Stasinowsky v The State of Western Australia

[2009] WASCA 20

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   STASINOWSKY -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 20

CORAM:   STEYTLER P

McLURE JA
MILLER JA

HEARD:   5 DECEMBER 2008

DELIVERED          :   22 JANUARY 2009

FILE NO/S:   CACR 50 of 2008

BETWEEN:   JESSICA ELLEN STASINOWSKY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :BLAXELL J

File No  :INS 189 of 2007

Catchwords:

Criminal law - Sentence - Wilful murder - Strict security life imprisonment with minimum of 24 years - Whether strict security life imprisonment appropriate - Whether minimum of 24 years before eligibility for parole manifestly excessive

Legislation:

Sentencing Act 1995 (WA), s 91(1)

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr T F Percy QC & Ms A M Blackburn

Respondent:     Mr D Dempster

Solicitors:

Appellant:     Andree Horrigan

Respondent:     Director of Public Prosecutions (WA)

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

Alikhani v The Queen [2001] WASCA 55

Bensegger v The Queen [1979] WAR 65

Buckland v The Queen (Unreported, WASCA, Library No 980144, 3 April 1998)

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Fry v The Queen (Unreported, WASCA, Library No 8945, 12 July 1991)

Gamble v The State of Western Australia [2007] WASCA 120

Hobby v The Queen (Unreported, WASCA, Library No 990013, 22 January 1999)

Kenneally v The Queen (Unreported, WASCA, Library No 980284, 27 May 1998)

Khoo v The Queen (Unreported, WASCA, Library No 960184, 2 April 1996)

Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442

Leyshon v The State of Western Australia [2007] WASCA 223

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mackenzie v The Queen [2004] WASCA 146; (2004) 150 A Crim R 451

Mallet v Mallet (1984) 156 CLR 605

Meko v The Queen [2004] WASCA 159; (2004) 146 A Crim R 131

Mitchell (1994) 72 A Crim R 200

Mitchell v The Queen (1996) 184 CLR 333

Mitchell v The Queen (1998) 20 WAR 257

Monaghan v The Queen (1990) 3 WAR 466

Morgan (1980) 7 A Crim R 146

Napier v The Queen (Unreported, WASCA, Library No 920517, 9 October 1992)

O'Connor v The Queen (Unreported, WASCA, Library No 940525, 22 September 1994)

Ponnusamy v The State of Western Australia [2008] WASCA 224

Power v The Queen (1973) 131 CLR 623

R v Allinson (1987) 49 NTR 38

R v Dube (1987) 46 SASR 118

R v Lowe [1997] 2 VR 465

R v Petersen [1984] WAR 329

R v Ryan [1989] 1 Qd R 188

R v Von Einem (1985) 38 SASR 207

Roberts v The Queen [2003] WASCA 237; (2003) 28 WAR 381

Scook v The Queen [2008] WASCA 114

Speering v The State of Western Australia [2008] WASCA 266

Stapleton v The Queen [2002] WASCA 328; (2002) 136 A Crim R 65

Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188

Thompson v The Queen (1993) 8 WAR 387

Vagh v The State of Western Australia [2007] WASCA 17

Veen v The Queen [No 2] (1988) 164 CLR 465

Vella v The State of Western Australia [2006] WASCA 177

Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411

Williams v The Queen (1996) 17 WAR 17

1. STEYTLER P & McLURE JA:   On 23 November 2007 the appellant and a co‑offender, Valerie Parashumti, pleaded guilty to a charge of wilful murder.  On 7 March 2008 both were sentenced to terms of strict security life imprisonment with a non‑parole period of 24 years.  The appellant raises two grounds of appeal against the sentence imposed on her.  The first challenges the imposition of a sentence of strict security life imprisonment.  The second challenges the minimum non‑parole period. 

2. The facts that are relevant to these grounds are as follows.

3. The appellant, Parashumti and a man named David Haynes lived in a house in the Perth suburb of Lathlain.  The deceased came to live there on 14 December 2006.  She was 16 years old.  The appellant was 19 years old.  Parashumti was 18 years old.  The appellant and Parashumti, who were in a sexual relationship, took a dislike to the deceased.  On the night of 18 December 2006 they decided to kill her, seemingly only because they found her 'annoying'.  They did so by bashing her over the head with a concrete block and by strangling her with a chain. 

4. Prior to the murder, the deceased, the appellant, Parashumti and Haynes had sat around a kitchen table drinking whisky.  It seems that each of the deceased, the appellant and Parashumti consumed a large quantity of alcohol.  They also each had what the appellant referred to as a 'Stilmox' (probably 'Stilnox') tablet.  In an interview with the police the appellant described these tablets as 'sleepers for people who are anxious'.  An argument developed between the four of them.  At some point, Haynes left the kitchen and went to his bedroom.  Not long afterwards, Parashumti began to strike the deceased over the head with a concrete block.  A sustained assault followed.  The deceased was repeatedly struck with the concrete block and then strangled by the appellant with a dog chain that she wore around her waist.

5. After they had killed the deceased, the two women began to clear up the substantial quantity of blood that the assault had left on the kitchen floor and walls.  Parashumti filmed the scene on her mobile telephone.  The video footage contains sound recordings.  These reveal that the two women were making disparaging remarks about the deceased and mimicking her English accent.  The two women placed the deceased's body in a 'wheelie' bin.  They put the bin in a shed at the back of the property.

6. The appellant was arrested on 21 December 2006.  She was interviewed by police.  She admitted to the murder and provided details of what she and Parashumti had done.  During the course of the interview she was, at times, tearful and expressed remorse.  However, in subsequent conversations with others, particularly a security officer, Linda Hoddell, and a fellow prisoner, Rochelle Van Ross, she was defiant and boastful.  That is especially apparent from what was said by her during the conversation with Van Ross, in the course of which, according to Van Ross, the appellant went so far as to say that she 'wished she spent more time on [the murder] to do a better job'.

The appellant's antecedents and psychiatric state

1. The appellant has no criminal record.  However she has a troubled background.  This is described in a pre‑sentence report prepared on 11 December 2007 by Ms Vicki Court, a Senior Community Corrections Officer, as follows:

   [The appellant's] background appears to encompass a perceived emotional vacuity, with her leaving the home environment at an early age to pursue the alternative of living on the streets, using drugs, involvement in prostitution, and underemployment.  In addition, her lifestyle attracted the association with like minded people who seem to be deficient in basic life skills in meeting their needs appropriately, including housing and food and in providing financially adequate solutions.  It could therefore be concluded that her lifestyle had a proclivity towards the environment in which offending might be considered to more easily occur.  However, notwithstanding the issues highlighted in this report, albeit that her behaviour was affected by substance use at the time of the offence, the severity and consequences of [the appellant's] behaviour in this instance remains unexplained.

2. Ms Court also said, in her report, that the appellant's version of events surrounding her offending suggested that she accepted only limited responsibility for her participation, in that she minimised her involvement, preferring instead to blame others for her predicament.  She said that the appellant did not articulate any insight into her actions and ignored the victim's situation while attempting to justify her behaviour by contending that she acted from 'a base of fear and disassociation'.

3. The appellant's psychiatric state was investigated by a consultant psychiatrist, Dr Victoria Pascu.  In a report dated 7 June 2007, Dr Pascu expressed the opinion that the appellant's offending behaviour could not be explained in terms of her suffering from a major mental illness.  However, she concluded that the appellant did have a borderline personality disorder with a concomitant history of poly‑substance abuse, including alcohol, cannabis, amphetamine, opiates and prescribed medications.  She said that, although Ms Stasinowsky described remorse for the offence at a 'superficial level', this appeared to her to be more related to the appellant's circumstances and was not congruent with her behaviour in prison.  She concluded that the appellant would benefit from individual psychotherapy, but said that her current lack of insight and immature behaviour might have a negative impact on her genuinely engaging in any therapeutic process.

4. Before considering the grounds of appeal in the light of this background, it is necessary to say something about the statutory scheme.

The statutory scheme as it applied to the appellant and as it has since been amended

1. When the appellant was sentenced, the position was governed by the then provisions of s 91 and s 96 of the Sentencing Act 1995 (WA) (Sentencing Act), read with s 12 and s 12A of the Sentence Administration Act 2003 (WA) (2003 SA Act).

2. Section 91 of the Sentencing Act then read as follows:

   91.Imposing strict security life imprisonment

   (1)A court that sentences an offender to strict security life imprisonment must, unless it makes an order under subsection (3), set a minimum period of at least 20 and not more than 30 years that the offender must serve before being eligible for release on parole.

   (2)The minimum period begins to run when the term of strict security life imprisonment begins.

   (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.

3. Section 96(2) of the Sentencing Act provided that a prisoner serving strict security life imprisonment and in respect of whom no order has been made under s 91(3) was not to be released before serving the minimum period set under s 91(1). Section 96(3) provided that, when an order had been made under s 91(3), the prisoner was not to be released on parole.

4. Section 12 of the 2003 SA Act gave to the Minister for Corrections the power to request the Prisoners Review Board, at any time, to provide a written report about a prisoner.  The Board was also empowered to give the Minister a written report about a prisoner whenever it thought there were special circumstances which justified doing so.  In either case, the report was to deal with the release considerations relating to the prisoner:  s 12(3).  If a report recommended that the prisoner be released, it was to also:

   (a)set out the requirements or conditions (if any) that should apply to the prisoner's release (s 12(4)); and

   (b)report on the nature and circumstances of the offence that gave rise to the prisoner being in custody (s 12(5)(a)).

   If parole was recommended, the Board was to report on the period for which the prisoner should be on parole and on the additional requirements (if any) to which the prisoner should be subject while on parole (s 12(5)(b)).  In addition, the Board was empowered to address any other matters it thought fit.

5. Section 12A of the 2003 SA Act provided that, where a prisoner was serving a term of strict security life imprisonment, other than in a case in which an order under s 91(3) of the Sentencing Act had been made, the Board was required to give the Minister a written report about a prisoner at the end of the minimum period set under s 91(1) of the Sentencing Act. The Board was required to give a further report every three years after that, whether or not it had given the Minister a report about the prisoner under s 12. Each such report was to deal with, amongst other things, the question whether the prisoner should be released on parole and, if so, the period for which the prisoner should be on parole and the additional requirements (if any) to which the prisoner should be subject while on parole. The report might also recommend whether or not the Governor should be advised to exercise any power vested in him to release the prisoner, and, if release was recommended, the requirements or conditions (if any) that should apply to the prisoner's release.

6. On 1 August 2008, the offence of wilful murder was abolished, as was the penalty of strict security life imprisonment:  s 10 and s 19 of the Criminal Law Amendment (Homicide) Act 2008 (WA). Under s 279 of the Criminal Code (WA) (Code), as it now reads, an adult who is guilty of murder must be sentenced to life imprisonment unless the sentence would be clearly unjust and the person is unlikely to be a threat to the safety of the community when released from imprisonment, in which case the person is liable to imprisonment for 20 years. As s 90 of the Sentencing Act now reads, a court that sentences an offender to life imprisonment for murder must either set a non‑parole period of at least 10 years (s90(1)(a)) or order that the offender must never be released (s90(1)(b)). An order under s 90(1)(b) must be made if it is necessary to do so in order to meet the community's interest in punishment and deterrence and, in determining whether an order of that kind is necessary, the only matters relating to the offence that are to be taken into account are the circumstances of the commission of the offence and any aggravating features: s 90(3) and s 90(4).

