 25 February 2005, the original trial judge had imposed a sentence of strict security life with a minimum of 20 years. The sentencing judge said that he was aware of the sentence imposed by the original trial judge but indicated that he had an independent discretion in relation to the matter which he would exercise. It was not contended on appeal that the sentencing judge had done other than proceed in that manner.

11 Secondly, the sentencing judge noted that in the February 2005 sentence hearing the original trial judge had recounted the appellant's personal circumstances after receiving substantial submissions in relation to them from counsel. His Honour said that he would note those matters without detailing them. As one of the grounds of appeal relates to the appellant's antecedents, I have reviewed the transcript of the February 2005 sentencing. Save for one matter, the circumstances mentioned by counsel then appearing for the appellant were, largely, confined to the appellant's good employment record, his determined fight against his substance abuse problem and the immateriality of his prior record of offending. The one additional matter was that the appellant had previously been hospitalised for a drug related psychosis. But this was in 2002 and there was no evidence that his mental condition was relevant to the events of 19 January 2004. All of these things were squarely before the sentencing judge.

12 The appellant was 29 years old at the date of sentencing. His prior criminal record was minor and was deemed by the sentencing judge to be of no real significance in relation to the crime before him. The appellant had a history of drug use but had apparently overcome it at the time of the offence, which the sentencing judge found to be to his credit. He had successfully completed an apprenticeship and had been employed between March 2001 and March 2003. His Honour remarked that there was nothing significant in the appellant's antecedents.

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13 It had been submitted on the appellant's behalf that he had exhibited considerable remorse. In dealing with this matter, the sentencing judge said:

I saw you give evidence at trial. You didn't demonstrate to me great remorse, but I accept that you're sorry for what you did, particularly as you are the father of the young child [K] who is now left without a mother. I accept too that you were prepared to plead guilty to manslaughter and did so on the day on which you were arraigned. I accept also that you offered a plea of guilty to murder but the state was justified in refusing to accept that plea and in proceeding with the trial for wilful murder.

The offer to plead guilty to murder was an offer which you no doubt made in the hope that it would avoid for you the consequences of another conviction for wilful murder. It does not of itself demonstrate remorse. It demonstrates an acceptance of responsibility, but also a desire to have the matter resolved on the basis more favourable to you than if you were convicted again of wilful murder.

14 Counsel for the State had submitted that the appellant ought to be sentenced to strict security life imprisonment. After referring to Roberts v The Queen [2003] WASCA 237; (2003) 28 WAR 381, his Honour said:

I myself was the trial judge in that case. There are three factors which operate in the discretion to choose between strict security life and ordinary life. The first of those is the circumstances of the offence and the gravity of the crime so as to place it on the scale of crimes of wilful murder. The second is the antecedents of the offender and the third is the risk to the community of the likelihood of the person committing serious offences of violence in the future.

Now, I do not think - starting at the bottom - that you pose a risk to the community at large because the crime you committed was directed solely at [DW]. Your antecedents I have referred to. You have minor convictions which are not of great significance. You have led a life which has involved the use of drugs during a portion of it and it appears that you managed to free yourself from it, but there's nothing significant in your antecedents.

It is the circumstances of the offence and the gravity of the crime which concern me most. The way in which you brought this young lady's life to an end was particularly grave. As I have already said, the crime is in the higher range of offences of wilful murder. So serious is the offence that I consider the sentence of strict security life imprisonment is appropriate.

I am required to impose a minimum term of between 20 and 30 years before eligibility for parole. Because [the original trial judge] imposed a term of 20 years I consider it appropriate to do the same. In other words, I would not put you in double jeopardy by imposing anything greater than

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20 years. Twenty years is the minimum and that is the term which will be imposed before you will [be] eligible for parole. This sentence will date from 19 January 2004.

The grounds of appeal

15 There was only one ground of appeal. The appellant contends that the sentence was manifestly excessive and he should only have been given a sentence of life imprisonment with a minimum term of between 15 and 19 years.

16 The sentence was said to be excessive having regard to both the circumstances of the offence and the appellant's antecedents. The appellant claims that the crime was not one which fell within the most serious examples of wilful murder because:

(a) the offence was not planned or pre-meditated;

(b) the intention to kill was only formed on the spur of the moment, during a fight, the starting of which could not be sheeted home to the appellant; and

(c) the appellant attempted to obtain assistance for the deceased.

17 The appellant also contended that sentence was manifestly excessive given his good antecedents, relative youth, his remorse and co-operation and the unlikelihood of him offending in such a way in the future.

