Stapleton v The Queen - [2002] WASCA 328

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: STAPLETON -v- THE QUEEN [2002] WASCA 328

CORAM: MURRAY J
STEYTLER J
FITZGERALD AJ

HEARD: 7 AUGUST 2002

DELIVERED : 4 DECEMBER 2002

FILE NO/S: CCA 87 of 2001
CCA 88 of 2001

BETWEEN: JAMES WAYNE STAPLETON
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Wilful murder of child - Death caused by a severe beating, asphyxiation or both - Whether trial Judge erred in admitting evidence of confessional statements by appellant which were not recorded on videotape - Adequacy of direction in respect of statements by coaccused persons in evidence tending to implicate appellant - Conviction upheld

Sentencing - Wilful murder - Choice between life imprisonment and strict security life imprisonment - Fixing minimum period before eligibility for parole - Principles discussed

Legislation:

Criminal Code, s 282, s 570D

Sentencing Act 1995 (WA), s 90, s 91

Result:

Appeal against conviction dismissed
Application for leave to appeal against sentence refused

Category: A

Representation:

Counsel:

Appellant: Mr M J McCusker QC & Mr M G Devlin
Respondent: Mr D Dempster

Solicitors:

Appellant: Young & Young
Respondent: State Director of Public Prosecutions

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

Ahmad v The Queen [2002] WASCA 70
Jackson v The Queen [1990] WAR 105
Jacovic v The Queen [2002] WASCA 149
Lauritsen v The Queen (2000) 22 WAR 442
McKinney & Judge v The Queen (1991) 171 CLR 468
Monaghan v The Queen (1990) 3 WAR 466
Power v The Queen (1974) 131 CLR 623
R v Sherratt (2000) 112 A Crim R 177
R v Suarez‑Mejia [2002] WASCA 187
T (a child) v The Queen (1998) 20 WAR 130
Wood v The Queen [2002] WASCA 175

Case(s) also cited:

Deakin v The Queen (1984) 54 ALR 765
Griffin v The Queen [2001] WASCA 11
Lowndes v The Queen (1999) 195 CLR 665
Middleton v The Queen (1998) 19 WAR 179
R v "H" (a child), unreported; SCt of WA; Library No 980547; 14 September 1998
R v Georgiadis (No 3) [2001] TASSC 49
R v Swaffield (1997) 192 CLR 159

JUDGMENT OF THE COURT: The appellant has appealed against his conviction for the wilful murder of a teenage boy on 11 May 1999. The appellant undoubtedly participated in the events that led to the boy's death and subsequently buried his body. He admitted that in evidence he gave at his trial. However, he denied that he intended to kill the boy or cause him grievous bodily harm and claimed that his acts were not of such a nature as to be likely to endanger the boy's life. On the appellant's case, one or more of his companions must have killed the boy.
In his evidence, the appellant admitted that he and his companions held the boy in captivity for a considerable period, during which he was tied up, beaten with a substantial piece of wood and a shovel and the appellant jumped on his torso. The appellant was absent for at most 20 minutes when he drove to a service station for fuel. When he returned, he tied ligatures around the boy's face and head, stuffed toilet paper down his throat and used a piece of wood across his throat to stop him breathing, if he was alive. The appellant said that he thought the boy was dead, but wanted to stop him suffering if he was alive.
The prosecution was unable to exclude the possibility that the boy was already dead when the appellant admittedly set out to kill him, if he was still alive. It did not argue that the appellant was guilty even if the boy's death was caused by a blow inflicted by one of the appellant's companions while he was absent. It set out to prove that the boy was killed by acts of the appellant, either the blows he inflicted, the tying of the ligatures, the insertion of paper down his throat, or forcing the piece of wood across his throat. The pathologist, Dr Margolius, gave as her opinion that the boy could have been killed by multiple soft tissue injuries, upper airway ligature obstruction or a combination of both.
The Crown conceded that evidence of oral admissions allegedly made by the appellant to Detective Senior Constable Scantlebury, a police officer involved in the investigation of the crime, formed an important part of its case. The appellant submitted that the trial Judge should not have admitted that evidence. He also submitted that his Honour erred in his summing up to the jury in relation to evidence given by his co‑accused.

