Sherratt v The Queen - [2000] WASCA 112

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: SHERRATT -v- THE QUEEN [2000] WASCA 112

CORAM: PIDGEON J
WALLWORK J
MURRAY J

HEARD: 1 MARCH 2000

DELIVERED : 5 MAY 2000

FILE NO/S: CCA 174 of 1999

BETWEEN: TAMMIE MAY SHERRATT
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Conviction of murder - Life imprisonment imposed - Minimum term of 12 years fixed - Factors governing fixation of minimum term discussed - Otherwise turns on own facts

Legislation:

Sentencing Act 1995 (WA) s 90(1)

Result:

Leave to appeal granted
Appeal dismissed

Representation:

Counsel:

Applicant: Mr R A Mazza
Respondent: Mr R E Cock QC & Ms A C Longden

Solicitors:

Applicant: Mazza & Mazza
Respondent: State Director of Public Prosecutions

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

Bugmy v The Queen (1990) 169 CLR 525
Deakin v The Queen (1984) 58 ALJR 367
Inge v The Queen (1999) 73 ALJR 1563
Power v The Queen (1974) 131 CLR 623
R v Attard (1999) 105 A Crim R 431
R v Champion (1992) 64 A Crim R 244
R v Chan (1994) 76 A Crim R 252
R v Dalgety [2000] WASCA 10
R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998
R v Kiltie (1974) 9 SASR 452
R v Maclay (1990) 19 NSWLR 112
R v Tsiaras [1996] 1 VR 398
R v Wongawol (1998) 101 A Crim R 350
The Queen v Masolatti [1976] 14 SASR 124
Thompson v The Queen (1992) 8 WAR 387

Case(s) also cited:

Attard (1999) 105 A Crim R 431
Australian Coal v Commonwealth (1953) 94 CLR 621
Celetano v The Queen, unreported; CCA SCt of WA; Library No 960150; 21 March 1996
Champion (1992) 64 A Crim R 244
DPP v Bannam (1984) 14 A Crim R 475
G v The Queen (1997) 96 A Crim R 162
House v The King (1936) 55 CLR 499
JDN [1998] VSCA 121
R v Anderson [1981] VR 155
R v Clarke (1996) 85 A Crim R 114
R v Dumas [1988] VR 65
R v Mooney [1978] 2 Crim LJ 351
R v Richards [1999] WASCA 105
R v Tait (1979) 46 FLR 386
Roadley (1990) 51 A Crim R 336
Scognamiglio (1991) 56 A Crim R 81
Weng Keong Chan (1989) 38 A Crim R 337

PIDGEON J: I agree with the reasons of Murray J.
I consider the sentencing Judge took into account and gave appropriate weight to all matters required to be considered when fixing a minimum term. One of the factors was the applicant's intellectual disability. His Honour weighed this up and, in the passage quoted by Murray J, reached the view that he was satisfied that the applicant had a sufficient appreciation of the shamefulness and the enormous moral wrong of what was occurring, and that she well knew what was happening should not have happened and that she should not have participated. I consider it was open to his Honour to reach this conclusion and no error has been demonstrated.
WALLWORK J: The facts and the background in this matter are set out in the reasons of Murray J which I have had the benefit of reading.
The sole question to be decided is whether or not the learned sentencing Judge erred in fixing the minimum term to be served by the applicant before she could be eligible for parole at 12 years imprisonment. The range within which his Honour was required to fix that term was between 7 and 14 years.
In his sentencing remarks the learned sentencing Judge said:
"I recognise from the psychological material before me that your actions cannot be adequately and fairly judged by the standards of ordinary people, but what is revealed by no means removes entirely the element of conscious decision and your romantic acceptance of Leach's conduct and purpose."
The learned trial Judge came to that conclusion partly upon the basis of a report from a clinical psychologist which he had been given. That report appears in the appeal papers at 295 to 300. On its first page it says that the psychologist had been told that assessments in Year 4 at primary school had revealed that the applicant was eligible for placement in a special school for children with cognitive difficulties. Apparently the applicant had remained in special education classes until she left school at the age of 16 years. The psychologist was told that at that time the applicant had been assessed by Disability Services in New South Wales and found to be eligible for a disability pension. She had never been in paid employment and had been in receipt of the disability pension for five years.
The recent testing carried out by the psychologist revealed:

Verbal IQ Score    75 borderline (slow learner)
Performance IQ Score     88 low average (low average)
Full scale IQ Score         79 borderline (slow learner)

The psychologist came to the view that the pattern of results suggested that the applicant had some dysfunction of the left hemisphere of the brain which area of the brain processes verbal material. The psychologist also found that the applicant was very serious and sober "as well as shy, timid and threat sensitive".
In the summary of results the psychologist reported that:
"Neuropsychological test results demonstrate that Miss Sherratt is functioning at a borderline level intellectually. Her verbal skills are far more impaired than her non‑verbal skills suggesting some left hemispheric dysfunction. These test results would explain her receipt of a disability pension since the age of 16 years."
In answer to some specific questions, and amongst other things, the psychologist advised:
"With her intellectual disability and submissive personality I am of the opinion that it would have been unlikely for her to have been able to stop Leach in his actions and behaviour. As she is such an extremely submissive individual, it is unlikely that she would stand up for herself or speak out in such a situation."
Once his Honour came to the conclusion that the applicant's actions could not "be adequately and fairly judged by the standards of ordinary people", and in my opinion and with respect his Honour was correct in this conclusion, the question arose whether that conclusion should affect the length of the applicant's minimum term before eligibility for parole.
It was submitted on the hearing of this application that the co‑offender who had killed the deceased was by far the dominating partner in the relationship. Further, that there was evidence from the video‑taped record of interviews that whilst the co‑offender was behaving in the way he did, there were feelings of fear by the applicant in relation to what he was doing. The applicant was in an isolated part of the Hills area. The principal offender was behaving in a dreadfully violent manner.
It was submitted that the opinion of the psychologist was important. That with the applicant's intellectual disability and submissive personality it would have been unlikely that the applicant would have been able to stop the principal offender in his actions. It was submitted that the psychologist was of the opinion that it was unlikely that the applicant would stand up for herself or speak out in such a situation.
It was submitted on the applicant's behalf, that the gravamen of the psychologist's report was that the applicant did not have, by reason of her intellectual disability and personality, the capacity to have resisted the principal offender in the circumstances. That when confronted with the situation which occurred, and which was a total surprise to the applicant, she simply did not have the capacity to deal with the situation. It was submitted that it was one thing to be confronted with a situation and another thing to be able to deal adequately with it. That in this case the applicant's intellectual disability reduced her moral culpability for the offence and that this should have been recognised in the minimum term. It was contended that as the ceiling for the minimum term was 14 years imprisonment and that the minimum was 7 years imprisonment, in all the circumstances the term fixed should have been lower than 12 years. It was submitted that the learned Judge did not give sufficient weight to the effect of the applicant's intellectual incapacity.
In The Queen v Masolatti [1976] 14 SASR 124 at 129 Mitchell J quoted from the words of Chief Justice Bray in an earlier decision of R v Kiltie (1974) 9 SASR 452, where his Honour had discussed the sentencing of a person who had retarded intelligence and who had been stated by a psychiatrist to have "diminished responsibility". Her Honour said:
"During the course of his remarks the learned Chief Justice had said:
'Just as we recognise insanity within the meaning of the M'Naghten Rules as completely exculpatory so we should regard low intelligence and diminished responsibility falling short of such insanity, as mitigatory'."
Mitchell J said:
"I respectfully agree with those remarks and although they were made in the course of a dissenting judgment I do not find anything in the reasons for judgment of the other members of the court to indicate a dissent from them."
In the decision of Kiltie (supra) Chief Justice Bray had also said at 453 of his reasons:
"I think these must be mitigating factors. There are several purposes of punishment and several principles to be observed in sentencing, but it would be a bad day for the criminal law if the degree of moral guilt of the particular defendant in the dock were to be treated as irrelevant. The law, and above all the criminal law, should not get too far out of touch with the general feelings of the community and punishment should bear some relation to dessert. The purpose of the law is to give every man his due says the celebrated maxim of Roman law, and Salmond adds that the civil law gives to the plaintiff, the criminal law to the defendant, what he deserves. (Salmond on Jurisprudence (8th ed) (1930) p117)."
In his paper "Sentencing the Mentally Disordered Offender in Australia" which was published in the International Journal of Law and Psychiatry, vol 4, at 107-122, 1981 Mr Ivan Potas quoted Sir Rupert Cross as saying:
"The infliction of punishment although tending towards crime reduction is unjustified if it is not also morally deserved." - R Cross The English Sentencing System 1975, 118.
Mr Potas said at 122:
"Modern sentencing practice has allowed into this scheme of things an individualised approach enabling factors personal to the offender as well as factors relating to the circumstances of the particular offence to be taken into account. This individualisation has been imported into the system of sentencing for reasons of justice and humanity."
In R v Champion (1992) 64 A Crim R 244, Kirby P considered the relevance of deterrence in the case of a person with an intellectual handicap. At 254, his Honour said:
"In Letteri [unreported, Court of Criminal Appeal, NSW, 18 March 1992], Badgery-Parker J (with the concurrence of Gleeson CJ and Sheller JA) said at p 14:
'The principle … is clear enough. It is correctly stated as follows – that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result [that] considerations of general deterrence are totally outweighed by other factors.'
The reason for this variation on the usual theme is not hard to find. It is imputed to the general community that it will understand that a person with the intellectual capacities of a child will need to be deterred but may need special attention in order that the deterrence will be effective. Moreover, the full understanding of the authority and requirements of the law, which may be attributed to the ordinary individual of adult intellectual capacities, cannot be expected of a person who, although adult in bodily form, retains the intellectual capacities of a child. Because the constraints which may be demanded of a person with ordinary adult intellectual capacities may not operate, or operate as effectively, in the case of a person with significant mental handicaps, the community (reflected by the Judges) applies to such people the principles of general deterrence in a way that is sensibly moderated to the particular circumstances of their case. General deterrence still operates: see Roadley (at 343). It is in place for the protection of the community and the victims of offences which the community rightly takes most seriously. But as that principle falls upon a person such as this applicant, it is necessarily a consideration to which less weight can, and therefore should, be given."
See also R v Tsiaras [1996] 1 VR 398 per Charles, Callaway JJA and Vincent AJA at 400.
In R v Attard (1999) 105 A Crim R 431 at 434, Charles JA cited with approval the passage in the judgment of Kirby P quoted above, which, he noted, had been approved in Victoria. His Honour went on to indicate that, whether in a particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose in sentencing, will depend on the nature and severity of its symptoms and its effect on the mental capacity of the offender.
In their recent work "Sentencing - State and Federal Law in Victoria" 2nd ed (1999), Professors Fox and Freiberg say at 293-294:

"There are a number of aspects to the mitigatory effects of mental disorder or intellectual incapacity. First, mental disorder may reduce the moral culpability of the offender to the extent that it warrants a lesser penalty. In this case, it affects the punishment that is just in all the circumstances of the case and the relevance of denunciation. Second, it affects the weight to be accorded to deterrence. The question to be answered is whether the interests of society permit, or the interests of the offender require, that the sentence to be passed be reduced from what would otherwise be appropriate. General deterrence is given little weight, because the mentally disordered offender is not considered to be 'an appropriate medium for making an example to others'. Lush J emphasised the moral basis of this approach: 'A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community'. The idea of deterrence implies some degree of rational judgment on the part of the potential offender. The person must be able to weigh the potential advantages and disadvantages of any particular course of conduct; a mentally disordered person may not possess this reasoning capacity, and to that extent, the deterrence rationale may be untenable." (My emphasis)

In the present case in my opinion, the applicant's mental condition was such that a sentence which would be appropriate in other cases, was not appropriate for the applicant.
I would grant leave to appeal, allow the appeal and reduce the minimum term before eligibility for parole to one of 10 years imprisonment.
MURRAY J: On 9 August 1999 the applicant was convicted on her own plea of an offence of armed robbery in company with personal violence. She was sentenced by Parker J to 6 years imprisonment without parole. She had also been charged with wilful murder and, again on 9 August 1999, she pleaded guilty to murder. The Crown consented to the acceptance of that plea which, under the Criminal Code (WA), s 282(b), exposed her to the mandatory punishment of life imprisonment. His Honour imposed that sentence and, pursuant to the Sentencing Act, s 90(1), he fixed a minimum term of 12 years before eligibility for parole.

This application for leave to appeal is not concerned with the sentence imposed for the robbery offence, but is solely directed to the minimum non‑parole period of 12 years fixed as part of the sentence imposed for the offence of murder. The grounds upon which the application proceeded are as follows:
"1.His Honour erred in fixing a minimum term before which the applicant was not eligible for release on parole pursuant to s 90 of the Sentencing Act which was manifestly excessive in all the circumstances.
Particulars
1.1His Honour failed to give sufficient weight to the following matters:
1.1.1The applicant's role in the commission of the offence was secondary to that of her co‑offender, Richard Leatch.
1.1.2The applicant's young age at the time of the commission of the offence.
1.1.3The applicant's antecedents including her unfortunate childhood and her lack of any prior relevant criminal history.
1.1.4The applicant is not a continuing danger to the community.
1.1.5Her intellectual disability.
1.2The applicant's intellectual disability made her an inappropriate vehicle for general deterrence and retribution."
The Sentencing Act 1995 (WA), s 90(1) is in the following terms:
"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."
A number of points may be made about the subsection. The minimum period is a part of the life sentence. Section 90(3) makes that clear by providing that the minimum period begins to run when the term of life imprisonment begins. Section 90(2) is expressed in the same terms as to a sentence of life imprisonment for wilful murder. There the minimum period must be at least 15 and not more than 19 years. Section 91(1) is in substantially the same terms governing a case where strict security life imprisonment is imposed for the offence of wilful murder. There the minimum period must be at least 20 and not more than 30 years, but such an order is not to be made where, under s 91(3), a court sentences an offender to strict security life imprisonment and makes an order that the offender be imprisoned for the whole of his or her life. Again, by s 91(2), when a sentence of strict security life imprisonment is imposed, the minimum period begins to run when that term begins.
By the Sentencing Act, s 96, a prisoner serving such a life sentence is not to be released before he or she has served the minimum period set. There is no entitlement to release on parole when the minimum period expires. By the Sentence Administration Act 1995 (WA), s 23 and s 24, the decision to release on parole is not that of the Parole Board, but of the Governor after a report has been made about the prisoner to the Minister by the Parole Board. The Governor must act with the advice and consent of the Executive Council (effectively the executive government): Interpretation Act 1984 (WA), s 60.
The power to apply for leave to appeal against a sentence is conferred by the Code, s 688(1a)(b). The power is available "unless the sentence is one fixed by law." A sentence of life imprisonment is such a sentence and the minimum period is fixed as part of the imposition of that sentence. The Crown presented no argument, however, that the application was incompetent and I would propose to deal with the application upon its merits on the basis that the application may be competently brought in that it focuses entirely upon the discretionary judgment required of the sentencing Judge in fixing the minimum period. As will appear, it is not in my opinion necessary that the question of the competency of the application be finally dealt with, but it is important for present purposes to understand that the fixing of the minimum period is not of itself the imposition of a sentence, but is the determination of a period governing the question of eligibility for parole, the only way in the ordinary course that the life sentence may be brought to an end before the death of the prisoner.
Subject only to the fact that the minimum period is part of a mandatory indeterminate sentence, it seems to me that it bears the same character in relation to that sentence as did the minimum term which earlier versions of the legislation required a sentencing Judge to fix as part of a finite term which used, colloquially, to be called the head sentence. It is appropriate then to have regard to what has been said by the courts to be the essential features of such a term.

