Thompsett v The Queen

[2001] WASCA 8

THOMPSETT -v- THE QUEEN [2001] WASCA 8

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 8
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:270/1999	Heard:	6 JUNE 2000
Coram:	KENNEDY J MURRAY J PARKER J	Delivered:	31/01/01
No of pages:	17	Judgment Part:	1 of 1
Result:	Application for leave to appeal against sentence dismissed
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Parties:	BENJAMIN STEPHEN THOMPSETT THE QUEEN
Catchwords:	Criminal law and procedure Sentencing Murder Sentence of life imprisonment with minimum term of 11 years Applicant having history of substance abuse Claims of schizophrenia and attention deficit disorder not supported Applicant mildly intellectually handicapped Deprived background Minimum term upheld
Legislation:	Nil
Case References:	Channon v The Queen (1978) 20 ALR 1 Lauritsen v The Queen [2000] WASCA 203 Lowndes v The Queen (1999) 195 CLR 665 Sherratt v The Queen [2000] WASCA 112 Veen v The Queen (No 2) (1988) 164 CLR 465 Celetano v The Queen, unreported; CCA SCt of WA; Library No 960150; 21 March 1996 Inge v The Queen (1999) 199 CLR 295 Kenneally v The Queen, unreported; CCA SCt of WA; Library No 980284; 27 May 1998 Oldham v The Queen [1999] WASCA 304 Paparone v The Queen [2000] WASCA 127 R v Bell (1992) 62 A Crim R 66 R v Dalgety [2000] WASCA 10 Radalj v The Queen, unreported; CCA SCt of WA; Library No 970059; 20 February 1997 Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998 Wicks v The Queen (1989) 3 WAR 372

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : THOMPSETT -v- THE QUEEN [2001] WASCA 8 CORAM : KENNEDY J

MURRAY J
PARKER J

HEARD : 6 JUNE 2000 DELIVERED : 31 JANUARY 2001 FILE NO/S : CCA 270 of 1999 BETWEEN : BENJAMIN STEPHEN THOMPSETT

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Murder - Sentence of life imprisonment with minimum term of 11 years - Applicant having history of substance abuse - Claims of schizophrenia and attention deficit disorder not supported - Applicant mildly intellectually handicapped - Deprived background - Minimum term upheld

Legislation:

Nil

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Result:

Application for leave to appeal against sentence dismissed

Representation:

Counsel:

Applicant : Mr R E Lindsay
Respondent : Mr R E Cock QC

Solicitors:

Applicant : Robert Lindsay
Respondent : State Director of Public Prosecutions

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

Channon v The Queen (1978) 20 ALR 1
Lauritsen v The Queen [2000] WASCA 203
Lowndes v The Queen (1999) 195 CLR 665
Sherratt v The Queen [2000] WASCA 112
Veen v The Queen (No 2) (1988) 164 CLR 465

Case(s) also cited:

Celetano v The Queen, unreported; CCA SCt of WA; Library No 960150; 21 March 1996
Inge v The Queen (1999) 199 CLR 295
Kenneally v The Queen, unreported; CCA SCt of WA; Library No 980284; 27 May 1998
Oldham v The Queen [1999] WASCA 304
Paparone v The Queen [2000] WASCA 127
R v Bell (1992) 62 A Crim R 66
R v Dalgety [2000] WASCA 10
Radalj v The Queen, unreported; CCA SCt of WA; Library No 970059; 20 February 1997
Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998
Wicks v The Queen (1989) 3 WAR 372

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1 KENNEDY J: The applicant was presented in the Supreme Court on an indictment containing the single count that, on or about 13 December 1998, at Esperance, he wilfully murdered Garry Hoffman ("the deceased"). On his arraignment, the applicant pleaded not guilty to the count charged, but guilty to the murder of the deceased. That plea was accepted by the Crown in full satisfaction of the indictment.

2 The deceased was a 51 year old male. In 1987, he had become involved in a de facto relationship with Ms L Thompsett, who is the applicant's mother. When that relationship commenced, the applicant was aged approximately nine years. It endured for some 11 years; but, about 18 months prior to the date on which the offence was committed, the deceased moved into his own flat. Nevertheless, the relationship thereafter was said to be "on again, off again". Ms Thompsett claimed that the deceased had been violent towards her and that this had occurred on several occasions. On some of these occasions the violence had been witnessed by the applicant who, it seems, has always lived with his mother.

