The State of Western Australia v Hillier

[2008] WASCA 184

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- HILLIER [2008] WASCA 184

CORAM:   STEYTLER P

WHEELER JA
MILLER JA

HEARD:   5 AUGUST 2008

DELIVERED          :   2 SEPTEMBER 2008

FILE NO/S:   CACR 164 of 2007

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

BJ TED HILLIER
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :McKECHNIE J

File No  :INS 204 of 2006

Catchwords:

Criminal law - Sentencing - State appeal against sentence - Attempted murder - Whether sentence of 5 years 2 months' imprisonment manifestly inadequate - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 41(4)(b)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeal allowed

Category:    D

Representation:

Counsel:

Appellant:     Mr J A Scholz

Respondent:     Mr S B Watters

Solicitors:

Appellant:     Director of Public Prosecutions (WA)

Respondent:     Young & Young

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

Aldridge v The Queen (Unreported, WASCA, Library No 980206, 23 April 1998)

Bell v The Queen (1992) 62 A Crim R 66

Byfield v The Queen [2002] WASCA 260; (2002) 133 A Crim R 307

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

Lawson v The Queen (Unreported, WASCA, Library No 940439, 24 August 1994)

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

R v Kerr (Unreported, WASCA, Library No 970402, 15 August 1997)

The State of Western Australia v Houston [2005] WASCA 167

The State of Western Australia v Jeffries [2007] WASCA 255

The State of Western Australia v Richards [2008] WASCA 134

1. STEYTLER P:  On 10 December 2007 the respondent was convicted of attempted murder.  He was sentenced to a term of 5 years and 2 months' imprisonment and declared eligible for parole.  The State appeals against that sentence upon the ground that it is manifestly inadequate. 

The offending behaviour

1. The respondent had been married to the complainant for about two years at the time of the offence.  They had a son aged 21 months.  The complainant had another child from a previous relationship, a girl aged 14.  The family lived together in Collie.

2. On the evening of Monday 21 August 2006, the complainant was in bed, asleep, with the 21‑month‑old child.  The respondent stayed up, watching television.  A number of things had happened that had affected his mood.  He had earlier learned that his mother had been diagnosed with a brain tumour, that his grandmother was very ill and that his grandfather was to undergo a medical procedure.  The respondent and the complainant had been arguing over the previous week (the respondent later told police that some things had 'been building up a long time').  Finally, the respondent had, that day, been told (wrongly, as it turned out) that his step‑daughter was pregnant.  

3. The respondent drank alcohol that evening.  The evidence was unclear as to how much alcohol he drank (and when he drank it).  He later claimed to have had three glasses of wine, the last of these having been drunk at about 5.00 pm.  However, it is apparent from the complainant's deposition (which was incorporated into the State's statement of facts) that the respondent had been drinking heavily in the week preceding 21 August 2006.  The complainant said that, when the respondent was drinking, he behaved badly. 

4. After watching television for a while, the respondent got up at around 10.00 pm, went to the kitchen, and armed himself with a knife.  This was 24.5 cm long and had a 13 cm blade.  He went to the bedroom, where his wife was asleep.  The child had by then been placed in another room.  He placed a pillow over the complainant's head and stabbed her twice, once in the right eye socket and once in the left side of her neck.  The wound to the neck was 7 cm long, 8 cm wide and 7 cm deep.  It was serious enough to be life threatening.  The knife had just missed the complainant's jugular vein and carotid vessels.  Had those vessels been severed, it was highly likely that the complainant would have died.  The wound to the eye socket involved a deep laceration extending into the bone area of the eye.  Fortunately, the eye itself was not penetrated.  The force of the stabbing was such that the knife blade was bent. 

