The State of Western Australia v Martinez
[2006] WASC 126
•27 JUNE 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MARTINEZ & ORS [2006] WASC 126
CORAM: EM HEENAN J
HEARD: 21 JUNE 2006
DELIVERED : 21 JUNE 2006
PUBLISHED : 27 JUNE 2006
FILE NO/S: INS 150 of 2004
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecutor
AND
JOSE FELIX MARTINEZ
SALVATORE FAZZARI
CARLOS PEREIRAS
Accused
Catchwords:
Criminal law - Sentencing - Murder - Mandatory life sentence - Setting of minimum term before parole
Legislation:
Criminal Code (WA)
Sentencing Act 1995 (WA)
Result:
Sentences of life imprisonment for each offender
Minimum terms before eligibility for parole set at 10 years each
Category: B
Representation:
Counsel:
Prosecutor: Mr B Fiannaca SC & Mr S F Rafferty
First-named Accused : Mr S B Watters
Second-named Accused : Mr M J Bowden
Third-named Accused : Mr S D Freitag
Solicitors:
Prosecutor: State Director of Public Prosecutions
First-named Accused : Legal Aid Western Australia
Second-named Accused : Cannon Bowden & Co
Third-named Accused : Legal Aid Western Australia
Case(s) referred to in judgment(s):
Anderson v The Queen (1993) 177 CLR 520
Beard v The Queen [2003] WASCA 262
Bugmy v The Queen (1990) 169 CLR 525
Cooley v The State of Western Australia [2005] WASCA 160
Garlett v The Queen (2000) 111 A Crim R 336
Inge v The Queen (1999) 73 ALJR 1563
Lauritsen v The Queen (2000) 22 WAR 442
McSwan v The State of Western Australia [2005] WASCA 128
Olbrich (1999) 166 ALR 330; 108 A Crim R 464
Power v The Queen (1974) 131 CLR 623
R v Shrestha (1991) 173 CLR 48
Rodriguez v The Queen [2001] WASCA 394
Sherratt v The Queen (2000) 112 A Crim R 177
Stapleton v The Queen [2002] WASCA 328; (2002) 136 A Crim R 65
Veen v The Queen [No 2] (1988) 164 CLR 465
Wood v The Queen [2002] WASCA 175
Case(s) also cited:
Nil
EM HEENAN J: On 7 May 2006, after a trial lasting almost 10 weeks, the jury returned verdicts of not guilty of the charges of wilful murder, but guilty of the charges of murder against each of Jose Felix Martinez, Salvatore Fazzari and Carlos Pereiras arising from the death of Phillip John Walsham in the early hours of the morning of 28 February 1998 near the Stirling bus and train station. These are convictions for the crime of murder contrary to s 279 of the Criminal Code.
There is only one sentence available for the crime of murder, namely a mandatory term of life imprisonment - Criminal Code, s 282(d)(i). Nevertheless, where an offender has been convicted of the crime of murder the court is required to set a minimum term of at least 7 years and not more than 14 years which the offender must serve before being eligible for parole: Sentencing Act 1995, s 90(1). Consequently, after these convictions each of the offenders was remanded in custody for sentence and since then I have had the benefit of receiving written pre‑sentence reports in relation to each of the offenders and of reading written submissions about the proposed sentences by counsel for the prosecution and by counsel for each of the offenders. It is now my obligation to impose sentences according to law on each of the offenders.
As there is only one mandatory sentence which the law prescribes, each of Jose Felix Martinez, Salvatore Fazzari and Carlos Pereiras is therefore now sentenced to life imprisonment.
Each of the offenders has already spent a long time in custody on remand since his arrest on charges leading to these convictions. From their arrests in April 2004 until their release on bail in May 2005 after a first trial when the jury was unable to agree upon verdicts, and since they were remanded in custody upon the retirement of the jury at the end of the present case on 4 May last, each offender has spent a total of 473 days in custody solely in respect of this matter. Section 87(b) of the Sentencing Act provides that the court may take time on remand into account "by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of sentence". Accordingly, the court has the power to direct that the sentences of life imprisonment which have now been imposed under s 282(d)(i) of the Criminal Code should commence on a specified day when the custody began or some later date. I consider that that power should be exercised in the present case and that, taking into account the 473 days in total spent (but not continuously) in custody for this offence, each sentence of life imprisonment should commence from 5 March 2005.
