Criminal law - Application for leave to appeal against sentence - Appellant convicted after trial of one count of murder and sentenced to life imprisonment with a minimum term of 15 years - Allegation of weighting errors - Allegation of express errors - Whether minimum term manifestly excessive - Turns on own facts

Sentencing Act 1995 (WA), s 90

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

Mikhail v The State of Western Australia [2012] WASCA 200

Power v The Queen [1974] HCA 26; (1974) 131 CLR 623

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

The State of Western Australia v Egitmen [2014] WASCSR 14

Vagh v The State of Western Australia [2007] WASCA 17

2 MAZZA JA: This is an application for leave to appeal against a sentence imposed by Simmonds J: The State of Western Australia v Egitmen [2014] WASCSR 14.

3 The appellant was tried before his Honour and a jury on one count of murder, contrary to s 279 of the Criminal Code (WA). The charge read:

On 19 August 2012 at Thornlie [the appellant] murdered Osman Kana Osman.

4 At trial, it was admitted that the appellant had stabbed the victim to death. The issues for the jury to determine were the appellant's intent at the time of the stabbing and whether the State had negatived self-defence. The appellant was convicted as charged.

5 On 28 January 2014, he was sentenced to life imprisonment with a minimum term of 15 years, to commence on 19 August 2012.

6 This appeal does not concern the decision to impose life imprisonment. It was not argued at first instance or in this court that the imposition of such a sentence would be clearly unjust: s 279(4) of the Criminal Code. Rather, the appellant challenges the length of the minimum term.

Ground 1

The learned sentencing judge erred in law by failing to give sufficient or any weight to the following migrating [sic: mitigating] factors:

(a) the absence of any pre-meditation;

(b) the presence of provocation and self-defence;

(c) the aggressive nature and violent history of the deceased;

(d) the instant or contemporaneous remorse of the appellant and his attempts to provide first aid to the deceased; and

Ground 2

The learned sentencing judge erred in fact and law by giving disproportionate weight to the evidence of Sultan Osman and Ali Osman.

Ground 3

The learned sentencing judge erred in fact by speculating as to the deceased's moderation of his mental health and behavioural symptoms.

Ground 4

The learned sentencing judge erred in law by finding that the accused's possession of a knife and intention kill the deceased were aggravating factors to be considered in determining sentence.

8 For the reasons that follow, none of the proposed grounds have a reasonable prospect of succeeding. Accordingly, leave to appeal in respect of each ground must be refused, with the result that the appeal is taken to be dismissed: s 27(1), (2) and (3) of the Criminal Appeals Act 2004 (WA).

9 As found by the learned sentencing judge, the facts of the offending are as follows.

10 The deceased was the appellant's uncle. He suffered from paranoid schizophrenia or a paranoid personality disorder. The deceased was prone to aggressive speech and behaviour. The appellant was well aware of this and knew to avoid conflict with him. There had, in the past, been incidents between the deceased, the appellant and other members of the appellant's family. Specifically, some years before the deceased's death there had been incidents between the deceased and the appellant involving pushing and punching, but nothing that required medical treatment. Although the deceased angered easily, he had some insight into his aggressive tendencies and was capable of not acting on his anger. The deceased's psychiatrist, Dr Johri, noted in May 2012 some improvement in the way the deceased managed his anger.

11 At about 6.30 pm on 19 August 2012, the appellant went to his grandparents' house in Thornlie to visit family members and celebrate the end of Ramadan. A short time after he arrived, the deceased returned, having purchased a meal. The appellant decided to leave the premises shortly after that.

12 The appellant asked the deceased to move his vehicle which was parked behind his. The deceased left the premises and walked under the front porch. There, the two men became involved in a verbal argument which escalated to the point that each threatened to kill the other. The appellant produced a folding knife that he was carrying and opened the blade to a locked position. He then stabbed the deceased with it six times to the chest and abdomen. All but two of the stab wounds were potentially fatal. The deceased collapsed to the ground. The appellant called triple zero and rendered some basic first aid. Police attended the premises and arrested the appellant. The deceased was conveyed to Royal Perth Hospital where he was declared dead.

13 In the early hours of 20 August 2012, the appellant participated in a lengthy electronically recorded interview with police which was played to the jury: exhibit 11. In it, the appellant admitted stabbing the deceased in the context of an altercation concerning the deceased's car. He outlined in detail his version of the history between himself, his family and the deceased. The learned sentencing judge found that the appellant exaggerated the extent of the deceased's violent tendencies.