3 Some three weeks prior to the events which resulted in the death of the deceased, the applicant, the deceased and two other men had been drinking alcohol together, in the course of which the applicant "snapped". He grabbed hold of the deceased and swore at him. Nevertheless, despite this incident and despite the aggression which had been evident between the applicant and the deceased over a period of time, there existed what was described by the Crown prosecutor as a state of friendship between them, as demonstrated by the fact that the deceased had given the applicant a key to his flat. The applicant acknowledged that he had been given the key in case he was "down town" and wished to call on the deceased. He later said that he usually went to the deceased to sort out his own problems and that usually the deceased could calm him down.

4 On Saturday, 12 December 1998, a family barbecue was held at Ms Thompsett's home. Those present in addition to Ms Thompsett and the applicant, who was then aged 20, were her current partner, Mr P Logan, and a family friend, Mr P Spencer, who had some 12 years previously been her de facto husband. The applicant had been drinking considerable amounts of alcohol during the day and, by the time he arrived at the barbecue, he was said to have been very intoxicated, although he denied to the person who prepared his pre-sentence report that he was intoxicated and maintained that he was in control of his actions. Those at the barbecue were all drinking beer and spirits. During the evening, Mr Spencer made a sexual advance towards Ms Thompsett. This

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was witnessed by the applicant. She resisted Mr Spencer's advance, but, in the course of it, she was pushed by him, with the result that she sustained quite a severe burn to her arm from the barbecue. The applicant was visibly angry towards Mr Spencer, although he did not react physically. In his interview with the police, he suggested that it reminded him of what the deceased used to do to his mother. After having taken a walk around the block with his mother, who had been upset by the incident, the applicant told both his mother and Mr Logan that he was going to the deceased's flat "to sort him out".

5 It appears that the deceased had telephoned Ms Thompsett during the barbecue, asking her to resume their relationship and also seeking to come to the barbecue. Ms Thompsett had been upset by the telephone call and she declined both requests. She said that the deceased seemed to be drunk. She also indicated that, during the call, the deceased had accused the applicant of breaking into his flat and stealing some objects from it.

6 The applicant left his mother's home at about 10.00 or 11.00 pm and walked some two kilometres to the deceased's flat. He used the key which he had been given by the deceased to let himself in. When the applicant entered the flat, the deceased was asleep in bed. The applicant admitted that he had shaken the deceased and had then picked him up and thrown him onto the bedroom floor before attacking him violently.

7 The precise details of what next occurred are not altogether clear, but it is quite apparent that the applicant embarked upon a most cruel and ferocious attack, which was completely unprovoked, against a man who was incapable of defending himself in any way. The deceased was extremely intoxicated, being found later to have had a blood alcohol reading of 0.32 per cent. The applicant admitted to punching the deceased 15 times, but the post mortem report indicated that he must also have stomped on the deceased's head and chest. The deceased received severe injuries to his face and chest, including extensive fractures of his nose, cheek bones and upper jaw bone, and multiple fractures of his ribs and breast bone. He bled profusely.

8 Following the attack, the applicant picked up the deceased, placed him back onto his bed and covered him with a blanket. He then left the deceased, whom he claimed was still alive, although he was "gurgling". He returned home and went to sleep. He sought no medical attention for the deceased. Early the next morning, the applicant told his mother that he had hit the deceased four times. She became nervous and indicated

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that she was going down to his flat to see if he was alright. When she arrived at the flat, she found the deceased was dead.

9 The applicant told the Senior Community Corrections Officer who prepared the pre-sentence report that he had gone to the deceased's residence with the intention of warning him to keep away from his mother. He said that he had experienced an uncontrollable rage when assaulting the deceased. His mother confirmed that the applicant had previously threatened to harm the deceased. The applicant ascribed his conduct to what he claimed was schizophrenia, but this diagnosis was not supported by the psychiatrists and was rejected by the sentencing Judge.

10 The applicant is single and has no dependants. He completed his schooling at the age of 14, midway through Year 9. He had experienced learning difficulties and he attended special classes at school. He was found to be mildly intellectually handicapped and dyslexic. He was suspended from school on several occasions due to his violent outbursts, which had once involved the use of a knife. He has experienced a socially impoverished background and, as well as being the perpetrator of violence, he has been a witness to and a victim of violence within his own family through his mother's various partners. The applicant presented himself to the writer of the report as a man with limited intellectual and social skills. Although he co-operated with her inquiries, he appeared not to comprehend the seriousness of his predicament.

