The State of Western Australia v Harvey
[2019] WASC 261
•19 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HARVEY [2019] WASC 261
CORAM: HALL J
HEARD: 21 JUNE 2019
DELIVERED : 19 JULY 2019
PUBLISHED : 19 JULY 2019
FILE NO/S: INS 32 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ANTHONY ROBERT HARVEY
Accused
Catchwords:
Criminal law - Murder - Sentencing - s 90 Sentencing Act - Never to be released order - Interpretation of s 90 - Meaning of 'necessary', 'community's interest in punishment and deterrence', 'relating to the offence' and 'aggravating factors' - Whether all mitigating factors are excluded, including those personal to the offender, or only those that relate to the offence
Legislation:
Criminal Code (WA), s 279
Sentencing Act 1995 (WA), s 88, s 90, s 96, s 141
Result:
Ruling made
Representation:
Counsel:
| Applicant | : | Ms A L Forrester SC |
| Accused | : | Mr S Vandongen SC |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Max Crispe |
Case(s) referred to in decision(s):
Austic v The State of Western Australia [2010] WASCA 110
Bull v R [2000] HCA 24; (2000) 201 CLR 443
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Mikhail v The State of Western Australia [2012] WASCA 200
Mitchell v The Queen [1996] HCA 45; (1996) 184 CLR 333
Mohammadi v Bethune [2018] WASCA 98
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
R v Mitchell (1994) 72 A Crim R 200
Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611
Stasinowsky v The State of Western Australia [2009] WASCA 20; (2009) 40 WAR 11
The State of Western Australia v Churchill [2015] WASCA 257
The State of Western Australia v Lee [2013] WASCA 246
The State of Western Australia v Stoeski [2016] WASCA 16
Tooheys v Commissioner of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602
HALL J:
Anthony Robert Harvey (the offender), has been convicted on his pleas of guilty of five counts of murder. The State submits that the appropriate sentence in each case is imprisonment for life with an order under s 90(1)(b) of the Sentencing Act 1995 (WA) that the offender never be released. There is a preliminary issue as to the proper interpretation of s 90, in particular what matters can be taken into account in determining whether such an order should be made.
Relevant statutory provisions
A person who is guilty of murder must be sentenced to life imprisonment unless that sentence would be clearly unjust given the circumstances of the offence and the person, and the person is unlikely to be a threat to the safety of the community when released from imprisonment.[1] If both of those factors are found to exist then the maximum penalty is one of 20 years.[2] It can be seen from this that the presumptive sentence for murder is one of life imprisonment.[3]
[1] Criminal Code (WA), s 279(4).
[2] Criminal Code (WA), s 279(4).
[3] See Austic v The State of Western Australia [2010] WASCA 110 [169]; Mikhail v The State of Western Australia [2012] WASCA 200 [16]; Western Australia, Parliamentary Debates, Legislative Assembly, 19 March 2008, 1210 (Mr J McGinty, Attorney General).
Where life imprisonment is imposed for murder a court must either set a minimum period that the offender must serve before being eligible for release on parole or order that the offender must never be released.[4] If a minimum period is imposed it must be at least 15 years where the offence occurs in the course of conduct that constitutes an aggravated home burglary or at least 10 years in any other case.[5] If an order is made that the offender never be released the effect of the order is that the offender would never become eligible for release on parole and would serve the rest of his natural life in prison.[6] The only possible exception to this is if the Governor makes a parole order in the exercise of the Royal Prerogative of Mercy.[7]
[4] Sentencing Act 1995 (WA), s 90(1).
[5] Sentencing Act 1995 (WA), s 90(1)(a).
[6] Sentencing Act 1995 (WA), s 96(3).
[7] Sentencing Act 1995 (WA), s 141.
A sentence must be imposed for each offence of murder. Where an offender is sentenced to life imprisonment that sentence is served concurrently with any other term that the offender is serving or is yet to serve.[8] It follows from this that where multiple life terms are imposed those terms, and any minimum terms set in respect of them, are served concurrently.
[8] Sentencing Act 1995 (WA), s 88(5).
The circumstances in which an order that an offender must never be released can be made and the matters that can be taken into account in deciding whether to make such an order are provided for in s 90. That section provides as follows:
90.Life imprisonment for murder, imposing
(1)A court that sentences an offender to life imprisonment for murder must either ‑
(a)set a minimum period of ‑
(i)at least 15 years, if the offence is committed by an adult offender (within the meaning given in The Criminal Code section 1(1)) in the course of conduct that constitutes an aggravated home burglary (within the meaning given in that section); or
(ii)at least 10 years, in any other case,
that the offender must serve before being eligible for release on parole; or
(b)order that the offender must never be released.
(2)Any minimum period so set begins to run when the sentence of life imprisonment begins.
(3)A court must make an order under subsection (1)(b) if it is necessary to do so in order to meet the community's interest in punishment and deterrence.
