Court of Appeal (WA)|2014-01-24|Before: Buss JA, Jenkins J, McLure P, Lure P, Mazza JA

PRESTIDGE -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 16 (24 January 2014)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : PRESTIDGE -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 16

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant convicted after trial of murder - Life imprisonment with a minimum non-parole period of 17 years - Whether minimum non-parole period 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

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

Mansell v The State of Western Australia [No 6] [2013] WASCA 120

Neumann v The State of Western Australia [2013] WASCA 70

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

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

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

The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285

Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91

2 BUSS JA: The appellant appeals against sentence.

3 He was charged on an indictment which alleged that on or about 13 September 2002, at Ellenbrook, he wilfully murdered Andy Arthur Ball, contrary to s 278 read with s 282 of the Criminal Code (WA) (the Code). Alternatively, it was alleged that, on the same date and at the same place, he murdered Mr Ball, contrary to s 279 of the Code.

4 On 19 February 2013, after a trial in the Supreme Court before Jenkins J and a jury, the appellant was acquitted of wilful murder but convicted of murder.

5 On 13 March 2013, the trial judge sentenced the appellant to life imprisonment with a minimum non-parole period of 17 years. Her Honour backdated the sentence to 4 May 2011, when the appellant was taken into custody for the offence.

6 The sole ground of appeal alleges that the minimum non-parole period is manifestly excessive.

7 On 5 July 2013, McLure P granted leave to appeal.

8 The appellant was tried under the law relating to homicide, including the law relating to self-defence and provocation, that applied when he committed the offence.

9 The defence case at trial was based primarily on self-defence. According to the appellant, the victim attacked him with a wrench in the victim's house in the Perth suburb of Ellenbrook. A little later, the victim approached the appellant with a knife and made insults concerning incestuous behaviour involving the appellant and his family. The appellant grabbed the wrench and struck the victim with one blow to the right-hand side of his head. The victim fell to the ground.

10 The trial judge directed the jury on self-defence and provocation.

The facts and circumstances of the offending

11 The facts and circumstances of the offending, as found by the trial judge, are as follows.

12 In 2002, the victim was aged 24 years. He was married to the appellant's sister, Angela. He was the stepfather of Angela's elder daughter and the father of their younger daughter. When the victim died, Mrs Ball was pregnant with their second child. The victim, Mrs Ball and their children lived in Ellenbrook.

13 On 30 August 2002, the appellant arrived in Perth from the United Kingdom. He was on holiday. He planned to stay with his sister in Perth and then travel to other parts of Australia.

14 Soon after arriving at the Ellenbrook house, the appellant ascertained that the relationship between Angela and the victim was in difficulty and that some of their problems arose from domestic violence by the victim towards Angela.

15 Some days after his arrival, Angela told the appellant she wanted to separate from the victim. The appellant arranged for Angela and the children to rent a room in his friend's house in Perth. On 5 September 2002, without the victim's knowledge, the appellant assisted Angela and the children to move to this house.

16 The victim discovered on the afternoon of 5 September 2002 that Angela and the children had departed. He was very upset. The victim had, on occasions, irrational and exaggerated beliefs. He was of the view that the appellant was responsible for Angela leaving him.

17 On 5 September 2002, the victim threatened the appellant. However, relations between them appeared to have settled later that day. By 5 September 2002, the appellant had left the Ellenbrook house and was staying with his grandmother in Beechboro.

18 On 6 September 2002, the victim obtained orders from the Family Court of Western Australia restraining Angela from leaving Australia with the children. During the following five days, the victim sought domestic violence counselling and attempted to find out where Angela and the children were living. The appellant refused to tell him.

19 The appellant had regular contact with Angela and he spoke to the victim from time to time. The appellant's attitude appeared to be constructive.

20 On 9 September 2002, the appellant went shopping with Angela. He enquired whether the victim had assaulted her. Angela said the victim had struck her. During the conversation Angela referred to injuries which had resulted in her admission to hospital. She suffered a broken cheekbone, broken ribs, a bruised arm and a black eye.

21 Angela gave evidence at the trial that the appellant did not react angrily when she informed him about the victim's domestic violence.

22 According to the appellant's grandmother, on the night of 9 September 2002 she showed the appellant photographs of Angela's injuries. She said the appellant was 'shocked and mad' and told her he was 'going to speak to [the victim]' [17].

