FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ
ERNEST MUNDA APPELLANT
AND
THE STATE OF WESTERN AUSTRALIA RESPONDENT
Munda v Western Australia
[2013] HCA 38
2 October 2013
P34/2013
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Western Australia
Representation
A Boe with D D Brunello for the appellant (instructed by Aboriginal Legal Service of Western Australia (Inc))
J McGrath SC with L M Fox for the respondent (instructed by Director of Public Prosecutions)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Munda v Western Australia
Criminal law – Appeal – Prosecution appeal against sentence – Where appellant pleaded guilty to manslaughter of de facto spouse – Where appellate court resentenced appellant on ground that original sentence manifestly inadequate – Whether appellate court failed to correctly apply principles attending disposition of prosecution appeal against sentence on ground of manifest inadequacy – Whether finding of manifest inadequacy open if similar sentences imposed for comparable offences – Whether appellate court erred in failing to exercise residual discretion.
Criminal law – Sentence – Principles – Relevance of deprived background of Aboriginal offender – Whether appellate court gave appropriate regard to appellant's antecedents and personal circumstances.
Words and phrases – "aggravating factors", "antecedents and personal circumstances", "manifestly inadequate", "mitigating factors", "residual discretion", "social disadvantage".
FRENCH CJ, HAYNE, CRENNAN, KIEFEL, GAGELER AND KEANE JJ. The appellant was convicted on his plea of guilty to the manslaughter of his de facto spouse, contrary to s 280 of the Criminal Code (WA). The appellant was sentenced by Commissioner Sleight in the Supreme Court of Western Australia to a term of imprisonment of five years and three months, with a non‑parole period of three years and three months[1].
[1]The State of Western Australia v Munda [2011] WASCSR 87 at [33], [37].
The respondent appealed against this sentence on the ground that it was manifestly inadequate. The Court of Appeal of the Supreme Court of Western Australia allowed the appeal, and resentenced the appellant to seven years and nine months imprisonment. He remained eligible for parole in accordance with the order of Commissioner Sleight[2].
In this Court, the appellant submitted that the Court of Appeal erred in failing to appreciate that there was no sufficient ground for interference by it in the sentence imposed by Commissioner Sleight, and in failing to have proper regard to the appellant's personal circumstances as an Aboriginal man. In particular, it is said that systemic deprivation and disadvantage, including an environment in which the abuse of alcohol is endemic in indigenous communities, should have been, but was not, taken into account by the Court of Appeal.
For the reasons that follow, the appellant's submissions…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Munda v Western Australia [2013] HCA 38
Case
[2013] HCA 38
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia by a man convicted of the manslaughter of his de facto spouse. The appeal followed a decision by the Court of Appeal of Western Australia, which had resentenced the appellant on the ground that the original sentence imposed by the trial judge was manifestly inadequate. The appellant argued that the Court of Appeal had erred in its application of the principles governing prosecution appeals against sentence, particularly concerning the finding of manifest inadequacy and the exercise of residual discretion.
The High Court was required to determine whether the Court of Appeal correctly applied the principles for assessing manifest inadequacy in a sentence, considering whether similar sentences for comparable offences could support such a finding. Furthermore, the Court had to consider whether the Court of Appeal adequately regarded the appellant's antecedents and personal circumstances, including his deprived background as an Aboriginal offender, when exercising its discretion. The legal issues also encompassed whether the appellate court failed to correctly apply the principles attending the disposition of a prosecution appeal against sentence on the ground of manifest inadequacy and whether it erred in failing to exercise its residual discretion.
