The State of Western Australia v Pearson - [2024] WASC 415

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- PEARSON [2024] WASC 415
CORAM:   WHITBY J
HEARD:   6 NOVEMBER 2024
DELIVERED          :   6 NOVEMBER 2024
PUBLISHED           :   7 NOVEMBER 2024
FILE NO/S:   INS 4 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ROBERT MATTHEW PEARSON
Accused

Catchwords:

Criminal law - Attempted murder - Accused acquitted of charges on the grounds of insanity subject to custody order - Application to set limiting term of custody order - Custody order made under repealed legislation - Transitional provisions - Setting limiting term where custody order made in respect of multiple charges

Legislation:

Criminal Code (WA)
Criminal Law (Mental Impairment) Act 2023 (WA)
Criminal Procedure Act 2004 (WA)
Sentencing Act 1995 (WA)

Result:

Limiting term set as 9 years to commence on 21 March 2022

Category: B

Representation:

Counsel:

Applicant	:	A J Finn
Accused	:	L J Cassidy

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Accused	:	RUAH Legal Services - Mental Health Law Centre

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

The State of Western Australia v Chokolich [2024] WASC 346
The State of Western Australia v Pearson [2022] WASC 191
The State of Western Australia v Radovic [2020] WASCA 46
The State of Western Australia v Smith [2024] WASC 361

WHITBY J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

Introduction and overview

On 15 December 2020, Robert Matthew Pearson, while at his family home, stabbed his son, Jacob Matthew Pearson, in the chest and stabbed his wife, Abide Jayne Pearson (Abbey), to the right side of her neck. Mr Pearson was charged with two counts of attempting to unlawfully kill contrary to s 283(1) of the Criminal Code (WA). I will refer to Abbey and Jacob by their first names without any disrespect intended.
Mr Pearson applied for trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA). That application was allowed in the interests of justice.
Mr Pearson pleaded not guilty to each of the charges on account of unsoundness of mind in accordance with s 27(1) of the Criminal Code. Mr Pearson admitted that he stabbed Jacob in the chest and Abbey to the right side of her neck in the circumstances alleged by the State. Therefore, the sole issue requiring determination at the trial was whether Mr Pearson was criminally responsible for those acts.
On 1 June 2022, Corboy J found Mr Pearson not guilty of the charges on account of unsoundness of mind.[1] Mr Pearson was made subject to a custody order pursuant to s 19(4) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (repealed Act). The custody order under the repealed Act operated as an order for indefinite detention that would be discharged only if and when Mr Pearson was released by the Governor under a release order.[2]
[1] The State of Western Australia v Pearson [2022] WASC 191 (Pearson).
[2] Repealed Act, s 35, s 38.
The repealed Act was repealed by the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act). The CLMI Act commenced operation on 1 September 2024. The CLMI Act requires that if a court makes a custody order, it must set a limiting term for the custody order, being the best estimate of the term of imprisonment or detention that the court would have imposed if the court were sentencing the person for the offence on a plea of guilty at the earliest opportunity and any mental impairment of the person was not taken into account.[3]
[3] CLMI Act, s 50(2) and (3).
The CLMI Act contains transitional provisions in relation to setting limiting terms for custody orders made under the repealed Act.[4] Pursuant to those transitional provisions, Mr Pearson's custody order under the repealed Act has effect as if it were a custody order made under pt 5 of the CLMI Act.[5]
[4] CLMI Act, pt 14, div 2, sub-div 5.
[5] CLMI Act, s 254.
The Director of Public Prosecutions (Director), on behalf of the State, must apply, pursuant to s 261(1) of the CLMI Act, for the court to set a limiting term in respect of Mr Pearson's custody order. The Director now makes that application.
For the following reasons, I would set the limiting term for Mr Pearson's custody order as 9 years. That term is taken to have commenced on 21 March 2022.

