Court of Appeal (WA)|2013-03-07|Before: Martin CJ

McNAMARA -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 63 (7 March 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : McNAMARA -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 63

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : THE STATE OF WESTERN AUSTRALIA -v- KM [2012] WASCSR 1

Criminal law - Appeal against sentence - Manslaughter - Mental impairment - Use of illicit drugs - Manifest excess

Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998)

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

Colledge v The State of Western Australia [2007] WASCA 211

Damiani v The State of Western Australia [2006] WASCA 47

Hishmeh v The State of Western Australia [2012] WASCA 183

Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1

Krijestorac v The State of Western Australia [2010] WASCA 35

Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442

Macaree v The State of Western Australia [2011] WASCA 207

McKey v The State of Western Australia [2010] WASCA 210

Phillips v The State of Western Australia [2011] WASCA 69

R v Martin [2007] VSCA 291

Smith v The State of Western Australia [2010] WASCA 176

The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414

The State of Western Australia v Munda [2012] WASCA 164

The State of Western Australia v Walley [2008] WASCA 12

TXT v The State of Western Australia [2012] WASCA 28

Wheeler v The Queen [No 2] [2010] WASCA 105

Wicks v The Queen (1989) 3 WAR 372

Wilson v The State of Western Australia [2010] WASCA 82

1 MARTIN CJ: This appeal should be dismissed for the reasons given by Mazza JA with which I agree.

2 BUSS JA: The appellant appeals against sentence.

3 The sole count in an indictment dated 10 November 2011 alleged that on 24 October 2010, at Dianella, the appellant murdered Mario Perrin. He pleaded not guilty.

4 On 14 November 2011, the appellant's trial began in the Supreme Court before Jenkins J and a jury.

5 On 23 November 2011, being the eighth day of the trial, the appellant offered to plead guilty to the lesser charge of manslaughter. The State accepted his offer.

6 The original indictment was discontinued and the appellant pleaded guilty to the sole count in a new indictment dated 23 November 2011, which alleged unlawful killing, contrary to s 280 read with s 266 of the Criminal Code (WA).

7 At the material time, the maximum penalty for manslaughter was 20 years' imprisonment. On 9 January 2012, the sentencing judge imposed a sentence of 12 years' imprisonment. The sentence was backdated to 26 October 2010, being the date on which the appellant was taken into custody for the offence. A parole eligibility order was made.

8 I would dismiss the appeal. My reasons are as follows.

The facts and circumstances of the offending

9 A detailed account of the facts and circumstances of the offending is set out in the reasons of Mazza JA (with which Martin CJ has expressed his agreement).

(a) Mr Perrin owed the appellant $700 for the purchase of illicit drugs.

(b) There was an angry exchange by text messages between the appellant and Mr Perrin in connection with Mr Perrin's failure to pay the debt.

(c) The appellant agreed, at Mr Perrin's request, to attend at Mr Perrin's home to discuss the debt and a burglary at the home which Mr Perrin believed had been committed by the appellant some days earlier.

(d) When he arrived at Mr Perrin's home, the appellant was aware that Mr Perrin was present, but was unaware that three other men were also in the home. The wooden front door of the house was open and the security screen door was closed.

(e) The appellant brought with him a loaded .22 semi automatic sawn off rifle with the safety catch disengaged. When the appellant went to the front door there was a brief exchange of verbal insults between him and Mr Perrin through the security screen door. The appellant then fired a bullet at the security screen door towards the interior of the house, which penetrated the door and hit the far wall of the lounge room. The appellant entered the home and fired another bullet while he was in the vicinity of the front doorway. This shot penetrated the window of the meals area and hit the brickwork of the house next door. Mr Perrin ran from the meals area towards the front bedroom. The appellant entered the meals area and fired a third bullet, which struck Mr Perrin to the right side of the head as he emerged from the bedroom.

(f) When the appellant discharged the rifle he was not in any immediate danger from Mr Perrin. It was open to the appellant to leave the premises.

(g) When the appellant fired the fatal shot, he knew that Mr Perrin had recently entered the front bedroom. It was readily predictable that the deceased would emerge from the bedroom. The appellant was aware, throughout the incident at Mr Perrin's home, that he was firing in Mr Perrin's general direction. However, he was not firing at Mr Perrin with the intention of injuring him.

(h) The appellant was 'grossly criminally negligent' in the use of the rifle. See the sentencing judge's reasons at [39].

(i) The appellant fled after shooting Mr Perrin, even though he must have appreciated that Mr Perrin required medical assistance and even though he did not know that anyone else was in the house to obtain it for Mr Perrin.

(j) The appellant did not initially intend to use the rifle at Mr Perrin's home. However, when he arrived his plan changed. The appellant was prepared to use personal violence against Mr Perrin. Also, he was willing to discharge the rifle in order to frighten Mr Perrin.

(k) Both the appellant and Mr Perrin were aggressive towards each other on the day in question. The appellant was angry and wanted to show Mr Perrin that he could not push him around.

The sentencing judge's findings on certain issues

(a) The appellant's offer to plead guilty to manslaughter was made 'very late' [2].

(b) The offer was made after the appellant, through defence counsel, had told the jury that he did not shoot Mr Perrin, and also after defence counsel, no doubt on the appellant's instructions, had cross-examined witnesses to that effect [2]. Indeed, defence counsel suggested to one of the witnesses, Chad James, who had travelled with the appellant to Mr Perrin's home but had remained in their motor vehicle, that he had shot Mr Perrin [3].

