The State of Western Australia v Westberg
[2011] WASC 311
•7 NOVEMBER 2011
THE STATE OF WESTERN AUSTRALIA -v- WESTBERG [2011] WASC 311
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 311 | |
| Case No: | INS:51/2011 | 31 OCTOBER - 3 NOVEMBER 2011 | |
| Coram: | SIMMONDS J | 7/11/11 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Reasons given | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA STEFAN DICKY WESTBERG |
Catchwords: | Criminal law and procedure Trial of issues for sentencing for murder within Criminal Code (WA) s 279(1)(b) Whether offender aware at time of causing bodily injury of nature referred to in s 279(1)(b) that that injury was of that nature |
Legislation: | Criminal Code (WA), s 279(1)(b) Criminal Investigation Act 2006 (WA), s 118(3) Criminal Procedure Act 2004 (WA), s 129(5) Sentencing Act 1995 (WA), s 15 |
Case References: | Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 Langridge v The Queen (1996) 17 WAR 346 Pereira v Director of Public Prosecutions [1988] HCA 57; (1988) 82 ALR 217 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 Rawcliffe v The Queen [2000] WASCA 239 Simpson v The Queen [1998] HCA 46; (1998) 194 CLR 228 The State of Western Australia v Pelemis [2009] WASCA 151 Wongawol v The State of Western Australia [2011] WASCA 222 Wright v The State of Western Australia [2010] WASCA 199 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
STEFAN DICKY WESTBERG
Accused
Catchwords:
Criminal law and procedure - Trial of issues for sentencing for murder within Criminal Code (WA) s 279(1)(b) - Whether offender aware at time of causing bodily injury of nature referred to in s 279(1)(b) that that injury was of that nature
Legislation:
Criminal Code (WA), s 279(1)(b)
Criminal Investigation Act 2006 (WA), s 118(3)
Criminal Procedure Act 2004 (WA), s 129(5)
Sentencing Act 1995 (WA), s 15
(Page 2)
Result:
Reasons given
Category: B
Representation:
Counsel:
Prosecution : Mr R G Wilson
Accused : Mr I D Hope
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : In person
Case(s) referred to in judgment(s):
Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1
Langridge v The Queen (1996) 17 WAR 346
Pereira v Director of Public Prosecutions [1988] HCA 57; (1988) 82 ALR 217
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
Rawcliffe v The Queen [2000] WASCA 239
Simpson v The Queen [1998] HCA 46; (1998) 194 CLR 228
The State of Western Australia v Pelemis [2009] WASCA 151
Wongawol v The State of Western Australia [2011] WASCA 222
Wright v The State of Western Australia [2010] WASCA 199
(Page 3)
- SIMMONDS J:
Introduction
1 This is the judgment on a trial of issues for sentencing. The offender pleaded guilty to the offence of murder, and the form of murder to which he pleaded guilty was that under the Criminal Code (WA) s 279(1)(b). The prosecution's statement of material facts as put to me was as follows:
Between half past 10 at night on 1 May 2010 and 6 o'clock on the morning of 2 May 2010, Mr Westberg went to the deceased's house at 61 Kanowna Avenue, Redcliffe with the intention of breaking into the premises and stealing property. He walked around the house looking through the windows in an attempt to determine whether anyone was home. He then removed fuses from the electrical circuits, thus cutting all electrical power to the property, before then kicking in the front glass door and entering the residence. He searched through rooms stealing items, including a purse with approximately $65 cash, keys, jewellery, cards, alcohol and a newspaper still rolled up in plastic.
Mr Westberg was searching another room when he was confronted by the then 84 year old woman deceased, the sole occupant of the house. He struck her to the head at least three times with the rolled newspaper because she was screaming and he wanted to silence her. This caused her to collapse to the ground.
Mr Westberg left the home shortly after the assaults, returning to his home address at Coolgardie Street. There he became involved in an argument with his then partner, Ms Becca Takiwa, and police were called to the Coolgardie house. On arriving there police spoke with Mr Westberg, searched him and found some of the stolen property. Because of the particular explanation he had about how he came to have the property on him police seized it pending further inquiries. That included items of jewellery and a card which had the deceased's name on it.