11 For three years preceding his arrest for the present offence, the applicant was employed as a skin trimmer at an abattoir in Esperance. His mother indicated, however, that he was incapable of managing his affairs and that she assisted him with his budgeting and banking. The applicant has tended to spend his leisure time principally with his mother and her friends. His only friends of his own age are "a couple of associates from work".

12 Subsequent to his arrest, the applicant was examined by two psychiatrists, Dr P W Skerritt and Dr Z Srna, and by a psychologist, Ms K L Bouse.

13 Dr Skerritt reported that the applicant did not describe any symptoms which suggested a formal psychiatric diagnosis. He did mention attention deficit disorder which, Dr Skerritt said, may have been accurate, but the description given to him did not lead to any formal psychiatric diagnoses beyond those of a personality nature. He acknowledged that the applicant had a very poor start in life, both from the levels of intelligence and

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personality resources with which he was equipped, and from his being raised in a very unstable domestic situation. He had great difficulty in tolerating school, but nevertheless prided himself on his ability to work and he apparently claimed to have done well. This claim is open to some doubt. His impulsiveness, added to alcohol, Dr Skerritt considered, led to something of a preoccupation with the shortcomings of the deceased, and he lacked the inhibition to stop hitting him when something "snapped" in his mind. Dr Skerritt's observations, whilst they did not give rise to potential defences such as insanity or autonomism, did lead to some understanding of his motivations for the commission of the offence, many of which were said to be outside his control.

14 Dr Srna's conclusion from the available evidence, and his assessment, was that the applicant was a young man of borderline intelligence or with possibly mild retardation, and a history of attention deficit disorder and hyperactivity as a child. There was a history of impaired impulse control, with episodes of blackouts and episodic discontrol syndrome in emotionally highly charged situations, worsened by the use of alcohol. He indicated that, without having access to all the depositions in the case and the witness statements, it was not possible to express a definite opinion on the applicant's mental state at the time of the alleged offence. It appeared, however, that his violent outburst leading to the offence was similar to other episodes of his losing control over his aggression, only this time there was no one to stop him from a serious assault upon the victim. Dr Srna suggested that, without additional special investigations, it was not possible for him to make a definite diagnosis, although he suggested that the most likely scenario was that the applicant suffered significant brain damage during delivery. There is nothing before us to indicate that any of the suggested special investigations has been carried out.

15 Ms Bouse said that the applicant described his relationship with the deceased as having been characterised by violence. He further alleged that, in the past, the deceased had attempted to kiss and fondle him, only ceasing when he became aggressive. There was no reference to these matters in the psychiatric reports. Ms Bouse referred to the applicant's limited intellectual and social skills and pointed to his socially impoverished background. She indicated that the applicant presented as lacking any effective response to the severity of his actions or to the deceased's resulting death. He showed little remorse and repeatedly justified his actions. He lacked insight into the factors which had contributed to his offending behaviour. She indicated that, until such time as the applicant addresses his developmentally significant experiences

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within a therapeutic environment, it is likely that he will continue to react to conflict in his habitually aggressive manner. She concluded that, while he continued to dismiss the seriousness of his actions, to justify his offending behaviour and to lack resolution of the issues arising from his dysfunctional childhood, the applicant presents as a high risk of re-offending.

16 After setting out the facts, the learned sentencing Judge said:

"You appear to have little insight into the enormity of your crime. You claimed to the police that you are a schizophrenic and you have claimed to those responsible for the preparation of the reports that you suffered from ADD. There is scant evidence of either condition. You have alleged that the deceased man made sexual advances to you when you were younger, but there is only your word for that, and in any event this is not proffered by you as a reason for your extraordinary attack.

You are mildly intellectually handicapped. Although your background has been one of deprivation and disadvantage, that is little excuse for your actions on 13 December 1998. Many hundreds of people, equally disadvantaged, do not resort to extreme and unprovoked violence. The lifestyle and behaviour of the deceased to you and your mother does not offer any justification for your taking his life.

Apart from your age, there is little in mitigation, but I do take into account to some degree your plea of guilty, your deprived background, including the violence which you witnessed or to which you were from time to time subjected, and your mild intellectual disability. Your uncontrollable anger remains a serious problem. Unless over the years you take active steps to control and manage it, then you will remain at high risk of reoffending and putting other members of the community in peril. No doubt the Parole Board will very much have the safety of the community in mind when it eventually considers whether you should be released back into the community."