(d) Nevertheless, the very late plea had a utilitarian value [5].

(e) The very late plea and the conduct of the defence at trial indicated that, at least up to that stage, the appellant was not remorseful, did not accept responsibility for his actions and was not willing to facilitate the course of justice [3]. But her Honour did not ignore the possibility that he may have 'very belatedly become remorseful' [5].

(f) In the circumstances, her Honour decided that the appellant should receive a 'small reduction' in his sentence for the very late plea, and any remorse which, hopefully, accompanied it [5].

12 The sentencing judge decided that the appellant's offending was 'towards the top of the range of seriousness of manslaughter cases' [36].

14 Ground 1 alleges that the sentencing judge erred by failing to take into account a relevant consideration, namely 'that the appellant's impaired mental state at the time of the commission of the offence contributed to his actions by impairing his judgment and compromising his impulse control'.

15 Ground 2 alleges that her Honour erred by imposing a sentence that was manifestly excessive.

16 The grounds of appeal do not challenge any of the sentencing judge's findings of fact.

17 On 2 April 2012, Mazza JA granted leave to appeal on ground 2 and referred the application for leave to appeal on ground 1 to the hearing of the appeal.

Ground 1: the report dated 3 January 2012 from Dr SD Febbo

18 At the sentencing hearing, defence counsel (who was not counsel for the appellant in the appeal) tendered a report dated 3 January 2012 from Dr SD Febbo, a consultant psychiatrist.

19 Dr Febbo assessed the appellant, at the request of his solicitors, for the purpose of providing a psychiatric opinion. Dr Febbo interviewed the appellant at Casuarina Prison on 19 December 2011. He also reviewed documents provided to him by the appellant's solicitors, including a statement of material facts.

20 The appellant was born on 30 September 1978. He was aged 32 at the time of the offending and was 33 when sentenced.

21 In his report, Dr Febbo summarised the information he had obtained from the appellant about his use of illicit drugs:

[The appellant] said that he began using amphetamines at the age of sixteen or seventeen. Until the age of nineteen he was using these substances about once a month. At nineteen his use of 'speed' increased and, he said, that this related to the fact that he had more money because he was working. At its worst, around this age, he was not using any more than once on a weekend.

[The appellant] said he ceased the amphetamine abuse when he was twenty, went off substances for a year, and then returned to taking speed and cocaine until he was placed in prison at the age of twenty-one. He was in prison for two years and he did not use again until the lead up to the most recent offences.

[The appellant] said that he used cocaine for a year or two, commencing in his late teens until he was placed in custody. He said that he was using this substance about once a week.

[The appellant] said that he used cannabis between the age of fourteen or fifteen until the age of nineteen. He used cannabis most days over this period (5).

22 Dr Febbo asked the appellant about his psychiatric history. Dr Febbo recorded in his report, relevantly:

[The appellant] commenced having 'marital problems' and in 2006/2007 attended marriage counselling. There was some improvement; however, 'I couldn't balance ... tired all the time, working six days a week'.

[The appellant] said that he managed to abstain from substance use until 2007 but then commenced using substances once a week or once every two weeks. However, gradually, the substance abuse escalated and 'started affecting work, contracts not finished in time'.

[The appellant] said that he separated with his partner, Louise, in early 2009 when there was increasing conflict about him not spending time at home. Following the separation his substance abuse escalated, he ceased to work and began 'selling drugs'. In the context of this deterioration his partner would not allow him to see the children and his level of distress increased with an associated deterioration in his mood. He felt 'everyone was against me' and his use of substances escalated further. He was using considerable quantities and substances on a daily basis (3).

23 The appellant told Dr Febbo that 'particularly following the separation from his wife and the lead up to the offence, his mood was particularly low' (4). Dr Febbo recorded:

[The appellant] was frequently tearful ('I was hysterical, crying') and his sleep pattern was erratic and, frequently, he remained awake for several nights and then sleep twenty-four hours a day. He was off his food and lost considerable weight. He was irritable and became verbally aggressive with 'everyone, my family'. His concentration and memory were 'shocking'. He did not report any suicidal ideation and attributed this to the fact that he has children. His self-esteem and self-confidence plummeted and he felt particularly negative about the future.

[The appellant] also reported a number of somatic manifestations of anxiety such as shaking, hyperventilation, sweating and palpitations. He did not report any auditory hallucinations; however, he experienced significant paranoid ideation and became increasingly fearful 'about police [that they may be] conspiring'. In addition he thought that the 'cops were going to break in' and he believed that cameras had been set up in his house in order to monitor him. He also experienced some visual phenomena and, on a number of occasions, he thought that he could 'see things out of the corner of my eye ... but it was [the] substances'. He said that he felt 'numb' (4).

24 The appellant did not indicate that he had any formal psychiatric history. He had not previously consulted a psychiatrist and he had not been admitted to a psychiatric unit.

25 However, the appellant told Dr Febbo that he had 'actually experienced significant depression for a number of years, possibly, since his parents separated [when he was aged 7]' and he reported to Dr Febbo 'a scatter of depressive symptoms fluctuating in severity for a number of years' (4).