The minimum term which is to be served before eligibility for parole in the case of a conviction for the crime of murder will begin to run when the term of life imprisonment begins: Sentencing Act, s 90(3). Accordingly, the minimum terms which I must now impose should, in my view, also commence for each offender on 5 March 2005.
Imposition of minimum term to be served before eligibility for parole
It is important to distinguish between the different purposes and functions which the head sentence of life imprisonment and a minimum period before eligibility for parole each serve. There is, after all, only one sentence and that is the head sentence of life imprisonment provided by Parliament as the inflexible response to a proved crime of murder placing upon all human life the respect and sanctity in which it is held by the entire community. Any crime of murder receives, because of the deliberate choice of Parliament, the one sentence of life imprisonment. This marks the consequences which the entire community, through the law‑making function of Parliament, considers should face those who unlawfully cause the death of another with intent to do grievous bodily harm or because of the presence of other ingredients which may, in a different case, constitute the crime of murder. The severity of this penalty marks not only the value which the community places on any individual human life, but the extreme disapproval and condemnation in which society holds any offender who has committed this crime.
The severity of the penalty is designed to protect the community against the risk of repetition of this or other offences by the individual offender, to deter others in the community, and the individual offender from committing such a crime in the future, to impose condign punishment upon the individual offender and to demonstrate to the family and friends of the victim the assurance, that however inadequate it must be to replace a lost life, that the values of the community have been vindicated and that the punishment selected by the entire community has been imposed. Neither I nor any other Judge sentencing an offender for the crime of murder has any discretion but to impose such a sentence of life imprisonment. This is the law of our State.
By contrast, fixing a minimum term before which an offender may become eligible for parole is a task which requires different considerations and objectives to be addressed. First of all, the minimum term fixed will not result inevitably or automatically in the offender being released from custody at the expiration of that period. It will be for the authorities at that time to determine whether or not the circumstances are then such that the individual offender should, in the overall interests of the community and himself, be permitted conditional release on parole either immediately or at some future time. It may be the case that, at the end of the minimum period even if the offender is then eligible for parole, he is not considered suitable for parole and that suitability for parole will need to be considered again later. What the imposition of the minimum period does ensure is that there will be no release on parole before the expiration of that minimum term.
The role of a sentence of imprisonment, both with respect to the head sentence and the fixing of any minimum term before eligibility for parole was examined by the High Court of Australia in Power v The Queen (1974) 131 CLR 623. In that case Barwick CJ, Menzies, Stephen and Mason JJ said (at 628):
"Confinement in a prison serves the same purposes whether before or after the expiration of a non‑parole period and, throughout, it is punishment, but punishment directed towards reformation. The only difference between the two periods is that during the former the prisoner cannot be released on the ground that the punishment has served its purpose sufficiently to warrant release from the confinement, whereas in the latter he can. In a true sense the non‑parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention."
And, later, at 629 their Honours, again speaking of the purpose of the minimum period before eligibility for parole said that it was:
"To provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence."
The decision in Power v The Queen (supra) has been repeatedly followed and applied in all courts in Australia. In R v Shrestha (1991) 173 CLR 48, when again examining the purpose of a minimum term before eligibility for parole, Brennan and McHugh JJ said at 63:
"It is clear that, although a minimum term is a benefit for the offender, it is a benefit which the offender may be allowed only for the purpose of his rehabilitation and it must not be shortened beyond the lower limit of what might be reasonably regarded as a condign punishment. Moreover, the release of an offender for the purposes of rehabilitation through conditional freedom is not to be seen solely as a mercy to the offender but also, and essentially, as a benefit to the public."
Again, applying the same approach, the High Court addressed considerations to be applied when imposing a non‑parole period or minimum term in the decision of Inge v The Queen (1999) 73 ALJR 1563. The court emphasised that the seriousness of the offence of murder and the severity of the mandatory penalty provided by statute are matters to be taken into account in fixing a non‑parole period. Their Honours went on to emphasise, that in the case of a young offender, the relative youth of the offender should not count against him or her when selecting a minimum term. Applying the decision in Bugmy v The Queen (1990) 169 CLR 525, Gleeson CJ, Gaudron, Hayne and Callinan JJ said, with respect to the principles which inform the exercise of a judicial discretion to fix a non‑parole period:
"They direct attention to matters which include the rehabilitative purpose of parole, the need to protect the community, and the difficulty of predicting, a long time in advance, the facts which may affect a judgment as to whether parole should be granted, refused or postponed."
