Pedersen v The State of Western Australia - [2010] WASCA 175

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PEDERSEN -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 175

CORAM: McLURE P
BUSS JA
MAZZA J

HEARD: 20 JULY 2010

DELIVERED : 9 SEPTEMBER 2010

FILE NO/S: CACR 154 of 2009

BETWEEN: ERIC PEDERSEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McKECHNIE J
File No  :INS GER 82 of 2009

Catchwords:

Criminal law - Sentencing - Appeal by offender - Murder - Offender sentenced on the basis of an intention only to do grievous bodily harm - Life imprisonment with a minimum non-parole period of 19 years - Whether the minimum term was manifestly excessive - Whether the sentencing judge erred in not taking into account, alternatively not placing sufficient weight on, the absence of an intention to kill when fixing the minimum term - The relevance, in sentencing the offender on the count of murder, of other criminal conduct engaged in by him shortly after the killing

Legislation:

Criminal Code (WA), s 279(1)(b)
Criminal Law Amendment (Homicide) Act 2008 (WA)
Sentencing Act 1995 (WA), s 90(1)(a)

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr P G Giudice
Respondent: Mr J Mactaggart

Solicitors:

Appellant: George Giudice Law Chambers
Respondent: Director of Public Prosecutions (WA)

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

Atherden v The State of Western Australia [2010] WASCA 33
Austic v The State of Western Australia [2010] WASCA 110
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Butler v The State of Western Australia [2010] WASCA 104
Damiani v The State of Western Australia [2006] WASCA 47
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372
Heijne v The State of Western Australia [2010] WASCA 86
Krijestorac v The State of Western Australia [2010] WASCA 35
Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Martin [2007] VSCA 291
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
R v Wright (1997) 93 A Crim R 48
The State of Western Australia v Pickett INS 160 of 2009, 6 November 2009
Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385
Wheeler v The Queen [No 2] [2010] WASCA 105

McLURE P: I agree with Buss JA.
BUSS JA: The appellant was convicted in the Supreme Court, on his pleas of guilty, of one count of aggravated burglary, one count of murder, one count of going armed to cause fear and one count of criminal damage.
All of the offences occurred on 15 November 2008.
The appellant received sentences of imprisonment, as follows:
(a)aggravated burglary: 2 years (count 1);
(b)murder: life imprisonment with a minimum term of 19 years (count 2);
(c)going armed to cause fear: 2 years 6 months (count 3); and
(d)criminal damage: 1 year (count 4).
Each of the sentences was ordered to commence on 16 November 2008, being the date on which the appellant was taken into custody for the offences.
The appellant appeals to this court against the minimum term imposed for the count of murder.

The background facts and circumstances

On 15 November 2008, the appellant attended the home of a 94‑year‑old man with the intention of stealing a gun and ammunition. The appellant believed that he had been threatened by Christopher Dodd, the half‑brother of his (the appellant's) de facto partner. The appellant took a knife with him to the 94‑year‑old victim's home, and entered the premises by opening a closed, but unlocked, rear sliding door.
When he entered the home, the appellant was confronted by the victim. The appellant stabbed him several times with the knife. The victim suffered defensive wounds to both hands, a superficial wound to his chest, and a fatal wound to his chest which penetrated the aorta. The fatal wound quickly caused the victim's death.
The prosecution accepted that the appellant's intention was to do grievous bodily harm to the victim.
After stabbing the victim, the appellant stole a .270 calibre rifle and ammunition from the victim's gun cabinet. He then drove with the rifle

and ammunition to an address where Mr Dodd and his family resided. The appellant fired two shots from the rifle in the direction of Mr Dodd. The first shot missed him narrowly. Both shots entered the residence, where other members of Mr Dodd's family were present.

The appellant then drove to a hill overlooking the property of his brother‑in‑law, Donald Connolly. He shot and killed a llama, which was the pet of Mr Connolly and his family.
Next, the appellant went to his parents' house. Here, he was restrained by family and friends, and police were called.
The appellant was interviewed by police on 16 November 2008, 19 November 2008 and 10 February 2009. During the first and second interviews, he exercised his right to silence. But during the third interview, he provided a false version of events in which he blamed an innocent third party for the killing. The appellant had previously provided a written statement to police through his lawyer in which he also blamed the third party. At all material times the third party was in Perth. He had no involvement in the events in question.
On 23 July 2009, the appellant pleaded guilty to the offences.