Mr Westberg was required to leave that area by the police who had attended at that Coolgardie Street house. Having made further inquiries, police went to the deceased's house and found her in a rear room, lying down deceased. It was apparent to them that she had suffered what appeared to be head and facial injuries and there were multiple sites in the house where bleeding had occurred.
Mr Westberg later made his way to the Bassendean Hotel, where he used some of the stolen money to purchase alcohol before travelling to East Perth train station, where he used more of the money to purchase a bus ticket to Northam. He discarded the stolen purse, keys and sundry cards in a toilet rubbish bin. He boarded the bus to Northam, which made its way via Midland. At Midland, police went onto the bus and arrested or found Mr Westberg and arrested him.
(Page 4)
- On 3 May, Mr Westberg was interviewed by police detectives. He admitted the offence to the extent that he admitted having gone to the house to steal money from inside the house. He admitted he had a rolled newspaper; admitted having struck this woman inside the house.
2 I understood there to be a contest as to whether or not the offender did what the statement says he did at the fuse box. At the same time, the prosecution accepts there was no substantial premeditation in what the offender did, which is supported by the crude and noisy form of his entry into the house. In the circumstances, I do not consider that difference makes any material difference to sentencing.
3 It is not in contest that the plea of guilty to the offence is acceptance of facts in a form meeting s 279(1)(b) of the Criminal Code. Section 279(1)(b) of the Criminal Code is as follows:
279 Murder
(1) If a person unlawfully kills another person and -
…
(b) the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; …
the person is guilty of murder.
5 The position of the prosecution is that from all of the evidence in the prosecution brief, the video record of interview and exhibits, the offender did not fall to be sentenced on the basis he had intended to kill the deceased, which is the form of murder in s 279(1)(a). However, he should be sentenced on the basis that he was himself aware at the time he inflicted one or more of the blows on the deceased that he was causing injuries of the nature referred to in s 279(1)(b). He should thus be taken to have intended to inflict such a blow or blows.
(Page 5)
6 It was accepted before me, I consider, that the extent of aggravation represented by any such circumstance if established was a matter for submission at a subsequent sentencing hearing. I note for this purpose the thrust of the remarks in the Law Reform Commission of Western Australia, Final Report: Review of the Law of Homicide (2007), which accounts for s 279 in its present form, at 49 - 50.
7 However, it was also common ground that that extent was capable of being material to sentencing. I agree. That awareness, if established, had the potential to represent a materially higher level of criminal culpability of the offender. The defence position is that the offender did not have the awareness the prosecution claimed he had. That was the issue tried by me. The trial went over four days, with testimony from six witnesses called by the prosecution and one, the offender, called by the defence.
8 I begin by setting out the applicable principles, and I then move to the case put by the prosecution and the evidence on which it relies, before I consider the further evidence on the case, particularly that to which the defence draws my attention. The final section of my reasons is my conclusion.
Applicable principles
9 Turning to the applicable principles, it is not in contest that the prosecution was required to prove that the offender had the awareness the prosecution claimed he had beyond a reasonable doubt: see Langridge v The Queen (1996) 17 WAR 346.
10 At the hearing there were some exchanges I had with the parties as to what if any rules of evidence were applicable to the hearing. I have noted the Sentencing Act 1995 (WA) s 15; see also the Criminal Procedure Act 2004 (WA) s 129(5). Section 15 of the Sentencing Act reads as follows:
To decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.
