The State of Western Australia v Grosser
[2024] WASC 412
•7 NOVEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GROSSER [2024] WASC 412
CORAM: HOWARD J
HEARD: 4 NOVEMBER 2024
DELIVERED : 4 NOVEMBER 2024
PUBLISHED : 7 NOVEMBER 2024
FILE NO/S: INS 203 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DALE AARON JOHN GROSSER
Accused
Catchwords:
Criminal law - Accused unfit to stand trial for murder subject to custody order - Application to set limiting term of custody order - Custody order made under repealed legislation - Transitional provisions - Procedure to be followed - Effect of sentencing provisions
Legislation:
Criminal Code 1913 (WA)
Criminal Law (Mental Impairment) Act 2023 (WA)
Sentencing Act 1995 (WA)
Result:
Limiting term set as the duration of the respondent's life
Category: B
Representation:
Counsel:
| Applicant | : | Ms A J Finn |
| Accused | : | Mr P F Collins |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Aboriginal Legal Service of WA |
Case(s) referred to in decision(s):
The State of Western Australia v Chokolich [2024] WASC 346
The State of Western Australia v Djiagween [2024] WASC 389
The State of Western Australia v Smith [2024] WASC 361
The State of Western Australia v Stimpson [2024] WASC 363
HOWARD J:
(These reasons were delivered extemporaneously and have been lightly edited from the transcript.)
Background
On 4 November 2017, Dale Aaron John Grosser was charged on indictment that on that date he murdered his stepfather, Gregory Donald Wilkes, against s 279 of the Criminal Code 1913 (WA).
Mr Grosser has been diagnosed with paranoid schizophrenia and mild intellectual disability and is currently residing at the Frankland Centre.[1]
[1] State's outline of written submissions dated 24 September 2024 [6].
On 1 May 2020, Fiannaca J made a custody order (Custody Order) with respect to Mr Grosser pursuant to s 19(4) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (old act) on the ground that Mr Grosser was unfit to stand trial and he would not become fit to stand trial within six months. His Honour gave brief oral reasons and said that he would provide further written reasons later. Unfortunately, it appears that has not occurred.
The Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act), the new act, repealed and replaced the old act and came into operation on 1 September 2024. Pursuant to the transitional provisions, the Custody Order made by Fiannaca J has effect as if it were a custody order made under Pt 5 of the CLMI Act.[2] Therefore, Mr Grosser is subject to an existing custody order, which was accepted by counsel for Mr Grosser.
[2] CLMI Act s 254.
Mr Grosser has been in custody since the date of his arrest on 4 November 2017 and, therefore, for a total of exactly seven years today.
On 2 September 2024, The Director of Public Prosecutions (DPP) made an application to this Court to set a limiting term for Mr Grosser's existing custody order pursuant to s 261 of the CLMI Act.
For the purposes of this hearing, the Court has received:
1.written submissions from the DPP on behalf of the State dated 24 September 2024; and
2.written submissions from Mr Collins for Mr Grosser filed 24 October 2024.
Mr Grosser appeared at the hearing by audio visual link.
This Court gave the notice required under s 263(1) of the CLMI Act by letter dated 4 September 2024. Counsel from the State has indicated from the Bar table that, as far as the State understands it, s 263(3) of the CLMI Act has been complied with.
In considering the limiting term that must be imposed, the Court is to consider the best estimate of the term of imprisonment that the court would have imposed if it was sentencing following a plea of guilty at the earliest reasonable opportunity, and that Mr Grosser's mental impairment was not considered.[3]
[3] CLMI Act s 50(2).
For the reasons below, under the applicable legislation, the Court is to set the limiting term for the custody order as life imprisonment. Taking into account the relevant matters, that limiting term is taken to have commenced on 4 November 2017.
Relevant legal principles
I have gratefully adopted the legal principles stated by Quinlan CJ in The State of Western Australia v Chokolich [2024] WASC 346, particularly at [23] ‑ [59], regarding the CLMI Act and associated procedural matters.
Section 50 of the CLMI Act contains the matters which the court must consider when setting a limiting term for a custody order.
In setting a limiting term for the custody order, the court must set a limiting term that is 'the best estimate of the term' of imprisonment that the court would, in all the circumstances, have imposed if the Court were sentencing Mr Grosser for the offence, and his mental impairment was not taken into account.[4]
[4] CLMI Act ss 50(2)(a) and (b).
