The State of Western Australia v Phillips
[2023] WASCA 104
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PHILLIPS [2023] WASCA 104
CORAM: QUINLAN CJ
BEECH JA
HALL JA
HEARD: 7 JUNE 2023
DELIVERED : 5 JULY 2023
FILE NO/S: CACR 147 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
RAYMOND JAMES LAURENCE PHILLIPS
Respondent
FILE NO/S: CACR 119 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
EVAN JAMES MARTIN
Respondent
ON APPEAL FROM:
For File No: CACR 147 of 2021
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: McGRATH J
File Number : INS 23 of 2021
For File No: CACR 119 of 2022
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: McGRATH J
File Number : INS 49 of 2021
Catchwords:
Criminal law - State appeals against sentences - Co‑offenders - One respondent convicted after plea of guilty of one count of attempted murder - Other respondent convicted after trial of one count of attempted murder - Both respondents sentenced to 9 years' immediate imprisonment after reduction, on grounds of totality, having regard to the term being served at time the offence was committed - Where, while in prison, respondents planned to murder another prisoner - Where one respondent made weapons which other respondent used to inflict 47 stab wounds on victim - Whether sentences were manifestly inadequate
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)
Result:
CACR 147 of 2021
Appeal upheld
Sentencing judge's sentence set aside
Respondent resentenced
CACR 119 of 2022
Extension of time to appeal granted
Leave to appeal granted
Appeal upheld
Sentencing judge's sentence set aside
Respondent resentenced
Category: D
Representation:
CACR 147 of 2021
Counsel:
| Appellant | : | R Owen |
| Respondent | : | K Farley SC |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid (WA) |
CACR 119 of 2022
Counsel:
| Appellant | : | R Owen |
| Respondent | : | M Howard SC |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Anthony Elliott |
Case(s) referred to in decision(s):
CMB v Attorney‑General (NSW) (2015) 256 CLR 346
Jarvis v The Queen (1993) 20 WAR 201
LNV v The State of Western Australia [2021] WASCA 203
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Doodson [2021] WASCA 148
The State of Western Australia v Krakouer [2020] WASCA 133; (2020) 94 MVR 24
The State of Western Australia v Martin [2018] WASCSR 114
The State of Western Australia v Martin [2022] WASCSR 38
The State of Western Australia v Phillips [2021] WASCSR 48
The State of Western Australia v Radovic [2020] WASCA 46
The State of Western Australia v Tumata [2022] WASCA 161
JUDGMENT OF THE COURT:
Introduction
The State appeals against the sentences imposed upon each of the respondents - in the case of Mr Raymond Phillips, upon his plea of guilty, and in the case of Mr Evan Martin, upon his conviction after trial - on charges of attempted murder.
The respondents committed the offence while in custody. Over a period of months, Mr Martin and Mr Phillips planned to attack another prisoner, who had been convicted of child sex offences. Using weapons crafted by Mr Martin, Mr Phillips repeatedly stabbed the victim, inflicting 47 wounds.
At the time of the offending, Mr Phillips was serving a term of imprisonment of 8 years 3 months for a series of violent offences committed against his then-partner and others. The sentencing judge considered that a sentence of 12 years' imprisonment would have been appropriate for Mr Phillips' attempted murder offence. However, having regard to totality considerations, his Honour reduced the term to 9 years, made cumulative upon Mr Phillips' existing sentence.
At the time of the offending, Mr Martin was serving a term of imprisonment of five years for aggravated armed robbery. The judge considered that a sentence of 9 years 6 months' imprisonment would have been the appropriate sentence for Mr Martin's attempted murder offence. However, taking into account the sentence for aggravated armed robbery, which expired 14 months before Mr Martin was sentenced for attempted murder, his Honour reduced the sentence to 9 years' imprisonment, backdated to commence on the day that Mr Martin's earlier sentence expired.
The State now appeals against both respondents' sentences, contending that they are so inadequate as to manifest error.
For the reasons that follow, we would uphold both appeals and resentence each of the respondents. We would resentence Mr Phillips to a term of imprisonment of 12 years, to be served cumulatively on his existing term of 8 years 3 months. We would resentence Mr Martin to a term of imprisonment of 11 years, backdated to commence on the day that his earlier sentence expired.
The facts of Mr Phillips' offending
The facts of Mr Phillips' offending were not and are not in dispute. The facts stated by the sentencing judge in the course of sentencing Mr Phillips were as follows.[1]
[1] The State of Western Australia v Phillips [2021] WASCSR 48 (Phillips sentencing remarks) [3] ‑ [25].
At the time of the offending, Mr Phillips was a prisoner at Acacia Prison. He was 40 years old and 181 cm tall. The victim, who was 170 cm tall and 65 years old, was a prisoner at Acacia Prison who had been convicted of child sex offences.
In September 2020, Mr Martin, to whom the sentencing judge referred as the 'co-accused', was also a prisoner at Acacia Prison. Mr Martin had known the victim for many years and knew of his offending history. On 22 September 2020, Mr Martin threatened to kill the victim.
Knowing the victim's offending history, Mr Martin chose the victim for an attack that he and Mr Phillips planned between September and December 2020.
Mr Martin crafted two improvised sharp-edged weapons, which he hid.
On 22 December 2020, prison authorities moved Mr Phillips to another block. On 24 December 2020, Mr Martin secretly transferred the weapons to Mr Phillips by secreting them in a location for collection by Mr Phillips.
In the afternoon of 27 December 2020, the victim was standing in a walkway near the back garden of one of the blocks of Acacia, waiting to receive medication. Mr Martin, who had been separated from Mr Phillips a few days earlier when prison officers had placed Mr Phillips in a separate block, watched from nearby. Mr Phillips approached the victim from behind, removing the two weapons from his pockets, and then repeatedly stabbed the victim in the head and neck. Mr Phillips threw the victim to the ground, stabbing him in the neck and back repeatedly. He then kicked the victim on the chin, causing him to fall backwards onto the concrete path.
Mr Phillips pushed the victim to the ground several times, continuing to stab him repeatedly in the neck, back, stomach and kidney area. When the victim managed to stand and stagger away from Mr Phillips, Mr Phillips gripped the victim's neck and sliced his neck and throat.
After walking away from the victim, Mr Phillips again approached the victim, pushing him into a garden bed and stabbing him repeatedly in the lower left stomach area.
After prison guards, who had been alerted to the incident, arrived, Mr Phillips faced the prison guards with the knives visible. He stabbed the victim three times to the left side of the neck before walking away. Mr Phillips was then detained by prison guards.
Mr Phillips caused a total of 47 wounds to the victim during the attack, which lasted over one minute.
Mr Phillips was searched, with prison officers finding a three‑page handwritten note in Mr Phillips' pants pocket, saying that he intended to murder a paedophile.
