Roberts v The Queen
[2003] WASCA 237
•3 OCTOBER 2003
ROBERTS -v- THE QUEEN [2003] WASCA 237
| (2003) 28 WAR 381 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 237 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:8/2003 | 11 SEPTEMBER 2003 | |
| Coram: | MALCOLM CJ STEYTLER J PARKER J | 3/10/03 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | FRANCIS GERALD ROBERTS THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Wilful murder Unprovoked frenzied killing of stranger 98 stab wounds, a number of which would each have been fatal Whether imposition of a sentence of strict security life imprisonment with a minimum of 20 years constituted an error of law and a sentence of life imprisonment should have been imposed Principles to be applied |
Legislation: | Acts Amendment (Abolition of Capital Punishment) Act 1984 (WA) Acts Amendment (Strict Security Life Imprisonment) Act 1980 (WA) Criminal Code (WA), s 282 Criminal Law Amendment Act 1994 (WA) Offenders Community Corrections Act 1963 (WA), s 40(2)(c), s 40(2)(d) Offenders Probation and Parole Act 1963 (WA) Sentencing Act 1995 (WA), s 90(2), s 91(1) |
Case References: | Black v The Queen (1993) 179 CLR 44 Griffin v The Queen [2001] WASCA 11. , Hoare v The Queen (No 2), unreported; CCA SCt of WA; Library No 6240; 10 April 1986 Hoare v The Queen, unreported; CCA SCt of WA; Library No 6138; 13 December 1985 Jackson v The Queen [1990] WAR 105 Lowndes v The Queen (1999) 8 CA 29; (1999) 195 CLR 665 Monaghan v The Queen (1990) 3 WAR 466 R v Pearce, unreported; SCt of WA; No 92 of 1984 (Smith J); 15 February 1985 Williams v The Queen (1996) 17 WAR 17 Mitchell v The Queen (1995) 184 CLR 333 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ROBERTS -v- THE QUEEN [2003] WASCA 237 CORAM : MALCOLM CJ
- STEYTLER J
PARKER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Wilful murder - Unprovoked frenzied killing of stranger - 98 stab wounds, a number of which would each have been fatal - Whether imposition of a sentence of strict security life imprisonment with a minimum of 20 years constituted an error of law and a sentence of life imprisonment should have been imposed - Principles to be applied
Legislation:
Acts Amendment (Abolition of Capital Punishment) Act 1984 (WA)
Acts Amendment (Strict Security Life Imprisonment) Act 1980 (WA)
Criminal Code (WA), s 282
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Criminal Law Amendment Act 1994 (WA)
Offenders Community Corrections Act 1963 (WA), s 40(2)(c), s 40(2)(d)
Offenders Probation and Parole Act 1963 (WA)
Sentencing Act 1995 (WA), s 90(2), s 91(1)
Result:
Leave to appeal granted
Appeal dismissed
Category: A
Representation:
Counsel:
Applicant : Mr P G Giudice
Respondent : Mr J Mactaggart
Solicitors:
Applicant : George Giudice Law Chambers
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Black v The Queen (1993) 179 CLR 44
Griffin v The Queen [2001] WASCA 11
Hoare v The Queen (No 2), unreported; CCA SCt of WA; Library No 6240; 10 April 1986
Hoare v The Queen, unreported; CCA SCt of WA; Library No 6138; 13 December 1985
Jackson v The Queen [1990] WAR 105
Lowndes v The Queen (1999) 8 CA 29; (1999) 195 CLR 665
Monaghan v The Queen (1990) 3 WAR 466
R v Pearce, unreported; SCt of WA; No 92 of 1984 (Smith J); 15 February 1985
Williams v The Queen (1996) 17 WAR 17
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Case(s) also cited:
Mitchell v The Queen (1995) 184 CLR 333
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1 MALCOLM CJ: This is an application for leave to appeal against sentence, although, in the relevant form the applicant was described as "the appellant", who "appeals against/applies for leave to appeal against" the sentence of strict security life imprisonment imposed upon him with a non-parole period of 20 years. The single ground of appeal is that:
"The learned trial Judge erred in law in that she sentenced me to strict security life imprisonment with a minimum of 20 years instead of life imprisonment."
- No particulars of the ground were provided in the notice.
2 After a trial by jury over some eight days commencing on 6 December 2002, the applicant was convicted on 13 December 2002 of the wilful murder at Caversham, of one Frank Weston. This was the second time that the applicant had stood trial for this offence. The first trial was in February 2001. The applicant was convicted and subsequently sentenced by Miller J on 1 March 2001 to strict security life imprisonment with a non-parole period of a minimum of 25 years, backdated to 23 March 2000 when the applicant was taken into custody.
3 The applicant appealed against his conviction on the ground that he had been deprived of a fair trial by comments made by the learned trial Judge to the jury which departed from the model direction formulated by the High Court to be given under the circumstances which then arose, as formulated in Black v The Queen (1993) 179 CLR 44 at 51 – 52 per Mason CJ, Brennan, Dawson and McHugh JJ.
4 On 20 December 2002, the applicant was sentenced by Wheeler J to strict security life imprisonment with a minimum term of 20 years, backdated to 23 March 2000, when the applicant was arrested and taken into custody.
5 The contentions relied upon in support of the ground of appeal were that the learned Judge failed properly to exercise her discretion in deciding that:
(a) the wilful murder was in the upper range; and
(b) even if it was in the upper range it was unnecessary to impose strict security life imprisonment instead of life imprisonment, given the absence of aggravating factors (apart from the number of stab wounds), the antecedents of the applicant and other relevant particulars.
