The State of Western Australia v Attwood
[2020] WASCA 49
•9 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ATTWOOD [2020] WASCA 49
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 5 NOVEMBER 2019
DELIVERED : 9 APRIL 2020
FILE NO/S: CACR 90 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
MELONY JANE ATTWOOD
Respondent
FILE NO/S: CACR 91 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
ROBERT WAYNE EDHOUSE
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: JENKINS J
File Number : INS 189 of 2017
Catchwords:
Criminal law - State appeals against sentence - Respondents convicted after trial of murder - Each respondent sentenced to life imprisonment with a minimum non‑parole period of 21 years - Whether minimum non‑parole periods were manifestly inadequate
Legislation:
Criminal Code (WA), s 279
Result:
Appeal CACR 90 of 2018
Leave to appeal granted
Appeal dismissed
Appeal CACR 91 of 2018
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
CACR 90 of 2018
Counsel:
| Appellant | : | Mr R G Wilson |
| Respondent | : | Mr S D Freitag SC |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | In person |
CACR 91 of 2018
Counsel:
| Appellant | : | Mr R G Wilson |
| Respondent | : | Ms E C J Needham |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | In person |
Case(s) referred to in decision(s):
Angliss v The State of Western Australia [2015] WASCA 8
Atherden v The State of Western Australia [2010] WASCA 33
Austic v The State of Western Australia [2010] WASCA 110
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Broadbent v The State of Western Australia [2016] WASCA 148
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Cockram v The State of Western Australia [2011] WASCA 179
Corbett v The State of Western Australia [2016] WASCA 97
Crossland v The State of Western Australia [2016] WASCA 93
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Dymock v The State of Western Australia [2019] WASCA 213
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Johnston v The State of Western Australia [2012] WASCA 18
Khan v The State of Western Australia [2013] WASCA 193
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mack v The State of Western Australia [2014] WASCA 207
Mansfield v The State of Western Australia [2017] WASCA 178
Marchesano v The State of Western Australia [2017] WASCA 177; (2017) 52 WAR 176
McAlpine v The State of Western Australia [2018] WASCA 195
McIntosh v The State of Western Australia [2017] WASCA 45
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Pedersen v The State of Western Australia [2010] WASCA 175
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
Prestidge v The State of Western Australia [2014] WASCA 16
Rosewood v The State of Western Australia [2014] WASCA 21
Ruthsalz v The State of Western Australia [2018] WASCA 178
Silva v The State of Western Australia [2013] WASCA 278
Stinson v The State of Western Australia [2014] WASCA 72
Taylor v The State of Western Australia [2016] WASCA 210
The State of Western Australia v Attwood, Dymock & Edhouse [2018] WASCSR 92
The State of Western Australia v Churchill [2015] WASCA 257
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Lee [2013] WASCA 246
The State of Western Australia v O'Kane [2011] WASCA 24
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
The State of Western Australia v Smith [2015] WASCA 87
The State of Western Australia v Stoeski [2016] WASCA 16
Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91
Zwerus v The State of Western Australia [2015] WASCA 174
JUDGMENT OF THE COURT:
These are State appeals against sentence.
The respondents (Melony Jane Attwood and Robert Wayne Edhouse) and a co-accused, Corey Joshua Dymock, were jointly charged with murder. The indictment pleaded that on 22 April 2016, at Girrawheen, Ms Attwood, Mr Edhouse and Mr Dymock murdered Alan George Taylor, contrary to s 279 of the Criminal Code (WA) (the Code).[1] Each of Ms Attwood, Mr Edhouse and Mr Dymock pleaded not guilty to the charge.
[1] A male juvenile co-offender, DG, pleaded guilty to Mr Taylor's murder. DG was convicted and sentenced, prior to the respondents' trial, in the Children's Court of Western Australia.
On 12 March 2018, after a joint trial before Jenkins J and a jury, Ms Attwood and Mr Edhouse were convicted of Mr Taylor's murder. Mr Dymock was acquitted of murder, but convicted of the lesser charge of being an accessory after the fact to murder, contrary to s 562 read with s 10(1) of the Code.