(4)In determining whether an offence is one for which an order under subsection (1)(b) is necessary, the only matters relating to the offence that are to be taken into account are ‑
(a)the circumstances of the commission of the offence; and
(b)any aggravating factors.
Part 2 div 1 of the Sentencing Act sets out the sentencing principles applicable to all matters. Insofar as is relevant, s 6 provides as follows:
6.Principles of sentencing
(1)A sentence imposed on an offender must be commensurate with the seriousness of the offence.
(2)The seriousness of an offence must be determined by taking into account ‑
(a)the statutory penalty for the offence; and
(b)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and
(c)any aggravating factors; and
(d)any mitigating factors.
(3)Subsection (1) does not prevent the reduction of a sentence because of ‑
(a)any mitigating factors; or
(b)any rule of law as to the totality of sentences.
Sections 7 and 8 provide for the meaning of the phrases 'aggravating factors' and 'mitigating factors' as used in s 6(2). Those sections provide, insofar as is relevant, as follows:
7.Aggravating factors
(1)Aggravating factors are factors which, in the court's opinion, increase the culpability of the offender.
(2)An offence is not aggravated by the fact that ‑
(a)the offender pleaded not guilty to it; or
(b)the offender has a criminal record; or
(c)a previous sentence has not achieved the purpose for which it was imposed.
8.Mitigating factors
(1)Mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
…
(4)If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.
Section 9AA provides that a sentence of imprisonment may be reduced where a person pleads guilty to recognise the benefits to the State and to any victim or witness to the offence resulting from the plea. The earlier in the proceedings such a plea is made the greater the reduction in the sentence may be. Where the sentence includes a fixed term the reduction cannot be more than 25%. That section does not apply to life sentences because life sentences are not fixed terms.[9] However, it is clear that a plea of guilty to the offence of murder, where the offender is sentenced to life imprisonment, will ordinarily result in a significant discount to the minimum non-parole period by application of common law principles.[10]
[9] See the definition of fixed term in s 9AA(1) and s 85(1).
[10] The State of Western Australia v Stoeski [2016] WASCA 16 [151] ‑ [152]; The State of Western Australia v Churchill [2015] WASCA 257 [34]; The State of Western Australia v Lee [2013] WASCA 246 [40].
The issues
The following issues have been identified:
(1)what does the word 'necessary' mean in s 90(3);
(2)what does the phrase 'the community's interest' mean in s 90(3) and how is such an interest to be determined;
(3)what does the word 'deterrence' in s 90(3) refer to that is not already covered by the reference to 'punishment'; and
(4)what matters are excluded by s 90(4) and, in this context, what do the words 'relating to the offence' mean.
The principles of statutory interpretation
The general principles of statutory construction were recently summarised by the Court of Appeal in Mohammadi v Bethune [2018] WASCA 98 [31] ‑ [36]:
Statutory construction: general principles
31.The principles of statutory construction are well known and do not require detailed exposition. Statutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context. Statutory construction, like any process of construction of an instrument, has regard to context. As Kiefel CJ, Nettle and Gordon JJ recently explained in SZTAL:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
32.The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
33.The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions.
34.Discernment of statutory purpose is particularly significant in cases, commonly encountered, where the constructional choice presented is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural'. In such a case, the choice 'turns less on linguistic fit than on evaluation of the relevant coherence of the alternatives with identified statutory objects or policies'. As we will explain later in these reasons, we think this is such a case.
35.Thus, the material provisions of the Act must be understood, if possible, as parts of a coherent whole.
36.Statutory texts enacted by the same legislature are to be construed, so far as possible, to operate in harmony and not in conflict. Where two or more statutory enactments comprise the overlapping legislative scheme, the enactments should be construed accordingly, and the court should endeavour to produce a rational, sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation (footnotes omitted).
In the present context s 18 and s 19 of the Interpretation Act 1984 (WA) are also relevant:
18.Purpose or object of written law, use of in interpretation
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
19.Extrinsic material, use of in interpretation
(1)Subject to subsection (3), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material ‑
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or
(b)to determine the meaning of the provision when ‑
(i)the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.
(2)Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of a written law includes ‑
(a)all matters not forming part of the written law that are set out in the document containing the text of the written law as printed by the Government Printer; and
(b)any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the time when the provision was enacted; and
(c)any relevant report of a committee of Parliament or of either House of Parliament that was made to Parliament or that House of Parliament before the time when the provision was enacted; and
(d)any treaty or other international agreement that is referred to in the written law; and
(e)any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister before the time when the provision was enacted; and
(f) the speech made to a House of Parliament by a Minister on the occasion of the moving of a motion that the Bill containing the provision be read a second time in that House; and
(g)any document (whether or not a document to which a preceding paragraph applies) that is declared by the written law to be a relevant document for the purposes of this section; and
(h)any relevant material in any official record of proceedings in either House of Parliament.
(3)In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to ‑
(a)the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; and
(b)the need to avoid prolonging legal or other proceedings without compensating advantage.
