Smith v The State of Western Australia
[2019] WASCA 7
•14 JANUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SMITH -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 7
CORAM: BUSS P
MAZZA JA
HEARD: 4 & 12 OCTOBER 2018
DELIVERED : 14 JANUARY 2019
FILE NO/S: CACR 106 of 2018
BETWEEN: LENNIE KENNETH GREGORY SMITH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: PRITCHARD J
File Number : INS 368 of 2017
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of 2 counts of aggravated attempted murder and 1 count of aggravated burglary - Appellant sentenced to the mandatory minimum penalty of 15 years' imprisonment on each count of aggravated attempted murder - Total effective sentence of 19 years' imprisonment - Parole eligibility order made - Whether the sentencing judge erred in failing to sentence the appellant to life imprisonment on each count of aggravated attempted murder - Leave to appeal refused
Legislation:
Criminal Code (WA), s 283, s 401(2)(a)
Sentence Administration Act 2003 (WA), s 12, s 12A, s 25
Sentencing Act 1995 (WA), s 4(1), s 9, s 9AA, s 41, s 90, s 96
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr P G Giudice |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | George Giudice |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Jarvis v The Queen (1993) 20 WAR 201
Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1
McLean v The Queen [1999] WASCA 209
Mussarri v The State of Western Australia [2018] WASCA 46
The State of Western Australia v Smith [2018] WASCSR 27
JUDGMENT OF THE COURT:
The appellant has applied for leave to appeal against sentence.
On 2 March 2018, the appellant was convicted, on his pleas of guilty before Pritchard J, of 3 counts in an indictment.
Count 1 alleged that on 30 November 2016, at Bluff Point, the appellant, while in the place of Marie Thomas-Smith without her consent, committed the offence of attempting unlawfully to kill Ms Thomas-Smith, in circumstances of aggravation, contrary to s 401(2)(a) of the Criminal Code (WA) (the Code). The circumstances of aggravation pleaded in count 1 were that the appellant was armed with an offensive instrument, namely a knife, and that immediately before the commission of the offence the appellant knew or ought to have known that there was another person in the place and that the place was ordinarily used for human habitation.
Count 2 alleged that on the same date and at the same place as in count 1, the appellant attempted unlawfully to kill Ms Thomas-Smith in circumstances of aggravation, contrary to s 283(1)(a) read with s 283(2) of the Code. The circumstances of aggravation pleaded in count 2 were that the offending occurred during an aggravated home burglary.
Count 3 alleged that on the same date and at the same place as in count 1, the appellant attempted unlawfully to kill Kristopher Battilanna, in circumstances of aggravation, contrary to s 283(1)(a) read with s 283(2) of the Code. The circumstances of aggravation pleaded in count 3 were that the offending occurred during an aggravated home burglary.
On 2 March 2018, the sentencing judge sentenced the appellant to terms of imprisonment as follows:
(a)count 1: 3 years' imprisonment;
(b)count 2: 15 years' imprisonment; and
(c)count 3: 15 years' imprisonment.
Her Honour ordered that the sentence for count 1 be served concurrently with the sentence for count 2 and that the sentence for count 3 commence upon the appellant having served 4 years of the sentence for count 2. The total effective sentence was therefore 19 years' imprisonment. The total effective sentence was backdated to 30 November 2016. A parole eligibility order was made.
We would refuse leave to appeal. Our reasons are as follows.
The facts and circumstances of the offending
The facts and circumstances of the offending, as found by the sentencing judge, were as follows.[1]
[1] The State of Western Australia v Smith [2018] WASCSR 27.
On 30 November 2016, when the offences were committed, the appellant and Ms Thomas-Smith were married. However, in September 2016 they had separated. Their relationship had produced three children.
On 21 September 2016, Ms Thomas-Smith sought and was granted a violence restraining order against the appellant as a consequence of a number of domestic violence incidents. On 4 November 2016, the appellant was informed of the making of the violence restraining order. The order prevented the appellant from entering, remaining on or loitering near any premises where Ms Thomas-Smith lived.