Their Honours went on to observe (at 1565) that in the case of life sentences it was somewhat unrealistic and artificial to attempt to strike a due proportion between a non‑parole period and the term of the offender's natural life.
The Court of Criminal Appeal in this State, in the case of Sherratt v The Queen (2000) 112 A Crim R 177 held that, in a case where a mandatory sentence of life imprisonment for murder was imposed, the decision whether or not to fix a minimum term and the length of that period within the statutory parameters provided involved a discretionary judgment which should be formed by applying to the case the ordinary principles of sentencing and that in that regard:
"In fixing the minimum period the court is to have regard to the circumstances of the offence and the circumstances personal to the offender, whether they be aggravating or mitigating in their effect insofar as they bear upon the length of the period which must be served. The protection of the community will be an important consideration as will be the prospects of rehabilitation. In fixing this period there is an inevitable element of prognostication on the part of the sentencing judge."
The approach taken by the Court of Criminal Appeal in Sherratt has since been consistently followed and applied in this State in many cases including Garlett v The Queen (2000) 111 A Crim R 336; Lauritsen v The Queen (2000) 22 WAR 442; Wood v The Queen [2002] WASCA 175; Rodriguez v The Queen [2001] WASCA 394; Stapleton v The Queen [2002] WASCA 328; (2002) 136 A Crim R 65; Beard v The Queen [2003] WASCA 262 and, very recently in Cooley v The State of Western Australia [2005] WASCA 160 per Roberts‑Smith JA at [93] ‑ [96] and in McSwan v The State of Western Australia [2005] WASCA 128 per Pullin JA at [30].
As was said in Veen v The Queen [No 2] (1988) 164 CLR 465 by Mason CJ, Brennan, Dawson and Toohey JJ at 476:
"However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide posts to the appropriate sentence but sometimes they point in different directions."
Application of these principles to the present case
It is necessary therefore that I identify the basis upon which the sentencing process must take place, having regard to the verdicts returned by the jury and the essential findings which I consider the jury must have accepted in reaching those verdicts or which are consistent in my view with the evidence and those findings - Olbrich (1999) 166 ALR 330; 108 A Crim R 464 at 331 and 336; Anderson v The Queen (1993) 177 CLR 520 at 536. In recounting these findings their significance, for present purposes, is in order to evaluate, for the purpose of imposing a minimum term:
•the circumstances of the offence;
•manners personal to each offender;
•aggravating circumstances;
•mitigating circumstances.
The dates of birth of the three offenders and their respective ages now and at the date of the crime are as follows:
(a)Jose Felix Martinez:
born 11 April 1978
now aged 28 yearsage at the time of the murder, 19 years.
(b)Salvatore Fazzari:
date of birth 28 April 1979
age at present 27 yearsage at the time of the murder, 18 years.
(c)Carlos Pereiras:
date of birth 5 November 1979
age at present 26 yearsage at the date of the murder, 18 years.
Before this offence none of the offenders had been convicted of any criminal offence in Western Australia or elsewhere. Each has been educated in Perth and was in regular employment at the time of this crime. Martinez and Fazzari were each subsequently convicted, on their pleas of guilty, of assaulting the deceased, Phillip Walsham, during the course of the first episode at the train station on 28 February 1998 and Fazzari was also convicted of wilful damage to the steel handrail on the overhead bridge which he had struck repeatedly with a tyre lever before that first assault. Martinez has since been convicted of an assault upon other persons. Pereiras has never previously been convicted of any offence.
The background leading to the murder of Phillip Walsham and the contemporary events as they were established at the trial and accepted by the jury are what I shall now describe.
Each of the offenders had attended nightclubs in Northbridge on the evening of Friday 27 February 1998 and remained in Northbridge until the early hours of Saturday 28 February 1998. Martinez and Fazzari had been drinking during the course of the evening and were significantly affected by alcohol. Martinez told the police on 3 March 1999 that he was "pretty drunk" but he could "see what was going on". Fazzari told police that he was not drunk but I consider that he was significantly affected by alcohol. Pereiras was not drinking that evening because he was the driver of the white Commodore sedan in which the three offenders and one other were travelling.