7. Section 96 of the Sentencing Act has also since been amended. It now provides that a person serving a sentence of life imprisonment for murder may not be released until the minimum term set by the court under s 90(1)(a) has been served and, if an order under s 90(1)(b) has been made, the prisoner is not to be released: s 96(2) and s 96(3). Consequential amendments have been made to the 2003 SA Act.

8. In this judgment all references to the Sentencing Act and the 2003 SA Act are to be taken as references before the 2008 amendments.

Relevant legislative history

1. The background to the introduction of the concept of strict security life imprisonment has been set out in Roberts v The Queen [2003] WASCA 237; (2003) 28 WAR 381 [29] ‑ [32]. Other aspects of the relevant legislative history were outlined by Kennedy J in Mitchell (1994) 72 A Crim R 200 (Mitchell No 1).  We will repeat some of what was said in each of those cases.

2. Section 282 of the Code originally provided for a death penalty in respect of the crime of wilful murder.  However, s 679 of the Code empowered the Governor to extend mercy on condition of the offender being imprisoned, with or without hard labour, for such term as the Governor might think fit. 

3. Section 282 was repealed and re‑enacted in 1961.  The new section provided that a person who committed the crime of wilful murder was liable to a death penalty, but one who committed the crime of murder was liable to imprisonment with hard labour for life.  At the same time, s 706A of the Code was enacted in terms providing that (subject to certain limited exceptions), when a person is sentenced to imprisonment with or without hard labour for life, the Governor 'shall not extend the Royal Mercy to the person before he has served in respect of such life sentence a period of 15 years' imprisonment'.

4. On the enactment of the Offender's Probation and Parole Act 1963 (WA), the Governor was given, by s 42 of that Act, the power, on the recommendation of the Parole Board, to order the release on parole of a person serving a life sentence. However, that could not be done in the case of prisoners whose death sentences had been commuted under s 679 of the Code or in the case of prisoners sentenced to life imprisonment under s 282. Those exclusions were repealed in 1965, as was s 706A of the Code.

5. The concept of strict security life imprisonment was first introduced in 1980 by the Acts Amendment (Strict Security Life Imprisonment) Act 1980 (WA). At that time, the death sentence was still available in cases of wilful murder, although, in practice, such sentences were invariably commuted, no prisoner having been executed since 1964. In the course of his second reading speech in respect of the Acts Amendment (Strict Security Life Imprisonment) Bill 1980 (WA), given on 13 November 1980, the then Attorney General, Mr I G Medcalf, said that the Government had no present intention of abolishing the provision for capital punishment but desired to have 'an additional option available should a decision be made to commute a death sentence', being one 'which will provide for suitable tight security over a longer period than has become customary in recent years'. He also said that:

   A new form of exercise of the Royal Prerogative is proposed on the basis that a prisoner's sentence on a capital charge may be commuted to life imprisonment on terms of strict security.  For practical purposes, such offenders are and will be those who have been convicted of wilful murder.  Although any case of wilful murder is by definition serious, it is also clear that some cases may be considerably worse than others.  Instances do arise where the circumstances are such that the facts of the case, taken with the circumstances of the background of the offender, indicate clearly that if the death sentence is not to be carried out the offender must be regarded as presenting a substantial risk to the community for a considerable period in the future, if not for the rest of his life.

   At the same time, the Offenders Probation and Parole Act was amended so as to allow the Governor to order the release of a prisoner undergoing a sentence of strict security life imprisonment after 20 years had elapsed. 

6. Capital punishment was formally abolished in 1984 by the Acts Amendment (Abolition of Capital Punishment) Act 1984 (WA). Section 282(a) of the Code, which then still provided that a person who committed the crime of wilful murder was liable to the punishment of death, was amended so as to provide for a mandatory punishment, in the case of an adult, of either strict security life imprisonment or life imprisonment.

7. In 1987, s 42 of the Offenders Probation and Parole Act was repealed and replaced by s 40D(1). This section, as amended in 1988 (when subs (2a) and subs (2b) were added) empowered the Governor, following the furnishing of a report by the Parole Board, to order that a prisoner undergoing a sentence of strict security life imprisonment or of life imprisonment be released on parole unless the court had ordered that the person was not to be so eligible. Sub‑section 40D(2a) empowered the court, if it considered this 'appropriate', to order that a person sentenced to a term of strict security life imprisonment not be eligible for parole. Section 34 of the Offenders Probation and Parole Act was also amended so as to require the Parole Board to furnish a report to the Minister with respect to a prisoner undergoing a sentence of strict security life imprisonment on or as soon as practicable after the expiration of the 20‑year period and, following that, every three years.

8. In his second reading speech concerning the amendments to s 40D(1), the Minister said, in regard to s 40D(2a):

   Whole of life imprisonment is provided for by investing the Supreme Court with the power, when imposing a sentence of strict security life imprisonment, to order that the offender is not to be eligible for parole at any time.  Such an order is to be made at the court's discretion.  Given the extreme nature of such an order, it is expected that its application would be limited to those cases where the circumstances of the offence were of the very worst kind or where considerations of public safety would always militate against the release of the offender.

1. In Mitchell No 1, Kennedy J (with whom Ipp J agreed) was unable to accept that the Minister intended by this to convey that the circumstances of the offence in question might be considered on their own, however important they might be in a particular case (207). He concluded that, on the proper construction of s 40D(2a), the court was not restricted in the matters to which it might have regard. In the subsequent appeal to the High Court (Mitchell v The Queen (1996) 184 CLR 333 (Mitchell No 2)), this construction seems not to have been doubted. However, that court went on to say that s 40D(2a) did not confer a discretion on the sentencing judge, contrary to the view adopted by the majority of the Court of Criminal Appeal, but rather conferred a power the exercise of which depended upon proof of the particular case out of which the power arose. The High Court approved the approach that had been taken by the sentencing judge, Owen J. The court (Dawson, Toohey, Gaudron, McHugh & Gummow JJ) said, in this respect (346 ‑ 347):

   The sentencing judge had regard to a range of matters. He said:  'I continually return to the intrinsic seriousness of the offences.'  But, rightly, in our view, his Honour decided that the resolution of the issue before him depended upon an assessment of the balance to be struck between the circumstances of the offence and the factors militating in favour of the possibility of parole.  In particular, Owen J considered whether the more general and objective factors relating to punishment outweighed the potential of the appellant to be rehabilitated through the medium of parole.  His Honour was entitled to have regard to the unchallenged expert evidence that the appellant would not constitute a danger to the public, drug taking to one side, and that he had a constructive attitude to the future.  Thus, his Honour acted on the footing, as in the circumstances he was bound to do, that there was at least some potential for the rehabilitation of the appellant.

   Owen J, again correctly to our minds, had regard to the possibility of the later emergence of facts, presently unascertainable, but apparent twenty years or more hence, which might then indicate that the appellant no longer constitutes a danger to the public and is otherwise deserving of release on licence.

2. The Sentencing Act was enacted shortly after the decision in Mitchell No 2, containing s 91 and s 96 in the terms quoted earlier in those reasons. It consequently seems that s 91(3) and s 91(4) were introduced in order to overcome what had been said in Mitchell No 1 and Mitchell No 2.  It seems to us inevitably to follow that the offences justifying strict security imprisonment for the whole of the offender's life were necessarily then intended to be those that fell into the most serious category, being offences which, having regard only for their circumstances and any aggravating factors, were such as to require a sentence of that kind in order to meet the community's interest in punishment and deterrence.  It also follows inevitably that the range of offences that will attract strict security life imprisonment with a non‑parole period of between 20 and 30 years will consist of offences other than those in the most serious category.

Approach of the courts to the question whether to impose strict security life imprisonment

1. In Williams v The Queen (1996) 17 WAR 17, 26, Owen J (with whom Kennedy & Pidgeon JJ were in agreement) reviewed a number of the cases. He derived from them the following principles in respect of the choice between life imprisonment and strict security life imprisonment:

   1.On a conviction for wilful murder the imposition of a custodial sentence for life is mandatory.

   2.The sentencing judge is required to choose between life imprisonment and strict security life imprisonment.  The discretion to choose between the options is at large but must be exercised judicially.

   3.The factors to be taken into account in making that choice are:

   (a)the circumstances of the offence and the gravity of the crime so as to place it somewhere in the scale of other crimes of wilful murder;

   (b)the antecedents of the offender, with the phrase 'antecedents' being given a broad meaning to include matters such  as character, previous criminal history, upbringing and personal circumstances; and

   (c)the risk to the community posed by the likelihood  of the person committing serious offences of violence in the future.

   4.The antecedents of the offender are relevant both in considering what, if any, mitigating factors exist and in considering the need to protect the community in terms of the likelihood of the applicant committing further offences.

   5.No one factor has primacy over the other factors.  So it is, for example, that in an individual case the sentencing judge may be persuaded by the horrific nature of the crime or by the need to protect the community (whether shown by the offender's antecedents or other material) or by a combination of all of these factors, to impose a sentence of strict security life imprisonment.

   This summary of the principles has since been consistently applied by the courts:  Roberts [12], [42], [46] and [51]; Mackenzie v The Queen [2004] WASCA 146; (2004) 150 A Crim R 451 [82]; Meko v The Queen [2004] WASCA 159; (2004) 146 A Crim R 131 [56]; Gamble v The State of Western Australia [2007] WASCA 120 [27] ‑ [31]; Leyshon v The State of Western Australia [2007] WASCA 223 [18] ‑ [22], [44], [45].

Cases in which sentences of strict security life imprisonment have been imposed

1. As might be anticipated, the circumstances that have been found to be sufficient to justify a sentence of strict security life imprisonment vary considerably. We have looked at a large number of cases in which terms of strict security life imprisonment have been imposed (and at a number of others, to which we shall not refer, in which terms of life imprisonment were imposed). Of the cases to which we propose to refer, five were decided prior to the enactment of the Sentencing Act in 1995 with the result that no minimum non‑parole term was set. All of the other cases were decided after the enactment of the Sentencing Act.

2. Two of the earlier cases are Monaghan v The Queen (1990) 3 WAR 466 and Napier v The Queen (Unreported, WASCA, Library No 920517, 9 October 1992). Napier and Monaghan were co‑offenders in respect of the murder, on 1 September 1989, of Mr David Locke.  An argument had arisen between Monaghan and Mr Locke because Monaghan believed that Mr Locke was a police informer who had provided information to the authorities about an organisation of which Monaghan was a member.  The two men plotted to give Mr Locke a beating, at least.  They subsequently assaulted him.  Each had an iron bar, and the evidence revealed that both struck Mr Locke heavy blows with the bars.  Before dying, and while unconscious, he was bashed again, before having his throat cut by Monaghan.  The two men then threw him in a river.  In each case, the circumstances of the crime were found to have been so serious as to require a sentence of strict security life imprisonment.

3. In Fry v The Queen (Unreported, WASCA, Library No 8945, 12 July 1991), the appellant had developed a dislike of two men, John Shea and Warren Yakas. He believed, whether rightly or wrongly, that they were a threat to his employer and himself. He made up his mind to kill them. He took a shotgun belonging to his employer and drove to Mr Shea's house, where Mr Shea and Mr Yakas were. When close to Mr Yakas, the appellant shot him in the back of the neck and head, killing him almost instantly. He fired at Mr Shea, hitting him in the shoulder. Mr Shea managed to escape, notwithstanding that the appellant fired a number of shots at him. The court found that the seriousness of the appellant's offending of itself justified the imposition of a sentence of strict security life imprisonment.

