The State of Western Australia v Smith
[2015] WASCA 87
•4 MAY 2015
THE STATE OF WESTERN AUSTRALIA -v- SMITH [2015] WASCA 87
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 87 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:111/2014 | 11 FEBRUARY 2015 | |
| Coram: | MARTIN CJ BUSS JA MAZZA JA | 4/05/15 | |
| 46 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA PHILLIP JOHN SMITH |
Catchwords: | Criminal law State appeal against sentence Murder Life imprisonment with minimum term of 17 years prior to eligibility for parole Whether minimum non-parole period manifestly inadequate |
Legislation: | Criminal Code (WA), s 279 Criminal Law Amendment (Homicide) Act 2008 (WA) Sentencing Act 1995 (WA), s 90(1) |
Case References: | Angliss v The State of Western Australia [2015] WASCA 8 Atherden v The State of Western Australia [2010] WASCA 33 Austic v The State of Western Australia [2010] WASCA 110 Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372 Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 Chan v The Queen (1989) 38 A Crim R 337 Cockram v The State of Western Australia [2011] WASCA 179 Cooley v The State of Western Australia [2005] WASCA 160 Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367 Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 Dinsdale v The Queen (2000) 202 CLR 321 Egitmen v The State of Western Australia [2014] WASCA 198 Fernandes v The State of Western Australia [2009] WASCA 227 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328 Heijne v The State of Western Australia [2010] WASCA 86 House v The King (1936) 55 CLR 499 Johnston v The State of Western Australia [2012] WASCA 18 Khan v The State of Western Australia [2013] WASCA 193 Kuzimski v The State of Western Australia [2012] WASCA 202 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Mack v The State of Western Australia [2014] WASCA 207 Martinez v The State of Western Australia [2007] WASCA 143 Mikhail v The State of Western Australia [2012] WASCA 200 Pedersen v The State of Western Australia [2010] WASCA 175 PES v The State of Western Australia [2014] WASCA 96 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 Prestidge v The State of Western Australia [2014] WASCA 16 Rosewood v The State of Western Australia [2014] WASCA 21 Scott v Pauly (1917) 24 CLR 274 Silva v The State of Western Australia [2013] WASCA 278 Stinson v The State of Western Australia [2014] WASCA 72 The State of Western Australia v Akizuki [2008] WASCA 267 The State of Western Australia v Lee [2013] WASCA 246 The State of Western Australia v Lele [2014] WASCR 123 The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 The State of Western Australia v Smith [2014] WASCSR 87 The State of Western Australia v Waterfall [2014] WASCR 96 Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- SMITH [2015] WASCA 87 CORAM : MARTIN CJ
- BUSS JA
MAZZA JA
- Appellant
AND
PHILLIP JOHN SMITH
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HALL J
File No : INS 96 of 2013
Catchwords:
Criminal law - State appeal against sentence - Murder - Life imprisonment with minimum term of 17 years prior to eligibility for parole - Whether minimum non-parole period manifestly inadequate
Legislation:
Criminal Code (WA), s 279
Criminal Law Amendment (Homicide) Act 2008 (WA)
Sentencing Act 1995 (WA), s 90(1)
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr B Fiannaca SC
Respondent : Ms K J Farley SC & Ms K M Niclair
Solicitors:
Appellant : Director of Public Prosecutions (WA)
Respondent : Legal Aid (WA)
Case(s) referred to in judgment(s):
Angliss v The State of Western Australia [2015] WASCA 8
Atherden v The State of Western Australia [2010] WASCA 33
Austic v The State of Western Australia [2010] WASCA 110
Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Chan v The Queen (1989) 38 A Crim R 337
Cockram v The State of Western Australia [2011] WASCA 179
Cooley v The State of Western Australia [2005] WASCA 160
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Dinsdale v The Queen (2000) 202 CLR 321
Egitmen v The State of Western Australia [2014] WASCA 198
Fernandes v The State of Western Australia [2009] WASCA 227
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Heijne v The State of Western Australia [2010] WASCA 86
House v The King (1936) 55 CLR 499
Johnston v The State of Western Australia [2012] WASCA 18
Khan v The State of Western Australia [2013] WASCA 193
Kuzimski v The State of Western Australia [2012] WASCA 202
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mack v The State of Western Australia [2014] WASCA 207
Martinez v The State of Western Australia [2007] WASCA 143
Mikhail v The State of Western Australia [2012] WASCA 200
Pedersen v The State of Western Australia [2010] WASCA 175
PES v The State of Western Australia [2014] WASCA 96
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
Prestidge v The State of Western Australia [2014] WASCA 16
Rosewood v The State of Western Australia [2014] WASCA 21
Scott v Pauly (1917) 24 CLR 274
Silva v The State of Western Australia [2013] WASCA 278
Stinson v The State of Western Australia [2014] WASCA 72
The State of Western Australia v Akizuki [2008] WASCA 267
The State of Western Australia v Lee [2013] WASCA 246
The State of Western Australia v Lele [2014] WASCSR 123
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
The State of Western Australia v Smith [2014] WASCSR 87
The State of Western Australia v Waterfall [2014] WASCSR 96
Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91
Table of Contents
Martin CJ
Summary 5
The facts 5
Personal circumstances 8
Mitigating factors 10
Appeals on the ground of implied error - general principles 11
The ambit of the appeal 13
Murder - the sentencing regime 14
The previous cases relied on by the State 15
- Kuzimski 16
Mikhail 17
Cockram 19
Pedersen 21
Johnston 22
Silva 23
Lee 25
Rosewood 26
Stinson 28
- Silich 30
Disposition 31
Buss & Mazza JJA
The sole ground of appeal 33
The facts and circumstances of the offending 33
The respondent's personal circumstances and antecedents 35
The trial judge's findings of fact 37
The State's submissions in the appeal 39
The merits of the appeal 39
Conclusion 46
- MARTIN CJ:
Summary
1 Phillip John Smith (the respondent) was convicted after trial of the murder of Damien Noakes. He was sentenced to life imprisonment with a minimum term of 17 years prior to being eligible for parole. The State appeals against that sentence on the sole ground that it was manifestly inadequate. For the reasons which follow, it has not been established that the sentence imposed was vitiated by implied error such as to enliven the jurisdiction of this court to quash the sentence imposed and resentence the respondent. The appeal should be dismissed.
The facts
2 There is no challenge to the findings of fact made by the trial judge. The following relevant facts are taken from those findings.1
3 During June 2012, Mr Smith travelled to Western Australia by car from South Australia pursuant to an arrangement with the owner of the car, who travelled with him. However, shortly after arriving in Perth the two men had a falling out and parted company. Mr Smith had his personal belongings and his dog with him, but had nowhere to stay.
4 On Monday 25 June 2012 Mr Smith went to a community centre in Fremantle which provides assistance to homeless people and others. He was advised that a medical practitioner would be attending the centre the following day.
5 Mr Smith attended upon that doctor for the purpose of obtaining a prescription for antidepressant drugs, which he had been using for a number of years.
6 It was about this time that Mr Smith met Mr Noakes. When Mr Noakes learnt that Mr Smith was living on the streets, he offered him the opportunity to sleep on a couch at the unit of friend where Mr Noakes was then staying. He agreed that Mr Smith could bring his dog with him.
7 The two men then went to a shopping centre where food vouchers were used to acquire food. They then walked to the unit where Mr Noakes was staying, which was in Mosman Park, where they ate dinner together, after which Mr Smith fell asleep on the couch with his dog.
8 After the two men woke the next morning they started drinking. After breakfast and rearranging some of the furniture in the unit, the men decided to go to Fremantle to sell some of their belongings in order to obtain money with which to buy alcohol. Mr Smith pawned an earring, and Mr Noakes pawned a DVD player. The proceeds were pooled and used to buy a block of beer at about 3.30 pm that afternoon. They then returned by train to the unit in Mosman Park and resumed drinking.
9 Mr Smith cooked a meal during which, according to him, Mr Noakes became annoyed with the manner in which he was cooking. A little while later Mr Smith was sitting on the couch where he became teary and emotional - according to him, because he was talking about his daughter. According to Mr Smith, Mr Noakes told him to snap out of it and took him by the ears and shook his head.
10 According to Mr Smith, he had no recollection of the events which followed until some point later in the evening, after Mr Noakes had met his death.
11 During that time Mr Smith launched an extremely violent attack upon Mr Noakes, using a blunt instrument, probably a coffee table leg, to hit him repeatedly on the head, face and arms. Those blows caused lacerations and haemorrhages to the head of Mr Noakes and fractured his nose and lower jaw.
12 At some point Mr Smith used a knife to stab Mr Noakes to various parts of his body, including a wound to his back which pierced his lung and caused internal bleeding, a cut to the Achilles tendon on his left leg, and, most significantly, seven stab wounds to the right side and two stab wounds to the left side of the neck. One of those wounds was a continuous wound from right to left - that is, the knife had gone into the right side of the neck and exited from the left side, causing two wounds to the surface, so that the nine wounds resulted from eight stabs to the neck of the deceased. Several of those wounds severed Mr Noakes' jugular vein, which was the likely cause of his death.
13 From the number, spread and type of injuries sustained by Mr Noakes, the trial judge concluded that he had been subjected to a sustained and brutal attack, although it was impossible for him to determine how long it had continued. The judge noted that there was no evidence to suggest that Mr Smith was acting in self-defence - he sustained no injuries of any significance and there was nothing to indicate that Mr Noakes was armed or had threatened Mr Smith in any way. Further, the number of stab wounds directed to the neck of Mr Noakes led the trial judge to conclude that Mr Smith intended to cause his death.
14 The trial judge also found that the murder was not premeditated and Mr Smith had not formulated any plan to kill Mr Noakes, nor did he have any apparent motive - rather, it was a frenzied attack.
