Pedersen v The State of Western Australia

[2011] HCATrans 168

[2011] HCATrans 168

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P42 of 2010

B e t w e e n -

ERIC PEDERSEN

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON FRIDAY, 10 JUNE 2011, AT 2.39 PM

Copyright in the High Court of Australia

MR P.G. GIUDICE:   May it please the Court, I appear for the applicant.  (instructed by George Giudice Law Chambers)

MR B. FIANNACA, SC:   May it please the Court, I appear for the respondent.   (instructed by Director of Public Prosecutions (WA))

CRENNAN J:   Thank you, Mr Giudice.

MR GIUDICE:   Your Honours, Mr Pedersen was sentenced to a minimum term of 19 years.  Now, any offence of homicide is a serious matter, but this case should be looked at in the context that Mr Pedersen was sentenced to the maximum – minimum term for the penalty of life imprisonment under the old homicide sentencing regime in WA for wilful murder, which imported ‑ ‑ ‑

CRENNAN J:   Your complaint, as we understand it, essentially is, is it not, that the minimum term of 19 years did not reflect the proper weight to be given to the absence of an intention to kill.  Is that it in a nutshell?

MR GIUDICE:   It would be, your Honour, yes.

CRENNAN J:   Yes.

MR GIUDICE:   What I am pointing out is that that was what people were sentenced to as a maximum for wilful murder in this State which imported an intention to kill prior to August 2008 when the legislation was changed.  So this man, he is not sentenced on the basis of an intent to kill but an intent to cause bodily injury of a nature which is likely to endanger life and he gets the same penalty – well, the maximum penalty someone would have got for wilful murder pursuant to a life imprisonment penalty under the old regime.  My point is that it cannot be the case that Parliament would intend that the penalties be increased by so much because under the old regime for murder, which was intent to cause grievous bodily harm, the minimum penalty ranged from seven to 14 years.

CRENNAN J:   Yes, but Justice Buss deals with this, does he not, on page 61 of the application book in paragraph 63.  He says at the end of that – well, first of all he notes that:

The absence of an intention to kill was a relevant sentencing factor –

and he states that the sentencing judge took into account favourably to the applicant here –

that he did not have an intention to kill, but ‘merely’ an intention to do grievous bodily harm.

Then his Honour, relevantly to the point you are making now, went on to observe that –

The non‑parole period to be imposed for the new offence of murder where an offender is to be sentenced to life imprisonment is no longer artificially constrained by the presence or absence of an intention to kill.

In his Honour’s opinion that principle and the new legislation was reflected in the trial judge’s reasons.

MR GIUDICE:   Yes, except ‑ ‑ ‑

CRENNAN J:   In other words, you have to look at the sentencing framework under the new legislation.

MR GIUDICE: Yes, except, your Honour, Justice Buss also said, at page 58, paragraph 45, an offender’s intention is “invariably, if not always, a very significant matter”. That is my point here. This man did not have an intent to kill yet he was sentenced to the maximum amount that he would have got under the old regime for life imprisonment with an intent to kill. As to his Honour’s finding that the sentencing judge took into account intention favourably to the appellant, I would argue with that, your Honour, because his Honour, the sentencing judge, seemed to be saying that intention is not a significant factor. In fact, in comparing section 279(1)(b) with (1)(c), he said to my client, “I do not think it matters whether you intended or whether you burgled the place and killed the man”. So this question of intention does not seem to have been given, in my submission, the weight it should have been.

CRENNAN J:   I think at the outset – and this can be found on page 36 of the application book – at the outset, in paragraph 14, it is clear.  His Honour sets out there clearly the basis on which he was sentencing the applicant and you would not deny that this was, as was pointed out in the Court of Appeal, a very serious case of murder, would you?  Was not the victim an elderly man?

MR GIUDICE:   Yes, he was.  It is a serious case of murder.  I could not argue with that.  But it does not import an intent to kill, to take it to the next level is my argument.

KIEFEL J:   One of the difficulties, though, is that there were a number of aggravating factors in this case.  Even if you put the question of intention or

no intention as a factor, the aggravating factors here must have had a significant effect on sentence.

MR GIUDICE:   Yes.

KIEFEL J:   That includes the conduct after the murder occurred which must have conveyed quite a lot about this particular offender to the sentencing judge.

MR GIUDICE:   Yes, your Honour, except, of course, that there is an absence of aggravating factors in this case too, like premeditation, planning, deliberate killing, great cruelty, sexual degradation, breach of restraining orders and a relentless attack and a deprivation of liberty, no financial gain, the sorts of things we see in very serious cases of homicide.

KIEFEL J:   He went armed.  The likelihood of something occurring was very high.  I think that has a significant effect on the first three or four of the factors you have just listed.

MR GIUDICE: Yes. That raises the other question, your Honour, in my respectful submission, as to what is the intention contemplated in section 279(1)(b). Is it an intent to do a bodily injury which, objectively looked at, is of a nature likely to endanger life or is it an intention in relation to the nature of the injury, if I am not putting it – in other words, are we looking at an intent to cause a bodily injury or intending the nature of it? It was always the point of Mr Pedersen that he did not intend life‑threatening consequences. He struck out and snapped and was not thinking straight and just stabbed.

That is a question which is perhaps one worth considering in this appeal if you look at the actual words of the section, your Honour, because right through this matter there is this red herring, in my submission, of an intent to do grievous bodily harm.  That was the old regime, but the new one is it is an intent to cause a bodily injury, which bodily injury is of such a nature as to endanger life.  In my submission, that was an error in the sentencing of this man.  Consideration should have been given to that question and a finding made in his favour, that is, that he did not intend the nature of the injury.  So those are my submissions, your Honours, apart from what I have said in the submissions.

CRENNAN J:   Thank you very much.  We will not require your assistance, Mr Fiannaca.

The applicant, who was sentenced to life imprisonment for murder pursuant to section 279(1)(b) and 279(4) of the Criminal Code (WA), seeks special leave to appeal against a minimum non‑parole period of 19 years fixed by the sentencing judge. Section 90 of the Sentencing Act 1995 (WA) requires that a court sentencing an offender to life imprisonment for murder set a minimum non‑parole period of at least 10 years or order that the offender never be released.

The applicant complains that the lack of intention as a factor relevant to the sentencing judge’s discretion was overlooked.  Even if this were so, this is a case where there were several aggravating features.  No ground is disclosed in the application which would warrant a grant of special leave for interfering with the exercise of that discretion.  Special leave is refused.

AT 2.52 PM THE MATTER WAS CONCLUDED