Evidence of admissions

On 21 May 1999, the appellant was interviewed by Scantlebury and another detective, McKenzie, at the Bunbury Police Station. The interview was recorded on videotape. The appellant admitted abducting and striking the boy, but claimed that the boy later left on his bicycle.
The appellant was again interviewed on the following day by McKenzie and another detective, Bradley. The appellant's partner, Derrin Elizabeth Bardsley, who was also involved in the offence, was interviewed by Scantlebury and another detective. Scantlebury subsequently approached the appellant and, in answer to his questions, told him that Bardsley had made admissions and encouraged him to reveal the location of the boy's body. The appellant became upset, asked to speak to Bardsley and was permitted to do so. He then asked to speak with a lawyer and Scantlebury arranged for Mr Devlin to attend. After the appellant had a conversation with Mr Devlin, the detectives were informed that the appellant would assist them to locate the boy's body but would not participate in any further interviews. Although the statement might have referred to videotaped interviews, it is plain that the appellant declined to be interviewed further.
Nonetheless, Scantlebury approached the appellant and had another conversation with him later that night. Scantlebury did not suggest to the appellant that their conversation should be recorded on videotape. The appellant volunteered that he "lost it" and struck the boy repeatedly with a piece of wood, "trying to scare him", until the boy went limp and could not be revived.
On the following day, 23 May, the appellant voluntarily accompanied police officers to the Pickering Brook area where the boy's body was buried and participated in a videotape recording there while he showed the boy's gravesite to McKenzie and Bradley. The appellant then approached Scantlebury, and asked to speak with him. He said in evidence that he considered that he had some "rapport" with Scantlebury and that was also the evidence of the detective. Again, Scantlebury did not suggest that their conversation should be recorded on videotape. In the course of their conversation, Scantlebury broke off to speak to a forensic pathologist who was present to inspect the boy's body. Although, when the discussion between the appellant and Scantlebury resumed, the appellant expressed concern that Scantlebury might disclose what he was telling him, their conversation continued, despite the officer telling the appellant he should remember that as "a copper" he had to "write some of the stuff down".
The appellant was not deterred from continuing the conversation. He confirmed again the blows that he had struck and again said:
"It was only meant to scare him. I just didn't want him around the place anymore. You know, he's broken in and done stuff so many times, but it wasn't me. I don't get angry. I'm constant you know."
The appellant then described his panic when he could not wake the boy, his attempts to clean the blood and remove the evidence of what had occurred. He commented, "Fuck, what have I done?" The appellant told Scantlebury that he wanted to help, although he appreciated that Mr Devlin's advice was to simply show the police where things were and not to talk.
That evening, Scantlebury and the appellant had another conversation initiated by the appellant outside the appellant's house at Petry Street, Langford. Again, Scantlebury did not suggest that their conversation should be recorded on videotape. Nothing of great significance appears to have been added to the story already told.

