Rosewood v The State of Western Australia
[2014] WASCA 21
•29 JANUARY 2014
ROSEWOOD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 21
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 21 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:115/2013 | 19 DECEMBER 2013 | |
| Coram: | McLURE P NEWNES JA MAZZA JA | 29/01/14 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ROBERT ROSEWOOD THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Murder Appeal against sentence Manifest excess |
Legislation: | Criminal Code (WA), s 279(1)(b) |
Case References: | Butler v The State of Western Australia [2010] WASCA 104 Cockram v The State of Western Australia [2011] WASCA 179 Goodwyn v The State of Western Australia [2013] WASCA 141 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Johnston v The State of Western Australia [2012] WASCA 18 Khan v The State of Western Australia [2013] WASCA 193 Pedersen v The State of Western Australia [2010] WASCA 175 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 The State of Western Australia v O'Kane [2011] WASCA 24 The State of Western Australia v Silich [2011] WASCA 135 The State of Western Australia v Westberg [2011] WASCSR 206 Wongawol v The State of Western Australia [2011] WASCA 222 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ROSEWOOD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 21 CORAM : McLURE P
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : EM HEENAN J
File No : INS 238 of 2012
Catchwords:
Criminal law - Murder - Appeal against sentence - Manifest excess
Legislation:
Criminal Code (WA), s 279(1)(b)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr J A Scholz
Solicitors:
Appellant : Sheila Amsden
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Butler v The State of Western Australia [2010] WASCA 104
Cockram v The State of Western Australia [2011] WASCA 179
Goodwyn v The State of Western Australia [2013] WASCA 141
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Johnston v The State of Western Australia [2012] WASCA 18
Khan v The State of Western Australia [2013] WASCA 193
Pedersen v The State of Western Australia [2010] WASCA 175
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
The State of Western Australia v O'Kane [2011] WASCA 24
The State of Western Australia v Silich [2011] WASCA 135
The State of Western Australia v Westberg [2011] WASCSR 206
Wongawol v The State of Western Australia [2011] WASCA 222
1 McLURE P: This is an appeal against sentence. On 2 May 2013 the appellant was convicted on his plea of guilty of the murder of Rebecca Joyce Ward contrary to s 279(1)(b) of the Criminal Code (WA). He was sentenced by EM Heenan J to life imprisonment with a minimum period of 18 years before being eligible for release on parole. The sole ground of appeal is that the non-parole period of 18 years is manifestly excessive.
2 The relevant facts and background are as follows. The appellant and the deceased had been in a family and domestic relationship for about 12 months prior to the offence. They had a child aged 3 months at the time of the offence. Both had children from previous relationships.
3 The appellant and the deceased had been staying with relatives of the deceased in Pegs Creek. On 7 April 2012 the appellant and the deceased were drinking alcohol during the day. They argued in the evening. At about 10.30 pm the appellant and the deceased moved into the kitchen and the argument escalated. The appellant reached into the sink and grabbed a chopping knife with a blade 18 cm in length. He stabbed the deceased to the front upper left-side of her chest, just under her breast. The deceased turned away and the appellant stabbed her again to the back of her right shoulder and once more to the back of her left shoulder before she fell to the ground.
4 The appellant walked out of the house to the front yard where he dropped the knife. Other occupants of the house called police and ambulance services who attended. The deceased was pronounced dead on her arrival at hospital. The cause of death was the penetrating wound to the chest which penetrated the heart and the pulmonary trunk.
5 The appellant remained at the scene where he was arrested and taken to Karratha Police Station. Detectives conducted an electronically recorded interview with the appellant during which he made admissions, including of stabbing the deceased at least once. He denied intending to kill the deceased. The State relied on an intention to cause bodily injury of such a nature as to endanger or be likely to endanger the life of the deceased.
6 The appellant was aged 37 at the time of the offence and 38 at sentencing. His father was Caucasian and his mother from the Walpiri and Gridindji tribe. The appellant is not a traditional Aboriginal man and has no cultural or spiritual connection to the land.
7 The appellant witnessed chronic and acute domestic violence in his childhood. He and his siblings stayed in foster homes when they were of school age. Both his parents were heavy drinkers.
8 The appellant commenced drinking alcohol at the age of 18 or 19. By 2010 the appellant's alcohol consumption had become problematic.