The psychiatrist's report and the psychologist's report

The materials before the sentencing judge included a psychiatrist's report from Dr Adam Brett, a consultant forensic psychiatrist, and a psychologist's report from Ms Mary‑Anne Martin, a forensic psychologist.
Dr Brett's report dated 17 August 2009 included the following opinion:
Mr Pedersen is currently being treated for a psychotic disorder. It is unclear, what the cause of this psychotic disorder is. It appears to have a chronological relationship with substance abuse. I note that he has previously been treated for amphetamine‑induced psychosis in the early nineties, though this has not been confirmed through collateral sources. It is unclear what his mental state was like at the time of the offences and it is unclear of the relationship between his psychosis and the alleged offences. … From the history available to me I was not convinced that Mr Pedersen has chronic paranoid schizophrenia, however it is clear that he has suffered from psychosis previously.
In her report dated 1 October 2009, Ms Martin recorded the appellant's history of substance abuse, as follows:
Mr Pedersen reported that he started drinking alcohol around 17 years and reported that he was a 'happy drunk'. He said he probably drank a half bottle of spirits about once a week. He reported using amphetamines from about the age of 31 years, after a marriage break up. He said that he was using about $300 worth in a day, but not daily use. He indicated that despite his drug use he maintained his employment, and responsibilities and was not committing crime to fund his habit. He said he was most likely to use amphetamines on or around payday.
Mr Pedersen reported experiencing amphetamine psychosis on a couple of occasions, but these incidents appear fairly mild, for example believing the police were following him, and on one occasion believing he had had a conversation with his brother in law who was not there. He reported that he had tried to stop his drug use on a number of occasions and had been involved in the Teen Challenge program in 1992. He felt he had gained from this program in [sic] understanding about lapsing back into drug use, but it appears this may have been an excuse for him to relapse into full time use.
Mr Pedersen said he also had problematic heroin use in 1995 for about 3 months. He said at that time there was 'no speed around' so he used heroin instead. He said he nearly died from an accidental overdose and went onto the Methadone program. He has been on and off that program since. He reported starting Methadone again two years ago after a friend had been giving him morphine for about 6 months. He acknowledged continuing to use amphetamines, and other prescription drugs while on Methadone. His partner reported he was using a cocktail of prescription drugs including Zanax, Valium, Panadeine Forte, Methadone.
Ms Martin said that the interaction of a number of variables contributed to the appellant's commission of the offences in question. She referred to:
(a)his personality style, which results in his not dealing with conflict and disagreement in an assertive manner;
(b)his use of amphetamines, alcohol and other drugs, coupled with withdrawal from methadone, which may have affected his judgment and problem solving ability;
(c)an increase in conflict and tension in the lead‑up to the offences; and
(d)the availability of weapons on the day of the offending.
According to Ms Martin, the appellant was at a relatively low risk of violent reoffending, but any programme interventions should address his substance abuse, assertiveness, problem solving and stress management.