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6 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: Criminal Code, s 282; Offenders Community Corrections Act 1963 (WA), s 40(2)(c) and s 40(2)(d); and Sentencing Act 1995 (WA), ss 90(2) and 91(1). Section 282 of the Criminal Code provides that a person, other than a child, who commits the crime of wilful murder is liable to a mandatory punishment of strict security life imprisonmentor life imprisonment. As I said in Griffin v The Queen [2001] WASCA 11 at [44]:
"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: see Mitchell v The Queen (1995) 184 CLR 333; Khoo v The Queen, unreported; CCA SCt of WA; Library No 960184; 2 April 1996; O'Connor v The Queen, unreported; CCA SCt of WA; Library No 940525; 22 September 1994; Monaghan v The Queen (1990) 3 WAR 466; and Jackson v The Queen [1990] WAR 105. 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: Jackson v The Queen, supra; King v The Queen, unreported; CCA SCt of WA; Library No 6607; 26 February 1987; Hoare v The Queen, unreported; CCA SCt of WA; Library No 6138; 13 December 1985 and Hoare v The Queen (No 2), unreported; CCA SCt of WA; Library No 6240; 10 April 1986 and Griffin v The Queen (supra)."
7 In imposing a sentence for wilful murder, the sentencing Judge is required to make a discretionary judgment at two levels. First, it is necessary to determine whether the case is one in which the sentence should be one of strict security life imprisonment rather than life imprisonment. Whatever choice is made in the exercise of discretion, a second discretionary judgment must then be made. Section 90 of the Sentencing Act 1995 (WA) provides that:
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- "(1) A court that sentences an offender to life imprisonment for murder must set a minimum period of at least 7 and not more than 14 years that the offender must serve before being eligible for release on parole.
(2) A court that sentences an offender to life imprisonment for wilful murder must set a minimum period of at least 15 and not more than 19 years that the offender must serve before being eligible for release on parole.
(3) The minimum period begins to run when the term of life imprisonment begins."
8 Section 91 deals with imposing strict security life imprisonment and provides that:
"(1) A court that sentences an offender to strict security life imprisonment must, unless it makes an order under subsection (3), set a minimum period of at least 20 and not more than 30 years that the offender must serve before being eligible for release on parole.
(2) The minimum period begins to run when the term of strict security life imprisonment begins.
(3) A court that sentences an offender to strict security life imprisonment must order that the offender be imprisoned for the whole of the offender's life 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 (3) is necessary, the only matters relating to the offence that are to be taken into account are ¾
(a) the circumstances of the commission of the offence; and
(b) any aggravating factors."
9 Section 20 of the Acts Amendment (Abolition of Capital Punishment) Act 1984 (WA) abolished the death penalty for the crime of wilful murder. This was achieved by amending s 282 of the Criminal Code to provide for a mandatory sentence of either strict security life imprisonment or life
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- imprisonment. As I have already noted, s 282 does not provide any criteria for the exercise of the discretion conferred on the sentencing Judge. In Jackson v The Queen (supra), in a Judgment of the Court (Malcolm CJ, Wallace and Walsh JJ), it was noted that:
"Section 282 of the Criminal Code as amended does not set out criteria for the exercise of a sentencing Judge's discretion. It is right that the discretion should be unfettered and the considerations relevant to the exercise of the discretion determined by the course of judicial decision. The manner in which the discretion should be exercised was first considered in detailed reasons published by Smith J in R v Pearce (unreported, Supreme Court, WA, No 92 of 1984, Smith J, 15 February 1985) and by the Court of Criminal Appeal in Hoare v The Queen (unreported, Supreme Court, WA, CCA, No 134 of 1985, 13 December 1985; Hoare v The Queen (No 2) (unreported, Supreme Court, WA, CCA, Burt CJ, Brinsden and Smith JJ, 10 April 1986). In Pearce, Smith J commented:
'Some guidance is to be found in the speech of the then Attorney General, the Honourable I D Medcalf QC, when introducing the bill. Mr Medcalf then stated that the government had become aware of expressions of public concern over the question of the protection of the community and the preservation of public safety and he went on to say and I quote:
"Although any case of wilful murder is by definition serious, some may be considerably worse than others."
It is apparent in any event, I think, that an enactment which makes provision for alternative mandatory penalties which differ markedly in severity for the same offence, calls upon a sentencing Judge to distinguish between the degrees of culpability in respect of that crime – in this case, wilful murder. It is proper, also, that a person required to exercise that discretion should have regard to whether the facts of the particular case taken in conjunction with the background of the prisoner indicate that the prisoner should be looked upon as presenting a substantial risk to the community in the future.
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- It goes without saying, I think, that notwithstanding the submissions of Mr French as to the effect of a sentence of life imprisonment, the first step of a sentencing Judge in exercising this discretion is to inform himself of the practical result of each form of disposition, but having done so the primary responsibility in sentencing, in my opinion, is to assess the gravity of the crime or crimes the subject of the indictment and in a case such as this to undertake the unusual task of placing homicide or homicides somewhere in the scale of other crimes of wilful murder, to inquire whether it or they are more or less serious cases of their kind.
Further, regard must be had to the prisoner's antecedents generally and in particular to his conduct since he has come under the notice of the law for the purpose of giving proper weight to matters arising there from, both favourable to the prisoner and matters which may affect the protection or the safety of the community. It is of importance also to bear in mind, in relation to the exercise of this discretion, that the criminal law enshrines the values of our society and of our Judeo-Christian tradition that the sanctity of human life is of the utmost importance. Hence, it must not be overlooked that one of the two dispositions open to a sentencing Judge equates the penalty for the crime of murder, the elements of which do not include an intent to kill.