4. In O'Connor v The Queen (Unreported, WASCA, Library No 940525, 22 September 1994), the appellant murdered a man, whose house he was sharing, after forcing him to provide his PIN so that the appellant could withdraw money from his account. The murder was unpremeditated. The appellant had tried to tie up the deceased. When the deceased became aggressive, the appellant jumped on his back, put his arm around his neck and strangled him. The appellant believed that the deceased had died. However, when he heard sounds coming from the deceased, he took a sheet, put it around the neck of the deceased and strangled him with it. The court saw no error in the sentencing judge's categorisation of the crime as one of the most serious categories of wilful murder and declined to set aside the sentence of strict security life imprisonment that had been imposed.

5. Mitchell No 1 is the last of the pre‑Sentencing Act cases to which we propose to refer.  It was an extraordinarily bad case of murder.  The appellant, who was then aged 24, pleaded guilty to four counts of wilful murder, three counts of indecently interfering with a dead body by sexual penetration and one count of sexual penetration of a child under 13 years.  He had killed a woman and her three children, a son aged 16 and two daughters aged 5 and 7 years.  The victims lived on a remote property in Greenough, Western Australia, where the crimes were committed.  The crimes were cruel and brutal.  The sentencing judge, Owen J, imposed a sentence of strict security life imprisonment.  He declined to make an order that the prisoner not be eligible for parole.  A prosecution appeal to the Court of Criminal Appeal succeeded and the court ordered that Mitchell not be eligible for parole.  We have mentioned that, in the subsequent appeal to the High Court, the decision of Owen J was restored.

6. In Khoo v The Queen (Unreported, WASCA, Library No 960184, 2 April 1996), the appellant was convicted, after a trial, of wilful murder. He was sentenced to a term of strict security life imprisonment with a 20‑year non‑parole period. He had been given a gun at a shooting gallery. He used it to fire four shots at the head of the operator of the gallery, who was standing behind the front desk of the gallery. The sentencing judge was unable to detect any motive for the killing, but considered that the appellant might have contemplated using the gun for a robbery. The appellant was suffering from a major depressive illness at the time. The Court of Criminal Appeal declined to interfere with the sentence imposed.

7. In Williams, the appellant was convicted of wilful murder and sentenced to strict security life imprisonment with a non‑parole period of 20 years.  He had met an acquaintance of the deceased, a man named Little, in a hotel.  Little told the appellant of the deceased's violent behaviour towards him.  The appellant, who had not previously met the deceased, arranged to meet him later that day.  He took with him a loaded semi‑automatic pistol.  Under the pretext of obtaining money for a drug deal, he drove the deceased to a teller machine.  After going to the teller machine, he returned to the car and shot the deceased five times while he was still in the car.  The appellant shot the deceased another 12 times as he tried to flee.  The Court of Criminal Appeal held that it had been open to the sentencing judge to conclude that the gravity of the circumstances of the offence alone warranted strict security life imprisonment.

8. In Buckland v The Queen (Unreported, WASCA, Library No 980144, 3 April 1998), the appellant was convicted, after a trial, of murdering his de facto wife. The deceased was the mother of the appellant's recently born baby. After she had come home from hospital with the baby, the relationship between the two had begun to deteriorate. On the night of the murder they had an argument. This led to an altercation, during the course of which the appellant stabbed the deceased in the upper chest region with a sharp instrument such as a knife. He then removed her body and buried it. He was sentenced to a term of strict security life imprisonment with a 20‑year non‑parole period. This was found, on the appeal, to have been well within a proper exercise of discretion.

9. In Kenneally v The Queen (Unreported, WASCA, Library No 980284, 27 May 1998), the appellant was convicted by a jury of wilful murder. He was also convicted on a charge of aggravated sexual penetration of a second victim. He had pleaded guilty to other counts of attempting to murder and rob the person he had sexually penetrated. The appellant and a co‑offender, armed with kitchen knives, had gone to the home of two persons who were engaged to be married. Both were known to the appellant. The two men believed that the male victim had $30,000 in cash in the house. They planned to rob him of this money. The co‑offender detained the female victim while the appellant attempted to force the male victim to produce the money. When that was unsuccessful, the two men sexually attacked and degraded the female in front of her fiancé in an attempt to force him to part with the money. They then turned their attention to the male, savagely attacking him by striking and kicking him. When the couple failed to produce enough money to satisfy the two men, the appellant stabbed the male with a kitchen knife. The knife penetrated his heart, killing him. Then, after further humiliating the female in a sexual way, the two men slashed her throat and stabbed her in the back. Believing her to be dead, they left the house. Fortunately, she survived. The appellant was sentenced, in respect of the wilful murder, to a term of strict security life imprisonment with a non‑parole period of 25 years.

10. The appeal was limited to the length of the non‑parole period.  Pidgeon J, with whom Wallwork and Parker JJ agreed, said that the facts surrounding the murder were so bad that deterrence and retribution 'must come to the fore in determining the just order to be made as to the non‑parole period'.  The court declined to interfere with the sentence imposed.

11. In Mitchell v The Queen (1998) 20 WAR 257 (Mitchell No 3), the offender pleaded guilty to one count of wilful murder, three counts of aggravated sexual penetration, two counts of assault occasioning bodily harm, one count of attempted sexual penetration, three counts of burglary, two counts of disabling with intent to commit an indictable offence, two counts of deprivation of liberty, two counts of robbery and one count of aggravated indecent assault.  He was sentenced to a term of strict security life imprisonment in respect of the wilful murder with a non‑parole period of 25 years.  He sought leave to appeal against the non‑parole period on the basis that it was manifestly excessive. 

12. The offender had gone to the home of his victim with the intention of sexually assaulting her.  He rang the front doorbell.  When his victim opened the door he forced his way in.  He grabbed her by her throat and bound her hands and her mouth with duct tape.  He then took her into the main bedroom and taped her hands to the head of the bed.  He tied her feet to the base of the bed.  Having removed her clothes, he fondled her breasts, digitally penetrated her vagina and then penetrated her vagina with his penis.  Appreciating that his victim would be able to identify him, he decided to kill her.  He took her into the bathroom, where he again penetrated her vagina with his penis.  Then, having filled the spa bath with water, he strangled her and submerged her head in the water.  He continued to do so until she died.  The offender subsequently turned himself over to the police and confessed his crimes.  Had he not done so, the State might not have been able to identify him as the offender.  He pleaded guilty on the fast‑track and expressed remorse. 

13. On appeal, the court found that the minimum non‑parole period of 25 years was 'well within an appropriate discretionary range' (264) (Ipp J with whom Kennedy J and Steytler J agreed).  Ipp J said (263) that it was apparent from the sentencing judge's remarks that, were it not for the offender's conduct in going to the police and confessing his offences, his early plea of guilty and his remorse, he might well have determined upon a minimum non‑parole period of 30 years.  Ipp J went on to say that, by the nature of the crime itself, it would have been inappropriate to order that the offender serve only the minimum non‑parole period of 20 years.  He regarded a reduction of 5 years as appropriately reflecting the matters in mitigation.

14. In Hobby v The Queen (Unreported, WASCA, Library No 990013, 22 January 1999), the appellant appealed against a sentence of strict security life imprisonment, with a non‑parole period of 20 years. This had been imposed upon him in respect of his conviction, after trial, of wilful murder. The appellant had agreed to pay a co‑offender $10,000 if he killed the deceased. The killing was to be by way of a 'hot shot', being the injection of an overdose of heroin. As matters turned out, the deceased was killed by blows to his head inflicted by a hammer. Once he had been killed by the co‑offender, the appellant was contacted. He arrived and took away the body, which was never recovered. The appellant's reason for arranging the killing had been to prevent the deceased from testifying against him at his trial. The court dismissed the appeal, saying that the fact that the appellant had paid some‑one to kill a person was sufficient to make the killing the 'worst of its sort' (Pidgeon J, with whom the other members of the court agreed).

15. In Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442, the appellant pleaded guilty to a charge that he had wilfully murdered his grandmother. He was sentenced to strict security life imprisonment with a non‑parole period of 27 years. The appellant was 22 years old at the time. He used barbaric and lengthy violence in the course of the murder. He attempted to sever his victim's head. After she had died, he disembowelled her. Psychiatric evidence revealed that he suffered from some form of mental illness, although the specialists were unable to agree upon its nature. There was no appeal against the imposition of a sentence of strict security life imprisonment. Only the length of the non‑parole period of 27 years' imprisonment was challenged. The appeal succeeded and the court substituted a period of 20 years.

16. The Court of Criminal Appeal was satisfied that the appellant's mental illness was 'more than a "mere personality disorder"' (Malcolm CJ, (452)).  Malcolm CJ said that, to the extent that the applicant's mental condition explained or contributed to the offence, his moral culpability was not as great as it might have been, but that the condition indicated a risk of re‑offending (452).   Malcolm CJ (with whom Wallwork J agreed, Murray J dissenting) concluded that the length of the non‑parole term indicated that the sentencing judge must have failed to make due allowance for the applicant's mental condition.  He considered that, when that factor was taken together with the youth of the appellant, his lack of a substantial history of violence and difficulties in prognosis concerning his future conduct, the non‑parole period was manifestly excessive.

17. In Alikhani v The Queen [2001] WASCA 55, the appellant was convicted, after a trial, of aggravated burglary and wilful murder. He was sentenced to strict security life imprisonment in respect of the wilful murder, with a non‑parole period of 20 years. The appellant and the deceased had been in a relationship. The deceased had terminated it and the appellant had been unable to accept this. He purchased a knife, having seriously contemplated that he might kill the deceased. He entered the home of the deceased, armed with the knife. A co‑offender acted as a lookout. At some point after entering the house, the appellant formed a firm intention to kill the deceased. He stabbed her in a particularly vicious and violent way. There were many stab wounds, so much so that the appellant had had to change the knife from his right hand to his left hand when his right hand tired. He deliberately directed the stabs to the regions of the victim's left breast, heart, neck and vaginal area. He surrendered to police almost immediately afterwards. He was found to have felt remorse for the killing. On the appeal, the imposition of a sentence of strict security life imprisonment was found to have been entirely justified.

1. In Stapleton v The Queen [2002] WASCA 328; (2002) 136 A Crim R 65, the appellant was convicted, after a trial, of the wilful murder of a teenage boy. He and his companions had held the boy in captivity. During that time the boy was tied up and beaten with a substantial piece of wood and a shovel. The appellant had jumped on the boy's torso. The appellant had also tied ligatures around the boy's face and head, stuffed toilet paper down his throat and used a piece of wood to stop him from breathing, in case he was still alive. The appellant, who was 41 years old, was sentenced to strict security life imprisonment with a non‑parole period of 23 years. His appeal against sentence failed.

2. In Roberts, the appellant, who was then a little under 30 years old, met the deceased (who was previously unknown to him) in a park.  Some kind of sexual approach was made to him by the deceased.  This enraged the appellant.  He took a knife from a pouch on the side of his jeans and began to stab the deceased.  The deceased attempted to flee, but the appellant followed him, continuously stabbing him.  There were more than 100 stab wounds.  These were all over the deceased's body, including his back.  The appellant was convicted after a trial.  He was sentenced to a term of strict security life imprisonment with a non‑parole period of 20 years.  He appealed against the imposition of the sentence of strict security life imprisonment.  The appeal was dismissed.

3. In Mackenzie, the appellant was convicted, after a trial, on one count of wilful murder.  He was also convicted of deprivation of liberty of, and unlawful and indecent assault upon, a second victim.  Both victims were prostitutes.  In each case the appellant had made a telephone booking for a 'house call'. 