At some time, approximately 0215 hours, on Saturday 28 February 1998 the three were in a white Commodore driving northeast in Cedric Street, Stirling. They passed a pedestrian who attempted to hitch a lift and who then threw something in the direction of the white Commodore. The evidence is that it was a tennis ball that was thrown, although one or more of the occupants believed that it was a rock or some other projectile. The vehicle stopped and Martinez and Fazzari then chased the pedestrian, Craig Betts, and his friend, Spencer Toogood, back towards the Stirling train station. Pereiras drove at speed back to the kiss'n'ride section picking up Martinez and Fazzari on the way. The two men who were being chased were part of a trio which included Phillip Walsham, but Phillip Walsham was not with them. He had been left sitting on a seat at the kiss'n'ride section of the car park, apparently coping with the effects of drinking which he and the other two had engaged in on a different course of visits to nightclubs the same evening. The evidence is that he was quite intoxicated and had remained at the kiss'n'ride station after getting off the train due, it seems, to the effect of the drink which he had had during the evening. He was quiet, still and passive.
Betts and Toogood, who were being chased, stopped briefly to try and persuade Phillip Walsham to join them in escaping from their pursuers, but he was unresponsive and they thought that there was nothing to connect him with them so they ran on over the footbridge towards the train station and managed to be accepted by a taxi which had only just picked up another fare and, by this means, to make their escape. The pursuers Martinez and Fazzari were each said to have been armed with steel tyre levers. Fazzari certainly was but there is some uncertainty as to whether Martinez had a tyre lever at that time. I will proceed on the basis that he did not. Another tyre lever was held by Pereiras who was driving the car. These steel tyre levers had been taken from the boot of the Pereiras car at the beginning of the chase and they had been kept in the car by Pereiras for protection. It was one of these tyre levers which Fazzari used to bang against the metal railing of the overpass in the course of his anger and indignation at the escape of Betts and Toogood.
At this time there were two young ladies in the white Commodore who had accepted a lift in Cedric Street just shortly before the chase had started. These girls had only very slight acquaintance with the occupants of the car (one of them had been at school with some of the young men) but they too were in the car at the kiss'n'ride station as the pursuit ended. Another car driven by Toby Vangelovski with his girlfriend, Lorena Rodriguez, arrived a few seconds later.
Martinez, Fazzari, Vangelovski and Pereiras came back down the eastern side of the overpass to the kiss'n'ride station where the cars were parked. The tyre levers were taken and replaced in the boot but Fazzari noticed Phillip Walsham sitting in the seat by the bus shelter. He walked up to him, spoke briefly to him and then, without any reason or provocation, kicked him in the head with considerable force. Martinez joined him and he, too, kicked Walsham towards the head or upper body again with force and without cause. Walsham was not struck with a tyre lever or any other weapon during this assault. This sudden and unexpected assault caused Lorena Rodriguez to intervene and remonstrate forcefully with Fazzari and to push him back to the Commodore car. The other two young women who had been passengers in the Commodore were so astonished and offended at what had happened that they refused to have anything more to do with the occupants of the car. The three offenders and Vangelovski and Rodriguez drove away and, after travelling through the back streets of Stirling, stopped to talk at the corner of Odin Drive and Fulmar Street in Balcatta.
Meanwhile, the two girls who had been in the white Commodore went back to see Phillip Walsham and enquire about his condition. They offered to call help and advised him of the need for assistance. He was bleeding from the forehead to a significant extent but he claimed to be alright. The girls were not convinced and suggested that he needed help but he made light of his condition, got up and walked off in the direction of the overpass and the last they saw of him was that he was ascending the lower flight of the staircase. They then walked off northeast up Cedric Street heading to one of their homes.
At the Fulmar Street/Odin Drive intersection there was a brief meeting between the occupants of the two vehicles. Lorena Rodriguez was very upset and distressed over what had happened and refused to speak to Fazzari despite his efforts to make up with her. She ran some distance down the street but further entreaties from Fazzari were rejected. Vangelovski asked the others to leave, saying that he would take Rodriguez home and he handed over his mobile telephone to one of the three offenders so that he could contact them later in the evening.
Each of the offenders denied that, after this meeting at Odin Drive and Fulmar Street, that the white Commodore returned to the kiss'n'ride station at Stirling, claiming instead that they next went to the McDonalds cafe on the corner of Morley Drive and Wanneroo Road. Evidence was called on behalf of Fazzari to establish that the white Commodore had been at McDonalds that evening and that this visit was after the first assault on Phillip Walsham, so eliminating the possibility they could have been at the Stirling train station when Phillip Walsham fell from the foot bridge.