The sentencing judge's remarks

The sentencing judge, McKechnie J, disbelieved the appellant's assertion that he took the knife to the victim's house for the purpose of breaking into the gun cabinet. He was satisfied that the appellant took the knife in order to overcome any resistance.
His Honour referred to the psychiatrist's report and the psychologist's report. He noted Ms Martin's view that the appellant was at a relatively low risk of violent reoffending, and then said:
However, I simply do not know. Unless you address your abuse of substances no one can know [12].
The sentencing judge noted the plea of guilty and said the minimum term he set would reflect that plea [15]. Although his Honour gave the appellant credit for the plea, he observed that it was not made as soon as possible. It was made only when the appellant had 'run out of options', and closure for the victim's family had been delayed longer than was necessary.
The pre‑sentence report recorded the appellant as having said that he was devastated by his behaviour and its impact on his family and the victim. His Honour said that remorse was a difficult emotion to judge in that it was often allied with regret, which counts for little [16]. He added that if the appellant was remorseful then it was 'some time coming' and, in the meantime, he had attempted to blame someone else for the crime [17].
The sentencing judge referred in some detail to the appellant's elaborate attempts to blame the third party. His Honour regarded this conduct as an aggravating factor. He said:
First, it demonstrates to me a lack of remorse and amply illustrates what comes clear from all the facts ‑ that your actions are all about you, regardless of the rights of others. You are self-absorbed.
Secondly, it plays a part in the overall circumstances of your offending. Your attempt to evade responsibility is an aggravating factor.
Thirdly, it is testament to your character ‑ violent, dishonest and self‑centred [24] ‑ [26].
His Honour mentioned the appellant's prior criminal record. He noted that the appellant had always been 'the lawbreaker', although most of his offending had involved petty crime. Of concern, however, was an armed robbery he had committed. This had involved threatening a veterinary surgeon with a knife in order to obtain morphine. In addition, he had a conviction for the possession of an offensive weapon (also, a knife). However, both of these events occurred many years previously and, for that reason, his Honour did not give them much weight [27].
The sentencing judge noted, favourably to the appellant, that he had generally been employed despite having suffered a serious injury about 25 years previously. He had children and was in a relationship when the offences in question were committed.
The sentencing judge summarised the aggravating and mitigating features of the appellant's offending as follows:
Aggravating factors
There are a number of matters which aggravate your criminal conduct overall:
•The victim was over the age of 60, in fact an elderly man of 94. Most homeowners are vulnerable but because of his age he was especially so.
•You had armed yourself.
•You broke in at a time when it was highly likely that a householder would be home.
•You stabbed Mr Hollomby [the victim] repeatedly.
•After killing him, you moved his body to hide it and you continued on with your quest to get firearms.
•The firearms were for the purpose, at the least, to terrify Mr Dodd and you took ammunition intending that you would be, in every sense of the word, armed.
•You went to Mr Dodd's home and fired a number of shots in complete disregard of the life or safety of others even though you had already killed.
•You concocted a plausible lie seeking to blame someone else and you continued to evade your responsibility for the murder for months.
•In addition to these aggravating factors, in setting minimum terms I take account of the need to deter burglars from arming themselves and attacking householders. Where the consequences to the householders are grave so will be the consequences to the burglar.
Mitigating factors
•Your plea of guilty.
•Your lack of serious prior offending for many years.
•Mr Giudice has argued that I should take into account your mental illness as a mitigating factor. You seem to have occasional psychotic episodes. However, nothing about your behaviour on the day suggests a mental illness operated. Your actions were by and large logical and showed a significant measure of control. To the extent your mind was clouded, it was clouded by half a bottle of vodka and methylamphetamine - not a mitigating circumstance at all [30].

The grounds of appeal

The appellant relies on two grounds of appeal.
Ground 1 alleges that the sentencing judge imposed a minimum term for the count of murder which was manifestly excessive. Ground 2 alleges that his Honour was wrong, in the circumstances of this case, in not taking into account, alternatively not placing sufficient weight on, the absence of an intention to kill when fixing the minimum term.
On 5 March 2010, Owen JA granted leave to appeal on both grounds.