On 8 May 2018, the trial judge sentenced each of Ms Attwood and Mr Edhouse to life imprisonment with a minimum non-parole period of 21 years. Both sentences were backdated to 10 May 2016. Mr Dymock was sentenced to 5 years' immediate imprisonment, reduced to 4 years' immediate imprisonment following his successful appeal against sentence.[2]
[2] See Dymock v The State of Western Australia [2019] WASCA 213.
The sole ground of appeal relied upon by the State in each appeal alleges that the minimum non-parole period of 21 years was manifestly inadequate.
On 27 July 2018, Mazza JA referred the State's applications for leave to appeal to the hearing of the appeals.
We would grant the State leave to appeal in each appeal. However, in our opinion, both appeals should be dismissed.
The relevant facts and circumstances of the offending
The relevant facts and circumstances of the offending as found by the trial judge in her sentencing remarks are as follows:[3]
[3] The State of Western Australia v Attwood, Dymock & Edhouse [2018] WASCSR 92 (Sentencing Remarks).
Mr Taylor was aged 42 years when he was killed. He lived with Ms Attwood at a home he owned in Arnos Way, Girrawheen (the Arnos Way property). They had been in a relationship for about eight to nine years. Mr Taylor and Ms Attwood had a young son who lived with them. Mr Edhouse and DG also lived at the Arnos Way property. Mr Dymock had previously lived at the Arnos Way property, but in April 2016 he moved to live with his girlfriend, Skye Dunn.
Ms Attwood, Mr Edhouse and Mr Dymock were members of a white supremacist group called the 'Aryan Nations'.
From at least early 2016, Ms Attwood and Mr Edhouse had engaged in a sexual relationship. Some time prior to 22 April 2016, Ms Attwood and Mr Edhouse decided to murder Mr Taylor. Ms Attwood and Mr Edhouse discussed with DG methods of killing Mr Taylor. They offered DG money to assist in Mr Taylor's murder. Her Honour found that Mr Dymock 'was aware that there was talk about killing Mr Taylor but consistent with the jury's verdict he did not join in with the plan'.[4]
[4] Sentencing Remarks [52].
On 21 April 2016, Mr Taylor returned to the Arnos Way property from the mine site where he worked as a fly in/fly out worker. DG spent the evening at Mr Dymock's apartment in Maylands. Mr Taylor spent the evening at the Arnos Way property with Ms Attwood and Mr Edhouse.
At about 8.00 am on 22 April 2016, Ms Attwood and Mr Edhouse left the Arnos Way property, in Ms Attwood's car, to take the young son of Mr Taylor and Ms Attwood to the childcare centre he attended.[5]
[5] Sentencing Remarks [53].
While Ms Attwood and Mr Edhouse were out, a nurse visited the Arnos Way property to obtain a blood sample from Mr Taylor. Mr Taylor was alive and in good health when the nurse left the Arnos Way property sometime after 8.00 am.[6]
[6] Sentencing Remarks [54].
After they attended the childcare centre, Ms Attwood and Mr Edhouse collected Mr Dymock and DG from Mr Dymock's apartment. At about 9.30 am, Ms Attwood, Mr Edhouse, Mr Dymock and DG left Mr Dymock's apartment, in Ms Attwood's car, to return to the Arnos Way property.[7]
[7] Sentencing Remarks [55].
At the trial, evidence, including CCTV footage, established that the offenders arrived at the Arnos Way property in Ms Attwood's car at about 10.00 am and that the offenders departed from the Arnos Way property in Ms Attwood's car at about 10.40 am. The CCTV footage was taken from a camera at a neighbouring property. The State's case was that Mr Taylor was attacked during that period of about 40 minutes.