26 Dr Febbo set out in his report a number of opinions, relevantly:

From the history I obtained, [the appellant's] mental state deteriorated around 2008 and there was a further gradual deterioration as his use of amphetamines escalated. At the time of the offence he was using amphetamines daily and his thinking had a delusional content with the presence of paranoid persecutory ideation that included the abnormal belief that he was being monitored by cameras that had been planted within his house.

[The appellant] described developing significant depressive symptoms in the context of deterioration in his relationship with his partner and increasing stress related to work. It is likely that this depression and stress contributed to [the appellant] returning to substance abuse, in part, as an attempt at self-medication. However, in turn, the substance abuse was associated with a further deterioration in [the appellant's] mental state, and his level of function, to the point that he was unable to work.

... [The appellant's] personality is relatively intact although I did note the presence of antisocial and borderline personality traits. He has been able to demonstrate stability in significant areas of his life such as his employment and his most recent relationship.

The final point to make is that, in my opinion, [the appellant's] impaired mental state which included the presence of a depressive syndrome, probable psychotic symptoms related to substance abuse, and substance abuse/dependence, contributed to his actions at the time of the offence such mechanisms as impairment in judgement and further comprising [sic] his impulse control.

In summary, and using a DSM-IV diagnostic framework, the presentation on Axis One (clinical disorders), is in keeping with a history of substance abuse/dependence, a significant depressive syndrome and psychotic symptoms related to the substance abuse. His mental state at the time of my interview was relatively stable. On Axis Two (personality disorders and mental retardation), I note the presence of borderline and antisocial personality traits. On Axis Three (or physical conditions), I was unable to identify the presence of a significant physical illness. On Axis Four (psychosocial and environmental problems), I note the presence of marked instability in childhood, including domestic violence and physical abuse, stress related to the deterioration in his relationship and work pressure, and, now, significant stress stemming from the offence. On Axis Five (Global Assessment of Functioning), [the appellant] would currently attract a GAF scale score of 70 with 'some mild symptoms'. At the time of the offence it is likely that his mental state was such that he would have attracted a GAF scale score of 50 to 40 with 'serious symptoms' to 'impairment ... in areas such as judgement, thinking, or mood' (7). (original emphasis)

27 Dr Febbo noted that the appellant had 'significant risk factors in relation to violence'. He said the appellant was at 'moderate risk of reoffending' and it was important that his 'substance abuse/dependence and other mental health issues' be addressed.

28 Counsel for the appellant expressly relied on the following specific passages in Dr Febbo's report:

(a) [The appellant's] 'impaired mental state which included the presence of a depressive syndrome, probable psychotic symptoms related to substance abuse, and substance abuse/dependence, contributed to his actions at the time of the offence such mechanisms as impairment in judgement and further comprising (sic) his impulse control (7)'. (emphasis added)

(b) ... 'it is likely that [the appellant's] mental state was such that he would have attracted a GAF scale score of 50 to 40 with "serious symptoms" to "impairment ... in areas such as judgement, thinking, or mood"' (7).

29 Counsel complained that the sentencing judge failed to mention these opinions of Dr Febbo in her sentencing remarks, notwithstanding that Dr Febbo's report was not challenged by the prosecutor at the sentencing hearing and notwithstanding that the opinions were a relevant consideration that her Honour was bound to take into account.

30 Counsel acknowledged, however, that defence counsel did not make express reference in his plea in mitigation to the specific passages in Dr Febbo's report which are now expressly relied on.

31 According to counsel, it is apparent from Dr Febbo's report that:

(a) the appellant was suffering from a 'depressive syndrome' at the time of the offence;

(b) this depressive syndrome was unrelated to the appellant's consumption of illicit drugs in that Dr Febbo's opinion as to the existence of the syndrome was formulated on the basis of the appellant's assertions that he had experienced significant depression for a number of years and that the depressive symptoms had fluctuated in severity over the years; and

(c) the depression and stress, which developed in the context of a deterioration in the appellant's relationship with his partner, as well as stress from work-related issues, contributed to his return to substance abuse.

32 Counsel for the appellant submitted that, in these circumstances, her Honour was bound to take into account the appellant's mental functioning as a matter which reduced his moral blameworthiness or culpability for the offending behaviour.

33 It was submitted that the sentencing judge's failure to take into account a relevant consideration, namely the aspects of Dr Febbo's report expressly relied on by counsel for the appellant, constituted a material sentencing error. It was also submitted that a different sentence should have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

Ground 1: an offender's mental illness or psychological difficulties: applicable legal principles

34 It is well-established that where an offender's mental illness or psychological difficulties have been self-induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is not generally to be regarded as mitigating the offence. In these circumstances, the offender is generally to be regarded as morally responsible for his or her condition. See R v Wright (1997) 93 A Crim R 48; R v Martin [2007] VSCA 291; Damiani v The State of Western Australia [2006] WASCA 47 [41] - [42]; Butler v The State of Western Australia [2010] WASCA 104 [8].

35 It is also well-established that where an offender's mental illness or psychological difficulties have not been self-induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is a relevant factor in the sentencing process.

36 The effect of mental illness or psychological difficulties (falling short of insanity) on the kind or length of sentence to be imposed has been considered by the Court of Criminal Appeal and this court on several occasions. See, for example, Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442; Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; Krijestorac v The State of Western Australia [2010] WASCA 35.