15 The trial judge noted that according to Mr Smith, his next memory was of standing over Mr Noakes covered in blood. He covered Mr Noakes' body with a blanket because he did not want to face what he had done. He then took a shower, after placing a cushion on the floor to make sure that he did not walk in the blood. Mr Noakes' body was in the bedroom in the unit. Mr Smith took a mattress into the lounge room, closed the bedroom door, drank some more, listened to music and fell asleep.
16 The next morning Mr Smith wanted to leave the unit but could not find his prescription. In the course of looking for it he came across a bottle of turpentine, which gave him the idea of setting a fire. He then went to a service station and obtained petrol which he used to douse the unit after he had packed his belongings. He then started a fire and left.
17 The unit was a ground floor unit in a double storey apartment building. The fire spread, causing extensive structural damage and gutting the unit. Mr Noakes' partly burnt body was located by fire and emergency services who attended the fire.
18 The trial judge noted that Mr Smith asserted that he lit the fire in order to ensure that Mr Noakes' body was found. However, he did not accept that assertion and found that Mr Smith's primary motivation in lighting the fire was an attempt to conceal what he had done.
19 Over the ensuing week Mr Smith found other accommodation but did not disclose what he had done to anybody. When interviewed by police about a week after Mr Noakes' death, he admitted meeting Mr Noakes but denied any involvement in his death. Mr Smith justified his lies to police by asserting that he was terrified and wanted to get back to his dog. Eventually he made admissions to police although he consistently maintained the position that he had no memory of inflicting the injuries. At trial Mr Smith admitted that he manufactured a story to police to the effect that he believed he was being set up in some way by Mr Noakes because Mr Noakes was a friend of the man with whom Mr Smith had travelled from South Australia and with whom he had fallen out. The trial judge concluded that Mr Smith was then trying to protect himself and was prepared to lie in order to do so.
20 The trial judge concluded that the offence was particularly serious because:
(a) the assault on Mr Noakes was a sustained assault involving multiple serious injuries;
(b) two different weapons were used - a table leg and a knife;
(c) Mr Smith intended to kill Mr Noakes;
(d) Mr Noakes had done nothing to provoke Mr Smith's actions;
(e) Mr Noakes was in a place of residence where he might reasonably have expected to be safe and had extended hospitality to Mr Smith; and
(f) Mr Smith's actions following the killing were callous and motivated by self-interest, and a hope that the fire would destroy evidence implicating him in the offence.
21 The trial judge noted that the offence of setting fire to the unit was a serious offence in itself, given the likelihood of significant property damage and the possible risk to the safety of other residents and to the fire and emergency services officers who attended the blaze.
Personal circumstances
22 The trial judge noted that at the time of sentence Mr Smith was 30 years of age, single and the father of one child, a daughter who was then seven years of age. Mr Smith was born in Brisbane and is the eldest of two children. His early life was unsettled because his father was in the army with the result that the family moved often.
23 Mr Smith's parents separated when he was five years old. Mr Smith had a strained relationship with his father, who had problems with substance abuse and anger management. Mr Smith had only intermittent contact with his father, who had other relationships and other children. Although Mr Smith had had a troubled relationship with his mother in the past, it had improved recently and she was supportive of him.
24 Mr Smith left home at 14 years of age and lived a transient life thereafter, living at different times in Canberra, Adelaide and Cairns. He did, however, complete some further education, including courses in the hospitality industry, and had been employed in that industry.
25 While living in Canberra Mr Smith entered into a relationship with a woman which resulted in the birth of their daughter. However, the relationship lasted only about 18 months when it was terminated by the woman as a result of Mr Smith's depression.
26 The trial judge found that Mr Smith had long-standing problems with alcohol and drugs, which commenced in his mid teens and progressed to the point where he was drinking heavily and consuming significant amounts of cannabis in his late teens and early twenties, although his substance dependence appeared to have reduced by the time of the offences.
27 The trial judge noted that Mr Smith had a number of prior convictions in different Australian jurisdictions, generally involving traffic, property and drug offences, but including one prior conviction for assault in the Australian Capital Territory for which he was sentenced to 4 months imprisonment to be served by way of periodic detention.
28 The trial judge referred to a psychiatric report in which the author noted that Mr Smith had recounted two previous episodes of extreme anger followed by memory loss. Mr Smith told the psychiatrist that he was aware of this tendency and would give people three warnings in an attempt to avoid the escalation of his anger. The trial judge concluded that this showed Mr Smith had some understanding of his tendency to lose control as a result of anger.
29 The trial judge noted that the psychiatrist had expressed the view that the offences appeared to be the consequence of an argument in the context of significant alcohol use and intoxication, in a context of Mr Smith having underlying antisocial personality, poor coping and problem-solving skills, and anger management problems associated with episodes of rage in the context of alcohol abuse.
30 The trial judge observed that the psychiatrist had noted that the offences had occurred when Mr Smith was significantly intoxicated, which was likely, together with the emotional stress and anger which arose during the course of an argument with Mr Noakes, to have contributed to his memory loss. In the view of the psychiatrist, Mr Smith's judgment would have been impaired at the time of the murder, which would have contributed to the impulsive act of attacking Mr Noakes.
31 The trial judge also noted that the psychiatrist had expressed the view that Mr Smith had shown significant remorse and had assessed him as being at low risk of reoffending. The psychiatrist expressed the view that Mr Smith had insight into his substance abuse and dependence issues and the impact which it had had on his life. She also noted that Mr Smith took responsibility for his actions without blaming others and that he had insight into his limited problem-solving skills and was enthusiastic to participate in any counselling problems that would help him to address those problems. The trial judge noted that Mr Smith had engaged with counselling in the prison environment.
Mitigating factors
32 The trial judge noted the following mitigating factors:
(a) Mr Smith did eventually admit to police that he had killed Mr Noakes and set fire to the unit. He also offered to plead guilty to manslaughter, and did plead guilty to the offence of arson, which had resulted in the confinement of some of the issues at trial;
(b) Mr Smith had demonstrated significant remorse, both when interviewed by police and more recently when interviewed by the psychiatrist. The trial judge accepted that Mr Smith's remorse was genuine;
(c) Mr Smith had experienced a relatively difficult life, although the trial judge noted that limited weight could be given to that factor, given the seriousness of the offences committed; and
(d) There were a number of factors that were likely to have impaired Mr Smith's ability to exercise self-control, including his anger management problems and the alcohol which he had consumed, although the trial judge noted that Mr Smith's ingestion of alcohol was voluntary and occurred in a context in which Mr Smith knew from past experience that alcohol could have an adverse effect on his mood, and in circumstances in which he knew he had not taken his antidepressant medicine.
33 As I have noted, the trial judge imposed a sentence of life imprisonment for the offence of murder, and directed that Mr Smith serve a minimum term of 17 years before being eligible for parole. In relation to the offence of arson, the trial judge noted that he would allow a 25% discount on the sentence to be imposed for that offence as a result of the plea of guilty, and sentenced Mr Smith to a term of 4 years and 6 months imprisonment, to be served concurrently with the offence of life imprisonment, with both sentences being backdated to the time at which Mr Smith was taken into custody in July 2012.
Appeals on the ground of implied error - general principles
34 It is important for courts of appeal to bear steadfastly in mind the well-established legal principles which govern appeals against sentence on the ground that the sentence imposed was manifestly excessive, or, as in this case, manifestly inadequate. Those principles recognise that it is of vital importance to the administration of our system of criminal justice that the discretion to impose sentence is conferred upon the sentencing judge.2 An appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a different manner.3 The exercise of discretion by a sentencing judge is not to be regarded as provisional, in the sense that it is conditional until confirmed by an appellate court. Rather, an appellate court only has jurisdiction to set aside the discretion exercised by the sentencing judge if error is demonstrated, such that the exercise of discretion has miscarried.
35 The nature of the error which must be demonstrated is explained in the famous passage from House v The King.4 Errors may be conveniently classified as either express or implied. An assertion that a sentence is manifestly excessive, or manifestly inadequate, is an assertion of error to be implied from the sentence itself, in the sense that the sentence is so unreasonable or plainly unjust as to sustain the conclusion that the exercise of discretion by the sentencing judge miscarried. It has been described as 'a conclusion … which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive'.5 Varying terms have been used to describe error to be implied from the sentence imposed, including error that is 'plainly apparent',6 a sentence which is 'manifestly too long or too short',7 'obviously erroneous',8 or 'so manifestly unreasonable or plainly wrong', or 'so disproportionate'9, as to enable an appellate court to infer that the exercise of the discretion has miscarried in some unidentified way.
36 In assessing whether error or this kind has been established, the appellate court will take account of the maximum sentence prescribed by law for the crime, the standards of sentence customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender.10 However, the range of sentences customarily imposed for offences of the relevant kind is only one of the factors to be addressed,11 and the fact that a particular sentence is outside a range to be derived from previously decided cases will not necessarily establish error of the requisite character.12 Nor will error of the requisite character be established by pointing to one or two cases which are said to be more or less serious and in which similar sentences were imposed, or by pointing to one or two cases which are said to be similar and in which greater or lesser sentences were imposed. Because there is no single uniquely correct sentence in any particular case, the sentencing discretion can be validly exercised within a range reasonably open to the sentencing judge, with the inevitable consequence that a comparison of sentences validly imposed in different cases is unlikely to reveal mathematical uniformity.
37 It is also appropriate for an appellate court to take into account the likelihood that a sentence imposed after trial will be influenced by impressions and conclusions which the sentencing judge has drawn from the trial process which may not be enunciated expressly in observations made at the time of passing sentence. The trial process will often reveal the circumstances of the offence in much greater detail than usually enunciated in the course of sentencing observations, and will often provide opportunities for the trial judge to make an assessment of the offender's character and the culpability of his or her conduct which may not readily admit of detailed enunciation in the course of sentencing observations.