4. The circumstances of the first offence were that, after his victim had arrived, the appellant grabbed her, threatened her with a knife, tied her hands and ankles and then pulled down her underpants before digitally penetrating her.  Then, he carried her to his car and placed her, still bound and gagged, into the open boot.  She convinced him to let her go and he did so. 

5. The facts were less clear concerning the second victim.  On the morning following the 'house call', she was found dead, naked and with her hands tied behind her back.  There were blood smears on the inside of her legs in the genital region.  These gave rise to an inference that there had been digital penetration, or an attempt at it.  The victim had been stabbed at least seven times with two different implements, one being a serrated edged bread knife and the other a screwdriver‑­like instrument. 

6. The appellant was sentenced, in respect of the wilful murder, to strict security life imprisonment with a non‑parole period of 25 years.  The court found that there were features of his offending and of his personality which suggested that he might pose a continuing danger.  That fact, and the brutality of his killing, was found by the Court of Criminal Appeal to have justified the sentence imposed.

7. In Meko, the 43‑year‑old appellant was convicted, after a trial, of the murder of his de facto wife.  He was sentenced to strict security life imprisonment with a non‑parole term of 21 years.  The appellant and his wife had separated.  They had arguments about resulting financial matters.  The appellant went to his wife's home, but could not get in.  He used a tomahawk to smash the lounge window and climbed into the house.  He struck his wife repeatedly with the tomahawk.  He also stabbed her with a knife.  Some of the stab wounds were in the area of her groin.  The Court of Criminal Appeal declined to interfere with the penalty imposed. 

8. In Vella v The State of Western Australia [2006] WASCA 177, the appellant was convicted, after a trial, of the wilful murder of his estranged wife. He was sentenced to a term of strict security life imprisonment with a minimum of 20 years before being eligible for parole. He had battered his wife about the head with a baseball bat and then cut her throat with a knife. The throat wound was inflicted when she was already dying. The appellant was refused leave to appeal against sentence. A subsequent review of that decision upheld it: Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411.

9. In Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188, the appellant was convicted, after pleading guilty, on a charge of wilful murder. He was sentenced to a term of strict security life imprisonment with a 22‑year non‑parole period. He had gained entry to the deceased's unit with the intention of robbing her. He asked her to lend him money. An argument ensued. The appellant grabbed the deceased by the hair and dragged her into the bathroom/laundry area of her unit. He shut the door, threw the deceased to the floor and put his knee on her throat. The deceased had a knife, having been in the course of preparing lunch when the appellant arrived. The appellant's finger was cut by the knife, severing tendons. He overpowered the deceased, took the knife from her and stabbed her with it. Having already inflicted at least one fatal wound, he turned the deceased over and stabbed her a further 10 times in the back. He then turned her over again and cut her throat and wrists to ensure that she was dead. He left the deceased's two small children inside the house. The Court of Appeal concluded that it would not have imposed any different sentence.

10. In Gamble, the appellant was convicted, after pleading guilty, on a charge of wilful murder.  He was sentenced to strict security life imprisonment with a non‑parole period of 20 years.  He had been in a de facto relationship with the deceased.  This had broken up in acrimonious circumstances.  There had been an element of violence in the behaviour of each towards the other.  The deceased obtained a violence restraining order against the appellant.  Not long afterwards, the appellant went to the house where the deceased and her young son lived.  The deceased and her son emerged from the house.  The appellant attacked the deceased with a knife.  He stabbed her repeatedly.  One of the stab wounds severed her jugular vein.  The attack was described as one of 'considerable ferocity'.  At the end of it, the appellant stabbed himself several times in the abdomen.  When arrested by police a short while later, he was remorseful.  The appellant was aged 49 at the date of sentencing.  He had no relevant prior convictions.  The Court of Appeal declined to interfere with the sentence imposed.

11. In Leyshon, the appellant was convicted, after a trial, of wilful murder.  The deceased was a former de facto spouse of the appellant.  The appellant, who had overcome a drug habit, was told by a friend that the deceased had said that he was back on drugs.  He went to the home of the deceased in a state of anger.  The deceased had previously taken out a violence restraining order against him.  Notwithstanding this, she let him into the house and a fight ensued.  The deceased received a multitude of blows.  While she was lying face down on the floor, the appellant removed a tie from a nearby dressing gown, wrapped it around her neck and tied it tightly in a double knot.  The deceased died from strangulation.  Immediately after he had killed the deceased, the appellant telephoned the deceased's mother.  He told her to go to the deceased's house because there was something tied around her neck.  The deceased was found to have had a high level of amphetamines in her system at the time of death.  The sentencing judge accepted that this was likely to have made her aggressive. 

12. The appellant had offered to plead guilty to murder but the State had declined to accept the plea.  He was 29 years old at the date of sentencing and had only a minor criminal record.  He was sentenced to strict security life imprisonment with a non‑parole period of 20 years.  His appeal against sentence was dismissed.

Approach of the courts to setting a non‑parole period in cases of strict security life imprisonment

1. The approach of the courts, when setting a non‑parole period in cases of strict security life imprisonment, was considered at some length in Lauritsen. Malcolm CJ there set out the factors that he considered to be material when deciding upon the length of the non‑parole period under the then provisions of s 91(1) of the Sentencing Act.

2. He said first that, although s 89(2) of the Sentencing Act had no express application because it deals only with factors relevant to the question whether to make a parole eligibility order when sentencing an offending to one or more fixed terms, the factors there mentioned are relevant when determining the length of a non‑parole period under s 91(1): [34], [54]. These are:

   (a)the seriousness and nature of the offence;

   (b)the circumstances of the commission of the offence:

   (c)the offender's antecedents;

   (d)circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made; and

   (e)any other reason the court decides is relevant. 

   Malcolm CJ went on to say [54]:

   Having regard to s 89, the factors to be taken into account in setting a minimum term of a strict security life sentence are:  (i) the seriousness of the offence; (ii) the culpability of the offender; (iii) the antecedents of the offender; (iv) the age and life span of the offender; (v) the possibility of reform or repentance; (vi) the danger the offender poses to the community; (vii) judicial compassion; and (viii) any other matters relevant to release on parole.

3. Malcolm CJ also said that, in the context of consideration of the seriousness, nature and circumstances of the offence and its commission, any aggravating or mitigating circumstances referred to in s 6, s 7 and s 8 of the Sentencing Act would also be relevant, particularly when assessing the appellant's criminal culpability for the offence [34]. In fact, no particular aggravating factors are identified in s 7 of the Sentencing Act. Section 7(1) merely identifies aggravating factors as being factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) identifies factors that are not to be regarded as aggravating and s 7(3) deals with offences in which the statutory penalty is greater if the offence is committed in certain circumstances. The only mitigating factor specifically identified by s 8 is a plea of guilty.

4. Secondly, Malcolm CJ said that these provisions had been supplemented by the principles and objectives of sentencing established in the cases [35]. He said, in particular, that the over‑arching principle governing sentencing is proportionality and that this principle would be offended by the imposition of a sentence more severe than is warranted by the seriousness of the offence, even if the disproportionate sentence is imposed in order to protect society [36]. He went on [39] to cite the following extract from the judgment of the majority (Mason CJ, Brennan, Dawson & Toohey JJ) in Veen v The Queen [No 2] (1988) 164 CLR 465, 473:

   It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence.  The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.

5. Thirdly, Malcolm CJ said that, while general and personal deterrence are important sentencing objectives, it is as well to bear in mind their limitations [42]. He referred, in this respect, to R v Petersen [1984] WAR 329, 332 (Burt CJ) and R v Ryan [1989] 1 Qd R 188, 190 (Carter J), 191 (Dowsett J), where doubts were expressed about the deterrent value of increasing penalties. However, he added that, as King CJ had said in R v Dube (1987) 46 SASR 118, 120, 'courts have to make the assumption that the punishments they impose operate as a deterrent'.

6. Next, Malcolm CJ said that setting the non‑parole component of the sentence involves the same considerations as, but with a different emphasis from, those relating to fixing the head sentence [52]. He referred, in that respect, to the judgment of Jenkinson J in Morgan (1980) 7 A Crim R 146, 155 as follows:

   [T]he minimum [or non-parole] term is fixed by reference to both misericordious and utilitarian considerations.  Nor is the minimum term fixed without regard to all those other interests of the community which imprisonment of offenders is designed to serve … They will be considered again when the minimum term is being fixed, when they will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice.

   Malcolm CJ went on to say [53]:

   The relationship between the two components of the sentence is important.  The head sentence marks the community's view of the seriousness of the crime.  The non-parole period is set as the minimum period needed to serve the punitive and deterrent objectives of the sentence, and that which must be served before the offender is eligible to be considered by the Parole Board for release to complete his sentence and rehabilitation under conditional freedom in the community.  In short, the non-parole term should reflect the seriousness of the offence, the need for deterrence and punishment, and the offender's prospects for rehabilitation.  The objectives of parole are to lessen the burden on the offender, recognise that the offender will eventually be released and provide for rehabilitation under supervision to promote greater self-determination and the development of social skills:  see Thompson v The Queen (1993) 8 WAR 387; Bugmy v The Queen (1990) 169 CLR 525 at 531 ‑ 533 per Mason CJ and McHugh J; at 536 ‑ 538 per Dawson, Toohey and Gaudron JJ; R v Denyer [1995] 1 VR 186 at 193 ‑ 194 per Crockett J, at 195 ‑ 196 per Southwell J; Power v The Queen (1974) 131 CLR 623 at 628 ‑ 629 per Barwick CJ, Menzies, Stephen and Mason JJ; R v Shrestha (1991) 173 CLR 48.

7. Then, Malcolm CJ dealt with what he described as the factor of 'prognosis'.  He said, in this respect [59] ‑ [60]:

   In Thompson v The Queen (1993) 8 WAR 387 at 396 it was said by the Court comprising Malcolm CJ, Pidgeon and Owen JJ that the matters raised by the equivalent to s 89(2)(d) of the Sentencing Act (set out above) required:

   ' … the sentencing judge to prognosticate circumstances which might be relevant to the offender at the time when he or she would be eligible for release, thus recognising the relationship between punishment of the offender on the one hand and the need to consider factors leading to the offender's rehabilitation on the other  ‑ Archibald v R (1989) 40 A Crim R 228 at 233 ‑ 234 per Wallace J.'

   The purpose of the prognosis is to enable some preliminary consideration of the question whether in terms of rehabilitation of the offender, he or she is likely to benefit from serving the relevant portion of the sentence under supervision in the community:  see R v Archibald (1989) 40 A Crim R 228 per Malcolm CJ at 230. However, as stressed by Young CJ in R v Currey [1975] VR 647 at 650, in setting parole eligibility the court is not concerned with the offender's suitability for release on parole, but whether and at what stage the offender should be eligible for parole. The prognostic considerations and the bearing of the offender's antecedents, particularly the prior commission of similar offences, on those considerations were stated in Garlett v The Queen [2000] WASCA 72 at [94] by Anderson J (with whom Pidgeon J agreed) as follows:

   '[Section] 89(2) of the Sentencing Act, which enumerates the matters to which a court may have regard in considering whether to make a parole eligibility order, … go to the question whether the proper sentence which has been imposed should be mitigated in favour of rehabilitation.  … One of the most important and difficult tasks for the sentencing Judge has always been to estimate the capacity of the prisoner for reformation: Power v The Queen (1974) 131 CLR 623 at 629. … The nature of the offences and the antecedent character of the prisoner who committed them are obviously very important matters and must weigh heavily with the sentencing court in deciding whether the sentence must be served without the benefit of parole.'