The verdict of the jury plainly rejected that version of events and must, in all the circumstances, have involved a finding that the visit to McDonalds occurred before the first assault on Phillip Walsham and was a deliberate lie designed to avoid detection or incrimination in the death of Phillip Walsham. The jury plainly was satisfied that the occupants of the white car, after a much shorter stay than claimed at Fulmar and Odin Drive, had driven straight back to the Stirling train station with the intention of finding Phillip Walsham and assaulting him again.
The deceased was heavily intoxicated, alone and vulnerable, quite incapable of defending himself. In a manner which has not been established on the evidence but which the verdict of the jury unmistakably reflects, Phillip Walsham was struck with a tyre lever over the left scapula region with one of the tyre levers from Pereiras' vehicle by one of the three offenders. The force of the blow was sufficient to leave a livid abrasion on his back which was clearly identified in the post mortem examination and photographs. Again, in a manner not exactly established by the evidence, but clearly found by the jury to have occurred, the offenders led or forced Walsham to the top level of the foot bridge when he was then forced or thrown off the foot bridge, falling to the road below as a result of which he suffered the injuries from which he died in hospital a little over three hours later. The verdicts of the jury involve a finding that those who threw or forced Walsham from the foot bridge did so intending to cause him grievous bodily harm.
The evidence of the eye‑witness who saw Phillip Walsham's body fall from the foot bridge to the road below was that there were three or four male figures on the bridge, including the one who fell. The verdict of the jury must mean that the jury were satisfied either that all three of the accused were on the bridge when Walsham was forced or thrown to the road below or that two of them were and that the third was nevertheless involved in a plan to drive back to the Stirling kiss'n'ride station with a view to assaulting Walsham again, as the result of which his death was a probable consequence, or that the third accused had assisted the other two in forcing Walsham up onto the bridge before his fall.
The evidence at the trial and the finding of the jury does not allow any conclusion to be reached as to who it was who struck the blow with the tyre lever that left the abrasion on Phillip Walsham's back.
In my view, having regard to the evidence of the findings of the jury I consider that the jury must have found that all three of the offenders were on the bridge when Walsham was thrown or forced over the railing onto the road below, but any uncertainty on this point is not, in my opinion, significant because it is clear that the jury was satisfied to the requisite degree that all three were criminally responsible for what happened.
Of the three offenders, it is evident on all the evidence that it was Martinez and Fazzari who were the ring leaders. It was Fazzari who had pursued Betts and Toogood in Cedric Street armed with the metal tyre lever and it was he who struck the railing of the foot bridge after they made their escape. It was he who first assaulted Phillip Walsham for no reason whatever at a time when he was very obviously angry and agitated. Martinez had also pursued Betts and Toogood on foot and he, too, assaulted Walsham without provocation. They were both older than Pereiras and both had been drinking heavily that evening. However, Pereiras was actively involved. It was he who provided the metal tyre levers, taking one himself at the beginning of the chase. It was he who joined in the pursuit, although driving the white Commodore. And it was he who drove the others back to the kiss'n'ride station after the meeting at Fulmar Street and Odin Drive intersection. He later removed the three tyre levers from the boot of his car and hid them, however inadequately, in the work shed at his home, notwithstanding that he retrieved them and handed them to the police when a search warrant was being executed.
If one takes the view that Pereiras was not on the bridge when Walsham was thrown or forced over the railing to the roadway below, the verdict of the jury can only mean that he was a party to a plan to go back to the kiss'n'ride station to assault Walsham again and that Walsham's death was a probable consequence of the prosecution of this unlawful purpose (Criminal Code, s 8). In that eventuality, although not a principal offender, Pereiras must bear a culpability approaching that of his co‑offenders because he was the driver of the car and free to decide whether or not to follow suggestions of the others; he was sober; he provided the tyre levers and his decision to take the others back to the kiss'n'ride station must have been made, in view of the decision of the jury, in the knowledge that it was intended to attack Walsham again.