5. After she had been stabbed, the complainant screamed out to the respondent and began to struggle with him.  The respondent continued his attack, which became more frenzied and vicious.  He placed a pillow and blanket over the complaint's face in what appears to have been an attempt to suffocate her as she tried to get away from him.  During the course of the struggle, both fell off the bed.  The respondent put his hands around the complainant's throat, trying to strangle her.  He tried to force the complainant's head under the bed.  At one point he held her head while he attempted to twist it.  During the attack, the respondent made angry growling noises and twice used the word 'Satan'.  When she was about to give up her resistance, having lost her strength, the respondent stopped his attack and ran from the house.

6. When she heard the attack, the complainant's daughter telephoned her grandparents (the complainant's parents).  The complainant's father drove to the house.  He arrived as the respondent ran from the house.  The respondent ran to a telephone box and made two triple 0 calls.  In the first of these, he said, 'It's a murder'.  He identified himself and said that he had 'accidentally' killed his wife.  In the second call, the respondent asked to be picked up as soon as possible.  He gave his location. 

7. The respondent was interviewed by police the next morning.  He admitted having stabbed the complainant, but said that he could not remember what he was thinking when he did so.  However, as I have mentioned, he told his interviewers that some things had 'been building up a long time'.  He also said, of events earlier in the evening of the stabbing:

   … she [the complainant] started getting angry at me for my daughter, the way our daughter getting [sic] … pregnant at such a young age and … then yeah it just - she kept … telling me that she was just going to leave and not be able to see my son ever again [sic] and its something that means more than the world to me.

8. Extraordinarily, the only lasting physical injury that has been sustained by the complainant is double vision.

The respondent's circumstances

1. The respondent was 27 years old at the time of the offence.  He had, until then, lived a blameless life.  He was described as a hard worker, a good provider and a good father and husband.  The complainant's daughter said that he was a 'loving person', 'a good dad', and a 'kind, gentle, decent person'.  There was no history of violence between the respondent and the complainant.

2. Between 25 August 2006 and 22 September 2006, the respondent was placed under the care of a psychiatrist, Dr Victoria Pascu, at the Frankland Centre of the State Forensic Mental Health Service.  Later, at the request of his solicitors he was interviewed by Dr Stephen Proud, a consultant psychiatrist, on 14 June 2007.  There are two reports from Dr Proud and one from Dr Pascu. 

3. Dr Proud's first report is dated 21 June 2007.  In it, he says that the respondent told him that the complainant had threatened to leave him on a number of occasions, although he had not believed that she would do so.  Five weeks prior to the offence, the respondent had been offered a job in Melbourne and was considering moving there.  The complainant threatened to leave, as she did not want to go to Melbourne. 

4. When he came to describe the offence, the respondent could give Dr Proud only a vague account of what had taken place.  Dr Proud found it difficult to make sense of what had occurred.  He raised three possible hypotheses.  The first is that the respondent had had an abnormal reaction to alcohol.  The second is that his behaviour was a product of a combination of alcohol and sleep disturbance.  The third is that the respondent's behaviour was 'the result of issues of repressed anger and violence of which he [was] psychodynamically unaware'.  Dr Proud went on to say:

   To be succinct, [the respondent] was either suffering from abnormal behaviour during alcohol intoxication or parasomnia with complex automatic behaviours, or else he had no mental illness at all and his actions were the result of unconscious psychodynamic issues of which he has a poor understanding, perhaps precipitated by the stress he was under and the aggression towards his wife over the issue with his stepdaughter.

   Dr Proud suggested that a sleep study be conducted in order to see whether the respondent had abnormal electrical activity whilst asleep.

5. The respondent subsequently underwent a sleep study.  In his second report, Dr Proud said that the polysomnographic finding was normal (although he mentioned that it was conducted after the respondent had consumed the equivalent of only one standard drink of alcohol).  Dr Proud reached the following conclusion:

   Overall, to summarise, the polysomnographic report was normal but this was performed at a low level of alcohol consumption and therefore does not support the proposition that [the respondent] had an abnormal mental state due to alcohol consumption and sleep at the time of his actions, but neither does it refute that possibility.