8. Finally, Malcolm CJ discussed the relevance of other cases. He said, in this respect, that two principles needed to be balanced. These were the importance of uniformity in sentencing, on the one hand, and the need for flexibility in the application of sentencing principles to the particular circumstances of a case, on the other [66]. He went on to say [68]:

   Other cases do not lay down any tariff and, although providing a useful guide to the collective wisdom of judges and general trends in sentencing, they are only of general assistance:  see R v Allinson (1987) 49 NTR 38 at 40 per Kearney J. There is not a great deal to be gained by saying 'this case is not as bad as that one'. It is a question of a category and, because those which would otherwise justify strict security life imprisonment open up the possibility of a minimum sentence to be served before eligibility for parole between 20 and 30 years, they are within that category to be ranked in terms of eligibility for parole.

9. A number of these considerations warrant further attention. 

10. In our respectful opinion, it is questionable just how far sentencing considerations applicable to other forms of sentence are able to be translated to sentences of strict security life imprisonment.  For example, the concept of proportionality is normally regarded as being relevant only to the imposition of a head sentence:  Mitchell No 1, 221 (Kennedy J). In the case of strict security life imprisonment, the head sentence is one of life imprisonment. That is not altered by the fact that the court might decide to declare the offender eligible for parole after serving a non‑parole period of somewhere between 20 and 30 years. There can be no guarantee that the prisoner will ever get parole. As we have said, the provisions applicable in a case such as the present leave the decision whether or not to grant parole in the hands of the executive. The Parole Board, in its report, may or may not make a recommendation for release on parole and, if it does, the Minister may or may not accept that recommendation. None of this means that proportionality has no role to play in setting a minimum non‑parole period. However, it does not operate as it normally would, on the setting of a head sentence.

11. Another example of the necessarily different approach to be taken in the case of a sentence of life imprisonment relates to the discount for a plea of guilty.  This is normally made to the head sentence, not to a non‑parole period.  In the case of life imprisonment, there can be no discount to the head sentence and the importance of the plea can only be reflected in the non‑parole period, if there is to be a non‑parole period.  As Pullin JA has pointed out in Teakle [19] it is difficult to apply discounts to the non‑parole period fixed in life imprisonment sentences in the way in which they are applied to fixed term sentences.

12. It is also difficult to apply what was said in such cases as Thompson v The Queen (1993) 8 WAR 387, concerning the prognostication of circumstances that might be relevant when an offender who is serving a fixed term of imprisonment becomes eligible for parole, to an offender who is serving a term of life imprisonment. In the context of a non‑parole term of at least 20 years' imprisonment there will almost always be the possibility of the later emergence of facts, presently unascertainable, that might then indicate that the appellant no longer constitutes a danger to the public and is otherwise deserving of release on parole: Mitchell No 2 (346, 347). 

1. Further, in determining the length of the non‑parole period the court in Lauritsen applied by analogy the test in the former s 89(2) of the Sentencing Act for determining whether or not to grant eligibility for parole. That provision was repealed by the Sentencing Legislation Amendment and Repeal Act 2003 (WA). Currently, there is no equivalent to s 89(2)(d) which required the court to consider the circumstances which might be relevant to the offender when he or she could be released on parole. In any event, there is a material difference between the question whether parole should be granted at all and the length of the non‑parole period. Although the considerations relevant to the grant of parole will also be relevant to the length of the non‑parole period, ordinarily greater weight will be given to the potential for rehabilitation when determining whether or not to grant parole. This is demonstrated in the High Court decision in Mitchell No 2 where the issue was whether the grant of parole was appropriate. The High Court approved the approach of the sentencing judge who considered whether the more general and objective factors relating to punishment outweighed the potential of the appellant to be rehabilitated through the medium of parole. That is no longer the law even when considering whether to make an order that the offender be imprisoned for the whole of the offender's life under s 91(3) of the Sentencing Act.

2. The test for determining the length of the non‑parole period has not been altered by statute.  It was never the approach approved by the High Court in Mitchell No 2.  It was and remains the case that the non‑parole period is the minimum time that a judge determines justice requires that the offender must serve having regard to the circumstances of the case:  Power v The Queen (1973) 131 CLR 623, 629. The circumstances of the case is a reference to all relevant sentencing factors including the circumstances of the offence, all aggravating and mitigating factors and the offender's antecedents. Many of those factors (including such matters as a plea of guilty, remorse, age) will bear on an assessment of the prospects of rehabilitation. The minimum time will be determined by a reference to achieving the recognised sentencing objectives including punishment, retribution and deterrence (both personal and general). If the primary focus is on the prospect of rehabilitation, the non‑parole period is more likely to be set at the shortest time required in which a parole authority could form a proper view of the offender's prospects of rehabilitation. That approach was expressly rejected by the High Court in Power.  Where the offence committed is wilful murder, giving undue weight to the potential for rehabilitation is likely to result in the lowest available minimum term which, in the case of strict security life imprisonment, is 20 years.

3. As noted, considerations such as a plea of guilty, remorse, favourable prospects of rehabilitation, age and the like are relevant when considering the length of a non‑parole period, when one is to be specified.  All of these considerations, and any other relevant considerations, must be considered at that stage.  For example, age (a factor of significance in the present case) has been considered relevant in the South Australian case of R v Von Einem (1985) 38 SASR 207. In Von Einem (in which the murder was described as one of the 'worst types'), King CJ said (220):

   Where the head sentence is the term of the prisoner's natural life, regard should be had, in my opinion, in fixing the non‑parole period, not only to the number of years which will be spent in prison by reason of the non‑parole period, but to the relationship of the non‑parole period to the normal span of life.  This involves some consideration of the age of the prisoner.

Ground 1:  was this a case for strict security life imprisonment?

1. The particulars to ground 1 assert that three errors were made by the sentencing judge in imposing a sentence of strict security life imprisonment.  The first is that he erred in placing the offence in the upper category of offences of wilful murder.  The second is that he gave excessive weight to each of the 'perceived lack of remorse or contrition on the part of the appellant', the 'assertion' that the offence was premeditated, the sexual aspect of the offending, the appellant's limited capacity for reform and rehabilitation and the likelihood of re‑offending.  The third is that the imposition of the sentence of strict security life imprisonment failed adequately to take into account the appellant's youth, her antecedents (including a lack of prior convictions) and her plea of guilty. 

2. Counsel for the appellant contended, first, that only such offences as terrorist‑style attacks, indiscriminate killings, multiple murders, the murder of a police officer or execution‑style killings should be regarded as falling within the 'upper category of offences of wilful murder'.

3. This submission assumes that, by using the words 'upper category', the sentencing judge meant 'worst category'.  A wilful murder does not have to be in the worst category before a sentence of strict security life imprisonment can be imposed in respect of it.  While a sentence of that kind would only be imposed in a bad case of wilful murder (a category into which many murders might fall, as a review of the cases demonstrates), other factors, including the risk posed by the offender to the community, will also come into play.

4. In any event it seems to us that the present offence does fall within the 'upper category' of wilful murders.  Some more serious murder can always be imagined.  For example, the indiscriminate killing of a number of people will ordinarily be more serious than the murder of a single person.  But that does not mean that the wilful murder of a single person cannot fall within the upper range of offences of wilful murder.  Plainly, strict security life imprisonment is an option intended by the legislature to be available for a range of serious offences of wilful murder.  That is apparent from the fact that a court imposing a sentence of that kind must choose between the option of whole of life imprisonment (which, as we have said, may be required solely in order to meet the community's interest in punishment and deterrence, taking into account only the circumstances of the offence and any aggravating features) or the setting of a non‑parole period of between 20 and 30 years. 

5. The murder in the present case was a brutal, premeditated killing of a defenceless 16‑year‑old girl for no reason other than that her killers did not like her.  The appellant has shown no credible remorse.  Her only displays of remorse were those during the course of her video‑taped interview with police officers and in the course of the interview with Dr Pascu.  When her conduct in those respects is considered in the light of her overall behaviour, it seems plain that the remorse that she showed was (as Dr Pascu suggested) motivated more by a concern at her predicament than by concern at the fate of her victim.  Her attitude to what she had done seems to us to be apparent from her behaviour in the video‑tape made by Parashumti immediately after the murder (although both offenders were then plainly under the influence of a substance or substances).  It is also apparent from her subsequent conduct.  In all of the circumstances, this case falls comfortably within the category of more serious cases, identified earlier in these reasons, in which sentences of strict security life imprisonment have been imposed. 

6. As to the second and third of the asserted errors, the sentencing judge referred, in his sentencing remarks, to the appellant's lack of remorse.  He said that this, coupled with the lack of any substantial motive and the casual manner in which the murder was committed indicated a substantial risk that she would commit similar crimes in the future.  He also said that the prospects for her future rehabilitation looked 'bleak'.  He took into account that the murder was premeditated, although he recognised that the decision to kill the deceased was made only a short time before the murder.  Finally, for present purposes, he mentioned that each of the offenders had subsequently admitted to having been 'sexually excited by the violence of the event' and to have kissed each other immediately after, or shortly prior to, the death of the deceased.  He said that the fact that each had gained 'perverse sexual pleasure' from the murder went 'a long way towards explaining (their) subsequent conduct'.  This was seemingly a reference to the subsequent callous behaviour of the offenders and their lack of remorse.

7. As will be apparent, counsel for the appellant contends that the sentencing judge gave excessive weight to each of these factors and that he gave insufficient weight to the appellant's youth, antecedents and plea of guilty.  A ground of that kind is very difficult to make out.  Sentencing is a discretionary exercise and failures of the kind alleged will not give rise to an express appealable error unless they are so significant as to lead to the conclusion that the sentencing judge failed to exercise the discretion entrusted to the court:  Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ); Mallet v Mallet (1984) 156 CLR 605, 614 (Gibbs CJ); Vagh v The State of Western Australia [2007] WASCA 17 [47] (Roberts-Smith JA), [76] (McLure JA); Scook v The Queen [2008] WASCA 114 [15] (McLure JA); Ponnusamy v The State of Western Australia [2008] WASCA 224 [22] (Wheeler JA, McLure JA concurring); Speering v The State of Western Australia [2008] WASCA 266. There is nothing in the reasoning of the sentencing judge, or in the disposition at which he arrived, that leads us to the conclusion that any such error was made.

8. The sentencing judge expressly identified the principles governing the exercise of his discretion whether or not to impose a sentence of strict security life imprisonment.  In deciding to do so, he was properly influenced by the 'horrendous' circumstances of the offence.  We have already said that the offence was correctly categorised as being towards the upper end of the scale of wilful murders.  It was also open to him to conclude that the lack of any substantial motive, the casual manner in which the murder was committed and the continuing lack of remorse indicated a substantial risk that the appellant would commit crimes in the future.

9. The sentencing judge took into account the age and antecedents of the appellant and her plea of guilty.  It was open to him to conclude that, notwithstanding those factors, a sentence of strict security life imprisonment was justified in the overall circumstances of the case.

10. Ground 1 fails.

Ground 2:  was the non‑parole period too long?

1. With one exception, the appellant relies upon identical particulars to those relied upon in ground 1 in support of its contention that the non‑parole period of 24 years arrived at by the sentencing judge was excessive in the circumstances.  The exception is that there is an additional particular to the effect that the non‑parole period was excessive having regard to the range of sentences previously imposed in Western Australia for offences of a similar nature.

2. It is evident from the cases we have reviewed that, in the large majority of them, a non‑parole period of 20 years has been set.  However, in the majority of the cases there has been little analysis of the legislative intention or of the applicable principles, no doubt because, in most of the cases, the length of the non‑parole period was not in issue.  Moreover, as we have respectfully pointed out, the lengthy analysis undertaken by the majority in Lauritsen seems to us to have been deficient in material respects. 