The medical report concerning the victim described multiple stab wounds to the neck, posterior torso, right hand and forearm, as well as a fracture of the scapula, hepatic laceration, closed fracture of the left ribs and a pulmonary contusion. Upon admission to the intensive care unit (ICU), it was considered that the victim may not survive, although, ultimately, he did.
The medical report stated that the victim's injuries were of such a nature as to endanger or be likely to endanger his life, and of such a nature as to cause or be likely to cause permanent injury to his health. The victim has ongoing medical conditions from the injuries he received.
Mr Phillips declined to participate in a video record of interview with police. He pleaded guilty in the Magistrates Court on 28 July 2021 and was committed for sentence.
As will be seen, the facts on which Mr Martin was sentenced were not materially different to the facts on which Mr Phillips was sentenced.
The facts of Mr Martin's offending
In sentencing Mr Martin, the sentencing judge described the extensive formal admissions made by Mr Martin at trial and made findings in relation to the matters disputed at trial.[2] Mr Martin's admissions were as follows.
[2] The State of Western Australia v Martin [2022] WASCSR 38 (Martin sentencing remarks) [10] - [24].
On or about 31 August 2020, Mr Martin was incarcerated at Acacia Prison, having been transferred from Casuarina Prison. At that time, the victim was also in custody at Acacia Prison. On 27 December 2020, Mr Martin was still in custody at Acacia Prison, along with the victim. Both men were housed in the same block. On or about 10 September 2020, Mr Martin requested to be transferred to a different block.
When Mr Martin arrived at Acacia Prison, Mr Phillips was already there. Mr Martin had known Mr Phillips for some time. Mr Martin had known the victim for about 20 years prior to Mr Martin's arrival at Acacia Prison. Mr Martin had dated the victim's daughter in the past. Mr Martin disliked the victim because the victim had committed sexual and other offences against one of the victim's daughters.
In December 2020, Mr Martin 'fashioned' two makeshift knife‑like weapons from materials that he found within the prison. Mr Martin hid the weapons in a garden so that authorities would not locate them.
On 24 December 2020, Mr Martin secreted the weapons in the bottom of a bin in the toilet area of the gym block. Mr Martin told Mr Phillips where he could find the weapons. Mr Martin believed that Mr Phillips could find the weapons and would attack the victim in the near future using one or more of the weapons.
The judge then made findings in relation to the disputed facts as follows.
In September 2020, Mr Martin told the victim, through the fence between their prison blocks, '[the victim's son] is my brother, he's my family. He's given me permission to kill you'. A few days before Christmas 2020, Mr Martin told the victim, '[i]t's going to happen' - a threat, confirming Mr Martin's intention that Mr Phillips would assault the victim.
Mr Martin admitted that, on 27 December 2020, Mr Phillips attacked the victim in a walkway near the back of a garden in the prison block. There were other prisoners present in the garden and in the walkway. Mr Martin was in a different block at the time of the attack. Mr Martin observed the attack because he was standing at the fence line.
Mr Martin admitted that Mr Phillips caused a total of 47 separate wounds to the victim, and that Mr Martin later became aware that the victim was taken from Acacia Prison and admitted to ICU. The judge described the victim's wounds consistently with the wounds described in relation to Mr Phillips' offending. The doctor stated that the injuries were of such a nature as to endanger or be likely to endanger life, or cause permanent injury to health, if medical assistance had not been given to the victim.
On 14 January 2021, Mr Martin was interviewed by police. During the interview, he said that he knew the attack was going to take place, that he made and secreted the weapons knowing they would be used to attack the victim, that he and Mr Phillips planned the attack, and that he had chosen the victim because of Mr Martin's 'personal connection' with him and because the victim was the type of person who betrayed and sexually abused his own daughter.
Mr Phillips' personal circumstances
The sentencing judge summarised Mr Phillips' personal circumstances as follows.[3]
[3] Phillips sentencing remarks [29] - [42].
At the time of sentencing, Mr Phillips was 41 years of age.
Mr Phillips' parents separated when he was 2 years old, and he and his sister were raised by his father. He has had very limited contact with his mother. Mr Phillips was estranged from his sister but had weekly visits from his father.
Mr Phillips was initially bullied at school, but in later years he intimidated others. Mr Phillips left school in year 8 and has been employed in various jobs up until his most recent term of imprisonment. While in custody, Mr Phillips was employed in the kitchen and did artwork.
At the age of 10, Mr Phillips was sexually abused by a person known to him, which has had a significant impact on his life. In 2013 ‑ 2014, Mr Phillips engaged in counselling with the Sexual Assault Referral Centre but had to stop because of funding shortages.
Mr Phillips has four children to three different partners; he has contact with the two children from his first partner, but no contact with his more recent partners and children.
Prior to his remand in custody, Mr Phillips consumed alcohol to excess daily and used methylamphetamine and other illicit substances when socialising. Mr Phillips suffers from depression and has previously attempted suicide.
Mr Phillips has significant anger management issues and violent tendencies, scoring 'well into the psychopathic range' with 'a very high risk of future violent offending unless a range of treatment needs are addressed'. Mr Phillips appeared to have some insight into his propensity for violence. Mr Phillips told the author of the pre‑sentence report that he did not wish to be released from custody due to his assessment that he has an inability to control his violent outbursts and does not wish to harm others in the future if released. Mr Phillips told the author of the pre‑sentence report that he will harm others in the future, especially persons that he begrudges.
Mr Phillips' criminal record
As already noted, at the time he was sentenced, Mr Phillips was already the subject of a sentence of 8 years 3 months, which was imposed on 23 May 2019 and backdated to 19 October 2018. That sentence was imposed for offences of doing an act causing bodily harm; assaulting a public officer; aggravated assault occasioning bodily harm; being armed in a way that may cause fear; endangering the life, health or safety of a person; obstructing a public officer; and breaching a community based order.
Prior to that, Mr Phillips had a range of convictions for offences of violence, including assault occasioning bodily harm, possession of prohibited drugs, breaching court orders and destroying property.
Mr Martin's personal circumstances
The sentencing judge based his description of Mr Martin's personal circumstances on the submissions from Mr Martin's counsel and Mr Martin's psychiatric report dated 27 October 2022.[4]
[4] Martin sentencing remarks [27] - [44].
At the time of sentencing, Mr Martin was 42 years old. Mr Martin was born in New South Wales and moved with his family to Western Australia when he was six months old. Mr Martin has two younger sisters. He was raised by his mother and stepfather because his biological father received a lengthy term of imprisonment when Mr Martin was young. Mr Martin does not have a relationship with his biological father.