In Power v The Queen (1974) 131 CLR 623 at 627 a majority of the High Court said that in fixing the minimum term:
"…the trial judge should determine that minimum period for which in his judgment, according to accepted principles of sentencing, the prisoner should be imprisoned." (My emphasis)
The court, however, accepted that the punishment of imprisonment, including during the non‑parole period, was punishment directed towards reformation. Further, their Honours made it clear that deterrence, both particular and general, would be relevant to the fixing of the minimum period. Their Honours concluded at 629 that the minimum period was:
"…to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence."
That decision was followed in Deakin v The Queen (1984) 58 ALJR 367, a decision which in turn was followed in relation to the general considerations applying to the making of a parole eligibility order when imposing a finite sentence of imprisonment, in Thompson v The Queen (1992) 8 WAR 387, 395 ‑ 396, which decision in its turn was followed in respect of that part of the sentencing process under the present legislation in R v Wongawol (1998) 101 A Crim R 350, 353, 359.
There are many cases following Power where the courts have held that the considerations governing the exercise of discretion by way of the fixing of a minimum term, as well as the considerations governing the question whether or not to fix such a term or whether or not to order eligibility for parole, are the considerations which govern the fixing of the head sentence or finite term which is to be imposed. In other words, in determining what is the minimum period that justice requires to be served, the court will have regard to all those circumstances which may aggravate the seriousness of the offence as well as those which may mitigate punishment, whether they be circumstances concerned with the offence and its commission, or whether they be circumstances personal to the offender, and the general principles of sentencing will be applied. Reference may be made to such cases as R v Maclay (1990) 19 NSWLR 112 and R v Chan (1994) 76 A Crim R 252, to name but two of a number of such authorities.
Of course, when both the head sentence and minimum term were fixed by the court, the character of the minimum term as described in Power meant that the relevant considerations were applied somewhat differently to both elements of the sentence, given that the minimum term was necessarily a shorter period than the head sentence and it was accepted that it was necessarily a period shorter than the period of time which would have to be served when remissions applicable to the head sentence were taken into account. It was accepted that the minimum period was that part of the total sentence which must be served before the prisoner would become eligible for conditional release on parole as a means of pursuing the goal of the rehabilitation of the offender.
The question which arises in this application is whether the court may treat the fixing of the minimum period in the same way, given that the sentence of life imprisonment imposed is a mandatory sentence and reflects no exercise of discretion by the sentencing judge, having regard to the ordinary principles governing that process.
Bugmy v The Queen (1990) 169 CLR 525 was a case which came to the High Court from Victoria and concerned a provision of the Penalties and Sentences Act 1985 (Vic), which introduced a requirement to fix a minimum term in respect of a mandatory sentence of life imprisonment and afforded the opportunity to prisoners already serving such a sentence to apply to the court for a minimum term to be fixed in their cases. In the particular case the Judge at first instance, in fixing a minimum term, said he thought the term fixed was appropriate to the gravity of the crime and not disproportionate to the criminality involved.
The majority considered that in taking that approach and having regard to the length of the term fixed, the sentencing Judge had been moved by considerations more appropriate to the fixing of a head sentence rather than a minimum term. Mason CJ and McHugh J dissented as to that conclusion, but like the majority, they thought it was appropriate to apply to the consideration of the minimum term, factors which are to be taken into account in fixing a head sentence, accepting that "the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function" (531). Relevant to that task were the applicant's prospects of rehabilitation and the community's need to be protected from a violent offender, having regard to the nature of the crime. At 532 Mason CJ and McHugh J said:
"But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence, whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community."