37 The effect of mental illness or psychological difficulties (falling short of insanity) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. See R v Verdins [2007] VSCA 102; (2007) 16 VR 269 [25]; Wheeler v The Queen [No 2] [2010] WASCA 105 [9]. An offender who seeks to rely on mental illness or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour. See Wheeler [No 2] [10]; Smith v The State of Western Australia [2010] WASCA 176 [72]; Phillips v The State of Western Australia [2011] WASCA 69 [48].

38 In Verdins, the Court of Appeal of Victoria referred to the principles enunciated in R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 in relation to the sentencing of an offender with temporary or permanent impaired mental functioning. The court in Verdins (Maxwell P, Buchanan & Vincent JJA) reformulated the principles in Tsiaras (which had been applied in a number of Australian jurisdictions), as follows:

Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both (see, for example, Payne at [43]).
The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment [32].

See also Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1 [10]; Krijestorac [18] - [19].

39 In R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, Wood CJ at CL explained the rationale for the sentencing principle that if an offender suffers from a mental disorder or abnormality (that has not been self-induced), general deterrence should ordinarily be given relatively less weight:

The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice [254].

See also Wright, 50 - 51 (Hunt CJ at CL, Gleeson CJ agreeing generally & Hidden J agreeing); Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 [62] (RA Hulme J, Macfarlan JA & Johnson J agreeing).

40 In Leach, Basten JA pointed out that although mental impairment will often tend to diminish moral blameworthiness or culpability and, in consequence, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects. His Honour referred to the observation of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 that 'the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or the need to protect the public' (71). See also Wheeler [No 2], where McLure P said, citing Engert (71), that a sentencing consideration may be relevant in more than one respect and not affect the outcome because it weighs both positively and negatively in the balance [7].

41 Ultimately, however, in the application of these principles, 'it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise': R v Letteri (Unreported, NSWCCA, 18 March 1993) page 14, adopted and emphasised by Gleeson CJ in Engert (71).

Ground 1: failure by a sentencing judge to take into account a relevant consideration: applicable legal principles

42 A failure by a sentencing judge expressly to refer to all relevant factors in sentencing remarks does not necessarily establish a failure to consider those factors. See Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 [27] (Steytler P & McLure JA); Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998). It is difficult to make out that a sentencing judge has failed to take into account a relevant consideration. See McKey v The State of Western Australia [2010] WASCA 210 [5] (McLure P, Buss JA & Mazza J agreeing); TXT v The State of Western Australia [2012] WASCA 28 [16] (Buss JA, Mazza JA agreeing).

43 In the present case, the sentencing judge mentioned, in her sentencing remarks, the appellant's use of illicit drugs:

You have a long history of illicit drug use. However, your use of methylamphetamine which led to your involvement with Mr Perrin escalated about three years ago when you were having domestic and business problems. At the time of the commission of the offence you were using methylamphetamine daily and selling it to support your own habit and lifestyle. Not surprisingly, your use made you suspicious, paranoid and aggressive. Whilst that suspicion, paranoia and aggression helps to explain your offending, it does not make it less serious [26].

44 Her Honour referred to Dr Febbo's report and a pre-sentence report prepared in relation to the appellant:

I have received a pre-sentence report and a psychiatric report. I have taken their contents into account. In particular, I note that the author of the psychiatric report states that your drug use is partially explained by depression and stress around 2008. Drug use was an attempt by you to self-medicate, but of course all it did was to make your situation worse and contribute to the breakdown of your marriage and business.

You still have significant risk factors for future violence. You have a moderate risk of reoffending and it is important that you address substance use and mental health issues in order for you to reduce that risk [28] - [29]. (emphasis added)

45 The sentencing judge's comments about the appellant having 'significant risk factors for future violence' and a 'moderate risk of reoffending', and her statement that it was important that the appellant 'address substance use and mental health issues', reproduce opinions expressed by Dr Febbo in his report [29].

46 I am not persuaded that her Honour failed to take into account the specific passages in Dr Febbo's report which are now relied on by the appellant. Indeed, on a fair reading of her Honour's sentencing remarks, she did take into account the appellant's history of depression (as noted in Dr Febbo's report), including the depression and stress which developed in about 2008. In any event, as I will explain when dealing with ground 2, a different sentence should not have been imposed.

48 Counsel for the appellant accepted that the appellant's offending was very serious.

49 Counsel submitted that there were very few, if any, cases decided by the Court of Criminal Appeal or this court that were comparable to the facts and circumstances of the appellant's offending.

50 Counsel placed some emphasis on the appellant's personal circumstances. In particular:

(a) The appellant had a relatively unstable upbringing but he was now supported by his family.

(b) The appellant was married with two young children, although he had separated from his wife at the time of sentencing.

(c) In 2002, the appellant established a successful bricklaying business, but the business collapsed in 2010 in the context of the appellant's illicit drug use.

(d) The appellant had a prior criminal record (described by her Honour as 'not insignificant'), including prior convictions for offences of violence. The appellant had been imprisoned on at least three previous occasions. However, he had not been convicted of a serious offence since his release on parole in June 2002.

(e) Numerous character references submitted to her Honour spoke well of the appellant. Her Honour remarked, 'They speak of the good man you can be when you are not using drugs' [30].