The conduct of both Martinez and Fazzari in assaulting Phillip Walsham the first time was quite inexcusable. It was a malicious, unprovoked and cowardly attack upon a defenceless person who had done nothing to provoke or warrant that behaviour and who had done nothing to attract attention in any way. Fazzari was extremely angry and he and Martinez had obviously been looking for a fight in their attempts to pursue Betts and Toogood and were even more angry and aggressive when their efforts had been frustrated. The return to the kiss'n'ride car park and the final fatal assault upon Walsham can only have been prompted by the same attitude of aggression, anger and desire for violence. However transitory and uncharacteristic these two episodes or any parts of them may have been, they were acts of gratuitous unprovoked violence upon an innocent victim.
Consequences of the offence
Phillip Walsham never regained consciousness after his fall from the bridge and died of multiple injuries, including massive internal injuries, while undergoing emergency attempts at resuscitation at Sir Charles Gairdner Hospital. Every effort had been made by the ambulance and hospital personnel to save him but, his injuries were so severe and so numerous that, as it proved, all the very considerable life saving efforts were in vain.
He was only aged 21 years, was in fulltime employment and was greatly loved by his family and friends. He was a young man of promise and his death is a great tragedy and an inconsolable grief to his parents and relatives. I have read the victim impact statement of Mr and Mrs Walsham and there is nothing to be gained by summarising this. They have been almost inconsolable in their grief, their life has been turned upside down, the loss of their son is a constant and lifelong wound and the effects of this brutal act of violence upon their family can never be forgotten. Nothing now can return their son to them but the intensity of the pain and sorrow which they will continue to bear is a reflection of the seriousness and effects of such a murder. It is not only they who have suffered loss through their son's death but the entire community is diminished and injured when one of its number is unlawfully killed - "No man is an island".
Personal circumstances of each offender
I come now to the personal circumstances of each offender, dealing first with Jose Felix Martinez.
(a) Jose Felix Martinez
He was born in El Salvador in 1978 and is the youngest of six children. He had a happy childhood and his family was supportive. He shares a close bond with both his parents and his siblings and he maintains involvement with his numerous nieces and nephews.
His family migrated to Australia in 1989 with a view to building a happy life and for the children to be afforded greater opportunities in education and employment here in Australia. His father has spent his life working as a mechanic, while his mother took the role of homemaker caring for the children. He has stated that his parents' relationship was of a high quality until an unfortunate separation some years ago. His father constantly travels back and forth to El Salvador for extended periods which may have contributed to this breakdown.
Martinez himself has been in a close de facto relationship for a period of five years and describes this relationship as supportive and his partner has stood by him during both his period on remand and throughout the court proceedings. He is hopeful and confident about the future of this relationship.
He was educated at the Balcatta Primary School and later completed year 12 education at Balcatta Senior High School. He was popular, had many friends and enjoyed school and has a wide circle of friendships. Upon leaving school he was unemployed for six months before becoming employed as a labourer at a cabinet making business in Morley. He obtained an apprenticeship which he completed and he has remained employed with that same company since 1997. He has taken a second job cleaning offices of an evening in order to earn extra income.
His health is good. There is no indication of mental illness or abnormality. He has a history of social drinking and has admitted to experimenting with illicit substances for a short period, dabbling with amphetamines in late 2000 for a brief period, but he maintains that this experience was not enjoyable and has rejected it. He admits to casual experimental use of cannabis as a teenager under peer influence.
He was convicted of assault in relation to the first episode concerning Phillip Walsham and fined. He was later convicted of common assault and put on an 18‑months intensive supervision order and ordered to perform 60 hours of community work. The pre‑sentence report indicates that he complied satisfactorily with those obligations. He was also convicted in May 2000 for possession of a prohibited drug and was fined $250.
His counsel has produced, and I accept, the many references from friends and family describing generally his prior good character and prospects. It seems that his behaviour on this evening was uncharacteristic but it was nonetheless fatal.
(b) Salvatore Fazzari
He was born in Perth, the eldest of three children. He had a happy, stable childhood without any significant events. His father and mother, who are happily married, stand by him. His father works as a manufacturer and designer of furniture and Mr Fazarri grew up as part of a large extended happy and supportive family. He shares a good relationship with his family whom he describes as close and loving. All this was confirmed by further enquiries from other members of the family and is amply demonstrated by the many references which have been produced.
He is in a stable relationship of about nine years' duration with a young woman whom he met and with whom he has been keeping company since he was 16. She is presently attending university, studying to be a primary school teacher and she continues to support Mr Fazarri and to stand by him.