14 The learned sentencing judge was satisfied beyond reasonable doubt that the appellant intended to kill the deceased, having regard to a combination of factors, including the number and severity of the stab wounds and the testimony of the appellant's grandmother, Sultan Osman, that, shortly after the stabbing, the appellant said that he was going to kill the deceased.

15 Although the learned sentencing judge found that the appellant had an intention to kill, he was satisfied that there was no premeditation in the sense that the intent arose in 'the heat of the moment' when both parties were making loud threats towards each other.

16 By its verdict, the jury must have been satisfied beyond reasonable doubt that the appellant had not acted in self-defence or excessive self-defence: s 248(3) of the Criminal Code.

17 The appellant was 28 years of age at the time of the offence. He was brought up in a supportive family environment. A reference tendered to his Honour spoke well of his polite, respectful and caring character. Evidence was led, which the learned trial judge accepted, of the appellant's positive commitment to his community. After completing high school, the appellant gained a certificate in welding and was employed in that work at the time of the offence.

18 The appellant is in good general health. He has no history of illicit substance abuse and no criminal history of any kind. A psychological report tendered to his Honour was to the effect that the appellant does not suffer from any significant mental illness, although he presented with a lack of insight and with some cognitive distortions concerning the offence.

The reasons of the learned sentencing judge

19 To deal with the proposed grounds of appeal, it is necessary to highlight some aspects of his Honour's sentencing remarks.

20 His Honour identified the aggravating features of the offence as being that the appellant was armed with a knife and inflicted six stab wounds, four of which were potentially fatal, and that he intended to kill the deceased. Insofar as the latter factor is concerned, his Honour considered that, in the circumstances, it added 'relatively little aggravation' [31].

21 Having identified the aggravating factors in the case, his Honour then referred to the following:

(a) the appellant's personal circumstances, noting that his age did not allow any 'significant credit';

(b) the admissions he made in his video record of interview for which his Honour said the appellant was 'entitled to credit';

(c) the appellant's preparedness to plead guilty to manslaughter which his Honour said went to his facilitation of the course of justice;

(d) the appellant's supportive family and his commitment to his community;

(e) the appellant had no prior criminal history; and

(f) the appellant was at a low risk of future violent behaviour.

22 After identifying these matters, the learned sentencing judge summed up the mitigating factors in this way:

Overall, the mitigating factors for this offending I have found, being factors that go to reduce your culpability, or the extent to which you should be punished, are your cooperation with the police, your facilitation of the course of criminal justice and your previous good character [37].

23 I will deal with grounds 2 and 3 first. At the hearing, the appellant's counsel said that these grounds had been put forward at the insistence of the appellant. He did not seek to make any oral submissions to advance them.

24 Although ground 2 refers to two witnesses - Sultan Osman and Ali Osman - the written submissions refer only to Sultan Osman. The appellant submits that her evidence should not have been relied upon by the learned sentencing judge because, as he put it, she 'admitted ... that she had lied to police ... [and] to the prosecutor', and that the first time she had told anyone that the appellant had threatened to kill the deceased was the day before she gave her evidence.

25 The circumstances in which Sultan Osman gave her evidence were unusual. On 12 November 2013, she was called by the State to give evidence with the aid of an interpreter. At the outset of her evidence and in the absence of the jury, she said that she wanted to speak (ts 202). With the acquiescence of defence counsel, she was allowed to do so. In effect, she said that her evidence would differ in some respect to what she had said in her statements to police and in proofing with the prosecutor prior to trial. Consequently, Ms Osman's testimony was delayed and a further statement was made by her and provided to the defence. On the afternoon of 13 November 2013, Ms Osman was recalled. She testified that, although her husband had told her not to watch the incident that was unfolding between the appellant and the deceased, she had, in fact, 'secretly' observed and heard some of what occurred. She said that as the deceased lay dying she heard the appellant say to him, 'I'm going to kill you.'

26 In cross-examination, she said that she had lied to the police and to the prosecutor by not telling them what she had heard. She explained she had not told the police or the prosecutor what she had heard before the trial because her daughter, who had in the past cared for her, told her 'not to say everything'.

27 Ms Osman was cross-examined as to the inconsistencies between her statements and her testimony. Defence counsel put squarely to her that her evidence about hearing the appellant say 'I'm going to kill you' was a lie. Ms Osman denied lying before the jury and repeated that she had not said anything previously because of what her daughter had said to her.