During the evening of 30 November 2016, the appellant went to the Geraldton Beach Hotel. He drank alcohol. While he was at the hotel, the appellant spoke by telephone to his sister. She informed him that his children were at his home. The appellant was angry that Ms Thomas-Smith had left the children at his home. This anger appears to have precipitated his offending conduct.
The appellant left the hotel and went to his home. When he arrived, his elder son was awake but the younger children were asleep. The appellant attempted to contact Ms Thomas-Smith. She did not respond. His anger increased.
The appellant armed himself with knives he obtained from the kitchen. According to the elder son, the appellant told him, 'I am going to kill your mother. It's your fault. Now you're going to know what it feels like to have no mother and no father'. Defence counsel disputed that the appellant had uttered those words. The appellant's version was that he told his elder son that he was going to hurt his mother and that he would see what it felt like to have no father. Her Honour observed that resolution of the disputed evidence between the elder son and the appellant would make 'no material difference to the outcome of the seriousness of the offences which [the appellant] subsequently committed' [9]. However, her Honour accepted that the elder son's version of events reflected his understanding of what the appellant had told him.
The appellant left his house with the elder son's iPad so that the elder son could not warn his mother. At that stage, the appellant had three knives. He drove to Ms Thomas-Smith's home in Bluff Point and parked on the road verge.
The appellant alighted from his vehicle and, armed with the knives, went to the main bedroom window. He looked through the window and saw Ms Thomas-Smith asleep on the bed. Mr Battilanna was lying next to her. At the time Ms Thomas-Smith was aged 36 and Mr Battilanna was aged 33. Both were of slim build.
The appellant attempted, without success, to enter Ms Thomas‑Smith's home through the front door. Next, he attempted, unsuccessfully, to enter through the back door. Those attempts alerted Ms Thomas-Smith and Mr Battilanna. They began to dress. The appellant then smashed the main bedroom window and entered the home.
The appellant was confronted by Mr Battilanna. The appellant struck him in the face and neck a number of times with a large knife. Mr Battilanna suffered deep, life threatening injuries.
The appellant then located Ms Thomas-Smith at the front door. She was attempting to flee. The appellant struck her in the neck, body and legs a number of times with the large knife. She suffered deep, life threatening injuries. Ms Thomas-Smith managed to struggle into the kitchen. The appellant struck her again with the knife.
While the appellant was attacking Ms Thomas-Smith, he heard Mr Battilanna calling for help. The appellant returned to the main bedroom and struck Mr Battilanna again a number of times with the large knife. One blow nearly severed Mr Battilanna's finger. Another blow caused a deep laceration to his face and a further blow severed the carotid artery in his neck.
After attacking Mr Battilanna again, the appellant realised that Ms Thomas-Smith had fled via the rear door.
At this stage, the appellant was still armed with the large knife. He followed the trail of Ms Thomas-Smith's blood and saw her attempting to obtain refuge at a neighbouring property. The appellant approached Ms Thomas-Smith and used the knife to sever her right breast, so that an implant inside the breast became exposed.
Shortly afterwards, the police arrived and found the appellant lying on top of Ms Thomas-Smith. He was arrested and taken to the Geraldton police station. The appellant participated in an electronically recorded interview and admitted striking the victims with a knife.
Ms Thomas-Smith and Mr Battilanna were flown to Royal Perth Hospital. Ms Thomas-Smith required treatment for life threatening lacerations to her face, neck and body. Mr Battilanna also required treatment for life threatening lacerations to his face, neck and body.
The information before the sentencing judge included victim impact statements from Ms Thomas-Smith and Mr Battilanna. Each of them described the physical pain and scarring that the offending had caused and the emotional and mental turmoil, which was ongoing, that they had suffered. Ms Thomas-Smith also described the impact of the offending on her children; in particular, their confusion about what had occurred and why it had occurred and their feelings that they were somehow to blame. Her Honour concluded that the offending had produced an 'enormous effect' on Ms Thomas-Smith and her children [21].