Relevant legal principles

The applicable relevant legal principles have been set out by Quinlan CJ in The State of Western Australia v Chokolich[6] and The State of Western Australia v Smith.[7] I gratefully adopt his Honour's summaries of the legal principles without repeating them in full. In summary, the relevant principles are as follows.
[6] The State of Western Australia v Chokolich [2024] WASC 346 (Chokolich).
[7] The State of Western Australia v Smith [2024] WASC 361 (Smith).
The court must set a limiting term for the existing custody order under s 50 of the CLMI Act. Section 50(2) of the CLMI Act provides that the limiting term is:
… the best estimate of the term of imprisonment or term of detention that the court would, in all the circumstances, have imposed if -
(a)the court were sentencing the person for the offence; and
(b)any mental impairment of the person were not taken into account.
Section 50(3) of the CLMI Act provides that for the purpose of s 50(2), the court must assume that:
(a)the person had pleaded guilty to the charge at the earliest opportunity; and
(b)there is no other option but to impose a term of imprisonment or term of detention.
Section 50(3)(a) of the CLMI Act provides that the court must assume that Mr Pearson pleaded guilty to the charges on the indictment. In relation to the question of specific intent, for Mr Pearson to be convicted of attempting to unlawfully kill Jacob and Abbey contrary to s 283(1) of the Criminal Code, it must be proven beyond reasonable doubt that he did the relevant acts with the intention of killing them. In Chokolich, Quinlan CJ explained the operation of this assumption in transitional matters as follows:[8]
The court's task is, after all, to arrive at a 'best estimate' in relation to certain assumptions that may operate in tension. It may be, for example, that notwithstanding the assumption that the accused pleaded guilty to the charge, the court must arrive at the 'best estimate' without making a particular finding in relation to the mental element of the offence.
[8] Chokolich [68].
In determining the 'best estimate' of the term of imprisonment the court would have imposed, the court should, where practicable, follow the procedure and principles that apply to a sentencing hearing.[9] That procedure is modified in that Mr Pearson does not need to plead to the charges given the court must assume that he pleaded guilty at the earliest opportunity. Save for that modification, the process of setting the limiting term is conducted in accordance with the Sentencing Act 1995 (WA) (Sentencing Act) and by having regard to ordinary sentencing principles.[10]
[9] Chokolich [50] ‑ [51]; Smith [17].
[10] Chokolich [51].
The limiting term must be commensurate with the seriousness of the offence.[11] To determine the seriousness of the offence, the court must take into account (subject to the requirement in s 50(2)(b) of the CLMI Act not to take into account any mental impairment):[12]
(1)the statutory penalty for the offence;
(2)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;
(3)any aggravating factors; and
(4)any mitigating factors.
[11] Sentencing Act, s 6(1).
[12] Sentencing Act, s 6(2).
General deterrence remains a relevant sentencing factor given that Mr Pearson's mental impairment must not be considered. The focus of the court, in assessing general deterrence, is on the objective seriousness of the offence.[13]
[13] Smith [98].
The same is the case with specific deterrence - it remains a relevant sentencing factor. In Chokolich, Quinlan CJ described the process of assessing specific deterrence in cases such as Mr Pearson's as follows:[14]
In arriving at a best estimate, without regard to mental impairment, of the need for specific deterrence in a case such as the present, it may be necessary to apply what might be described as a 'run of the mill' weight to specific deterrence (if there be such a thing): to neither give less weight on account of the person's commitment to prosocial behaviour nor additional weight to an unrepentant attitude to future offending.
[14] Chokolich [100].
Where a custody order was made in respect of more than one offence, as in the case of Mr Pearson, the limiting term is the 'best estimate' of the total effective sentence.[15] Considerations of cumulation, concurrency and totality are therefore relevant.[16]
[15] CLMI Act, s 50(4), s 51; Smith [37].
[16] Smith [36] ‑ [41].
The limiting term set by the court is an upper limit on the term of the custody order. The length of time a person ultimately spends on a custody order is determined by the Mental Impairment Review Tribunal (Tribunal).
I now turn to determine the best estimate of the sentence the court would have imposed if it was sentencing Mr Pearson for the offences the subject of the custody order.