23 The trial judge found that, contrary to his evidence, the appellant did not ascertain details of the nature and extent of the domestic violence until on or close to 9 September 2002.

24 On 10 September 2002, the victim and the appellant spent some hours together having lunch and playing pool at the Morley Ale House. Her Honour found that, at some time after 3.00 pm on 10 September 2002, the victim and the appellant went to the Ellenbrook house. She was unable to determine precisely what happened upon arrival at the house. Although her Honour decided not to sentence the appellant on the basis he had earlier formed an intention to attack the victim, she did not accept the appellant's version of what happened at the house.

25 The trial judge found that, at some time after 3.00 pm on 10 September 2002, when the victim and the appellant were in the kitchen at the Ellenbrook house, the appellant struck the victim at least twice to the head. The victim rapidly lost consciousness and died shortly after. His death was caused by a head injury.

26 Her Honour was satisfied the appellant inflicted at least two blows to the victim's head with a weapon. The weapon was not found.

27 The appellant gave evidence at the trial to the effect that he acted in self-defence. The jury, by its verdict, rejected this evidence. Her Honour was satisfied, based on the severity of the appellant's assault upon the victim, that the appellant did not believe his actions were necessary to defend himself.

28 Dr Clive Cooke, a forensic pathologist, gave evidence at the trial that the victim had a number of injuries to the right-hand side of his head.

29 First, a laceration through the skin on the right-hand side of the forehead, which was 6 cm in length and penetrated to the outer layer covering the bone. Secondly, a laceration on the top of the cheek, which was 5.5 cm in length, and a fractured cheekbone beneath the laceration. Thirdly, an abrasion to the upper third of the right ear. Fourthly, an abrasion just above the right ear. Fifthly, a laceration behind and above the right ear, which penetrated to the bone.

30 Dr Cooke also said the whole of the right side of the victim's skull was severely fractured into multiple pieces. The victim had a depressed fracture of the skull. There was substantial bruising of the brain and a laceration or tearing of the brain. Her Honour found that the force required to inflict these injuries was severe.

31 The victim also had a laceration to the back of his head, which was about 4 cm in length. There was a small area of fracturing directly beneath the laceration. Substantial force was required to inflict this injury.

32 The trial judge sentenced the appellant on the basis he inflicted the fatal injuries by 'at least two blows with a heavy weapon using severe and substantial force and with an intent to cause [the victim] serious bodily injury' [33]. Her Honour said the appellant was 'reckless as to whether [his] attack on [the victim] and [the victim's] subsequent injuries would have killed him' [33].

33 After the appellant attacked the victim, the victim fell to the ground and remained on the kitchen floor. The appellant checked his pulse. He thought the victim was dead. The appellant obtained bedding from elsewhere in the house and placed it on top of the victim.

34 The appellant locked the house and departed. He took with him the weapon he had used to inflict the injuries. He drove a vehicle that the victim had been using. According to the appellant, he returned to his grandmother's house and surreptitiously took a few belongings. He then drove to the Perth International Airport.

35 The trial judge found that the appellant's post-offence conduct aggravated his offending in several respects.

36 By hiding the victim's body underneath the bedding, leaving the house locked and taking the victim's vehicle, the appellant made it less likely that the victim's fate would be discovered and more difficult for the victim's relatives to discover his body. The appellant's object was to avoid apprehension by the police.

37 The appellant made telephone calls while travelling to the airport. Some of these calls were for the purpose of presenting a false appearance to his friends that nothing unusual had happened that evening and that he would be honouring various existing commitments. These calls were made to facilitate the appellant's escape from the jurisdiction.

38 The appellant disposed of the shirt he was wearing when he killed the victim, and the weapon he had used to kill him, to endeavour to avoid apprehension by the police.

39 By about 6.15 pm on 10 September 2002, the appellant was at the airport. He locked the victim's vehicle and left it in the airport car park. At 6.20 pm he purchased a return ticket to Bali. He paid for the ticket with cash. Her Honour found that, although he purchased a return ticket, the appellant had no intention of returning to Australia.

40 The appellant left Perth at 9.40 pm on the flight to Bali and did not return to Australia until 2011, when he was extradited from Thailand to be tried for the offence in question. He had lived in Thailand illegally.

41 Even after he left Australia, the appellant did not inform anyone of the victim's death or where his body could be located. The trial judge found the appellant's inaction in this respect was done 'to save [his] own skin' [41].