38 The 'natural limitations' experienced by an appellate court proceeding wholly or substantially on the record have long been recognised in both the civil and criminal jurisdictions of the court.13 Those limitations are not limited to disadvantages relating to the assessment of the credibility of witnesses, but extend to and include 'the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share',14 and the disadvantage that 'the appellate court does not typically get taken to, or read, all of the evidence taken at the trial'.15 In the context of an appeal against sentence, those 'natural limitations' are likely to be greater in relation to sentences imposed after trial than in relation to sentences imposed after a plea of guilty.
39 In this case, the sentencing judge had the opportunity of observing Mr Smith during the course of the trial and, more particularly, observing his demeanour during more than four hours of video-recorded interview, and during his evidence-in-chief and cross-examination. That experience provided him with an opportunity to assess Mr Smith's personality and character. Further, the judge's participation in the trial process gave him an appreciation of the detailed circumstances of the offence and the events before and after the offence which was not subject to the 'natural limitations' experienced by an appellate court.
The ambit of the appeal
40 The State appeals only against the sentence imposed upon Mr Smith for the offence of murder and does not appeal from the sentence imposed for the offence of arson. It is nevertheless desirable to expressly enunciate the extent to which the conduct which gave rise to Mr Smith's conviction for arson is properly taken into account in assessing the sentence imposed in respect of the offence of murder.
41 Because Mr Smith was sentenced to imprisonment for life for the offence of murder, obviously the sentence imposed for the offence of arson had to be served concurrently with the sentence imposed for murder. However, this does not lead to the conclusion that the sentence imposed in respect of the offence of arson is of no significance. Nor does it sustain the conclusion that Mr Smith's conviction for arson should result in the imposition of a longer period of imprisonment prior to eligibility for parole for the offence of murder. Nevertheless, conduct which is relevant to the offence of murder is properly taken into account in assessing the appropriate minimum term of imprisonment to be served prior for that offence to eligibility for parole. So, in this case, the finding of the trial judge that Mr Smith was motivated by a desire to conceal his involvement in the death of Mr Noakes at the time he set fire to the unit is a circumstance which aggravates the offence of murder and which is therefore properly taken into account when assessing the sentence imposed for that offence. However, aspects of the offence of arson which are discrete to that charge such as the extent of damage to property and the risk to safety created by the fire are relevant only to the sentence imposed in respect of that offence. Bringing those matters to account when assessing the minimum period of imprisonment to be served by Mr Smith prior to eligibility for parole for the offence of murder would, in effect, amount to double punishment.16
Murder - the sentencing regime
42 An adult convicted of murder must be sentenced to life imprisonment unless that sentence would be clearly unjust given the circumstances of the offence and the person and the person is unlikely to be a threat to the safety of the community when released from imprisonment.17 In this case there could be no suggestion that the imposition of a sentence of life imprisonment would be clearly unjust.
43 When a court sentences an offender to life imprisonment for murder, that court must either set a minimum period of at least 10 years prior to the offender being eligible for parole or order that the offender must never be released.18 In this case the State has never contended that there should be an order that Mr Smith never be released.
44 The requirement that a court must set a minimum period of at least 10 years imprisonment prior to an offender being eligible for parole replaces a sentencing regime in which courts sentencing offenders for wilful murder or murder were obliged to impose minimum terms of imprisonment prior to eligibility for parole constrained by bands applicable to the categorisation of the offence committed.19
45 Under the current sentencing regime, a court sentencing an offender to life imprisonment for murder has a broader discretion with respect to the minimum period of imprisonment to be served prior to eligibility for parole, which must be a term of at least 10 years but which has no upper limit. In Austic, this court observed that the removal of the demarcation between wilful murder and murder, and the abolition of the bands within which minimum periods of imprisonment prior to eligibility for parole were required to fall:
[M]ay result in some increase in the non-parole period for offending that would formerly have attracted a non-parole period at or very close to the upper limit of a previously applicable range.20
46 However, this court also observed in Austic that sentencing dispositions under the previous legislative scheme would generally be of some assistance in determining the length of the non-parole period under the current regime,21 but taking into account the broader discretion conferred upon the court under the current regime in place of the bands within which discretion was constrained under the previous regime.
47 Apart from the observations made in Austic with respect to the consequences which might flow, in some cases, from the increased breadth of discretion with respect to the minimum period of imprisonment to be served prior to eligibility for parole when life imprisonment is imposed under the current regime, this court has not construed the change in sentencing regime as indicative of a legislative intention to the effect that minimum terms of imprisonment to be served prior to eligibility for parole should be increased generally in relation to the offence of murder, nor has this court declared that a general increase in such terms is justified by, for example, an increase in the prevalence of the offence or greater need for general deterrence. However, as will be seen, and as was anticipated in Austic, some minimum terms of imprisonment prior to eligibility for parole imposed for the offence of murder under the current regime have been longer than the term that would have been imposed under the previous regime in which the court's discretion was more constrained. As predicted in Austic, those cases have generally been at the upper end of the range of seriousness, involving particularly heinous conduct, more than one victim or very significant moral culpability, sometimes arising from extensive premeditation or a particularly base motive.
The previous cases relied on by the State
48 The State refers to a number of previous cases which are said, collectively, to sustain the conclusion that the minimum term of imprisonment imposed upon Mr Smith prior to eligibility for parole was so manifestly inadequate as to sustain the conclusion that the exercise of the sentencing discretion miscarried in the manner I have described. I will deal briefly with each of the cases to which the State refers.
Kuzimski
49 In Kuzimski v The State of Western Australia,22 this court dismissed an appeal by the offender against a sentence of life imprisonment with a minimum period prior to eligibility for parole of 32 years imposed after the appellant had been convicted of two counts of murder and one count of arson after trial. The circumstances of those offences, and of the offender, are so different to the present case as to deprive a comparison of the sentences imposed of any utility.
50 Mr Kuzimski visited a residential property for the purpose of robbing a person who had previously supplied him with drugs of either drugs or money. While he was at the property he was introduced by the dealer to the women who were to become his victims. His plan to rob the dealer did not come to fruition and she left the premises. Later the appellant left the premises with his victims, whose bodies were later found in a motor vehicle which had been set alight by the appellant. One victim was found to have three penetrating injuries to the right side of her face, two of which caused or contributed to her death. The injuries were consistent with having been caused by a long object such as a screwdriver. She also had areas of bruising which were consistent with strangulation and a gaping injury to the top of her head. The other victim died as a result of a penetrating injury at the inner aspect of her right eye which went through to her brain. That injury was also consistent with the use of an object such as a screwdriver.
51 The sentencing judge found that the appellant's attack on the two victims was ferocious and must have continued over a period of time. She also found that neither victim died immediately, and that both would have suffered considerably prior to their death. She also found that the appellant set fire to the motor vehicle with the intention of concealing evidence connecting him to the crimes. The appellant subsequently lied to police about the circumstances of the offence, and gave evidence at his trial which must have been rejected by the jury.
52 The appellant had a history of chronic use of illegal drugs including amphetamines and heroin. He had a lengthy prior criminal record which commenced when he was aged 16, including convictions for assault, burglary, armed robbery and the possession of weapons. He had previously served numerous terms of imprisonment. The sentencing judge found that the appellant was at a very high risk of committing serious violent offences in the future. She also found that the appellant intended to kill one of the victims, but did not make the same finding in relation to the other victim. However, she did not differentiate between the two crimes for the purposes of the sentence because the appellant's actions 'were so persistent, callous, violent and motiveless that an assessment of their seriousness does not depend on whether you intended to kill at the time you inflicted the fatal injuries or not'.
53 In that case the sentencing judge found that there were no mitigating circumstances.
54 The differences between the circumstances of those offences, and the circumstances of the offender, and the circumstances of this case are clear from my description of each, and do not need to be catalogued. As I have already noted, those differences are so great as to deprive any comparison of the sentences imposed of any utility.
Mikhail
55 The same observation may be made with respect to the next case relied upon by the State - Mikhail v The State of Western Australia.23 In that case, this court dismissed an appeal by two offenders against sentences of life imprisonment with a minimum period prior to eligibility for parole of 37 years imposed following their conviction on two counts of murder. As this court observed, that period of imprisonment prior to eligibility for parole is the longest term ever imposed in this State.
56 The appellants were father and son. At some point the son decided to kill a person who had lent him $20,000, and that person's wife, in order to avoid repaying the debt. At some point his father joined him in his plans, which were prosecuted as a joint endeavour.
57 The murders were extensively planned. In the week prior to their commission, a deep double grave was prepared at a semi-rural property and ammunition was purchased for a shotgun owned by the son.
58 On the evening of the offences, the victims were lured to warehouse premises in an industrial suburb under false pretences. After they went inside, the son shot and killed both victims at close range using a shotgun. Early the next morning the victim's bodies were taken to the grave which had been prepared, and at some point over the next few days their motor vehicle was driven to Lancelin and abandoned in a quarry.
59 The appellants went to considerable lengths to conceal both the fact of the murders and their involvement in them. They endeavoured to remove all traces of the killings from the warehouse and engaged in misleading conduct calculated to divert and distract police who were investigating the victims' disappearance away from the truth. However, nearly six months after the murders, police discovered shotgun wadding at the warehouse and after identifying the semi-rural property using GPS equipment in the vehicle driven by the son, following a series of searches of that property, the bodies of the victims were discovered.
60 Each appellant was convicted after trial. The son had prior convictions for causing grievous bodily harm, unlawful wounding and stealing. The father had a prior conviction for attempting to pervert the course of justice as a result of his attempts to conceal the previous offences committed by his son.
61 There were no mitigating factors, as the court concluded that it could not be said that the age of the son (21 at the time of the offences) sustained the conclusion that immaturity had contributed to the commission of his offences.
62 Following their conviction, the State submitted that the court should order that each offender never be released.24 That submission was rejected.