28 In his sentencing remarks, his Honour said that he accepted Ms Osman's evidence after carefully considering defence counsel's cross-examination of her and counsel's submissions with respect to the witness's credibility in her closing address.

29 It was for the learned sentencing judge to evaluate the credibility of Sultan Osman and, in particular, the reasons she gave for the inconsistencies between her evidence and her out of court statements and why she had not revealed prior to trial the appellant's statement, 'I'm going to kill you'. The learned sentencing judge had the advantage of presiding over the trial and seeing Ms Osman give evidence and, particularly, be cross-examined. He had an advantage that this court does not have. I am unable to see how his Honour misused the advantage that he had.

30 In my opinion, it was open to his Honour to accept that Sultan Osman had heard the appellant say that he was going to kill the deceased.

31 Ground 2 has no reasonable prospect of succeeding.

32 The appellant submitted with respect to ground 3, in effect, that the learned sentencing judge's description of the evidence of the deceased's treating psychiatrist, Dr Johri, was inaccurate in that his Honour downplayed the possible threat the deceased posed to the appellant.

33 Dr Johri was called by the defence. I have read his testimony (ts 529 - 556). Dr Johri confirmed that in 2009 he wrote a report in which he said that the deceased's risk of suicide and harm to others remained 'longitudinally'. Dr Johri said that he was aware of a history of verbal aggression by the deceased and a physical altercation between the deceased and a relative (ts 542, 551). Dr Johri said that, despite his illness, the deceased retained a degree of insight into his aggression and avoided confrontation. He testified that he last saw the deceased on 7 May 2012. Dr Johri said that, generally over the period he treated the deceased, he (the deceased) was 'more stable and in better control towards the end [May 2012]' (ts 547). He said that on 7 May 2012, the deceased appeared compliant with his medication (ts 554).

The deceased was a person who angered easily as part of his personality disorder or schizophrenia on which there was uncontradicted expert evidence at the trial from a psychiatrist who had treated him. At the same time, I note the opinion of the psychiatrist, not long before the incident in question, that the deceased was a person who was capable and had exercised the capability of not acting on his anger in ways other than the ways that I will describe and that, indeed, there were some [areas] of improvement in the most recent examination of the deceased by that psychiatrist.

I am satisfied that some of the incidents involved physical violence by the deceased to you and to your brother. However, the most recent of those took place a number of years ago and they were of a punching and pushing kind. They did not involve physical harm to you as serious as you reported, being of a seriousness that might readily be seen to require a resort to medical treatment. The evidence as to the age of the incidents is uncontradicted and the lack of evidence of more recent such incidents is consistent with the evidence of the psychiatrist as to the deceased's condition when he last saw the deceased a number of months before the incident [23] - [24].

35 A fair comparison of Dr Johri's evidence and his Honour's sentencing remarks does not reveal that his Honour downplayed the possible threat the deceased posed to the appellant.

36 Ground 3 has no reasonable prospect of succeeding.

38 Ground 4 criticises the learned sentencing judge's identification of the aggravating factors in the case, being, as he put it, that:

(a) the appellant was armed with a knife and stabbed the deceased six times with it; and

39 It is obvious that the fact the appellant armed himself with a knife was an aggravating circumstance. A knife is a dangerous thing capable, when produced and used as it was in this case, of inflicting a fatal injury. The appellant, albeit at the spur of the moment, took the knife from his pocket, unfolded it into a locked position and then used it to carry out his intention to kill. There is no merit in the submission that the use of the knife was wrongly held to be an aggravating factor.

40 The appellant's counsel made a further submission. He submitted that the learned sentencing judge's identification of the appellant being armed with a knife as an aggravating factor was inconsistent with his Honour's finding that the killing was not premeditated. This submission must be rejected. By characterising the killing in this way, his Honour meant that there was no plan to kill the deceased. Rather, the intention to kill was formed very shortly before the fatal wounds were inflicted. As I have just said, the knife was used to facilitate this intention. The two statements stand rationally together. There is no inconsistency.

41 There is no merit in the suggestion that his Honour mischaracterised the appellant's intention to kill as an aggravating factor. The offence of murder may be committed in the circumstances set out in s 279(1) of the Criminal Code. Relevantly, the State's case on murder was that the appellant either intended to kill the deceased (s 279(1)(a)) or he intended to cause a bodily injury of such a nature as to endanger or be likely to endanger life (s 279(1)(b)). The learned sentencing judge found that the appellant intended to kill the deceased. This is an aggravating factor in the sense that, to kill someone, intending to kill that person, is ordinarily a more serious type of murder which usually warrants a more severe sentence: see Atherden v The State of Western Australia [2010] WASCA 33. In this context, his Honour's characterisation of the appellant's intention to kill as an aggravating factor is not erroneous.