When the offenders arrived at the Arnos Way property at about 10.00 am, Mr Taylor was in bed either asleep or dozing. The offenders spent some time on the back patio. Ms Attwood then had a shower. While Ms Attwood was having the shower, Mr Edhouse and DG went into the master bedroom of the Arnos Way property and attacked Mr Taylor. Each struck him on the head with a hammer. Consistently with the jury's verdict, the trial judge found that Mr Dymock 'was outside whilst the fatal attack occurred and that he did not participate in the attack on the deceased or aid in the murder'.[8]
[8] Sentencing Remarks [66].
The offenders put their bloodstained clothing into a bag which was then placed in the back of Ms Attwood's car. Ms Attwood went through the house and moved or disturbed various household items to make it look as though the house had been burgled.
At about 10.40 am (being about 40 minutes after they had arrived at the Arnos Way property), Ms Attwood, Mr Edhouse, Mr Dymock and DG drove in Ms Attwood's car to Grand Cinemas in Warwick to watch a movie (namely, the Jungle Book). The trial judge found that they had attended the cinema in order to establish an alibi for themselves.[9]
[9] Sentencing Remarks [75].
During the movie, Mr Dymock and DG left the cinema to purchase deodorant from nearby shops to conceal the smell of blood and body odour on the offenders.
At about 12.45 pm, the offenders returned to Mr Dymock's apartment. There, they told Ms Dunn that they had murdered Mr Taylor.
The offenders then showered at Mr Dymock's apartment.
At about 3.30 pm, Ms Attwood and Mr Edhouse left Mr Dymock's apartment. Mr Dymock walked out of the apartment block with them. Both Mr Edhouse and Mr Dymock could be seen on CCTV to be carrying plastic bags, which her Honour found contained incriminating evidence that was never located. Mr Dymock then returned to his apartment without the plastic bag.[10]
[10] Sentencing Remarks [80].
At about 4.30 pm, Ms Attwood arrived alone at the Arnos Way property. When she arrived, Ms Attwood called the 000 emergency number in order to support her false story that Mr Taylor was at home, alive and uninjured, when she left for the cinema.
Paramedics attended at the Arnos Way property shortly afterwards and found Mr Taylor to be deceased. They declared Mr Taylor 'life extinct' at 5.18 pm.
Her Honour found, based on a post‑mortem examination, that Mr Taylor 'would have been alive but unconscious for between two to five hours after the infliction of the head injuries'.[11]
[11] Sentencing Remarks [88].
The trial judge’s sentencing remarks
Ms Attwood: personal circumstances
Ms Atwood was aged 35 at the time of the offending and was 37 when sentenced. Her Honour decided to sentence Ms Attwood having regard to the pre‑sentence report. The report stated that Ms Attwood had a dysfunctional childhood marked by domestic violence, intimidation, manipulation and child abuse. She began running away from home while she was still in primary school. The child welfare authorities became involved with her family. Ms Attwood had a number of unsuccessful foster and hostel placements. She then lived independently from a young age. Ms Attwood attended school until year 9.
Since leaving school Ms Attwood has not obtained any qualifications. She has been employed in aged care and child care. However, a work related injury prevented her from continuing in that employment. In 2001, at the age of 21, she became eligible for a disability support pension.
When she was aged 28, Ms Attwood began an online relationship with Mr Edhouse, who was overseas. When Mr Edhouse returned to Australia, Ms Attwood saw him regularly and they commenced a sexual relationship. At the time Ms Attwood was in a relationship with Mr Taylor and she had had his child. Ms Attwood terminated her relationship with Mr Edhouse while she was remanded in custody for the offending in question.
Ms Attwood denied having a substance abuse problem even though she had tested positive while in custody for cannabis and unprescribed Oxazepan. Her Honour described Ms Attwood's health as 'fair'. She has an adrenal tumour and lower back pain.
Ms Attwood did not have a prior criminal record. Character references from two family friends described Ms Attwood as an honest and helpful child and teenager. Her Honour gave little weight to those references because the authors stated that they believed Ms Attwood was not guilty of Mr Taylor's murder.