11 I noted on Sentencing Act s 15 the authority The State of Western Australia v Pelemis [2009] WASCA 151 [13] (McLure JA, Buss and Miller JJA agreeing), which in my view answers the subject matter of the exchanges I had with counsel. That paragraph reads:
The legislative history of s 15 and the various manifestations of its predecessor, s 656 of the Criminal Code (WA), are discussed by Pullin JA in Teakle v The State of Western Australia (2007) 33 WAR 188
(Page 6)
- [35] - [45]. What the discussion reveals is that the repealed s 656 of the Code, which was in substantially similar terms to s 15 of the Sentencing Act, was intended to reflect the then current sentencing practice of the courts. The practice was that where there was a conflict of evidence for sentencing purposes, the court was required to resolve the conflict according to the strict rules of evidence, particularly if the conflict was to be resolved against the offender. That remains the position under s 15 of the Sentencing Act: 'HAS' v The State of Western Australia [2005] WASCA 29 [49] - [55]. The court in HAS said:
If a report is made available to a court for sentencing purposes, the court may rely upon it unless it is challenged … If it is challenged and the point would make a difference to the sentence, the issue should be resolved in the usual way, by the calling of evidence and determination by the Judge [50].
13 Conflict included not only the reliability of the evidence in question and whether it was properly before me, but also what should be drawn from that evidence by way of inferences. In resolving the conflict, I should only have regard to the evidence properly before me in accordance with those rules, including any additional evidence properly adduced at the hearing of the trial of the issues.
14 For this purpose, I consider that amongst the evidence properly before me was the video record of interview, to which I will refer. It was not suggested that that video record of interview was inadmissible, either in whole or in the material respects to which I will return. There are some matters, however, to which my attention was drawn in relation to the video record of interview, which I will reach.
Prosecution case
15 I turn now to the prosecution's case. The prosecution relied on evidence of two kinds as at least in combination, if not individually, establishing the awareness they claim. One kind of evidence was circumstantial evidence, strictly so-called, of the nature and pattern of the injuries the offender inflicted, including evidence given by the offender at the hearing before me as to what injuries he intended to inflict.
(Page 7)
16 The other kind of evidence relied upon by the prosecution was evidence from the accused and from others as to what he had said not long after he inflicted the injuries. It was not in contest before me that it was the subjective knowledge of the offender that was in issue, not the knowledge of a hypothetical reasonable person in the position of the offender at the relevant time, although of course such knowledge might be relevant to drawing an inference as to subjective knowledge: see Simpson v The Queen [1998] HCA 46; (1998) 194 CLR 228 [12] (Gaudron and McHugh JJ, Hayne J agreeing).
17 As to circumstantial evidence, strictly so-called, it was not in contest that the offender inflicted at least three blows on the deceased, two to the upper part of her head, one to the lower part of her head. I find on the evidence before me that the blows were all inflicted using a rolled up newspaper in its plastic wrap, which was exhibit 4 at the hearing. Although there was evidence before me of a bloodied torch - see exhibit 5 - which on the evidence the offender picked up at the house, I find on the evidence it was not used to inflict any of these blows.
18 I so find as to the newspaper and the torch on the evidence represented by the testimony of the forensic pathologist, Dr Cooke, and on the evidence of the offender, including what he said to the police in his video recorded interview on 3 May 2010 at 3.40 am, which at the invitation of the parties I viewed in its entirety after the hearing.
19 I find that the blows so inflicted were, as to at least one of them, inflicted in the hallway of the deceased's house, and as to at least one other of them, inflicted in the bedroom of that house. I so find on the testimony of the police officer who was a blood spatter expert, Senior Constable Blaver. I further find that the blows so inflicted were in totality the application of severe force which caused the deceased to bleed. The deceased asphyxiated on blood that resulted from that bleeding, and that asphyxiation caused her death. I so find on the testimony of Dr Cooke.
20 I further find that the offender intended to inflict the blows he did to the deceased so as to stop her screaming, that he knew at the time this would require a very hard hit or a series of very hard hits, and that he decided at that time to 'seriously injure' her. This was the testimony of the offender in his cross-examination. In his re-examination, he testified he meant by such injury to refer to a 'broken nose or something'.
21 As to the evidence of what the offender said after the infliction of the blows, there was testimony from the sister of the partner of the offender
(Page 8)
- that he had said to the partner that, 'I did this for you. I killed, I killed an old lady for you'. The sister was Tia Takiwa, who testified as to this matter, and her sister was Becca Takiwa, who also testified as to this matter but to a different effect, as I will explain. Tia's testimony was that the offender had said this about dawn on 2 May 2011 at her home, where the offender and Becca with their children had been staying.
