Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - State appeal against sentence - Murder - Manifest inadequacy

Sentencing Act 1995 (WA)

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) 253 CLR 58

Butler v The State of Western Australia [2010] WASCA 104

Cameron v The Queen (2002) 209 CLR 339

Cockram v The State of Western Australia [2011] WASCA 179

Fraser v The State of Western Australia [2009] WASCA 23

Goodwyn v The State of Western Australia [2013] WASCA 141

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Johnston v The State of Western Australia [2012] WASCA 18

Khan v The State of Western Australia [2013] WASCA 193

Kowaleff v The State of Western Australia [2010] WASCA 183

Mack v The State of Western Australia [2014] WASCA 207

Pedersen v The State of Western Australia [2010] WASCA 175

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

Silva v The State of Western Australia [2013] WASCA 278

Stasinowski v The State of Western Australia [2009] WASCA 20

Stinson v The State of Western Australia [2014] WASCA 72

The State of Western Australia v Lee [2013] WASCA 246

The State of Western Australia v O'Kane [2011] WASCA 24

The State of Western Australia v Smith [2015] WASCA 87

Wongawol v The State of Western Australia [2011] WASCA 222

Zwerus v The State of Western Australia [2015] WASCA 174

1 McLURE P: This is a State appeal against sentence. The respondent was convicted after trial of one count of murder, contrary to s 279 of the Criminal Code (WA).

2 On 9 December 2014 the respondent was sentenced by Martin CJ to life imprisonment with a non-parole period of 17 years. The sole ground of appeal is that the non-parole period is manifestly inadequate.

3 The factual findings for sentencing purposes are as follows. The offence took place some time between 10.00 pm on Tuesday 11 December 2012 and 8.20 am on Wednesday 12 December 2012. The deceased, Mr David Dunn, was a 28 year-old man who was in a domestic relationship with the respondent at the time of the offence. They lived together in a unit on Forrest Street, Broome.

4 On Monday 10 December 2012 the respondent and Mr Dunn were at Kennedy Hill in Broome when the respondent, with a broken rum bottle, approached Mr Dunn in the sand dunes behind house 5 and threatened to kill him. Mr Dunn told the respondent that he wanted to leave her and then left to stay the night at house 5.

5 On the morning of Tuesday 11 December 2012 the respondent came to house 5 looking for Mr Dunn. She threw bottles at him while he cowered near a wall. She was heard threatening to kill Mr Dunn and was seen to be chasing him while wielding a bottle. Mr Dunn ran away toward the nearby police station.

6 Later that morning the respondent and Mr Dunn met up and, together with relatives, purchased alcohol which they drank together on the sand near the Pearl Luggers in Broome. The respondent began arguing with Mr Dunn and again attempted to hit him over the head with a bottle. They then went to house 10, Kennedy Hill, and continued drinking. Another argument developed between the respondent and Mr Dunn. The respondent swung a wheel brace at Mr Dunn and again threatened to kill him. Mr Dunn responded by threatening to kill the respondent and to have his family 'sing' her. The respondent hit Mr Dunn in the face with a beer can, causing bleeding to his nose. Police and ambulance attended and Mr Dunn was taken to Broome hospital for medical attention to a cut on the right side of his nose. He was discharged around 6.00 pm. Meanwhile, the respondent was held at Broome police station as a drunken detainee, but was later taken to Broome hospital after an apparent fit or seizure. She was discharged from the hospital around 9.05 pm.

7 The respondent was seen at a service station between 9.00 pm and 10.00 pm that evening before catching a patrol bus towards her home. She was last seen by a witness in Herbert Street, where the respondent drank two or three cans of beer and was given a can of Jim Beam. The respondent asked whether the witness had seen Mr Dunn and then left, saying she was going home.

8 Some time after 10.00 pm that night and before 8.20 am the next morning both the respondent and Mr Dunn had returned home. There was no evidence as to who returned first or whether they returned together. At the Forrest Street unit, the respondent stabbed Mr Dunn with two knives and assaulted him with an electric frypan, causing numerous injuries and ultimately his death.