The Court is to assume that[5] the person had pleaded guilty to the charge at the earliest opportunity;[6] and there is no other option but to impose a term of imprisonment or detention.[7]
[5] CLMI Act s 50(3).
[6] CLMI Act s 50(3)(a).
[7] CLMI Act s 50(3)(b).
In considering the 'best estimate' of the period of imprisonment or detention, the Court is to proceed, as far as practicable and with the necessary modifications, to apply the procedure and legal principles applicable to a sentencing hearing,[8] including those applied by the Sentencing Act 1995 (WA).[9]
[8] The State of Western Australia v Chokolich [2024] WASC 346 (Chokolich) [50]
[9] Chokolich [62]; The State of Western Australia v Stimpson [2024] WASC 363 (Stimpson) [11]; The State of Western Australia v Djiagween [2024] WASC 389 (Djiagween) [15].
The sentence imposed must be commensurate with the seriousness of the offence.[10] The seriousness of the offence must be determined by taking into account the statutory penalty, the circumstances of the offence and any aggravating or mitigating factors.[11]
[10] Sentencing Act 1995 (WA) s 6(1).
[11] Sentencing Act 1995 (WA) ss 6(2)(a) - (d).
Although Mr Grosser is taken to have pleaded guilty at the earliest opportunity, it is not compulsory for the court to apply the maximum discount of 25%.[12] Nonetheless, I would have applied that maximum discount in the circumstances.
[12] Djiagween [16].
As said, in determining the best estimate of a period of imprisonment, the Court is not to consider Mr Grosser's mental impairment.[13] Therefore, specific deterrence is not a particular consideration for the Court in arriving at the best estimate of the sentence;[14] but rather 'run of the mill' weight to specific deterrence ought be given.
[13] CLMI Act s 50(2)(b).
[14] Stimpson [25]; The State of Western AustraliavSmith [2024] WASC 361 [100]. The Chief Justice in those cases described what he meant by 'run of the mill' weight to specific deterrence; and that is what I have done here.
In Chokolich, Quinlan CJ, in effect, concluded that notwithstanding s 90 of the Sentencing Act, the Court was not to consider a minimum non-parole period, or minimum term for a custody order in setting a limiting term.[15] No submissions have been made to the contrary and I will follow that approach. Any custody order made is to be reviewed periodically under the CLMI Act.
[15] Chokolich [93] - [95].
The purpose of the order made by this Court is not to punish Mr Grosser. Rather, the Court is to consider the protection of the community.[16] An important consideration in setting the best estimate of the period of incarceration is to consider Mr Grosser's criminal record.[17] The Court is not to consider subsequent events or circumstances.
[16] CLMI Act s 7(1)(a).
[17] Sentencing Act s 7(2)(b); Djiagween [26].
Circumstances of the charged offence
At the hearing, the State read an Amended Statement of Material Facts dated 24 September 2024 and tendered a brief of evidence prepared for the purposes of the hearing. Counsel for Mr Grosser accepted those facts for the purposes of the application and I am satisfied, beyond reasonable doubt, as to the facts contained in the Amended Statement of Material Facts
The significant features of the offending from the Amended Statement of Material Facts were as follows.
Following an argument at the house, Mr Grosser went from the lounge into the kitchen, where his mother and Mr Wilkes were.
Mr Grosser picked up a kitchen knife, which had a 20cm serrated blade and threatened his mother with the knife.
His mother punched Mr Grosser in the face and Mr Wilkes tried to pull Ms Kelly out of the way. Mr Grosser stabbed the victim, Mr Wilkes multiple times in the head and chest.
Mr Grosser later told police that he wanted to stab and kill his mother because she was going to call the police, but that Mr Wilkes moved Ms Kelly out of the way.
After he stabbed Mr Wilkes, Mr Grosser walked out of the house to a nearby park and threw the knife away as he was walking. The police attended soon after being called by Mr Grosser's mother and immediately observed a puncture wound to the victim's chest and the ground around the victim being coated in blood.
Paramedics attended to resuscitate Mr Wilkes but he was pronounced dead after arriving at Armadale Hospital. Mr Grosser was apprehended by police a short time later.
