Court of Appeal (WA)|2015-09-02|Before: Mazza JA, Hall J, Lure P

ZWERUS -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 174 (2 September 2015)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ZWERUS -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 174

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Murder - Application for leave to appeal against sentence - Life imprisonment with a non-parole period of 18 years - Manifest excess

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

Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358

Egitmen v The State of Western Australia [2014] WASCA 198

McNamara v The State of Western Australia [2013] WASCA 63

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

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

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

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

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

3 On 30 January 2015, being the last working day before the scheduled commencement of his trial on 2 February 2015, the appellant pleaded guilty to the murder of Ilario (Larry) Maiolo (the deceased) contrary to s 279 of the Criminal Code (WA). On 6 February 2015, Hall J sentenced the appellant to life imprisonment with a minimum non-parole period of 18 years, backdated to commence on 14 May 2013. The sole proposed ground of appeal alleges that this non-parole period is manifestly excessive.

4 The appellant had been on a methylamphetamine and cannabis binge, which involved him smoking both illicit drugs daily for at least two weeks leading up to the offence. During this period, he was observed as delusional, paranoid and behaving in an increasingly bizarre manner. On the day before the offence, he appeared to be hallucinating.

5 On the morning of 13 May 2013, the appellant was in a state of drug-induced psychosis. In that state, he formed the belief that he had to kill a man who was at the beach. The appellant went to the beach at Halls Head, armed with a knife, with the intention of carrying out that belief.

6 Shortly after 8.00 am, the appellant came across the deceased as he was walking on a path between the beach and the carpark. The two men were strangers. According to what the appellant later said to a psychiatrist, the behaviour of the appellant's dog caused him to believe that the deceased was the man he had to kill. The appellant then attacked him with a knife using very considerable force. He inflicted multiple stab wounds to the deceased's head, neck back and left shoulder, and fractured his jaw. Wounds on the deceased's hands suggested that he attempted to defend himself. The deceased died soon afterwards as a result of the stab wounds. At some point after the attack, the appellant took the deceased's wallet.

7 After dragging the deceased's body into the sea, the appellant left the scene and made his way into the neighbourhood, followed by his dog. He entered a vacant lot where he left his dog and disposed of his bicycle. He then climbed over the fence onto a building site, where he jumped, fully clothed, into an algae-filled pool. The appellant went to a house where he took a shirt from a clothesline and concealed his bloodstained clothes and

the knife in a wheelbarrow. He then went next door and took a bicycle, which he subsequently abandoned a short distance away. At that house, the appellant took the cash from the deceased's wallet before disposing of it in a rubbish bin, together with a glove and the shirt he had taken earlier from the clothesline. He went into yet another house and hid his shoes in the cabinet of a barbecue. Eventually, the appellant obtained a lift from a woman who was unaware of what he had done. During the journey, he told the woman that he had seen a police car and slid onto the floor of the vehicle to avoid detection.

8 The following day, the appellant was arrested and taken to the Peel Health Campus. There, he was assessed by a psychiatrist who concluded that he was psychotic, most likely as a result of methylamphetamine intoxication.

9 The appellant was 33 years of age when he was sentenced. He has a close relationship with his mother. His father is deceased. After finishing school, the appellant started work in a sports shop. After about a year there, he commenced work as a roof tiler and completed three years of an apprenticeship in roof carpentry. He then worked as a process technician in the mines. He excelled in sports, playing at one stage with a WAFL team.

10 The appellant has an entrenched history of illicit drug abuse. He started using cannabis from the age of 15 and was using it regularly by the time he was 19. He started binge smoking methylamphetamine at 18. In January 2013, and in the months leading up to the offence, the appellant used methylamphetamine on a daily basis.

11 Between the ages of 21 and 28, the appellant was in a long-term relationship from which two children, a daughter and a son, were born. The relationship ended due to the appellant's drug use. In 2012, the appellant's former partner was killed in a car accident. As a result, the appellant gave up work and stayed home to care for his children with help from his mother and ex-partner's parents.

12 The appellant has a short but relevant criminal history. In 2005, he was convicted of common assault and fined. In 2007, he was convicted of two counts of assault occasioning bodily harm and one count of unlawful wounding for which he received a total effective sentence of 30 months' immediate imprisonment. The appellant also has convictions for possessing a controlled weapon, driving offences, stealing and breaches of bail and restraining orders.

13 The State tendered to the learned sentencing judge a booklet comprising the appellant's hospital and prison records from 14 May 2013 onwards. The defence tendered a booklet comprising expert reports from a consultant forensic psychiatrist, Dr Victoria Pascu, dated 1 December 2014, and from two experts of pharmacology and toxicology, Dr Jonathan Grasko, dated 2 January 2015, and Professor David Joyce, dated 19 January 2015.

14 From this material, his Honour drew the following conclusions, none of which have been challenged in this appeal:

(a) At the time of the offence, the appellant was suffering from drug-induced psychosis.

(b) The psychosis was a product of the appellant's voluntary and prolonged use of methylamphetamine and cannabis.

(d) The appellant had some awareness of the adverse effects that the illicit drugs were having upon him. Notwithstanding, he continued to use them.

(e) The appellant's decision to kill the deceased was a product of the psychosis. Nevertheless, he had some appreciation of what he was doing and the seriousness and wrongfulness of his actions. This was demonstrated by the appellant's attempt to conceal evidence of what he had done following the offence.

15 The learned sentencing judge expressed the view, also unchallenged in this appeal, that the appellant knew the serious adverse effects that illicit drugs were having upon him and his powers of judgment. However, despite attempts to stop, the appellant continued to use those illicit drugs. His Honour said that, in these circumstances, it was not open for the psychosis to be viewed as a mitigating factor.