Her Honour referred in detail to the appellant's personal circumstances. The appellant was aged 38 at the time of the offending and was 39 when sentenced. He was born in Port Hedland and raised primarily in that town, although he spent some time in Darwin and Geraldton. The appellant has an older sister, but his parents are deceased.
The appellant's childhood was difficult. His father was an alcoholic. The father was often angry and would damage household items. The appellant's parents separated when he was aged 6. When the appellant was aged about 12, the father returned to live with the appellant's family and remained until the appellant was aged about 17.
The appellant attended school and was educated until year 11. He left school at the age of 16 and attended the Western Australian Academy of Performing Arts in Perth, where he studied and obtained a certificate in musical theatre.
From about 1998 to 2003, the appellant was self-employed as a personal development officer. He ran his own business. He worked with theatre companies, producing programs for and conducting workshops with 'at-risk' children. From about 2003 to 2005, the appellant worked at Tom Price on the mines. From about 2005 to 2007, he worked in Newman on the mines. From about 2007 to 2010, he worked at Port Hedland in the mining industry as an operations team leader and a leading hand. Since about 2011, the appellant worked for the Geraldton Port Authority as an operations supervisor. Her Honour noted that he has a good work ethic.
In December 2000 the appellant met Ms Thomas-Smith. In December 2001 they were married. Their three children, two boys and a girl, were aged 14, 10 and 7 at the time of sentencing.
The sentencing judge found that the appellant's relationship with Ms Thomas-Smith was volatile and that he had used physical violence towards her.
Her Honour commented that, at the time of the offending, the appellant was not affected by mental ill health.
The sentencing judge noted that the appellant had a prior conviction for careless driving, but accepted that the conviction was of no relevance for sentencing purposes.
Her Honour received a number of written references from family members and friends. The authors of the references spoke well of him.
The sentencing judge said that it was 'little short of incredible' that neither Ms Thomas-Smith nor Mr Battilanna was killed [39]. The offences of attempted murder were, in her Honour's view, at the upper end of the scale of seriousness for that kind of offence.
The sentencing judge found that there were a number of aggravating features in relation to the offences. First, the appellant's attack on Ms Thomas-Smith had some degree of premeditation or planning. He had armed himself with weapons. Secondly, the offences were committed in breach of the violence restraining order. Thirdly, the offences were committed late at night. Ms Thomas-Smith and Mr Battilanna had been sleeping. Both were vulnerable and incapable of properly defending themselves. Fourthly, the appellant inflicted numerous knife wounds, over a relatively prolonged period, on various parts of their bodies. The wounds he inflicted on Ms Thomas-Smith were intended to mutilate her, especially his action in severing her breast. Fifthly, the respondent carried out the attacks 'in a relatively calm and chillingly determined fashion' [46]. At no stage in the course of the attack, despite it being obvious that he had inflicted serious injuries and despite the victims' pleas for assistance, did the appellant stop or display any concern for their welfare. Sixthly, the appellant pursued Ms Thomas-Smith when she sought refuge on the verandah of a neighbour's home. The appellant persisted in inflicting knife wounds, including severing her breast, when the neighbour and her children were inside their home. Seventhly, before the appellant left his home to commit the attack on Ms Thomas-Smith, he told his son that what he was about to do was the son's fault. Also, the appellant took his son's iPad so that the son would be unable to warn his mother. Her Honour said that, in her view, the appellant's behaviour towards his son was 'particularly cruel, deplorable and heartless', and undoubtedly had caused the son considerable trauma [48]. Finally, the circumstances of the offending demonstrated a desire on the appellant's part for retribution and involved a merciless attack on the victims. The use of knives not only caused injury, but also terror, to the victims.
The sentencing judge said that the seriousness of the offending was, however, mitigated by some factors. First, the appellant pleaded guilty. Secondly, he had expressed some remorse. However, in her Honour's view, the weight that could be attached to the appellant's expressions of remorse was limited. Thirdly, the appellant cooperated fully with the police. Fourthly, at the time of the offending the appellant was suffering some emotional difficulty consequent upon the death of some close family members.