The question of admissibility

When there is no indisputably reliable record of disputed admissions, a person in police custody is especially vulnerable to false allegations that he or she confessed (McKinney & Judgev The Queen (1991) 171 CLR 468) and police officers are exposed to false accusations that oral admissions are fabricated. In this State and elsewhere, controversies associated with disputes between police officers and accused persons concerning alleged oral admissions and the possibility of erroneous convictions based on perjured police evidence put at risk public confidence in the criminal justice system. Parliament responded to this serious problem by enacting Ch LXA of the Criminal Code, "Videotaped Interviews".
By s 570D(2), admissions that are not recorded on videotape are inadmissible unless:
"(a)...
(b)the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission; or
(c)the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence."
Section 570D(4)(c) provides that "reasonable excuse" includes - "(c) [t]he accused person did not consent to the interview being videotaped".
In the course of Scantlebury's cross‑examination, and more strongly in the course of the appellant's evidence, it emerged that the appellant disputed significant parts of Scantlebury's evidence and denied making important admissions that Scantlebury attributed to him. However, when the trial Judge ruled that Scantlebury's evidence of the admissions was admissible, his Honour was unaware that the evidence was disputed.
After stating that there was "clearly" a "reasonable excuse for not videotaping in this case", his Honour said:
"I say that because it was made quite clear that in relation to these three admissions the accused was not prepared to undertake video recording otherwise than for the specific and limited purposes which he had made clear. That is to say there was no question of these three interviews being the subject of videotaping because the accused within the meaning of subsection (4)(c) did not consent to any of those three interviews being videotaped."
However, his Honour then continued:
"The true question, it seems to me, is whether there are exceptional circumstances which in the interests of justice justify the admission of the evidence. In this respect it is important to note that there is no indication by way of evidence from the accused man that the contents of the conversations are false, nor was it put to the officer in cross‑examination that they were in any way false ... inculpatory statements have been made on three occasions by the accused man in circumstances, leaving aside fairness for the moment, where it has not been asserted either by cross‑examination or from evidence from him that there is anything untrue in relation to what was said."
The trial Judge then went on to consider whether the evidence ought to be excluded on the ground of unfairness and held that it should not. His Honour said:
"That leads to the important question whether there was any unfairness in the way in which these statements were taken.
…
The finding I make is that the accused did understand that he was not obliged to speak to detectives in relation to the matter but if he wished to do so, what he did say might be taken down in writing and used in evidence. That caution was given in those terms, or words to similar effect, on each occasion when video facilities were used. A solicitor who had advised the accused man had advised him to that effect and in my view on all the evidence, it's clear that he must have understood that that was the position, but the fact remains that in relation to the three interviews which are the subject of the objection, no caution was specifically administered on each occasion.
... [T]he admissions here were compelling confessions on the part of this accused man in relation to his participation in the crime, that he had on each occasion initiated the conversation with the detective, that he had clearly wanted to unburden himself in relation to the matter, that he knew well that he was not obliged to speak to police officers about it.
...
[I]t's my clear and firm view that the evidence is admissible. It is admissible because it was volunteered and initiated by the accused man, that it was in the context of a series of cautions having been given to him in the context of video‑recorded interviews and that clearly he wished to confide in the investigating officer. It would in my view be contrary to the interests of the community to refuse the Crown the opportunity to lead that evidence."
It is unnecessary for s 570D(2)(c) to be considered if evidence of admissions is either recorded on videotape or there is a reasonable excuse for there not being a videotaped recording. Accordingly, s 570D(2)(c) implicitly acknowledges that it might be in the interests of justice to admit evidence of admissions that are not recorded on videotape notwithstanding that there is no reasonable excuse for there not being a videotape recording.
However, Ch LXA of the Code will have achieved little, if anything, if no more is necessary to satisfy s 570D(2)(c) than apparently credible evidence from a police officer that admissions were made. When there is no reasonable excuse for there not being a videotape recording, it will not ordinarily be in the interests of justice to admit evidence of disputed admissions that are not recorded on videotape merely because a trial Judge considers that a police officer's evidence of the admissions is preferable to an accused person's denial. Unless courts resolutely promote the statutory policy to avoid disputes about alleged admissions, even when (or, perhaps, particularly when) crimes are serious, that policy will be steadily eroded to the detriment of the criminal justice system. The integrity of the criminal justice system is one of the fundamental "interests of justice".