Finally, Inge v The Queen (1999) 73 ALJR 1563 was a case of murder which came to the High Court from SA where the crime carries a mandatory life sentence and the sentencing Judge is empowered to fix a non‑parole period. The appellant was 23 years of age and the period fixed was 20 years. He appealed against the non‑parole period on the ground that it was manifestly excessive. The CCA of SA dismissed his appeal on the particular ground that the relative youth of the appellant at the time when he committed the murder counted against him in determining the appropriate non‑parole period. An appeal to the High Court was, however, successful, the Court holding that there could not be a meaningful search for a due proportion between the life sentence imposed and the minimum non‑parole period. At 1565 the majority described the attempt to achieve such a due proportion as "a somewhat unrealistic and artificial exercise." Their Honours went on to say:
"The seriousness of the offence which has been committed, and the severity of the mandatory penalty provided by statute, are matters to be taken into account in fixing a non‑parole period, but it does not follow, either as a matter of logic, or as a matter of the proper exercise of the discretion considered in Bugmy, that the relative youth of an offender counts against the offender."
One might be tempted to say that the artificiality of the exercise of seeking a due proportion between the minimum period and the life sentence is increased when, as under the legislation of this State, the minimum period may not exceed 14 years when a life sentence is imposed for murder as opposed to wilful murder. In SA, under the applicable legislation, the sentencing Judge was given no guidance as to the length of the term which should be fixed.
In Inge Kirby J expressed the same view as the majority, but his Honour considered that general considerations affecting the fixing of the minimum period would apply equally to the case of a prisoner sentenced to a mandatory term of life imprisonment as to a prisoner sentenced to a finite or fixed term of imprisonment. At 1573 his Honour observed that it was therefore necessary to consider the circumstances of the offence and the circumstances personal to the offender, whether those considerations tended to be aggravating or mitigatory in their effect. The prospect of rehabilitation that release on parole aims to encourage would necessarily be considered, together with those circumstances which may affect the impact of the sentence upon the offender.
It seems to me, therefore, that the legislative scheme and the authorities discussed support the conclusion that in a case where a mandatory sentence of life imprisonment or strict security life imprisonment is imposed, the decision whether or not to fix a minimum period where that is required to be made and if so, the length of that period within the statutory parameters provided, involve discretionary judgments which will be informed by applying to the case the ordinary principles of sentencing.
It will be necessary to bear in mind the seriousness of the offence per se as signalled by the fact that a mandatory sentence of life imprisonment or strict security life imprisonment is to be imposed. It would be appropriate to bear in mind that the history of this legislation for some time now has been one where the Parliament has tended to "firm up" the effect of the sentence by eliminating in some cases, or by restricting, the capacity to exercise a discretionary judgment which may have the effect of reducing the period of imprisonment to be served.
For instance, and most recently, s 91 was amended with effect from 23 October 1998 so as to repeal subs (3) which provided merely that the sentencing court imposing strict security life imprisonment "may, if it decides it is appropriate to do so, order that the offender is not to be paroled." In place of that provision subs (3) and subs (4) were enacted in the following form:
"(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 -
(a)the circumstances of the commission of the offence; and
(b)any aggravating factors."
Those are clearly amendments designed to direct the court to the use of the power and the considerations which may require its use.
Where the court decides that a minimum period is to be fixed, it remains in this context, as it was conceived to be in the context of the imposition of a finite sentence, the period which in the judgment of the court is the period which the offender must serve in prison before being eligible to be released on parole, if that should be the decision which the Governor makes. In fixing that period the court is to have regard to the circumstances of the offence and the circumstances personal to the offender, whether they be aggravating or mitigating in their effect, in so far as they bear upon the length of the period which must be served before the offender might be released. The protection of the community will be an important consideration as will the offender's prospects of rehabilitation, bearing in mind that the purpose of punishment, including the fixing of the minimum period, is not only the protection of society from this offender and such offences generally, but also the ultimate reformation of the prisoner.