3. The following considerations seem to us to be especially relevant when considering the length of the non‑parole period in a case such as the present, where strict security life imprisonment was imposed: 

   (a)In the worst category of cases (those in which, taking into account only the circumstances of the offence and any aggravating factors, the community's interest in punishment and deterrence demand a whole of life sentence), a sentence of strict security life imprisonment for the whole of the offender's life must be ordered.

   (b)In cases that do not fall within (a) (those that do not fall into the worst category), the court must set a non‑parole period of between 20 and 30 years.

   (c)When setting the non‑parole period, it must not be overlooked that parole will only be granted, if at all, at the will of the executive.

   (d)The non‑parole period is the minimum time that a judge determines justice requires that the offender must serve having regard to the circumstances of the case.

   (e)In setting the non‑parole period all relevant sentencing factors will be considered, including the circumstances of the offence, all aggravating and mitigating factors and the offender's antecedents.  The court will endeavour to achieve the recognised sentencing objectives, including retribution, general deterrence and personal deterrence.

   (f)Although some of the factors to be considered at this stage (such as remorse and age) bear on an assessment of the prospect of rehabilitation, that prospect will not be the primary focus.

   (g)When considering age, either youth or more advanced age may be material. Were it not for the fact that s 91(4) requires that, at the stage of deciding whether or not to impose a whole of life sentence, the court is only to take into account the circumstances of the commission of the offence and any aggravating factors, youth might have been thought to have its greatest weight, as a sentencing consideration, at that point. That is because, the younger the offender, the longer a life sentence will be. However, youth is also material for other reasons. It reflects upon the maturity of the offender and also upon his or her prospects of rehabilitation. Imprisonment may also be harder for a young person than it is for an older person. For an older offender, age may be relevant for the reason that the anticipated life span of the offender might be such that, absent a shorter non‑parole period, that person can have no realistic expectation of life after prison. It may also be relevant to the threat likely to be posed by the offender on release.

   (h)No factor necessarily takes precedence.  Also, we have not endeavoured to make an exhaustive list of potentially relevant factors.  The exercise is one of a discretionary nature, taking into account all relevant circumstances.

   (i)When the issue is being considered at an appellate level, the court must not lose sight of the fact that appellate courts are required to respect the discretionary nature of a sentencing judge's decision.  It cannot substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion in a different way:  Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Dinsdale [58].

4. In the present case, the brutal and callous nature of the murder seems to us to place it at the upper end of the category of wilful murders in which a non‑parole period is to be set.  It unquestionably attracts a very significant community interest in punishment and deterrence.  The violence involved in the murder was essentially motiveless, vicious, sustained and premeditated.  The victim was alive for a long time while she was repeatedly beaten.  The appellant told the security officer, Hoddell, that 'we must have hit her 180 times'.  We have said that the victim was ultimately strangled by a dog chain worn by the appellant around her waist.  The pathologist's report reveals that there were multiple lacerations over the skull and its surrounds.  The skull was severely fractured.  The fracture lines extended into the base of the skull.  The neck surface had been deeply indented by compression of the chain. 

5. Also, the callous conduct and boastful attitude of the appellant leave little scope for confidence in her rehabilitation, although this is mitigated somewhat by her age and immaturity, coupled with the difficulty in prognosticating how she will be in 20 years time.  Given the brutality of her conduct, and the absence of any genuine remorse, her favourable antecedents, although relevant, cannot be given a great deal of weight.  Her plea of guilty, although important, was made in the face of an overwhelming prosecution case.  The most significant factor consequently seems to us to be the appellant's age.  She was only 19 years old at the time of the murder.  Her immaturity must have reflected in her judgment and, as we have said, it also mitigates, to a degree, the negative characteristics that suggest that she has very little prospect of rehabilitation. 

6. It seems to us that, in all of the circumstances of this case, it cannot be said that a non‑parole period of 24 years is outside the range of an acceptable exercise of discretion.  Were it not for the appellant's age, plea of guilty and favourable antecedents, the brutal and callous nature of the murder might have justified a non‑parole period much closer to 30 years.  The period of 24 years seems to us sufficiently to take those considerations (and others to which we have referred) into account.

7. Ground 2 consequently fails.

Conclusion

1. We would dismiss the appeal.

1. MILLER JA:  The appellant was jointly indicted with Valerie Paige Parashumti (Parashumti) on a charge of wilful murder.  It was alleged that, on 18 December 2006, at Lathlain they had wilfully murdered Stacey Lee Mitchell (the deceased).

2. The appellant pleaded guilty to the charge of wilful murder in the Magistrates Court on 23 November 2007.  That was the committal date.  It followed various adjournments which had occurred prior to that time.  The appellant was first arraigned in the Supreme Court on 17 December 2007 and she then confirmed her plea of guilty.

3. Sentencing submissions were made to the sentencing judge on 25 January 2008 and the matter was then adjourned until 7 March 2008, when the sentencing judge passed sentence.  He sentenced the appellant to strict security life imprisonment with a minimum term before eligibility for parole of 24 years.  The sentence was backdated to commence on 21 December 2006.  Parashumti received the same sentence.

4. The appellant appeals to this court (by leave granted on 24 June 2008) on two grounds.  The first contends that the sentencing judge erred in imposing a sentence of strict security life imprisonment.  The second contends that the sentencing judge erred in fixing a non‑parole period of 24 years which was excessive in the circumstances of the case. 

5. The appeal is concerned with the provisions of the Criminal Code and the Sentencing Act1995 (WA) as they stood prior to the enactment of the Criminal Law Amendment (Homicide) Act 2008 (WA). The latter Act (s 10 and s 19) abolished the offence of wilful murder and the penalty of strict security life imprisonment. As Steytler P has pointed out, there have been important amendments to both the Sentencing Act1995 and the Criminal Code.  They do not affect the determination of this appeal, being operative only from 1 August 2008 and applicable only to offences committed after that date.  References in these reasons to the Sentencing Act1995 (WA) s 91(1) are references to the section as it was at the time of the commission of this offence and at the time the appellant was sentenced. The section is now repealed.

The facts

1. The facts were summarised for the sentencing judge by the prosecutor who appeared on 25 January 2008.  The offence occurred in the early hours of Monday, 18 December 2006.  It occurred at a house being rented by the appellant and Parashumti in Lathlain.  The appellant, Parashumti and a man named David Haynes (Haynes) lived at that address.  The house was owned by the father of Haynes. 

1. Dr Pascu's prognosis for the future was in the following terms:

   In the long term, Ms Stasinowsky would benefit from individual psychotherapy, but her current lack of insight and immature behaviour may have a negative impact on her genuinely engaging in any therapeutic process.

Sentencing comments

1. The sentencing judge dealt with the appellant and Parashumti together.  His sentencing comments intermingle the role played by each and the responsibility of each. 

2. The crime committed by the appellant was described as particularly horrifying and shocking, not only because of the young ages of the victim and the appellant, but because of the 'casual way in which it was committed and the lack of any substantial motive'.  His Honour also noted that there appeared to be no remorse or shame for what was done, but instead the appellant and her co‑offender were 'amused and jubilant'.  This the sentencing judge considered to be a true reflection of the attitude of both offenders towards the offence. 

3. The sentencing judge reviewed the circumstances of the killing and the admissions made by the appellant after the event.  These, he said, revealed the 'enormity of the evil' in what the appellant had done.  He thought that the perverse sexual pleasure which the appellant and her co‑offender had obtained from the murder went a long way to explaining their subsequent conduct.  He was horrified by the video record of the murder scene on the mobile telephone in which both offenders had 'gleefully mocked [the deceased's] body, joked and generally expressed pleasure at what [they] had done'. 

4. The sentencing judge thought that the offence was aggravated by the manner in which the deceased's body was treated.  His Honour made reference to a diary or journal found at the house with handwritten entries by each of the two offenders in it.  The entries describe the murder in offensively graphic and sexualised terms.  They were described as being 'very euphoric' in tone. 

5. The sentencing judge observed that, during video records of interview, the appellant attempted to minimise her role and became emotional about what had happened.  His Honour's view was that the emotion was due to concern for her own fate, rather than for that of the victim. 

6. After dealing with matters personal to the appellant and with the contents of the psychiatric report, the sentencing judge said:

   [Y]ou each bear the same culpability.  You both lack remorse and the prospects for your future rehabilitation would appear to be equally bleak.  Accordingly, I have decided that you should each receive the same sentence.

7. The sentencing judge imposed a sentence of strict security life imprisonment.  He took the view that the horrendous circumstances of the case and the gravity of the crime placed it towards the upper end of the scale of seriousness for wilful murders as a whole.  There was a lack of any substantial motive and the casual manner in which the murder was committed and the continuing lack of remorse of the offenders were factors which strongly indicated a substantial risk that they would commit similar crimes in the future. 

8. When considering the minimum term that should be served, the sentencing judge took into account the many aggravating factors which surrounded the offence.  He considered the only mitigating circumstances to be the pleas of guilty, the youth of the two offenders and limited background factors which might partly explain, but could not excuse, what occurred.  His Honour observed that youth is regarded as a mitigating circumstance because it usually increases the prospects of future rehabilitation.  In the circumstances of the present case, he saw any prospects of future rehabilitation as 'fairly remote'.  His Honour was also influenced by the fact that although the appellant had had more than a year in custody to reflect upon the evil nature of the crime committed, there was still a lack of remorse and clearly the appellant placed no value on the sanctity of human life.  Taking all factors into account, the sentencing judge considered that an appropriate non‑parole period in respect of the sentence of strict security life imprisonment was 24 years' imprisonment.

Grounds of appeal

Ground 1

1. This ground contends that the sentencing judge erred in imposing a sentence of strict security life imprisonment. 

2. The particulars are as follows:

   PARTICULARS

   (1)The learned sentencing judge erred in his assessment of the offence as falling into the upper category of offences of wilful murder.

   (2)The learned sentencing judge erred by giving excessive weight to the following factors:

   (a)a perceived lack of remorse or contrition on the part of the Appellant;

   (b)the assertion that the offence was pre-meditated;

   (c)the sexual aspect of the offending;

   (d)the limited capacity for reform and rehabilitation;

   (e)the likelihood of re‑offending.

   (3)The imposition of the sentence of strict security life imprisonment failed to adequately take into account:

   (a)the Appellant's youth;

   (b)the Appellant's antecedents and lack of prior convictions; and

   (c)the Appellant's plea of guilty.

Criteria for imposing strict security life imprisonment

1. The principles on which a sentencing judge must act in deciding whether to sentence an offender convicted of wilful murder to life imprisonment as opposed to strict security life imprisonment are well‑known and have been restated many times.  They were recently restated in Leyshon v The State of Western Australia [2007] WASCA 223 by Owen JA, with whom Wheeler and Buss JJA agreed. Both Owen and Buss JJA made reference to Steytler J's careful analysis of the principles in Roberts v The Queen [2003] WASCA 237; (2003) 28 WAR 381 at [29] ‑ [47].

2. It is now clear that Owen J in Williams v The Queen (1996) 17 WAR 17, with whom Kennedy and Pidgeon JJ agreed, accurately and authoritatively set out the key principles which governed the discretion to choose between life imprisonment and strict security life imprisonment. Paragraphs 3, 4 and 5 of Owen JA's summary at page 26 are all that need be quoted:

   3The factors to be taken into account in making that choice are:

   (a)the circumstances of the offence and the gravity of the crime so as to place it somewhere in the scale of other crimes of wilful murder;

   (b)the antecedents of the offender, with the phrase 'antecedents' being given a broad meaning to include matters such as character, previous criminal history, upbringing and personal circumstances; and

   (c)the risk to the community posed by the likelihood of the person committing serious offences of violence in the future.