The historical context
The legislative history of the penalty provisions relating to the offence of murder was summarised by Steytler P and McLure JA in Stasinowsky v The State of Western Australia [2009] WASCA 20; (2009) 40 WAR 11 [19] ‑ [28]. Relevantly, prior to 1984 the offence of wilful murder (that is murdering with an intent to kill) carried the death penalty.[11] Capital punishment was abolished in 1984 and the law was amended to provide for a mandatory punishment in the case of an adult of either strict security life imprisonment or life imprisonment.[12] The difference related to the minimum period which the offender could be required to serve before being eligible to be considered for parole, between 20 and 30 years in the case of strict security life imprisonment.[13]
[11] Acts Amendment (Abolition of Capital Punishment) Act 1984 (WA), s 20.
[12] Acts Amendment (Abolition of Capital Punishment) Act 1984 (WA), s 20.
[13] Initially, 20 years was the minimum period, and this was subsequently amended to between 20 and 30 years.
In 1987 s 40D(1) of the Offenders Probation and Parole Act 1963 (WA) was introduced.[14] This section, as further amended in 1988[15], 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. Subsection 40D(2a) empowered the court, if it considered it 'appropriate' to do so, to order that a person sentenced to a term of strict security life imprisonment not to be eligible for parole. The provision did not stipulate the circumstances in which the court could find that such an order was appropriate, nor did it set out or limit the matters that could be taken into account in deciding whether to make an order.
[14] Acts Amendment (Imprisonment and Parole) Act 1987 (WA), s 12.
[15] Criminal Law Amendment Act 1988 (WA), s 49. Note also that the title of the Offenders Probation and Parole Act was later changed to the Offenders Community Corrections Act, Community Corrections Legislation Amendment Act 1990 (WA), s 18.
Section 40D was considered by the High Court in Mitchell v The Queen [1996] HCA 45; (1996) 184 CLR 333. In that case the sentencing judge had declined to make an order under s 40D(2a) and an appeal against that decision by the prosecution had been allowed by the Court of Criminal Appeal.[16] The High Court restored the original decision and in doing so said that the sentencing judge had been correct to have regard to the potential for rehabilitation of the appellant.[17] In that case the appellant had taken illicit drugs prior to committing the offences and reports available to the sentencing judge stated that the appellant was a low risk of reoffending if he remained abstinent from drugs.[18] In these circumstances the sentencing judge referred to the difficulty of prognosticating as to the suitability of the appellant to be released on parole some 20 years or more into the future.[19] The High Court said that the sentencing judge was correct to have regard to the possibility of the later emergence of facts which were presently unascertainable but may become apparent 20 years or more into the future and which might indicate that the appellant was no longer a danger to the public and was otherwise deserving of a release on licence.[20]
[16] R v Mitchell (1994) 72 A Crim R 200.
[17] Mitchell v R [1996] HCA 45; (1996) 184 CLR 333, 346.
[18] Mitchell v R, 342.
[19] Mitchell v R, 342.
[20] Mitchell v R, 347.
The Sentencing Act came into operation shortly after the decision in Mitchell and contained a section (then numbered 91) which was in substantially similar terms to s 40D. As at that time that section provided as follows:
Imposing strict security life imprisonment
91.(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 years 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 life security imprisonment begins.
(3)A court that sentences an offender to strict security life imprisonment may, if it decides it is appropriate to do so, order that the offender is not to be paroled.
In 1998 s 91 was amended. In particular, significant changes were made to s 91(3) and s 91(4). The section as amended provided 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 ‑
(a)the circumstances of the commission of the offence; and
(b)any aggravating factors.
In Stasinowsky Steytler P and McLure JA noted that it seemed that s 91(3) and s 91(4) as amended in 1998 were introduced to overcome what had been said in Mitchell.[21] Their honours then said that:[22]
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 between 20 and 30 years will consist of offences other than those in the most serious category.
[21] Stasinowsky [28].
[22] Stasinowsky [28].
The section at the time still referred to strict security life imprisonment. On 1 August 2008 the offence of wilful murder was abolished as was the penalty of strict security life imprisonment.[23] The law now provides for a single offence of murder punishable by life imprisonment except in the circumstances referred to earlier. Murder will be committed where there is an intent to kill or an intent to cause an injury that is likely to endanger life.[24] There is now no upper limit on the minimum term that can be imposed. Section 91 was amended to reflect those changes and the section was renumbered s 90.[25]
[23] Criminal Law Amendment (Homicide) Act 2008, s 10 and s 19.
[24] Criminal Code, s 279(1)(a) and (b).
[25] Criminal Law Amendment (Homicide) Act 2008 (WA), s 19.
The approach to sentencing for murder offences under the existing provisions was set out in detail by Buss JA (as he then was) in Austic at [153] ‑ [176]. Relevantly to the present case, his Honour listed the considerations referred to in Stasinowsky[26], which included that in the worst category[27] of cases a sentence of life imprisonment for the whole of the offender's life must be ordered and that youth, whilst material to other aspects of sentencing, is excluded by s 91(4) (as it then was). In particular in Stasinowsky, Steytler P and McLure JA (as she then was) said:
(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.