51 Counsel also referred to the appellant's very late offer to plead guilty to manslaughter.

52 In summary, although acknowledging the very serious character of the appellant's offending and the presence of very few mitigatory factors, counsel for the appellant contended that the sentence of 12 years' immediate imprisonment was unreasonable or plainly unjust.

53 At the material time, the maximum penalty for the offence of manslaughter was 20 years' imprisonment. Since the commencement of the Manslaughter Legislation Amendment Act 2011 (WA) on 17 March 2012, the maximum penalty has been life imprisonment. The applicable maximum for present purposes is, of course, 20 years.

54 There is no sentencing tariff for manslaughter because of the great variation that is possible in the circumstances of the offending and the offenders. Each case must be decided on its own facts. See Wicks v The Queen (1989) 3 WAR 372, 379 - 380 (Malcolm CJ); Colledge v The State of Western Australia [2007] WASCA 211 [17] (Wheeler JA, Owen and Miller JJA agreeing).

55 The great variation in these circumstances explains the difficulty in discerning sentencing patterns for manslaughter. As Wheeler JA noted in Colledge:

A person convicted of manslaughter may have had an intent to kill or do grievous bodily harm, but have formed it in circumstances where there was provocation; or may be acting in self-defence, although excessively; may have been so affected by substances of one kind or another as to be incapable of forming any clear intention; may suffer from a mental illness falling short of insanity; or may have been culpably negligent in the management of either a motor vehicle or some other thing. That list is by no means exhaustive, but one can see why there is much variation in sentencing. The University of Western Australia Crime Research Centre Report (UWA Crime Research Centre, Crime and Justice Statistics for Western Australia (2004) table X, p 73) demonstrates that, between 1996 and 2004, there was considerable variation in the median sentence for manslaughter; in 1998, it was as low as 4 years, while, in 1997, it was 8 years [18].

56 Sentences for manslaughter should, however, reflect the value which the Parliament has placed upon human life. See The State of Western Australia v Walley [2008] WASCA 12 [32] (Wheeler and Miller JJA).

57 In The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, the majority (Wheeler & Pullin JJA, Owen JA agreeing) said, in summary, that the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), which repealed cl 2 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), had the following effects:

(1) In cases falling within the 'worst category' it enables the imposition of the statutory maximum penalty, or something approaching it. Whether, in any particular 'worst category' case, a sentencing judge will be required to impose a penalty at or near the statutory maximum will depend not upon the Amendment Act, but upon established sentencing principle.

(2) In cases not falling within the worst category, and where there is an established range of sentences capable of affording comparison, it requires a sentencing judge to have regard to the minimum terms which would have been required to have been served under that range of sentences, and to tailor the sentence to be imposed so as to avoid unjustifiable disparity in respect of the minimum custodial period.

(3) It facilitates the development of sentencing ranges which change over time, by reason of factors such as prevalence or other relevant matters.

(4) Where new offences are created, it makes it clear that the court is not to discount sentences imposed in respect of those offences by one-third.

This list may not be exhaustive, but it is sufficient for the purposes of the present case [43]. (original emphasis)

58 In the present case, despite the very serious nature of the appellant's offending, the sentencing judge did not hold that the offence was in the 'worst category' for the purposes of the majority's decision in BLM [42] - [43]. Her Honour was, nevertheless, of the opinion (with which I agree) that the offence was 'towards the top of the range of seriousness of manslaughter cases' [36].

59 I have had regard to the cases cited by counsel for the appellant and counsel for the State, including Macaree v The State of Western Australia [2011] WASCA 207.

60 Although the appellant's offending was not in the 'worst category', in recent years sentences imposed for the offence of manslaughter (with the maximum penalty of 20 years' imprisonment) have, in general, tended to increase. See The State of Western Australia v Munda [2012] WASCA 164; Hishmeh v The State of Western Australia [2012] WASCA 183.

61 None of the cases cited by counsel in the present case is truly comparable to the appellant's offending.

62 In my opinion, it is apparent, on a fair reading of Dr Febbo's report, that Dr Febbo was of the opinion that:

(a) When the offending occurred the appellant was suffering from a depressive syndrome, he was abusing and dependent on illicit drugs (in particular, methylamphetamine) and he probably had psychotic symptoms arising from his abuse of illicit drugs (in particular, methylamphetamine).

(b) The depressive syndrome refers to Dr Febbo's acceptance and classification of the appellant's historical account that he had experienced significant depression for a number of years, the depressive symptoms had fluctuated in severity over the years and that in about 2008 he developed significant depressive symptoms in the context of the deterioration of his relationship with his partner and increasing stress related to his work.

(c) This depressive syndrome was unrelated to the appellant's consumption of illicit drugs (in particular, methylamphetamine).

(d) In about 2008, the appellant began to abuse illicit drugs (in particular, methylamphetamine) significantly. This abuse was, in part, the appellant's response to his depression and stress at that time and was, in part, an attempt by him to self-medicate.

(e) The appellant's abuse of illicit drugs (in particular, methylamphetamine) after about 2008 was responsible for an accelerating deterioration in his mental state and level of function, including the emergence of probable psychotic symptoms, an impairment of his judgment and the compromise of his impulse control.

(f) Although the appellant's personality is relatively intact, he does have antisocial and borderline personality traits.