The appellant's submissions on grounds 1 and 2

Counsel for the appellant argued that the minimum term of 19 years was manifestly excessive in that:
(a)His Honour placed insufficient weight on one or more of the following factors:
(i)the plea of guilty;
(ii)the expressions of relief of the family because of the plea;
(iii)the psychological and psychiatric condition of the appellant;
(iv)the absence of violent assaults on his record of convictions;
(v)the low risk of reoffending, according to the psychologist's report;
(vi)the age and personal circumstances of the appellant; and
(vii)the absence of premeditation, planning, potential financial gain, great cruelty and other aggravating factors often seen in homicide cases, such as torture, deprivation of liberty and degradation of the victim.
(b)His Honour placed excessive weight on attempts by the appellant to blame a third party for the murder and to evade responsibility for it. According to counsel, his Honour should have placed more weight on the futility of the attempt, the appellant's psychological and psychiatric condition, the fact that the appellant was facing a prosecution allegation of an intention to kill which was later not pursued, and the fact that the attempt was relatively short lived.
(c)His Honour was wrong in taking into account the circumstances of the commission of counts 1, 3 and 4 in setting the minimum term for the murder (count 2).
Counsel for the appellant also argued that the minimum term of 19 years gave no weight, alternatively insufficient weight, to the absence of an intention to kill the victim. Counsel referred, in particular, to Atherden v The State of Western Australia [2010] WASCA 33 and The State of Western Australia v Pickett INS 160 of 2009, 6 November 2009.
In Atherden, the offender was convicted, on his plea of guilty, of murder and sentenced to life imprisonment with a minimum non‑parole period of 16 years. He appealed against the minimum non‑parole period. This court allowed the appeal on the basis that the sentencing judge had made an express error in failing to reduce the offender's non‑parole period for his plea of guilty. That error enlivened this court's power to set aside that part of the sentence and to resentence the offender. After having regard to all relevant sentencing factors (in particular, that the offence was not pre‑meditated, the offender had no intention to kill, and the offender had pleaded guilty and cooperated with authorities) this court decided that a non‑parole period of 14 years was appropriate. The appeal was not allowed on the basis that the non‑parole period imposed by the sentencing judge was manifestly excessive.
In Pickett, the offender pleaded guilty to the offence of murder. He had stabbed his wife to death. The offender had a history of violence towards his wife. Violence restraining orders had been made against him. On the night in question, the offender knew that his wife was staying with family and friends and he decided to break into the house and stab her. He armed himself with two knives. The offender gained entry to the house through a rear window. The wife was alerted to the offender's presence. She collected her 3‑year‑old daughter and carried her outside the front door of the house. As she started to run away, the offender grabbed hold of her, yelled at her and stabbed her repeatedly. He then ran from the area and left his wife to die. On the following day, the offender handed himself into the police. Notwithstanding the ferocity and savagery of his attack, the offender denied an intention to kill his wife. When he agreed to enter a plea of guilty, the prosecution did not challenge this denial and was prepared to accept the plea on the basis that he had intended only to do grievous bodily harm. The offender was sentenced to life imprisonment with a minimum non‑parole period of 20 years.

Manifest excess and inadequate weight

A ground of appeal which alleges that a sentence (including a minimum term) is manifestly excessive asserts the existence of an implied error.
It is necessary, in determining whether a minimum term is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, any upper or lower limits on the available minimum term, the standards of sentencing customarily observed with respect to minimum terms for that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
An alleged failure by a sentencing judge to give any or adequate weight, or a complaint that a sentencing judge gave excessive weight, to a relevant sentencing consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 330.

The merits of grounds 1 and 2

It is convenient to consider grounds 1 and 2 together.
In the present case, the appellant was sentenced under the new legislative scheme introduced by the Criminal Law Amendment (Homicide) Act 2008 (WA). In Austic v The State of Western Australia [2010] WASCA 110, I examined the proper approach to sentencing under this scheme [153] ‑ [176]. It is convenient to repeat my observations in Austic to the extent that they relate to the fixing of a minimum term where life imprisonment is imposed for the new offence of murder.