Circumstances of the offences

The State read a statement of material facts which was admitted by Mr Pearson and comprised of the findings made by Corboy J in Pearson.[17]
[17] Pearson [17].
The statement of material facts was to the following effect.
Mr Pearson, who was 55 years old at the date of the incident, is married to Abbey, who was 54 years old at the date of the incident. They have been in a relationship for 40 years and were married in 1996. Mr Pearson and Abbey have two sons together, James and Jacob. James was 21 years old and Jacob was 19 years old at the date of the incident. Mr Pearson, Abbey, James and Jacob lived together at their family home.
In the weeks prior to 15 December 2020, members of Mr Pearson's family noticed a change in his behaviour. Mr Pearson appeared stressed because of work and talked about losing his job in February as his contract was ending.
On the night before 15 December 2020, Abbey observed that Mr Pearson was acting weird and seemed withdrawn and quiet. He and Abbey talked about his work and he said he was very stressed and that things were not going well.
On 15 December 2020, the day of the incident, Abbey woke up at about 4.45 am. Mr Pearson got up after a short time and left the room.
At about 5.10 am Jacob woke up. At about 5.20 am Jacob got up and made his breakfast. He did not see his father. At about 5.40 am Jacob went back to his bedroom.
A few minutes later, Mr Pearson came into Jacob's room. He walked past Jacob's bed and opened the blinds on the window. After opening the blinds, Mr Pearson stared out of the window for about 20 seconds. Jacob thought this was a bit unusual. Jacob asked his father if he was alright. Mr Pearson did not reply. Mr Pearson then walked from the window to the foot of Jacob's bed, and they had a short discussion about selling the house. Mr Pearson was in Jacob's bedroom for about two minutes. Jacob did not notice anything unusual about this interaction other than that his father would not usually open his blinds when he came into his bedroom.
Jacob got up and dressed. He walked to the kitchen, picked up his lunch and walked from the kitchen to the garage.
As Jacob was walking past his mother's car he glanced back and saw his father who was right behind him. Jacob did not think anything of it. As Jacob reached the door leading to the front of the house, he realised he had forgotten to say goodbye to his mother. He put his lunch box down and was about to turn to go back inside when his father said to him 'I can't let you go in'. Mr Pearson said this in a normal voice and Jacob thought he was playing around.
Jacob turned to his left to walk back to the kitchen door when he saw his father out of the corner of his eye swinging an object (which was later identified as a metal pole) down at his head and which was about to hit him. Mr Pearson then struck Jacob to his head with the metal pole. Jacob squatted down and put his hand over his head. Jacob did not know what was happening and thought his father was play fighting.
Mr Pearson then struck Jacob another two times to his head. Jacob began yelling for his mother after his father began hitting him.
After a few seconds Jacob looked up and saw his father standing over him holding something black and stabbing at him in a downward motion. Jacob then felt the impact of the bottom of Mr Pearson's hand on his chest once, which was when he stabbed him. Jacob does not remember his father saying anything in the 30 seconds to one minute while he hit or stabbed him.
Abbey heard Jacob yell for her repeatedly and walked towards the garage. When Abbey entered the garage, she saw Jacob and Mr Pearson rustling around on the floor. Jacob was trying to get his father off him. She asked Mr Pearson what he was doing. Mr Pearson did not say anything in response. He turned to look at Abbey and got up. Jacob stayed lying on the ground.
Mr Pearson immediately began walking at pace towards Abbey which caused her to walk backwards into the kitchen. He followed Abbey into the kitchen.
Mr Pearson got to Abbey while she was walking backwards in the kitchen, and when he was about half a metre from her, she put her hands out and tried to push him away from her. Mr Pearson had the knife in his hand. Mr Pearson grabbed her left arm with his right hand as she continued to try to defend herself.
At this point Abbey lost her footing and fell onto her coccyx bone and hit her head on the wooden floor. As she was lying on her back, Mr Pearson lifted his left hand up to about parallel with his shoulder and then swung the knife in a downward stabbing motion towards her neck. The knife penetrated the right side of her neck just below her jaw. Jacob then entered the kitchen and grabbed Mr Pearson from behind and pulled him off her.
Jacob punched his father as hard as he could with his clenched right fist to the back of his head. Jacob then grabbed his father around his neck from behind and continued to punch him with his right fist. He dragged him off Abbey and they fell to the side. Mr Pearson did not attack Jacob or fight back.
Abbey and Jacob noted that Mr Pearson went from being aggressive and looking very angry to apologetic and helpful, like his usual self.
James came into the living area and called 000 at 6.03 am. Mr Pearson walked off and came back a short time later.
After calling 000 James gave the phone to Mr Pearson who then spoke to the operator and admitted stabbing his wife and son and said that he was fully responsible for everything.
At 6.18 am the police arrived at the house.
Mr Pearson was physically shaking when the police arrived and he appeared to be unresponsive. At 6.20 am the police placed Mr Pearson in handcuffs. The paramedics then assisted Jacob and Abbey. They were taken to Royal Perth Hospital.
Police cautioned Mr Pearson and advised him of his rights and that their body worn cameras were recording. Mr Pearson told the police that he had injured his wife and son with two weapons - a post and a knife.
Jacob was treated at Royal Perth Hospital. He sustained the following injuries:
(1)right internal mammary artery injury;
(2)right traumatic haemothorax;
(3)stab wound to right anterior wall/mid clavicular line 4th rib space; and
(4)small laceration right upper lobe of lung.
It is the opinion of Jacob's treating doctors that his injuries were of such a nature as to endanger or be likely to endanger life, his injuries were of such a nature as to cause or be likely to cause permanent injury to health, without medical treatment his life could have been endangered by massive bleeding and sepsis and without medical treatment the likely permanent injuries included possible death due to bleeding and chronic infection. Jacob was discharged from hospital on 21 December 2020.
Abbey was treated at Royal Perth Hospital. She sustained a stab wound to her right neck and cervical spine tenderness.
It is the opinion of Abbey's treating doctors that her injuries were not of such a nature as to endanger or be likely to endanger life and her injuries were not of such a nature as to cause or be likely to cause permanent injury to health. Abbey was discharged from hospital on 17 December 2020.