   Further tests would need to be conducted to refute that possibility and a polysomnographic test would have to be repeated at higher levels of alcohol consumption, possibly around 10 standard drinks of alcohol, to see if there are any abnormalities at that level. 

6. There is no evidence whether or not any subsequent test was conducted.  Moreover, the appellant's own evidence was that he had consumed significantly less than 10 standard drinks of alcohol on the night of the offence.  I have said that he claimed to have had only three glasses of wine, the last of these having been consumed some five hours before the offence.

7. Dr Pascu prepared a report dated 13 September 2007.  She thought it highly unlikely that, at the time of the offence, the respondent had acted in a state of automatism.  She said that, from the information available to her (including the appellant's presentation and comprehensive psychiatric and psychological assessments throughout his admission to the Frankland Centre), there was no evidence that he was suffering from a major mental disorder at the time of the offence.  She went on to say:

   There was, however, sufficient evidence to support a diagnosis of a mixed personality disorder with marked obsessional, narcissistic and some antisocial traits, complicated by moderate psychopathic features and alcohol misuse.  It appears that [the respondent's] behaviour at the time of the alleged offence represents explosive anger whilst intoxicated in a man with insecure attachment and a marked obsessional personality as shown by his tendency to intellectualisation and isolation of anger.  However, his personal history, the collateral reports, his avoidance of responsibility, including his desire to medicalise his behaviour and his adept skill at managing inconsistencies and probable lying, suggest strongly a more sinister aspect of psychopathy in his presentation. 

8. Dr Pascu also said that, throughout the respondent's medical file, there was no evidence that he had displayed genuine remorse about his offence.  He had not approached staff to enquire about the wellbeing of his wife, following her injuries. 

Sentencing remarks

1. Not surprisingly against this background, the sentencing judge found that there was no mental illness that accounted for the respondent's actions and that automatism had been discounted.  After referring to what had been said by Dr Pascu, he found that the most likely explanation for the respondent's behaviour was that he 'had a lot of anger and on this night it bubbled over into violence'. 

2. The sentencing judge described the offence as falling within 'the worst category of offending', although he said that the attack appeared to have been unpremeditated.  He mentioned that the stabbing had been 'very nearly lethal' and that the attack had been 'persistent, with knife, attempted manual strangulation and suffocation'. 

3. The sentencing judge took into account the respondent's favourable antecedents and the fact that he had pleaded guilty.  He said that he accepted that the respondent had 'done so primarily to spare [his] victim and her daughter the trauma of a trial'.  The respondent's plea of guilty had come very late, only four days before the trial was due to commence.  The respondent had always admitted having stabbed the complainant, but denied that he had intended to kill her.  The sentencing judge said, in this respect:

   Although you have pleaded guilty only at a very late stage, this is in many ways an unusual crime, and your lawyers were obliged to explore all means and avenues of possible defence.  Even having regard to your advice, you have chosen to plead guilty.  In these circumstances your plea of guilty is entitled to significant credit.

   The sentencing judge took into account that the respondent had lost his family forever, as a result of his actions.  He also accepted that the respondent had attempted to telephone for an ambulance for his wife.  He said that, while there was a need for general deterrence, there was little need for personal deterrence.

Ground of appeal

1. There is only one ground of appeal, being essentially that the sentence was manifestly inadequate.  However, the particulars to that ground assert that the sentence failed adequately to reflect the seriousness of the offence, the maximum penalty for the offence, the need for general deterrence and ordinary standards of sentencing.  The particulars also assert that the sentence failed adequately to punish the respondent and had undue regard for matters personal to him.

Relevant principles

1. An appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a different way:  Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. There must be an error that justifies and authorises appellant intervention: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [58]. In Dinsdale, Gleeson CJ and Hayne J said [6], of a ground alleging manifest inadequacy:

   Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.