[26] See Stasinowsky [86].
[27] This should be considered in light of the High Court's recent decision R v Kilic [2016] HCA 48; (2016) 259 CLR 256 in which the Full Court at [17] ‑ [20] cautioned against use of the phrase 'worst category'.
The extrinsic material
As can be seen from the history, the relevant amendments for present purposes are those made in 1998. Those amendments had a complicated passage through Parliament. They originally formed part of the Criminal Law Amendment Bill which was introduced into the Legislative Council on 11 November 1997. In the second reading speech in relation to that Bill the Attorney General said:[28]
In 1988, the Western Australian Parliament, through the Criminal Law Amendment Act, enabled a sentencing judge when imposing a sentence of strict security life imprisonment for wilful murder to make a 'natural life order' to the effect that the offender should never be released on parole. These legislative provisions have come under scrutiny in the sentencing of William Patrick Mitchell, the Greenough murderer.
Pursuant to the then provisions of the Criminal Code, the sentencing judge imposed a sentence of strict security life imprisonment, and in exercising discretion on whether to grant eligibility for parole, the judge said that looking 20 years ahead he could not say that the defendant would not benefit from parole. His understanding was that the decision as to parole was related to the benefit it would provide the defendant rather than as an element of punishment. By a majority decision, the Western Australian Court of Criminal Appeal allowed a crown appeal and ordered that Mitchell should never be eligible for parole. However, a unanimous High Court decision in March 1996 set this order aside and would not allow the Court of Appeal to substitute its views. The legislative provisions of the Criminal Code in respect of life imprisonment have now been transferred to the Sentencing Act, which came into effect in November 1996.
The issues raised by the High Court in the Mitchell case warrant an amendment to the statute in order to reinforce the punishment nature of the statutory provisions, and to make the task of the trial judge clearer in the event that such exceptionally serious crime as that of Mitchell's is again committed in Western Australia. The proposed provisions require that a court should not have regard to the factors that would ordinarily be used for determining eligibility for parole. Rather the provisions have been structured so that the court must have regard to the community's interest in punishment, deterrence and retribution.
[28] Western Australia, Parliamentary Debates, Legislative Council, 11 November 1997, 7465 ‑ 7466 (Mr P Foss, Attorney General). A similar second reading speech was made when the Bill was introduced into the Legislative Assembly ‑ see Western Australia, Parliamentary Debates, Legislative Assembly, 25 June 1998, 4777 ‑ 4778 (Mr K Prince).
Following its introduction the Bill was amended, split into two[29] and referred to the Standing Committee on Legislation. The Committee produced a report in May of 1998 which considered, amongst other things, the proposed amendment to s 91 of the Sentencing Act.[30] The Bill proposed, by clause 6, to repeal s 91(3) and replace it with subsections which substantially reflect the existing provisions, except that the proposed s 91(3) also included reference to retribution.
[29] Western Australia, Parliamentary Debates, Legislative Council, 12 March 1998, 506 ‑ 510.
[30] Standing Committee on Legislation, Legislative Council of Western Australia, Criminal Law Amendment Bill (No. 1) 1998, [6] (Standing Committee report).
In its report the Committee stated that 'clause 6 of the Bill seeks to overcome by legislation the decision of the High Court in Mitchell v The Queen (1996) 184 CLR 333 which reversed a decision of the Court of Criminal Appeal of the Western Australia Supreme Court in R v Mitchell (1994) 72 A Crim R 200'.[31] The Committee said that the amendment was seeking to rectify the position by ensuring that a judge must solely have regard to the circumstances of the commission of the offence and any aggravating factors in determining whether an offence is such that a sentence of strict security life imprisonment without eligibility for parole should be granted.[32] The Committee then said:[33]
The expressed intention of clause 6 of the Bill as conveyed by the Attorney General to the Committee is to remove from consideration by the trial judge factors which would ordinarily be used for determining eligibility for parole and limit the trial judge to consideration of factors bearing on the community's interest in retribution, punishment and deterrence. Put at its simplest, the trial judge is to disregard factors mitigating in favour of the possibility of parole (such as the rehabilitation of the accused) when sentencing.
[31] Standing Committee report [6.3].
[32] Standing Committee report [6.13].
[33] Standing Committee report [6.14].
In its recommendations the Committee queried whether the proposed wording of s 91(4) was the most effective way to achieve the intended outcome:[34]
If the intention of proposed section 91(4) of the Sentencing Act 1995 is to restrict the considerations which a sentencing judge must have regard to when sentencing an offender to strict security life imprisonment, it appears that this restriction operates on the offence itself and a sentencing judge will still be obliged to consider a range of factors in determining whether the offender should be sentenced under the proposed section 91(3) taking into account what the sentencing judge considers necessary to meet the community's interest in retribution, punishment and deterrence. The Sentencing Act 1995 is silent on what factors the sentencing judge should consider in determining what is in the 'community's interest'. For example, uncontested evidence that in 20 years time an offender may no longer be a danger to the community may justify a finding by the trial judge that the community's interest is not served by incarcerating for life an offender who may no longer present a danger to the community.
