Mikhail v The State of Western Australia
[2012] WASCA 200
•12 OCTOBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MIKHAIL -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 200
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 30 AUGUST 2012
DELIVERED : 12 OCTOBER 2012
FILE NO/S: CACR 103 of 2011
BETWEEN: ADAM MIKHAIL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 135 of 2011
BETWEEN :FRANK MIKHAIL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
File No :INS 47 of 2010
Catchwords:
Criminal law - Appeal against sentence - Murder - Manifest excess - Utility of comparisons with sentences imposed prior to commencement of the Criminal Law Amendment (Homicide) Act 2008 (WA) - Age - Relevance of expectation of useful life after release - Turns on own facts
Legislation:
Criminal Code (WA), s 279(1), s 279(4), sch 1 cl 2
Criminal Law Amendment (Homicide) Act 2008 (WA)
Sentencing Act 1995 (WA), s 90, s 90(1)(a), s 90(1)(b)
Result:
CACR 103 of 2011
Appeal dismissed
CACR 135 of 2011
Application for extension of time granted
Appeal dismissed
Category: B
Representation:
CACR 103 of 2011
Counsel:
Appellant: Mr A L Troy
Respondent: Mr B Fiannaca SC & Ms S Linton
Solicitors:
Appellant: Gary Rodgers
Respondent: Director of Public Prosecutions (WA)
CACR 135 of 2011
Counsel:
Appellant: Mr S Vandongen SC
Respondent: Mr B Fiannaca SC & Ms S Linton
Solicitors:
Appellant: Peter Ash & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Fraser v The State of Western Australia [2009] WASCA 23
Gulyas v The State of Western Australia [2007] WASCA 263
Inge v The Queen [1999] HCA 55; (1999) 199 CLR 295
Kuzimski v The State of Western Australia [2012] WASCA 202
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
Stasinowsky v The State of Western Australia [2009] WASCA 20
McLURE P: These two appeals against sentence were heard together. The appellants are father and son. Both were convicted after trial of the wilful murder of Francesco (Frank) La Rosa and his wife, Thi Kim Dung (Kim) La Rosa. They were each sentenced by McKechnie J on 22 June 2011 on both counts to life imprisonment with a non‑parole period of 37 years. The non‑parole period of 37 years is the highest ever imposed in this State. The appellants claim it is manifestly excessive.
The facts of the offending are as follows. The son had borrowed $20,000 from Mr La Rosa to pay for his wedding in Vietnam. Interest was rapidly accruing and the son had little prospect of repaying the debt. At some point the son decided to kill Mr and Mrs La Rosa. At some unspecified time, the father joined in that plan. What happened thereafter was a joint endeavour.
The appellants' primary target was Mr La Rosa, a drug dealer. Mrs La Rosa's death was required because the appellants knew she was always with her husband. To kill one they would have to kill the other.
The appellants committed the murders on 13 June 2008. In the week prior to that date, a deep double grave was prepared at a property in Chittering (the Chittering property). The son was familiar with the Chittering property and on 8 June 2008 he purchased ammunition for a shotgun he owned. The son was involved in the business of 'Swan Living' and both he and his father had swipe cards to access its warehouse premises in Leach Highway, Kewdale (the Kewdale premises).
On the evening of Friday 13 June 2008 Mr and Mrs La Rosa were lured to the Kewdale premises under the pretence of picking up a computer. When they were inside, the son fired two shotgun blasts at Mr La Rosa and one shotgun blast at Mrs La Rosa. Both were shot and killed at close range. Early next morning, the bodies of the victims were taken to the previously prepared grave on the Chittering property. At some stage in the next few days the victims' Jeep motor vehicle was driven to Lancelin and abandoned in a quarry.
As is apparent from the facts, the appellants went to considerable lengths to conceal the fact of, and their involvement in, the murders. That is not the end of it. The Kewdale premises were arranged so as to remove all traces of the killings. After the 'disappearance' of Mr and Mrs La Rosa, the appellants engaged in misleading conduct calculated to divert and distract investigating police away from the truth. However, nearly six months after the murders police discovered in the Kewdale premises shotgun wadding that had made contact with Mrs La Rosa's body. Moreover, police knew from GPS equipment in the son's vehicle that he had made a number of trips to the Chittering property around the time of the La Rosas' disappearance. After two unsuccessful searches by police at the Chittering property, a third search located the bodies of the victims in the clothes they were wearing on the day they were murdered.
The son was aged 21 at the time of the offences and 24 at the time of sentencing. The sentencing judge accepted that he had obsessive compulsive disorder and 'indications of depression that may be longstanding' [17]. However, he also concluded that those matters fell a long way short of justifying any modification in sentence [34].
The son had a criminal record as a juvenile, to which the sentencing judge gave no weight. In December 2003 he was convicted of one count of causing grievous bodily harm, one count of unlawful wounding and one count of stealing (the 2003 offences). The son had driven his armed co‑offenders to sites where the co‑offenders engaged in unprovoked violence on a number of complainants.