It is therefore, I think, only in the case of what can be classified as a less serious example of a crime of wilful murder that the penalty of life imprisonment should be chosen as the appropriate penalty for the case.'
- In Hoare when that case was first before the Court of Criminal Appeal, Brinsden J said:
'In my view the Court is required to analyse the circumstances of the case and the antecedents of the prisoner and decide having regard to the need to protect the public, what is the appropriate penalty. I agree with the remarks of Smith J when he came to sentence one Robert Barry Pearce that the section requires a sentencing Judge to distinguish between the degrees of culpability in
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- respect of wilful murder and that regard should be paid as to whether the facts of the particular case taken in conjunction with the background of the prisoner indicate that the prisoner should be looked upon as presenting a substantial risk to the community in the future.'
- In the subsequent joint Judgment of the Court, Burt CJ, Brinsden and Smith JJ in Hoare (No 2), their Honours commented that in the reasons previously published:
'… Each member of the Court expressed the view that in making the judicial choice which the sentencing Judge is required to make pursuant to s 282(a) of the Criminal Code as amended by s 20 of the Acts Amendment (Abolition of Capital Punishment) Act consideration must be given both to the circumstances of the crime and to the antecedents of the convicted person which are mitigating in their character giving to the word "antecedents" the full meaning ascribed to it by Windeyer J in Kobiak v Liddy (1968) 119 CLR 257 at 276 – 277.'
In the earlier decision in Hoare the relevance of the need to protect the community was expressly referred to by Brinsden and Smith JJ. Burt CJ had said that the relevant considerations:
'… may be found within the circumstances of the offence or with the antecedents of the convicted person – giving the word "antecedents" its full meaning, as to which see Windeyer J in Kobiak v Liddy (1968) 119 CLR 257 at 267 – 277.' "
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing Judge are well established. In their application to a Crown
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- appeal against sentence they were summarised in R v Allpass [(1994) 72 A Crim R 561] and R v Clarke [[1996] 2 VR 520]. Of particular importance in the present case is the principle that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. This is basic [House v The King (1936) 55 CLR 499]. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
11 The principle referred to is equally applicable to appeals against sentence.
12 In the present context, the principles to be applied were summarised by Owen J (with whom Kennedy and Pidgeon JJ agreed) in Williams v The Queen (1996) 17 WAR 17 at 26 as follows:
"In relation to the choice to be made under s282(a), I think that the principles which emerge from the authorities can be summarised in the way set out below.
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:
(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.
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- 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."
13 In my opinion, when Owen J commented that "No one factor has primacy over other factors", the meaning sought to be conveyed was that all of the factors which were relevant fell to be considered in any particular case, although the first matter to be considered was the circumstance of the commission of the offence and the gravity of the crime so as to rank it in the scale of other crimes of wilful murder.
14 In imposing sentence, it was necessary for the learned Judge to make the findings of fact which her Honour was able to make in accordance with the applicable standard of proof which was beyond a reasonable doubt. Her Honour noted that at the time sentence was passed on 20 December 2002, the coming Christmas Day would have been the 65th birthday of the victim who was a husband, father and grandfather much loved by his family. Her Honour went on to say:
"To contemplate what that day will be like for his family compared with what it might have been illustrates the difficulty of comparing one murder with another so as to determine how bad a particular one may be. In almost all, and certainly in this, someone is deeply mourned. In almost all, someone is horrified at the manner of the deceased's death and in almost all, in my experience, the character of the deceased is to a greater or lesser degree attacked and the deceased's friends feel that they have been unable to protect the deceased. All of these things are true of nearly every wilful murder. They are certainly true of this."
15 It is convenient to set out her Honour's findings. They were as follows:
"On the afternoon of 20 March 2000 you went to the Middle Swan Park on the upper reaches of the Swan River. You don't
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- seem to have gone there for any particular reason. Between about 1.15 and 2.30 you were sitting on the riverbank and talking to the deceased Mr Weston, whom you had met there.
You didn't know him. You didn't know anything about him. You were talking to him on a casual basis it seems, just chatting, and you appeared to observers to be acting quite normally, as was he. Some time thereafter you wilfully murdered him a short distance from the spot where you had been observed talking to him.
The circumstances in which the murder occurred were these: the deceased said something to you or made some gesture which enraged you, probably a homosexual approach of some sort. You took from a pouch on the side of your jeans a folding knife and attacked the deceased with it. He tried to defend himself by raising his arm, which received a number of slashing type wounds from the knife.
At some stage different items in his possession, a ring and watchband were dropped as he retreated from you. As he retreated from you, you pursued him and stabbed him many times. A large pool of blood was left some 30 paces or thereabouts from the point where he was ultimately found. There was a trail of blood described as being a type of splashing trail as of someone bleeding heavily over a distance of 30 paces or so, indicating that you had attacked him, pursued him with the knife, over that distance.
Finally, he collapsed in scrub near a fence which divides the Middle Swan Park from private property. In total you inflicted upon him a very large number of wounds; totalling, it would seem, more than 100. Some were so savage as to almost sever his head from his body. The wounds were all over his body including his back.
For some reason you pulled his shirt from his body and turned him over before stabbing him in the back. There was a very large pool of blood. Again, for some reason, you threw his shirt in the river and then left the spot where you had killed. His death would have occurred relatively quickly. A number of the wounds, and I will come back to this, were such as to have been
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- able to cause death and a number of them would have caused death within about 5 minutes or so.
