Court of Appeal (WA)|2013-12-04|Before: Buss JA

SILVA -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 278 (4 December 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SILVA -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 278

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Murder - Plea of guilty - Life imprisonment with a minimum term of 17 years' imprisonment - Whether minimum term manifestly excessive

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

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

Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367

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

Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372

Heijne v The State of Western Australia [2010] WASCA 86

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

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

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

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

1 BUSS JA: This is an application for leave to appeal against sentence.

2 The appellant was convicted, on his plea of guilty in the Supreme Court before Jenkins J, of murdering his wife, Kurukulasuriya Esther Irani Silva, on 23 February 2012, contrary to s 279 of the Criminal Code (WA).

3 On 27 May 2013, the sentencing judge conducted a trial of issues in relation to defence counsel's contention that the seriousness of the offending was mitigated by a number of factors. The appellant gave evidence at the trial of issues. He was cross-examined by counsel for the State.

4 On 4 June 2013, the sentencing judge sentenced the appellant to life imprisonment. She ordered him to serve a minimum term of 17 years' imprisonment before becoming eligible for release on parole.

5 The sole proposed ground of appeal alleges that the minimum term was manifestly excessive.

The facts and circumstances of the offending and the appellant's personal circumstances and antecedents

6 In 1989 the appellant and the deceased were married in their country of birth, Sri Lanka. In 2005 they moved to Australia. There were two daughters of the marriage. When the appellant killed the deceased the daughters were young adults. The appellant, the deceased and their daughters lived together in a home in suburban Perth.

7 For a number of years before the murder, the relationship between the appellant and the deceased was marred by ongoing domestic arguments. At times, the appellant struck the deceased. Most of the assaults were minor.

8 In late 2010 the appellant discovered that the deceased was having an affair with a work colleague. After the appellant became aware of it, the deceased ended the affair. This incident exacerbated the marital disharmony, but there was no evidence the deceased had been unfaithful to the appellant between late 2010 and her death.

9 However, the appellant developed an abiding concern, if not an obsession, about the deceased's fidelity. He was jealous of her friendships with work colleagues. Ultimately, he demanded she resign from her employment. The deceased refused.

10 In early 2012, the appellant ascertained the deceased was still associating with the man with whom she had had the affair in 2010. They remained friends. Shortly before her death the deceased took extended leave from her employment. During this period the appellant monitored her telephone calls and prohibited her from returning to work.

11 On 22 February 2012, the day before the murder, the deceased made an appointment with a marriage counsellor for 9.30 am the following day. However, later on 22 February 2012, she cancelled the appointment and made another appointment for 2 March 2012.

12 The sentencing judge inferred that, at the time of the murder, the appellant's marriage to the deceased was unhappy. She elaborated:

It was marked by some domestic violence and your attempts to control the deceased's behaviour. You were preoccupied with the deceased's past affair and the prospects of it being rekindled. Despite the obvious rift between the two of you, you still wanted the marriage and family to remain intact. You, apparently, thought you could achieve this result by controlling where the deceased worked and with whom she associated [9].

13 On the evening of 22 February 2012, the appellant and the deceased argued. According to the appellant, the argument was about the deceased's wish to return to work and his refusal to permit it. The appellant and the deceased slept apart that night.

14 On the morning of 23 February 2012, the deceased remained in bed until after the appellant had left the home. His unhappiness with her increased because of her failure to participate in the family ritual of morning prayers.

15 On 23 February 2012, the appellant commenced work in Fremantle at 9.00 am. At about 8.40 am, on his way to work, he stopped at a store in O'Connor and bought a gympie hammer. The hammer weighed 1.35 kg. It had a short wooden handle and a heavy metal head. The hitting surface of the hammer was about 16 square centimetres. The appellant then went to work.

16 Her Honour was not satisfied beyond reasonable doubt that the appellant bought the hammer for the purpose of assaulting or killing the deceased [13]. She found it was reasonably possible he bought it for an innocent purpose [13].

17 After giving a lecture at work in the morning, the appellant returned home. He claimed he wanted to speak to the deceased when their daughters were not present.

18 The sentencing judge found that the appellant's evidence as to what occurred when he returned home was unsatisfactory in numerous respects. Her Honour was not satisfied on the balance of probabilities that his account was truthful [15] - [16]. However, she did not infer he had deliberately misled the court. Her Honour said 'it is reasonably possible that the shock of the event has caused [him] to have an unreliable memory of it' [17].