63 McLure P observed:25
The circumstances of the appellants' offending place it at the very high end of the scale of seriousness. There were two murders, both premeditated and minutely planned in order to avoid the appellants having to answer for them. The killings were ruthless, cold-blooded executions. These are significant aggravating factors that distinguish this case from those that have gone before and after, including Kuzimski v The State of Western Australia [2012] WASCA 202. The mental states of the appellants were not impaired by mind altering substances or any mental condition that reduced culpability. There were no mitigating factors of any significance and no remorse. The circumstances as a whole provide a particularly barren environment with little promise for any realistic prospect of rehabilitation or reform.
64 As in Kuzimski, the differences between the circumstances of the offenders and of the offending conduct in Mikhail and the circumstances of this case will be apparent from my description of each and do not need to be catalogued. Those differences are so great as to deprive any comparison of the sentences imposed of any utility.
Cockram
65 A similar observation may be made in respect of the next case relied upon by the State - Cockram v The State of Western Australia.26 In that case, this court dismissed an appeal against a sentence of life imprisonment with a minimum term of 22 years to be served prior to eligibility for parole following the appellant's conviction of murder after he entered a plea of guilty on the first day of his trial. The significance of the appellant's plea in the sentencing process was obviously diminished by its lateness, and by the fact that the appellant asserted that the offence was committed in circumstances which, after a trial of the issues, were not found to have been as he asserted.
66 The appellant and his co-offender lured the victim into giving them a ride in his vehicle on the pretence that if he took them to their supplier of amphetamines, he would be rewarded with a portion of the drugs which they were proposing to buy. The appellant took a bag containing a knife with him.
67 The appellant gave the victim directions to a remote location near a boat ramp on the Serpentine River. He and his co-offender gave different accounts of what then occurred. However, on either account there was a sustained and frenzied attack upon the victim using two knives. Nine of the stab wounds were caused by the knife which the appellant had taken into the vehicle, and one or two other wounds were caused by a fishing knife which was already in the vehicle. The appellant admitted that he had used that knife to stab the deceased in the head, the knife entering above the left eyebrow, fracturing the skull of the deceased and penetrating his brain. According to the co-offender, the appellant was shouting that he could not pull the knife out of the head of the deceased at one point during the sequence of events.
68 The appellant's co-offender, who pleaded not guilty and was convicted after trial, was sentenced to a term of life imprisonment with a minimum period prior to parole eligibility of 23 years.
69 The appellant asserted that he committed the offence as retribution for the deceased's sexual abuse of the 6-year-old son of the appellant's girlfriend, which he had observed during the evening prior to the commission of the offence. However, following a trial of issues, those assertions were rejected.
70 The appellant was 35 years of age and had a significant prior criminal record including convictions for offences of violence, including two assaults occasioning bodily harm and one armed robbery. He was first imprisoned at the age of 20, and since then had offended on a consistent and regular basis whenever released into the community. He had an extensive history of substance abuse involving alcohol and illegal substances. He was assessed at being at high risk of violent reoffending.
71 The only mitigating factor was the plea of guilty, although the significance of that plea was diminished by the matters to which I have referred.
72 It is clear that in Cockram the offence was premeditated. The victim was lured to a remote site under false pretences and the appellant took a knife with him which was used to inflict multiple stab wounds upon the victim. The attack upon the victim was particularly ferocious and brutal. The appellant's antecedents were significantly worse than those of Mr Smith and he was assessed at being at high risk of violent reoffending. None of the mitigating factors found by the sentencing judge to be present in this case were present in Cockram, and the late plea of guilty was of little mitigating effect given the appellant's failure in a contested trial of the issues.
73 In Cockram this court held that the minimum term of 22 years imprisonment prior to eligibility for parole was not manifestly excessive. Such a decision tells one nothing of the range of sentences reasonably open to a sentencing judge in the exercise of discretion, other than to establish that the sentence which was imposed was not so excessive as to manifest implied error. When account is taken of the various differences between the circumstances of the offending and the circumstances of the offender in Cockram, and the circumstances of this case, this court's dismissal of Mr Cockram's appeal against sentence does not support the conclusion that the sentence imposed upon Mr Smith was manifestly inadequate.
Pedersen
74 In Pedersen v The State of Western Australia,27 this court dismissed an appeal by the offender against a sentence of life imprisonment with a minimum term of 19 years prior to eligibility for parole following his conviction, after pleading guilty, of murder and other miscellaneous offences.
75 In that case the offender entered the home of a 94-year-old man by opening a closed but unlocked rear sliding door with the intention of stealing a gun and ammunition. He was armed with a knife. After entering the home, he was confronted by the victim, whom he stabbed several times with the knife. The victim suffered defensive wounds to both hands, a superficial wound to his chest, and a wound to his chest which penetrated his aorta causing his death. The prosecution accepted that the offender did not have the intention of causing his victim's death at the time, but intended to cause him grievous bodily harm.
76 The offender then stole a rifle and ammunition from the victim's gun cabinet, and drove to an address where he fired two shots from the rifle into a residence occupied by his target and other members of the target's family. He then drove to a hill overlooking the property of his brother-in-law, where he shot and killed a llama which was a family pet. When interviewed by police, the offender provided a false version of events in which he blamed an innocent third party for the killing.
77 The offender had a history of chronic substance abuse, and had suffered amphetamine induced psychosis in the past. The appellant had an extensive criminal record, mostly involving petty crime, but including one offence of armed robbery and another for possession of an offensive weapon, although each offence was committed many years earlier.
78 The sentencing judge did not consider that the offender had demonstrated genuine remorse and also considered his attempts to blame an innocent third party for his offence to be a significant aggravating factor. Other aggravating factors included the age of the victim, the entry into the house at a time when it was highly likely that the occupant would be home, arming himself with a weapon in order to overcome any resistance, and the offender's purpose in obtaining a gun and ammunition to be used against others. The sentencing judge did not consider that the occasional psychotic episodes which the offender had experienced in the past played any role in the commission of the relevant offences.
79 As I have noted, this court dismissed the offender's appeal against sentence on the grounds of manifest excess. The court concluded that it was reasonably open to the sentencing judge to impose a minimum period of imprisonment prior to eligibility for parole of 19 years, and that such a sentence was not 'plainly unreasonable or unjust' so as to establish implied error. As I have already noted, a conclusion of that kind tells one nothing of the range of sentences that might reasonably have been imposed in the circumstances of that case, other than that the sentence which was actually imposed was not vitiated by implied error of the kind to which I have referred.
80 When regard is had to the offender's plea of guilty in Pedersen, and the State's concession that he did not intend to kill his victim, the minimum term of 19 years imprisonment prior to eligibility for parole is more severe than the minimum term imposed upon Mr Smith. However, as I have noted, variations in the outcomes of a discretionary process are inherent in the nature of that process, and manifest inadequacy is not established by identifying a small number of cases in which more severe sentences were imposed. The question which must be addressed is whether Pedersen, viewed in conjunction with a broader sample of cases, sustains the conclusion that the sentence imposed in this case is not consistent with standards of sentencing practice which can be discerned from the cases as a whole.
Johnston
81 In Johnston v The State of Western Australia,28 this court refused leave to appeal against a sentence of life imprisonment with a minimum period of 18 years imprisonment to be served prior to eligibility for parole imposed following the appellant's conviction for murder, aggravated burglary and two counts of deprivation of liberty after trial.
82 The appellant had gone to the house of a known dealer in illicit drugs with another for the purpose of stealing drugs and/or money. They entered the house without consent and intending to use force, if necessary, to accomplish their purpose.
83 Shortly after entering the house, the appellant punched the victim to the face and tied her up with plastic clip ties. While the victim was thus restrained, the appellant punched her severely to the head and face on many occasions, and a hammer was used to strike her about the arm, knee and thigh causing serious lacerations to those parts of her body. In addition, she was choked.
84 It was found that the victim suffered two sets of injuries which, either alone or in combination, were fatal. One set comprised a series of blunt trauma injuries to the head and face which caused haemorrhaging in the brain. The appellant caused those injuries. The second set of injuries was to the neck and throat, the most serious of which caused a compression of the carotid artery. It was not possible to say whether the appellant had caused those injuries.
85 At the time of sentence the appellant was 25 years of age, and had only a minor record of prior convictions. Although he expressed remorse, the significance of that expression was diminished by his continue denial of involvement in the violene which led to his victim's death. He was assessed as having a low risk of further violent reoffending.
86 Although it was found that the appellant did not intend to cause his victim's death, but had intended to cause her bodily injury of such a nature as to endanger her life, aggravating circumstances of the case included the unlawful entry into the house for the purpose of stealing drugs or money and with the intention of using force necessary to overcome resistance, the lack of remorse, the continued denial of guilt, and the application of quite extreme violence in the course of a home invasion carried out in company.
87 When account is taken of the aggravating circumstances present in Johnston, the imposition of a minimum period of imprisonment prior to eligibility for parole of 18 years in that case does not suggest that the sentence imposed in this case was manifestly inadequate, notwithstanding the lack of an intent to kill in Johnston.
Silva
88 In Silva v The State of Western Australia,29 this court refused leave to appeal from a sentence of life imprisonment with a minimum period of 17 years imprisonment to be served prior to eligibility for parole imposed upon the appellant following his conviction after pleading guilty to murdering his wife.
89 In that case the marital relationship was marked by disharmony and violence perpetrated by the appellant against his wife. In the course of an argument the appellant used a hammer which he had purchased earlier that day to strike his wife forcefully to the right side of her head on at least three occasions, causing her death. The appellant admitted that when he struck his wife on the head with the hammer he intended to kill her. After the incident the appellant telephoned police and told them that he had killed his wife with a hammer.
90 After a trial of the issues, the sentencing judge was not satisfied beyond reasonable doubt that the appellant purchased the hammer with the intention of assaulting or killing the deceased and concluded that it was at least possible that he may have purchased it for an innocent purpose.
91 In this court the following aggravating factors were noted:
(a) The appellant brutally and repeatedly assaulted the deceased with a heavy metal hammer.
