Court of Appeal (WA)|2012-01-25|Before: Mazza JA, Heenan J, Lure P

JOHNSTON -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 18 (25 January 2012)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : JOHNSTON -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 18

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Whether nonparole period was manifestly excessive

Criminal Code (WA), s 279(1), s 279(1)(b), s 279(4)

Atherden v The State of Western Australia [2010] WASCA 33

Austic v The State of Western Australia [2010] WASCA 110

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

Roberts v The State of Western Australia [2007] WASCA 48; (2007) 34 WAR 1

The State of Western Australia v Silich [2011] WASCA 135

2 MAZZA JA: This is an application for leave to appeal against sentence.

3 The appellant was charged on indictment with five offences, all of which were alleged to have occurred on 3 January 2010 at a home in Mount Nasura occupied by Christine Patricia Van Dongen. At the time the offences were committed, a man named Bradley Deliu was visiting the premises.

4 The appellant pleaded guilty, prior to trial, to three of the offences, being one count of aggravated burglary (count 1) and the unlawful detention of Ms Van Dongen and Mr Deliu (counts 2 and 3). The appellant pleaded not guilty to the remaining charges, being one count of threatening to unlawfully injure Mr Deliu (count 4) and the murder of Ms Van Dongen (count 5). On 9 May 2011, after a trial before EM Heenan J and a jury, the appellant was acquitted of count 4, but convicted of count 5.

5 His Honour delayed sentencing the appellant in order to obtain a pre-sentence report and a psychological report. On 5 July 2011, upon hearing from counsel and after receiving the reports, character references tendered on behalf of the appellant, letters written by the appellant to the court and victim impact statements, his Honour sentenced the appellant as follows:

Life imprisonment with a minimum period of 18 years' imprisonment before eligibility for parole

6 The appellant only seeks leave to appeal against the non-parole period of 18 years imposed in respect of the offence of murder. The single ground of appeal alleges that it is manifestly excessive. Leave to appeal cannot be given unless the court is satisfied that the ground has reasonable prospects of success: s 27(2) of the Criminal Appeals Act 2004 (WA).

7 Before this court there was no dispute as to the facts of the offending. On 3 January 2010, the appellant, Samir Hishmeh and Andrew Michael Shafto went to the house occupied by Ms Van Dongen. Ms Van Dongen was known to Mr Shafto to be a dealer in illicit drugs. Mr Shafto carried out reconnaissance and ascertained that Ms Van Dongen was home. She was at the time in the dining room negotiating a drug transaction with Mr Deliu.

8 The appellant and Mr Hishmeh then entered the premises without consent and with the intention of stealing drugs and/or money. They intended to use, if necessary, force to accomplish this purpose.

9 Mr Hishmeh detained Mr Deliu. This was part of the plan agreed to by the appellant prior to his entry into the house. This was done, in part, to prevent Mr Deliu from coming to Ms Van Dongen's aid.

10 Shortly after entering the premises, the appellant punched Ms Van Dongen to the face and tied her up with plastic clip ties. While Ms Van Dongen was immobile, the appellant punched her severely to the head and face on many occasions. Not only was she punched, but a hammer was used to strike her about the arm, knee and thigh, causing serious lacerations to those parts of her body. In addition, Ms Van Dongen was choked.

11 Ms Van Dongen suffered numerous injuries. Of those, two sets of injuries, 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 second set of injuries was to the neck and throat, the most serious of which caused a compression of the carotid artery. The release of that pressure, which resulted in the decompression of that artery, produced further haemorrhaging in the brain.

12 The appellant caused the blunt trauma injuries to the head and face. Although the appellant attempted to choke Ms Van Dongen, it was not possible to say whether or not he caused the fatal injuries to the neck. Whatever the position, the appellant caused at least one set of the fatal injuries suffered by Ms Van Dongen.

Recent amendments to the law relating to the offence of murder

13 The offence of murder was recently amended by the Criminal Law Amendment (Homicide) Act 2008 (WA) (the Act) which came into operation on 1 August 2008. One of the effects of the new provisions was to abolish the offence of wilful murder, repeal the previous definition for the crime of murder and replace these provisions with a new offence of murder. The new offence of murder in s 279(1) of the Criminal Code (WA), which applied to the present case, is in the following terms:

(1) If a person unlawfully kills another person and -

(a) the person intends to cause the death of the person killed or another person; or

(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; or

(c) the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life,

14 Section 279(4) of the Criminal Code provides that a person who is guilty of murder must be sentenced to life imprisonment subject to certain exceptional circumstances which do not apply to this case. Section 90(1) of the Sentencing Act 1995 (WA) provides that where an offender is sentenced to life imprisonment for murder, the court must either set a minimum term of at least 10 years, or order that the offender must never be released. In this case, the State did not seek an order that the appellant must never be released.

15 At the time of sentence, the appellant was 25 years of age. He came from a close supportive family and had a good work history. The numerous character references tendered to his Honour spoke highly of the appellant. He had only a minor record of prior convictions, none of which were of real significance. Although the appellant expressed remorse for what he had done, he continued to deny involvement in the violence which led to Ms Van Dongen's death. He attributed a large degree of blame to Mr Hishmeh. Moreover, according to his Honour, this remorse is not soundly based as it depended upon a reconstruction of events which ignores the extent and culpability of the appellant's role. The psychological report noted no relevant psychological factors or disturbance. He was assessed as having a low risk of further violent reoffending.