[34] Standing Committee report, [6.15] ‑ [6.16].
The Committee made two recommendations. The first was to remove the word 'retribution' in s 91(3) because it connoted a concept of vengeance that was considered to be inappropriate in a statute dealing with sentencing.[35] The second recommendation was to vary the wording of subsections (3) and (4) such that they would read as follows:[36]
(3)A court that sentences an offender to strict security life imprisonment must, if it decides it is appropriate to do so, order that the offender is not to be paroled.
(4)In determining whether it is appropriate to order that the offender is not to be paroled, the sole matters that a court must have regard to are:
(a)the circumstance that the commission of the offence; and
(b)any aggravating factors.
[35] Standing Committee report, [6.17].
[36] Standing Committee report, [6.18].
The Committee's recommendation in respect of the deletion of 'retribution' from subsection (3) was adopted. However, the recommendation regarding the wording of sub-sections (3) and (4) was not adopted. It is not clear from the debates in Parliament why the second recommendation was not adopted.
It was noted in the course of debate in the Legislative Assembly that mitigating factors such as whether the offender had pleaded guilty would be excluded from consideration.[37] A question was raised as to whether this was a good thing, given that it may mean that those who committed the worst offences would have no incentive to plead guilty. This is, in fact, the opposite of what the Committee was concerned about. The Committee was concerned that the wording left it unclear whether personal factors were excluded and proposed a wording that would clearly exclude such factors. The concern in the debate was that there might be an argument for not excluding personal factors. The response from the responsible Minister was that cases that fell within these provisions were rare and exceptional and that in such cases the protection of the public was the overriding consideration.[38] The implication appeared to be that personal factors were intended to be excluded and that that was achieved by the wording as it stood.
[37] Western Australia, Parliamentary Debates, Legislative Assembly, 8 September 1998, 810, 826.
[38] Western Australia, Parliamentary Debates, Legislative Assembly, 8 September 1998, 810.
Purpose
The evident purpose of s 90 is to provide a sentencing regime, when read with s 278 of the Criminal Code (WA), for offences of murder. Where life imprisonment is imposed for such an offence that regime differs from that which applies to fixed term sentences, in that it is not simply a question of whether an offender should be eligible for parole. Rather the court must either set a minimum term or order that the offender never be released. The choice is not a discretionary one. This is a power the exercise of which depends on a finding of fact as to the necessity of making a never to be released order. If it is necessary to make such an order to meet the community's interest in punishment and deterrence, then it must be made. Discretion would only arise if the court was not satisfied that such an order was necessary. There would then be an exercise of discretion as to the length of the minimum term. That is not to deny that the decision as to whether an order should be made is an evaluative one.
The purpose of s 90(4) is clearly to limit the matters that the court can take into account in determining whether a never to be released order is necessary. That is confirmed by the use of the word 'only'. It is also confirmed by the legislative history and the second reading speech. The purpose was to confine the range of factors that had been open to be considered under the previously existing provisions. In particular, it was a legislative response to Mitchell, intended to ensure that matters relevant to whether the offender would at some future point be suitable for parole were excluded.
Section 90 provides for the making of a never to be released order in cases where it is necessary to do so to meet the interests referred to. In making such provision it was obviously contemplated that there would be such cases and that the necessity for making an order would be capable of being established. On the other hand, the extrinsic material supports a conclusion that such cases were expected to be rare and exceptional.[39]
[39] Western Australia, Parliamentary Debates, Legislative Assembly, 8 September 1998, 810.
Section 90(3) – text and context – 'necessary' and the 'community's interest'
There are several elements to s 90(3). First, the use of the word 'necessary' imports the idea of a requirement or something which is essential to meet the stated objectives. The ordinary meaning of 'necessary' is (when used as an adjective) a thing 'that cannot be dispensed with or done without; requisite, essential, needful … of an action: requiring to be done; that must be done.'[40] In context this must mean that a life sentence with a never to be released order is required to meet the community's interest in punishment and deterrence. The corollary is that no life sentence with a minimum term, however long, would meet those interests.
[40] Shorter Oxford English Dictionary (5th ed, 2002) 'necessary' (adj, def 1, 3).
Secondly, the necessity for the order must be determined by making an assessment of the community's interest in punishment and deterrence. The approach must be to:
1.Determine what the community's interest in punishment and deterrence is (in relation to a particular case); and then
2.Determine whether an order that the offender never be released is necessary to meet those interests.
The first part of this exercise raises the question of what the phrase 'community's interest' means and how the court is to determine what that interest is. The phrase is not defined, explained or used elsewhere in the Sentencing Act.