However, a reference from a prison learning facilitator spoke highly of Ms Attwood's conduct in prison as a peer support worker. The author of the reference said Ms Attwood was a 'role model' for other prisoners. A bundle of certificates given to her Honour indicated that Ms Attwood had endeavoured to improve herself in a wide range of areas while she was in prison. She is undertaking university study by remote learning.
Mr Edhouse: personal circumstances
Mr Edhouse was aged 20 at the time of the offending and was 22 when sentenced. His mother disappeared when he was 8 months old. At the time, his father was in custody. Mr Edhouse was cared for by his father's family until his father was released. Mr Edhouse was raised by his father and his father's family and associates. His father continues to support him. Mr Edhouse's upbringing was very unusual because of his mother's absence, his father's association with an outlaw motor cycle group and his father's occasional absence while in custody. Mr Edhouse attended many schools (including boarding school) until the end of year 10.
Since leaving school Mr Edhouse has not obtained any qualifications. After leaving school he worked at an abattoir. He then moved to New South Wales. Mr Edhouse remained in New South Wales for a couple of years. His ambition to join the army was thwarted by injuries he suffered in a motor cycle accident. On returning to Western Australia, Mr Edhouse worked in a number of unskilled occupations.
When he was sentenced, Mr Edhouse was not in a relationship. He asserted that his relationship with Ms Attwood was 'a physical relationship of short duration based on opportunity and convenience'.[12]
[12] Sentencing Remarks [141].
Mr Edhouse has a history of substance abuse. He began using alcohol at the age of 17 years. When he committed the offence he had been drinking alcohol on a daily basis including binge drinking. Mr Edhouse began using cannabis at the age of 16 years. He continued to use it on a daily basis until he was arrested for the offence. Since 2015 he had also used cocaine regularly.
Mr Edhouse's physical health was good. His mental health was 'arguably fragile' as a result of his incarceration since his arrest.
Mr Edhouse did not have a prior criminal record in Western Australia. However, he had previous convictions in New South Wales for assault occasioning bodily harm and stalking. The trial judge found, having regard to a psychological report, that Mr Edhouse had the capacity to rationalise violent behaviour that breaches community standards if he believed that the behaviour was justified.
Mr Edhouse has a history of attempts at self‑harm. Her Honour noted that he had been diagnosed with 'mixed anxiety and depressive disorder' as a result of his separation from his mother; problems he encountered at boarding school; frightening experiences as a child; conflict at school with students and teachers; irritability and anger; a perception of adverse discrimination and persecution; and the pattern of his family relationships.[13]
[13] Sentencing Remarks [149].
The author of the psychological report assessed that Mr Edhouse was at a moderate risk of future violent offending. The trial judge agreed with that assessment.
Her Honour accepted, on the balance of probabilities, that Mr Edhouse was at a higher risk of being assaulted in prison as a consequence of his white supremacist views than another prisoner without those views. Her Honour considered, however, that there was not a significant risk of injury to Mr Edhouse. Her Honour was not persuaded that this issue should be given significant weight in the sentencing process.
Aggravating factors
The trial judge found that the offending by Ms Attwood and Mr Edhouse was aggravated by a number of factors.
First, Ms Attwood and Mr Edhouse intended to kill Mr Taylor. Secondly, the offences were premeditated and involved planning. Thirdly, there were base motives for the murder. Fourthly, a weapon was used to commit the murder. Fifthly, there was viciousness in the manner in which Mr Taylor was killed. Sixthly, Mr Taylor received numerous severe injuries. Seventhly, the murder had the effect of depriving a young child of his father and, indirectly, his mother. Eighthly, the murder was committed in company. Ninthly, Ms Attwood and Mr Edhouse took advantage of the trust which Mr Taylor had placed in each of them by allowing them free access to his home. Mr Taylor was attacked while he was vulnerable in his own bed. Tenthly, Mr Taylor was left severely injured and dying, naked and alone, on the floor of his bedroom while the offenders departed and went to the cinema. Eleventhly, Ms Attwood and Mr Edhouse attempted to cover up the murder. They lied and destroyed evidence.