22 There was also testimony from a police officer, Senior Constable Way, that he had heard the offender ask him, 'So the person died, did he?'. Senior Constable Way's testimony was that the offender asked that on the afternoon of 2 May 2010 in the Midland police station, to which Senior Constable Way and another police officer had taken the offender after helping him from a bus where he had been found asleep. Senior Constable Way's testimony was that he was entering the offender's details into the custody system when the offender asked the question he did.
23 Finally, there was evidence from the offender himself in the form of what he said in his video record of interview. In the course of that video recorded interview, he said that when he arrived back home in the morning of the events in question, he told Becca and Tia that, 'I think I've killed somebody'.
24 It was not in contest that the question for me was whether on this evidence and other evidence I will reach, I should infer as the only rational inference available that the offender had the awareness the prosecution claimed: see R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] and [48] (Gummow, Hayne and Crennan JJ) and Pereira v Director of Public Prosecutions [1988] HCA 57; (1988) 82 ALR 217, 219 - 220 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).
25 I consider that the evidence of what the offender had said after and close to the events in question is not an admission he had that awareness, but is evidence against him relevant to the drawing of such an inference. I have noted that the offender replied negatively to a question from his counsel in re-examination whether, as he left the deceased's house, he thought the injuries he had inflicted were likely to cause death. Although no objection was taken to that question when it was asked, I accept it was of a leading character, and that little if any weight can be given to it: see Rawcliffe v The Queen [2000] WASCA 239.
26 However, the question for me is whether on all of the evidence before me I should find beyond a reasonable doubt that the offender had the awareness the prosecution claimed, and that is clearly an issue
(Page 9)
- between prosecution and defence. I consider that the lack of any denial of a specific kind in such a case is not a matter from which I should draw an inference adverse to the offender.
27 The question remains on all of the evidence, including the serious injury evidence to which I referred, whether I should find the prosecution has established its case beyond a reasonable doubt. Further, as I will indicate, there was other evidence before me as to what the offender believed was the nature of the injuries he had inflicted, which in my view is to much the same effect as the denial in question.
The evidence in more detail
28 I turn now to consider the evidence in more detail, including the evidence relied upon by the defence. I turn first to the circumstantial evidence, strictly so-called. The defence particularly drew to my attention evidence from Dr Cooke that he could not exclude the possibilities that the deceased had not lost consciousness either when the initial blow or blows were struck, or when the later blow or blows were struck. In addition, it was possibly the cumulative effect of all of the blows, rather than any lessened number of them, that produced the injuries to the deceased which Dr Cooke testified she had suffered.
29 The defence also drew my attention to the fact that the blows were inflicted in the dark. There was evidence in the video record of interview that there was moonlight at the time, which enabled the offender to see into the deceased's house to some extent. However, there was no evidence of any other light at the time the offender inflicted the blows inside the house.
30 Finally, the accused's testimony, echoing the evidence in the video record of interview, was that he did not think the deceased's injuries were 'that bad', as she was still breathing after he had inflicted the blows. When account was taken of those possibilities, the conditions under which the blows were inflicted, and the offender's evidence as to the deceased's breathing, the defence said, it was not clear the inference the prosecution contended for should be drawn at the criminal standard from the nature or pattern of the injuries the deceased had suffered at the hands of the offender.
31 By way of additional matter the defence relied upon, it was common ground that the offender was heavily intoxicated at the time of the infliction of the blows. It was not suggested this prevented him having the intention required under the Criminal Code s 279(1)(b). Indeed, the
(Page 10)
- contrary emerges from the plea of guilty he had made. However, the defence put to me that this intoxication, considered with the evidence as to the offender's emotional state at the time he inflicted the blows he did and his limited intellectual ability, was such as to impair his understanding at that time of the nature of the injuries he was inflicting. The evidence as to his emotional state was that he had had an argument with his partner Becca and was angry when he left their home. However, I also note from the video record of interview that he said to police officers he had 'time to cool off' by the time he came to the deceased's house.