Nonetheless, if evidence of admissions is so manifestly reliable that there is no real scope for a genuine dispute concerning the admissions despite the lack of a videotape recording, the admissions were fairly obtained and the lack of a videotape recording is the only real basis for objection, it might be in the interests of justice to admit the evidence. If so, the admission of the evidence in such circumstances would be consistent with the legislative intent.
An accused person's omission to challenge the veracity of evidence of admissions, directly or indirectly, is capable of supporting an inference that the evidence is reliable. However, whether or not an inference is warranted that evidence is so reliable that it should be admitted conformably with the statutory policy must depend on all the circumstances. Under s 570D(2)(c), the prosecution must establish "exceptional circumstances which in the interests of justice, justify the admission of the evidence".
The appellant submitted that, although there was no direct attack on Scantlebury's evidence at the hearing that preceded the trial Judge's decision to admit his evidence, the evidence was challenged at that point "by implication". Complaint was also made that Scantlebury knew that the appellant was in a "highly emotional and distressed state" when he made admissions, and "had, both directly and through his lawyer, indicated that he did not wish to be interviewed further". Further, "no caution was administered ..., video facilities were available, the interviews were not recorded in writing [until later], ... Scantlebury did not tell the Appellant that he would be writing down everything the appellant said ... never showed him the notes, and they were never signed or otherwise 'adopted' by the Appellant". Somewhat inconsistently with his complaint that he "had, both directly and through his lawyer, indicated that he did not wish to be interviewed further", the appellant also complained that he "was not, at any point, asked by Scantlebury whether he would give a video interview to cover the subject matter of those discussions ...".
As noted, although the trial Judge considered that "the true question ... is whether there are exceptional circumstances which in the interests of justice justify the admission of the evidence", his Honour held that there was "clearly" a "reasonable excuse for not videotaping in this case". That finding necessarily involved a view that Scantlebury reasonably believed, as a result of statements by the appellant and his lawyer, that the appellant would not consent to his conversations with Scantlebury being videotaped.
In our view, with respect, it was open to his Honour to conclude that Scantlebury's belief, as a result of statements by the appellant and his lawyer, that the appellant would not consent to his conversations with Scantlebury being videotaped established "a reasonable excuse for there not being a recording on videotape of the admission": Section 570D(2)(b). The four specified circumstances that constitute reasonable excuse are not exhaustive. Even if a reasonable belief that an accused person will not consent to an interview being videotaped is not a reasonable excuse for not videotaping the interview, it is a matter of considerable importance in determining whether the interests of justice justify the admission of evidence of admissions made by the accused.
The view that Scantlebury reasonably believed, as a result of statements by the appellant and his lawyer, that the appellant would not consent to his conversations with Scantlebury being videotaped plainly influenced the trial Judge's conclusion that Scantlebury's evidence of the appellant's admissions was admissible. That view was available to his Honour. On that basis and on the basis of his Honour's findings that the appellant "had on each occasion initiated the conversation" and that Scantlebury's actions involved no unfairness to the appellant, it was open to his Honour, in the absence of any overt indication that Scantlebury's evidence was challenged, to conclude that the circumstances were sufficiently exceptional to justify the admission of the evidence in the interests of justice.
There has been some discussion of s 570D in the reported cases. The section and, indeed, the whole of Ch LXA was inserted in the Criminal Code by the Acts Amendment (Jurisdiction & Criminal Procedure) Act 1992. These particular provisions were proclaimed to operate only as from 4 November 1996 (Government Gazette, 25 October 1996, p 5361). But, perhaps wisely, very few of the decided cases have essayed any generally applicable interpretation, particularly of the provisions of s 570D(2) and s 570D(4). To a considerable degree, the effective and proper operation of the provision depends upon the judgment made against the background of the particular factual circumstances of the case as the trial Judge finds them to be. That is so in respect of the judgment whether there is a reasonable excuse for there not being a recording on videotape of the admission (guidance as to the meaning of the concept, but not an exclusive definition of the term "reasonable excuse", being provided by subs (4)). And that is certainly so with respect to the decision whether the circumstances of the case are sufficiently exceptional to justify the admission of the evidence in the interests of justice, even though there is not a videotape record of it and even though a reasonable excuse for that failure has not been established.
Because, as we would hold, it was open to the trial Judge in the circumstances of this case to conclude that there was a reasonable excuse for the failure to record the appellant's statements on videotape, it is strictly unnecessary for us, as it was for his Honour the trial Judge, to consider whether the circumstances of the case, to which we have adverted, were sufficiently exceptional to justify the admission of the evidence in the interests of justice. We think, however, that the decision of his Honour was fairly supportable on that ground also. We note that, as argued, his Honour's judgment about the lack of relevant unfairness sufficient to warrant the exclusion of the evidence by the application of the ordinary common law rules, is not called into question.