Mr Pearson's personal circumstances

Mr Pearson was born in England on 15 August 1965. Mr Pearson was 55 years of age at the time of the incident. He is now 59 years of age.
Mr Pearson's family emigrated to Australia in 1968. Mr Pearson was raised in a difficult home environment. He had five siblings and was the second youngest child in the family. Mr Pearson's family experienced severe financial hardship, which was exacerbated by his father's alcoholism. He had a difficult relationship with his father, who was emotionally detached and disengaged.
Mr Pearson's mother died in a motorbike accident when he was 18 years old. This was devastating to him and his family. His mother's death caused some of his siblings to leave the family home. He remained living with his father.
Mr Pearson met Abbey when he was 18 years old, around the time his father and younger brother returned to live in England. He and Abbey were married in December 1996.
Due to his own difficult childhood, Mr Pearson was motivated to establish a strong family unit and to provide for his family both emotionally and financially. Prior to the incident, he had a close and loving relationship with his wife and sons.
Mr Pearson has an excellent employment history. At the time of the incident, he was employed in a senior role for a large oil and gas company.
In the months leading up to the incident, Mr Pearson suffered significant stress. He was concerned about his health, James' mental health and wellbeing as he had broken up with his girlfriend and that Jacob was at risk of self‑harming. He feared that Jacob would be seriously injured in a work accident. He also had concerns about mistakes he felt he had made at work. He felt he had let his family down.
Mr Pearson developed classical symptoms of a depressive disorder and was diagnosed with anxiety and depression on 3 December 2020.
After the incident, Mr Pearson was diagnosed with psychotic depression and commenced anti‑psychotic and anti‑depressant medication.
Mr Pearson currently lives full time with his sister and is not required to return to his place of custody. He is permitted to stay eight nights a month at the family home. He is employed full time, in a different role to that which he had at the time of the incident.

Seriousness of the offending

I now turn to consider the objective seriousness of the offending.
The circumstances of the offending are objectively very serious. Jacob and Abbey would have been terrified and very distressed.
There are a number of aggravating features which demonstrate the seriousness of the offending.
Firstly, the victims were Mr Pearson's wife and son. It was an act of family domestic violence. The prevalence of domestic violence in the community means that general deterrence would have been accorded significant weight.
Secondly, the victims were attacked in their home, where they were entitled to feel safe.
Thirdly, the attack was entirely unprovoked. Jacob and Abbey were defenceless. Abbey was significantly smaller than Mr Pearson.
Fourthly, Mr Pearson used weapons - a metal pole and a sharp‑edged knife.
Fifthly, the victims were stabbed and struck on vulnerable areas of their bodies. The injuries sustained by Jacob were life threatening. Although Abbey's injuries were less serious, they were still significant.