Strict security life imprisonment: the principles

18 The principles on which a sentencing judge must act in deciding whether to sentence an offender convicted of wilful murder to life imprisonment as opposed to strict security life imprisonment are well known. In Williams v The Queen (1996) 17 WAR 17, 26, I attempted (with the concurrence of Kennedy and Pidgeon JJ) to summarise the relevant principles:

1 On a conviction for wilful murder the imposition of a custodial sentence for life is mandatory.

2 The sentencing judge is required to choose between life imprisonment and strict security life imprisonment. The discretion to choose between the options is at large but must be exercised judicially.

3 The factors to be taken into account in making that choice are:

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(a) the circumstances of the offence and the gravity of the crime so as to place it somewhere in the scale of other crimes of wilful murder;

(b) the antecedents of the offender, with the phrase 'antecedents' being given a broad meaning to include matters such as character, previous criminal history, upbringing and personal circumstances; and

(c) the risk to the community posed by the likelihood of the person committing serious offences of violence in the future.

4 The antecedents of the offender are relevant both in considering what, if any, mitigating factors exist and in considering the need to protect the community in terms of the likelihood of the applicant committing further offences.

5 No one factor has primacy over the other factors. So it is, for example, that in an individual case the sentencing judge may be persuaded by the horrific nature of the crime or by the need to protect the community (whether shown by the offender's antecedents or other material) or by a combination of all of these factors, to impose a sentence of strict security life imprisonment.

19 In Griffin v The Queen [2001] WASCA 11 Malcolm CJ (in a judgment with which Parker J and I concurred) said [44]:

A conviction for wilful murder attracts a mandatory penalty of life imprisonment. In sentencing the offender, the only options open to a sentencing judge are to impose strict security life imprisonment or life imprisonment … . There is no statutory guidance regarding the principles to be applied in making the choice between these options, but matters which are relevant are the particular circumstances of the crime and what appears to be an invidious necessity of ranking it in terms of gravity or seriousness within a class of offence which is the most serious offence under the Criminal Code. This involves a consideration of the particular circumstances of the crime together with other considerations including the antecedents of the offender and the need to protect the community … . The factor which has primacy over other factors is the gravity of the crime which, as I have indicated, involves placing the homicide somewhere in the scale of other crimes of wilful murder … [citations omitted]

20 I acknowledge the tension between my comment in Williams that no one factor had primacy over others and the phrase used by Malcolm CJ (with my concurrence) in Griffin to the effect that the gravity of the crime has primacy over other factors. But I think that the sense of what Malcolm CJ was attempting to convey is that, in an individual case, where the seriousness of a particular act of homicide is ranked high on the scale
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of gravity, this consideration might override other factors. It does not mean that by legislative prescription the seriousness of the offence is the first consideration to the exclusion of all others.

21 There is nothing particularly novel in any of this. The relative gravity of the crime (difficult as it is to assess) will inevitably and invariably be a significant (although not the only) consideration.

22 To put to rest (if it be necessary) any lingering questions about the proper approach, I adopt the careful analysis of the principles, the legislation and the authorities carried out by Steytler J in Roberts at [29] - [47] and, in particular, his Honour’s interpretation, at [46] of what I said in Williams. See also Gamble v The State of Western Australia [2007] WASCA 120 [27] - [31] (Miller AJA).

The imposition of strict security life on the appellant

23 It cannot be said that the sentencing judge failed to take into account the appellant's antecedents or his remorse or that fact that he was not assessed to be an on-going risk to the community. His Honour mentioned all of those things. But it is evident from his Honour's reasoning that notwithstanding these factors, ultimately he felt compelled by the seriousness of the crime to impose the sentence he did. It was, his Honour found, 'a callous and brutal act that [placed] the crime in the higher range of offences of wilful murder'. The central question in this appeal is whether it was open to his Honour to take that view of the gravity of the offence and then, in light of other factors, to conclude that strict security life was the appropriate penalty.

24 I will turn first to the circumstances of the acts that culminated in the death of the woman, leaving to one side personal factors. In his submissions, counsel for the appellant contended that this offence could not be regarded as of sufficient seriousness to justify the imposition of strict security life imprisonment for four main reasons. First, the murder was not planned or premeditated. For example, the appellant had not, before going to DW's house, purchased or armed himself with a weapon, as was the case with the offender in Gamble and in Griffin. The intent to kill had been formed on the spur of the moment during a physical fight in circumstances where it was not possible to say who had started the altercation. The appellant was sentenced on that basis. It did not, in my view, preclude his Honour from looking at all of the circumstances and determining that this incident was still to be regarded as a very serious homicide.