Victim impact statements
The information before the trial judge included a victim impact statement from Mr Taylor's parents. The statement set out the impact of the offending on Mr Taylor's grandparents and his son. The offending had a profound and significant effect on them as well as on Mr Taylor's extended family, friends and associates. Mr Taylor's son will be unable to remember his father and, no doubt, will suffer when he becomes aware of the circumstances in which his father died and the involvement of his mother in his father's death.
Mitigating factors
As to Ms Attwood, the trial judge took into account her personal circumstances including her dysfunctional upbringing.
As to Mr Edhouse, her Honour took into account his personal circumstances including his youth and his dysfunctional upbringing.
The culpability of Ms Attwood and Mr Edhouse
Ms Attwood and Mr Edhouse acknowledged at the sentencing hearing that their culpability was equal.
The trial judge found that Ms Attwood had more to gain from the commission of the offence. Mr Edhouse played a greater role in its commission. Ms Attwood played a greater role in covering up the murder on the date it was committed. Mr Edhouse had his youth in mitigation which Ms Attwood did not have. Ms Attwood appeared to be at a lower risk of future violence and a lower risk of future offending than Mr Edhouse.
After balancing all of those matters, her Honour decided that it was appropriate that each of Ms Attwood and Mr Edhouse receive the same minimum term.
The sole ground of appeal in each appeal
As we have mentioned, the sole ground of appeal in each appeal alleges that the minimum non‑parole period of 21 years was manifestly inadequate.
Counsel for the State's submissions
Counsel for the State submitted that the minimum non‑parole period of 21 years was manifestly inadequate having regard to a number of matters.
First, the murder and the circumstances in which it was committed were serious. In particular:
(a)Ms Attwood and Mr Edhouse had a premeditated intention to kill.
(b)Ms Attwood's motive was to have Mr Taylor out of the way in order to facilitate her continued sexual relationship with Mr Edhouse and in a manner by which she would be able to profit financially from his death. Mr Edhouse's motive was one of, or a combination of, the elimination of his sexual rival, the obtaining of financial benefit through his relationship with Ms Attwood, to impress or show loyalty towards Ms Attwood and to maintain the cohesion of the Aryan Nations group.
(c)The offending involved an extremely high breach of trust.
(d)The murder was committed in a very brutal and degrading manner.
(e)Ms Attwood and Mr Edhouse persistently endeavoured to hide the murder by lying and destroying evidence.
(f)The murder deprived a young child of his father and, indirectly, his mother.
(g)Mr Taylor was entirely innocent of any wrongdoing towards Ms Attwood and Mr Edhouse.
(h)Ms Attwood and Mr Edhouse recruited a 17 year old juvenile, DG, to assist in the murder.
(i)Ms Attwood and Mr Edhouse were equally culpable for the murder.
Secondly, the personal circumstances of Ms Attwood provided limited mitigation, notwithstanding the absence of a prior criminal record and her dysfunctional upbringing, in that she was not youthful for sentencing purposes and she did not evince any remorse. The personal circumstances of Mr Edhouse provided limited mitigation, notwithstanding his youth and his dysfunctional upbringing, in that he did not have good antecedents and he did not evince any remorse.
Thirdly, personal and general deterrence, and appropriate punishment, were important sentencing factors having regard to the seriousness of the offending.
Fourthly, the range of sentences customarily imposed since the removal of the maximum limit previously placed on minimum non‑parole periods indicated that the minimum non‑parole period of 21 years was plainly inadequate.
Counsel for the State cited a number of previous decisions of this court concerning non-parole periods imposed following convictions for murder. Counsel argued that these cases demonstrated that the sentences imposed on Ms Attwood and Mr Edhouse were inconsistent with sentencing standards revealed by reasonably comparable decisions.[14]
[14] Crossland v The State of Western Australia [2016] WASCA 93; Broadbent v The State of Western Australia [2016] WASCA 148; Marchesano v The State of Western Australia [2017] WASCA 177; (2017) 52 WAR 176; Mansfield v The State of Western Australia [2017] WASCA 178.