Mitigating factors

I now turn to consider mitigating factors.
Pursuant to s 50(3)(a) of the CLMI Act, Mr Pearson is taken to have pleaded guilty at the earliest opportunity. Accordingly, although the court is not required to do so, it is open to the court to afford the full 25% discount under s 9AA of the Sentencing Act. I consider that it is appropriate to afford Mr Pearson the full 25% discount in the circumstances.
Mr Pearson has seven recorded previous convictions, four relate to traffic offences and three to disorderly behaviour. His last conviction was recorded in 1991. He has no prior convictions for any offences of violence. Mr Pearson's sisters describe him as always having a solid work ethic and being devoted to his family. Mr Pearson's offending was out of character. I consider that Mr Pearson is a person of prior good character.
Immediately after the incident, Mr Pearson began apologising to his wife and son and said that he had done a terrible thing. Mr Pearson made complete admissions to the police and the emergency call operator. While Mr Pearson is not criminally responsible for the offences, he has clearly demonstrated remorse for the acts themselves. While the exercise of sentencing when setting a limiting term is a hypothetical one, given the court must assume that Mr Pearson pleaded guilty at the earliest opportunity and must not take into account any mental impairment, remorse is a relevant factor. I consider that Mr Pearson showed genuine remorse for the acts of stabbing Abbey and Jacob and that this is a mitigating factor.
There is no evidence that Mr Pearson's actions were planned. I take this lack of premeditation into account as a mitigating factor.
Mr Pearson cooperated with authorities and attended to the victims after the attack, to the extent that they permitted him to do so. This is a mitigating factor.

Best estimate of the sentence that would have been imposed

Counsel for the State and counsel for Mr Pearson referred to a number of authorities by way of comparison. The most recent of those being TheState of Western Australia v Radovic[18] in which the Court of Appeal reviewed sentences for attempted murder. I have considered that case and the cases referred to therein. Having said that however, there is no tariff or usual sentencing range for the offence of attempted murder.
[18] The State of Western Australia v Radovic [2020] WASCA 46.
After considering all relevant sentencing factors, including the 25% discount for a plea of guilty, I have determined that the sentences for the individual offences that would have been imposed are:
(1)count 1 - attempt to unlawfully kill Jacob contrary to s 283(1) of the Criminal Code - 7 years imprisonment; and
(2)count 2 - attempt to unlawfully kill Abbey contrary to s 283(1) of the Criminal Code - 5 years imprisonment.
Having now determined the sentences which would have been imposed for each offence, it is necessary for me to assess the extent to which the sentences should be concurrent or cumulative, as well as the issue of totality. The total effective sentence that would have been imposed must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including Mr Pearson's personal circumstances. I must also consider whether the total effective sentence would have a crushing effect.
In the circumstances, in my view, the total effective sentence that the court would have imposed would have been a sentence of 9 years imprisonment. That would have been achieved by structuring the sentence as follows. Count 1 would be the head sentence and the sentence for count 2 would be reduced to 2 years’ imprisonment to be served cumulatively on count 1.
I will therefore set the limiting term for Mr Pearson's existing custody order pursuant to s 264(3) of the CLMI Act as 9 years.
Mr Pearson spent 72 days in custody until he was granted bail on the condition that he obey directions of his treating psychiatrist, including that he reside in a secure psychiatric facility. Given that the custody order was made on 1 June 2022, pursuant to s 264(3) of the CLMI Act and taking into account the time he had spent in custody, the limiting term is taken to have commenced on 21 March 2022.

Orders

Pursuant to s 50 and s 264(1) of the CLMI Act, the limiting term for the custody order made in respect of Robert Matthew Pearson on 1 June 2022 is set as 9 years commencing on 21 March 2022.
As the limiting term has not yet expired, Mr Pearson remains a supervised person pursuant to the CLMI Act. His custody order will continue to be administered by the Tribunal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
7 NOVEMBER 2024