Sesay v The State of Western Australia
[2012] WASCA 241
•27 NOVEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SESAY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 241
CORAM: McLURE P
MAZZA JA
HEARD: 9 NOVEMBER 2012
DELIVERED : 27 NOVEMBER 2012
FILE NO/S: CACR 107 of 2012
BETWEEN: ROBBINSON UMARU SESAY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :HASLUCK J
File No :INS 68 of 2005
Catchwords:
Criminal law - Application for extension of time - Application for leave to appeal against sentence - Wilful murder - Whether sentencing judge erred in imposing strict security life imprisonment - Whether sentence was manifestly excessive - Whether sentencing judge made an error of fact
Legislation:
Criminal Code (WA), s 282(a)
Sentencing Act 1995 (WA), s 91(1), s 91(3), s 90(2)
Result:
Application for an extension of time to appeal is refused
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
Sesay v The State of Western Australia [2007] WASCA 268
Williams v The Queen (1996) 17 WAR 17
Wimbridge v The Queen [2001] WASCA 248
McLURE P: I agree with Mazza JA.
MAZZA JA: Before the court are applications by the appellant for an extension of time and for leave to appeal against sentence.
On 24 February 2006, the appellant was convicted after trial of the wilful murder of his wife, Hannah Rebecca Sesay. On 27 February 2006, Hasluck J sentenced the appellant to strict security life imprisonment with a non‑parole period of 20 years.
The appellant appealed against his conviction. That appeal was dismissed: Sesay v The State of Western Australia [2007] WASCA 268.
On 2 May 2012, over six years out of time, the appellant filed his notice of appeal against sentence. The delay is, on any view, gross. The explanation for it is unsatisfactory. In the absence of a miscarriage of justice, the extension of time will not be granted: Wimbridge v The Queen [2001] WASCA 248.
There are three grounds of appeal set out on the first two pages of the appellant's case. These grounds only partly correlate with the supporting written submissions. The written submissions also refer to a fourth ground of appeal. The written submissions are confusing, at times incoherent, and, in large measure, seek to raise issues directed to the merits of his conviction rather than his sentence. His oral submissions proceeded in the same vein. The appellant's complaints in respect to his sentence are:
(1)The learned sentencing judge erred in imposing strict security life imprisonment. He argues that the offence was not in the upper range of offences of wilful murder and that, having regard to his good antecedents, and the circumstances of the offending (he asserts that he was provoked by the victim and acted in self‑defence), the imposition of strict security life imprisonment was manifestly excessive. He says a sentence of life imprisonment should have been imposed; and
(2)The learned sentencing judge made an error of fact by finding that the appellant brought a black handled serrated knife to the victim's house on the morning she was killed.
The facts as found by the learned sentencing judge
Hasluck J made the following findings of fact. He did so, correctly stating that any contested fact which aggravated sentence had to be proved by the prosecution beyond reasonable doubt.
The appellant and the victim were a married couple who had separated and were living apart. On 11 November 2004, the appellant was the subject of a misconduct restraining order which had been taken out by the victim and served on him a week before.
On the morning of 11 November 2004, the appellant drove from his residence in Inglewood to the victim's address in Yokine. This was in breach of the restraining order. The appellant sought to disguise his identity with a mask. His Honour found that he had brought with him a black handled knife with a serrated edge.
The victim's son testified that shortly after 8.00 am, he heard screaming in the back garden. He ran outside to find the victim lying face down in blood. He saw a masked man kneeling beside her. The victim's son grabbed the man, in the process of which the mask came off and he recognised the appellant. The appellant told the victim's son 'your mother was giving me problems'.
The victim died from multiple knife wounds to her neck. There were other stab wounds including defensive wounds to her hands. In total, the appellant inflicted 46 knife wounds.
The learned sentencing judge found that the appellant had mistreated the victim prior to the day of the offence and was hostile towards her. He also found that he went to the victim's house with the intention of killing her. His Honour noted that the appellant left the scene without rendering assistance and that there was no evidence of any remorse for what he had done: ts 679 ‑ 681. He rejected any notion that the appellant was provoked or acting out of self‑defence.
The appellant's antecedents
At the time he was sentenced, the appellant was 49 years of age. He was born in Sierra Leone and met the victim there in the early 1980s. She had two children from a former relationship. Later, they had two children of their own.
The appellant served in the Sierra Leone military and held the rank of sergeant major.
Eventually the appellant and the victim left Sierra Leone for Guinea and in 2001 arrived in Australia with the children.
The appellant had no record of prior convictions and a constant record of employment: ts 682 ‑ 683. An oral pre‑sentence report revealed that the appellant was, at the time he was sentenced, in sound physical health and his mental health was described as 'quite sound': ts 674. There was no evidence to suggest any psychiatric or psychological reason for his offending. The appellant had no history of substance abuse.
His Honour's sentencing remarks
The learned sentencing judge accepted that what occurred 'was in the nature of a one‑off incident' which arose out of the acrimonious relationship which existed between the appellant and the victim.
He gave mitigating weight to the appellant's prior good record of employment and the absence of prior convictions.