The sentencing judge observed that the mandatory minimum term of imprisonment of 15 years in relation to each of counts 2 and 3 is not a maximum or fixed penalty. Her Honour said that the appropriate course, in the appellant's case, was to fix a term of imprisonment, rather than to impose a sentence of life imprisonment. Her Honour then made the following comments about s 9AA of the Sentencing Act 1995 (WA) and s 283(2) of the Code:
I turn next to the question of the application of s 9AA of the Act, which concerns the discount for a plea of guilty. As I have mentioned, you pleaded guilty although not at the earliest opportunity. As I read s 9AA, in conjunction with s 283(2) of the Criminal Code, nothing in that section excludes the operation of s 9AA, save that, to the extent to which a discount for a plea of guilty is to be given, it cannot leave the sentence imposed for the attempted murder at less than the 15‑year minimum. In the circumstances, a discount of 15% off the head sentence I would have imposed is appropriate in respect of each offence, to reflect the fact that your plea of guilty was not entered at the first opportunity, but after some negotiations.
However, having regard to the head sentence that I consider to be an appropriate starting point, in respect of the attempted murder offences, taking into account all of the other factors to which I have referred, the application of a 15% discount would actually leave your sentence falling slightly below 15 years. As I have said, the sentence for these offences cannot fall below the mandatory minimum of 15 years [60] ‑ [61].
The grounds of appeal
The appellant relies on three grounds of appeal.
Ground 1 alleges that the sentencing judge erred in law by imposing sentence 'on the basis that there was a legislative requirement for a minimum sentence of 15 years' imprisonment' for the offences of aggravated attempted murder charged in counts 2 and 3.
Ground 2 alleges, in effect, that her Honour erred in law by failing to give reasons or sufficient reasons for not imposing a sentence of life imprisonment for each of the offences of aggravated attempted murder charged in counts 2 and 3.
Ground 3 alleges that '[the] overall sentences on the [offences of aggravated attempted murder charged in counts 2 and 3] were manifestly excessive'.
The relevant statutory framework
Section 283(1)(a) of the Code provides that any person who attempts unlawfully to kill another is guilty of a crime, and is liable to imprisonment for life.
Section 283(2) of the Code provides:
If the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender, if it does not impose a term of life imprisonment must, notwithstanding any other written law, impose a term of imprisonment of at least 15 years.
Section 4(1) of the Sentencing Act provides that in the Act 'statutory penalty', in relation to an offence, means the penalty specified by a written law for the offence.
Section 9 of the Sentencing Act is concerned with the effect of the statutory penalty for an offence. It provides, relevantly:
(1)Part 5 applies to and in respect of the statutory penalty for an offence.
(2)If the statutory penalty for an offence is … a particular term of imprisonment, then that penalty is the maximum penalty that may be imposed for that offence and, unless the statutory penalty -
(a) is a mandatory penalty; or
(b) includes a minimum penalty,
a lesser penalty of the same kind may be imposed.
(3)If the statutory penalty for an offence specifies a minimum and a maximum penalty, the penalty to be imposed for the offence must be at least that minimum and not more than that maximum.
…
(8)In this section a reference to a mandatory penalty is a reference to a penalty that must be imposed, whether the expression “mandatory penalty” or a like expression is used.
(9)In this section a reference to a minimum penalty is a reference to a penalty expressed to be a minimum penalty, whether by use of the expression “minimum penalty” or “not less than” or another like expression.
Pt 5 of the Sentencing Act is headed 'Sentencing options' and comprises s 39 to s 45.
By s 41(2a) of the Sentencing Act, if the statutory penalty for an offence is such that imprisonment must be imposed, then despite s 41(2) the court must impose a term of imprisonment in accordance with the statutory penalty, unless the written law creating the offence provides otherwise.
Section 90 of the Sentencing Act is concerned with the imposition of life imprisonment for murder (as distinct from attempted murder). It provides:
(1)A court that sentences an offender to life imprisonment for murder must either -
(a) set a minimum period of -
(i)at least 15 years, if the offence is committed by an adult offender (within the meaning given in The Criminal Code section 1(1)) in the course of conduct that constitutes an aggravated home burglary (within the meaning given in that section); or
(ii)at least 10 years, in any other case,
that the offender must serve before being eligible for release on parole; or
(b) order that the offender must never be released.