The State submits that it is not entirely clear what is meant by the phrase 'the community's interest in punishment and deterrence'. However it is submitted that the community is entitled to expect that courts will appropriately punish offenders and that there will be some, although rare, cases in which the community's interest in punishment will require a sentence which is for the rest of the offender's natural life. The State also submits that the community has a legitimate interest and expectation that the courts will, when confronted with offences of domestic violence of the most extreme kind, act decisively to condemn such conduct in the most pronounced manner in order to deter others from contemplating such acts.[41]
[41] State's submissions filed 29 May 2019 [26] ‑ [27].
On behalf of the offender it is submitted that the community's interest in punishment and deterrence must be an interest that is rational, reasonable and adequately informed about the established principles relating to punishment and deterrence. The remarks of Steytler P in Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [66] in relation to the fair-minded person test in s 31A of the Evidence Act are said to be a useful analogy.[42]
[42] Offender's submissions filed 21 June 2019 [36].
The ordinary meaning of the word 'community' is (when used in relation to a body of individuals) 'an organized political, municipal, or social body of people living in the same locality; a body of people having religion, profession, etc, in common'.[43] In context this must mean the community consisting of the people of Western Australia.
[43] Shorter Oxford English Dictionary (5th ed, 2002) 'community' (def 2).
The ordinary meaning of the word 'interest' is (when used as a noun) 'the fact or relation of having a share or concern in, or a right to, something … a thing that is of some importance to a person, company, state, etc … a state of feeling in which one wishes to pay particular attention to a thing or person; (a feeling of) curiosity or concern'.[44] In context, and when incorporated into the composite phrase 'community's interest', this must refer to the concern that the community has that penalties imposed on offenders will be fair and appropriate and will achieve the objectives of deterrence.
[44] Shorter Oxford English Dictionary (5th ed, 2002) 'interest' (def 1, 6, 8).
As to 'punishment and deterrence', the ordinary meaning of those words is clear. Punishment refers to the penalty imposed for an offence. Deterrence refers to the effect that punishment can have on discouraging the individual (specific deterrence) or other people (general deterrence) from committing offences of the same type.
One of the objects of punishment is deterrence, both general and specific. It is, therefore, not clear what the addition of the word deterrence in subsection (3) is intended to achieve, other than to ensure that that element of punishment is given particular emphasis. In regard to specific deterrence an order that an offender never be released does not achieve specific deterrence, rather it incapacitates the offender (at least as far as the community is concerned). There can also be a danger that an offender who is ordered never to be released will become a greater management problem in the prison system because he has no incentive to behave well. In that sense specific deterrence is not necessarily served by an order that an offender must never be released. On the other hand, it may be that an offender is at such high risk of reoffending that no sentence with a minimum term of however long a duration could achieve the objective of specific deterrence. As regards general deterrence, it could be argued that it would be very difficult to measure what additional deterrent value is delivered by an order that an offender never be released as compared to an order that an offender be sentenced to life imprisonment with a very lengthy minimum term. On the other hand, and assuming that deterrence can have an operative effect in some cases, the imposition of the heaviest penalty that is available under the law must have an admonitory quality. In my view all of these considerations are encompassed by the reference to deterrence.
Section 90(3) ‑ extrinsic material
The extrinsic material offers little assistance in the interpretation of s 90(3). There was reference in the debates to the difficulty that there might be in determining what the community's interest was,[45] but nothing to suggest that the words used had anything other than their ordinary meaning.
[45] Western Australia, Parliamentary Debates, Legislative Assembly, 8 September 1998, 811.
What can be discerned from the extrinsic material is that it was envisaged that cases falling within the category requiring a never to be released order would be exceptional.[46] It is also apparent that this was a response to Mitchell and that case was one that was considered as falling within that exceptional category.[47] That provides some indication of the level of seriousness that is required for a case to qualify for the category.
[46] Western Australia, Parliamentary Debates, Legislative Assembly, 8 September 1998, 810.
[47] Western Australia, Parliamentary Debates, Legislative Assembly, 8 September 1998, 839.
Section 90(3) ‑ conclusions
I accept that the community has a legitimate interest in the disposition of criminal matters. That interest is that offenders will be properly punished and that penalties will act as a deterrent and thereby serve to protect members of the community from further offences. Proper punishment must be punishment that is proportional to the magnitude of the offending conduct.
It cannot, however, be intended that a sentencing judge in any particular case is required to make a prediction of what the community expects to be imposed by way of sentence. Such a task would be an impossible one. Rather, in my view, the community's interest is, in effect, synonymous with the public interest. What a sentencing judge is required to do is make an objective assessment of whether the public interest in punishment and deterrence in a particular case, having regard to the circumstances of the offence and any aggravating factors, can be met by any sentence other than one of life imprisonment with an order that the offender never be released.
It is important to acknowledge that in making provision for such an order the legislature contemplated that there would be cases, although they may be rare and exceptional, that would necessitate such an order. That is to say that there would be cases that were so serious having regard to the circumstances of the offence and any aggravating factors that a life sentence with a minimum term, of whatever length, would not meet the community's interest in punishment and deterrence. Whilst no limitations were placed on what the characteristics of such case would be, the extrinsic material makes clear that a case like that of Mitchell was seen as being within that category.