Mr Martin's mother and stepfather had substance abuse issues, which led to a transient upbringing whereby he and his siblings moved often and attended several different schools. When Mr Martin was 14 years old, the Department of Child Protection became involved with his family and Mr Martin was 'fending for' himself, assisted by Crisis Care.
Mr Martin attended school until year 8. Mr Martin worked full‑time as a shearer until he was 22 years old. He then worked in various jobs.
Mr Martin commenced using illicit substances when he was 13 years old. He was introduced to heroin by his parents and addicted to opioids between the ages of 13 to 20. Mr Martin also consumed prescription drugs and cannabis. After his first period of imprisonment in 2002, Mr Martin ceased using opioids but occasionally smoked cannabis. Prior to his first and second terms of imprisonment, Mr Martin started using methylamphetamine, which he acknowledged destroyed his life. Mr Martin has been treated for drug addiction with methadone since he was about 25 years old. Mr Martin does not generally drink alcohol because he recognised that it severely impacted his ability to assess risk.
Mr Martin has no significant physical health issues, other than being medicated for high blood pressure and cholesterol. Mr Martin is close to his parents, who are not in good health, and is close to his sisters. He has had two serious long-term relationships as an adult - one with the victim's daughter and the other with another partner, with whom Mr Martin has three children (one of whom Mr Martin has contact with).
Mr Martin has had contact with mental health services since he was 22 years old. His previous diagnoses included adjustment disorder, cluster B personality disorder with borderline traits, and history of self‑harm, complicated by polysubstance abuse. From December 2009, after multiple hospital admissions, Mr Martin's condition was clarified to that of paranoid schizophrenia. His psychiatric report gives a diagnosis of paranoid schizophrenia, borderline personality disorder and post-traumatic stress disorder. Mr Martin's paranoid schizophrenia is characterised by prominent auditory hallucinations, which command him to kill himself and others. His relapses are precipitated by non‑compliance with antipsychotic medications, lack of insight into paranoid schizophrenia, and polysubstance abuse.
Mr Martin, at the time of sentencing, was being treated with antipsychotic medication, anti-anxiety medication, methadone, and, since the offending, antidepressants.
Mr Martin also has an emotionally unstable personality disorder with social and borderline traits, due to substance abuse. Mr Martin has had multiple admissions to psychiatric hospitals since 2007. According to the author of Mr Martin's psychiatric report, Mr Martin requires ongoing, long-term treatment for chronic paranoid schizophrenia, which is in partial remission on antipsychotic drugs.
Mr Martin's criminal record
Mr Martin has a criminal record which includes convictions for violent offending. He has been incarcerated twice previously.[5]
[5] Martin sentencing remarks [46].
On 8 May 2018, Mr Martin was convicted of one count of aggravated armed robbery and sentenced to 5 years' imprisonment, backdated to commence on 28 August 2016. Mr Martin completed that term of imprisonment on 28 August 2021 but remained in custody on remand for the present offence for 14 months prior to sentencing for the present offence.[6]
[6] Martin sentencing remarks [46].
In 2003, Mr Martin was imprisoned for five years for an offence of doing grievous bodily harm, the sentence for which was made cumulative on a three-year term for breaching an intensive supervision order imposed in 2001 for a charge of robbery while armed.[7]
[7] Martin sentencing remarks [46].
Sentencing remarks: Mr Phillips
The sentencing judge described Mr Phillips' offending as serious. His Honour identified the following aggravating factors:[8]
(1)The offending was committed while Mr Phillips was in prison, serving a term of imprisonment for violent offending.
(2)Mr Phillips targeted the victim because he believed the victim was a paedophile, thereby engaging in vigilante behaviour.
(3)The attack was planned and premeditated.
(4)Mr Phillips used weapons to inflict serious injuries on the victim.
(5)Mr Phillips has shown no remorse and no empathy for the victim, telling the author of the pre‑sentence report that he was glad he did not kill the victim, as the victim can now suffer.[9]
[8] Phillips sentencing remarks [47] - [49].
[9] Absence of remorse and empathy is not an aggravating factor; it reflects the absence of a mitigating factor. No complaint was made as to this analytical slip on his Honour's part.
The sentencing judge found that the only mitigating factor in Mr Phillips' favour was his plea of guilty. Finding that the plea of guilty was entered at the first reasonable opportunity, the judge reduced the sentence that would otherwise have been imposed on Mr Phillips by 25% under s 9AA of the Sentencing Act1995 (WA).
The judge found that Mr Phillips was not remorseful and that he did not have good prospects for rehabilitation.
The sentencing judge referred to the need to apply totality considerations, bearing in mind that Mr Phillips was already serving a total effective sentence of 8 years 3 months. His Honour would have imposed a term of imprisonment of 12 years on Mr Phillips, but, for reasons of totality, the judge reduced that term to 9 years' imprisonment, cumulative upon Mr Phillips then-current term of 8 years 3 months.
Rejecting the State's submission to the contrary, the judge made Mr Phillips eligible for parole.
Sentencing remarks: Mr Martin
The sentencing judge identified the following aggravating factors in relation to Mr Martin, characterising his offence as serious:[10]
(1)The offending was committed while Mr Martin was in prison, serving a term of imprisonment.
(2)Mr Martin targeted the victim because he believed the victim was a paedophile who had sexually abused his own daughter, who was a woman known to Mr Martin. Mr Martin thereby engaged in vigilante behaviour.
(3)The attack was planned and premeditated.
(4)Mr Martin facilitated the attempted murder by making two improvised weapons, and then secreting the weapons for Mr Phillips to collect and use in the offending.
(5)As a result of the offending, serious injury was inflicted on the victim.
(6)Although Mr Phillips was the principal offender, Mr Martin's role was pivotal.
[10] Martin sentencing remarks [48] - [53].
His Honour rejected Mr Martin's submission that Mr Phillips had a position of power over Mr Martin and that it was Mr Phillips who initiated and planned the attack. The judge found that both men planned the attack and that the reason that Mr Martin selected the particular victim was personal to Mr Martin.[11]
[11] Martin sentencing remarks [52].
The sentencing judge identified the following mitigating factors in Mr Martin's favour:
(1)Mr Martin accepted responsibility for his actions and offending (although he was not remorseful and had no empathy for the victim).
(2)Mr Martin made extensive admissions prior to trial. His admissions and the manner in which he conducted his trial facilitated justice.
The sentencing judge found that Mr Martin's mental illness did not reduce his moral culpability. The judge found that both general and personal deterrence remained important sentencing considerations in relation to Mr Martin. However, the judge accepted that, given Mr Martin's entrenched and ongoing mental health issues, coupled with restrictions in prison due to COVID-19 and staffing issues, the term of imprisonment would weigh more heavily on Mr Martin than on a prisoner of good health.