42 Eventually, on 12 September 2002, the victim's body was discovered by the police, where the appellant had left it, on the floor of the kitchen at the Ellenbrook house.

43 The material before the trial judge included victim impact statements from the victim's mother and other members of his family. The victim's parents were and remain devastated by their son's death. Their grief has detrimentally affected their physical and mental health. Grief has also had an adverse impact on relationships between family members.

44 Her Honour found the grief experienced by the victim's family was exacerbated by the appellant's flight from the jurisdiction. For many years they felt justice had not been and may never be done.

The appellant's personal circumstances and antecedents

45 The appellant was aged 41 when he committed the offence. He was 51 at the time of sentencing.

46 The appellant was born in England. He had a positive upbringing and his mother, stepfather and sister remain supportive of him. He attended school until the age of 15. The appellant has been employed in a number of unskilled occupations. He has a child who was born in 1990. The appellant's relationship with the child's mother ended in the 1990s.

47 The appellant has a significant prior criminal record. In 1986 he was convicted of assaulting police and threatening behaviour. On numerous occasions before 1994 he was convicted of burglary. In 1994 he was sentenced to a total of 6 years' imprisonment for dangerous driving, carrying a firearm with intent to commit an indictable offence, and attempted robbery. In 1997 he was convicted of burglary and sentenced to 18 months' imprisonment to be served cumulatively upon his existing sentences. As a result, the appellant was in custody for most of the period between the end of 1991 and at least September 1998. After he was released from prison, the appellant did not commit any offences, apart from one offence of shoplifting, until he murdered the victim.

48 As I have mentioned, after he killed the victim, the appellant travelled to Bali. He remained there for a short period. The appellant then went to Thailand where he remained until his extradition to Australia in 2011. In Thailand the appellant met a Thai woman who ran a bar. He had an intimate relationship with her and worked with her in the business. Their relationship produced one child. When the appellant was extradited to Australia his relationship with the Thai woman ended.

49 Her Honour said it appeared the appellant had no criminal convictions while he was in Thailand. She then observed:

Normally that would be a matter in your favour. However, given that you were on the run for that period and it was therefore in your best interests to remain unnoticed to the authorities you cannot expect to receive much credit for your behaviour in the intervening years. It is not possible for me to conclude from your lack of convictions that you have rehabilitated yourself. Given your past history you do not receive credit for being of good character [64].

The trial judge's determination of the minimum non-parole period

50 The trial judge referred to a number of matters in deciding the length of the minimum non-parole period.

51 Her Honour noted the seriousness of the appellant's offending including his use of a weapon, the severe force required to inflict the fatal injuries and his post-offence conduct. She said the appellant had 'ferociously attacked a man and caused very serious injuries resulting in his death' [71]. Her Honour elaborated:

It would be clear to anyone that hitting a man as hard as you hit [the victim] on the head would be likely to endanger that man's life, if not kill him. When you hit [the victim] you intended to cause him serious bodily injuries which would be likely to endanger his life. Callously you then left him dead on his kitchen floor [71].

52 The trial judge referred to a letter she had received from the appellant. She thought the letter was important because the appellant said he was sorry for the victim's death. However, the appellant maintained his denial of any intention to hurt the victim. Her Honour said this statement was contrary to the jury's verdict, and illustrated that the appellant was 'still not truly remorseful' [68].

53 The appellant pleaded not guilty to wilful murder and the alternative charge of murder. According to her Honour, the manner in which the appellant ran his case at trial showed 'little evidence of true remorse' [77]. She acknowledged, however, that the appellant did admit, at the commencement of the trial, that he was 'involved in an incident during which [the victim] died' [77]. Defence counsel said, in opening, that the appellant acted in self-defence. However, no admission was made during opening that the appellant had struck the victim, thereby causing his death. That admission was made only during the appellant's evidence. In her Honour's view, any credit for the late admission was 'marginal' because the circumstantial evidence that it was the appellant who inflicted the victim's injuries was very strong [78]. She added that the appellant's evidence did not otherwise indicate to her that he was truly remorseful for murdering the victim.

54 The trial judge gave the appellant credit for the formal admission at the trial that he was in the Ellenbrook house with the victim on the evening in question. She also gave him credit for cooperating with matters of evidence; for example, the proof of the telephone calls and the continuity of some evidence.