(b) The deceased was unarmed.
(c) The deceased was of smaller physical stature than the appellant.
(d) When the appellant fatally assaulted the deceased he intended to kill her.
(e) There was a history of domestic violence by the appellant towards the deceased.
(f) The appellant deliberately confronted the deceased when she was alone and vulnerable.30
92 This court refused the appellant leave to appeal on the basis that it was not reasonably arguable that the minimum term of imprisonment of 17 years which was imposed was unreasonable or plainly unjust. Again, I note that the decision does not establish the range that would have been reasonably open to the sentencing judge in the circumstances of that case, although it does establish that the minimum term of 17 years prior to eligibility for parole did not manifest implied error of the kind to which I have referred.
93 When account is taken of the plea of guilty in Silva, even allowing for the aggravating factors in that case, it is apparent that the sentence imposed in that case was more severe than the sentence imposed upon Mr Smith. However, as with Pedersen, the question is not whether the sentence imposed in one case is more or less severe than the other, but rather, whether the cases as a whole demonstrate that the sentence imposed in this case was vitiated by implied error.
Lee
94 In The State of Western Australia v Lee,31 this court upheld appeals by the State against sentences of life imprisonment with minimum terms of 12 years to be served prior to eligibility for parole following two co-offenders' conviction after pleading guilty to murder. This court resentenced each offender to life imprisonment with a minimum term of 21 years to be served prior to eligibility for parole.
95 The offenders, Lee and Walker, were friends. On the day of the murder, in company with Lee's girlfriend, they had been using methylamphetamine supplied by the man who was to become their victim. Walker announced to Lee's girlfriend that he proposed to kill the supplier of drugs, and after applying a shoelace to her throat, asked her if she thought that would work. After using more amphetamine, Walker obtained a cord or ligature from somewhere in the house they were in and used it to strangle the victim, who screamed. Those screams brought Lee and his girlfriend from another room in the house. The victim was resisting Walker's attempt to strangle him. Walker called for help, and the girlfriend used string or something similar to join with Walker in attempting to strangle the victim, who continued to struggle. She called out to Lee to 'knock him out' after which Lee kicked the deceased three times in the face, using such force as to cause his eye to bulge out of its socket and causing substantial bleeding. Walker continued to strangle the victim. Lee then stomped on the head of the victim as hard as he could, after which he punched the victim to the head about four times, believing that he had fractured the skull of the deceased. Walker continued to choke the victim until both men believed him to be dead.
96 The men then dragged the victim into the shower which was running. A little later Lee heard a gasp coming from the victim's body, which caused him to believe that the victim was still alive. Lee then kicked him in the chest about four times. In the meantime, Walker and Kelly started to clean up the blood in the area where the assault had taken place.
97 The men then wrapped the body of the victim in a barbecue cover and tied the package up with rope, after which the body was taken to the boot of Walker's car. After discussing what should be done with the body, Walker hired a utility which he used to convey the body to an isolated area of land where the body was placed in a shallow grave, acid poured over it to assist in its decomposition, and then the grave was filled with sand, tar and concrete.
98 The sentencing judge found that each man intended to cause the death of the victim at the time of the offence.
99 Walker was aged 26 and Lee aged 23 at the time of the offence. Each had an extensive history of substance abuse and prior criminal records, although Lee's prior record was more significant than that of Walker, and included a prior conviction for aggravated armed robbery. The sentencing judge accepted that both men were remorseful.
100 This court concluded that the circumstances of the offence placed it at the high end of the scale of seriousness of the offence of murder. The offence was described as 'intentional, unprovoked, ferocious and sustained, and merciless in its execution … aggravated by the fact that the offence was committed in company against a defenceless, unsuspecting victim and deliberate steps were taken to conceal the crime'.32 It was also noted that Walker's premeditation and the manner in which he disfigured and disposed of the body were also aggravating factors. The court did not consider that the 'savagery and detachment' with which the offence was committed could be adequately explained by the methylamphetamine-fuelled intoxication of each man.
101 This court noted that the minimum period of 12 years imprisonment prior to eligibility for parole was several years lower than the minimum term that could have been imposed under the previous sentencing regime. After concluding that the sentences imposed were manifestly inadequate, the court resentenced each offender and after evaluating the conduct and antecedents of each, concluded that a non-parole period of 21 years should be imposed on each.
102 The circumstances of the offending behaviour in these cases were more serious than this case, and displayed quite exceptional savagery. When those circumstances are taken into account, even after allowing for the effect of the pleas of guilty, the sentences imposed by this court in those cases do not support the proposition that the sentence imposed in this case was manifestly inadequate.
Rosewood
103 In Rosewood v The State of Western Australia,33 this court dismissed an appeal against a sentence of life imprisonment with a minimum term of 18 years prior to eligibility for parole following the appellant's conviction after pleading guilty to murder.
104 The appellant and the deceased had been in a domestic relationship for about 12 months prior to the offence and had a child who was three months old. After drinking alcohol during the day, during an argument that evening the offender used a knife which he took from the kitchen sink to stab the victim several times to the chest and back, causing her death. The State did not assert that the appellant intended to kill his victim, but relied upon an intention of causing bodily injury of such a nature as to endanger or be likely to endanger life.
105 The appellant was 37 years of age at the time of the offence, and had a prior criminal record including offences of violence directed towards former partners. The sentencing judge accepted reports which suggested that the appellant presented as a high risk of violently offending in respect of intimate partners and as a moderate risk in respect of other people.
106 Aggravating factors included the fact that the victim was younger, smaller, weaker and more vulnerable than the offender, and was unarmed without any means of defending herself. She was stabbed a number of times, and although the attack was impulsive rather than premeditated, its suddenness reduced the capacity of the deceased or other people who were present in the house to defend her against the attack. The fact that the offence was committed in the presence of the deceased's extended family, including young children, was also an aggravating factor. Mitigating factors included the plea of guilty at the earliest reasonable opportunity, the offender's co-operation with police and his remorse. This court concluded that having regard to all relevant sentencing considerations, including in particular the fact that the appellant had been assessed at high risk of violently reoffending in respect of intimate partners, it could not be said that the minimum period of 18 years prior to eligibility for parole was manifestly excessive.
107 As I have already observed, a decision of this kind does not establish the range of sentences that would have been open to the sentencing judge in the circumstances of that case, although it does establish that the minimum term of 18 years prior to eligibility for parole was not vitiated by implied error. It is, of course, significant that in Rosewood the offender pleaded guilty at the earliest opportunity, and the State did not contend that he had an intention to kill. However, in some respects the aggravating factors to which I have referred made the offending conduct more serious than the offending conduct in this case. While it might be contended that, having regard to the mitigating factors I have identified, the sentence imposed in Rosewood was more severe than the sentence imposed in this case, that proposition is debateable.
Stinson
108 The last case upon which the State relies is Stinson v The State of Western Australia.34 In that case the offender appealed against a sentence of life imprisonment with a minimum period of 17 years prior to eligibility for parole following his conviction after pleading guilty to murdering a woman with whom he had been in an extramarital relationship for three to four years.
109 The appellant and his victim had been living together for a short time while the appellant's wife and daughter were overseas. They argued and the appellant assaulted the victim, inflicting a blow to her head causing blood to project on to the furniture, ceiling and wall of the room in which the blow was administered. Later the appellant asked the victim to pack her belongings, saying that he would take her home. However, he drove her to his place of work where each got out of the vehicle and there was another argument. The appellant took a club hammer from his vehicle and inflicted multiple blows to the head of the victim, causing her death. He placed her body into the tray of his utility and then drove to a place where he hosed blood from the body, thereafter taking the body to a street where it was left naked on the verge. He made further attempts to clean his vehicle by hosing it down, and disposed of his own clothing and that of the victim in a semi-bush location. He also disposed of the murder weapon at an unknown location.
110 The sentencing judge found that the appellant intended to kill the victim, although he did not conclude that there was any significant premeditation or planning. The appellant was 57 at the time of the offence and co-operated with authorities, pleading guilty at the earliest opportunity. He had no prior convictions of any significance and was remorseful.
111 This court considered the circumstances of the offence to be towards the upper end of the scale of seriousness. It was noted that the appellant had inflicted very significant violence on the deceased in the extended period leading up to the deadly blows to her head that were inflicted with an intention to kill. His conduct in disposing of the body of the deceased and his active steps to avoid responsibility were aggravating factors. As the court concluded that it was not reasonably arguable that the sentence imposed was manifestly excessive, leave to appeal was refused.
112 It is, of course, significant that in Stinson the appellant pleaded guilty. However, when account is taken of the circumstances of the offence, and the aggravating factors to which I have referred, the minimum term of 18 years imprisonment prior to eligibility for parole imposed in that case does not sustain the proposition that the sentence imposed in this case was manifestly inadequate.
The previous cases relied on by the respondent
113 The respondent relied upon a number of cases in support of its proposition that the sentence imposed in this case cannot be said to be manifestly inadequate. Two of those cases were decisions at first instance in which sentences of life imprisonment with minimum terms prior to eligibility for parole of 16 years and 17 years were imposed following convictions for murder.35 However, as there was no appeal to this court from either decision, they are of very limited assistance and do not merit detailed consideration.
114 The respondent also relies upon two decisions in this court in which appeals against sentences for murder on the ground of manifest excess were dismissed in respect of sentences of life imprisonment with minimum terms prior to eligibility for parole of 14 years36 and 15 years.37 However, in neither of those cases was the offender found to have intended to kill his victim. As those cases are of such limited assistance, it is unnecessary to give detailed consideration to their circumstances.
115 The respondent also placed reliance upon the decision of this court in Cooley v The State of Western Australia38 in which this court allowed an appeal against a sentence for wilful murder of life imprisonment with a minimum term of 17 years prior to eligibility for parole and instead imposed a minimum term of 15 years. However, in that case the fact that the offender was suffering from paranoid psychosis at the time he committed the offence was a very significant factor in the court's conclusion that the sentence imposed was manifestly excessive. As there is no factor of that kind present in this case, it is of little assistance.