19 Her Honour made these findings as to the circumstances of the killing:

I conclude that there was conflict between the two of you which resulted in you becoming extremely angry with the deceased. You got the gympie hammer out of your bag, which was then in the house, and you hit the deceased on the right side of her head with it on at least three occasions. It is an inevitable inference that you struck the deceased after or during a further argument about her past infidelity and her wish to return to her workplace.

Whilst it is possible that in the course of that argument your wife said some hurtful things to you, she was a small woman and there is no evidence that she was physically aggressive towards you or was armed in any way. She posed no threat to you. I am not satisfied on the balance of probabilities that, as you allege, she said that if you forced her to stay home from work, she would have many men visit her at your home or that she would kill you, your daughters and herself. This is because I do not accept that you have given a reliable account of what took place between yourself and [the deceased] [18] - [19].

20 The appellant killed the deceased in the living room. She bled onto a couch. There was a large pool of blood on the floor nearby. The appellant admitted that when he struck the deceased on the head with the hammer he intended to kill her, but said he had 'no specific memory of intending to do so' [21].

21 After the appellant murdered the deceased he telephoned the police and told them he had killed his wife with a hammer [22] - [23].

22 The sentencing judge found that while some of the appellant's actions and inactions after assaulting the deceased may be explicable by shock and panic, it was not to the appellant's credit that he failed immediately to obtain medical assistance for her. During his telephone call to the police he did not ask for medical assistance. He said, 'I don't think so', when asked by the police telephone operator whether it would be 'okay if the police sent an ambulance' [26]. However, her Honour accepted it was 'possible that [the appellant] believed that [the deceased] was dead and [he was] trying to convey that there was no use in sending an ambulance because of that' [27].

23 Her Honour found that, after the appellant had fatally assaulted the deceased in the living room, he 'moved the deceased through the house, into the garage, where she bled onto the front passenger side corner of the car, before [he] left her on the floor just inside the house' [28]. However, her Honour was not willing to conclude that the appellant had attempted to put the deceased into the car to conceal her body. On the other hand, her Honour was unable to find that the appellant made any significant attempt to put her into the car for the purpose of taking her to hospital [29].

24 A post-mortem examination revealed the deceased had died from head injuries caused by the blows inflicted by the appellant with the gympie hammer. She had four separate wounds to her head. The appellant accepted he must have caused three of them with separate blows. The fourth could have been caused when he dropped the deceased while moving her.

25 The deceased's skull was fractured extensively. She suffered subarachnoid haemorrhaging. She had aspirated blood. There was diffuse bruising and swelling of her scalp. She had bruising, tears and abrasions on her lower leg and ankle area.

26 No victim impact statements were submitted to the sentencing judge, but she received a character reference for the appellant from his daughters. They said the deceased was a great mother throughout their lives, but they felt betrayed, and their relationship with her deteriorated, when her infidelity was discovered in 2010.

27 The appellant was born on 29 October 1961. He was 52 when sentenced.

28 He joined the Merchant Navy in Sri Lanka soon after leaving school. In 1990 he went to Melbourne and studied for his ship captain certificate. After the birth of his second daughter, the appellant left the Merchant Navy. When the appellant came to Australia in 2005 he worked initially in Port Hedland. In 2007 the appellant moved to Perth and worked as a lecturer at the Fremantle Maritime College, a position he held at the time of the offence. He was a valued member of the staff of the college and a good friend of other staff members.

29 The appellant was a respected member of the Sri Lankan community in Perth. He assisted former citizens of Sri Lanka, who had resettled in Perth, adjust and integrate into Australian society. He was a committed parishioner of a local Catholic Church. The appellant was a devoted father and had worked hard to ensure his daughters were well educated in all aspects of their lives. He had no prior convictions. Numerous people, who wrote letters or references in support, spoke well of him.

The sentencing judge's explanation of her sentencing disposition

30 The sentencing judge decided it was just to impose a sentence of life imprisonment. The sentence was 'entirely appropriate' [45] - [46].

31 Her Honour said in relation to the seriousness of the offending:

[The offending] is made more serious because you intended to kill your wife. You were larger than she was and, in effect, she was at your mercy which you did not show to her. I also find that your offence is aggravated by the use of the gympie hammer. I do not accept that this was simply the first thing that your eyes lit upon when you became so angry with your wife that you wanted to attack her. You must have thought of the hammer and got it out of your bag deliberately in order to attack your wife. Your offence is made more serious by the extensive injuries to your victim [49].