You left the scene in your car and went home arriving there about a quarter to 5. You washed yourself. You hid the knife which you had used. You told the people with whom you lived that you had killed or perhaps stabbed a man but asked them not to inform the police. Fortunately they did. You were later arrested and questioned and you gave an account of what happened which was not true; in particular, you contended that the deceased had come at you with the knife and that you had wrestled it from him and stabbed him. The deceased did not have a knife. You at all times had the knife. That is clearly the view the jury must have taken and it's the view which I also take.
For the crime of wilful murder you are liable to a mandatory punishment of either strict security life imprisonment or life imprisonment. In determining the seriousness of this offence so as to choose between those two alternatives, I consider these factors:
you stabbed the victim, as I said, more than 100 times with such ferocity that you nearly severed his head from his body;
many of the wounds would have been capable of causing death;
the description of the scene makes it clear that you pursued him in order to persist in your attack and you did so at a time when he must already have been mortally wounded.
I reject your assertion that you asked others to go and check on him. It is my view that you must have understood him to be very seriously injured and you made no attempt, it seems to me, to assist or go for assistance. Your actions in attacking a person whom you had only met and spoken to over the course of an hour or thereabouts were without any justification or excuse.
On the other hand, there was no premeditation in the sense of pre-planning. You had not, it seems to me, intended to go out and kill anyone and the attack, although savage and persistent,
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- was over a relatively short period of time. The absence of premeditation and of a prolonged attack means that, in my view, it is not the most serious offence of its kind. However, the ferocity, the persistence, the fact that the deceased was entirely unarmed and defenceless and many years your senior put it in the upper rather than the lower range of wilful murders. In the absence of any particular factors of significance I consider that it should attract a sentence of strict security life imprisonment.
I turn now to matters personal to you. You were born in June 1971 and you were, at the time the offence was committed, a little under 30 years of age. Your parents separated when you were young; your father remarrying and you remaining with your mother. Before your parents separated there was a history of family violence and excessive alcohol consumption within the house. You were traumatised by frequent disputes and physical fights in which your father attacked your mother. I am sure that affected your development.
Between about 8 and 10 years of age, for a time, you were the victim of sexual abuse by an older man who lived nearby. It was not revealed to anybody and was not reported by you in later life but I accept that it had an immediate and lasting effect upon you.
You left school at year 10 level. After leaving school you worked in various occupations until in November 1994. At the age of 23 you were convicted in this Court of armed robbery while in company and sentenced to 4 years' imprisonment. In that case I am advised you were the driver of a get-away car. Your only other convictions are convictions for simple assault and stealing and I do not regard them as significant for present purposes.
Although you had a relationship with a woman for a period of some years, this had broken up before the commission of this offence. In recent times you had worked as a bricklayer's labourer but you were unemployed at the date of the offence. You have a history of substance abuse including marijuana, amphetamines and heroin, but before the commission of this offence you had ceased taking heroin and had engaged in the methadone programme.
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- That sad family history and particularly the sexual abuse are relevant mitigating factors but not in my view sufficient to affect what would otherwise be the appropriate sentence of strict security life imprisonment although I think they are relevant to the minimum term imposed.
So far as the risk which you may pose to the community is concerned, there is I think some risk of offence of violence on your part in the future. In forming that view I note your own account on the video record of interview of your violent temper which you seem to me to speak of as a force outside your control. The savagery of the attack is also a factor. In addition, I have some reservations about your expressions of remorse. They were made in the context of you giving an account of the attack which was untrue and you appeared to me to be largely acting a part rather than speaking with sincerity.
I do note on this trial, however, as distinct from the last trial, that your account of what happened was much less detailed. You affected to forget a great deal. In some small measure that may be considered to be encouraging as it seems to me that you found it perhaps more difficult to falsify what had occurred than you may have done in the past.
As to the appropriate minimum, I have, as I noted, had regard to the sentence imposed by Miller J. However, the evidence before his Honour led him to a particular view as to the risk you posed to the public. I have not heard the evidence of those witnesses. Although I do perceive some risk, my view is less firm than his Honour in that respect. Also I do give considerable weight to your unfortunate background and to the fact that, although not a young offender, you do seem to present as having lacked maturity which is perhaps not surprising given your circumstances in the past.
The sentence I would therefore impose on you is one of strict security life imprisonment with a minimum term of 20 years backdated to your arrest on 23 March 2000."
16 At the hearing of the appeal, counsel for the applicant made it clear that he did not wish to make any submission about the minimum terms which had been set. His submission was that the learned Judge erred in the exercise of her discretion by imposing a sentence of strict security life
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- imprisonment. It was submitted that this was not a case which should have attracted a sentence of strict security life imprisonment, but one that should have been dealt with by way of a sentence of life imprisonment. It was submitted that the learned Judge was in error in determining that while this was not a wilful murder in the worst category of wilful murders, it was one in the upper range. It was virtually conceded, however, that it was a wilful murder in the upper range in relation to a particular subset of wilful murders in that it was a single killing in circumstances where there was no provocation, no accompanying offence or offences, no premeditation or planning, but an offence which involved a sudden unprovoked attack over a relatively short period of time, involving a comparatively young offender with no serious record for offences of violence. It was also submitted that it was not a killing for gratification or a wilful murder for which there was no explanation.