16 His Honour made clear that the appellant's state of mind at the time of the offence was not irrelevant. His Honour observed that the appellant's intention to kill was formed in the context of delusional thinking. He noted the absence in this case of the aggravating factor of a rational, planned and calculated offence.

17 The learned sentencing judge took into account the appellant's late plea of guilty, and the indication given on the appellant's behalf at an early stage in the proceedings that the only issue in contest was his sanity. His Honour noted that the appellant's initial plea of not guilty reflected what appeared to be a reasonably arguable defence of insanity which later changed in the face of contrary expert reports.

18 His Honour accepted that the appellant was genuinely remorseful. Whilst in custody, the appellant had undertaken treatment for his drug-induced psychosis and exhibited a willingness to address his substance abuse problem. His Honour found that the appellant has good prospects of rehabilitation and that, if the appellant is able to successfully deal with his substance abuse issues, his risk of reoffending 'may well [be] ... low' (sentencing remarks ts 15).

19 The learned sentencing judge referred to the various victim impact statements tendered to him. These statements make clear that the appellant's actions have devastated the deceased's family.

20 In arriving at his sentence, his Honour described the appellant's attack as 'savage and brutal' (sentencing remarks ts 18). He continued:

It's the sort of offence that must raise the question of deterrence. The fact that you were under the influence of drugs is a factor to take into account. But frankly, the effect of drugs on people is known, and must have been known to you. The penalty I impose on you must act as a deterrent to anyone who thinks that if they commit serious offences while under the influence of drugs that that will not be seen as serious will be disabused of that idea (sentencing remarks ts 18-19).

21 The appellant seeks to impugn the length of his non-parole period. Such a period is determined by reference to what justice requires having regard to all of the circumstances of the case, and also by reference to all of the recognised sentencing objectives including punishment, retribution, protection of the public, personal and general deterrence and rehabilitation: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 629 and Mikhail v The State of Western Australia [2012] WASCA 200 [17] - [19].

22 This court cannot intervene unless the appellant demonstrates that a material express or implied error of fact or law has been made. Manifest excess is an allegation of implied error. For the proposed ground to succeed, the appellant must demonstrate that the non-parole period of 18 years was so unreasonable or plainly unjust that this court should infer that a substantial wrong has occurred.

23 In determining whether a minimum period was manifestly excessive, this court will examine it against the maximum sentence for the offence, any statutory minimum (or maximum) non-parole period, the standards of sentencing customarily imposed for offences of the type committed, the level of seriousness of the circumstances of the offending and matters personal to the offender: Rosewood v The State of Western Australia [2014] WASCA 21 [13].

24 The Criminal Law Amendment (Homicide) Act 2008 (WA) substantially amended homicide laws in this State and introduced a new sentencing regime for murder. Pursuant to s 90 of the Sentencing Act 1995 (WA), where, as in the present case, life imprisonment is imposed, a court must either set a minimum term or order that the offender never be released. The State did not submit that the appellant should never be released. Section 90(1)(a) provides that the minimum term must be at least 10 years. There is no upper limit.

25 This was a serious offence of its type. The deceased was entirely innocent, unsuspecting and without the means to defend himself. The attack was, as his Honour said, savage and brutal. It was randomly committed against a person who was enjoying an early morning walk along his local beach. It is truly a shocking offence. The learned sentencing judge correctly approached the issue of the appellant's mental state at the time of the offence. Counsel for the appellant did not contend otherwise. There were periods in the time leading up to the commission of the offence where the appellant realised he was behaving in a bizarre and psychotic fashion due to his ingestion of illicit drugs. Nevertheless, he continued to use them. The appellant's psychosis was self-induced. It is well-established in this State that, in these circumstances, psychosis had no mitigatory effect because the appellant is to be generally regarded as morally responsible for his or her condition: Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358 [41] - [42]; Butler v The State of Western Australia [2010] WASCA 104 [8]; Pedersen v The State of Western Australia [2010] WASCA 175 [50]; Phillips v The State of Western Australia [2011] WASCA 69 [46] and McNamara v The State of Western Australia [2013] WASCA 63 [34].

26 While it must be accepted that the offence occurred in the absence of the aggravating factor of 'cold, clear-eyed intention', it was nevertheless committed with an intention to kill.

27 The appellant's written submissions do not refer to comparable sentencing cases. In oral submissions, counsel for the appellant asserted that, in other jurisdictions in which the partial defence of diminished responsibility exists, sentences were lower. Of course, diminished responsibility is not part of the law of Western Australia. This court is better served by an examination of its own sentencing decisions in order to ascertain the range of sentences customarily imposed for the offence of murder.

28 Since the commencement of the Criminal Law Amendment (Homicide) Act, this court has decided a substantial number of sentencing cases with respect to minimum terms for murder. I listed those cases recently in Egitmen v The State of Western Australia [2014] WASCA 198 [48]. It is unnecessary for me to refer to the cases in detail. It suffices to say that each case must be decided on its own facts and circumstances, and the guidance afforded by the minimum terms imposed in comparable cases is for the purpose of ensuring broad consistency in sentencing having regard to all relevant sentencing variables. In my view, the minimum term imposed in this case is broadly consistent with outcomes in other cases.

29 Having regard to all of the circumstances, his Honour's imposition of an 18-year minimum term was neither unreasonable nor plainly unjust. It was well within a proper exercise of the sentencing discretion. The proposed ground of appeal has no reasonable prospect of succeeding.

Leave to appeal is refused.
The appeal is dismissed.

Law Amendment (Homicide) Act 2008

Butler v The State of Western Australia

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ZWERUS -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 174 (2 September 2015)

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