   4The antecedents of the offender are relevant both in considering what, if any, mitigating factors exist and in considering the need to protect the community in terms of the likelihood of the applicant committing further offences.

   5No one factor has primacy over the other factors.  So it is, for example, that in an individual case the sentencing judge may be persuaded by the horrific nature of the crime or by the need to  protect the community (whether shown by the offender's  antecedents or other  material) or by a combination of all of these factors, to impose a sentence of strict security life imprisonment.

3. In Roberts, Steytler J (at [47]) elaborated upon this passage by saying:

   It consequently seems to me that the decision in each case should turn upon the whole of the circumstances of the case.  That does not, of course, mean that a court may not conclude that, on the whole of the circumstances before it in a particular case, one factor overrides all others.  So, for example, an offender's antecedents might reveal that he posed an ongoing substantial risk to the community such that a wilful murder of the kind committed by him is likely to be repeated, justifying strict security life imprisonment on that ground alone.  Equally, a particular murder may have been so horrific as to justify a sentence of that kind upon that ground alone.  However, all factors would have to be considered, without any predisposition as to weight, before a conclusion of that kind could be arrived at.  It would, in every case, also have to be borne in mind that a sentence of strict security life imprisonment is one of extraordinary severity, requiring very careful consideration before it might be imposed.

Was the case at the upper end of the scale of seriousness?

1. In the present case, the sentencing judge thought the horrendous circumstances of the killing placed it in the upper end of the scale of seriousness for wilful murders.  His Honour was also influenced by the risk to the community posed by the likelihood of the appellant committing similar crimes in the future.

2. The ground of appeal contends that the sentencing judge erred in imposing strict security life imprisonment.  The particulars contend that excessive weight was attributed to various factors.   These include the circumstances of the offending, the lack of remorse, the limited capacity for rehabilitation and the likelihood of reoffending.  The particulars also contend that there was a failure to adequately take into account the youth, the antecedents of the offender and her plea of guilty. 

3. At the hearing of this appeal, counsel for the appellant contended that the circumstances of the offence and the gravity of the crime did not place it at the high end of the scale of seriousness for wilful murder.  Counsel contended that it was not in the worst category of offences of wilful murder. 

4. The actual terminology of the circumstances of the offence is probably unimportant, but it does seem to me that the circumstances in which this wilful murder was committed place it at the highest end of the scale of seriousness for wilful murder or in the worst category of cases.  As Burt CJ observed in Bensegger v The Queen [1979] WAR 65 at 68, the maximum sentence prescribed by statute is not reserved for the worst offence of a kind dealt with by it that can be imagined. The maximum is reserved for 'the worst cases of the sort', notwithstanding the fact that the offence could have been worse than it was.

5. In the present case, I have no reservations about describing the circumstances of the offence of wilful murder as falling into the worst type of case for that offence. 

6. Counsel for the appellant attempted to compare cases falling into the 'worst category', relying upon what was said by Malcolm CJ in Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 at [66]. There, Malcolm CJ made reference to a number of cases taken from a list in Fox & Freiberg Sentencing - State and Federal Law in Victoria (2nd ed (1999) at 876 ‑ 883).  Cases which were said to fall into the worst category included terrorist attacks on the State, law enforcement or government; car bombs detonated outside police headquarters causing death; murder of a policeman; sadistic and depraved killings, especially those involving sexual offences and/or children; sexual assault and murder of a 3‑year‑old girl; prolonged battery and reckless murder of a 2‑year‑old boy; sexual torture and murder of a 14‑year‑old boy; indiscriminate killing of a number of people; killing of Crown witnesses and contract killing.  However, as Malcolm CJ observed ([66]):

   The crime of wilful murder is of the utmost gravity, but particular murders vary in gravity and sentences must take into account the particular circumstances.  Courts are justifiably cautious and reticent in definitively categorising the offence of murder ...

7. Malcolm CJ (at [68]) made reference to R v Allinson (1987) 49 NTR 38 at 40, where Kearney J said that there is not a great deal to be gained by saying 'this case is not as bad as that one'. I respectfully agree. In the circumstances of wilful murder, it is difficult to compare one killing with another.

8. Some killings will be at the higher end of the scale of seriousness.  This, in my opinion, is one such case.  The reasons why I am of that opinion are as follows:  (1) the killing of the deceased was committed for no apparent reason at all; (2) the appellant's role in the killing was to take a dog chain and strangle the deceased by tightening it around the deceased's neck; (3)  the degree of violence perpetrated upon the deceased was extreme; (4) the casual and flippant attitude towards the killing demonstrated in the video clip on the mobile telephone reveal a chilling insensitivity on the part of the appellant to what she was doing; and (5) the disposal of the body by tipping it into a wheelie bin and leaving it in a shed at the back of the house demonstrates a casual and almost disinterested attitude of the appellant in the commission of the offence.

9. In my opinion, it is no argument to say that the offence could have been worse (although it is difficult to understand how it could have been).  The offence was bad enough to place it so high in the scale of other crimes of wilful murder as, in my opinion, to justify a sentence of strict security life imprisonment on that basis alone. 

Antecedents of the appellant and risk to the community

1. The antecedents of the offender and the risk to the community posed by the likelihood of the offender committing serious crimes of violence in the future had to be taken into account (Williams per Owen J at 26). The sentencing judge took those factors into account. It does not appear that there was any professional opinion about the risk which the appellant posed in terms of reoffending. Perhaps the question was not put to Dr Pascu or any other professional.

2. The ground of appeal does not contend error on the part of the sentencing judge in concluding that the appellant presented a substantial risk of committing similar offences in the future.  The ground implicitly accepts that this conclusion was open, but contends that excessive weight was given to it. 

3. Although the sentencing judge spoke of the risk of the appellant reoffending in the same way, he was only called upon to consider the risk to the community posed by the appellant committing serious offences of violence in the future:  Williams per Owen J, at 26.

4. In determining this issue, the sentencing judge was entitled to take account of the appellant's behaviour in committing the offence in question.  Her lack of any apparent reason for the killing and her subsequent attitude, expressed particularly in the comment that she wished she had spent more time on it (the killing) to do a better job, told heavily against her.  They justified the sentencing judge's concern that she might reoffend in the same way.

5. Dr Pascu's opinion was that the appellant, with her current lack of insight and immature behaviour, might bring a negative attitude towards any therapeutic process.  That aspect is more relevant to the question of the minimum term to be served than it is to the question of imposition of strict security life imprisonment. 

6. A sentence of strict security life imprisonment is one of extraordinary severity (Roberts per Steytler J at [47]). However, in the present case, I am of the opinion that the crime committed by the appellant was so high in the scale of crimes of wilful murder that, for this reason, it justified a sentence of strict security life imprisonment.

7. I am unable to conclude that the sentencing judge was in error in imposing strict security life imprisonment.  I would therefore dismiss the first ground of appeal.

Ground 2

1. This ground contends that the sentencing judge erred in fixing the non‑parole period of 24 years.  It is said that the term was excessive in all the circumstances.  The same particulars are given in respect of this ground as are given in respect of the first.  An additional particular contends that the non‑parole period was excessive having regard to the range of sentences previously imposed in Western Australia for offences of a similar nature.

2. The factors which govern the determination whether life imprisonment should be strict security life imprisonment or life imprisonment also govern the determination of the period which an offender must serve before eligibility for parole (see Lauritsen per Malcolm CJ at [68]). The minimum sentence must be between 20 and 30 years (Sentencing Act1995 (WA) s 91(1)).

3. In the present case, I have already concluded that the wilful murder was high in the scale of gravity of offences of wilful murder or in the 'worst category' of wilful murder. 

4. The antecedents of the appellant were important.  She was young and had no prior convictions for criminal offences.  She had a troubled childhood, but no major mental illness.  She had a borderline personality disorder characterised by emotional lability, instability of her sense of self, recurrent self‑harm behaviour, poly‑substance abuse, impulsive behaviour and chronic feelings of emptiness.  The appellant had a lack of insight into what she had done and accepted only limited responsibility for her participation.  She had on occasion shown remorse, but on other occasions lacked remorse.  Her prospects of genuinely engaging in any therapy (rehabilitation) were unknown, but in her current state were doubted by Dr Pascu. 

5. The antecedents of the appellant were relevant to mitigation of sentence, but also to the need to protect the community in terms of the likelihood of the appellant committing further offences.

6. I have already dealt with the sentencing judge's conclusions on the risk of the appellant committing further offences.  Again, in this ground there is no contention that the sentencing judge was in error in concluding that the appellant presented a risk.  The ground contends that excessive weight was attributed to this factor.

7. When fixing the minimum term, the sentencing judge made no particular mention of the likelihood of reoffending.  His Honour made reference to 'the very many aggravating factors surrounding the offence', but then turned to mitigating factors.  There he listed as 'your plea of guilty, your youth and certain limited background factors'.  He said:

   The law regards youth as a mitigating circumstance because it usually increases the prospects of future rehabilitation.  However, in the particular circumstances of the present case it seems to me that those prospects are fairly remote.

   In this regard you have each had more than a year in custody to reflect upon the evilness of your crime yet you still lack remorse and obviously place no value on the sanctity of human life.  There is also the added problem that you each enjoy being sexually aroused by the infliction of violence.  These are entrenched and formidable hurdles which stand in the way of your future rehabilitation and you will not be fit for release back into the community until they are overcome.

   A further barrier to your rehabilitation is that you are both in the same prison and share the same perverse outlook on life.  Consequently, you are continually encouraging and reinforcing each other's unacceptable attitudes towards the offence and towards violence generally.

   In my opinion, these conclusions were open on the evidence.

8. Within the brief for prosecution, are photocopies of many letters which have passed between the appellant and Parashumti at Bandyup Prison.  There are also copies of letters written by the appellant to others.  Some of these letters make chilling reading.  In a letter dated 8 January 2007, the appellant wrote:

   As soon as it started, I wasn't me.  I have never felt that kind of lust for blood before.  Something in me changed.  The feel of her blood sprayed all over me was almost an [sic a] romantic animalistic lust.  Like I said, something in me changed.  I don't know when or how all I know is something in me felt in place.

9. The content of this letter confirms Dr Pascu's observation that the appellant lacked any genuine remorse or sense of guilt or shame about the events leading to the loss of life of the deceased.

10. The passage which I have quoted also says much about the appellant's prospects for rehabilitation.  It certainly justifies Dr Pascu's conclusion that, in mid‑2007, the appellant had a lack of insight and immature behaviour which might have 'a negative impact on her genuinely engaging in any therapeutic process'. 

1. The passage is also relevant to an assessment of the gravity of the crime committed by the appellant.  In addition, it throws light on the question whether the appellant presented a substantial risk of committing offences of violence in the future.

2. All of this presented a complex picture for fixing the minimum term before which the appellant should be eligible for parole.  All factors had to be considered and each balanced against the other.  In the end, the balance was between a crime which ranked high in the scale of wilful murder and personal factors relevant to the appellant which included her age, lack of prior convictions and her plea of guilty. 

3. The plea of guilty demonstrated an acceptance of responsibility and a facilitation of the course of justice, but the extent to which it demonstrated remorse was uncertain (see Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 per Gaudron, Gummow and Callinan JJ at [11] ‑ [12]).