17 In fixing a term of 11 years before the applicant would be eligible for consideration for parole, his Honour backdated that term by approximately 3 months and 2 weeks to the date of his committal for trial.
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18 The applicant seeks leave to appeal against his sentence on the following grounds:

That the [minimum term] imposed by the learned sentencing Judge was manifestly excessive, in that he:

(a) failed to give proper or any credit for the applicant's early plea of guilty;

(b) failed to give proper consideration to the applicant's co-operation with the police;

(c) failed to give proper consideration to the applicant's psychological and psychiatric illness and general antecedents; and

(d) failed to give any or any proper credit for the time the applicant had been in custody on remand.

19 Section 688(1a) of the Criminal Code provides that a person convicted on indictment and committed for sentence may appeal to the Court of Criminal Appeal -

"(a) against a sentence of indefinite imprisonment passed under Part 14 of the Sentencing Act 1995; and

(b) with the leave of the Court of Criminal Appeal, against any other sentence passed upon him, unless the sentence is one fixed by law."

20 Mr Cock QC, citing Sherratt v The Queen [2000] WASCA 112, at [28], submitted that the applicant had no right to apply for leave to appeal against the imposition by the learned sentencing Judge of a minimum term of 11 years' imprisonment before he would become eligible for release on parole. This was on the basis that a sentence of life imprisonment was a sentence "fixed by law" and that the minimum term is fixed as part of the imposition of that sentence. On the face of it, that is a startling proposition. The argument, however, overlooks the definition of "sentence" in s 703 of the Code. That section defines a "sentence" to mean a sentence under the Sentencing Act 1995 and "any other order under that Act". Section 90(1) of the Sentencing Act requires that a court which sentences an offender to life imprisonment for murder must set a minimum period of at least 7 and not more than 14 years that the offender must serve before being eligible for release on parole. The setting of a

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minimum term. In my opinion, is clearly "any other order" under the Sentencing Act. The term is set by the making of an order, and the applicant is therefore entitled to apply for leave to appeal against that order.

21 There is nothing before us to indicate that his Honour was wrong in stating that the applicant's plea of guilty was not an early plea. Certainly, the fact was that the plea was only entered on the date fixed for his trial. We were provided with no information as to when the applicant first offered to plead guilty to the lesser offence of murder. There is no reason to doubt that his Honour did, as he indicated that he would, take into account the plea of guilty.

22 In relation to what is said to be the learned trial Judge's failure to give proper consideration to the applicant's co-operation with the police, counsel for the Crown contended that only limited co-operation had been given. It was certainly a straightforward police investigation. It may have been a symptom of the applicant's disability, but his interviews with the police contained a number of internal inconsistencies as well as inconsistencies with the statements made by other persons. This was not a case in which the applicant provided particularly useful information to the police. Indeed, he minimised his own conduct. His Honour did not record that he was taking into account the applicant's voluntarily surrendering to the police and informing them of his responsibility for the death of the deceased. This is, however, to be measured against the enormity of the applicant's conduct and the risk of further offending which he presently poses.

23 Counsel for the applicant argued that his Honour, in stating that there was scant evidence of either attention deficit disorder or schizophrenia, did not apparently connect the "chronic anger problem, frequently becoming enraged" with the applicant's intellectual disability. His Honour did, however, refer to his uncontrollable anger remaining a serious problem. As I have indicated, the psychiatric and psychological reports were far from definite regarding the applicant's condition. Other investigations were recommended in order to enable a more definite diagnosis to be made, but, if any such investigations were conducted, they were not made available either to the learned sentencing Judge or to this Court. The learned sentencing Judge had no solid information upon which to proceed, and was in no position to speculate on the applicant's condition.

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24 The importance of psychiatric abnormality has been the subject of much discussion in recent years. The difficulty which it poses for sentencing Judges is well known. As Brennan J said in Channon v The Queen (1978) 20 ALR 1, at 4 - 5:

"Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender's psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is severe."

25 The concept of proportionality requires that the sentence should not be increased beyond what is proportionate to the crime in order to extend the period of society protection - see Veen v The Queen (No 2) (1988) 164 CLR 465, at 472. The minimum term imposed by his Honour does not, in my view, infringe this concept, and I am not persuaded that the minimum term for eligibility for parole fixed by his Honour does not fairly take into account the matters personal to the applicant.