Section 90(4) ‑ text and context ‑ excluded factors
The real difficulty in interpreting s 90 is with s 90(4). The use of the word 'only' in this subsection clearly conveys that the effect of the subsection is to reduce the matters that would otherwise be taken into account in sentencing.
The matters that are taken into account in sentencing are listed in s 6. It is instructive that the words used in s 90(4)(a) and s 90(4)(b) almost precisely adopt the words of two of the matters referred to in s 6(1).[48] It can be assumed from this that those words have the same meaning as they do when used in s 6 and, in particular, that the phrase 'aggravating factors' in s 90(4)(b) is to be read consistently with s 7. It can also be assumed that the intention was to exclude the other factors, being the statutory maximum penalty and mitigating factors. The exclusion of the maximum penalty is understandable in a context where the question is whether the offender should never be released. The real issue is what is the effect of excluding mitigating factors from the list of matters in s 90(4)?
[48] See Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611, 618.
What complicates interpretation is the incorporation of the words 'relating to the offence'. If those words were not included interpretation would be a relatively simple matter. However, it is usual to assume that all words in a section have some work to do. That is, that the inclusion of those words serves some purpose.[49]
[49] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [74].
It is usual to divide relevant matters on sentence into those that relate to the offence and those that relate to the offender. That is, those that relate to the objective circumstances of the offence and those that relate to the personal circumstances of the offender. This distinction is true of both aggravating and mitigating factors. An example of a mitigating factor that relates to the offence is whether the offender was provoked. An example of a mitigating factor that relates to the offender is whether the offender has pleaded guilty. An example of an aggravating factor that relates to the offence is whether planning or premeditation was involved. An example of an aggravating factor that relates to the offender is whether the offence was committed whilst the offender was on bail or parole.
A question then arises as to whether in incorporating the words 'relating to the offence' the legislature intended to draw this distinction. If so, then does s 90(4) only restrict matters that relate to the offence? That is, does it only exclude mitigating factors that relate to the offence, but not mitigating factors that are personal to the offender? On that interpretation it would remain possible for a sentencing judge to take into account matters that relate to the offender personally, such as a plea of guilty.
On the other hand it may be that the phrase 'relating to the offence' was not intended to draw any distinction between objective and personal factors. It is possible that the words were intended to refer to all matters relevant to the sentencing of a particular accused. If so, then the exclusion of 'mitigating factors' from the list may have the effect of excluding matters that relate to the offender personally, such as a plea of guilty. In this regard it must be recognized that the words 'relating to' are usually words that are taken to have a wide scope.[50]
[50] See Tooheys v Commissioner of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602, 620; Bull v R [2000] HCA 24; (2000) 201 CLR 443 [106].
There is another potential issue which relates to the fact that the four factors in s 6(2) are not all self-contained. Some circumstances of the commission of the offence may also be aggravating or mitigating factors. Is it the intention of s 90(4) to exclude all mitigating factors or to only exclude those mitigating factors that are not otherwise part of the circumstances of the commission of the offence?
In my view there are three possible interpretations[51] of s 90(4).
(1)That all mitigating factors are excluded;
(2)That only those mitigating factors that relate to the offence are excluded; or
(3)That only those mitigating factors that either relate to the offence or are not part of the circumstances of the offence are excluded.
[51] There is no scope for a fourth possible interpretation, namely that only those mitigating factors that are not part of the circumstances of the offence are excluded because that would be inconsistent with the broad meaning of 'relating to the offence' referred to in [48].
It should be first noted that s 90(4) does not expressly refer to the exclusion of any factors. Rather it limits the factors that can be taken into account. The issue is determining the boundaries of those factors. That is, what is and is not encompassed by them. Factors which fall outside those boundaries are impliedly excluded.
The next important consideration is the context. An interpretation should be favoured which ensures that s 90(4) is consistent with the other provisions of the Act.[52] As noted earlier, the phrases 'mitigating factors' and 'aggravating factors' are defined in s 7 and s 8. Those sections draw no distinction between factors that relate to the offence and those that relate to the offender. This favours an interpretation that the omission of mitigating factors from s 90(4) was intended to exclude all mitigating factors. Further, the inclusion of aggravating factors would, consistently with s 7, include all aggravating factors. There would then be an inconsistency between 'any aggravating factors' and 'matters relating to the offence' if the latter phrase was used in the restrictive way referred to earlier. It would be inconsistent with s 7 for the phrase 'any aggravating factors' when referred to in s 90(4) to only include those aggravating factors that relate to the offence rather than to both the offence and the offender.
[52] Project Blue Sky [69].