9 In total, there were 14 stab injuries and 26 incised injuries. The respondent caused the following injuries to Mr Dunn:

(1) three incise-type injuries, 10 penetrative injuries, multiple abrasions and one superficial stab-type injury to his head;

(2) two abrasions, 13 incise-type injuries and two penetrative injuries to his right arm;

(3) several abrasions, 13 incise-type injuries and four penetrative injuries to his left arm;

(6) abrasions and one penetrative injury to the left side of his chest.

10 The penetrative injury to Mr Dunn's chest travelled obliquely downwards and inwards to an estimated depth of 9 cm to 10 cm, penetrating the chest cavity and extending into the front aspect of the left lung, which was partially collapsed. The cause of death was multiple penetrating stab and incised cut injuries, including a stab wound to the chest.

11 The diverse nature and location of Mr Dunn's injuries were only consistent with multiple impacts from a sustained, prolonged and severe assault. Injuries to Mr Dunn's hands were consistent with him attempting to defend himself from the respondent's repeated attacks.

12 After the attack on Mr Dunn, the respondent mopped up his blood from the floor inside the house, moved him to the rear patio, changed his shorts and used the garden hose to wash the blood from his body and the patio. The respondent also changed her own clothes, which were marked with Mr Dunn's blood.

13 At around 8.20 am on Wednesday 12 December 2012, the respondent went to a neighbour's house requesting that she call an ambulance. The respondent told the neighbour that she had returned to the house at 3.00 am or 4.00 am, finding Mr Dunn already cut, dripping and bleeding everywhere. The respondent also lied to the ambulance officer, saying that Mr Dunn had come home during the night and that she was unable to rouse him in the morning, which was when she first noticed he was covered in blood. The respondent said she hosed down Mr Dunn to rouse him.

14 The sentencing judge found that, at the time the respondent inflicted the injuries which caused Mr Dunn's death, she did so with the intention of killing him. Although she was intoxicated and had been drinking throughout much of the preceding day, she was not so intoxicated as to be incapable of forming the intent to kill. However, there was no finding that the offence was premeditated or planned.

15 Mr Dunn had been the victim of sustained physical abuse at the hands of the respondent, who the sentencing judge described as bigger and stronger than the 'weak and vulnerable' Mr Dunn. This case confirms the experience of those who work in the criminal justice system in this State that, particularly in alcohol and/or other drug fuelled dysfunctional relationships and communities, it is not uncommon for a male to be a victim of domestic violence.

16 The respondent was aged 41 at the time of the offence. Her childhood was marred by her parents' alcoholism and her father's drunken violence against her mother. She went to school in Halls Creek and Kununurra. Her parents separated when she was around the age of 10 years. At aged 12, she ran away from her mother to find her father in the Northern Territory. Although she found him, he was experiencing difficulties in his new community and asked her to leave. Shortly thereafter, he died in a car accident. When the respondent was aged 15, her mother died. At that point, the respondent began abusing alcohol. She gave birth to her first child at aged 16. She has a long history of alcoholism. The sentencing judge accepted the general submission put in mitigation that the respondent had been subjected to physical and sexual abuse during her life.

17 The respondent has an extensive prior criminal history. In April 1995 the respondent was convicted of one count of unlawful wounding, for which she was sentenced to 12 months probation. The respondent picked up a stubby, smashed it and stabbed the female victim in the back and then slashed her across the right arm.

18 In February 1998, the respondent was convicted of possessing an offensive weapon and of making a threat to cause a detriment, for which offences she was sentenced to a 6-month intensive supervision order. The respondent produced from her pocket a long-bladed knife with which she tried to stab the victim.

19 In August 1999, the respondent was convicted of manslaughter of her then partner, for which she was sentenced to a term of 3 years 6 months immediate imprisonment. He too died from stab wounds.

20 In July 2001, the respondent was convicted of one count of unlawfully doing grievous bodily harm, for which she was sentenced to 2 years immediate imprisonment. She committed the offence when she was on parole for the manslaughter offence. The respondent was at a party when the victim and another man began fighting. The respondent armed herself with a vegetable knife and stabbed the victim on the upper side of his back before being restrained by others.