17 It was further conceded by counsel for the applicant that the offence was in the upper range of the kind of wilful murder described. It was contended, however, that the aggravating factors that took it into the upper range were the number of stab wounds, the fact the victim was an older man who was unarmed and the evidence that he may have been pursued over a distance of about 30 metres and the applicant was also bleeding from his hand. It was submitted that those aggravating factors were not sufficient to take this particular offence of wilful murder into the upper range. Consequently, it was submitted that it was not, in law, a case that demanded strict security life imprisonment because of the absence of other aggravating factors (apart from the ferocity of the attack in terms of the number of stab wounds) because it did not involve multiple killings; deprivation of liberty before the killing; torture; kidnapping; a home invasion; degradation of the victim; the simultaneous commission of other offences; stalking; or sexual assault.
18 It was accepted by counsel for the applicant that "the attacks occurred suddenly without warning where the deceased was killed suddenly and quickly". There is no doubt that the first part of this concession was correct, but from the standpoint of the victim's family and the community, this was a particularly ferocious, vicious and frenzied killing of a particularly chilling nature, without any apparent motive. It was submitted, however, that it was not correct to say, as I did in Griffin (supra) at [44], that the factor which has primacy over other factors is the gravity of the crime. I have already dealt with this point. In my opinion, whether the gravity of the crime has primacy or not, it is a very significant factor and one which looms very large in the present case. While in Williams v The Queen (supra) at [26], Owen J did say (with the
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- agreement of Kennedy and Pidgeon JJ) that "no one factor has primacy over the other factors", it was nonetheless acknowledged that "So it is, for example, that in an individual case the sentencing Judge may be persuaded by the horrific nature of the crime … to impose a sentence of strict security life imprisonment."
19 In the present case, counsel for the applicant conceded that the circumstances could be such that the gravity of the crime could take primacy over other factors. The point made in Williams, (supra), was that in stating the principle, no one factor necessarily took primacy over the other factors. In a particular case, however, the circumstances of the commission of the offence and the gravity of the crime could place the offence in the upper range in the scale of seriousness in crimes of wilful murder.
20 It was submitted, however, that the learned sentencing Judge was in error in placing the case as high on the scale as the sentence imposed indicated. It was contended that this was the result of giving too much weight to the aggravating factors, namely, the number of stab wounds; the fact that the victim was an older man; and that he was unarmed. To these I would add the absence of any suggestion of any or any significant provocation. Counsel pointed to the absence of other aggravating circumstances. In my opinion, however, the circumstances under which this particular offence was committed and, in particular, the multiplicity of stab wounds and the savagery of the attack, meant that the circumstances were so grave as to enable it to be said that this was a case of wilful murder in the upper range of seriousness of such offences.
21 The question then arises whether there were mitigating circumstances which were such that they counterbalanced or at least reduced the seriousness of the offence to a degree which meant that the sentence of strict security life imprisonment was manifestly excessive. In this context, counsel for the applicant pointed to the applicant's record; the absence of any prior conviction for offences of extreme violence; and his history as a victim of sexual and physical abuse by an older man when he was a child. This was coupled with the fact that Her Honour found that the deceased said something to the applicant or made a gesture to him of a homosexual nature, which took the case out of the category of an infliction of gratuitous violence. Provocation, however, does not appear to have been a live issue at the trial. In my opinion, such evidence of provocation as there was, even assuming that it was accepted, does not appear to have been of any significance, either in terms of guilt or in terms of culpability for the purposes of sentencing.
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22 It was submitted on behalf of the applicant that the learned Judge should have given greater weight than was apparently given to other circumstances, including the applicant's sad family history; the fact that he had recently given up heroin, which left him in a vulnerable and fragile state; and his comparative youth at age 31, having been born on 28 June 1971. It was noted that in Griffin(supra), the offender was 36 years of age and was described as being of "comparative youth". Finally, reliance was placed upon the absence of any finding that there was any "significant and clear risk" that the applicant would commit acts of violence in the future. In her Honour's sentencing remarks, however, as has been seen, a specific finding was made that there was some risk of the applicant committing a violent offence in the future. This was based in part on the applicant's own statement in his record of interview that he had a violent temper which he spoke of as a force outside his control. Her Honour also had reservations about the applicant's remorse.
23 In passing sentence and fixing the minimum term, her Honour noted that Miller J had heard additional evidence which had led him to a particular view regarding the risk which the applicant posed to the public in the future. That evidence was not called or given before her Honour. In my opinion, this explains why the minimum term fixed by her Honour was 5 years less than the minimum term of 25 years fixed by Miller J.
24 Counsel for the applicant frankly conceded that he could not "get away from the ferocity and persistence" of the series of attacks on the unfortunate victim of this offence. It was submitted, however, that the Forensic Scientist, Dr Margolius gave evidence that any of the many serious wounds inflicted on the victim could have killed him. This was the basis for a submission that the victim was killed quickly "and that once a person is dead, the number of stab wounds, although emotionally a horrific thing and had repercussions to [sic for] the family … but as to the killing itself there is an absence of factors … which take it up that extra step, like no premeditation, no other crimes accompanying the behaviour but, as I say, yes, the attack itself was ferocious and quite persistent."
25 In my opinion, this was a wilful murder committed for no apparent motive other than to kill in response to some imagined, but apparently non-existent or, at best, marginal provocation, in circumstances which involved the frenzied infliction of continuous and repeated stab wounds amounting to 98 in all, combined with the pursuit of the victim up the river bank. The circumstances of the commission of the crime can only be described as horrific. In my opinion, the circumstances under which the applicant embarked on, what can only be described as a kind of killing
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- frenzy, were themselves sufficient to place this particular offence of wilful murder in the upper range of offences of that kind.