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25 Secondly, although the appellant and DW had previously lived together in a de facto relationship, the killing should not be characterised as being a 'failed relationship' case. It is true that many of the authorities deal with a situation where a relationship with the victim has broken down in acrimonious circumstances and the motive for the killing was revenge or some other influence related to the prior association. Again, Griffin and Gamble are examples. In such cases, the background will be a relevant factor but I have difficulty seeing why, as a matter of principle, the mere fact of a prior relationship itself elevates the seriousness of the offence. It may do. But that will be because of the circumstances of the particular case, not because of some general characterisation such as a 'failed relationship' case. That having been said, because failed relationships will often engender strong emotions, there may be a particular need for general deterrence in such cases.

26 Even if I am wrong in that conclusion, I do not think it assists the appellant here because this could be characterised as a 'failed relationship' case. The appellant and DW had been in a relationship. It had failed in acrimonious circumstances. The reason why the appellant went to the house on 19 January 2004 was to confront DW about something that was connected to their prior relationship: allegations of continuing drug use.

27 I note also that in the February 2005 sentencing hearing counsel for the State had said: 'there have been suggestions in the past that so-called domestic murders are to be treated more leniently than others'. Counsel was, of course, seeking to refute such a proposition. It follows from what I have already said that I do not agree that there is a general principle characterising the failed relationship cases as inherently more or less serious than other homicides.

28 The third basis for the contention that the crime was not as serious as others relates to the telephone call made by the appellant to DW's mother after he left the premises. In the written submissions it was put on the basis that the appellant had sought to obtain assistance for the deceased subsequent to the fight by making the call. But in oral submissions that line was not pursued. This is not surprising as the evidence suggested that when he left the house the appellant appreciated that DW was already dead. Instead, counsel put it on the basis that it showed that he was acknowledging responsibility for what he had done. In addition, he was seeking some assistance for K. It was not as if he had, for example, simply left the premises leaving a young child locked in with the dead body, as had occurred in Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188. But this was all squarely before the

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sentencing judge. His Honour, as the trial judge, was in a good position to place all that material in context.

29 Finally, it was contended on behalf of the appellant that the sentencing judge did not properly take into account the short duration of the attack that caused the death. This is to be contrasted, counsel contended, with cases involving a sustained attack and violent conduct extending over a long period. It is not clear how long DW and the appellant had been fighting before he applied the tie to her neck. In sentencing submissions counsel for the appellant had said that it was 'an episode that lasted a few seconds, maybe 10 seconds'. That may be so, but there was evidence (apparently uncontradicted) of 'widespread bruising and injuries'. The finding of the sentencing judge was that final act was effected at a time when DW was in all probability unable to respond in the normal way because of the combination of injuries and drugs, a good deal of force was applied and DW would have died within a short period, probably 30 seconds or so. In relation to the injuries there was evidence (apparently uncontradicted) of 'widespread bruising and injuries'. These were all findings that were open to the sentencing judge. He formed a view on the facts and I can find no error in the way he went about that aspect of the task.

30 What emerges from the discussion of those submissions is that counsel was asking the court to focus on factors that were not present. I am not suggesting that these matters are irrelevant or immaterial. An exercise such as this (aptly characterised by Malcolm CJ in Griffin as invidious), namely ascribing to the facts of the instant case a ranking on or in a scale of gravity, necessarily invites comparison with other cases. This, in turn, may involve identifying factors that exacerbated the conduct in other cases and which are not present in the case then before the court. But absent factors do not tell the whole story. It must be borne firmly in mind that in crimes of commission rather than omission, an offender falls to be sentenced for what he or she did. Certainly, things that the offender did not do may be material but the primary focus must be on relevant factors that are present. So it is with this case: what actually happened before the appellant went to DW's house, what happened at the house and, possibly, what happened after? They are all critical features of the assessment of overall gravity.

31 The appropriate sentence fell to be determined by what the appellant did. And some of the things he did could properly be said to amount to serious or aggravating factors. A significant factor is that the presence of the appellant at the house that day was a breach of a restraining order,

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designed to prevent conduct of the kind which ultimately occurred. The existence of the restraining order also demonstrates DW's fear of suffering violence at the hand of the appellant.

32 There is another feature of the restraining order that was not mentioned by the sentencing judge, although it was raised before the original trial judge and is therefore likely to have been known at the time of sentencing. On 16 September 2003 the appellant had been convicted of a breach of the restraining order. I do not suggest that the conviction itself was a matter counting against the appellant. But it does demonstrate that the appellant must have known that he was obliged to stay away. He did not do so.