In sentencing Mr Martin, the sentencing judge took into account Mr Phillips' sentence for parity purposes. The judge observed that, in sentencing Mr Phillips, his Honour had taken into account totality considerations and the following facts: Mr Phillips was already serving a significant term of imprisonment, Mr Phillips had pleaded guilty, Mr Phillips was the principal offender, the facts of Mr Phillips' offending, and Mr Phillips had a significant criminal record. The judge said that the facts on which Mr Phillips was sentenced accorded with the facts upon which his Honour was sentencing Mr Martin. The judge said that Mr Martin, like Mr Phillips, had a significant criminal record.
The judge found that, although, unlike Mr Phillips, Mr Martin did not have the benefit of a 25% discount, Mr Martin had some additional mitigating factors. The judge found that Mr Phillips' criminality was somewhat greater than Mr Martin's for the reason that Mr Phillips was the principal offender - however, the judge found that Mr Martin's role was 'pivotal' and that his culpability was significant.
The judge accepted that the totality principle should apply in respect of Mr Martin because he had been incarcerated since 28 August 2016 for other offending. The judge would have imposed a sentence of 9 years 6 months' imprisonment on Mr Martin, but reduced that for totality purposes to 9 years' imprisonment. The sentence was backdated to 28 August 2021.
The judge made Mr Martin eligible for parole.
Because of the role of totality in the length and structure of the sentences ultimately imposed by the sentencing judge, it is necessary to outline the facts of both respondents' prior offending, for which they were under sentence at the time that they committed the present offence.
The facts of Mr Phillips' 2018 offending
On 23 May 2019, Mr Phillips pleaded guilty to six offences, all of which occurred on 19 October 2018: (1) doing an act with intent to harm and causing bodily harm; (2) aggravated assault occasioning bodily harm; (3) doing an act endangering life, health or safety; (4) being armed with an offensive weapon; (5) assaulting a public officer who was performing a function of his office; and (6) obstructing a public officer in the performance of his functions. Mr Phillips also breached two community based orders.[12]
[12] ts 23.05.19, 24.
The facts of that offending were to the following effect.[13]
[13] ts 23.05.19, 24 - 27.
On 19 October 2018, Mr Phillips was with his 'on-off' partner, her mother, and Mr Phillips' 11-month-old daughter. In the evening, a verbal altercation started between Mr Phillips and his partner. Mr Phillips was 38 years old. His partner was 29 years old and 20 cm shorter than him.
Mr Phillips grabbed his partner by the hair and threw her into chairs and the kitchen bench, causing her to fall to the floor. He repeatedly stood his partner back up before throwing her to the floor again. When another person distracted Mr Phillips, his partner ran outside and Mr Phillips followed her.
When he caught up with her, Mr Phillips grabbed his partner from behind, put his arm around her throat and punched her to the back of the head. He then twice slammed her to the concrete driveway. While she was lying on the ground, he punched her in the face. Mr Phillips pulled his partner off the driveway by her hair. When the other person got between Mr Phillips and his partner, his partner managed to get out the gate. Mr Phillips then caught her and slammed her into the concrete driveway before kicking her in the body.
Mr Phillips' partner ran out to the road and Mr Phillips caught her and dragged her by her hair back towards the house. Mr Phillips picked his partner up and slammed her into a brick wall, punched her, and slammed her onto the concrete driveway.
After she ran for the house, Mr Phillips caught his partner and slammed her into the ute parked in the driveway, punched her again, slammed her into the concrete driveway again, and dragged her into the house while punching her.
Mr Phillips' partner suffered extensive bruising to her body and face and had a large hank of hair pulled from her scalp (count 1).
The partner's mother went into the bedroom to get pepper spray. Mr Phillips approached her and pushed her in the upper chest area, causing her to fall back and hit her head. She sustained a laceration to the head, which bled copiously (count 2).
When the police arrived, Mr Phillips was holding his 11‑month‑old daughter in one hand and a knife in the other. The police drew their tasers and Mr Phillips positioned his daughter so that she was directly between him and the police officers. One of the police officers deployed their taser, causing Mr Phillips to fall and drop his daughter, who was not injured (counts 3 and 4).
Mr Phillips was arrested and handcuffed. While police were trying to escort Mr Phillips to the police vehicle, he threw himself around and head-butted one of the officers in the shoulder (counts 5 and 6).
The facts relevant to the breach of the community based orders involved Mr Phillips, on 18 August 2017, smashing an antique mirror belonging to his partner's mother and applying force to his partner's neck by grabbing her clothes.
The facts of Mr Martin's 2016 offending
The facts of Mr Martin's 2016 offending were as follows.[14]
[14] The State of Western Australia v Martin [2018] WASCSR 114 [3] - [12].
On 27 August 2016, Mr Martin and a co-offender attended a news agency with their faces disguised and armed with knives.
Mr Martin and his co-offender demanded money from the two victims. Mr Martin pushed one of the victims to the ground and held the knife close to her neck. When the other victim tried to call the police, Mr Martin's co-offender screamed at her to put her phone away and said that he would stab her.
Mr Martin grabbed the cash drawer and ran for the exit. His co‑offender pushed one of the victims and ran after Mr Martin. Mr Martin and his co-offender hid items of clothing and tried to avoid the police.
Mr Martin denied any involvement in the offence. At trial, he formally admitted all elements of the offence except for identity.
Phillips appeal: ground of appeal
The State advances the following ground of appeal in relation to Mr Phillips:
1.There was an error of law when a sentence of 9 years' imprisonment cumulative upon the current term (of 8 years 3 months' imprisonment) was imposed that was so inadequate as to manifest error, having regard to:
(a)the maximum penalty of life imprisonment for the offence of attempted murder;
(b)the serious nature of the offence and the circumstances in which it was committed including:
a. the victim the respondent intended to kill was a prisoner;
b.the respondent was a prisoner currently serving a term including for offences of violence;
c.it was an act of vigilante behaviour against a person whom the respondent believed to be a paedophile;
d.it was premeditated;
e.two sharp-edged weapons were used against the victim; and
f.the respondent struck the victim to vulnerable areas of his body where the potential for a fatal injury was high;
(c)the impact of the offence upon the victim;
(d)the absence of any mitigating circumstances other than the fact-track plea of guilty;
(e)the need for the sentence to adequately reflect personal deterrence given that the respondent had previously been convicted of offences of violence; and
(f)the need for the sentence to adequately reflect general deterrence and appropriate punishment for offending of this nature.
Phillips appeal: submissions
State's submissions
The State refers to the aggravating factors listed by the sentencing judge as set out in [55] above, and submits that the following additional aggravating factors, although not expressly listed as aggravating factors by the sentencing judge, were evident from the sentencing remarks, the State's written sentencing submissions, and the prosecution brief:[15]
(1)The victim was relatively elderly and vulnerable; he was 65 years old and was a sentenced prisoner, confined in proximity to Mr Phillips, and was stabbed from behind while waiting for routine medication.