26 The purpose of Parliament creating a distinction between the sentencing regimes for the offences of murder and wilful murder is a reflection of the distinction between wilful murder and murder. This case involved the infliction of many wounds, any one of which could have been fatal. That distinction needs to be reflected in any sentence imposed. It is significant that the learned Judge was not prepared to find that the applicant was as remorseful for what he had done as he made out. At the same time, her Honour found that there was less of a risk of the applicant re-offending than had been found by Miller J. There was, however, a residual risk of reoffending apparent from the applicant's admission in his video-recorded interview that he was prone to violence and had given examples. Hence, the finding of a residual risk of further acts of violence being committed from which the community needed to be protected.
27 In my opinion, the applicant's case on the ground of appeal that the learned Judge erred in law by sentencing the applicant to strict security life imprisonment with a minimum of 20 years, instead of sentencing him to life imprisonment with a lesser minimum has not been made out. I am also not satisfied that it has been shown that the sentencing discretion miscarried in any way. On the contrary, I am of the opinion that both the sentence imposed and the minimum term of imprisonment fixed before the applicant would be eligible for parole were within the scope of a sound exercise of the sentencing discretion.
28 For these reasons, while I would grant the applicant leave to appeal, I would dismiss the appeal.
29 STEYTLER J: I have had the advantage of reading the judgment of the Chief Justice. I agree with him that the applicant should be granted leave to appeal and that the appeal should be dismissed, but wish to express some comments of my own as regards the choice between life imprisonment and strict security life imprisonment.
30 The concept of strict security life imprisonment was first introduced, in 1980, by the Acts Amendment (Strict Security Life Imprisonment) Act 1980. At that time the death sentence was still available in cases of wilful murder, although, in practice, such sentences were invariably commuted, no prisoner having been executed since 1964. Prior to the amendinglegislation the Governor was authorised to extend "the Royal mercy" to an offender under sentence of death on condition of the offender being
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- imprisoned, with or without hard labour, for life or, in the case of a child or young person under the age of 18, on condition of his being detained, during the Governor's pleasure, in safe custody. When a death penalty was commuted to one of life imprisonment, the first statutory review in respect of the possible release of the offender on parole took place 10 years from the date of commutation. By the terms of the amending legislation, the Governor was empowered, by way of a further option in the case of commutation of a death penalty, to extend mercy on condition of the offender being the subject of an order of strict security life imprisonment. Part III of the Offenders Probation and Parole Act 1963-1977 was also amended in order to provide that, in a case in which the death penalty was commuted to strict security life imprisonment, the first statutory review was to take place 20 years after commutation.
31 In the course of his second reading speech in respect of the Acts Amendment (Strict Security Life Imprisonment) Bill, given on 13 November 1980, the then Attorney-General, Mr I G Medcalf, said that the government then had no present intention of abolishing the provision for capital punishment, but desired to have "an additional option available should a decision be made to commute a death sentence", being one "which will provide for suitable tight security over a longer period than has become customary in recent years". He went on to say, a little later, that:
"A new form of exercise of the Royal Prerogative is proposed on the basis that a prisoner's sentence on a capital charge may be commuted to life imprisonment on terms of strict security. For practical purposes, such offenders are and will be those who have been convicted of wilful murder. Although any case of wilful murder is by definition serious, it is also clear that some cases may be considerably worse than others. Instances do arise where the circumstances are such that the facts of the case, taken with the circumstances of the background of the offender, indicate clearly that if the death sentence is not to be carried out the offender must be regarded as presenting a substantial risk to the community for a considerable period in the future, if not for the rest of his life."
32 Capital punishment was formally abolished in 1984. This was effected by the Acts Amendment (Abolition of Capital Punishment) Act 1984. At that time s 282(a) of the Criminal Code provided that a personwho committed the crime of wilful murder was liable to the punishment of death. However, by the terms of the amending legislation, the sentence
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- was altered to a mandatory punishment, in the case of an adult, of either strict security life imprisonment or life imprisonment. It consequently became, for the first time, the responsibility of the sentencing Judge to choose between these two options in cases of wilful murder. Section 34 of the Offenders Probation and Parole Act 1963 was also amended by the amending legislation in terms providing, in effect, that, in the case of a person undergoing a sentence of strict security life imprisonment other than one commuted from a sentence of death, the first statutory review date would be one of 20 years from the date of sentence.
33 The amended legislation was considered in R v Pearce, unreported; SCt of WA; No 92 of 1984 (Smith J); 15 February 1985. There, Smith J appeared to consider that two factors were important to the exercise of the newly provided discretion. The first, being what his Honour described as an aspect of "the primary responsibility in sentencing", was an assessment of the gravity of the crime which, in a case of wilful murder, involved the Court in "the unusual task of placing homicide or homicides somewhere in the scale of other crimes of wilful murder, to inquire whether it or they are more or less serious cases of their kind". The second was the question "whether the facts of the particular case taken in conjunction with the background of the prisoner indicate that the prisoner should be looked upon as presenting a substantial risk to the community in the future" His Honour said, in this last respect, that:
"… [R]egard must be had to the prisoner's antecedents generally and in particular to his conduct since he has come under the notice of the law for the purpose of giving proper weight to matters arising therefrom, both favourable to the prisoner and matters which may affect the protection or the safety of the community."
34 Generally, as regards the exercise of the discretion, his Honour suggested that:
"It is of importance also to bear in mind, in relation to the exercise of this discretion, that the criminal law enshrines the values of our society and of our Judaeo-Christian tradition that the sanctity of human life is of the utmost importance. Hence, it must not be overlooked that one of the two dispositions open to a sentencing judge equates the penalty for the crime of murder, the elements of which do not include an attempt to kill.