As to whether mitigating factors that are part of the circumstances of the offence can be taken into account, the context is that s 6 draws a distinction between these two matters. There is an important consequence of a matter being characterized as a mitigating factor; that is, if such a factor is contested by the prosecution the onus is on the offender to establish it on the balance of probabilities. Thus it can be inferred that mitigating factors are those that the offender would rely on (because they decrease his culpability or decrease the extent which he should be punished). This does not mean that any circumstances of the offence are excluded, but it does favour a conclusion that this phrase refers to the objective circumstances of the offence.
Accordingly, the context favours the first interpretation referred to above, namely that all mitigating factors are excluded.
Section 90(4) ‑ extrinsic material
The first interpretation also accords with the intentions of Parliament. It is evident from the second reading speech and the proceedings in Parliament that it was intended that all mitigating factors would be excluded.[53] There is nothing to suggest that a distinction was being drawn between mitigating factors that relate to the offence as opposed to the offender personally. If the words 'relating to the offence' mean all factors relevant to sentencing then matters like a plea of guilty, prior good character, prospects of rehabilitation and youth are excluded. Whilst that is a seriously adverse consequence for the offender, and not one that should reached without good grounds, the views expressed in Parliament were that there was a rare category of case where the factual circumstances and aggravating features were so serious that it was appropriate to exclude mitigating factors.[54] There may be very good policy reasons why pleas of guilty should be encouraged, but that does not mean that it is not open to the legislature to exclude that factor if it considers it appropriate to do so.
[53] Western Australia, Parliamentary Debates, Legislative Assembly, 25 June 1998, 4778; Western Australia, Parliamentary Debates, Legislative Assembly, 8 September 1998, 810, 839.
[54] Western Australia, Parliamentary Debates, Legislative Assembly, 8 September 1998, 810, 839.
It is true that much of the focus in Parliament seemed to be on factors that were relevant to the prospects of parole at some future time.[55] This would relate to some personal factors (like youth and rehabilitation) but would not necessarily exclude others (like a guilty plea, which has utilitarian benefits that are quite independent of remorse and rehabilitation). However, that focus was due to the particular facts of the Mitchell case and the factors that were critical to the decision of the sentencing judge in that case not to make a never to be released order. In any event that focus does not really assist in interpretation, because it is not a question of what personal mitigating factors are excluded – either personal factors are excluded entirely or they are not, there is no room for a middle ground. Furthermore, when the issue of whether a plea of guilty would be an excluded matter was raised in debate the assumption was that it would be excluded.[56]
[55] Western Australia, Parliamentary Debates, Legislative Assembly, 8 September 1998, 810, 839.
[56] Western Australia, Parliamentary Debates, Legislative Assembly, 8 September 1998, 810.
It is also relevant to take into account that it is abundantly clear that one thing that it was intended to exclude was personal factors relevant to parole, such as the prospects for rehabilitation. If the words 'relating to the offence' had a narrow meaning the effect would be that the personal factors that Parliament was concerned to exclude would not be excluded. Such an interpretation would defeat the objective of the legislation.
The Committee report recognised the lack of clarity of the words used in s 90(4) and suggested an alternative form of words.[57] Had this recommendation been adopted there would be no issue as to the meaning. However, there is no explanation for why the recommendation was not adopted. It cannot be assumed that Parliament accepted that there was a problem and was content to leave an ambiguity for resolution by the Courts. The only real utility of the report is that it confirms that there was a concern about the clarity of the wording and that the intention was to exclude all mitigating factors.
[57] Standing Committee report [6.18].
Section 90(4) ‑ conclusions
The text of s 90(4) is unclear as to whether all mitigating factors are excluded. However, the context and the extrinsic material favour such an interpretation. In particular, that outcome is supported by the deliberate exclusion of mitigating factors from the list of relevant matters that would otherwise apply under s 6.
It is also relevant to take into account that the purpose of the section was to limit the factors that could be taken into account. If mitigating factors that either form part of the circumstances of the offence or do not relate to the offence can be taken into account then very few (if any) factors would be excluded. This would be antithetical to the evident purpose. There is also no obvious reason to distinguish between mitigating factors that relate to the offence (for example provocation) and those that do not (for example a plea of guilty).
For the above reasons I am of the view that the circumstances of the offence as referred to in s 90(4)(a) must mean the objective circumstances (without ascribing any specific mitigatory value to any of them), that is, the facts as stated and admitted. The words 'relating to the offence' are not intended to be used to distinguish matters that relate to the offender personally but are used in the broad sense, that is, they refer to all matters that relate to the sentencing of a particular offender. This is consistent with use of the phrase 'aggravating factors', which must be taken to refer to all aggravating factors whether they relate to the offender or the offence.
The practical consequence is that all mitigating factors whether personal or not are excluded. This means that a plea of guilty, youth, prior good character, cooperation with the police and the prospects for rehabilitation are all excluded by s 90(1)(b). That is not to say that those factors will not become relevant if the court decides that it is not necessary to make a never to be released order. If it is not necessary then those factors would be relevant in the ordinary sentencing exercise as mitigating factors to be taken into account in assessing the seriousness of the offence under s 6.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AL
Associate to the Honourable Justice Hall18 JULY 2019
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