(g) At the time of the offending it is likely that the appellant's mental state would have attracted a GAF scale score of 50 to 40, with serious impairment in his judgment, thinking and mood.

63 Her Honour's sentencing remarks reveal that she was of the view that the appellant's offending was driven by suspicion, paranoia and aggression and that these features of his mental functioning were attributable to his abuse of methylamphetamine [26].

64 In my opinion, the appellant has not proved on the balance of probabilities that his depressive syndrome was a factor which reduced his moral blameworthiness or culpability for the offending behaviour. As the sentencing judge found, the appellant's offending was driven by suspicion, paranoia and aggression and these features of his mental functioning were attributable to his abuse of methylamphetamine. Nothing in Dr Febbo's report or any other material before her Honour indicates that the appellant's depressive syndrome contributed to his offending. It is true that, according to Dr Febbo, the appellant's abuse of illicit drugs was, in part, his response to the depression and stress he experienced in about 2008 and was, in part, an attempt by him to self-medicate. However, the appellant is morally responsible for these choices. He decided to ingest methylamphetamine instead of seeking medical assistance for his personal problems. To the extent that the appellant's criminality was attributable to mental illness or psychological difficulties, the illness or difficulties in question were self-induced by the ingestion of illicit drugs. This circumstance is not mitigatory.

65 The appellant's depressive syndrome was a matter to be taken into account in the sentencing process. As I have explained in dealing with ground 1, the sentencing judge did take it into account. In the circumstances, it was a matter to which little weight could be given. It was overwhelmed by the objective seriousness of the offending and the impact of compulsive methylamphetamine use on the appellant's psyche.

66 In my opinion, the sentence of 12 years' imprisonment was commensurate with the seriousness of the offence. The sentence was not unreasonable or plainly unjust, after proper account is taken of the maximum penalty (20 years' imprisonment), the circumstances of the commission of the offence (including the vulnerability in the circumstances of Mr Perrin), the aggravating factors and the mitigating factors.

67 The facts and circumstances of the offending, as set out at [10] above, demonstrate the objective seriousness of the offending.

68 The appellant had significant risk factors for future violence and was at a moderate risk of reoffending. He had abused illicit drugs for a long time and, when he killed Mr Perrin, he was selling drugs to support his habit.

69 The appellant was not a person of good character. He had prior convictions for offences of violence and he had been imprisoned on at least three previous occasions. However, to his credit, he had not been convicted of a serious offence since 2002.

70 He was not a youthful offender for sentencing purposes.

71 There were few mitigating features. The appellant entered a plea of guilty to manslaughter, but it was a very late plea and, as her Honour found, was a strategic decision by the appellant to avoid the risk of a conviction for murder. Any remorse was very belated.

72 The primary sentencing considerations were appropriate punishment and personal and general deterrence. Although the sentence of 12 years' imprisonment was high, it did not exceed the limits of a sound exercise of the sentencing discretion. The sentence was not manifestly excessive.

74 I would refuse leave to appeal on ground 1. The appeal should be dismissed.

75 MAZZA JA: This is an appeal against sentence. The appellant was charged with the murder of Mario Perrin. The appellant pleaded not guilty to this charge. He was tried before Jenkins J and a jury. His defence was conducted on the basis that someone else had killed Mr Perrin. However, on the eighth day of the trial, during the cross-examination of the State's last witness, the appellant pleaded guilty to the crime of manslaughter. The decision to plead guilty was a strategic decision made to avoid the risk of a conviction for murder.

76 On 9 January 2012, the appellant was sentenced to 12 years' imprisonment with eligibility for parole. At the time, the maximum penalty for manslaughter was 20 years' imprisonment. It is now life imprisonment: Manslaughter Legislation Amendment Act 2011 (WA).

77 There are two grounds of appeal. Ground 1 alleges an express error. It claims that her Honour failed to take into account 'the appellant's impaired mental state' at the time of the offence. The question of leave to appeal in respect of this ground has been referred to the hearing of the appeal. Ground 2 alleges an implied error. It claims that the sentence was manifestly excessive. Leave to appeal has been granted on this ground.

78 The facts of the offence are not in dispute. Mr Perrin owed the appellant $700 for drugs. Although Mr Perrin had not disputed that he owed the money, the appellant encountered some difficulties collecting the debt. On the date of the offence, 23 October 2010, a series of text messages were exchanged between the appellant and Mr Perrin. The appellant asked Mr Perrin to leave the money in the fuse box of his (Mr Perrin's) house. However, Mr Perrin demanded that the appellant come to the house and face him. Mr Perrin was angry with the appellant

because he believed that the appellant had broken into his house some days earlier. The appellant agreed to go to Mr Perrin's house.

79 At about 2.20 pm, in company with a man named Chad James, the appellant arrived at Mr Perrin's home. At that time, Mr Perrin and three other adult males were present in the home. The appellant was aware of Mr Perrin's presence but not of the other three men. The appellant approached the home carrying an unlicensed and loaded .22 calibre semi-automatic sawn-off rifle with the safety catch disengaged. The appellant went to the front security screen door where he exchanged verbal insults with Mr Perrin. That exchange was brief. It ceased when the appellant fired one round at the security screen door towards the interior of the house. The bullet went through the security screen door and hit the far wall in the lounge room.