In leaving our discussion of this matter, we should finally note that the most general observation about the meaning of the concept of "exceptional circumstances" is that of Ipp J in T (a child) v The Queen (1998) 20 WAR 130 at 140 where, with the agreement of Pidgeon and White JJ, his Honour said that s 570D is aimed at the purpose of ensuring that steps are taken to prevent the admission of a confession which is untrue in the sense that it is fabricated or which was made in unfair circumstances. His Honour added:
"In my view, if an accused person makes an inculpatory statement in circumstances held to be fair, and does not assert in any way (whether by way of cross‑examination of the Crown witnesses, or by evidence adduced by him or her) that the statement was false, and there is nothing to suggest that the statement might be false, it would not be in the interests of justice for the statement to be precluded from admission into evidence. In my opinion, such a situation would constitute 'exceptional circumstances' within s 570D(2)(c)."
In Ahmad v The Queen [2002] WASCA 70 at [29], Wallwork J expressed the view that those remarks should be confined to the circumstances of the case in which they were made. We have made some observations about whether the circumstances of this case, as found by the trial Judge, were sufficiently exceptional to justify the admission of the evidence in the interests of justice. We would not wish those remarks to be extrapolated into a definitive statement about the meaning and operation of s 570D. They are not so intended. We think, with respect, that once the purpose of s 570D is understood, that purpose carrying with it the importance of the general application of the section, there can be no substitute for decisions about the application of the section being made within the framework and dependent upon the circumstances of particular cases.