A non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 - 629; Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367; Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372, 396; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531.
Several observations may be made in relation to the determination of the non-parole period where an offender is to be sentenced to life imprisonment for the new offence of murder and the sentencing court has decided to proceed under s 90(1)(a) of the Sentencing Act 1995 (WA) and fix a minimum period (instead of proceeding under s 90(1)(b) and ordering that the offender must never be released).
First, the considerations which the sentencing court must take into account in setting the non-parole period are all relevant sentencing factors, including the circumstances of the offence, all aggravating and mitigating factors and the offender's personal antecedents.
Secondly, the non-parole period must be set by reference to achieving or satisfying all relevant sentencing objectives, including punishment, retribution, person deterrence and general deterrence.
Thirdly, sentencing dispositions under the previous legislative scheme will generally be of some assistance in determining the length of the non-parole period for the new offence of murder where the sentencing court has decided to impose life imprisonment and set a minimum period under s 90(1)(a) of the Sentencing Act. It is essential, however, to bear in mind the following:
(a)The increase in the statutory minimum period from 7 to 10 years was made in the context of eliminating from the definition of murder, the unlawful killing of another person where the offender (merely) intends to cause bodily injury of such a nature as to cause, or be likely to cause, permanent injury to the health of the person killed or another person.
(b)The strict ranges of available non-parole periods based on the distinctions under the previous legislative scheme between wilful murder and murder, and between wilful murder carrying strict security life imprisonment and wilful murder carrying (merely) life imprisonment, have been abolished. These strict ranges were not always appropriate to the facts and circumstances of a particular offender and his or her offending. The proper exercise of the sentencing discretion is no longer constrained by the rigidity of the previous legislative scheme (including the sentencing framework).
(c)The comments of Wheeler JA (McLure P & Owen JA agreeing) in Atherden [30] ‑ [31].
Fourthly, the offender's intention in relation to the particular killing is a relevant fact or circumstance (invariably, if not always, a very significant matter) to be considered together with all the other relevant facts and circumstances of the offending and the offender in determining the appropriate non-parole period.
Fifthly, the removal of the demarcation between wilful murder and murder, and the abolition of the strict ranges of available non-parole periods under the previous legislative scheme, may result in some increase in the non-parole period for offending that would formerly have attracted a non-parole period at or very close to the upper limit of a previously applicable range.
In the present case, I am satisfied that the sentencing judge took into account all relevant sentencing considerations. Further, I am satisfied that there is no express appealable error on the basis of the weight which his Honour accorded to those considerations; that is, his Honour did not fail to exercise the discretion entrusted to him.
As to the plea of guilty, the sentencing judge noted the plea and said the minimum term would reflect it. The plea of guilty to the offence of murder, as constituted under s 279(1)(b) of the Criminal Code (WA), was entered on 23 July 2009. The appellant had previously entered a plea of guilty to murder, as constituted under s 279(1)(c), on 6 May 2009, about five and a half months after the commission of the offence. As his Honour noted, the appellant had in the interval endeavoured to blame an innocent third party for the crime.
The sentencing judge gave the appellant credit for the fact that his plea had saved the victim's family from the distress of a trial and had brought some closure to them (ts 53). However, as his Honour rightly noted, closure had been delayed for longer than was necessary, especially in circumstances where the appellant had sought to evade responsibility for a number of months by attempting to incriminate the third party.
As to psychological and psychiatric issues:
(a)It is well‑established that where an offender's mental illness or psychological difficulties have been self‑induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is not generally to be regarded as mitigating the offence. In these circumstances, the offender is generally to be regarded as morally responsible for his or her condition. See R v Wright (1997) 93 A Crim R 48; R v Martin [2007] VSCA 291; Damiani v The State of Western Australia [2006] WASCA 47 [41] ‑ [42]; Butler v The State of Western Australia [2010] WASCA 104 [8].
(b)It is also well‑established that where an offender's mental illness or psychological difficulties have not been self‑induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is a relevant factor in the sentencing process. The effect of mental illness or psychological difficulties (falling short of insanity) on the kind or length of sentence to be imposed has been considered by the Court of Criminal Appeal and this court on several occasions. See, for example, Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442; Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; Krijestorac v The State of Western Australia [2010] WASCA 35. The effect of mental illness or psychological difficulties (falling short of insanity) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. See R vVerdins [2007] VSCA 102; (2007) 16 VR 269 [25]; Wheeler v The Queen [No 2] [2010] WASCA 105 [9]. An offender who seeks to rely on mental illness or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour. See Wheeler [No 2] [10].
In the present case, there was no cogent evidence about the relationship (if any) between any mental illness suffered by the appellant and his offending. There was no foundation in the evidence which could have justified the sentencing judge making a finding that the murder was caused or contributed to by mental illness.
Dr Brett was not convinced that the appellant has chronic paranoid schizophrenia. He said it was unclear what the appellant's mental state was like at the time of the offences. An episode of psychosis experienced by the appellant in the 1990s appears to have been induced by the ingestion of amphetamines.
Ms Martin expressed the opinion that the appellant's use of amphetamines, alcohol and other drugs, coupled with the withdrawal of methadone, may have affected his judgment and contributed to the commission of the offences.
During the sentencing hearing, the prosecutor referred his Honour to certain comments made by the appellant to the authors of the expert reports about his having been refused methadone at or about the time of the offences. As the prosecutor submitted, a statement by a pharmacist at the pharmacy used by the appellant indicates that, in truth, the appellant was given methadone on the day before his offending (ts 43).
His Honour had regard to the psychiatrist's report and the psychologist's report. He expressly referred to them in the course of his remarks.
His Honour was entitled to conclude, as he did, that there was nothing about the appellant's behaviour on the day in question which suggested a mental illness was affecting him and that, to the extent his mind was 'clouded', this was the result of his voluntary ingestion of half a bottle of vodka and methylamphetamines.
The sentencing judge did not make any error in the manner in which he dealt with the issue of mental illness.
As to the absence of violent assaults in the appellant's prior criminal record, although most of the appellant's prior offending involved 'petty crime', he had a conviction for armed robbery which involved a threat made with a knife. In any event, his Honour did not give the prior convictions 'much weight' because the more serious offences had occurred many years previously. In the circumstances, there is little mitigation in the absence of 'violent assaults' on the appellant's prior criminal record.
As to the risk of the appellant reoffending, the sentencing judge was not bound to accept Ms Martin's view. He was entitled, in my opinion, to comment that he 'simply did not know' whether the appellant was, in fact, at a relatively low risk of violent reoffending and to comment that unless the appellant addressed his abuse of substances no one could know. His Honour did not deal with the appellant on the basis that he posed a material risk of reoffending upon his release from custody.
As to the appellant's age and personal circumstances, these were not matters of significant mitigation. He was born on 21 November 1958 and was therefore aged 49 years at the time of the offending. He was a man of mature years and was not entitled to any discount arising from youth or prior good character.
As to the absence of other aggravating factors often seen in homicide cases, this argument must be examined in the context of the numerous aggravating factors which attended the present case. See [27] above. In particular, the appellant had gone to the victim's home, armed with a knife, and with the intention of breaking in to steal a gun and ammunition, in circumstances where it was likely someone would be at home and the knife was taken in order to overcome any resistance. The victim was a very elderly man who posed a threat to no‑one. The circumstances of the present case, considered as a whole, require the conclusion that this was a very serious case of murder. The absence of other, even more egregious, aggravating factors does not derogate from that characterisation.
As I have mentioned, the prosecutor accepted during the sentencing hearing that the appellant had no intention to kill. This concession was accepted by his Honour.
The absence of an intention to kill was a relevant sentencing factor to be taken into account, in combination with all other relevant sentencing factors, in determining the overall seriousness of the offending. It is plain, in my opinion, that the sentencing judge engaged in this process and took into account, favourably to the appellant, that he did not have an intention to kill, but 'merely' an intention to do grievous bodily harm. 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 the present case, this principle is reflected in his Honour's reasons.
The appellant's behaviour after he killed the victim (that is, the criminal conduct the subject of counts 3 and 4) was, of course, different