33 The appellant had no valid reason to go to DW's house. No matter how 'put upon' he may have felt about the misinformation, he was barred by a lawful court order from contacting her. He had no business going there for any reason, good, bad or indifferent. And he did so in an angry frame of mind and while intoxicated. In relation to intoxication, it follows from the verdict of the jury that the level of intoxication was not such as to affect his criminal responsibility. He went to the premises looking for a fight (as his Honour put it) and, unfortunately, that is what happened. Given the history of the relationship and the subject matter that precipitated the confrontation, it must have been apparent to the appellant that violence was a probable outcome of the illicit venture.

34 Another problem for the appellant is that he should have known that it was at least possible that a young child, his own child, would be in the premises. To assume the risk of a violent confrontation in those circumstances adds to the gravity of the crime.

35 In my view it was open to the sentencing judge to conclude, as he did, that in terms of gravity or seriousness, this offence was 'in the higher range of offences of wilful murder'. Against that conclusion, the final question is whether his Honour gave sufficient weight to the appellant's good antecedents and relative youth, remorse and co-operation and the unlikelihood of him re-offending.

36 I can deal with the first and last of those point in short order. His Honour said: 'there's nothing significant in your antecedents'. Read fairly in the context of the whole of the sentencing remarks (including the relevant parts of the February 2005 sentencing), this must be taken as an indication that his Honour felt that there was nothing adverse in the appellant's background and that his antecedents were generally good. His

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Honour also said: 'I do not think … that you pose a risk to the community at large because the crime you committed was directed solely at [DW]'. In other words, he found in the appellant's favour on that question. There is no substance in either of those challenges.

37 The leaves the question of remorse and co-operation. I think it is put on the basis that the telephone call to the mother, the fact that he handed himself in to the police and acknowledged his wrongdoing (save for intent) and offered to plead guilty to manslaughter or murder all demonstrate a good degree of remorse. I have already set out the passage from the sentencing remarks in which his Honour dealt with this question.

38 The sentencing judge commenced by saying that he had seen the appellant give evidence at his trial. It is significant that his Honour saw fit to mention this fact because it places in context the doubts that he expressed concerning the appellant's level of remorse. His Honour would have been well placed to make that determination. I find it difficult to fault the sentencing judge's reasoning process in that respect. Without any way demeaning this ground of challenge, I do not think there is much more that can be said about it. I am not persuaded that his Honour erred.

Other matters

39 There are three small matters that I should mention before concluding these reasons. The first is to note that the minimum term fixed before the appellant can be considered for release on parole was 20 years. That is the lowest period that can be fixed on a sentence of strict security life imprisonment. While this is not relevant to the question whether or not strict security life should have been ordered, it is, I think, consistent with a view that the appellant's personal circumstances and the absence (in this case) of features that were seen as aggravating in other cases were given some currency.

40 Secondly, in his written submissions (which I understand he prepared personally) the appellant points to the absence of a pre-sentence report and says:

Declining to obtain any reports prior to passing sentence precluded a proper determination in relation to whether the appellant is, or would be many years hence, a danger to the community. In the absence of any evidence to suggest the appellant was a danger to the community in the future, the imposition of a sentence of strict security life imprisonment was not justified in this particular case.

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41 The first thing to note is that the grounds of appeal do not allege any error on the part of the sentencing judge to order a pre-sentence report. In addition, the sentencing judge found in the appellant's favour on the question of future risk. In any event, a finding about future risk would not have been determinative one way or the other.

42 Finally, in the written submissions the appellant contends the imposition of a sentence of strict security life has a higher degree of severity than a sentence of life because it has practical implications relating to eligibility for parole. The appellant argues that consideration of parole eligibility (after an unsuccessful application) can occur only at three year intervals for strict security life, as compared with annual intervals for life. I do not think there is anything in this point. The table in Sentencing Administration Act 2003 (WA) s 12A indicates that the reporting period is the same for both species of life terms, namely 3 years.

Conclusion

43 This is a case where the sentencing judge was persuaded by the gravity of the crime to impose strict security life imprisonment, despite the relatively moderate degree of force used, the relatively favourable antecedents of the offender and the absence of any appreciable risk to the community. No error has been demonstrated in the formulation of the sentence. I would therefore dismiss the appeal.

44 WHEELER JA: I agree with Owen JA.

45 BUSS JA: The principles to be applied in determining whether a sentence of strict security life imprisonment should be imposed for the crime of wilful murder are set out in the judgment of Steytler J (as his Honour then was) in Roberts v The Queen (2003) 28 WAR 381. See, in particular, his Honour's reasons at 397 [46] - [47]. Also see Gamble v The State of Western Australia [2007] WASCA 120 per Miller AJA (with whom Steytler P and McLure JA agreed) at [31].

46 In the present appeal, I agree with Owen JA, for the reasons he gives, that the ground of appeal is without merit and that the appeal should be dismissed.