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- It is therefore, I think, only in the case of what can be classified as a less serious example of a crime of wilful murder that the penalty of life imprisonment should be chosen as the appropriate penalty for the case."
35 The issue came again before the Court of Criminal Appeal in the case of Hoare v The Queen. It did so on two occasions. On the first of those occasions (Hoare v The Queen, unreported; CCA SCt of WA; Library No 6138; 13 December 1985) Brinsden J adopted a view which was very similar to that which had been adopted by Smith J in Pearce, saying that the Court was "required to analyse the circumstances of the case and the antecedents of the prisoner and decide having regard to the need to protect the public, what is the appropriate penalty". Upon the second occasion in which that matter came before the Court (Hoare v The Queen (No 2), unreported; CCA SCt of WA; Library No 6240; 10 April 1986) the Court said that consideration was required to be given "both to the circumstances of the crime and to the antecedents of the convicted person which are mitigating in their character …".
36 These provisions were also considered by this Court in Jackson v The Queen [1990] WAR 105. There, the applicant's gambling had placed the applicant and his de facto wife in what was described as a "desperate situation". He decided to kill his wife and then commit suicide. However, after killing his wife he was unable to carry through with the suicide. He pleaded guilty to the wilful murder of his wife and was sentenced to strict security life imprisonment. The Court (Malcolm CJ, Wallace and Walsh JJ), at 110, considered that the applicant did not represent a danger to the public in the sense that it was in need of protection. It found that the murder was premeditated, planned and deliberate but that, when the circumstances of the murder were weighed against the absence of a need to protect the public, the case was one in which the lesser of the two sentences was appropriate.
37 Then, in Monaghan v The Queen (1990) 3 WAR 466, the Court was confronted with the brutal and cold-blooded killing of a man who was severely beaten by two others. While unconscious from the beating, the victim was bashed again, had his throat cut and was thrown into a river. One of his two assailants was sentenced to strict security life imprisonment. He applied for leave to appeal against the severity of thesentence. Counsel for the applicant, while conceding that the sentencing discretion under s 282 of the Criminal Code was at large, claimed that it was governed by the seriousness of the particular wilful murder as an offence of that kind and by the question whether the offender would
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- represent a substantial risk to the community in future. He contended that strict security life imprisonment should be reserved for those cases in which, having regard to the offence itself and the antecedents of the offender, the offender was perceived to be, or to be likely to be, a substantial risk to the community in future. Wallace J rejected that contention, saying (at 470):
"In my opinion, the discretion which resides in s 282(a)(ii) of the Code cannot be fettered in the manner for which counsel contends. If such be the case, then a prisoner convicted of the most horrendous wilful murder, but possessed of prior impeccable antecedents, would never become liable for strict security life imprisonment. Of course the antecedents of the prisoner must be considered when the discretion is exercised for the purpose of arriving at the appropriate form of punishment. As Burt CJ, Brinsden and Smith JJ in Hoare v The Queen … [No 2], expressed the position:
'… that in making the judicial choice which the sentencing Judge is required to make pursuant to s 282(a) of the Criminal Code as amended … consideration must be given both to the circumstances of the crime and to the antecedents of the convicted person which are mitigating in their character giving to the word "antecedents" the full meaning ascribed to it by Windeyer J in Cobiac v Liddy (1968) 119 CLR 257 at 276 - 277.'"
"There is no warrant in the terms of the section for this view. Nor is there any such warrant in the authorities to which I have referred. The argument unjustifiably elevates a relevant factor into a prerequisite for imposing strict security life imprisonment. If it were valid, no matter how horrific a wilful murder might be, if the judge was satisfied that there was no risk of the prisoner's repeating his offence, strict security life imprisonment would have to be excluded. I cannot accept this view."
39 Having found that the sentencing Judge's discretion had miscarried, and that it was for the Court to exercise the discretion afresh, Kennedy J said (ibid) that, taking into account the applicant's antecedents and even
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- discounting the likelihood that he would commit any further offences of violence, he was left in no doubt that the circumstances of the crime were such as to require a sentence of strict security life imprisonment.
40 The third Judge, Rowland J, agreed with each of Wallace and Kennedy JJ.
41 On 20 January 1995, the provisions of the Criminal Law Amendment Act 1994 came into effect. That Act amended s 40D of the Offenders Community Corrections Act 1963 by requiring a court that sentenced a person to strict security life imprisonment, if it did not make an order under subs (2a) (which empowered the court, on imposing a sentence of strict security life imprisonment, to order that the person is not to be eligible for parole), to set a minimum term of at least 20 and not more than 30 years that the person must serve before being eligible for release on parole. Those provisions have since been replaced by s 91 of the Sentencing Act 1995. Interestingly, s 91(3) (which, in effect, replaced s 40D(2a) of the Offenders Community Corrections Act) provides that a court that sentences an offender to strict security life imprisonment must order that the offender be imprisoned for the whole of his or her life "if it is necessary to do so in order to meet the community's interest in punishment and deterrence". Section 91(4) provides that, in determining whether an order under s 91(3) is necessary, the only matters relating to the offence that are to be taken into account are the circumstances of the commission of this offence and any aggravating factors.