On the subject of the son's age, the sentencing judge said:
Your youth is a disturbing feature. The planning of these crimes, their ruthless execution, the considerable disinformation, and the burial and disposal of incriminating material, such as the Jeep, suggests that you are in fact a very dangerous young man and likely to always remain so [21].
The father was aged 54 at the time of the murders and 57 at the time of sentencing. In 2004 he was convicted of one count of attempting to pervert the course of justice as a result of attempting to cover up the 2003 offences committed by the son.
The sentencing framework
Prior to the commencement on 1 August 2008 of the Criminal Law Amendment (Homicide) Act 2008 (WA) (the Homicide Amendment Act) there was a separate offence of wilful murder for which the court was required to impose either strict security life imprisonment or life imprisonment. For strict security life imprisonment, the court had to set a minimum term of at least 20 and not more than 30 years unless it was bound to order that the offender be imprisoned for the whole of the offender's life. The sentencing court had to set a minimum term of at least 15 and not more than 19 years for an offender sentenced to life imprisonment for wilful murder and a minimum term of at least 7 and not more than 14 years for an offender sentenced to life imprisonment for murder.
The Homicide Amendment Act abolished the offence of wilful murder and the penalty of strict security life imprisonment and inserted a new offence of murder in s 279(1) of the Criminal Code (WA) (Code) with a new sentencing regime.
The appellants murdered Mr and Mrs La Rosa before the commencement of the Homicide Amendment Act but were sentenced after its commencement. Although convicted of wilful murder the appellants had to be sentenced in accordance with the current law, which is to be found in s 279(4) of the Code and s 90 of the Sentencing Act 1995 (WA), as if they had been convicted under the current s 279(1) of the Code: cl 2 sch 1 of the Code.
Under s 279(4) of the Code a person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless that sentence would be clearly unjust given the circumstances of the offence and the person is unlikely to be a threat to the safety of the community when released from imprisonment. In that event, the person is liable to 20 years' imprisonment. This provision was clearly inapplicable in this case.
Section 90 of the Sentencing Act relevantly provides:
(1)A court that sentences an offender to life imprisonment for murder must either ‑
(a)set a minimum period of at least 10 years that the offender must serve before being eligible for release on parole; or
(b)order that the offender must never be released.
…
(3)A court must make an order under subsection (1)(b) if it is necessary to do so in order to meet the community's interest in punishment and deterrence.
(4)In determining whether an offence is one for which an order under subsection (1)(b) is necessary, the only matters relating to the offence that are to be taken into account are ‑
(a)the circumstances of the commission of the offence; and
(b)any aggravating factors.
The Homicide Amendment Act was based on the Final Report of the Law Reform Commission of Western Australia entitled 'Review of the Law of Homicide', Project No 97, September 2007. The Commission had recommended against increasing the upper limit of 30 years for the minimum period (for strict security life imprisonment) under the previous legislative scheme (316). This recommendation was not accepted. As is apparent from the terms of s 90(1)(a), there is now no upper limit for the minimum period a court may set when an offender is sentenced to life imprisonment for murder. The second reading speech for the Bill that became the Homicide Amendment Act explains why:
In keeping with the Government's tough‑on‑crime policy, the new sentencing regime for murder is likely to lead to tougher sentences for murderers that are more in line with community expectations in ensuring that the punishment matches the seriousness of their crime. The consolidated crime of murder will now carry a presumptive penalty of life imprisonment with a minimum non‑parole period of 10 years and no maximum. Courts will also be able to impose a whole‑of‑life sentence upon all murderers …
The proposed changes to the law will significantly increase the power of judges to set non‑parole periods that are commensurate with serious murders. (Western Australia, Parliamentary Debates, Legislative Assembly, 19 March 2008, p 1210.)
The minimum period before being eligible for release on parole under s 90(1)(a) is determined by reference to what justice requires having regard to all the circumstances of the case: Power v The Queen (1974) 131 CLR 623, 629. Of course, parole will only be granted, if at all, at the will of the Executive.
As to what is meant by 'the circumstances of the case', the court in Stasinowsky v The State of Western Australia [2009] WASCA 20, said:
The circumstances of the case is a reference to all relevant sentencing factors including the circumstances of the offence, all aggravating and mitigating factors and the offender's antecedents. Many of those factors (including such matters as a plea of guilty, remorse, age) will bear on an assessment of the prospects of rehabilitation. The minimum time will be determined by a reference to achieving the recognised sentencing objectives including punishment, retribution and deterrence (both personal and general). If the primary focus is on the prospect of rehabilitation, the non-parole period is more likely to be set at the shortest time required in which a parole authority could form a proper view of the offender's prospects of rehabilitation. That approach was expressly rejected by the High Court in Power [72].