(2)Any minimum period so set begins to run when the sentence of life imprisonment begins.
(3)A court must make an order under subsection (1)(b) 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 (1)(b) 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.
Section 90 of the Sentencing Act does not apply where a court sentences an offender to life imprisonment for the offence of attempted murder or the offence of aggravated attempted murder created by s 283 of the Code.
By s 96(1) of the Sentencing Act, a prisoner serving a sentence of life imprisonment for an offence other than murder is not to be released before he or she has served 7 years of the sentence. By s 96(4), any order for the release of a prisoner referred to in s 96 must be made in accordance with pt 3 of the Sentence Administration Act 2003 (WA).
Part 3 of the Sentence Administration Act is headed 'Parole' and comprises s 15 to s 49. Section 25 makes provision for the Governor to make a parole order in respect of a prisoner serving a sentence of life imprisonment, including a prisoner who is serving life imprisonment for an offence other than murder. Section 25 provides:
(1) In this section -
prisoner means any of the following prisoners -
(a)a prisoner serving life imprisonment for murder where -
(i)a minimum period has been set under section 90(1)(a) of the Sentencing Act 1995 and the prisoner has served that minimum period; or
(ii)the prisoner was sentenced before 4 November 1996;
(b)a prisoner serving life imprisonment for an offence other than murder where -
(i)the prisoner has served the period required by section 96(1) of the Sentencing Act 1995; or
(ii)the prisoner was sentenced before 4 November 1996.
(1A)The Governor may make a parole order in respect of a prisoner but only if a report about the prisoner has been given by the Board to the Minister under section 12 or 12A.
(2)The release date in the order is that set by the Governor.
(3)The parole period in the order is to be set by the Governor and must be at least 6 months and not more than 5 years.
Section 12 of the Sentence Administration Act is concerned with reports by the Prisoners Review Board to the Minister about prisoners generally. Section 12A is concerned with reports by the Board to the Minister about 'Schedule 3 prisoners' (that is, persons described in Schedule 3 column 2 of the Act). Schedule 3 prisoners include a prisoner who is serving a sentence of life imprisonment for an offence other than murder.
The first report by the Board to the Minister under s 12A of the Sentence Administration Act is due 7 years after the day on which the term of life imprisonment began or is taken to have begun. Subsequent reports under s 12A are due every 3 years after that time. By s 12(1), at any time the Minister, in writing, may request the Board to report about a prisoner. The Governor's power to make a parole order in respect of a prisoner under s 25(1A) is conditional upon a report about the prisoner having been given by the Board to the Minister under s 12 or s 12A.
Grounds 1 and 2: the appellant's submissions
As to ground 1, counsel for the appellant submitted that the sentencing judge erred in law in deciding that there was a 'legislative requirement for a minimum sentence of imprisonment of 15 years in this case'. It was submitted that the minimum sentence of 15 years' imprisonment 'only applies if the court does not impose a term of life imprisonment which it had the option to do'.
As to ground 2, counsel for the appellant argued that:
(a)a person convicted of attempted murder is liable to imprisonment for life: s 283(1)(a) of the Code;
(b)if the offence is committed in the course of an aggravated home burglary (as it was in the present case), the court is not precluded from imposing life imprisonment;
(c)if the offence is committed in the course of an aggravated home burglary (as it was in the present case), and the court does not impose life imprisonment, a term of at least 15 years' imprisonment must be imposed: s 283(2) of the Code; and
(d)there is no guidance in the legislation as to when a sentence of life imprisonment should not be imposed.