42 Then, in Williams v The Queen (1996) 17 WAR 17 the Court was again faced with an applicant, convicted of wilful murder, who sought leave to appeal against a sentence of strict security life imprisonment, in this case being one in respect of which he had been ordered to serve a minimum period of 20 years before parole eligibility. The murder had been a planned killing in the course of which the applicant shot at the deceased five times while he was in a motor vehicle and a further 12 times as he tried to flee. There, Owen J (with whom Kennedy and Pidgeon JJ were in agreement), after reviewing a number of the authorities, said (at 26), in relation to the choice to be made under s 282(1), that he considered that the principles which emerged from the authorities could be summarised as set out below:
"1. On a conviction for wilful murder the imposition of a custodial sentence for life is mandatory.
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- 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:
(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."
43 Then, in Griffin v The Queen [2001] WASCA 11, Malcolm CJ (with whom Owen and Parker JJ were in agreement) said (at [44]), citations omitted:
"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
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- 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 …".
44 His Honour went on to mention that the principles to be applied had been summarised by Owen J in Williams and quoted the passage from his Honour's judgment which has been set out by me earlier in these reasons.
45 In this case, counsel for the applicant contended that the sentencing Judge, in sentencing the applicant to strict security life imprisonment, wrongly afforded primacy to the fact that she regarded the murder as falling within "the upper rather than the lower range of wilful murders". He submitted that this was so both because the murder did not fall within the "upper" range and because it is wrong, in principle, to give any one factor primacy over other factors as a matter of general predisposition.
46 There is, in this last respect, some ambiguity which arises out of what was said by the Court in Griffin. I have mentioned that the Court there said that the gravity of the crime has primacy over other factors, but that it also approved what had earlier been said by the Court in Williams, to the effect that no one factor has primacy over the other factors. In my opinion, no one factor was intended by the legislature to have primacy, as a matter of general predisposition, over any other factor. I agree, in that respect, with what was said by Owen J (with the concurrence of Kennedy and Pidgeon JJ) in Williams. As will be apparent from the remarks of the Attorney-General at the time of his second reading speech in respect of the Bill which first introduced the concept of strict security life imprisonment, the seriousness of the offence was regarded as a matter of some significance to the exercise of the discretion but so, too, was the need for protection of the community. More importantly, the legislature has seen fit not to impose any criteria for the exercise of the discretion.
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47 It consequently seems to me that the decision in each case should turn upon the whole of the circumstances of the case. That does not, of course, mean that a court may not conclude that, on the whole of the circumstances before it in a particular case, one factor overrides all others. So, for example, an offender's antecedents might reveal that he posed an ongoing substantial risk to the community such that a wilful murder of the kind committed by him is likely to be repeated, justifying strict security life imprisonment on that ground alone. Equally, a particular murder may have been so horrific as to justify a sentence of that kind upon that ground alone. However, all factors would have to be considered, without any predisposition as to weight, before a conclusion of that kind could be arrived at. It would, in every case, also have to be borne in mind that a sentence of strict security life imprisonment is one of extraordinary severity, requiring very careful consideration before it might be imposed.
48 In this case, the sentencing Judge, after placing the offence in the "upper … range of wilful murders", went on to say that, in the absence of any particular factors of significance, she considered that it should attract a sentence of strict security life imprisonment. While her Honour's language in that respect was said to be suggestive of the application of a test which accorded primacy, as a matter of predisposition, to the seriousness of the offence, I am not persuaded, on a reading of the whole of her Honour's sentencing remarks, that she did apply any such test. She said, in the passage particularly relied upon by counsel for the applicant, that:
"The absence of premeditation and of a prolonged attack means that, in my view, it is not the most serious offence of its kind. However, the ferocity, the persistence, the fact the deceased was entirely unarmed and defenceless and many years your senior put it in the upper rather than the lower range of wilful murders. In the absence of any particular factors of significance I consider that it should attract a sentence of strict security life imprisonment."
49 It seems to me that, in that passage, her Honour was saying no more than that, given the ferocious nature of the attack, and the other factors referred to by her, the seriousness of the offence was, on its own, sufficient to justify a sentence of strict security life imprisonment in the absence of any other particular factors of significance. That it was open to her Honour to adopt that approach is, in my opinion, established by the cases to which I have referred and, in particular, that of Monaghan. It also seems to me that, given the circumstances of this offence as described
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- by her Honour and in the judgment of the Chief Justice, it was open to her Honour to regard it as a particularly serious example of its kind and therefore such as to justify the sentenced imposed by her.
50 PARKER J: The decision published by the Chief Justice substantially reflect my own reasons, subject to what follows, for concluding that the sentencing discretion did not miscarry in this case.
51 I would also express my concurrence with the very useful comments made by Steytler J in the reasons he has published.
52 Steytler J has drawn attention to what he has described as "some ambiguity" arising out of what was said by the Court in Griffin v The Queen [2001] WASCA 11, having regard to what had earlier been said in Williams v The Queen (1996) 17 WAR 17.
53 The observations in Williams were in the decision of Owen J at p 26. Kennedy and Pidgeon JJ agreed with them. Both Owen J and I concurred with what was said by the Chief Justice in Griffin. In Griffin the relevant passage is at [44]. However, the Chief Justice went on in his reasons to state expressly that the applicable principles had been summarised by Owen J in Williams and to quote the relevant passage from Owen J's reasons.
54 It is only on reading what has now been published by Steytler J that the potential for ambiguity became apparent to me. Speaking only for myself, no departure from the principles enunciated by Owen J in Williams was intended by me in Griffin.
55 I respectfully confirm my entire concurrence with what was said by Owen J in Williams, and also with what has now been said by Steytler J.
56 I agree that the applicant should have leave to appeal, but that the appeal should be dismissed.
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