55 Her Honour said the appellant's personal circumstances and antecedents were not favourable. However, his offending was mitigated to some extent by his emotional state at the time of the murder. He would have been distressed by having been told about, and having seen photographs of, the injuries which the victim caused to Angela.

56 The trial judge took into account, as a mitigating factor, that the time spent in custody by the appellant would be more difficult for him than most prisoners because of his distance from the United Kingdom and his family and friends who reside there.

57 Although the sole ground of appeal alleges that the minimum non-parole period of 17 years is manifestly excessive, counsel for the appellant was not deterred from raising arguments in his written and oral submissions which in substance asserted express errors.

58 Counsel relied in essence on the following matters in support of his contention that the minimum non-parole period was unreasonable or plainly unjust:

(a) Her Honour erred in describing the appellant's assault on the victim as 'ferocious' [71].

(b) Her Honour failed adequately to 'characterise or make findings in respect of the extent ... to which the appellant was acting in self-defence or provoked and if the appellant had acted excessively'.

(c) Her Honour erred in stating that the appellant's actions after the killing included 'hiding' the victim's body underneath the bedding [36].

(d) Her Honour erred in assessing the appellant's remorse including, in particular, by characterising his conduct during the trial as indicating a lack of remorse.

(e) Her Honour erred by not accepting that the letter written to her by the appellant indicated remorse.

59 Counsel for the appellant concluded his oral submissions by asserting that the minimum non-parole period of 17 years was 'just outside the range of what should have been imposed' (appeal ts 11).

60 The appellant was sentenced under the legislative scheme introduced by the Criminal Law Amendment (Homicide) Act 2008 (WA).

61 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; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531.

62 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.

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

64 It is necessary, in determining whether a minimum term is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law 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.

65 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a minimum term is within the range imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a minimum term is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range is merely one of the factors to be taken into account in deciding whether a minimum term is manifestly excessive.

66 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper limit of the range. See Neumann v The State of Western Australia [2013] WASCA 70 [30] (Buss JA, McLure P & Pullin JA agreeing).

67 I have reviewed 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. In particular, I have taken into account the sentencing dispositions in Atherden v The State of Western Australia [2010] WASCA 33; Austic v The State of Western Australia [2010] WASCA 110; Pedersen; The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285; Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91; 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 Silva v The State of Western Australia [2013] WASCA 278. I have also considered two other cases referred to by counsel for the appellant, namely Heijne v The State of Western Australia [2010] WASCA 86 and Mansell v The State of Western Australia [No 6] [2013] WASCA 120, even though the appeals in those cases were confined to appeals against conviction. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases I have reviewed. There are some comparable features between some of those cases and the present case. However, there are also distinguishing features.

68 There is no merit in the appellant's complaint that the trial judge erred in describing his assault on the victim as 'ferocious' [71]. It was a fair and accurate description of the appellant's attack on the victim's head and the force required to inflict the fatal injury. The appellant savagely assaulted the victim in that he used a heavy weapon and severe force to fracture the right side of the victim's skull into multiple pieces, to substantially bruise the victim's brain and to lacerate or tear his brain. In any event, the word 'ferocious' was merely a label used by her Honour. None of her Honour's findings of fact, to which she applied the label, is challenged in the ground of appeal.

69 The appellant's complaint that her Honour failed adequately to 'characterise or make findings in respect of the extent ... to which the appellant was acting in self-defence or provoked and if the appellant had acted excessively' is without merit. The appellant raised self-defence at the trial. He gave sworn evidence. The jury, by its verdict, rejected the appellant's evidence that he was acting in self-defence and found the State had negatived self-defence beyond reasonable doubt. The jury's verdict is also inconsistent with the defence of provocation that applied under the law of Western Australia when the appellant killed the victim. He was convicted of murder, not manslaughter. Her Honour did not find that the appellant had been provoked, in the non-legal sense of the term, by the victim. She rejected, and was entitled to reject, the appellant's version of what occurred at the Ellenbrook house on the evening in question. No issue as to whether the appellant had 'acted excessively' arose for determination. In any event, the ground of appeal does not allege that her Honour made any express error.