Silich
116 The respondent also relies upon a decision of this court in The State of Western Australia v Silich39 in which the State's appeal against sentences on two counts of murder of life imprisonment with a minimum term of 15 years prior to eligibility for parole was upheld, and minimum terms of 19 years were imposed.
117 In that case the offender drank alcohol and smoked cannabis during an evening which he spent with his parents. He became heavily intoxicated. Some time after his parents had gone to bed, he entered their bedroom and attacked both parents with considerable force, delivering many blows by kicking his parents while he was wearing steel-capped boots.
118 After killing his parents, the offender rearranged their bodies and some hours later telephoned a friend who attended the scene and then called police while the offender waited.
119 The offender was convicted on two counts of wilful murder after trial. It follows that the jury was satisfied beyond reasonable doubt that he intended to kill each of his parents at the time he attacked them. Although Mr Silich was convicted under the previously applicable homicide laws, because he was tried and convicted after the new legal regime had come into force, he was sentenced under that regime.40
120 In Silich there were a number of mitigating factors including the lack of planning or premeditation, the lack of any apparent motive, remorse, an assessment that the appellant was of low risk of reoffending, and the fact that the requisite intent was formed while the offender was severely intoxicated (although plainly this latter factor is of limited weight). It is significant that the same mitigating factors are present in this case.
121 In Silich there were other mitigating factors that are not present in this case, including the lack of any prior history of violence (although it must be said that Mr Smith's prior history of violence is not extensive), co-operation with police and the tender of many positive character references. Each case involved conviction after trial, rather than upon a plea of guilty.
122 Notwithstanding the mitigating factors to which I have referred, having regard to the two counts of wilful murder of which Mr Silich was convicted, this court concluded that the minimum term of 15 years prior to eligibility for parole was manifestly inadequate. Having regard to the similarities in the factual circumstances, and the fact that each of Silich and this case involved convictions after trial, a minimum term of 19 years imposed for a double murder strongly suggests that the minimum term of 17 years imposed for a single murder in this case is not manifestly inadequate.
Summary of the previous cases
123 In each of Pedersen and Silva, and perhaps in Rosewood, after taking account of all relevant circumstances, the minimum terms of imprisonment prior to eligibility for parole that were imposed were more severe than those imposed in this case. The fact that this court dismissed appeals by the offender in each of those cases does not, of course, mean that in those cases shorter minimum terms could not have been imposed in the sound exercise of the sentencing discretion. None of the other cases upon which the State relies support the proposition that the sentence imposed in this case was manifestly inadequate. On the other hand, the sentence imposed in this court in Silich in respect of a double murder with some similarities to the present case (and, of course, some differences) strongly suggests that the sentence imposed in this case was not manifestly inadequate.
Disposition
124 As I have noted, a conclusion that a particular sentence is or is not vitiated by implied error is 'a conclusion … which frequently does not admit of amplification'.41 In this case the sentencing judge specifically identified all relevant aggravating and mitigating factors in the course of his observations at the time of sentence, and neither party suggests any error in that respect. Having regard to those factors, and to such standards of sentencing as can be derived from the comparable cases which I have reviewed and other cases known to the court, I have no doubt that it would have been open to the sentencing judge to impose a longer term of imprisonment prior to eligibility for parole. However, that is not the question. The question is whether it was open to the sentencing judge to impose the sentence which he did impose. That question can only be answered in the negative, and the State's appeal allowed, if the sentenceimposed was 'so manifestly unreasonable or plainly wrong'42 as to bespeak error in the exercise of the discretion reposed in the judge at first instance.
125 As I have indicated, error of that character is not established by identifying a small number of cases in which more severe sentences were imposed. For the reasons I have given, that is essentially what the State's case in support of this appeal comes down to. As against those cases, the decision of this court in Silich strongly suggests that the minimum term of 17 years imprisonment imposed in this case was within the range of the sound exercise of the discretion reposed on the judge at first instance.
126 In response to specific questions from the bench, counsel for the State submitted that the sentence 'needed to be closer to the high end of the teens - you know, 19 or 20 (years)'.43 That submission was augmented by the proposition that the court would be justified in increasing the minimum term prior to eligibility for parole by two years without contravening the principle against tinkering. With respect, each of these propositions tells against the assertion that the sentence imposed in this case was unreasonable or plainly unjust. When a very substantial minimum term of imprisonment is being imposed, differences in the order of magnitude to which counsel referred are of a kind that are inherent in the discretionary nature of the sentencing process. Differences of that magnitude are incapable of sustaining the conclusion that the sentence imposed was 'obviously erroneous'.44
127 For these reasons the State has failed to establish that the exercise of the discretion reposed in the sentencing judge was vitiated by error. The appeal should be dismissed.
128 BUSS & MAZZA JJA: This is a State appeal against sentence.
129 The respondent was charged on indictment with two counts. Count 1 alleged that on or about 27 June 2012, at Mosman Park, the respondent murdered Damien Andrew Noakes, contrary to s 279 of the Criminal Code (WA) (the Code). Count 2 alleged that on 28 June 2012, at Mosman Park, the respondent wilfully and unlawfully damaged a dwelling, and that the dwelling was damaged by fire, contrary to s 444(1) of the Code.
130 On 17 February 2014, the respondent was convicted, after a trial in the Supreme Court before Hall J and a jury, of murder as alleged in count 1. At the commencement of the trial, the respondent was convicted, on his plea of guilty, of count 2.
131 On 15 May 2014, the trial judge sentenced the respondent to life imprisonment with a minimum term of 17 years before eligibility for parole on count 1 and to 4 years 6 months' imprisonment on count 2. The sentence for count 2 was ordered to be served concurrently with the sentence for count 1. The sentences were backdated to 6 July 2012, when the respondent was taken into custody for the offences.
132 We agree with Martin CJ that the appeal should be dismissed, but we propose to state our own reasons for arriving at that conclusion.
The sole ground of appeal
133 The State's sole ground of appeal alleges implied or inferred error, namely that the non-parole period of 17 years was manifestly inadequate.
134 On 11 August 2014, Mazza JA granted leave to appeal.
The facts and circumstances of the offending
135 In mid-June 2012, the respondent travelled from South Australia to Western Australia. He arrived with some bags and his dog but was effectively homeless. The respondent received assistance from a community worker at the St Patrick's Community Centre in Fremantle.
136 On or by 26 June 2012, the respondent met Mr Noakes. Upon being told that the respondent was 'living on the streets', Mr Noakes invited the respondent to stay at a home unit in Mosman Park where Mr Noakes was residing. The respondent and Mr Noakes used vouchers to purchase food. They walked to the unit. The first evening, being the evening of 26 June 2012, passed without incident. The respondent had a meal, drank some alcohol and fell asleep, with his dog, on a couch.
137 The next morning, 27 June 2012, the respondent and Mr Noakes commenced drinking alcohol again. In the afternoon they went to Fremantle and obtained money to acquire more alcohol. They bought a 'block' of beer at about 3.30 pm and returned to the Mosman Park unit. They resumed drinking and the respondent became intoxicated.
138 During the evening of 27 June 2012, Mr Noakes became annoyed with the respondent. However, his annoyance abated and they continued drinking. Later, the respondent, while sitting on the couch, became emotional. He wept. Mr Noakes told the respondent to 'snap out of it' and stop crying. The respondent's account was that Mr Noakes then held the respondent's ears and shook his head. According to the respondent, he had no memory of his subsequent offending that evening.
139 The trial judge found that on the evening of 27 June 2012 the respondent attacked Mr Noakes with extreme violence. The respondent used a blunt instrument, probably a leg from a coffee table, to strike Mr Noakes repeatedly on the face, head and arms. The blows caused lacerations and haemorrhages to Mr Noakes' head and fractures to his nose and jaw.
140 The respondent also attacked Mr Noakes with a knife. The respondent stabbed Mr Noakes in the back. The wound pierced his lung and caused internal bleeding. Also, the respondent cut the Achilles tendon on Mr Noakes' left leg. Further, the respondent inflicted nine stab wounds to Mr Noakes' neck; two on the left side and seven on the right. Several of these wounds pierced Mr Noakes' jugular vein and were the likely cause of his death.
141 The respondent gave evidence that his next memory, after Mr Noakes held the respondent's ears and shook his head, was of standing over Mr Noakes, who was covered in blood and not breathing. The respondent covered Mr Noakes with a blanket. He had a shower and then placed a cushion on the floor to avoid standing in the blood. Next, the respondent moved a mattress from the bedroom, where Mr Noakes' body was located, to the lounge room. He closed the bedroom door, drank more alcohol and listened to music before going to sleep.
142 The next morning, 28 June 2012, the respondent left the Mosman Park unit and purchased some petrol. He then returned and doused the unit, Mr Noakes' body and his own blooded clothes with the petrol before setting a fire and departing. The unit was gutted. Mr Noakes' body was partly burnt.
143 The respondent claimed that he lit the fire so Mr Noakes' body would be found. His Honour decided that the respondent's primary motive for lighting the fire was to endeavour to conceal what he had done.
144 During the next week the respondent found other accommodation. He did not report to the police what had happened at the Mosman Park unit or, indeed, inform anyone about what he had done. The respondent was apprehended by the police about a week after the offending. Initially, he denied having had anything to do with Mr Noakes' death. Eventually, he made partial admissions to the police, but he maintained throughout his trial that he had no memory of inflicting violence upon Mr Noakes.
The respondent's personal circumstances and antecedents
145 The respondent was born on 24 January 1984. He was aged 28 at the time of the offending and was 30 when sentenced.
146 The respondent had a dysfunctional childhood. He witnessed domestic violence including emotional, physical and verbal abuse. His parents separated when he was 5. By the age of 14 he had left home. The respondent had a transient lifestyle, moving regularly between various cities. He worked predominantly in the hospitality industry.