(2)Mr Phillips stabbed the victim to areas likely to cause fatal injury.
(3)The attack was remorseless, involving 47 separate wounds and lasting over one minute, and involving Mr Phillips pursuing the victim and continuing to stab him while he tried to get away.
(4)The attack occurred in a prison environment and in public - that is, in the open prison grounds.
(5)After the attack, Mr Phillips provided no assistance, walked away, and appeared to relish the outcome, saying, among other things, 'is that paedophile dog dead yet?'
(6)Mr Phillips had a clear intention to kill the victim, as expressed in a note found in Mr Phillips' pocket dated 27 December 2020.
[15] Appellant's Phillips submissions [10].
The State says that the only mitigating factor was Mr Phillips' early plea of guilty. The State observes that the award of the maximum 25% discount for the plea of guilty was generous, given the strength of the State case.[16]
[16] Appellant's Phillips submissions [11].
As to Mr Phillips' previous offending, the State submits that at the time of the attack relevant to this appeal, Mr Phillips was in prison for 'viciously' attacking his domestic partner in a protracted assault.[17] That offending occurred less than three months into two community based orders imposed on Mr Phillips for an earlier assault against the same domestic partner.[18] Previously, from 12 March 2015, Mr Phillips had served a term of 1 year 8 months' immediate imprisonment for violent offending against his former partner.[19] Mr Phillips' violent offending dates back to 1998, and includes five further separate periods of immediate imprisonment.[20]
[17] Appellant's Phillips submissions [13] - [15].
[18] Appellant's Phillips submissions [16].
[19] Appellant's Phillips submissions [17] - [19].
[20] Appellant's Phillips submissions [20] - [22].
The State submits that Mr Phillips' offending was a particularly grave example of attempted murder. The State submits that, having regard to the extensive aggravating factors, and the lack of mitigating factors, the offending must objectively be considered as very close to the worst category.[21]
[21] Appellant's Phillips submissions [25] - [27].
The State says that there has only been one appeal against a sentence for attempted murder relating to an adult offender in the past 12 years,[22] namely The State of Western Australia v Radovic.[23] In Radovic, the Court of Appeal observed that the sentences imposed for attempted murder are variable and that there is no tariff or usual sentencing range.
[22] Appellant's Phillips submissions [28].
[23] The State of Western Australia v Radovic [2020] WASCA 46.
The State submits that the offending in the instant case warranted a substantially more severe sentence than that imposed in Radovic.[24] While acknowledging that the offending in Radovic was aggravated by the victim's status as an on‑duty police officer, the State submits that the offending in the present case is much more serious than the offending in Radovic. In that regard, the State points to the following features of the present case: the considerable premeditation; the inflicting of 47 stab wounds; the grave injuries caused to the victim; the complete lack of remorse of the offender; and the greater vulnerability of the victim.
[24] Appellant's Phillips submissions [39].
The State submits that the 25% reduction for totality was unjustified in the circumstances, significantly contributing to the manifest inadequacy of the sentence.[25]
[25] Appellant's Phillips submissions [42].
The State submits that the totality principle has very limited application in the instant case.[26] The State submits that the assumptions underpinning the rationale for the totality principle - namely, assumed rehabilitation, and reduced demand for retribution and personal deterrence[27] - do not apply in this case because the offending occurred when Mr Phillips had already served 26 months of his sentence for violent offending, Mr Phillips had taken no steps towards rehabilitation while in custody, Mr Phillips' offending had escalated over time despite successive periods in custody, and Mr Phillips said that he did not want to be released from custody and will harm others.[28] Moreover, the need for general deterrence arising from the aggravating features of the offence substantially diminishes the weight to be given to totality in moderating Mr Phillips' sentence.
[26] Appellant's Phillips submissions [42] - [49]; appeal ts 21 - 22.
[27] Appellant's Phillips submissions [43].
[28] Appellant's Phillips submissions [44].
The State submits that the second limb of the totality principle has no application because Mr Phillips was 41 years old and in good physical health when sentenced.[29]
Mr Phillips' submissions
[29] Appellant's Phillips submissions [50] - [51].
Mr Phillips emphasises that he pleaded guilty at the first reasonable opportunity and has never denied any aspect of the offending.[30]
[30] Mr Phillips' submissions [4] - [7].
Mr Phillips submits that his early plea of guilty, although not indicative of remorse, was indicative of acceptance of responsibility and provided utility to the State.[31]
[31] Mr Phillips' submissions [8].
Mr Phillips submits that the undiscounted term of 12 years is not manifestly inadequate and, bearing in mind his plea of guilty - which was absent in Radovic - compares favourably with Radovic.[32]
[32] Mr Phillips' submissions [11].
Mr Phillips submits that the total effective sentence (for both the present offence and his 2018 offending) of 17 years 3 months' imprisonment is a lengthy term.[33] In making the sentence for attempted murder cumulative on the 2019 sentence, the judge clearly reviewed the aggregate sentence and considered whether that was just and appropriate.[34] In sentencing Mr Phillips, and in light of his Honour's decision to accumulate the sentences, the judge correctly applied the totality principle.[35] Consequently, this court should not interfere with the sentencing judge's careful exercise of discretion as to the appropriate sentence.[36]
[33] Mr Phillips' submissions [14].
[34] Mr Phillips' submissions [15].
[35] Mr Phillips' submissions [16] - [21].
[36] Appeal ts 24 - 26.
General principles
In each appeal, the State's challenge is to the length of the sentence imposed, namely 9 years' imprisonment, being manifestly inadequate. Nevertheless, totality principles are of some relevance because totality informed the length of the sentence ultimately imposed on each offender.
The following general principles, applicable to an appeal against sentence asserting that the sentence is manifestly inadequate (or excessive) or that the total effective sentence infringes the first limb of the totality principle, are well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness for crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and the individual sentence's contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
Phillips appeal: disposition
The maximum penalty for attempted murder is life imprisonment.
Mr Phillips' offence had a number of features that made it, objectively, a very serious example of the offence of attempted murder.
First, the attack was premeditated, being planned over a period of months. Given the centrality of intention to the offence of attempted murder, the lengthy duration of Mr Phillips' intention to attack the victim is itself a seriously aggravating feature of his offence.
Secondly, Mr Phillips used weapons in attacking the victim.
Thirdly, Mr Phillips' attack was persistent and remorseless. He inflicted 47 separate wounds, pursuing the victim and continuing to stab him while the victim tried to get away. Mr Phillips persisted in the attack even when guards approached.