According to counsel, there was nothing in the overall circumstances of the offending or in the personal circumstances of Ms Attwood or Mr Edhouse which made the minimum non‑parole period of 21 years appropriate. The trial judge did not expressly place the murder on a scale of seriousness for offences of that kind. However, it was contended on behalf of the State that the objective seriousness of the offending must be 'at the upper end of any such scale'.
Counsel submitted that the intervention of this court was required to correct the manifestly inadequate minimum non‑parole period, to confirm the sentencing principles applicable to offending of this kind (that is, murder accompanied by an intention to kill, at the upper end of the range of seriousness) and to maintain proper sentencing standards with respect to such offending.
Counsel for Ms Attwood's submissions
Counsel for Ms Attwood submitted that the minimum non‑parole period imposed by the trial judge was not vitiated by implied error nor was it unreasonable or plainly unjust having regard to all the circumstances of the case. It was argued that even if this court was of the view that the minimum non‑parole period was 'towards the very lower end of the appropriate range', the appeal should not succeed. The minimum non‑parole period was not so inadequate as to require that the appeal be allowed in order to maintain proper sentencing standards in relation to cases of this type.
Counsel for Mr Edhouse's submissions
Counsel for Mr Edhouse submitted that, in all the circumstances, the minimum non‑parole period imposed by the trial judge did not indicate that a substantial wrong had in fact occurred. It was argued that the State's contention that the offending involved 'an extremely high breach of trust' was overstated. Also, the minimum non‑parole period was not plainly inadequate having regard to the range of sentences customarily imposed in recent years. The minimum non‑parole period was not unreasonable or plainly unjust.
The merits of the appeals
A ground of appeal which alleges that a sentence (including a minimum term) is manifestly inadequate asserts the existence of an implied or inferred error.
It is necessary, in determining whether a minimum term is manifestly inadequate, to examine it from the perspective of the principles applicable to the fixing of the length of a non-parole period and the factors which a sentencing judge must take into account when fixing a minimum term. Relevant factors include the maximum penalty for the offence, any upper or lower limits on the available minimum term, the standards of sentencing customarily observed with respect to minimum terms for that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances and antecedents of the offender.
A non‑parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period.[15]
[15] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 - 629 (Barwick CJ, Menzies, Stephen & Mason JJ); Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367 (Gibbs CJ, Murphy, Wilson, Brennan & Dawson JJ); Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 530 ‑ 531 (Mason CJ & McHugh J), 536 (Dawson, Toohey & Gaudron JJ).
In Pedersen v The State of Western Australia,[16] Buss JA made a number of observations (McLure P and Mazza J agreeing) about the determination of the minimum non‑parole period where an offender is to be sentenced to life imprisonment for the offence of murder, and where the sentencing court has decided (as in the present case) to proceed under s 90(1)(a) of the Sentencing Act1995 (WA) and fix a minimum period. It is unnecessary to repeat those observations. See also The State of Western Australia v Stoeski.[17]
[16] Pedersen v The State of Western Australia [2010] WASCA 175.
[17] The State of Western Australia v Stoeski [2016] WASCA 16 [42] ‑ [45] (Buss JA; Mazza JA & Mitchell J agreeing).