26 There is, in my opinion, no substance in the claim that the learned sentencing Judge failed to give any, or any proper, credit for the time the applicant had been in custody on remand.

27 Section 87 of the Sentencing Act provides:

"If when an offender is being sentenced to imprisonment for an offence -

(a) he or she has previously spent time in custody in respect of that offence and for no other reason; and

(b) the sentencing court decides that that time should be taken into account,

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the court may take that time into account -

(c) if it imposes a fixed term, by reducing that term by an appropriate period; or

(d) by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence."

28 The facts in this case were that the applicant was taken into custody on 13 December 1998. On 28 February 1999, he escaped from legal custody but was recaptured on the same day. For this offence he was sentenced on 5 March 1999 to 6 months' imprisonment. That sentence was required to be served without remission - see s 92 and s 95(1) and the definition of "prescribed term" in s 85(1) of the Sentencing Act. In the circumstances, it has not been demonstrated that his Honour fell into any error in the exercise of his discretion. The maximum additional allowance that could have been made was less than 12 weeks.

29 By s 90(1) of the Sentencing Act, a court that sentences an offender to life imprisonment for murder must set a minimum period of at least 7, and not more than 14, years that the offender must serve before being eligible for release on parole. The learned sentencing Judge fixed a term of 11 years, which was 6 months more than the mean figure within the permissible range. In doing so, his Honour was exercising his discretion. The role of an appellate court in such a case as the present is laid down in Lowndes v The Queen (1999) 195 CLR 665, at [15]. No sufficient basis has, in my opinion, been demonstrated for interfering with his Honour's decision.

30 For the reasons which I have expressed, I would dismiss the applicant's application for leave to appeal against his sentence.

31 MURRAY J: This was an application for leave to appeal against what is described in the application as a minimum term of 11 years before becoming eligible for parole. The application does not identify the actual sentence imposed on the applicant, but it was a mandatory sentence of life imprisonment imposed upon the conviction of the applicant for the crime of murder: Criminal Code (WA), s 282(d)(i). I have had the considerable advantage of reading in draft the reasons in respect of the application published by Kennedy J. At par [18] his Honour sets out the grounds advanced in support of the application, substituting the words "minimum

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term" for the word "sentence" used in the form of application which was filed.

32 I note the views expressed by Kennedy J as to the competence of the appeal. However, for my part, with respect to those views, I am still beset by the concerns I expressed in Sherratt v The Queen [2000] WASCA 112; 5 May 2000 at par [28], although of course the question was not finally decided in that case.

33 As in this case the Crown submitted that the application was not competent, I should finally form and express my views. I agree with the submission. This purports to be an appeal which may be brought by leave pursuant to the Code, s 688(1a)(b) which, following the conferral of a power to appeal against a sentence of indefinite imprisonment passed under Part 14 of the Sentencing Act 1995 (WA), gives to a convicted person, a right of appeal:

"with the leave of the Court of Criminal Appeal, against any other sentence passed upon him, unless the sentence is one fixed by law."

Having regard to the terms in which that power is conferred, there could, of course, be no appeal against the sentence of life imprisonment.

34 For the purposes of that provision, "unless the context otherwise requires", s 703 of the Code defines the word "sentence" to mean:

"…a sentence under the Sentencing Act 1995 and includes -

(a) any other order under that Act; and

(b) an order for the forfeiture or disposal of any property or thing."

Those became the terms of that provision upon its enactment by the Sentencing (Consequential Provisions) Act 1995, s 26, which was itself enacted as part of a package of legislation, including principally the Sentencing Act itself.

35 That which is described in this application as a "minimum term" will therefore be a sentence against which an appeal may be brought by the convicted person, by leave, if it is a sentence or "other order" under the Sentencing Act. In my opinion it is neither.

36 The sentences which may be imposed upon a natural person are set out in s 39(2). In ascending order of severity they are, a condition release

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order, a fine, a community based order, an intensive supervision order, suspended imprisonment and a term of imprisonment imposed under Part 13 of the Act. For the purposes of that part, it is made clear in s 85(1) that a term of imprisonment includes not only a fixed term of years, but a "life term" which means life imprisonment or strict security life imprisonment. A term of imprisonment does not include indefinite imprisonment imposed under Part 14. However, that is of no moment in relation to the question whether a person sentenced to indefinite imprisonment might appeal against that punishment because s 98(1) provides that in addition to the imposition of a term of imprisonment, a superior court may "order the offender to be imprisoned indefinitely" and, in any event a right of appeal by leave is conferred by the Code, s 688(1a)(a).