9 The appellant has a prior criminal record commencing in 1999 which included convictions for disorderly conduct, driving under the influence and other alcohol-related offences. In December 2008 he was convicted in the Kununurra Magistrates Court of threats to injure, endanger or harm a person and was fined $500. The offence was committed against a woman with whom he was in a relationship. The appellant told the victim he had a knife and threatened that he was going to kill her. He was intoxicated at the time of the offence.
10 In March 2010 the appellant was convicted of assault occasioning bodily harm in circumstances of aggravation and was fined $750. This offence was committed against his then (now former) partner. In September 2010 the appellant was convicted of unlawful wounding in circumstances of aggravation for which he was sentenced to an intensive supervision order for 15 months. This offence was also against his former partner and involved a sustained attack on the victim over a period when he used his leather belt to hit her twice. Alcohol was a prominent factor in that offending.
11 The sentencing judge accepted the assessment in the pre-sentence and psychological reports that the appellant presented as a high risk of violently offending in respect of intimate partners and a moderate risk in respect of other people.
12 The minimum period before being eligible for release on parole is determined by reference to what justice requires, having regard to all the circumstances of the case: Power v The Queen (1974) 131 CLR 623, 629. The minimum time will be determined by reference to achieving all the recognised sentencing objectives including punishment, retribution, protection of the public, deterrence (both personal and general) and rehabilitation.
13 The appellant must establish that the sentencing judge made an express or implied material error of fact or law. The claim of manifest excess depends upon establishing the implication of an error from the sentence itself. The appellant must establish that the non-parole period of 18 years is unjust and unreasonable. When determining whether a minimum non-parole period is manifestly excessive, regard is had to the maximum sentence for the offence, any statutory minimum (or maximum) non-parole period, the standards of sentencing customarily imposed for offences of that type, the level of seriousness of the circumstances of the offending and matters personal to the offender.
14 The appellant's offending had a number of features that marked it as a serious example of its kind. The sentencing judge described the deceased as 'younger, smaller, weaker and far more vulnerable than the appellant' [12]. She was unarmed and had no means of defending herself. The appellant stabbed the deceased multiple times. While the attack was impulsive rather than premeditated, the suddenness of it also reduced the ability of the deceased or other people in the house to defend her against the attack. Further, the offence was committed in the presence of the deceased's extended family, including young children.
15 The fact that the appellant was heavily intoxicated at the time is not mitigatory. The sentencing objectives of personal and general deterrence weigh heavily in relation to acts of domestic violence that are committed when drunk or sober. The mitigating factors in this case are the appellant's plea of guilty which was entered at the first reasonable opportunity, his cooperation with police and remorse.
16 Regard is had to sentences customarily imposed in order to ensure broad consistency in the sentencing of offenders who have committed the same or similar types of offences. Broad consistency is assessed by reference to all relevant sentencing considerations, including matters personal to the offender.
17 In his written submissions the appellant refers to Wongawol v The State of Western Australia [2011] WASCA 222, Butler v The State of Western Australia [2010] WASCA 104, Johnston v The State of Western Australia [2012] WASCA 18, Cockram v The State of Western Australia [2011] WASCA 179, Pedersen v The State of Western Australia [2010] WASCA 175, The State of Western Australia v Silich [2011] WASCA 135 and The State of Western Australia v Westberg [2011] WASCSR 206. The appeal in Westberg was discontinued. The High Court has made it clear that in determining manifest excess (and manifest inadequacy) the primary focus is on the sentencing decisions of intermediate appellate courts: Hili v The Queen (2010) 242 CLR 520 [57]. I have also had regard to Khan v The State of Western Australia [2013] WASCA 193, Goodwyn v The State of Western Australia [2013] WASCA 141 and The State of Western Australia v O'Kane [2011] WASCA 24.
18 On my review of the cases, the non-parole period of 18 years in this case is, having regard to all relevant sentencing considerations and objectives (including in particular, the fact that the appellant is at high risk of violently reoffending in respect of intimate partners), broadly consistent with sentences imposed in comparable cases. The appellant has failed to establish that the non-parole period of 18 years is manifestly excessive.
19 For these reasons, I would dismiss the appeal.
20 NEWNES JA: I agree with McLure P.
21 MAZZA JA: I agree with McLure P.
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