16 There is no material challenge to his Honour's findings on sentence.

(a) the appellant did not intend to cause Ms Van Dongen's death but he intended to cause her bodily injury of such a nature as to endanger her life: s 279(1)(b) of the Criminal Code;

(b) as a result of Ms Van Dongen being restrained by cable ties, she was an extremely vulnerable victim: s 6(2)(b) of the Sentencing Act;

(c) once the appellant entered the house, there was a sudden and unexpected escalation in the level of violence beyond any necessity. He described the violence imposed upon Ms Van Dongen as 'savage, extreme, unjustified and quite brutal';

(d) that the offence was aggravated by the fact that it was committed in the course of a home invasion, carried out in company and done with the intention of stealing money and drugs;

(e) that although the appellant had expressed remorse, he had done so on the basis of a reconstruction of events which ignored the extent and culpability of his actions; and

(f) the appellant's youth, favourable antecedents and formal admissions at trial which evinced some cooperation in the trial process were mitigatory.

18 The primary argument put on behalf of the appellant is that a non-parole period of 18 years is too much, in light of his Honour's finding that the appellant did not intend to cause Ms Van Dongen's death. Counsel further submitted that the non-parole period was excessive having regard to such cases as Austic v The State of Western Australia [2010] WASCA 110; The State of Western Australia v Silich [2011] WASCA 135 and Roberts v The State of Western Australia [2007] WASCA 48; (2007) 34 WAR 1.

19 The obligation to impose a non-parole period requires a sentencing judge to decide what is the minimum period of imprisonment that justice requires the offender to serve before he or she may be considered for release on parole. It is a discretionary judgment. An appeal from such a judgment is subject to the well-known principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. This court cannot intervene unless error is demonstrated. The appellant's proposed ground of appeal does not allege that his Honour made any express error. Rather, the appellant relies on an allegation of implied error. Establishing such an error is no easy task. The appellant must show that the non-parole period of 18 years was, in all of the circumstances, so unreasonable or unjust that a substantial wrong has occurred.

20 I have already referred to the amendments to the crime of murder and the applicable sentencing regime contained in the Act. The nature and effect of these amendments have recently been examined by this court in cases such as Atherden v The State of Western Australia [2010] WASCA 33 (Wheeler JA, McLure P and Owen JA agreeing) [25] - [31]; and Austic v The State of Western Australia [2010] WASCA 110 (Buss JA, Jenkins JA agreeing) [153] - [173]. There is no need to repeat in detail what was said in those cases.

21 What is clear from them is that the sentencing regime that applies to the present case is substantially different to the regime that existed prior to the commencement of the Act. The present regime is no longer subject to the previous strict range of non-parole orders.

22 Sentencing judges have a wider discretion to set a non-parole period than existed in the past. They are not bound by the range of non-parole orders previously imposed for the offence of murder. Consequently, there will be cases where an offender convicted of murder may be ordered to serve a longer non-parole period that would have been imposed before the commencement of the Act.

23 Of course, the focus when determining an appropriate non-parole period must be an assessment of all of the relevant circumstances of the case. A plainly important consideration in this exercise is the offender's intention at the time of the killing. A killing done with an intention to cause bodily injury may be, but is not necessarily, less serious than a killing done with an intention to cause the victim's death: Atherden [30].

24 The present case is undoubtedly a very serious instance of the crime of murder, even though the appellant did not intend to cause Ms Van Dongen's death. The unchallenged findings made by his Honour as to the context in which the offence occurred and the level of sustained violence employed by the appellant show the high degree of criminality involved in the offending.

25 The appellant, in company, committed a home invasion for the purpose of theft and it was anticipated that some violence may be required in dealing with the occupants of the premises. Despite tying Ms Van Dongen up, which would have been sufficient to prevent her resistance to the burglary, the appellant, while she was in this vulnerable state, proceeded to deliberately and cruelly inflict grave injuries upon her over a period of time that eventually led to her death. He did not render or attempt to render any assistance to his victim, even though it must have been apparent to him that Ms Van Dongen was badly injured.

26 The appellant did not have the mitigation of a plea of guilty. The remorse that he expressed was hardly mitigatory. While his personal circumstances were favourable, they could not carry much weight in light of the seriousness of the crime and the need to denounce and deter such conduct.

27 The small number of cases relied upon by the appellant is of no real assistance to him. Two of the cases, Roberts and Silich, involved the consideration of the sentencing regime which existed before the commencement of the Act. The facts of Austic are plainly more serious than the facts of the present case. Austic received a non-parole period of 25 years after trial for the deliberate killing of the victim, who was pregnant with his unborn child. On appeal, that order was upheld. Austic received a non-parole period 7 years longer than the appellant. The case does not demonstrate that the non-parole period imposed in the present case was manifestly excessive. The appellant did not refer to Pedersen v The State of Western Australia [2010] WASCA 175, a case closer in circumstances to the present case where an appeal against a non-parole period of 19 years for a murder committed without an intention to kill and after a plea of guilty was dismissed.

28 His Honour presided over the trial. It is apparent from his sentencing remarks that he considered and weighed all of the relevant circumstances. His assessment of the seriousness of the offence was entirely justified. I am not persuaded that the imposition of a non-parole period of 18 years was unreasonable or unjust. On the contrary, it reflected a sound exercise of sentencing discretion. Error has not been demonstrated. The proposed ground of appeal does not have a reasonable prospect of success. I would not give leave to appeal. Accordingly, the appeal must be dismissed.

Leave to appeal is refused.
The appeal is dismissed.

Law Amendment (Homicide) Act 2008

Atherden v The State of Western Australia

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Judgment (51 paragraphs)

JOHNSTON -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 18 (25 January 2012)

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Legislation Cited (2)

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