It was argued that her Honour did not give a sufficient reason for not imposing a sentence of life imprisonment on the appellant for each of counts 2 and 3. Counsel asserted, by reference to [57] - [59] of her Honour's reasons, that her Honour appears to have decided that life imprisonment for each of counts 2 and 3 'was not appropriate because of the seriousness of the offending and the need [for] general and specific deterrence'. Counsel complained that her Honour did not explain why those objectives 'could not be achieved by the imposition of life imprisonment'. Counsel submitted that those objectives could be achieved by a sentence of life imprisonment for each of counts 2 and 3, and there was insufficient reason given by her Honour as to why they would not.
The appellant's orders wanted include orders that the appeal be allowed, the sentences imposed by her Honour for counts 2 and 3 be set aside, and this court impose sentences of life imprisonment for counts 2 and 3.
At the hearing of the application it became apparent that the appellant wants sentences of life imprisonment, rather than the fixed term sentences of 15 years' imprisonment, because he believes that he has a reasonable prospect of being released on parole, pursuant to s 25 of the Sentence Administration Act, upon his having served 7 years' imprisonment. The court asked counsel for the appellant at the hearing whether it was counsel's contention that 'the only reason why her Honour should have imposed life imprisonment is so that [the appellant] could get the benefit of what [counsel perceives] to be a more generous and favourable parole regime, that is … the chance [that the appellant] might be released after 7 years?' Counsel replied, '[t]hat was what was in my mind, yes' (appeal ts 4 - 5).
Grounds 1 and 2: their merits
In our opinion, it is apparent from s 283 of the Code read with s 4(1), s 9 and s 41(2a) of the Sentencing Act that:
(a)The statutory penalty and, also, the maximum penalty for the offence of aggravated attempted murder created by s 283(1)(a) read with s 283(2) of the Code is life imprisonment.
(b)The minimum penalty for the offence of aggravated attempted murder is 15 years' imprisonment.
(c)It is open to a sentencing judge, depending upon the relevant facts and circumstances of, and the relevant sentencing factors in, a particular case, to impose a fixed term of imprisonment, on an offender who has been convicted of aggravated attempted murder, in excess of 15 years' imprisonment.
An offender who is sentenced to life imprisonment for aggravated attempted murder may never be released. By contrast, an offender who is sentenced to a fixed term of imprisonment for aggravated attempted murder will be released upon having served the fixed term, even if he or she has not been released earlier on parole.
It is well established that whether an offender, who has been sentenced to life imprisonment or a fixed term of imprisonment, is in fact granted parole involves an administrative act on the part of the Governor or the Prisoners Review Board, as the case may be, which does not concern the sentencing judge in the performance of his or her sentencing function. The possibility that the Governor might release on parole an offender who has been sentenced to life imprisonment or the Prisoners Review Board might release on parole an offender who has been sentenced to a fixed term of imprisonment is irrelevant in the sentencing process. A sentencing judge is not permitted to take into account, in determining the head sentence for an offence, the legislative scheme for parole. Further, the possibility of the Governor or the Prisoners Review Board making an order for the release of an offender on parole is irrelevant when a sentencing judge is considering the application of the totality principle. See Jarvis v The Queen;[2] McLean v The Queen;[3] Keating v The State of Western Australia.[4]
[2] Jarvis v The Queen (1993) 20 WAR 201, 208 (Ipp J), 214 (Murray J).
[3] McLean v The Queen [1999] WASCA 209 [11], [17], [19] (Ipp J; Wallwork & Parker JJ agreeing).
[4] Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 [37] (Steytler P & McLure JA).
In our opinion, the possibility of the Governor or the Prisoners Review Board making an order for the release on parole of an offender who has been convicted of aggravated attempted murder, contrary to s 283(1)(a) read with s 283(2) of the Code, is irrelevant in the sentencing process and the sentencing judge is not permitted to take that possibility into account in determining the head sentence.
In the present case, the sentencing judge observed that:
(a)the offence of aggravated attempted murder 'carries a maximum penalty of life imprisonment, but … is also subject to a legislative requirement for a minimum sentence of imprisonment of 15 years' [1];
(b)general and specific deterrence in the appellant's case 'will effectively be addressed by virtue of the mandatory minimum term of imprisonment which applies to the [aggravated] attempted murder counts here' [57];
(c)the 'mandatory minimum term of imprisonment of 15 years in relation to counts 2 and 3 is not a maximum or fixed penalty' [59]; and
(d)the appropriate course, in the appellant's case, 'is to fix a term of imprisonment, rather than to impose a sentence of life imprisonment' [59].