21 In January 2003, the respondent was convicted of one count of unlawful wounding, for which she was sentenced to 12 months immediate imprisonment. During a drinking session, an argument erupted between the respondent and the complainant. With a medium sized, serrated edged knife that she obtained from the kitchen, the respondent without warning or provocation stabbed the complainant in the upper thigh of her left leg.

22 In March 2005, the respondent was convicted of one count of unlawful wounding, for which she was sentenced to a term of 16 months immediate imprisonment. The respondent and the victim had been walking along a street in Broome when they became involved in an argument. The respondent picked up a broken bottle and stabbed the victim to the left side of his neck.

23 In October 2008, the respondent was convicted of one count of making a threat to injure, endanger or harm another, for which she was sentenced to 12 months imprisonment. When the respondent's request for money was refused, she became aggressive and threatened to stab the victim. The respondent continued to threaten the victim with a knife but fled the scene when she realised police had been called.

24 The current and former legislative regimes for the offence of murder are detailed in The State of Western Australia v Lee [2013] WASCA 246 [29] - [34]. As noted in Lee, the changes made by the Criminal Law Amendment (Homicide) Act 2008 (WA) (the Homicide Amendment Act), which commenced on 1 August 2008, were expected to lead to tougher sentences that were more in line with community expectations.

25 In the absence of an order that the offender must never be released, a court sentencing an offender to life imprisonment for murder must set a minimum period of at least 10 years that the offender must serve before being eligible for release on parole: Sentencing Act 1995 (WA), s 90(1)(a). There is no maximum non-parole period.

26 The non-parole period is determined by reference to what justice requires, having regard to all the circumstances of the case: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 629. When parole is granted, if at all, is at the will of the Executive.

27 As to what is meant by 'the circumstances of the case', the court in Stasinowski v The State of Western Australia [2009] WASCA 20 said:

The circumstances of the case is a reference to all relevant sentencing factors including the circumstances of the offence, all aggravating and mitigating factors and the offender's antecedents. Many of those factors (including such matters as a plea of guilty, remorse, age) will bear on an assessment of the prospects of rehabilitation. The minimum time will be determined by a reference to achieving the recognised sentencing objectives including punishment, retribution and deterrence (both personal and general). If the primary focus is on the prospect of rehabilitation, the non-parole period is more likely to be set at the shortest time required in which a parole authority could form a proper view of the offender's prospects of rehabilitation. That approach was expressly rejected by the High Court in Power [72].

28 That statement remains applicable notwithstanding the changes made by the Homicide Amendment Act: Lee [38]. See also Stasinowski [71] and Fraser v The State of Western Australia [2009] WASCA 23 [21].

29 In order to enliven this court's power to intervene, the State must establish that the sentencing judge made an express or implied material error of fact or law. This court cannot intervene merely because it would have imposed a different minimum period. A claim of manifest inadequacy (like manifest excess) relies on the implication of error from the sentence itself. The ultimate issue is whether the non-parole period of 17 years is unreasonable or plainly unjust.

30 In determining whether a non-parole period is manifestly inadequate, regard is had to any statutory minimum (and any applicable maximum) period, the standards of sentencing customarily imposed for the offence, the place which the criminal conduct occupies on the scale of seriousness, and the personal circumstances of the offender.

31 Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect: Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [41]; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54].