32 The evidence as to the offender's limited intellectual ability was the unchallenged evidence of his limited literacy, as well as what was put to me and which I am inclined to agree I observed, as to his childlike behaviour. When that additional matter was considered with the evidence as to the possibilities referred to, the conditions under which the blows were inflicted, and the breathing evidence, it should be concluded, the defence said, that the inference the prosecution contended for simply could not be drawn at the criminal standard.
33 I agree that those possibilities, those conditions, and the evidence as to hearing the deceased's breathing, when considered with the evidence of intoxication and of the offender's limited intellectual capacity, at least, tend significantly against drawing at the criminal standard the inference the prosecution contends for. However, before any conclusion as to the inference the prosecution contended for had been made out at the criminal standard can or cannot be arrived at, all of the relevant evidence must be considered: see Hillier.
34 This takes me to the evidence of the statements made by the offender after the events in question. As to the statements made after the events in question, the defence drew to my attention what they said was reason to believe the offender had not said what Tia testified to. That reason was that Becca had testified she had not heard the offender say anything about killing anyone for her or anything like that; that she and the offender had testified as to bad relations between Tia and the offender; that Becca had testified that Tia had a tendency to exaggerate; and the evidence from Becca, the offender, and Tia herself that she had consumed a considerable amount of alcohol that night; and from Becca, at least, that Tia was drunk that night.
35 I leave aside evidence as to Tia's mental condition, as it is not clear from that evidence what contribution any such condition would have made to Tia's testimony. At the same time, I must note what the offender
(Page 11)
- said in the video record of interview as to telling Becca and Tia that he thought he had killed someone; I previously referred to that evidence. Before me, he testified he had not said any such thing to anyone. However, I consider on my viewing of the video record of interview that I should believe what he said there in preference to what he said in his testimony.
36 The offender had not, on my viewing, fully recovered from the physical condition under which he had been labouring prior to the video record of interview, a physical condition to which I will return in connection with Senior Constable Way's evidence, and not long after he said what he did in the video record of interview, as shown in that video record, he discontinued the interview, indicating, it seems to me, some difficulty in continuing. Notwithstanding all of that, his recollection appeared to me, as indicated in the video record of interview, coming as soon after the events as it did, to have the ring of truth.
37 I consider, however, that even if I accept Tia's evidence as to what the offender had said, I must also take into account her evidence and Becca's that he was 'ranting and raving' at the time. I also note that on the evidence, the accused's motive for taking the property from the deceased's home was to benefit himself personally to enable him to travel to his parents in Merredin, or to obtain alcohol, not to benefit his partner and their children. I further note Tia's evidence that the offender had told her he had 'stabbed some old lady'. There was no evidence of the use of a knife in the events in question.
38 I consider Tia's evidence, when considered in this light, is not a clear indication the offender had at the time of the offence appreciated that the nature of the blows he had inflicted were of the kind in s 279(1)(b), but rather was saying what he did as an expression of his emotional state, not the truth of what he had observed.
39 In any event, I am not satisfied on the balance of probabilities that the offender said anything more than that he thought he had killed someone. This, in my view, is more consistent with the matters I took into account regarding the light I referred to, as well as Becca's evidence as to Tia's tendency to exaggerate, that is more consistent than that he said what Tia said he did.
40 Further, I note what the offender said in his video record of interview as to why he said he thought that he had killed someone. The reason he gave was the blood he saw on his shoes and perhaps on other things he
(Page 12)
- was wearing at the time. I consider that when that evidence is reflected upon with the evidence of the darkness in the deceased's home at the relevant time, it is reason to consider that he did not conclude from the nature of the blows that he was inflicting that he was causing injuries of the nature referred to in s 279(1)(b). Rather, it is reason to consider the offender arrived at the thought he referred to later, when he was in a position to see the blood he referred to.
41 As to what Senior Constable Way testified the offender asked of him, I consider on closely analysing it that there is nothing of significance that question adds to the evidence in the video record of interview.