Did the trial Judge err in his directions?

The ground which makes this complaint is concerned with the fact that this was a joint trial of the appellant and two co‑accused persons, the appellant's partner, Derrin Bardsley, and a woman named Rebecca Papalii, a friend who was the only other person present at the house at the time when the boy was killed who might have caused his death, if the appellant did not do so. Each of the accused persons gave evidence.
We have mentioned that the appellant, in essence, gave evidence that, although he assaulted the boy on numerous occasions with different objects, the child was alive when he went to the petrol station to fill his car with petrol. His evidence was that when he returned the child was dead. He admitted stuffing toilet paper down his throat, taping plastic bags over his head, squeezing his neck and pressing a piece of wood across his throat, the latter two acts being performed to make sure he was dead. He admitted taking the boy to the place where he was buried with the assistance of the women, and he admitted attempts to remove evidence from the house.
Bardsley's evidence tended to exculpate her and reduce her role to that of a mere bystander while squarely fixing the appellant with responsibility for all the acts which might have caused the boy's death. Bardsley gave evidence that when it was all over and she was in bed with the appellant, she asked him, "How did the boy die?" and he replied, "He was fucked, he was fucked anyway. I just finished him off."
Both Bardsley and Papalii gave evidence that during the drive in the motor vehicle before the body was buried, the appellant, who was driving the car, asked the women to look into the back to see if the boy was moving. They did so but could see nothing, whereupon the appellant remarked that the boy "had probably stopped breathing by now anyway". Papalii also gave evidence that the appellant later told her that he would take responsibility for what he had done if police questioning reached that point.
The appellant complains that at one point in his Honour's directions to the jury, when talking about the basis upon which an accused person might be found guilty as a principal offender or as an aider in the killing, his Honour described the appellant's case as being that it was not he who killed the boy but one of the women, whereas, the appellant complains, his evidence was that it was not he who killed the boy and he did not know how the boy met his death because he was killed during the period when the appellant was away refuelling his motor vehicle.
In our view, there is no merit in this aspect of the ground. If it were not the appellant who killed the boy and if the boy died as a result of something done to him while the appellant was away from the house, there was, on the whole of the evidence, no other inference open than that it was one or the other of the two female co‑accused persons who was the principal offender. There is no prospect that the jury could have been misled into misunderstanding the evidence given by the appellant.
The final point made by the appellant in respect of the appeal against conviction is that in the light of the evidence given by Bardsley in particular, that the appellant confessed to having finished the boy off which, as his Honour said to the jury was a clear admission, if said, that the appellant had wilfully murdered the boy, a direction about the danger in relying upon the evidence of the co‑accused - an accomplice direction - should have been given. Their evidence at trial generally repeated what Bardsley and Papalii had said in their out‑of‑court statements to the police. As to those statements, the trial Judge directed the jury that they could only be used as evidence against the maker of the statement, not against a co‑accused person.
The trial Judge gave a perfectly appropriate accomplice warning in relation to the evidence given by two witnesses who had previously been dealt with for the parts they played in causing the death of the boy. It need only be said that his Honour's direction was full and complete, referred to the dangers, the desirability of looking for corroboration (in the sense in which that term is used in the law) and detailed the considerable body of evidence which was available for the purpose.
His Honour gave no such direction in relation to the evidence of Bardsley and Papalii. Indeed, in summarising the cases for those two accused persons and the Crown case against the appellant, his Honour made no reference to the evidence the subject of this ground beyond the general observation that anything said in out‑of‑court statements by an accused person which tended to incriminate a co‑accused would not be evidence against that accused person.
No direction of the sort which it is now suggested should have been given was sought at trial. The argument before us devoted no attention to the effect of s 50 of the Evidence Act 1905 (WA) and nor was the argument supported by reference to decided cases. In the particular circumstances of this case, it seems to us that no miscarriage of justice has been caused by the failure to give the direction now sought. It relates to a relatively minor aspect of the evidence given by Bardsley and Papalii and, in our opinion, would no doubt have been regarded by the jury as self‑serving material of little reliability. We would not think it proper to allow the appeal on this ground and in our view the appeal against conviction should be dismissed.