80 Without Mr Perrin's consent, the appellant then entered the home and, while in the vicinity of the front doorway, fired a second round into the house. This bullet travelled through the window of the meals area and struck the brickwork of the house next door. Mr Perrin ran from the meals area up a hallway and into the front bedroom of the house. The appellant saw this. He entered the meals area and fired a third round up the hallway. The bullet struck Mr Perrin to the right side of the head as he emerged from the bedroom, inflicting a fatal injury. Although none of the shots fired by the appellant were deliberately aimed at the deceased, the fatal shot was taken in circumstances in which Mr Perrin's emergence from the bedroom was readily predictable.

81 The appellant left the house immediately after shooting Mr Perrin, without rendering or attempting to render any assistance. On 26 October 2010, he handed himself into police. The appellant declined to participate in an interview with the police or make any comment in relation to the matter. He refused to identify Mr James or disclose the location of the firearm.

82 Her Honour found that, while the appellant did not initially plan to use the rifle at Mr Perrin's house, by the time he arrived at the house the plan had changed. Her Honour was satisfied that the appellant was angry when he arrived and was prepared to offer personal violence to Mr Perrin.

83 At the time he was sentenced, the appellant was 33 years of age. It was accepted that he had come from a disadvantaged background (AB 46).

84 The appellant had what the learned sentencing judge called a 'not insignificant prior criminal record', including offences of assault occasioning bodily harm, unlawful wounding, burglary and various traffic and dishonesty offences. According to his counsel, some of the offending was drug related. However, leaving aside two minor traffic matters, the appellant had no convictions between his release from prison on parole in June 2002 and Mr Perrin's death (AB 44).

85 Between 2002 and 2010, the appellant was self-employed as a bricklayer. That business met with some success.

86 The appellant has a long-standing history of drug abuse, beginning as a teenager. In approximately 2008, the appellant experienced domestic and business problems which caused his use of illicit substances, and in particular methylamphetamine, to escalate. In early 2010, the appellant's business collapsed in the context of his increasing drug use (AB 43 - 44).

87 Her Honour found that at the time of the commission of the offence, the appellant was using methylamphetamine on a daily basis and selling it to support his habit and lifestyle. The appellant's use of this drug had made him suspicious, paranoid and aggressive (AB 43 - 44).

88 References tendered to the learned sentencing judge showed that the appellant had the support of friends and family members.

89 At the request of his solicitors, the appellant was examined by Dr S D Febbo, a consultant psychiatrist, who provided a report dated 3 January 2012. This report was submitted to her Honour in the course of the sentencing proceedings (AB 52).

90 The appellant reported experiencing 'significant depression for a number of years' and what Dr Febbo described as 'a scatter of depressive symptoms fluctuating in severity for a number of years' (Dr Febbo report, p 4). The appellant told Dr Febbo that he began using amphetamines at the age of 16 or 17 and later started to use cocaine (Dr Febbo report, p 5). He told Dr Febbo that after his release from prison he did not use drugs until around 2007, when the appellant's mental state worsened in the context of increased work-related stress and the deterioration of his relationship with his partner (Dr Febbo report, p 3). In Dr Febbo's opinion, the depression and stress caused by these events 'contributed to [the appellant] returning to substance abuse, in part, as an attempt at self-medication' (Dr Febbo report, p 7).

91 At the time of the offence, Dr Febbo noted that the appellant was using amphetamines daily and that 'his thinking had a delusional content with the presence of paranoid persecutory ideation' (Dr Febbo report, p 7).

92 In Dr Febbo's opinion, the appellant had a genetic vulnerability towards the development of both significant depression and substance abuse. He went on to say that:

[I]n my opinion, [the appellant's] impaired mental state which included the presence of a depressive syndrome, probable psychotic symptoms related to substance abuse, and substance abuse/dependence, contributed to his actions at the time of the offence such mechanisms as impairment in judgment and further comprising [sic: compromising] his impulse control (Dr Febbo report, p 7).

93 Although Dr Febbo noted that the appellant had developed insight into the factors relating to his offending and that he expressed remorse for his actions, he was of the opinion that the appellant posed a moderate risk of reoffending (Dr Febbo report, p 8).

94 There are some difficulties with Dr Febbo's report which I will articulate in the context of ground 2.

General principles applicable to this appeal

95 The general principles upon which this appeal is to be decided were correctly expressed by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. Those principles are well known and do not need to be repeated.

Ground 1 - Did her Honour fail to take into account the appellant's mental impairment?

96 Mr Vandongen, on behalf of the appellant, submitted that her Honour failed to take into account Dr Febbo's unchallenged opinion that the appellant's impaired mental state at the time of his offending was, in part, caused by a depressive syndrome. It was submitted that the presence of this syndrome lowered the appellant's moral culpability. Mr Vandongen contended that this factor was plainly relevant to the sentence to be imposed because had it been taken into account a lower sentence would have been imposed.

97 The legal principles concerning the effect of an offender's mental impairment in sentencing have been comprehensively examined in this court in a number of recent cases including Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; Krijestorac v The State of Western Australia [2010] WASCA 35; and Wheeler v The Queen [No 2] [2010] WASCA 105.