In this exercise of fixing the minimum period, as in the case of the making of a parole eligibility order in the context of a finite sentence of imprisonment, there is an inevitable element of prognostication on the part of the sentencing Judge. It will be necessary to consider what may be the position when, after serving the minimum period, the offender would become eligible for release on parole. This is expressly a consideration in the ordinary case of the making of a parole eligibility order under the Sentencing Act, s 89(2)(d), and so far as the exercise of fixing a minimum period in the context of a life sentence is concerned, in my respectful opinion the matter was put appropriately by Kirby J in Inge at 1572 when his Honour said:
"…it is necessary for the Judge to decide when it will first be appropriate to contemplate the steps that may lead to the prisoner's conditional freedom in the form of a release on parole. This must be done viewed from the moment of sentencing, unaware of what may later occur and conscious of the importance of the decision both for the prisoner and for society."
For those reasons it seems to me that to frame the ground of appeal, as in this case, so as to assert that the decision of the learned sentencing Judge in respect of the minimum period fixed "was manifestly excessive in all the circumstances" is to argue for a proposition which is incorrect as a matter of law. When imposing a life sentence for the crime of murder the minimum period of 14 years is not to be taken as being reserved for the worst conceivable case of murder, short of the offence of wilful murder, a submission implicit in the argument presented by counsel who suggested that Parker J must have placed too little weight upon the various matters having a mitigatory effect if they resulted in the reduction of the minimum period merely from 14 years to 12 years.
That is not to say that the matters particularised in ground 1.1 did not require consideration in fixing the minimum period, but in my respectful opinion, the error in the approach exemplified by the ground is made manifest when one comes to ground 1.2. The relevance of an intellectual deficit in the offender to the sentencing process generally was recently discussed by this Court in R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998 and again in R v Dalgety [2000] WASCA 10, 3 February 2000 it was held that the offender's intellectual retardation did not eliminate the aim of general deterrence as one to which a sentence should properly give effect, but that factor would, generally speaking, still operate "sensibly moderated". Those cases were relied upon by the applicant, but in my respectful opinion to do so was to treat the process of fixing the minimum period rather as if it was the imposition of an effective finite term of imprisonment and, as has been seen, that is not the basis upon which the minimum period is to be fixed.
I turn then to the question which I take the ground of the application to pose, ie, did Parker J err in the exercise of his discretion on the ground that the relevant considerations, properly applied, should have led him to fix a shorter period as the minimum time which the applicant must serve in prison before eligibility for parole? I commence by referring to his Honour's sentencing remarks. He mentioned that the homicide was the tragic loss of life of an innocent 14 year old boy whom the applicant and the co‑offender, Leatch, had robbed of his motor cycle and other equipment. His Honour mentioned "the terrible pain and enormous sense of loss" of the child's family to which the victim impact statements testified. His Honour found that Leatch took very much the primary role and of course he was convicted of wilful murder. Parker J accepted that, unlike Leatch, the applicant, although a party to the acts that caused the death of the victim, did not intend his death, but meant him to suffer grievous bodily harm.
Nonetheless, his Honour spoke of the fact that after the child had been dragged from his motor cycle, the applicant guarded the victim with a Samurai sword so that he could not escape. She witnessed him tied to a tree by his hands. She witnessed the rope placed around the victim's neck and the process of strangulation, periodically easing the tension on the rope, so prolonging, as his Honour put it, the victim's desperate plight. She did nothing to intervene, but by her presence and support encouraged what occurred. She did not intervene when Leatch struck the child on the back of the head with a large rock. She it was who placed the victim's jacket over his head. She saw Leatch place a foot on the victim's back and press down with his weight while simultaneously pulling on the rope around his neck in the opposite direction, a process which actually tore the victim's heart. The process of strangulation continued until Leatch was quite satisfied that the child was dead.
Parker J, in my respectful opinion, correctly described the significance of the part played by the applicant when he said that:
"…by your presence and actions you played a real part in the conduct, conduct which was prolonged and which kept [the victim] in a state of physical captivity, captivity that involved violent physical abuse and grave mental anguish and humiliation and which culminated in his death from strangling and the tearing of his young heart…"
The applicant was said to have aided the co‑offender Leatch as directed and although his Honour accepted that she had some concern for her own well‑being if she did not do as Leatch required, he said that while that explained her conduct it did not excuse it. There was no suggestion that Leatch threatened her or overbore her will to secure her participation. Indeed his Honour found that the applicant consciously decided to go along with whatever Leatch did:
"…guided as much by your romantic feelings for Leatch as any sense of fear for your own welfare and also well aware that what was being done suited your purpose as much as Leatch's in providing a means of getting away from Byford."
His Honour had regard to an important psychological report concerning the applicant, but he did not accept the suggestion that the applicant's intellectual deficit, as it was found to be, and submissive personality meant that she did not exercise judgment and make a conscious decision for herself to be involved in and to go along with what Leatch did. I have mentioned that his Honour spoke about the "romantic feelings" which the applicant had for Leatch. As his Honour concluded, "I accept that you had developed a sense of dependency toward him, just as you had developed an extremely strong romantic attachment."
Parker J noted that the applicant was aged only 19 years when the offences were committed, that she had no prior relevant criminal history and that her limited intellectual capacity meant that she had extreme difficulties at school and what is described in ground 1.1.3 as an "unfortunate childhood" involving an unhappy and abusive home life. All of that, his Honour found, had left the applicant with a "very low sense of self‑esteem." His Honour considered those matters personal to the applicant counted in her favour and he found that "there is no basis upon which there is any justification for concluding that you are likely to present a continuing danger to the community."
Parker J expressed his final conclusion in the following way:
"Even so, in this case the seriousness of the conduct in which you consciously participated and actively assisted is so grave that I am unable to accept the submission that it would be appropriate to deal with you by fixing a minimum term at the minimum or at the lower end of the scale, the scale of 7 to 14 years which Parliament has set. The most difficult consideration is your intellectual capacity, and this has had to weigh heavily in my deliberations.
For the reasons I have indicated, however, I have in the end been satisfied that you had a sufficient appreciation of the shamefulness and the enormous moral wrong of what was occurring, and that you well knew that what was happening should not have happened and that you should not have participated, and that you gave in to a combination of the influence of the romantic attachment you felt for Leatch and the self‑interest you felt out of concern for your own well‑being if you stood up to Leatch, also the desire that you shared with Leatch to get away to another state. This conduct, I am satisfied, was seen by both of you as a means of achieving that objective."
His Honour appears to have overlooked nothing of relevance to the fixing of the minimum period, nor did he take into account anything which was irrelevant to that task. He was required to balance matters of mitigation, particularly those personal to the applicant, against the gravity of the offending conduct and there was ample evidence to support his Honour's conclusion that in that regard the moral culpability of the applicant was not substantially reduced. In those circumstances the difficulty of the applicant's task to demonstrate error in the exercise of the discretion is manifest.

Although in this case I would grant the applicant leave to appeal, I would dismiss the appeal because I am in the end unpersuaded that the learned sentencing Judge did not appropriately perform the immensely difficult task of balancing all the various competing considerations which led him ultimately to the conclusion, in the exercise of his discretion, that it was appropriate to grant the applicant eligibility for parole after serving a minimum period of 12 years. The gravity of the circumstances which led to the death of the victim, in which the applicant was found to have consciously participated intending that the victim suffer grievous bodily harm, required the conclusion that a substantial minimum period should be fixed. Whilst the applicant's prospects of rehabilitation were regarded as good, the mitigation to be found in her personal circumstances could not substantially detract from the length of the minimum period, once his Honour concluded, as was well open to him, that the applicant's moral culpability was not substantially reduced by reason of her intellectual deficit or other personal circumstances.