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a non‑parole period is within the range of other non‑parole periods imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a non‑parole period is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence (including a minimum term) is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence (including an individual minimum term) is manifestly inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence or minimum term. Previous sentencing ranges are only one pointer to the inadequacy of a sentence or minimum term. See Munda v The State of Western Australia;[18] The State of Western Australia v Doyle;[19] McAlpine v The State of Western Australia.[20]
[18] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[19] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[20] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[21]
[21] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[22]
[22] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
We have considered numerous cases in which this court has heard and determined appeals against sentence for murder since the commencement of the Criminal Law Amendment (Homicide) Act 2008 (WA). We have taken into account the sentencing dispositions in Atherden v The State of Western Australia;[23] Austic v The State of Western Australia;[24] Pedersen; The State of Western Australia v O'Kane;[25] The State of Western Australia v Silich;[26] Cockram v The State of Western Australia;[27] Wongawol v The State of Western Australia;[28] Johnston v The State of Western Australia;[29] Goodwyn v The State of Western Australia;[30] Khan v The State of Western Australia;[31] The State of Western Australia v Lee;[32] Silva v The State of Western Australia;[33] Prestidge v The State of Western Australia;[34] Rosewood v The State of Western Australia;[35] Stinson v The State of Western Australia;[36] Mack v The State of Western Australia;[37] Angliss v The State of Western Australia;[38] The State of Western Australia v Smith;[39] Zwerus v The State of Western Australia;[40] The State of Western Australia v Churchill;[41] Crossland; Corbett v The State of Western Australia;[42] Broadbent; Taylor v The State of Western Australia;[43] McIntosh v The State of Western Australia;[44] Marchesano; Mansfield; and Ruthsalz v The State of Western Australia.[45] It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
[23] Atherden v The State of Western Australia [2010] WASCA 33.
[24] Austic v The State of Western Australia [2010] WASCA 110.
[25] The State of Western Australia v O'Kane [2011] WASCA 24.
[26] The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285.
[27] Cockram v The State of Western Australia [2011] WASCA 179.
[28] Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91.
[29] Johnston v The State of Western Australia [2012] WASCA 18.
[30] Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328.
[31] Khan v The State of Western Australia [2013] WASCA 193.
[32] The State of Western Australia v Lee [2013] WASCA 246.
[33] Silva v The State of Western Australia [2013] WASCA 278.
[34] Prestidge v The State of Western Australia [2014] WASCA 16.
[35] Rosewood v The State of Western Australia [2014] WASCA 21.
[36] Stinson v The State of Western Australia [2014] WASCA 72.
[37] Mack v The State of Western Australia [2014] WASCA 207.
[38] Angliss v The State of Western Australia [2015] WASCA 8.
[39] The State of Western Australiav Smith [2015] WASCA 87.
[40] Zwerus v The State of Western Australia [2015] WASCA 174.
[41] The State of Western Australia v Churchill [2015] WASCA 257.
[42] Corbett v The State of Western Australia [2016] WASCA 97.
[43] Taylor v The State of Western Australia [2016] WASCA 210.
[44] McIntosh v The State of Western Australia [2017] WASCA 45.
[45] Ruthsalz v The State of Western Australia [2018] WASCA 178.
We are satisfied that Mr Taylor's murder was a very serious example of offending of the kind in question. The very serious character of the offence committed by Ms Attwood and Mr Edhouse is readily apparent from the aggravating factors enumerated by the trial judge in her sentencing remarks. Her Honour made an unchallenged finding that each of Ms Attwood and Mr Edhouse were equally culpable.
There was limited mitigation available to Ms Attwood and Mr Edhouse. They did not have the mitigation that a plea of guilty would have brought. They were not of prior good character.
The minimum non‑parole periods of 21 years fixed by her Honour were at or very close to the lower end of the sentencing outcomes open to her Honour on a proper exercise of her discretion. It was open to have imposed distinctly longer minimum non‑parole periods. However, bearing in mind the principles set out at [65] and [66] above, the minimum non‑parole periods are broadly consistent with the minimum non‑parole periods imposed in reasonably comparable cases. We are not persuaded, having regard to all the relevant facts and circumstances and all the relevant sentencing factors (including the sentencing dispositions in previous cases with at least some features comparable to the present case) that:
(a)this court's intervention is necessary to confirm the sentencing principles applicable to offending of this kind or to maintain proper sentencing standards with respect to such offending; or
(b)the minimum non‑parole periods are unreasonable or plainly unjust.
We would not imply or infer error in the exercise of the trial judge's discretion from the sentencing outcome.
The sole ground of appeal in each appeal fails.
Conclusion
We would grant the State leave to appeal in each appeal. However, the sole ground of appeal in each appeal has not been made out. Both appeals must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss9 APRIL 2020
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