98 Generally speaking, impaired mental functioning which is causally related to the appellant's offending may reduce the appellant's moral culpability. The effect of mental impairment on culpability depends upon the nature, effect and severity of the condition and its symptoms: Wheeler No [2] [9]. The greater the contribution of the mental impairment, the more moral culpability will be lessened: Thompson [53]. But where mental impairment is self-induced, an offender's condition is not generally to be regarded as mitigating: Phillips v The State of Western Australia [2011] WASCA 69 [46]. An offender who seeks to rely on mental impairment as a factor which reduces his or her moral blameworthiness or culpability must prove, on the balance of probabilities, that the condition impaired his or her mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour. See Wheeler [No 2] [10]; Phillips [48].

99 The ground of appeal cannot succeed for two reasons.

100 First, the appellant was represented at trial and during the sentencing proceedings by highly experienced senior counsel (not his counsel on appeal). In his plea in mitigation, senior counsel submitted that at the time of the shooting the appellant's mental state was adversely affected as a result of his addiction to methylamphetamine. This was said not in mitigation, but by way of explanation. Senior counsel did not submit to her Honour that the mental impairment suffered by the appellant was due, in part or in whole, to a depressive syndrome that reduced his moral culpability. In other words, the appellant did not seek to discharge the onus which was cast upon him to prove, on the balance of probabilities, that mental impairment reduced his culpability. Insofar as senior counsel sought to rely on Dr Febbo's report, he did not do so for this purpose. If the matter is not put into issue by the appellant, he cannot now justifiably complain that her Honour erred by failing to take it into account.

101 Second, and in any event, contrary to the appellant's contention, her Honour did take into account Dr Febbo's opinion as to the appellant's mental state. She said:

You have a long history of illicit drug use. However, your use of methylamphetamine which led to your involvement with Mr Perrin escalated about three years ago when you were having domestic and business problems. At the time of the commission of the offence you were using methylamphetamine daily and selling it to support your own habit and lifestyle. Not surprisingly, your use made you suspicious, paranoid and aggressive. Whilst that suspicion, paranoia and aggression helps to explain your offending, it does not make it less serious.

You say that you are now committed to remain drug-free. As Mr Lovitt has said, you need to take advantage of courses available to you in custody which will assist you to remain drug-free once you are released into the community.

I have received a pre-sentence report and a psychiatric report. I have taken their contents into account. In particular, I note that the author of the psychiatric report states that your drug use is partially explained by depression and stress around 2008. Drug use was an attempt by you to self-medicate, but of course all it did was to make your situation worse and contribute to the breakdown of your marriage and business (AB 43 - 44). (emphasis added)

102 The paragraph I have emphasised makes express reference to the psychiatric report and its contents. It is clear that her Honour was aware of the link between the appellant's depression (and stress) and his drug use. She could reasonably be taken to be further aware of the appellant's history of depression. She was plainly aware of the connection between the appellant's drug use and the commission of the offence.

103 I infer from the sentence imposed that her Honour accorded little weight to the appellant's mental impairment. The weight to be given to this factor was a matter for her Honour. However, as I will explain in the context of ground 2, in my view her Honour's position was entirely justified.

104 In my opinion, there is no merit in ground 1. I would not give leave in respect of it.

Ground 2 - Was the sentence manifestly excessive?

105 Mr Vandongen accepted that the circumstances of the offending were objectively extremely serious. He further accepted that the plea of guilty was very late and that the appellant's personal circumstances could not afford any great weight (appeal ts 2, 3). However, Mr Vandongen observed that the sentence imposed upon the appellant was the longest sentence for manslaughter to come to this court (appeal ts 2). As serious as the offending was, Mr Vandongen submitted the appellant did not deliberately inflict personal violence upon Mr Perrin.

106 In determining whether a sentence is manifestly excessive it is necessary to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to 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 of the offender.

107 I have already observed that the maximum penalty for the offence of manslaughter was, at the time of the offence, 20 years' imprisonment.

108 During the course of oral argument, the effect of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) (the Amendment Act) was raised, having regard to the fact that, as bad as the offence was, it did not fall within the worst category of cases.

109 In The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, Wheeler and Pullin JJA, with whom Owen JA agreed, summarised the effects of the Act in the following series of propositions:

(1) In cases falling within the "worst category" it enables the imposition of the statutory maximum penalty, or something approaching it. Whether, in any particular "worst category" case, a sentencing judge will be required to impose a penalty at or near the statutory maximum will depend not upon the Amendment Act, but upon established sentencing principle.

(2) In cases not falling within the worst category, and where there is an established range of sentences capable of affording comparison, it requires a sentencing judge to have regard to the minimum terms which would have been required to have been served under that range of sentences, and to tailor the sentence to be imposed so as to avoid unjustifiable disparity in respect of the minimum custodial period.

(3) It facilitates the development of sentencing ranges which change over time, by reason of factors such as prevalence or other relevant matters.

(4) Where new offences are created, it makes it clear that the court is not to discount sentences imposed in respect of those offences by one-third.

This list may not be exhaustive, but it is sufficient for the purposes of the present case [43].

110 In the context of manslaughter cases with a 20-year maximum not in the worst category of cases, the effect of the Amendment Act was described by Martin CJ in Hishmeh v The State of Western Australia [2012] WASCA 183:

Bessell v The Queen

At a glance

Court

Decision date

Before

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Judgment (214 paragraphs)

McNAMARA -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 63 (7 March 2013)

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Legislation Cited (4)

Cases Cited (7)