He found that the offence could be properly characterised as at the upper end of the scale of seriousness. He came to this conclusion based on his findings that the killing was premeditated and in breach of the misconduct restraining order. His Honour also had regard to the extent of the victim's injuries and the way in which the appellant had attacked her in her own home at a time when she was defenceless. He considered that a sentence of strict security life imprisonment was appropriate.
In deciding the length of the non‑parole period, his Honour took into account the appellant's favourable antecedents and other matters personal to him, including his prospects of rehabilitation. He said that these factors pointed towards parole 'at the lesser end of the scale' of offences warranting strict security life imprisonment: ts 685 ‑ 686.
The sentencing regime for wilful murder as at 27 February 2006
The sentencing regime which existed at the time the appellant was sentenced is different to the regime that presently exists. The sentencing regime at that time was as follows.
Upon being convicted of wilful murder, the only options open to a sentencing judge were to impose strict security life imprisonment or life imprisonment: s 282(a) of the Criminal Code (WA). If a sentencing judge imposed strict security life imprisonment, the court was required to set a minimum period of at least 20 years and not more than 30 years before the offender was eligible for parole: s 91(1). An additional power existed to imprison an offender for the whole of his or her life: s 91(3) of the Sentencing Act 1995 (WA). It was never suggested in this case that such an order should be made. Where a court sentenced an offender to life imprisonment for wilful murder, it was required to set a minimum period of at least 15 and not more than 19 years before the offender was eligible for parole: s 90(2) of the Sentencing Act.
In relation to the discretion to order strict security life imprisonment or life imprisonment, the relevant principles were summarised by Owen J (with whom Kennedy & Pidgeon JJ agreed) in Williams v The Queen (1996) 17 WAR 17, 26, as follows:
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.
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.
Having decided whether to impose strict security life imprisonment or life imprisonment, a sentencing judge was then required to determine an appropriate non‑parole period. The relevant principles were identical to those identified by the majority of the High Court in Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 with respect to the setting of minimum terms for finite sentences. In that case, the High Court held that the non‑parole period is the minimum time that a judge determines justice requires must be served having regard to all the circumstances of the offence (629).
Merits of the appeal
I will deal first with the allegation that his Honour erred in finding that the appellant went to the victim's house with the black handled serrated knife.
There was more than one knife found near the victim's body. One of the knives was a black handled serrated knife. The forensic pathologist called by the respondent at trial, Dr Cadden, said that many of the stab wounds that had been inflicted had an appearance that was consistent with the use of a serrated knife.
At trial, the appellant testified that he did not go to the victim's house to harm her and was not armed with a knife. He said he went to the victim's house to thank her for promising to lift the restraining order. He said that when an argument developed it was the victim who had the knife. He said that he grabbed the appellant's wrist of the hand that was holding the knife and shook it so that she would drop the weapon. He testified that they both fell down and somehow the knife cut her neck. He denied that he inflicted the large number of wounds found on the victim's body. Specifically, he denied taking the black handled serrated knife to the victim's house: ts 593.
Consistently with the jury's verdict, Hasluck J rejected this account.
The overwhelming evidence was that the appellant went to the victim's house intending to kill her. It would make little sense for him to have made such a plan and not brought with him the weapon or weapons to be used in the killing. As Dr Cadden noted, many of the wounds suffered by the victim had an appearance consistent with the use of a serrated knife. His Honour was perfectly entitled to draw the inference that the appellant was armed with the black handled serrated knife when he came to the victim's house intent on killing her. The appellant has not established that the learned sentencing judge made any error in respect of this finding.
I now turn to the decision by his Honour to impose strict security life imprisonment and to impose a minimum non‑parole period of 20 years.
It is clear from a consideration of his Honour's sentencing remarks as a whole that he took into account all relevant sentencing considerations. He acknowledged that there were factors favourable to the appellant, in particular, his good antecedents and that the offence was 'in the nature of an aberration': ts 685.
However, this was a premeditated offence committed on his wife in circumstances where a court order had prohibited him from attending at his wife's premises altogether. The victim was, as his Honour noted, defenceless in her own home. The attack was carried out in a merciless way with great ferocity as indicated by the number of knife wounds and the places on her body in which they were inflicted. The appellant fled the scene without rendering assistance. There was no evidence of remorse. The sheer seriousness of what the appellant did far outweighed the mitigating circumstances. There is no merit in the appellant's assertions that he had acted under provocation or in self‑defence. At trial, self‑defence was left to the jury but plainly it was rejected. Provocation was not raised, nor was it reasonably open on the evidence.
It is not reasonably arguable that his Honour erred in deciding to impose a sentence of strict security life imprisonment. Having come to this decision, the non‑parole period imposed by his Honour was the minimum that could be imposed pursuant to s 91(1) of the Sentencing Act. Accordingly, there can be no reasonable complaint about that decision.
Conclusion
For the above mentioned reasons, none of the appellant's grounds of appeal have any reasonable prospect of succeeding. As there would be no miscarriage of justice, the extension of time must be refused. The appeal must be dismissed.
Orders
(1)Application for an extension of time to appeal is refused.
(2)The appeal is dismissed.
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