2. The special principles applicable to State, or Crown, appeals are well established:  The State of Western Australia v Houston [2005] WASCA 167 [52] ‑ [54] and the cases there mentioned. These principles are applicable to this appeal notwithstanding recent legislative amendments introduced in this respect by s 41(4)(b) of the Criminal Appeals Act 2004 (WA): The State of Western Australia v Richards [2008] WASCA 134.

Was the sentence manifestly inadequate?

1. Before considering the adequacy of the sentence imposed, I should point out two errors that appear to have been made by the sentencing judge.  The first arises out of the sentencing judge's comment that the plea of guilty had been made primarily to spare the complainant and her daughter the trauma of a trial.  The daughter had, by then, already given pre‑recorded evidence and been cross‑examined.  The second relates to the sentencing judge's acceptance of the fact that the respondent had attempted to phone for an ambulance for the complainant.  The transcript of the first triple 0 call reveals that the respondent rang to report 'a murder' and, when asked whether or not an ambulance was required, he said 'I don't know my wife? [sic]  Please, please quick [sic]'.  When asked what had happened, he said, 'My wife came (indecipherable) and I accidentally killed her [sic]'.  He wanted police to come quickly, before the respondent's father came to get him.  The second call reveals that the respondent asked for the Collie Police so that they could pick him up as soon as possible. 

2. Also, although the sentencing judge found that the attack was 'unpremeditated', this finding must be viewed in a context in which the respondent had been watching television for some time prior to the attack, had gone to the kitchen to arm himself with a knife and had then gone to the bedroom to attack his wife. 

3. The maximum sentence available for an offence of this kind is one of life imprisonment.  The offence was a bad one.  The attack was sustained and brutal.  It was carried out in the absence of any provocation and while the two children were in the house.  The only significant factors in mitigation were the late plea of guilty (taken together with the fact that the respondent had himself telephoned the police and had never denied causing the injuries to the complainant); the absence of any significant premeditation; the fact that the respondent had had a difficult childhood (his parents had separated when he was a child and his mother had been a chronic drug user); the fact that his mood had been affected, not long before the offence, by the factors to which I have referred; and his favourable antecedents.

4. As to the plea of guilty, I have mentioned that the sentencing judge found that the respondent was entitled to 'significant credit' for this, notwithstanding its lateness, because his lawyers had been obliged to explore all avenues of defence and because he had pleaded guilty notwithstanding their advice.  This comment presumably referred to the investigations that had been made concerning a possible defence of automatism.  The respondent's counsel had told the sentencing judge that the respondent had consistently maintained that he had no recollection of ever having intended to kill the complainant and that he had consequently been told that he could not plead guilty to a charge of attempted murder.  She said that, notwithstanding this, he had indicated 'out of the blue' that he intended to plead guilty.  His solicitors were told of this not long before the trial.  However, I have said that there was effectively nothing to support a defence of automatism.  Moreover, when interviewed by the police immediately after being taken into custody on the night of the offence, the respondent told them, albeit after some equivocation, that he had intended to kill the complainant.  I should add that, in her report, Dr Pascu mentioned that, while admitted to the Frankland Centre, the respondent had had access to the internet and had downloaded information about schizophrenia.  He had subsequently fabricated symptoms of schizophrenia. 

5. As to the factors that had affected the complainant's mood, his adverse childhood and his favourable antecedents, these, although deserving of some weight (particularly his antecedents), are overwhelmed by the seriousness of the offence.  Counsel for the respondent suggested, in this respect, that there was evidence of considerable remorse (the respondent had expressed remorse to the complainant and to police officers and had frequently been observed to be crying).  However, the evidence concerning remorse is equivocal.  I have mentioned that Dr Pascu said that there had been no display of genuine remorse by the respondent and that he had not asked about the wellbeing of the complainant.  Counsel for the respondent pointed out, in this last respect, that the respondent had been told by police that his wife was all right.  However, Dr Pascu also reports that, while at the Frankland Centre, the respondent had been 'cool, calm, with stoned [sic] emotions', that he had discussed events in a 'matter of fact manner' and that he had been preoccupied with playstation games.  She also said that he was frequently described as appearing to be crying in circumstances in which no tears were evident and in which the respondent quickly reverted 'to being chatty and talking about himself'.  In the circumstances, it is difficult to place much weight on the assertions of remorse.