32 The sentencing judge referred to various mitigating factors. She took into account the appellant's early plea of guilty and his prior good character. Although the plea was not entered at the first reasonable opportunity, it was entered prior to committal. Her Honour found the appellant was remorseful, but she did not believe his remorse was complete. She was satisfied the appellant still tended to blame the deceased for his fatal assault on her [50] - [51].

33 Her Honour was of the view that personal deterrence was not an important issue in the sentencing process. However, general deterrence was 'very relevant' [52].

34 The sentencing judge concluded, after examining a number of previous sentencing decisions, the circumstances of the offence, the personal circumstances and antecedents of the appellant, and all aggravating and mitigating factors, that a minimum term of 17 years' imprisonment was required to satisfy all relevant sentencing objectives and principles.

The merits of the proposed ground of appeal

35 A ground of appeal which alleges that a sentence (including a minimum term) is manifestly excessive asserts the existence of an implied error.

36 It is necessary, in determining whether a minimum term is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, any upper or lower limits on the available minimum term, the standards of sentencing customarily observed with respect to minimum terms for that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances and antecedents of the offender.

37 A non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 - 629; Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367; Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372, 396; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531.

38 In Pedersen v The State of Western Australia [2010] WASCA 175, I made a number of observations (McLure P & Mazza JA agreeing) concerning the determination of the non-parole period where an offender is to be sentenced to life imprisonment for the offence of murder, and the sentencing court has decided to proceed under s 90(1)(a) of the Sentencing Act 1995 (WA) and fix a minimum period. It is unnecessary to repeat those observations.

39 I have read and considered numerous cases in which this court has heard and determined appeals against sentence for murder since the commencement of the Criminal Law Amendment (Homicide) Act 2008 (WA). In particular, I have taken into account the sentencing dispositions in Atherden v The State of Western Australia [2010] WASCA 33, Heijne v The State of Western Australia [2010] WASCA 86, Austic v The State of Western Australia [2010] WASCA 110, Pedersen, Johnston v The State of Western Australia [2012] WASCA 18, Goodwyn v The State of Western Australia [2013] WASCA 141, Khan v The State of Western Australia [2013] WASCA 193, The State of Western Australia v Lee [2013] WASCA 246 and the decisions referred to in those cases. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases I have read and considered. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.

40 In the present case, the seriousness of the appellant's offending is demonstrated by the following:

(a) The appellant brutally and repeatedly assaulted the deceased with a heavy metal hammer.

(d) When the appellant fatally assaulted the deceased he intended to kill her.

(e) There was a history of domestic violence by the appellant towards the deceased.

(f) The appellant deliberately confronted the deceased when she was alone and vulnerable.

41 There were, of course, a number of mitigating factors in relation to the appellant and his offending. I have already referred to them.

42 I consider that appropriate punishment and general deterrence were important sentencing factors. The sentencing judge rightly observed in relation to general deterrence:

The law is clear that disputes between partners, no matter how emotionally hurtful, must be resolved peacefully. People must understand that marriage is not a licence to treat a spouse as a chattel and violence in the course of a marriage breakdown will be met with deterrent sentences.

It is obvious that the minimum term must recognise the high value that the Western Australian community places on a person's life and a person's right to live without violence from their partner. Domestic violence continues to be a significant cause of violent death and serious injury in our community. The courts must impose sentences which continue to reflect the community's abhorrence and intolerance of such offending, particularly where it results in the death of the victim [52] - [53].

43 In my opinion, it is not reasonably arguable that the minimum term of 17 years' imprisonment exceeded the sentencing range open to her Honour on a proper exercise of the sentencing discretion. After examining the minimum term of 17 years in the context of the sentencing

framework under the Criminal Law Amendment (Homicide) Act 2008, the rationale for the imposition of a non-parole period, the customary standards of sentencing, the circumstances of the commission of the offence (including the vulnerability of the deceased) and all aggravating and mitigating factors, I am satisfied it is not reasonably arguable that the minimum term was unreasonable or plainly unjust. It is not reasonably arguable that error should be inferred from the sentencing disposition.

44 The proposed ground of appeal does not have a reasonable prospect of success. Leave to appeal must therefore be refused. The appeal should be dismissed.

Law Amendment (Homicide) Act 2008

Atherden v The State of Western Australia

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SILVA -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 278 (4 December 2013)

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