This statement remains relevant notwithstanding the changes made by the Homicide Amendment Act. See also Fraser v The State of Western Australia [2009] WASCA 23 [21].
All those concerned in the appellants' trials correctly identified that the circumstances of the offences were at the very high end of the scale of seriousness. Accordingly, the State made an application for a 'never to be released' order under s 90(1)(b) of the Sentencing Act. The application was unsuccessful.
Manifest excess
The appellants must establish that the sentencing judge made a material error of law or fact. In particular, they are required to demonstrate that the non‑parole period of 37 years is outside the range of the sound exercise of the sentencing discretion, it being manifestly unreasonable or unjust. This court cannot intervene merely because it would have imposed a different minimum period.
The appellants accepted that there was nothing in the nature or extent of their participation in the circumstances of, and surrounding, the offences to distinguish their respective levels of culpability.
The son relies heavily on his comparative youth in support of his claim that the 37 year non‑parole period is manifestly excessive. The father relies on his more advanced but still middle age to justify the same conclusion of manifest excess.
On the subject of age, the court in Stasinowsky said:
When considering age, either youth or more advanced age may be material … That is because, the younger the offender, the longer a life sentence will be. However, youth is also material for other reasons. It reflects upon the maturity of the offender and also upon his or her prospects of rehabilitation. Imprisonment may also be harder for a young person than it is for an older person. For an older offender, age may be relevant for the reason that the anticipated life span of the offender might be such that, absent a shorter non-parole period, that person can have no realistic expectation of life after prison. It may also be relevant to the threat likely to be posed by the offender on release [86].
The statement that 'the younger the offender, the longer a life sentence will be' is a reference to the head term and recognition of the possibility that the offender may be denied release on parole, albeit no doubt for reasons related to the need to protect the community.
In this case, there is nothing in the material to suggest that the son's offending was attributable to immaturity or any other characteristic that may be a source of youth‑related mitigation. He was not led into the commission of the offences. Indeed, the relationship between the appellants presented an inversion of what is reasonably to be expected. The son was instrumental in the instigation, planning (both pre and post offending) and execution of the crimes. He was the person who pulled the trigger ‑ three times. There is no significant mitigation in the son's age, which is simply overwhelmed by what he did and the danger he poses.
There is certainly no mitigation in the father's age. He was 54 when he committed the offences. The submission on his behalf is that 'in the circumstances … it would have been appropriate to have fixed minimum periods shorter than the periods that were imposed by the learned trial judge in order to hold out the hope of release', relying on what Kirby J said in Inge v The Queen (1999) 199 CLR 295 [60]:
[T]he rehabilitative purposes of parole may, depending on the circumstances of the case, make it appropriate in fixing a non-parole period to take into account, in a way favourable to the prisoner, his or her age. Thus, in the case of a prisoner of advanced years, it may be appropriate to fix a non-parole period shorter than would otherwise be the case in order to hold out the hope of release, to encourage good conduct in prison and to overcome the contemplation that the prisoner will die in custody.
The sentencing judge was conscious of the consequences for the father, noting that 'whatever sentence I impose will probably be one that confines you until your death' [27]. The point being made is that an appropriate non‑parole period for the offences committed by the father would, because of his age when he committed them, necessarily make it likely he would die in prison. That is correct. The punishment must reflect the crime and the seriousness of the father's offending behaviour is such that he has forfeited the right to any expectation of useful life after release: Gulyas v The State of Western Australia [2007] WASCA 263 [54].
Moreover, if, as I have concluded, the son's relative youth is not significantly mitigatory, it would be inappropriate to reduce the father's otherwise appropriate non-parole period simply because he committed the same offences when he was middle aged.
The minimum terms imposed in wilful murder cases prior to the commencement of the Homicide Amendment Act do not provide a benchmark against which broad consistency is to be measured. Under the former statutory regime 30 years was the non-parole period ceiling for a wilful murder where a never‑to‑be released order was not appropriate.
The circumstances of the appellants' offending place it at the very high end of the scale of seriousness. There were two murders, both premeditated and minutely planned in order to avoid the appellants having to answer for them. The killings were ruthless, cold‑blooded executions. These are significant aggravating factors that distinguish this case from those that have gone before and after, including Kuzimski v The State of Western Australia [2012] WASCA 202. The mental states of the appellants were not impaired by mind altering substances or any mental condition that reduced culpability. There were no mitigating factors of any significance and no remorse. The circumstances as a whole provide a particularly barren environment with little promise for any realistic prospect of rehabilitation or reform.
Having regard to all relevant sentencing considerations, the appellants have failed to demonstrate that the sentencing judge erred in imposing the very lengthy minimum period of 37 years. I would dismiss both appeals.
BUSS JA: I agree with McLure P.
MAZZA JA: I agree with McLure P.
12
5
3