147 The respondent has a young daughter from a previous relationship. He no longer has any contact with her. His relationship with the mother ended after 18 months, when the child was 6 months old. At the time he was apparently depressed and unable to cope.
148 The respondent has a prior criminal record. He has previous convictions for traffic, dishonesty and drug offences. However, there is only one prior conviction involving violence, being an assault occasioning bodily harm.
149 The material before the trial judge included a report dated 1 May 2014 from Dr Victoria Pascu, a consultant forensic psychiatrist.
150 Dr Pascu described the respondent's history of alcohol and drug abuse, as follows:
[The respondent] admitted to drinking alcohol from the age of 15 years, intermittently to start with, but he said that he was drinking daily from the age of 16 after the death of his grandmother. He admitted [consuming] up to 24 cans of bourbon daily for approximately one year. By the age of 17 he said that his alcohol intake reduced to once a week and in recent times he admitted to drinking every fortnight.
There were some inconsistencies in [the respondent's] history as according to the medical information available from his General Practitioner he was diagnosed as having a severe chronic alcohol addiction.
[The respondent] said that he started smoking cannabis from the age of 13 years, at parties but by the age of 15 he was smoking in excess of 20 cones every day up until he was approximately 23. He said that he used the cannabis to help him sleep and with the chronic pain from the various injuries he sustained in [a] motor vehicle accident and later on with [various] assaults that he was involved in. From the age of 24 [the respondent] said that he reduced the cannabis use to two cones every day up until his remand into custody.
[The respondent] admitted to occasionally using intravenous amphetamine saying that he last had any in June 2012 and nothing since that time. He admitted to trying methylamphetamine once and he experienced [sic] with LSD and ecstasy 'years ago'. [The respondent] denied abusing Benzodiazepine or opiate based analgesics.
[The respondent] was adamant that on the day of the offences he only used large amounts of alcohol and had one Xanax (Valium type medication). He denied any alcohol or illicit substance use since in custody.
151 The respondent informed Dr Pascu about 'two previous episodes of extreme anger … followed by amnesia (memory loss)' which, in her view, appeared to be consistent with 'episodes of rage, most likely complicated by alcohol or other substance use at the time'.
152 The respondent told Dr Pascu:
I have this three rule philosophy; I give three warnings and if they continue pushing me I lose it and I cannot remember what happens; the two times before this happened I had friends there to stop me; I cannot remember if I gave the three warnings to [Mr Noakes]; I just lost it; I just want to take it all back; I keep seeing his face and all that blood; he didn't deserve this he was good to me and gave me a place to stay; I f … d up; I didn't mean all this to happen; we were drunk but that is not an excuse.
153 Dr Pascu summarised her clinical diagnosis in relation to the respondent as follows:
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154 Dr Pascu concluded, however, that the respondent did not have a history 'to suggest an underlying major mental illness which could explain his offending'. She said the events leading to the offences appeared to be a consequence of the respondent and Mr Noakes having an argument, in the context of significant alcohol use and intoxication, against the background of the respondent having an underlying antisocial personality style, poor coping skills, and anger management problems, with episodes of rage, especially when he abuses alcohol and is intoxicated.
155 Nevertheless, on the basis of an actuarial risk assessment and the available clinical information, Dr Pascu considered that the respondent's risk of committing violent offences again was low.
The trial judge's findings of fact
156 The trial judge made the following findings of fact in his sentencing remarks:
(a) The respondent's primary motivation in lighting the fire was to conceal what he had done [17].
(b) When he was interviewed by the police the respondent was 'still trying to protect [himself] and [was] prepared to lie to do so' [19].
(c) The respondent had 'some understanding' of '[his] issue with anger management' [27]. His 'policy' of giving people three warnings before reacting with 'extreme anger' showed that he had 'some self-control' [27].
(d) On the basis of Dr Pascu's assessment, the respondent's 'risk of reoffending may be low', but the 'actuarial tools' she used in forming that assessment have 'obvious limitations' [41].
157 His Honour said that the offence of murder committed by the respondent was 'a particularly serious case' [33]. His Honour explained:
(a) the assault on Mr Noakes was sustained and involved multiple serious injuries;
(b) the respondent used two different weapons, namely a table leg and a knife;
(c) the respondent intended to kill Mr Noakes, at least, when he stabbed him in the neck;
(d) Mr Noakes did nothing which could reasonably have provoked the respondent's action;
(e) Mr Noakes was in a place of residence where he might reasonably have hoped to be safe; Mr Noakes had extended hospitality to the respondent; and there was no reason or justification for the respondent's attack upon him; and
(f) the respondent's actions after the killing were callous and motivated by self-interest; rather than report what had happened, the respondent attempted to conceal it by setting fire to the unit in the hope that the fire would destroy evidence [33].
158 The trial judge found that the offence of murder had a significant impact on Mr Noakes' family [35]. The respondent, by his actions, had 'not only robbed a relatively young man of his life, [but had] damaged the lives of many others' [38].
159 His Honour noted the following mitigating factors:
(a) the respondent eventually admitted to the police that he had killed Mr Noakes and set fire to the unit;
(b) the respondent offered to plead guilty to manslaughter and, thereby, formally admitted the killing, but he denied having an intention to kill or do life threatening harm;
(c) the respondent pleaded guilty, at the commencement of the trial, to count 2;
(d) those concessions confined the issues at the trial;
(e) the respondent had shown significant remorse when interviewed by the police and by Dr Pascu; and
(f) the respondent's life had been 'relatively difficult', but that could have very little weight because of the seriousness of the offending [39].
160 The trial judge referred to the factors that were likely to have impaired the respondent's ability to exercise self-control, namely his 'anger management problems' and the effect of alcohol [39]. His Honour then said:
However, you drank the alcohol of your own free will, and you knew from past experience that alcohol could have an adverse effect on your mood. You also knew that you had not taken your anti-depressants. In these circumstances, what happened must be seen as being a consequence of decisions that you made [39].
The State's submissions in the appeal
161 Counsel for the State submitted that the minimum non-parole period of 17 years was manifestly inadequate having regard to:
(a) the serious nature of the offence and the circumstances in which it was committed; in particular, the use of two separate weapons, the sustained and brutal nature of the attack, the fact that the respondent intended to kill Mr Noakes, the fact that Mr Noakes had not provoked the respondent, the callous manner in which Mr Noakes was treated after the attack, and the respondent's attempt to conceal the offence by setting fire to the crime scene;
(b) the range of sentences customarily imposed;
(c) the respondent's personal circumstances and antecedents; and
(d) the need for condign punishment and general deterrence.
The merits of the appeal
162 A ground of appeal which alleges that a sentence (including a minimum term) is manifestly inadequate asserts the existence of an implied or inferred error.
163 It is necessary, in determining whether a minimum term is manifestly inadequate, to examine it from the perspective of the principles applicable to the fixing of the length of a non-parole period and the factors which a sentencing judge must take into account when fixing a minimum term. Relevant factors include the maximum penalty for the offence, any upper or lower limits on the available minimum term, the standards of sentencing customarily observed with respect to minimum terms for that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances and antecedents of the offender.
164 A non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 - 629 (Barwick CJ, Menzies, Stephen & Mason JJ); Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367 (Gibbs CJ, Murphy, Wilson, Brennan & Dawson JJ); Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531 (Mason CJ & McHugh J), 536 (Dawson, Toohey & Gaudron JJ).
165 In Pedersen v The State of Western Australia [2010] WASCA 175, Buss JA (McLure P & Mazza JA agreeing) made a number of observations about the determination of the non-parole period where an offender is to be sentenced to life imprisonment for the offence of murder, and the sentencing court has decided (as in the present case) to proceed under s 90(1)(a) of the Sentencing Act 1995 (WA) and fix a minimum period. His Honour said:
Several observations may be made in relation to the determination of the non-parole period where an offender is to be sentenced to life imprisonment for the new offence of murder and the sentencing court has decided to proceed under s 90(1)(a) of the Sentencing Act 1995 (WA) and fix a minimum period (instead of proceeding under s 90(1)(b) and ordering that the offender must never be released).
First, the considerations which the sentencing court must take into account in setting the non-parole period are all relevant sentencing factors, including the circumstances of the offence, all aggravating and mitigating factors and the offender's personal antecedents.
Secondly, the non-parole period must be set by reference to achieving or satisfying all relevant sentencing objectives, including punishment, retribution, personal deterrence and general deterrence.
Thirdly, sentencing dispositions under the previous legislative scheme will generally be of some assistance in determining the length of the non-parole period for the new offence of murder where the sentencing court has decided to impose life imprisonment and set a minimum period under s 90(1)(a) of the Sentencing Act. It is essential, however, to bear in mind the following:
(a) The increase in the statutory minimum period from 7 to 10 years was made in the context of eliminating from the definition of murder, the unlawful killing of another person where the offender (merely) intends to cause bodily injury of such a nature as to cause, or be likely to cause, permanent injury to the health of the person killed or another person.
(b) The strict ranges of available non-parole periods based on the distinctions under the previous legislative scheme between wilful murder and murder, and between wilful murder carrying strict security life imprisonment and wilful murder carrying (merely) life imprisonment, have been abolished. These strict ranges were not always appropriate to the facts and circumstances of a particular offender and his or her offending. The proper exercise of the sentencing discretion is no longer constrained by the rigidity of the previous legislative scheme (including the sentencing framework).
(c) The comments of Wheeler JA (McLure P & Owen JA agreeing) in Atherden [30] - [31].
Fourthly, the offender's intention in relation to the particular killing is a relevant fact or circumstance (invariably, if not always, a very significant matter) to be considered together with all the other relevant facts and circumstances of the offending and the offender in determining the appropriate non-parole period.