As to ground 1, her Honour did not err in law by deciding that the offence of aggravated attempted murder is subject to a 'legislative requirement for a minimum sentence of imprisonment of 15 years' [1]. Her Honour's observation, having regard to s 283 of the Code read with s 4(1), s 9 and s 41(2a) of the Sentencing Act, was correct. As we have explained, the statutory penalty and, also, the maximum penalty for the offence of aggravated attempted murder is life imprisonment and the minimum penalty for that offence is 15 years' imprisonment. Ground 1 is without merit.
As to ground 2, her Honour explained in her sentencing remarks, in effect, that it was unnecessary to impose the maximum penalty of life imprisonment on the appellant for each offence of aggravated attempted murder because the sentencing factors of general and specific deterrence would be adequately addressed by the imposition of the minimum penalty, namely 15 years' imprisonment. Her Honour was not obliged, having regard to the facts and circumstances of the present case and the applicable sentencing framework, to give more detailed or elaborate reasons for imposing the minimum penalty and not the maximum penalty. Ground 2 is without merit.
Ground 3: the appellant's submissions
Counsel for the appellant submitted that the sentencing judge 'should have considered that it would assist in the sentencing exercise to order a psychological report given defence counsel relied upon emotional difficulties that the appellant was suffering'. At the hearing of the application the court noted that there is no allegation in ground 3, or in any of the other grounds, that her Honour erred by failing to order a psychological report. Counsel for the appellant then informed the court that he was referring to the absence of a psychological report merely 'as a background circumstance' in relation to ground 3 (appeal ts 12).
It was submitted that the discount of 15% allowed by her Honour, pursuant to s 9AA of the Sentencing Act, was in effect unreasonable or plainly unjust and that her Honour should have given a discount 'of at least 17.5%'.
Counsel argued that the sentence of 15 years' imprisonment imposed for each of counts 2 and 3 was 'outside the range historically'.
Ground 3: its merits
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty and any minimum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
The imposition of a sentence (apart from a mandatory sentence) involves a discretionary judgment. The discretion must be exercised having regard to the relevant statutory provisions and any applicable common law principles.
Counsel for the appellant's contentions in relation to ground 3 are not reasonably arguable. The sentencing judge imposed the minimum penalty for each of counts 2 and 3. The appellant claims in substance that the sentences are manifestly excessive because he did not receive the maximum penalty. No ground of appeal and no submission to that effect by or on behalf of an offender has previously been put to the court. This is not surprising. The reason is obvious.
In any event, the argument that her Honour was in error in affording the appellant a discount of 15% (rather than a discount of at least 17.5%) pursuant to s 9AA of the Sentencing Act is without merit. The principles relevant to s 9AA were outlined by Buss P in Mussarri v The State of Western Australia.[5]There is no foundation in counsel for the appellant's submissions or in the other material before the court on which to construct a reasonable argument that the discount of 15% was unreasonable or plainly unjust.
[5] Mussarri v The State of Western Australia [2018] WASCA 46 [42] - [52].
Further, and in any event, the submission of defence counsel at the sentencing hearing was that at the time of the offending the appellant's 'emotional stability was severely impacted by four important events in his life, those being in 2005 the death of his cousin by suicide; in January 2011 the death of his mother; thirdly, the breakdown of his relationship with Ms Thomas-Smith and consequently his children; and the death of his father three months prior to the offence in August of 2016' (ts 17).
Defence counsel did not, at any stage, raise with her Honour whether a psychological report should be obtained.
The sentencing judge expressly took into account, as a mitigating factor, that at the time of the offending the appellant was suffering some emotional difficulty consequent upon the death of some close family members [56].
Ground 3 does not have a reasonable prospect of success.
Conclusion
Leave to appeal should be refused. Accordingly, the appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KL
Associate14 JANUARY 2019
3
3