70 There is no merit in the appellant's complaint that the trial judge erred in stating that his actions after the killing included 'hiding' the victim's body underneath the bedding. Her Honour, in referring to the appellant 'hiding' the victim's body, was describing the appellant's actions in covering the body with bedding [36]. The appellant is nitpicking about semantics. Her Honour did not say the body was unlikely ever to be found. She explained, correctly, that by hiding the victim's body underneath the bedding, leaving the house locked and taking the victim's car, the appellant made it less likely that the victim would be missed in the short term and more difficult for his relatives to discover his body in the short term. The object of the appellant's conduct was to facilitate his escape and departure from Australia before the crime was discovered.

71 The appellant's complaint that her Honour erred in assessing the appellant's remorse (including, in particular, by characterising his conduct during the trial as indicating a lack of remorse) is without merit. Counsel for the appellant asserted that the appellant could have made no admissions or could have lied by denying being at the Ellenbrook house when the victim was killed. This, of course, says nothing about whether the appellant was genuinely remorseful. As her Honour noted, the circumstantial evidence against the appellant was very strong. This was implicitly recognised by the appellant, through defence counsel, in his formal admission that he was at the Ellenbrook house with the victim on the evening in question. Her Honour gave the appellant credit in the sentencing process for this admission, but the making of the admission did not, of itself or in combination with any other facts or circumstances, indicate remorse. It is true the appellant admitted, in the course of the trial, that he had killed the victim. However, his sworn evidence was given in an attempt to obtain an outright acquittal. As I have mentioned, the jury, by its verdict, rejected the appellant's claim of self-defence. Her Honour saw and heard the appellant give evidence. She found, in her sentencing remarks, that there was little evidence of true remorse and the appellant's evidence did not indicate to her that he was truly remorseful for murdering the victim. These findings were reasonably open to her Honour and there is no basis for interfering with them. In any event, the ground of appeal does not allege any express error by her Honour.

72 There is no merit in the appellant's complaint that the trial judge erred by not accepting that the letter written to her by the appellant indicated remorse. Her Honour said the letter illustrated that the appellant was not truly remorseful. She noted the letter was important because the appellant acknowledged publicly for the first time that he was sorry for the victim's death. It was open to her Honour to state, as she did, that to the extent the appellant denied in the letter any intention to hurt the victim, the denial was contrary to the jury's verdict. Accordingly, the appellant did not, in the letter, fully or unequivocally accept responsibility and express contrition for the victim's death. In any event, there is no allegation of express error in the ground of appeal.

73 The appellant's offending was very serious. In particular:

(a) The appellant attacked the victim and struck him at least twice with a heavy weapon.

(b) The appellant crushed the right-hand side of the victim's skull.

(d) Although the appellant did not intend to kill the victim, he did intend to cause him serious bodily injury. The appellant was reckless as to whether his attack on the victim and his subsequent injuries would kill him.

(e) The trial judge did not find that the appellant's attack was provoked, in a non-legal sense, by the victim.

(g) After committing the offence the appellant demonstrated a callous disregard for the victim.

(h) After committing the offence the appellant disposed of incriminating evidence, namely the shirt he had been wearing and the weapon he had used.

(i) The appellant took active steps to ensure he would not be apprehended before he fled the jurisdiction.

(j) The appellant avoided responsibility for the offence, and denied any sense of justice and closure to the victim's family, for about 10 years.

74 There was little by way of mitigation. The appellant's personal circumstances and antecedents were not favourable. Although his prior criminal record did not aggravate the seriousness of his offending, it demonstrated that the appellant was not entitled to any leniency on the ground he was ordinarily of good character. The appellant did not have the mitigation that a plea of guilty would have brought, but he received credit in the sentencing process for his cooperation in the course of the trial. Her Honour found the appellant was not truly remorseful for having murdered the victim. She did accept, however, that at the time of the murder he was distressed by the victim's domestic violence towards Angela. The appellant was not youthful or inexperienced, at the time of the offence, for sentencing purposes.

75 In my opinion, the minimum term of 17 years did not exceed the sentencing range open to the trial judge on a proper exercise of her discretion. After evaluating 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 for murder, the circumstances of the commission of the offence and all aggravating and mitigating factors, I am satisfied that the minimum term was not unreasonable or plainly unjust. No proper basis exists for inferring error from the sentencing outcome.

Law Amendment (Homicide) Act 2008

Atherden v The State of Western Australia

At a glance

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Judgment (114 paragraphs)

PRESTIDGE -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 16 (24 January 2014)

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Cases Cited (5)