The post-mortem examination of Mr Wilkes found that the cause of death was a penetrating stab wound to the chest. The wound was to the middle of the upper chest and was a deep wound. There were also penetrating wounds to the back of Mr Wilkes' head and to the left side of his forehead. There were further superficial wounds around his face and neck.
Relevant sentencing factors
Mr Grosser's personal circumstances
At the time of the offence, Mr Grosser was 28 years old. He lived in Gosnells with his mother and Mr Wilkes. His mother and Mr Wilkes had been in a relationship for 13 years.
Mr Grosser is an indigenous man, the middle of seven children and both his parents abused alcohol and possibly other drugs while he was growing up. During school, his academic performance was low, and he has been mostly unemployed. He had a long-standing history of drug addiction and became addicted to alcohol and cannabis from 14 years old, which developed into methylamphetamine abuse from when he was 16 years old.
Mr Grosser has a significant criminal history, ranging from breach of bail, stealing and violent offending. He has been convicted of a number of serious assault charges and has been sentenced to periods of imprisonment on five separate occasions.
Seriousness of the offending
Counsel for Mr Grosser quite properly accepts that Mr Grosser's conduct was extremely serious.[18]
[18] Mr Grosser's submissions dated 24 October 2024 at page 2.
There are a number of aggravating features to the offending.
The victim was unarmed and was vulnerable to the unexpected attack because he was trying to protect Mr Grosser's mother.
He was attacked on vulnerable parts of his body.
The attack was completely unprovoked.
There was also a physical discrepancy between Mr Grosser and Mr Wilkes. Mr Grosser was 28 years old and 184 cm at the time and the victim was 53 years old and 175 cm tall.
Mr Grosser used a knife and inflicted a number of wounds to the victim. The fatal stab wound was deep, which indicates the considerable force that Mr Grosser used.
Finally, Mr Grosser made no attempt to assist Mr Wilkes after the attack.
Statutory sentence
The statutory penalty for murder is to be considered when imposing the sentence and limiting term. The relevant statutory penalty for murder is contained in s 279 of the Criminal Code and relevantly provides:
(4) A person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless –
(a) that sentence would be clearly unjust given the circumstances of the offence and the person; and
(b) the person is unlikely to be a threat to the safety of the community when released from imprisonment,
in which case, subject to subsection (5A), the person is liable to imprisonment for 20 years.
Section 279 of the Criminal Code has not changed relevantly from the date of the offence to the making of the Order on 1 May 2020, to today.
This Court finds that Mr Grosser would not have fallen into either exception provided in ss 279(4)(a) or (b) and quite properly, counsel for Mr Grosser made no submission to the contrary.
The law, then, requires that Mr Grosser, leaving aside his mental impairment, would have been sentenced to life imprisonment. So, accordingly, the best estimate as to the imprisonment that would have been imposed is life imprisonment.
As set out in para [20] above Quinlan CJ effectively held that s 90 of the Sentencing Act, which normally requires a minimum non-parole period or an order that the offender must never be released, did not apply.[19] I have proceeded on the basis, with respect, that is correct.
[19] Chokolich [95].
The role of this Court is not to punish Mr Grosser but to protect the community and to ensure that offenders with a mental impairment are provided treatment and support.[20] This limiting term imposed by this Court will be reviewed by the Tribunal.[21]
Mitigating factors
[20] Chokolich [92].
[21] CLMI Act s 66.
I accept that Mr Grosser is deemed to have pleaded guilty at the first reasonable opportunity, and I grant a 25% discount under s 9AA of the Sentencing Act.
Although Mr Grosser might have been considered to be somewhat young, at 28 years of age, it has not been submitted to me that is relevantly a mitigating factor, and I have not considered it to be so. Further, the normal mitigating factor of Mr Grosser's diagnosis of mental impairment might have been taken into account as a mitigating factor, but the CLMI Act requires that this Court not do so.
Best estimate of the sentence that would have been imposed
In taking all the matters into account, but especially having regard to s 279 of the Criminal Code, the best estimate of the sentence that would have been imposed is a term of life imprisonment.
Pursuant to the CLMI Act, the limiting term for the Custody Order made on 1 May 2020 in respect of Mr Grosser is set as the duration of life of Mr Grosser.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
7 NOVEMBER 2024
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