1. That brings me to the appropriate range for offences of this kind.  As might be anticipated, the cases reveal that sentences vary enormously, depending upon the circumstances. 

2. In Bell v The Queen (1992) 62 A Crim R 66 the appellant was convicted, after a trial, of breaking into his estranged wife's house and attempting to murder her by stabbing. The attack was planned, calculated and premeditated. The appellant had learned that his wife was having an affair. This led to arguments and episodes of violence. Not long afterwards the appellant separated from his wife. He had difficulty in accepting the separation and became obsessed by his marital situation. This culminated in his decision to kill his wife. The offence was out of character and the only injuries that had been sustained by the appellant's wife were cuts on her hands. The appellant had himself telephoned the police and had demonstrated remorse. He was sentenced to a total term of 10 years' imprisonment, 11 months of which related to the offence of breaking into his estranged wife's house. This equates to a term of a approximately 6 years after the operation of the transitional provisions enacted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA). The Court of Criminal Appeal declined to interfere with the sentence imposed.

3. In Lawson v The Queen (Unreported, WASCA, Library No 940439, 24 August 1994) a 28‑year‑old man with a record of violence pleaded guilty to one count of attempted murder, one of unlawful detention and five of sexual assault. He was sentenced to a total term of 21 years' imprisonment, 14 years of which related to the count of attempted murder. The appellant had gone to the home of his wife, from whom he was separated, and attacked her with a knife, stabbing her repeatedly. Having left her for dead, he drove to her girlfriend's home and forced her to go with him to a remote location where he sexually assaulted her on a number of occasions while armed with a knife. He demonstrated no remorse and blamed the prison system for not rehabilitating him when he was in prison for previous offences of violence. He had had a childhood marked by neglect and abuse and had been a ward of the State since the age of 12. He had suffered physical abuse from his mother and sexual abuse from others. The appeal was dismissed. The sentence of 14 years' imprisonment imposed in respect of the attempted murder equates to one of 9 years and 4 months' imprisonment after the operation of the transitional provisions.

4. In R v Kerr (Unreported, WASCA, Library No 970402, 15 August 1997) the offender was convicted after a trial of an offence of attempted murder. He had attempted to kill his de facto wife by shooting her in the head with a bullet fired from a .22 calibre rifle held about 4 inches away from her head. The bullet had passed through her eye and into her skull. The complainant had sustained brain damage which affected her ability to recollect events. The offender was aged 27 at the time of the offence. He had consumed alcohol and cannabis. He and the complainant had been involved in a domestic argument. After a successful Crown appeal the offender was sentenced to a term of 10 years' imprisonment. This equates to a term of 6 years and 8 months after the application of the transitional provisions.

5. In Aldridge v The Queen (Unreported, WASCA, Library No 980206, 23 April 1998) the 50‑year‑old appellant had commenced a relationship with a woman described as Miss T. The two of them had planned to go to England to attempt the finalisation of the appellant's divorce. There was a late change of plan and Miss T remained in Australia. On the appellant's return from England, he found that she had broken off the relationship and had stripped the house that they had shared of furniture. She had also sold a car which the applicant had owned, or had owned jointly with her. Miss T's mother, Mrs T, told the applicant that her daughter wanted nothing more to do with him. During the night immediately preceding the offences, the appellant had consumed alcohol. After brooding for a time, he decided to kill both mother and daughter. He armed himself with a knife and drove to their home. He arrived there at about 4.00 am. He thrust the knife at Mrs T, intending to kill her, but the knife broke. He then grabbed Miss T, pulled her head down and punched her with his fists. Miss T struck him with a baseball bat. After striking her again, he turned to the mother and continued his attack upon her. The two women managed to eject him and then contacted the police. Mrs T sustained considerable bruising and some lacerations. A psychologist described the appellant as having suffered from an acute stress disorder. He had no criminal history and was unlikely to reoffend. He pleaded guilty to the attempted murder of Mrs T, of assault with intent to do grievous bodily harm in respect of Miss T and of burglary whilst armed. He was sentenced to a term of 9 years' imprisonment on the attempted murder charge, to a term of 7 years, to be served concurrently, on the burglary charge and to a term of 3 years' imprisonment, 2 years of which was to be served concurrently, on the assault charge. The appeal was unsuccessful. The sentenced imposed in respect of the attempted murder is equivalent to one of 6 years' imprisonment after application of the transitional provisions.