Fourthly, Mr Phillips stabbed the victim in areas - namely the neck, back and stomach - which, by their nature, were liable to cause fatal injury. It can fairly be said that Mr Phillips did everything he could to kill the victim.
Fifthly, Mr Phillips caused very serious injury to the victim. The victim sustained multiple stab wounds to the neck, posterior torso, right hand and forearm; a fractured scapular; a liver injury; a closed fracture of the left ribs; and a pulmonary contusion. When the victim was admitted to ICU, it was considered that he may not survive his injuries. He was in hospital for almost eight weeks. The victim was left with a limp and an inability to walk properly. He suffers ongoing pain in his ribs and has issues with his neck. Thus, the victim has suffered serious and apparently permanent harm from the attack.
Sixthly, Mr Phillips committed his offence while serving a term of imprisonment for violent offending. As Quinlan CJ explained in The State of Western Australia v Tumata,[37] the fact that the offence occurred in the prison environment is a significantly aggravating factor:
The curtailment of individual liberty by the State is a serious matter that always requires serious justification under the law. Generally speaking, the law only permits persons to be detained in custody as punishment for crimes committed, for the protection of the community or (as in the case of the victim in the present case) as an incident of the judicial process itself.
The community, on whose behalf and for whose benefit prisoners are lawfully detained, are entitled to expect that those prisoners will be treated in a civilised manner and that they will be given the same protection under the law as the rest of the community. Offending such as that in the present case, which takes advantage of the vulnerability brought about by the victim's involuntary detention by the State, therefore offends against the criminal justice system itself. It undermines the good order and discipline of the prison environment and so undermines both the punitive and rehabilitative aims of that environment. It calls for a sentence that sends a clear message that such conduct cannot be tolerated.
The victim was also vulnerable by reason of his age; he was 65 years old.
[37] The State of Western Australia v Tumata [2022] WASCA 161 [13] ‑ [14]; see also what was said to similar effect by Mazza and Vaughan JJA at [114] ‑ [116].
Seventhly, the offending was motivated by vigilantism - a desire to inflict punishment on someone for his offending sexually against a child. This court has recognised that in some cases vigilantism is a seriously aggravating factor.[38] To state the obvious, any notion that one or more prisoners can engage in their own personal campaign of imparting additional 'punishment' on a prisoner for the latter prisoner's offence(s) is an affront to the system of criminal justice. The commission of this offence, aimed at a child sex offender, in an area open to, and so viewable by, a large number of prisoners heightened the need to give weight to the maintenance of good order and discipline in the prison environment.
[38] The State of Western Australia v Krakouer [2020] WASCA 133; (2020) 94 MVR 24 [78].
Any offence that had the first five of these features of Mr Phillips' offence would thereby be a very serious example of the offence of attempted murder, regardless of where the offence occurred and regardless of the motivation for it. The last two features in combination further elevate, to a substantial degree, the seriousness of Mr Phillips' offence and reinforce the need to give weight to deterrence and denunciation.
The only mitigating factor in Mr Phillips' favour was his plea of guilty.
In our view, there was only limited room for the totality principle to moderate the sentence properly imposed on Mr Phillips.
Mr Phillips' earlier violent offences were, of course, entirely separate in time, place and criminality, and were themselves very serious offences.
Although made in a case where the offender was released on parole and then the next day committed a further offence, this court's observations in The State of Western Australia v Doodson[39] are worth repeating:
As was noted in Roffey v The State of Western Australia,[40] a rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. So too there may be assumed to be a lesser demand for personal deterrence. However, the commission of further offences while on parole may negate an assumption that rehabilitation has been achieved. Where an offence is committed towards the end of a sentence already being served, the partial service of an earlier sentence may do little to reduce demand for retribution for later serious offending and the need for personal deterrence.
Considerations of general deterrence may also be relevant. It should not be thought that a person serving a significant sentence can act with impunity in the expectation that any sentence for further offences will be served wholly or largely concurrently.
The above considerations may, depending on all the circumstances, lead to a conclusion that subsequent offending adds to the offender's overall criminality to a greater extent than would be the case if all offending occurred before a sentence was imposed for any of the offending.
[39] The State of Western Australia v Doodson [2021] WASCA 148 [50] - [52].
[40] Roffey v The State of Western Australia [2007] WASCA 246 [26].
As this court noted in LNV v The State of Western Australia,[41] at its core, the totality principle requires due proportionality of the total offending and the total punishment. Due proportionality requires adequate severity just as much as it requires the avoidance of excessive severity.
[41] LNV v The State of Western Australia [2021] WASCA 203 [49].
Insofar as the totality principle is founded on assumed rehabilitation and reduced demand for retribution, the totality principle has a very limited role to play in relation to Mr Phillips. His prospects of rehabilitation were aptly characterised at the hearing of the appeal as 'grim'.[42] That is so having regard to his extensive criminal record, his claimed pride in what he did, and his expressed expectation that he will do something similar again in the future. For corresponding reasons, there cannot be said to be a lesser demand for personal deterrence in relation to Mr Phillips. Nor is there a materially reduced demand for retribution, bearing in mind the environment in which the offence was committed and its motivation.
[42] Appeal ts 21 - 22.
In applying totality to moderate a sentence to be imposed for a serious offence committed by a person in the prison environment, it is important not to create any impression that, when a person is already in prison, the punishment for any offence they commit will be substantially discounted. As earlier observed, the fact that the offence was committed in the prison environment and was motivated by a desire to inflict punishment on someone for his offending sexually against a child substantially aggravated the seriousness of Mr Phillips' offence and heightened the need for deterrence. Those features of Mr Phillips' offence, which engage the considerations identified by Quinlan CJ in The State of Western Australia v Tumata,[43] significantly limit the extent to which totality can properly moderate his sentence.
[43] The State of Western Australia v Tumata [13] - [14].
As this court noted in Radovic,[44] sentences for attempted murder are variable, as the seriousness of a particular offence and the extent of mitigatory factors in particular cases vary significantly. No usual sentencing range for offences of attempted murder can be discerned. In our view, evaluation of whether Mr Phillips' sentence is manifestly inadequate is not assisted by comparison with the single case - Radovic - addressed by the parties' submissions.
[44] Radovic [61].
Having regard to the maximum penalty of life imprisonment, the place that Mr Phillips' offence occupies on the scale of seriousness of crimes of attempted murder, all relevant aggravating and mitigating factors, and Mr Phillips' personal circumstances, we have reached the conclusion that Mr Phillips' sentence of 9 years' imprisonment was not merely low, but was unreasonable or plainly unjust. In our respectful opinion, having regard to the matters set out in [102] ‑ [118] above, the sentence imposed was not commensurate with the objective seriousness of the offence.