Fifthly, the removal of the demarcation between wilful murder and murder, and the abolition of the strict ranges of available non-parole periods under the previous legislative scheme, may result in some increase in the non-parole period for offending that would formerly have attracted a non-parole period at or very close to the upper limit of a previously applicable range [41] - [46].
- See also Austic v The State of Western Australia [2010] WASCA 110 [153] - [176] (Buss JA).
166 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a non-parole period is within the range of other non-parole periods imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a non-parole period is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
167 A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence (including a minimum term) is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
168 In Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372, French CJ, Hayne, Kiefel and Bell JJ said in relation to the notion of an 'available range' of sentences and the notions of 'manifest excess' and 'manifest inadequacy':
Reference to an 'available range' of sentences derives from the well-known principles in House v The King((1936) 55 CLR 499; [1936] HCA 40 (House)). The residuary category of error in discretionary judgment identified (House at 505) in House is where the result embodied in the court's order 'is unreasonable or plainly unjust' and the appellate court infers 'that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance'. In the field of sentencing appeals, this kind of error is usually referred to as 'manifest excess' or 'manifest inadequacy'. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.
The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some 'substantial wrong has in fact occurred' (House at 505) in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an 'available range' of sentences, stating the bounds of an 'available range' of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the resentencing court to determine the bounds of the range within which the sentence should fall [26] - [28]. (original emphasis)
169 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
170 The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
171 The fact-finding duties of a primary judge, in sentencing an offender who has been convicted after trial, were summarised by McLure P (Mazza JA relevantly agreeing) in PES v The State of Western Australia [2014] WASCA 96 [37]:
Where the offender to be sentenced has been found guilty following a trial by jury, the judge who presided at trial must determine the facts relevant to the sentencing process: Cheung v The Queen (2001) 209 CLR 1 [5], [36]. Although the facts found by the sentencing judge must be consistent with the verdict of the jury, it is the sentencing judge who must find the facts rather than speculate about the facts that may or may not have been found by the jury: Cheung [9] - [11]. It is only the facts necessarily implicit in the verdict of guilty after trial (the core facts) that cannot be controverted in the sentencing process. The verdicts do not establish the non-core facts, which must be found by the sentencing judge. Where a non-core fact is aggravating, the judicial finding must be on the criminal standard of beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270.
172 The approach of an appellate court, when hearing an appeal against sentence, does not differ depending on whether the sentence was imposed after trial or on a plea of guilty. A sentence imposed after trial is susceptible to appellate intervention on the same principles as a sentence imposed after a plea of guilty. An appellate court is not entitled to assume that a sentence imposed after trial is supported by matters (for example, impressions and conclusions) known to the primary judge, and derived from the trial process, which are not discernible from the judge's sentencing remarks or necessarily implicit in the verdict of guilty or discernible from the uncontested facts or circumstances.
173 An appellate court is only permitted to set aside findings of fact (consistent with a verdict or plea of guilty) made by a primary judge, on the basis of a credibility determination in relation to a witness, in limited circumstances. A finding (consistent with a verdict or plea of guilty) based on credibility can only be set aside on appeal where incontrovertible facts or uncontested testimony demonstrates that the judge's conclusion is erroneous or where the finding is glaringly improbable or contrary to compelling inferences. See Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [28] - [29] (Gleeson CJ, Gummow & Kirby JJ).
174 An appellate court must necessarily observe the 'natural limitations' that exist where the court proceeds wholly or substantially on the record. In Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, Isaacs J said:
The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal (561).
- See also Fox v Percy [23].
175 The 'natural limitations' which exist where an appellate court proceeds wholly or substantially on the record relate to the court's review of a primary judge's credibility-based findings of fact or other conclusions.
176 We have read and considered numerous cases in which this court has heard and determined appeals against sentence for murder since the commencement of the Criminal Law Amendment (Homicide) Act 2008 (WA). In particular, we have taken into account the facts and circumstances, and the sentencing dispositions, in Atherden v The State of Western Australia [2010] WASCA 33; Heijne v The State of Western Australia [2010] WASCA 86; Austic; Pedersen; The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285; Johnston v The State of Western Australia [2012] WASCA 18; Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328; Khan v The State of Western Australia [2013] WASCA 193; The State of Western Australia v Lee [2013] WASCA 246; Silva v The State of Western Australia [2013] WASCA 278; Prestidge v The State of Western Australia [2014] WASCA 16; Stinson v The State of Western Australia [2014] WASCA 72; Egitmen v The State of Western Australia [2014] WASCA 198; Mack v The State of Western Australia [2014] WASCA 207; and Angliss v The State of Western Australia [2015] WASCA 8. We have also taken into account the facts and circumstances, and the sentencing dispositions, in other cases cited by counsel for the State and counsel for the respondent.
177 It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features. We will, however, make some observations about Silich.
178 In Silich the offender was sentenced to life imprisonment with a minimum term of 19 years for the murder of two people whereas the respondent in the present case was sentenced to life imprisonment with a minimum term of 17 years for the murder of one person.
179 The decision in Silich was reviewed in Lee. McLure P (Mazza JA & Hall J agreeing) said, rightly, that there were some unusual aspects of the offending in Silich and that the case is distinguishable from 'all the other cases decided under the current law' [51].
180 In any event, we note that:
(a) the offender in Silich had no history of violence, whereas the respondent in the present case had two previous episodes of extreme anger followed by amnesia, had a 'policy' of giving people three warnings before reacting with rage, and had anger management problems;
(b) the offender in Silich reported his offending to the police soon after it occurred and did not attempt to conceal what had happened or destroy evidence, whereas the respondent in the present case, with planning and premeditation, set fire to the home unit and, consequently, to Mr Noakes' body for the primary purpose of attempting to conceal what had happened and in the hope that the fire would destroy evidence; and
(c) the offender in Silich cooperated with the police, whereas the respondent in the present case lied to the police when he was apprehended and interviewed.
181 It scarcely needs to be said that the sentencing disposition in one or two cases does not constitute a sentencing range. Ultimately, each case must be decided on its own facts and circumstances.
182 Since Austic and Pedersen were decided in 2010 this court has heard and determined numerous appeals by the State and by offenders against sentences imposed for murder. The decisions of this court under the legislative scheme introduced by the Criminal Law Amendment (Homicide) Act 2008 are, in general, of greater relevance and assistance, for the purpose of ensuring broad consistency and evaluating comparability in sentencing outcomes, than appellate cases decided before that Act came into operation.
183 The respondent's offending in the present case was very serious as demonstrated by the aggravating features referred to at [157] above. His personal circumstances and antecedents were not especially favourable. He was not of prior good character. He has entrenched problems with alcohol and anger management, and a history of substance abuse. His inability to control his anger when intoxicated is a matter of considerable concern.
184 In our opinion, the minimum term of 17 years was lenient. If we had been sentencing the respondent at first instance we would have imposed a higher non-parole period. However, after taking into account all relevant facts and circumstances (including the trial judge's unchallenged findings of fact), and all relevant principles applicable to the fixing of the length of a non-parole period and the factors which a sentencing judge must take into account when fixing a non-parole period, we are not persuaded that the minimum term of 17 years was below the range open to his Honour on a proper exercise of the sentencing discretion. The State has not established that the minimum term was plainly unreasonable or unjust. We are not willing to infer the existence of error from the sentencing outcome.
185 The ground of appeal fails.
Conclusion
186 We would dismiss the appeal.
1The State of Western Australia v Smith [2014] WASCSR 87.
2Lowndes v The Queen (1999) 195 CLR 665, 672.
3Lowndes.
4 (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ).
5Dinsdale v The Queen (2000) 202 CLR 321 [6] (Gleeson CJ & Hayne J).
6Dinsdale [6].
7Dinsdale [6].
8Dinsdale [61] (Kirby J).
9Dinsdale [59] (Kirby J).
10Chan v The Queen (1989) 38 A Crim R 337, 342.
11Fernandes v The State of Western Australia [2009] WASCA 227 [15].
12The State of Western Australia v Akizuki [2008] WASCA 267 [71] (McLure JA).
13 See, for example, Dearman v Dearman (1908) 7 CLR 549, 561; Scott v Pauly (1917) 24 CLR 274, 278 - 281; M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Martinez v The State of Western Australia [2007] WASCA 143.
14Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23] (Gleeson CJ, Gummow and Kirby JJ).
15Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23] (Gleeson CJ, Gummow and Kirby JJ).
16Pedersen v The State of Western Australia [2010] WASCA 175 [64] (Buss JA, McLure P & Mazza J agreeing).
17Criminal Code (WA), s 279(4).
18Sentencing Act 1995 (WA), s 90(1).
19 The bands are succinctly expressed by Buss JA in Austic v The State of Western Australia [2010] WASCA 110 [158].
20Austic [176] (Buss JA, McLure P & Jenkins J agreeing).
21Austic [174].
22 [2012] WASCA 202.
23 [2012] WASCA 200.
24 Pursuant to s 90(1) of the Sentencing Act 1995 (WA).
25 [31] (Buss & Mazza JJA agreeing).
26 [2011] WASCA 179.
27 [2010] WASCA 175.
28 [2012] WASCA 18.
29 [2013] WASCA 278.
30Silva [40].
31 [2013] WASCA 246.
32Lee [45] (McLure P, Mazza JA and Hall J agreeing).
33 [2014] WASCA 21.
34 [2014] WASCA 72.
35The State of Western Australia v Waterfall [2014] WASCSR 96; The State of Western Australia v Lele [2014] WASCSR 123.
36Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91.
37Goodwyn v The State of Western Australia [2013] WASCA 141.
38 [2005] WASCA 160.
39 [2011] WASCA 135.
40Silich [86].
41Dinsdale v The Queen [6] (Gleeson CJ & Hayne J).
42Dinsdale [59].
43 Without seeking to breach the principles enunciated by the High Court in Barbaro v The Queen [2014] HCA 2 - appeal ts 14.
44Dinsdale [61].
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43
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