6. In Byfield v The Queen [2002] WASCA 260; (2002) 133 A Crim R 307, the appellant pleaded guilty, on the fast‑track, to a charge of attempted murder. He and a co‑offender had been at a football oval with other people. They saw the complainant, who had allegedly been responsible for an assault upon the co‑offender at an earlier date. The appellant and his co‑offender went to the appellant's home and obtained a piece of wood similar to an axe handle. They returned to the oval in the co‑offender's car. He stopped it in front of the complainant. The two men got out and the co‑offender struck the complainant with the piece of wood, rendering him unconscious. The co‑offender struck the complainant a second time while he lay on the ground. The co‑offender then drove his car over the complainant before leaving the area. The two men did not know whether or not they had killed the complainant. They returned, at the suggestion of the appellant. The co‑offender then drove his car over the complainant a second time. The complainant was very severely injured. At the time of sentencing, the appellant was 19 years old. He had no previous convictions and the crimes were out of character for him. He was sentenced to a term of 12 years' imprisonment (8 years, after application of the transitional provisions). The appeal was dismissed.

7. It is instructive also to have regard to sentences that have been imposed in respect of the offence of causing grievous bodily harm with intent.  That offence carries a maximum penalty of 20 years' imprisonment, as opposed to the maximum of life imprisonment in the case of attempted murder.  In The State of Western Australia v Jeffries [2007] WASCA 255, I examined a number of the cases and concluded [12] that they revealed that sentences of between 7 and 12 years' imprisonment, prior to the operation of the transitional provisions, were not uncommon. That equates to a range of between 4 years and 8 months'

imprisonment and 8 years' imprisonment after the operation of the transitional provisions.

1. These cases, although varying significantly according to their individual circumstances, suggest that the sentence of 5 years and 4 months' imprisonment imposed in this case was manifestly inadequate, in my respectful opinion.  The sentencing judge rightly placed this offence in the 'worst category of offending'.  As he pointed out, the stabbing had been 'very nearly lethal' and the attack had been brutal and persistent, enduring over a sustained period of time and involving the use of a knife, manual strangulation, suffocation and what seems to have been an attempt to break the complainant's neck.  There had been no provocation.  The complainant's two children had been present in the house at the time.  As I have said, the only factors of significance in mitigation were the late plea of guilty, the fact that the respondent had telephoned the police and admitted to the stabbing, the absence of any significant premeditation, the respondent's favourable antecedents and the difficulties which he had experienced as a child and shortly prior to the commission of the offence.  However, as I have also pointed out, the plea of guilty came late and the factors personal to the appellant were overwhelmed by the brutality of his offending behaviour. 

2. In these circumstances, it seems to me that nothing less than a term of 7 years' imprisonment is justified in all of the circumstances.  That sentence takes into account the considerations applicable to a State appeal and the application of the transitional provisions.  I would reduce that sentence by 2 months (as the trial judge did) in order to take account of time spent in custody. 

3. I would consequently allow the appeal, set aside the sentence of 5 years and 2 months' imprisonment imposed by the sentencing judge and impose, in lieu, a term of 6 years and 10 months' imprisonment, with eligibility for parole. 

4. WHEELER JA:  I agree with Steytler P.

5. MILLER JA:  I agree with Steytler P.