Phillips appeal: residual discretion
Counsel for the respondent did not raise any matter bearing on the residual discretion. Nonetheless, the State must negate any reason why the residual discretion of this court, under s 31(4) of the Criminal Appeals Act 2004 (WA), not to interfere with the sentence imposed below, should be exercised.[45]
[45] CMB v Attorney‑General (NSW) (2015) 256 CLR 346 [33] - [34], [66].
In our opinion, the intervention of this court in the appeal is necessary to maintain adequate standards of sentencing for the serious offence of attempted murder, which, as explained, was substantially aggravated by its commission in the setting of a prison. The public interest in the maintenance of appropriate sentencing standards requires that the appeal be allowed, the sentence imposed by the sentencing judge be set aside, and Mr Phillips be resentenced.
Phillips appeal: resentencing
This court has the material necessary to resentence Mr Phillips.
We take into account, without repeating, what we have already said concerning the facts and circumstances of the offence, Mr Phillips' personal circumstances, and the aggravating and mitigating factors.
Having regard to the overwhelming strength of the prosecution case, we would discount Mr Phillips' sentence on account of his plea of guilty pursuant to s 9AA of the Sentencing Act by 20%.
Exercising the sentencing discretion afresh, leaving aside considerations of totality, after reducing the sentence on account of Mr Phillips' plea of guilty, we would have imposed a term of imprisonment of 13 years. Having regard to totality considerations arising from Mr Phillips' being under the existing sentence of 8 years 3 months, more than 3 years of which he is still to serve, we would reduce the sentence for Mr Phillips' offence of attempted murder to a term of 12 years' imprisonment, to be served cumulatively on Mr Phillips' existing sentence.
Martin appeal: ground of appeal
The State advances the following ground of appeal:
(1)The sentencing judge erred in law by imposing a sentence of 9 years' immediate imprisonment for the offence of attempted murder that is so inadequate as to manifest error having regard to:
(a)The maximum penalty of life imprisonment for the offence of attempted murder;
(b)The serious nature of the offence and the circumstances in which it was committed including:
a.The victim the respondent intended to kill was a prisoner;
b.The respondent was a prisoner currently serving a term for a violent offence;
c.It was an act of vigilante behaviour against a person whom the respondent believed to be a paedophile;
d.It was premeditated;
e.Two sharp-edged weapons, manufactured by the respondent were used against the victim; and
f.The co-offender struck the victim to vulnerable areas of his body where the potential for a fatal injury was high;
(c)The impact of the offence upon the victim;
(d)The limited scope of matters in mitigation;
(e)The need for the sentence to adequately reflect personal deterrence given that the respondent had previously been convicted of offences of violence; and
(f)The need for the sentence to adequately reflect general deterrence and appropriate punishment for offending of this nature.
Martin appeal: submissions
State's submissions
In addition to the aggravating factors expressly identified by the sentencing judge, the State submits that the following aggravating factors were evident from the sentencing remarks, the State's written sentencing submissions, and the material in the prosecution brief:[46]
(1)The age of the victim, who was 65 years old when attacked, and the victim's vulnerability, as a sentenced prisoner confined in proximity with Mr Phillips.
(2)The areas of the victim's body that were stabbed, which were areas likely to cause fatal injury.
(3)The extent of the attack, which was 'remorseless', with 47 separate wounds inflicted in an attack lasting over one minute and which was observed by Mr Martin.
(4)The offending occurred in public, where other prisoners, including Mr Martin, were present to observe the attack.
(5)It was Mr Martin's personal dislike of the victim's offending, and personal relationship with him, that led to Mr Martin selecting the victim as Mr Phillips' target. In the lead up to the attack, Mr Martin made threats to the victim. Mr Martin knew the attack was going to take place and was there to watch.
(6)Mr Martin intended to kill the victim, which is evidenced by the threats he made to the victim prior to the attack. The appellant also points to Mr Martin's admission that he planned the attack with Mr Phillips and that he made and secreted the weapons.
[46] Appellant's Martin submissions [12].
With reference to Mr Martin's overall criminal history, the State submits that the appellant has a significant criminal record with violent offending dating back to 2001.[47]
[47] Appellant's Martin submissions [17].
Acknowledging that no submissions were advanced at sentencing about whether the offending was in the 'worst category', the State submits that, having regard to the extensive aggravating factors and Mr Martin's limited mitigating factors, the offending must objectively be considered as very close to falling into the worst category.[48]
[48] Appellant's Martin submissions [21] - [22]
The State repeats its submissions in the Phillips appeal summarised at [91] ‑ [92] and [94] ‑ [95] above.[49]
[49] Appellant's Martin submissions [26], [42].
The State submits that both general and personal deterrence were important in this case.[50] In relation to general deterrence, the State points to the fact that the offending occurred in prison.[51] It further submits that the fact that the offending was motivated by vigilantism was a seriously aggravating factor.[52]
Mr Martin's submissions
[50] Appellant's Martin submissions [32].
[51] Appellant's Martin submissions [33.1].
[52] Appellant's Martin submissions [34].
Mr Martin submits that the significant fact which led the sentencing judge to impose the same sentence on Mr Martin as had been imposed on Mr Phillips was that Mr Phillips' criminality was somewhat greater because he was the principal offender.[53]
[53] Mr Martin's submissions [5].
Mr Martin submits that it is clear that the judge considered that parity should apply, and that, because Mr Martin's conduct was less grave than Mr Phillips', Mr Martin should not receive a higher sentence than Mr Phillips.[54] He submits that the judge's evident concern to ensure parity with Mr Phillips' sentence must be borne in mind in evaluating whether Mr Martin's sentence is manifestly inadequate.[55]
[54] Mr Martin's submissions [7] - [8].
[55] Appeal ts 30 - 31.
Mr Martin does not dispute that, as submitted by the State, the victim's age and vulnerability, and the seriousness of the areas of the stabbing on the victim's body, were aggravating factors.[56]
[56] Mr Martin's submissions [13] - [14].
Mr Martin challenges the State's contention that the extent of the attack - namely, that it was 'remorseless', involving 47 separate wounds and lasting over one minute - was an aggravating factor in respect of Mr Martin. Mr Martin submits that there was no evidence that Mr Martin intended such a remorseless attack, or that Mr Martin was aware that Mr Phillips had such an intention.[57] Mr Martin submits that this is 'precisely the reason' why the judge was entitled to impose a sentence on Mr Martin which was no longer than the sentence imposed on Mr Phillips.[58]
[57] Mr Martin's submissions [14] - [16].
[58] Mr Martin's submissions [17].