37 For present purposes then, it is clear that the applicant was sentenced within the meaning of the Code, s 703 to a term of life imprisonment, although he could not appeal against that sentence because it was a mandatory punishment. Under s 90(1) of the Sentencing Act:

"A court that sentences an offender to life imprisonment for murder must set a minimum period of at least 7 and not more than 14 years that the offender must serve before being eligible for release on parole."

Section 90(2) contains an identically worded requirement to set a minimum period where an offender is sentenced to life imprisonment for wilful murder, and there is an identically worded requirement of a like kind under s 91(1) where a court sentences an offender to strict security life imprisonment. In each case it is made clear that the minimum period is simply a part of the sentence of life imprisonment or strict security life imprisonment which is imposed, and by s 90(3) and s 91(2) it "begins to run" when the term of life imprisonment or strict security life imprisonment begins. The minimum period has no life or status of its own and the concept of a "minimum term" is not one recognised by the legislation.

38 The minimum period is "set" as part of the imposition of the sentence of life imprisonment or strict security life imprisonment. No order is made. In contrast to that terminology is the provision in s 91(3) that:

"A court that sentences an offender to strict security life imprisonment must order that the offender be imprisoned for the whole of the offender's life if it is necessary to do so in order to meet the community's interest in punishment and deterrence."

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It is notable, in my opinion, that in this as in other parts of the Sentencing Act, a distinction is preserved between forms of sentence and orders made under the Act. In my opinion it is clear that to set a minimum period is merely to complete the process of, relative to this case, imposing a sentence of life imprisonment. It is not to make an order in a form recognised by the Sentencing Act. That Act does, however, recognise a number of orders which it describes as forming part of a sentence. They are dealt with in Part 15, which provides for various forms of disqualification orders. Section 102(3) provides that an order made under that Part forms part of the sentence.

39 On the other hand, the Sentencing Act recognises a number of other orders which it expressly provides are not part of the sentence imposed, which therefore must not be reduced because of the making of such an order. Part 16 deals with reparation orders in the form of either a compensation order or a restitution order and Part 17 provides that a restraining order made under the Restraining Orders Act 1997, s 63 is taken to be an order made under that Part of the Sentencing Act, although again, not part of the sentence imposed on an offender. In each case in respect of such orders which are not part of the sentence imposed, the Act expressly provides for a right of appeal against the making of the order "as if it were part of the sentence imposed": s 110(6) and s 123(4). In my opinion these are the orders to which reference is made in par (a) of the definition of the word "sentence" in the Code, s 703.

40 In my opinion, the appeal is not competent and the application for leave should be dismissed upon that ground. The omission of any capacity to appeal against the setting of a minimum period, if it is an hiatus in the statutory scheme and is not deliberate, needs to be addressed by legislative amendment.

41 If I am wrong in that view, I would repeat the criticism of the formulation of the ground of the application in terms of a complaint that the minimum term was manifestly excessive which I made in Sherratt at par [44] - par [46] and in the later case of Lauritsen v The Queen [2000] WASCA 203; 4 August 2000 at par [106] and par [107].

42 If the question to be considered is whether the sentencing Judge in this case, McKechnie J, erred in the exercise of his discretion in setting the minimum period, I would gratefully adopt the reasoning of Kennedy J, to which I have nothing to add except in one minor respect concerned with the direction that the term be taken to have commenced on 9 September 1999, the day of the applicant's committal for trial, rather than upon the date of sentence, 21 December 1999. Under s 87, which

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Kennedy J has set out, the time spent in custody on remand was to be taken into account, if at all, because this was a sentence of life imprisonment and not a fixed term, under s 87(d):

"by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence."

That is precisely the form of order made by McKechnie J in relation to the sentence of life imprisonment which had the effect, having regard to s 90(3), that the minimum period of 11 years also commenced to run on that date.

43 If it is necessary to consider the exercise of discretion by McKechnie J in any respect, I respectfully concur in the view that the applicant fails to demonstrate any error on the part of his Honour and for that reason also, in my opinion, leave to appeal should be refused.