The application for leave to appeal against sentence

Pursuant to s 282 of the Criminal Code, the appellant having been convicted of wilful murder, his Honour was required to choose between the imposition of life imprisonment and strict security life imprisonment. If he chose the latter course, s 91 of the Sentencing Act 1995 (WA) required his Honour to fix a non‑parole period of at least 20 years and not more than 30 years imprisonment. On 30 May 2001, his Honour imposed strict security life imprisonment and fixed a non‑parole period of 23 years.
As we understand the ground of the application, which is that the sentence to which we have referred was manifestly excessive, the contention is that in all the circumstances, the trial Judge erred in choosing strict security life imprisonment rather than imposing life imprisonment and, therefore, that the minimum period to be set would fall within the range of 15 years to 19 years pursuant to s 90 of the Sentencing Act. However, as we understand it, the appellant submits that if the application for leave to appeal does not succeed in relation to his primary proposition, then even within the context of a sentence of strict security life imprisonment, a minimum period of 23 years before eligibility for parole is too long and, in the circumstances of the case, represents a miscarriage of the exercise of discretion by the trial Judge.
In choosing between strict security life imprisonment and life imprisonment, the Court is to have regard to the matters which ordinarily inform the exercise of the discretionary judgment as to sentence - the seriousness of the offence, the culpability of the offender, his or her personal circumstances and antecedents and the need to protect the community: Jackson v The Queen [1990] WAR 105, 110 and Monaghan v The Queen (1990) 3 WAR 466.
The primary choice of the form of sentence having been made, the Court is confronted with the requirement to exercise its discretion anew in fixing the minimum period within the range provided. Much has been written about that process, particularly of recent times, by this Court and the principles are, we would think, now clear by reference to such cases as R v Sherratt (2000) 112 A Crim R 177, Lauritsen v The Queen (2000) 22 WAR 442, Jacovic v The Queen [2002] WASCA 149, Wood v The Queen [2002] WASCA 175 and, most recently in the somewhat different context of a federal sentence of life imprisonment in a drug importation case, R v Suarez‑Mejia [2002] WASCA 187; 17 July 2002.
In the last mentioned case, at par [24], Murray J stated the principles by equating such a minimum or non‑parole period with the minimum term or non‑parole period fixed in relation to a finite term, having the characteristics identified by a majority of the High Court in Power v The Queen (1974) 131 CLR 623 at 629. Justice Murray said that in passing sentence, by choosing to impose life imprisonment or strict security life imprisonment:
"... the court will have regard to all those matters concerning the commission of the offence and the culpability of the offender, as well as matters personal to the offender, whether they be circumstances of aggravation or mitigation, to determine the sentence to be imposed proportionate to the gravity of the crime for the purpose of the protection of the community, deterrence both particular and general, retribution and punishment, and the reformation of the offender. The same matters will be considered in relation to fixing the non‑parole period, but for the different purpose in terms of the statute, as it was put in Power at 629:
'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 that justice requires that he must serve having regard to all the circumstances of his offence.'"
In his remarks on sentence, the trial Judge described the boy as having been mercilessly dealt with, violently assaulted, tortured and eventually killed over a period of some four to five hours. It was well open to the trial Judge to make the finding his Honour did, that it was the appellant who inflicted the majority of the injuries to the child, and they were many. His Honour thought the conduct of the appellant to be aggravated in the extreme by his racial vilification of the boy during this process. The Judge found that the appellant was responsible for the multiple soft tissue injuries which were a possible cause of the boy's death. His Honour noted that the appellant was responsible for the use of the ligatures, securing the plastic bags over the boy's head and stuffing the wad of toilet paper down his throat, all these being for the purpose of ensuring that he was dead, if indeed he was not already dead. The trial Judge found, and in our opinion was well justified in finding, that by the combination of all these actions, the appellant caused the death of the child. Further, it was the appellant who was, as his Honour described him, the prime mover in the subsequent disposal of the body.
His Honour made note of the fact that each of the offenders before him had, after the burial of the body, "acted in a calm and satisfied manner". They lied to the police investigating the child's disappearance. In the case of none of them could his Honour detect even "one ounce of remorse", either immediately after the killing of the boy or at any time since. That was a conclusion to which his Honour came as the trial Judge and it was to some extent a conclusion informed by the appellant's behaviour at the trial. To the extent that the appellant had co‑operated in the police investigation by identifying exhibits and showing where the body had been disposed of, the trial Judge gave the appellant "some credit", although his Honour clearly doubted the extent to which this co‑operation was motivated by concern for the family of the boy who were then desperately searching for him. However, even then, the trial Judge noted that the appellant's confession of involvement was not complete.
Turning to the appellant's personal antecedents, his Honour found that prior to this occasion the appellant had no previous convictions and was well regarded in the community, to which references submitted on his behalf testified. His Honour accepted the submission made for the appellant that what he did on the night in question was out of character, but nonetheless, as the trial Judge said, his involvement was clear and he was the principal offender in the perpetration of a wilful murder which his Honour described as being "at the upper end of seriousness for this offence".
His Honour elaborated on his views in that regard by saying that he found it hard to imagine a worse case of wilful murder by beating and asphyxiation. His Honour's conclusion was expressed as follows:
"In summary, I consider that the circumstances of the offence and its gravity are at the highest end of the scale for wilful murder and your antecedents and personal circumstances cannot outweigh the seriousness of the crime; nor are they sufficient to justify any sentence less than strict security life imprisonment."
Turning to the fixing of the minimum period, the trial Judge observed that the applicant was a 41‑year‑old man who had led a blameless life and was well respected in the community. He again noted the assistance given to investigating police officers, but he also referred to the victim impact statement of the father of the deceased boy, who spoke of the great suffering of the family as a result of the child's death. As a consequence, as we have said, his Honour fixed the minimum period of 23 years.
In arguing that a sentence of strict security life imprisonment was manifestly excessive, it was submitted that a lesser sentence was called for by the appellant's antecedents and remorse which, it is contended, his Honour ought to have found to be genuine and appropriate. However, for our part, we can see no error in the approach taken by the trial Judge. His Honour's findings in this regard were based not only upon the evidence, by which the conclusions were well supported, but also upon his personal impression of the appellant, an advantage effectively denied this Court. In this case, the choice of sentence was overwhelmingly dictated by the gravity of the offence and the proper assessment made by the trial Judge of the culpability of the appellant. We do not think that his Honour's discretion miscarried in fixing the sentence of strict security life imprisonment.
As to the minimum period, the appellant relies particularly upon what is asserted to be the failure of the trial Judge to take into account the lack of danger that the appellant poses to society and his prospects for rehabilitation. We are of the view that the submission cannot be made good. It seems to us that, had the trial Judge not formed a favourable view about the matters relied upon, the minimum period fixed would have been at the upper end of the range between 20 years and 30 years. Again, we can discern no error of principle in the approach taken by his Honour and we are unpersuaded that the sentence overall was manifestly excessive. We would refuse leave to appeal against the sentence imposed.