Mr Martin submits that the judge had proper regard to the total effective period of imprisonment, taking into account Mr Martin's previous offending and the instant serious offence of attempted murder. Mr Martin submits that the judge also took into account that the offending took place while Mr Martin was in custody and that, by the time of sentencing for the present offence, his previous sentence had concluded and he had spent an additional 7 months in custody awaiting trial.[59] Mr Martin submits that, in doing so, the judge correctly had regard to Mr Martin's lesser role in the offending.[60]
[59] Mr Martin's submissions [27].
[60] Mr Martin's submissions [28].
Mr Martin submits that, while a serious offence, Mr Martin's offence was not very close to the worst category.[61] Mr Martin submits that Mr Martin's acts were very different to, and objectively less serious than, those of Mr Phillips.[62]
[61] Mr Martin's submissions [29].
[62] Mr Martin's submissions [31].
Mr Martin submits that it is erroneous to characterise, as the State's submissions do, Mr Martin's criminality as 'much more serious than [in] Radovic'.[63] Mr Martin accepts that the intention to kill was formed earlier than in Radovic, but submits that that was a necessary incident of the offence taking place in prison. Mr Martin observes that the offender in Radovic expressed a desire to kill a number of people. Mr Martin submits that the weapon in Radovic was substantially more dangerous. Mr Martin submits that, here, the extent to which Mr Martin is criminally responsible for Mr Phillips' behaviour is disputed. Mr Martin submits that the victim in Radovic was also vulnerable, and that vulnerableness is not a useful distinction between the two cases.[64]
[63] Mr Martin's submissions [32].
[64] Mr Martin's submissions [32].
Mr Martin says the following in relation to vigilantism: care should be taken to not simply continuously inflate a sentence by 'totting up' deterrent factors; the difference between attacks on police and attacks on prisoners by way of vigilantism does not warrant any substantial difference in penalty between this case and Radovic; there is an overlap between attacking in prison and being a prisoner; and the conduct in Radovic seemed to also involve retribution.[65]
[65] Mr Martin's submissions [37] - [40].
Martin appeal: disposition
Mr Martin's offence had a number of very serious features.
First, together with Mr Phillips, Mr Martin planned the attack over a period of months. He chose the victim of the attack. Mr Martin's commitment to the plan is reflected in the fact that he told the victim, both in September and again in December, that the victim would be killed. Mr Martin crafted the weapons to be used in the attack, hid them for a period and then moved them to a location to enable Mr Phillips to obtain them.
Secondly, Mr Martin thereby enabled Mr Phillips to use weapons in attacking the victim. Mr Martin ensured that, at the time planned for the attack, Mr Martin was in a location to enable him to observe the attack.
Thirdly, as a result of the offending, serious injury was inflicted on the victim.
Fourthly, Mr Martin planned and committed his offence in the prison environment and the attack that Mr Martin facilitated was to occur, and did occur, in the prison environment.
Fifthly, Mr Martin chose the victim because he believed that the victim was a paedophile.
Thus, what is said in [109] ‑ [110] above applies equally here. As with Mr Phillips, these features of Mr Martin's offending elevate, to a substantial degree, the seriousness of his offence and reinforce the need to give weight to deterrence and denunciation.
There were very few mitigating factors in Mr Martin's favour. While he accepted responsibility for his offending, he was not remorseful and had no empathy for the victim. Further, although he made substantial admissions prior to trial, Mr Martin did not have the benefit of a plea of guilty.
The sentencing judge also found that given Mr Martin's entrenched ongoing mental health issues, the term of imprisonment would weigh more heavily on Mr Martin than on a prisoner of good health.
Totality had a very limited role to play in the sentencing of Mr Martin. What we have said in [118] above applies equally here. Moreover, totality had a lesser role to play in relation to Mr Martin than it did as to Mr Phillips. Mr Phillips' existing sentence was not due to expire until 2027, whereas Mr Martin's existing sentence had expired more than 14 months prior to when he was sentenced by the sentencing judge. It has been recognised that a sentence which will not take effect for some years may be seen, on that account, to be a harsher sentence than one of the same length which takes effect immediately.[66]
[66] Jarvis v The Queen (1993) 20 WAR 201, 217.
We accept that the need to have regard to parity as between Mr Phillips and Mr Martin is relevant to the evaluation of whether Mr Martin's sentence is manifestly inadequate. In that context, we proceed on the basis of the sentencing judge's unchallenged finding, expressed in broad terms, that Mr Martin's criminality was somewhat lesser than Mr Phillips, but that Mr Martin's role was nevertheless pivotal. As to the suggestion that Mr Martin did not intend such a remorseless attack, there can be no doubt that he aided Mr Phillips in what was intended to be a fatal attack. In evaluating parity as between the two offenders, it is significant that Mr Martin did not have the benefit of a plea of guilty, for which Mr Phillips received a 25% discount. Nor, as we have said, did Mr Martin have further years to serve on his sentence.
As to the limited assistance to be derived from consideration of sentences in other cases, we repeat what we have said at [119] above.
In our respectful opinion, having regard to all the circumstances of the case and the matters to which we have referred, the sentence imposed on Mr Martin was manifestly inadequate. To our minds, having regard to the serious nature of Mr Martin's offence, with the aggravating features to which we have referred, giving full weight to the mitigating factors in his favour and having regard to the need for parity with Mr Phillips' sentence, the sentence of 9 years' imprisonment was unjustifiably low, so as to reveal error.
As to the residual discretion, applying the principles stated in [121] above, what we have said in [122] applies in relation to Mr Martin. The State's appeal against Mr Martin's sentence should be allowed and Mr Martin should be resentenced.
Martin appeal: resentencing
Again, we take into account, without repeating, what we have already said concerning the facts and circumstances of the offence, Mr Martin's personal circumstances, and all relevant aggravating and mitigating factors.
Exercising the sentencing discretion afresh, we would impose a term of 11 years' imprisonment on Mr Martin. We would backdate Mr Martin's sentence to commence on the day that his earlier sentence expired, namely 28 August 2021. We would not reduce the sentence on grounds of totality. We would order eligibility for parole.
Conclusion
In the Phillips appeal, we would make the following orders:
1.The appeal is upheld.
2.The sentencing judge's sentence is set aside.
3.In substitution, Mr Phillips is sentenced to a term of 12 years' imprisonment, cumulative on his current sentence of 8 years 3 months' imprisonment. Mr Phillips is eligible for parole.
In the Martin appeal, we would make the following orders:
1.There be an extension of time to appeal.
2.Leave to appeal on the single ground of appeal is granted.
3.The appeal is upheld.
4.The sentencing judge's sentence is set aside.
5.In substitution, Mr Martin is sentenced to a term of 11 years' imprisonment, backdated to commence on 28 August 2021. Mr Martin is eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AE
Associate to the Honourable Justice Beech
5 JULY 2023
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