44 PARKER J: I have had the advantage of reading in draft the reasons now published by Kennedy J and Murray J.

45 Their Honours have come to different views about the competence of the application for leave to appeal against the minimum period of 11 years which the sentencing Judge set pursuant to s 90(1) of the Sentencing Act 1995, being the minimum period the applicant must serve before being eligible for release on parole. By s 90(1) the sentencing Judge was required to set a minimum period of at least 7 and not more than 14 years when sentencing the applicant to life imprisonment, which was the sentence "fixed by law" for the offence of murder for which the applicant was sentenced.

46 By s 688(1a) of the Criminal Code a person in the applicant's situation may appeal to the Court of Criminal Appeal against (a) a sentence of indefinite imprisonment, and (b) with leave "against any other sentence passed upon him, unless the sentence is one fixed by law". "Sentence" is defined by 703 of the Criminal Code to mean a sentence under the Sentencing Act 1995 and "any other order under that Act".

47 Hence the question is whether the fixing of a minimum period pursuant to s 90(1) of the Sentencing Act is within the compass of the words "any other order" in s 703 of the Criminal Code.

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48 Kennedy J prefers the view that this is the case with the consequence that the applicant is entitled to apply for leave to appeal against the minimum period so fixed.

49 Murray J, however, for reasons anticipated in his decision in Sherratt v The Queen [2000] WASCA 112 at [28] and developed further in his decision on this application, prefers the view that a minimum period under s 90(1) of the Sentencing Act is set as part of the imposition of the sentence of life imprisonment has no distinct existence or status of its own. Further, his Honour considers that no order is made when a period is fixed under s 90(1). His Honour contrasts the language of provisions such as s 91(3). He also refers to various disqualification orders which form part of a sentence as provided by Part 15 of the Sentencing Act, and which by s 102(3) "forms part of the sentence". His Honour contrasts Part 15 orders, which may be the subject of an application for leave to appeal as they form part of the sentence itself, with reparation orders made under Part 16 which, by s 110(1) are "are in addition to and not part of the sentence…" with the effect for sentencing purposes that a sentence may not be reduced because a reparation order is made, see s 110(2). Because of s 110(1), s 110(6) provides that "an offender may appeal against a reparation order as if it were part of the sentence…". There is a similar provision to s 110(6) in s 123(4) in Part 17 of the Sentencing Act. This deals with other orders not forming part of a sentence, eg, a restraining order under the Restraining Orders Act 1977, see s 124. From his consideration of these provisions Murray J is led to the conclusion, as I understand his reasons, that it is only orders within the meaning of s 110(6) and s 123(4) which comprise the orders contemplated by the phrase "any other order" in s 703 of the Criminal Code. Hence, it is the view of Murray J that this application is not competent and the applicant has no right of appeal or right to seek leave to appeal from the minimum period set by the sentencing Judge pursuant to s 90(1) of the Sentencing Act.

50 There is much to be said for each viewpoint but, on balance, I find the view propounded by Kennedy J to be preferable. It is not readily apparent why the legislature would preclude an application for leave to appeal from a minimum period which must be served before there is eligibility for release on parole, given the practical significance of the length of that period in the legislative scheme, and the very considerable distinction in principle and as a matter of practicality between life imprisonment, which is the sentence fixed by law in this case, and the minimum period of between 7 and 14 years which must be set by the

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sentencing Judge. It seems to me that s 110(6) and s 123(4) are likely to have been included out of caution because of the language used in s 110(1) and s 123(1), each of which expressly provide that the orders respectively to which they apply are not part of the sentence imposed on an offender, might otherwise be thought to override the general enactment in s 689(1a) read with s 703 of the Criminal Code. This view appears preferable to regarding s 110(6) and s 123(4) as the sole and exclusive scope of operation of the phrase "any other order" in s 703. In particular, it is to be noted that the relevant phrase in s 703 is "any other order under that Act" (the Sentencing Act) which does not in terms differentiate between orders which form part of a sentence and those which do not, a distinction which appears to have some significance in the reasoning of Murray J. Further, it seems to me to do no offence to the notion of an "order" in s 703 to include within its scope the judicial act of setting a minimum period pursuant to s 90(1) of the Sentencing Act.

51 In this respect, therefore, and in all other respects I concur with the reasons now published by Kennedy J and with his conclusion that the application for leave to appeal in this case should be dismissed.