42 However, the defence contended that I should not in any event admit that evidence, as there was no proper video record of the question as required by the Criminal Investigation Act (WA) s 118(3). In any event, I should not admit that evidence in the exercise of the discretion to exclude evidence of that kind where to admit it would be unfair to the offender. Finally, the defence said, I should find it was not established that the offender had said what the Senior Constable Way had said he did.
43 I am not convinced that the Criminal Investigation Act s 118(3) applies to a trial of the issues for sentencing. In any event, I consider that there was a reasonable excuse for lack of a video record. It was not in contest that the offender's question had not been produced by any questioning of him at that point. In that respect, the offender's question was, in my view, like the statement by the suspect in Wright v The State of Western Australia [2010] WASCA 199 [3], on which see [56] (McLure P, Buss JA agreeing).
44 True it is there was an audiovisual record of events in the Midland police station, although it was not one which in my view made it possible to make out what if anything the offender was saying to Senior Constable Way, and, while Senior Constable Way's words could be made out, it was only with difficulty and not as to, in my view, all of them. However, it was not clear to me that that recording was intended to record, or indeed was capable of reliably recording, what suspects were saying under those conditions.
45 However, in any event, I consider that in the exercise of the fairness discretion and authorities such as Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, 18 - 19 (Deane J), frequently quoted in this respect, I should exclude the evidence.
(Page 13)
46 It was common ground there was no evidence the offender had been cautioned before he asked the question. In the context in which the question was asked, where on the evidence of Senior Constable Way the question was a surprise, this is perhaps understandable. However, on the witness statement of Senior Constable Way, forming part of the prosecution brief, to which no challenge was made in this respect, the offender said, 'No comment', to Senior Constable Way when, shortly afterwards, the caution was administered and the senior constable asked him to elaborate on his question. In my view, this tended to indicate that the caution was a matter of importance to the offender.
47 Further, it was not in contest that the appellant's physical condition was poor at the time of the question. He had not slept on the night of 1 to 2 May 2010. He had taken a tranquilliser and under its effects had been sleeping on the bus from which the police had taken him to the Midland police station. He had later been taken to hospital, where he had slept for a period, as indicated in his video record of interview, of about eight hours.
48 In those circumstances, I would exclude the evidence of the question he asked in the police station.
49 I consider then that I do not need to consider whether or not the offender said what Senior Constable Way testified he did. However, if it had been necessary to do so, I would have found that the offender had in fact said what Senior Constable Way testified he did. Such a question would have been consistent with his evidence in the video record of interview as to what he said to Tia and Becca, although of course it was not in precisely the same words or to precisely the same effect.
50 Further, I find Senior Constable Way to be a reliable witness on this point, based on the evidence before me in the form of the contemporaneous notes he took and the contemporaneous entry into the police computer he made of the question the offender asked, both of those having been put into evidence before me, as well as on my impression of the senior constable.
51 I consider, on the view I have taken of the statements I accept the offender made after the events in question, that they should be weighed with the circumstantial evidence I referred to. However, so weighed in my view of them, those statements do not tend strongly in favour of the conclusion the prosecution contends for.
(Page 14)
Conclusion
52 My overall conclusion, then, is this. I consider on all of the evidence properly before me I should not find beyond a reasonable doubt that the offender at the time he inflicted the blows in question was aware they were of the nature in the Criminal Code s 279(1)(b). I so consider as the evidence relied upon by the prosecution properly before me, considered with all of the other evidence to which I have referred, is insufficient for the drawing of the inference of awareness at the criminal standard. Thus there is no aggravating circumstance for sentencing of that kind.
53 However, at the same time, I find on the same evidence that the offender was aware at the relevant time that he was inflicting blows by which he meant to inflict serious injury so as to silence the deceased and thereby prevent her interference in the offender's burglary of her house. The offender is not charged with any such burglary, and I will not be sentencing him for any such offence. However, I consider that the finding I have made is of an aggravating circumstance for the purpose of sentencing the offender for the killing that was caused by the infliction of those blows.
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