The High Court ultimately dismissed the appeal. The Court reasoned that the Court of Appeal had not erred in its assessment of manifest inadequacy, nor in its consideration of the appellant's background. The Court affirmed that a finding of manifest inadequacy is open even if similar sentences have been imposed for comparable offences, and that the appellate court's residual discretion was properly exercised. The Court found that the appellant's submissions were not made out, leading to the dismissal of his appeal.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
For the reasons that follow, the appellant's submissions should be rejected and his appeal dismissed.Factual background At the time the deceased was killed, the appellant and the deceased were staying at the Mindi Rardi community near Fitzroy Crossing. They had been in a relationship for approximately 16 years and had four children together. They attended a local tavern on the afternoon of 12 July 2010. Both became intoxicated and the appellant used some cannabis. When the pair returned to their house an argument developed. Each accused the other of being unfaithful. The appellant punched the deceased on numerous occasions, threw her about their bedroom and repeatedly rammed her head into the walls. During the attack the deceased repeatedly screamed at the appellant, telling him to leave her alone. At one stage, the appellant caused the deceased to fall onto a bed mattress. He then stood over her and repeatedly punched her in the face. After the appellant had finished assaulting the deceased, they both went to sleep. The next morning, the appellant had sexual intercourse with the deceased. He then left the house to get some tea. When the appellant returned, he noticed that the deceased had stopped breathing. He called for medical assistance and attempted first aid. The deceased was transported to Fitzroy Crossing Hospital and was pronounced dead on arrival. A post-mortem examination confirmed that she had died from traumatic brain injury. She also had a fracture to her left jaw and a number of broken ribs. It is not disputed that all of her injuries were caused by the appellant. The appellant's previous history of domestic violence Previously, on 4 May 2009, the appellant had been sentenced to 12 months imprisonment, conditionally suspended for 12 months, for the offence of unlawfully doing grievous bodily harm to the deceased on 23 October 2008. On that occasion the injuries inflicted on the deceased included a fractured femur, tibia and right radius as well as deep lacerations to her forehead inflicted by the use of a metal shovel. The injuries to the deceased's leg were sufficiently serious to require her to be transferred from Broome Hospital to Royal Perth Hospital for treatment[3]. [3](2012) 43 WAR 137 at 154 [78], [80]-[81]. On 4 May 2009, the appellant was also sentenced to six months imprisonment, conditionally suspended for 12 months, for two offences of common assault upon his 13 year old niece and the ex‑partner of the appellant's sister[4].[4](2012) 43 WAR 137 at 154 [78]. The appellant killed the deceased a little more than two months after the expiration of the conditionally suspended imprisonment order[5]. [5](2012) 43 WAR 137 at 154 [79]. At the time of the deceased's death, the appellant was subject to a lifetime violence restraining order in relation to the deceased. This order prohibited the appellant from having any contact with the deceased. It had evidently been ignored by both the appellant and the deceased in that they had continued their domestic relationship[6].[6](2012) 43 WAR 137 at 154 [79].The sentence at first instance
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, HAYNE, CRENNAN, KIEFEL, GAGELER AND KEANE JJ
BELL J
The fifth discretionary factor urged by the appellant was that his children will be affected by the delayed release of their father in circumstances where they have already lost their mother. This consideration was not advanced before the Court of Appeal. Given the circumstances in which the appellant's children lost their mother, that is perhaps unsurprising. It was not a consideration with any claim upon the discretion of the Court of Appeal.Conclusion and order The appellant's grounds of challenge to the decision of the Court of Appeal are not made out. The appeal should be dismissed. The appellant pleaded guilty in the Supreme Court of Western Australia (Commissioner Sleight) on 4 July 2011 to the manslaughter of his de facto wife. The appellant is a traditional Walmajarri man and the deceased was a Walmajarri woman. They had lived together as husband and wife for 16 years. At the time of the fatal assault they were living in an Aboriginal community near Fitzroy Crossing. They had spent the afternoon at the local tavern and both were intoxicated. After returning home they argued and the appellant assaulted the deceased. It was a prolonged and brutal assault during which the appellant threw the deceased about the room ramming her head into the fibro walls. He repeatedly punched her about the face and head. The cause of death was traumatic brain injury. Among other injuries sustained by the deceased in the course of the assault were a fractured jaw and five fractured ribs. The appellant was 32 years of age at the date of the killing. As a child he had led a traditional life with his extended family. He had hunted with his father and participated in the traditional ceremonies of his people. He spoke the language of the Walmajarri and other Aboriginal languages. He attended school to year 10 and he has a good ability to communicate orally in English. His upbringing exposed him to the negative influences of alcohol and family violence. He started drinking alcohol at the age of 17 and he has a history of alcohol and cannabis abuse. At the time of the killing, he was intoxicated by alcohol and cannabis. He has a lengthy criminal record for offences of violence. In May 2009 he was sentenced to 12 months' imprisonment, wholly suspended, for the infliction of grievous bodily harm on the deceased. That, too, was a brutal assault. At the time of the killing he was subject to a "lifetime violence restraining order" prohibiting him from contact with the deceased[74]. It appears that they had both chosen to ignore the order by living together. The killing took place a little over two months after he completed the suspended sentence for the earlier assault. [74]Western Australia v Munda (2012) 43 WAR 137 at 150 [50] per McLure P. The maximum penalty for manslaughter at the time was 20 years' imprisonment[75]. The primary judge assessed that, taking into account all of the relevant factors save for the appellant's plea of guilty, the appropriate sentence for the offence was seven years and six months' imprisonment. After making allowance for the appellant's plea of guilty, his Honour imposed a sentence of five years and three months' imprisonment and made a parole eligibility order[76]. The appellant will be eligible for parole after serving three years and three months of the sentence. [75]Criminal Code (WA), s 280. The maximum penalty has since been increased to imprisonment for life: Manslaughter Legislation Amendment Act 2011 (WA), s 4. [76]Sentencing Act 1995 (WA), s 89(1).
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, HAYNE, CRENNAN, KIEFEL, GAGELER AND KEANE JJ,
BELL J