criminality from that embodied in the count of murder, but it reveals the appellant's state of mind on the day in question and the overall devastating consequences which the implementation of his plan occasioned. His Honour approached the sentencing for the murder, rightly in my opinion, on the basis that what happened before and after the killing were circumstances relevant to the commission of the murder. He took those circumstances into account in determining the appropriate sentence for the murder, but emphasised, correctly, that those circumstances would not be taken into account in sentencing for the other counts. That approach was appropriate.

I have, in examining the appellant's grounds of appeal, considered the minimum non‑parole period imposed in numerous other cases including Austic, Atherden, Pickett, Heijne v The State of Western Australia [2010] WASCA 86, the cases listed in my reasons in Austic [150] and other cases listed in a schedule provided to the court by the appellant's counsel.
In my opinion, when the minimum non‑parole period of 19 years is examined in the context of the sentencing framework under the new legislation, the customary standards of sentencing apparent from cases under the new and the previous legislative scheme, the objective seriousness of the offending and the appellant's personal circumstances, it must be concluded that it was reasonably open to his Honour to impose that non‑parole period. All of the matters to which I have referred do not indicate that the sentencing outcome was plainly unreasonable or unjust. No implied error has been established.

Conclusion

I would dismiss the appeal.
MAZZA J: I agree with Buss JA.