4. It is important to appreciate that when discounting for a plea of guilty a minimum term imposed under s 91(1) of the Sentencing Act1995, there are different considerations from when discounting fixed term sentences.  In Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188, Pullin JA (with whom Roberts‑Smith and Buss JJA agreed on this issue) said:

   There are two matters to note in relation to life imprisonment sentences.  First, the transitional provisions, which apply to reduce by a third all fixed term sentences given, do not apply to life imprisonment or strict security life imprisonment because they are, by definition, not fixed term sentences (see Sentencing Act s 85 and cl 2(1)). Secondly, it is difficult to apply discounts to life imprisonment sentences in the way they are applied to fixed term sentences. When sentencing to life imprisonment for wilful murder, for example, a sentencing Judge has a limited discretion as to the final sentence and the minimum period he or she sets before parole (see Mitchell v The Queen (1998) 20 WAR 257 per Ipp J). Whilst it is technically possible for a Judge to reduce the minimum term before parole for both a life and a strict security life by 25 per cent (from the maximum non-parole periods of 19 and 30 years respectively), this is only for sentences at the very top end of the scale. For example, the period of 30 years before parole could be reduced to 22.5 years with a 25 per cent discount, but a mid-range sentence of 25 years, if discounted by 25 per cent, would drop below the prescribed minimum of 20 years. Judges must be allowed to set a sentence which they feel is appropriate in all the circumstances, without being constrained by having to allow a set discount, or range of discounts, for a plea of guilty. [19]

The purposes of criminal punishment

1. The purposes of criminal punishment must be kept firmly in mind in determining the appropriate minimum term to be served by the appellant in this case.  Those purposes were clearly expressed by the High Court in Veen v The Queen [No 2] (1988) 164 CLR 465 per Mason CJ, Brennan, Dawson and Toohey JJ at 476:

   The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

2. The 'guideposts' point in different directions because of the tension between the need for deterrence (both personal and general) and retribution on the one hand and the need for reform of the appellant on the other.  In the context of reform, the appellant's age and lack of prior convictions are important considerations.

3. Deterrence and retribution play a very important part in the present case.  It is a case that calls particularly for retribution.  The enormity of the crime committed by the appellant is obvious from the description I have given of the facts.  In the circumstances of this case, in which an unsuspecting 16‑year‑old girl was savagely murdered for no known reason by two young women, of whom the appellant was one, a sentence reflecting retribution is necessary.

4. 'Retribution' has a meaning which includes 'requital of evil done' (Oxford English Dictionary).  The acts done by the appellant in this case were evil and there is a justifiable community outrage about them which requires requital of them.

5. Deterrence, both general and personal, and retribution seem to me to call for a minimum term in the present case which would ordinarily be at the upper end of the range 20 to 30 years.  Appropriate allowance must, however, be made for the appellant's plea of guilty, her youth, and the possibility of her eventual reform. 

6. Counsel for the appellant contended that, given the young age of the appellant, it must be accepted that she was capable of rehabilitation at some time in the future.  He conceded that she may not be a candidate for immediate rehabilitation, but argued that because in 20 years' time her prospects of rehabilitation are unknown, it can be assumed that this is a time at which she would be a candidate for rehabilitation. 

7. Reliance was placed upon Mitchell v The Queen (1996) 184 CLR 333, a case of strict security life imprisonment where the Court of Criminal Appeal ordered that the offender was not to be eligible for parole (s 40D(2a) Offenders Community Corrections Act 1963 (WA)). The High Court (Dawson, Toohey, Gaudron, McHugh and Gummow JJ) said at 346 ‑ 347 that the trial judge (whose decision was reversed on appeal) had correctly had regard to the possibility of the later emergence of facts, 'presently unascertainable, but apparent twenty years or more hence, which might then indicate that the appellant no longer constitutes a danger to the public and is otherwise deserving of release on licence'.

8. In Mitchell, the High Court considered that the trial judge was entitled to have had regard to unchallenged expert evidence that the appellant would not constitute a danger to the public and that he had a constructive attitude to the future.  The trial judge acting on this footing, had correctly concluded that there was at least some potential for rehabilitation of the appellant.  No such evidence was presented to the court in the present case.

9. It may be that within 20 years of her imprisonment the appellant has some potential for rehabilitation.  However, this can be said of almost all offenders.  It was said of Mitchell whose offences were at the extreme end of seriousness:  see Mitchell at 340.

10. Clearly, it is not the case that in every instance in which an offender is sentenced to strict security life imprisonment he or she must be declared eligible for release on parole after serving 20 years because of the possibility that he or she may, by then, have a positive attitude towards rehabilitation.  The range prescribed in the Sentencing Act1995 (WA) s 91(1) is 20 to 30 years.

11. The fixing of the 24‑year minimum period in this case had to take into account all relevant factors.  The question of the appellant's rehabilitation was but one of those factors.  If the appellant demonstrates some prospect of rehabilitation after serving 24 years, she may be released on parole to take advantage of that fact.

Legislative history of minimum term for strict security life imprisonment

1. In Roberts, Steytler J at [30] ‑ [32] and [41] traced the history of legislation in this State which introduced strict security life imprisonment. Strict security life imprisonment for wilful murder was first introduced in 1980, at which time the death sentence was still available in cases of wilful murder. The Acts Amendment (Abolition of Capital Punishment) Act 1984 (WA) formally abolished capital punishment and provided that a person who committed the crime of wilful murder was liable to be sentenced to a mandatory punishment, in the case of an adult, of either strict security life imprisonment or life imprisonment. Section 34 of the Offenders Probation and Parole Act 1963 (WA) was amended at the same time to provide that, in the case of a person undergoing a sentence of strict security life imprisonment other than one commuted from a sentence of death, the first statutory review date would be one of 20 years from the date of sentence.

2. It was not until 20 January 1995, when the Criminal Law Amendment Act 1994 (WA) came into effect, that a court sentencing a person to strict security life imprisonment (otherwise than when ordering that a person was not to be eligible for parole) was required to set a minimum term of at least 20 and not more than 30 years that the person must serve before being eligible for release on parole. The Amendment Act amended s 40D of the Offenders Community Corrections Act 1963 to bring this about.

3. These provisions were replaced by s 91 of the Sentencing Act1995, although the provisions of s 91(3) of the Sentencing Act1995 are different from those which were contained within s 40D(2)(a) of the Offenders Community Corrections Act 1963. 

4. After the commencement of the relevant provisions of the Sentencing Act1995 on 16 January 1996, a court sentencing an offender to strict security life imprisonment was required, unless an order was made under s 91(3), to set a minimum period of at least 20 and not more than 30 years that the offender had to serve before being eligible for release on parole. As I have previously said, s 91 of the Sentencing Act1995 was repealed with effect from 1 August 2008.

Cases of strict security life imprisonment since 1996

1. Since January 1996, there have been 16 cases in which sentences of strict security life imprisonment have come on appeal before the Court of Criminal Appeal or Court of Appeal.  The minimum period before eligibility for parole has varied between 20 years and 25 years.  Ten of the cases resulted in the minimum term being fixed at 20 years.  Six cases resulted in a minimum term greater than 20 years.  The terms varied between 21 and 25 years.  In two cases, there were pleas of guilty and in others the sentences were imposed after trial.  In all six cases, the appeals were either dismissed or leave to appeal was refused.  The six cases can be summarised as follows:

2. In Kenneally v The Queen(Unreported, WASCA, Library No 980284, 27 May 1998), a 25‑year non‑parole period was imposed. The wilful murder occurred in consequence of a home invasion where there was aggravated sexual assault on the deceased's fiancee. The deceased was savagely beaten before being stabbed to death. There was an attempt to murder the fiancee. The case was described as being in the worst category of cases. There was a plea of guilty to some offences, but not to the wilful murder. The reasons do not reveal the age of the appellant.

3. In Mitchell v The Queen (1998) 20 WAR 257, a 25‑year non‑parole period was imposed. The appellant wilfully murdered a 33‑year‑old married woman in consequence of a home invasion and multiple rape. He killed the victim to avoid identification. The appellant began strangling the victim, striking her head against the wall, before submerging her head under water. The appellant handed himself into police, made a full confession and pleaded guilty on the fast‑track. He was said to be remorseful. The reasons do not reveal the age of the appellant.

4. In Stapleton v The Queen [2002] WASCA 328; (2002) 136 A Crim R 65, a 23‑year non‑parole period was imposed. The appellant had captured, tortured, beaten and killed a teenaged Aboriginal boy. The appellant was one of three attackers. The attack included racial vilification. There was no remorse. The appellant was convicted after trial. He had admitted some of the events leading to the murder and the burying of the body of the deceased, and had co‑operated with police by showing the location of the body. The appellant had no prior convictions and was well respected in the community. He was aged 41 years.

5. In Mackenzie v The Queen [2004] WASCA 146; (2004) 150 A Crim R 451, a 25‑year non‑parole period was imposed. The appellant wilfully murdered a prostitute whose services he had engaged. He stabbed her at least seven times. The wilful murder was accompanied by torture and sexual assault. The appellant had a prior record, including a record for offences of violence committed on prostitutes. He had no remorse or insight and a hatred of prostitutes. He pleaded not guilty. The reasons do not reveal the age of the appellant.

6. In Meko v The Queen [2004] WASCA 159; (2004) 146 A Crim R 131, a 21‑year non‑parole period was imposed in a case in which the appellant had broken into his former partner's house and killed her with a tomahawk and knife. He was in breach of a restraining order. He was an Ethiopian refugee with what was described as a troubled and difficult life. He pleaded not guilty. He had no prior record of convictions and there was no evidence of any future risk to the community. He was aged 43 years.

7. In Teakle (supra), a 22‑year non‑parole period was imposed.  This was a case in which the appellant pleaded guilty on the fast‑track.  He had wilfully murdered a 25‑year‑old single mother of two children who was a former neighbour.  He had inflicted multiple stab wounds to the back, hands, arms, thigh and heart and had slit the throat and wrists of the deceased.  After the attack, he locked the deceased's house, leaving the body inside with the deceased's young children.  The appellant had good antecedents, was considered to have shown remorse by his plea of guilty.  The reasons do not reveal the age of the appellant.

Conclusion on minimum term in the present case

1. The minimum term imposed by the sentencing judge in the present case has been exceeded in only three other cases of strict security life imprisonment which have come before the Court of Criminal Appeal or Court of Appeal.  In only one of those cases was there a plea of guilty, the other two being convictions after trial.  It is, however, difficult to compare the circumstances of each case, the circumstances of each offender, and the minimum terms imposed on them.  All that can be done is look at a particular case and determine whether, in all the circumstances, the mix of factors to be taken into account in fixing a minimum term is properly reflected in the term imposed. 

2. In my opinion, the 24‑year minimum term imposed in this case reflects (1) the seriousness of the offence in terms of the gravity of the crime within the scale of other crimes of wilful murder; (2) the antecedents of the appellant, including her age, the fact that she had no prior convictions and her borderline personality disorder; and (3) the appellant's plea of guilty entered at an early stage of the proceedings. 

3. A 24‑year minimum term before eligibility for parole is a very long term for the appellant.  She is now 21 years of age and approaching 22 years of age.  However, in all the circumstances of the case, I consider that the term imposed was within the discretion of the sentencing judge.  It properly reflected the mix of factors to which I have referred.  Further, it is also relevant in this case to recognise that the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice:  Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. In the present case, I consider that the discretionary decision to fix the minimum term at 24 years should not be disturbed. I am also of the opinion that it was an appropriate term in the circumstances.

4. I would dismiss ground 2 of the grounds of appeal.