He, too, was educated at Balcatta Senior High School to year 12 and completed education without difficulty and was an above average student. At school he worked part‑time at a nursery. On leaving school, he attended TAFE where he studied art and hospitality management and worked part‑time with his father. He intended to become a furniture designer and to work in the hospitality management trade for personal interest. Some four years ago he started his own business in interior furniture designing and this is successful and is currently being managed by his partner.
He is in good health and shows no sign of any mental or psychological disease or abnormality. He uses alcohol only on a social basis and he claims that he does not use illicit substances and has never had any difficulty with substance abuse. He is obviously supported by his family and but for this conviction would have had very promising prospects. He was convicted of assaulting Phillip Walsham and fined $1500 in May 1998 and also convicted of causing damage to the railing at the overpass and fined $400 also on 26 May 1998. Those are his only previous criminal convictions.
(c) Carlos Pereiras
Mr Pereiras was born in Perth to parents of Spanish descent who migrated from Spain to Australia in 1976. His father is a heavy duty mechanic and his mother is a housewife. He has one sister who is aged 29 years, married with children and expecting a third. He describes a close, supportive and loving family relationship and denies any incidences of abuse throughout his upbringing. This conviction has had a devastating effect upon him and his family and substantial financial difficulties have resulted although, paradoxically, this has strengthened the family unity.
He is currently single and has no dependants. He was educated to the end of year 12. He was a good student. He received average grades. He had a wide circle of friends and was never involved in fights or serious disciplinary problems. After leaving school, he went to TAFE for three years where he completed a certificate for and a diploma in electronic engineering.
He undertook an apprenticeship as a communications electronic technician, servicing and repairing two‑way radios and repeater systems. He completed his apprenticeship successfully and was employed by the same employer on a permanent full‑time basis. His position was kept vacant for him after his arrest and incarceration. Again, all the information is that he had strong and supportive family relationships and had good prosects, educationally and with employment.
He is in good health physically and psychologically and he has never been diagnosed with any physical ailments or psychological or psychiatric conditions. He denies any addiction to illicit substances but admits experimenting with cannabis when he was 17 or 18 years of age but only on a few occasions. He began consuming alcohol at 22 years of age but only casually. It is obvious that he and all the offenders have substantial family support.
As previously noted I accept that none of the offenders has been convicted of any offence before Phillip Walsham's death. Each was employed with reasonable prospects at the date of this crime.
Turning to the events of this night in question, regrettably one has to recognise that there is nothing in the actions of any of the three offenders on the night of this crime which could constitute mitigation for their conduct. Obviously they were looking for trouble, spoiling for a fight and were ready to resort to the use of the tyre levers as weapons as a result of any fight or violence which they had initiated or provoked. The initial aggression by Fazzari and Martinez towards Phillip Walsham and their assault upon him was interrupted and they left the scene and were criticised by their friends for their conduct.
Notwithstanding this, they returned to the scene and carried out a further attack upon the defenceless Phillip Walsham after they had more than a sufficient opportunity to cool down, regain balance and realise the unacceptability of their prior criminal conduct. This shows planning, aggression and deliberation of a sustained and menacing kind, even if it was fuelled by anger and intoxication, in the cases of Martinez and Fazzari, and the furious hysteria of the earlier pursuit, escape and attack. That conduct is very menacing to society, even if it was, as I accept, uncharacteristic.
Remorse as a consideration for mitigation is also absent because of the lies which the jury's verdict reflect were told to the police; the false story about the time of the visit to McDonalds in Morley Drive and the evidence given maintaining those denials during the trial. Those lies and that evidence do not aggravate the circumstances of the offence but they exclude discounts or concessions for remorse.
By far the most significant factors to be considered, in my view, are the relative youth of these offenders, they are in reality very young, and their previous good character. This indicates in my view that despite the very grave and fatal consequences of their actions there is eventually prospects for rehabilitation and I think it could be said that after the expiration of a significant period of imprisonment it is unlikely that they will offend again, but a severe punishment must still be imposed.
In my view the minimum terms for each offender should be 10 years and these should date from 5 March 2005 in view of the time each has already spent in prison solely as a result of these offences. The sentence of this Court is that each of the offenders is sentenced to life imprisonment and that a minimum term of 10 years must be served before eligibility for parole. Both the life sentences and the minimum terms will commence on 5 March 2005.
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