42 Finally, in respect of ground 4, the appellant, in his written submissions, contended that, because the jury's verdict did not reveal the basis upon which the appellant was found guilty, the learned sentencing judge was bound to sentence on the less serious basis that the appellant intended to inflict a life-threatening injury. This is an incorrect statement of the law. A sentencer must decide for him or herself the facts upon which to sentence an offender. Of course, any such finding of fact must be consistent with the jury's verdict. A sentencer is not bound to sentence an offender on a view of the facts most favourable to the offender. In the present case, the jury's verdict did not reveal whether the appellant had been convicted pursuant to s 279(1)(a) or (b). No special verdict was sought and so it was for the learned sentencing judge to decide the facts upon which the appellant should be sentenced. It is clear that he did so properly, having regard to the principles laid down by the High Court in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. In the light of the evidence, it was well open to his Honour to be satisfied beyond reasonable doubt that the appellant intended to kill the deceased.

43 Ground 4 has no reasonable prospect of succeeding.

44 I now turn to ground 1. Insofar as ground 1 alleges weighting errors, the ground cannot succeed: Vagh v The State of Western Australia [2007] WASCA 17. However, in substance, ground 1 alleges that the minimum term imposed by his Honour was manifestly excessive. This is an allegation of implied error.

45 A non-parole period is the minimum period of imprisonment that justice requires the offender to serve before being eligible for release: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 - 629; Mikhail v The State of Western Australia [2012] WASCA 200 [19]. For the appellant to succeed, the appellant must demonstrate that the minimum term was unreasonable or plainly unjust so that a substantial wrong may be inferred.

46 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 murder, the upper or lower limits on the available minimum term, the standards of sentencing customarily observed with respect to minimum terms for the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of murder and the personal circumstances and antecedents of the offender.

47 Pursuant to s 90(1) of the Sentencing Act 1995 (WA), a court that sentences an offender to life imprisonment for murder must either set a minimum period of at least 10 years that he or she must serve before being eligible for release on parole or order that the offender must never be released.

48 Since the commencement of the Criminal Law Amendment (Homicide) Act 2008 (WA), under which the appellant was sentenced, this court has considered a substantial number of comparative cases. For the sake of convenience I have listed them in a schedule to these reasons. It is unnecessary for me to refer to the cases in any detail because counsel for the appellant conceded in oral argument that the minimum term imposed upon the appellant was within the range of sentences customarily imposed. This is not necessarily fatal to the ground. Each case must be decided on its own facts and circumstances and the guidance afforded by comparable cases is for the purpose of ensuring broad consistency having regard to all relevant sentencing variables. That said, the fact that the minimum term imposed in this case is within the range of sentences customarily imposed is a factor which points against it being manifestly excessive.

49 Although there were clearly difficulties in the relationship between the deceased and the appellant, that did not reduce the appellant's criminality. For no good reason, he produced the knife and then stabbed the deceased, who was unarmed, six times, in vulnerable areas of the deceased's body, with an intention to kill. As the jury's verdict makes clear, there was no question of self-defence or excessive self-defence. Acknowledging that the appellant's intention was born out of quick anger and was not premeditated in the sense that it was planned some time before it occurred, the offence was very plainly a serious one of its kind. There were mitigating factors. They were identified by his Honour. When weighed against the seriousness of the offence, they cannot afford much mitigation. While the appellant is not to be punished for his plea, he did not have the mitigation of a plea of guilty.

50 Having regard to all of the circumstances, his Honour's imposition of a 15-year minimum term was not unjust or plainly unreasonable and was well within a proper exercise of the sentencing discretion.

51 Ground 1 has no reasonable prospect of succeeding.

52 None of the proposed grounds of appeal have a reasonable prospect of succeeding. Accordingly, the appeal must be taken to be dismissed.

1. Leave to appeal is refused.
2. The appeal is dismissed

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

Rosewood v The State of Western Australia [2014] WASCA 21

Prestidge v The State of Western Australia [2014] WASCA 16

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

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

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

Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328

Kuzimski v The State of Western Australia [2012] WASCA 202

Mikhail v The State of Western Australia [2012] WASCA 200

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

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

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

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

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

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

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

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

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

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