32 I have reviewed the sentences imposed in this State for a single offence of murder, including Kowaleff v The State of Western Australia [2010] WASCA 183 (guilty plea, non-parole period of 26 years); Austic v The State of Western Australia [2010] WASCA 110 (not guilty plea, non-parole period of 25 years); Stasinowski (guilty plea, non-parole period of 24 years); Fraser v The State of Western Australia [2009] WASCA 23 (guilty plea, non-parole period of 27 years); The State of Western Australia v O'Kane [2011] WASCA 24 (guilty plea, non-parole period of 23 years); Cockram v The State of Western Australia [2011] WASCA 179 (guilty plea, non-parole period of 22 years); Lee (guilty plea, non-parole period of 21 years); Mack v The State of Western Australia [2014] WASCA 207 (not guilty plea, non-parole period of 20 years); Pedersen v The State of Western Australia [2010] WASCA 175 (guilty plea, non-parole period of 19 years); Butler v The State of Western Australia [2010] WASCA 104 (not guilty plea, non-parole period of 19 years); Zwerus v The State of Western Australia [2015] WASCA 174 (guilty plea, non-parole period of 18 years); Angliss v The State of Western Australia [2015] WASCA 8 (not guilty plea, non-parole period of 18 years); Johnston v The State of Western Australia [2012] WASCA 18 (not guilty plea, non-parole period of 18 years); Rosewood v The State of Western Australia [2014] WASCA 21 (guilty plea, non-parole period of 18 years); Stinson v The State of Western Australia [2014] WASCA 72 (guilty plea, non-parole period of 17 years); Prestidge v The State of Western Australia [2014] WASCA 16 (not guilty plea, non-parole period of 17 years); The State of Western Australia v Smith [2015] WASCA 87 (not guilty plea, non-parole period of 17 years); Silva v The State of Western Australia [2013] WASCA 278 (guilty plea, non-parole period of 17 years); Goodwyn v The State of Western Australia [2013] WASCA 141 (not guilty plea, non-parole period of 15 years); Wongawol v The State of Western Australia [2011] WASCA 222 (guilty plea, non-parole period of 14 years); Atherden v The State of Western Australia [2010] WASCA 33 (guilty plea, non-parole period of 14 years); Khan v The State of Western Australia [2013] WASCA 193 (guilty plea, non-parole period of 13 years).

33 The offenders in Mack, Pedersen, Johnston, Rosewood, Prestidge, Goodwyn, Wongawol, Atherden and Khan did not have an intention to kill. Ordinarily, an intention to kill aggravates the seriousness of the offending. It does so in this case. The offenders in Stasinowski, Lee, Mack and Angliss were young or youthful.

34 Further, a plea of guilty will ordinarily attract a significant discount, even on the application of the principles in Cameron v The Queen (2002) 209 CLR 339. In this case the sentencing judge noted the absence of any significant evidence of remorse or of any real insight into the respondent's offending behaviour.

35 Finally, the nature and extent of the respondent's very significant prior record of violent offending has no real equivalent in any of the above cases. Her record underscores the need to give significant weight to the sentencing objectives of punishment, protection of the public and personal deterrence.

36 I do not accept the respondent's contention that her record of prior violent offending is of little weight in circumstances where, as is presently the case, she cannot be released on parole until she is in her late 50s at the earliest. That is to revert to the approach, disapproved in Stasinowski, of placing primary emphasis on the prospect of rehabilitation.

37 The circumstances of the respondent's offence place it at the high end of the scale of seriousness of the offence of murder. She engaged in a sustained, prolonged, frenzied attack on Mr Dunn, whom she intended to

kill. She used multiple weapons and went to considerable lengths to attempt to cover up the murder. His death was the culmination of a broader course of violence inflicted on him by the respondent. No doubt her long standing alcoholism contributed to the commission of this crime, as it has done throughout her long history of violent offending. Of greater significance is her inability to control her volcanic eruptions of anger, and the regularity and normalisation of her use of violence. Her record and her lack of remorse, insight and acceptance of responsibility for the death of Mr Dunn are manifestations of that normalisation.

38 The only mitigating factor of any significance is the respondent's disadvantaged and dysfunctional upbringing. The sentencing judge gave some, albeit limited, mitigation for the respondent's fear of 'being sung' in relation to the murder. That is connected with a belief that a sorcerer or 'featherfoot' is capable of inflicting revenge by causing the death of a person who has committed a wrong. I would give no mitigating weight to the respondent's fear in this regard. The intensity of the fear can be measured by the fact that it has had no restraining or moderating effect on the respondent's continuing propensity to resort to violence. In any event, it is not established that any such fear is connected in any relevant way with the length of the non-parole period.

39 Having regard to all sentencing considerations and the standards of sentencing customarily imposed, I am satisfied that the non-parole period of 17 years is unreasonable and plainly unjust. The respondent does not rely on the residual discretion that applies to State appeals against sentence. There is nothing in the material to enliven that discretion. A non-parole period of 21 years is appropriate in all the circumstances.

40 I would allow the appeal, set aside the non-parole period of 17 years and in lieu thereof impose a non-parole period of 21 years.