Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Appeal - Criminal law - Sentencing - Manslaughter - Upper range of seriousness - Manner of disposal of body - Plea of guilty - "Acceptance of responsibility"

1 OWEN JA: I agree with the reasons to be delivered by Wheeler JA and with her Honour's conclusion that the appeal should be dismissed. There is nothing I can usefully add.

2 WHEELER JA: The appellant was convicted of manslaughter, on his own plea of guilty, and sentenced to 10 years' imprisonment with an order for eligibility for parole. There are three live grounds of appeal. The first (ground 2) alleges that the learned sentencing judge made an error of law in sentencing the appellant on the basis that the aggravating features of his particular offence placed it "at the top end of the range of manslaughter cases". In particular, it is asserted that his Honour placed undue weight on the appellant's conduct after the act which caused the death of the deceased; namely, his failure to seek medical assistance for her, his failure to report her death and his treatment of her body. The second (ground 3) alleges that his Honour erred in failing to give a sufficient discount for the plea of guilty, having allowed only 1 year, or 6.25%. The third (ground 5) is that the sentence imposed was manifestly excessive, having regard to all the circumstances of the offence and the personal circumstances of the appellant.

3 Many of the circumstances of the offence are not known. The bare facts which are known are as follows. The appellant and the deceased, Ms Wilden, were known to each other. Ms Wilden had a problem with illicit drugs, including heroin and amphetamines. On the morning of 18 January 2005, she visited her drug counsellor. She had previously told friends that, after visiting the clinic, she would be staying with the appellant until she had repaid a debt of $200 which she owed him. On the evening of that day she, the appellant and others were drinking and socialising at the appellant's home. At some stage, the two of them retired to the appellant's bedroom and the door was closed. Indistinct noises were heard coming from the bedroom subsequently. At about 4 am there were also two loud thumps, but the person who heard those sounds did not investigate what had happened. On the following morning, the same person noticed the appellant's bed sheets hanging on a temporary clothesline.

4 Ms Wilden was never seen again. She was reported missing on 31 January 2005. At some time after she went missing, visitors coming to the appellant's home had noticed a bad smell coming from the back of the property and the appellant told them that this was due to a neighbour using blood and bone. On 8 February 2005, police came to the appellant's

house, inquiring about Ms Wilden. The appellant told them, untruthfully, that she had spent the night of 17 January on his couch and that he had last seen her when she went off to the health clinic the following morning. He added that he thought Ms Wilden was frightened of the police and would be hiding from them.

5 When police returned to the appellant's home on 10 February 2005 with a search warrant, they opened a rear shed. There was a strong odour present which the appellant said was the result of killing a pig. Inside the shed was a yellow van and a mattress which matched the bed base in the appellant's bedroom. The mattress and other bedding inside the van emitted a strong odour, and these items were covered with stains. A continuing search of the property revealed disturbed ground in an area between another shed and the side fence which was signposted for use as a male urinal. When police dug into this area, they found Ms Wilden's decomposed body, buried approximately one metre beneath the surface. It had been covered with lime powder.

6 A search of the house revealed a large Maglite torch with dark stains, which were later found to be Ms Wilden's blood. There were also in the appellant's room traces of her blood, which had been cleaned up, on the walls, ceiling and furnishings as well as on the mattress and bedding in the back shed. An expert in the interpretation of blood patterns concluded that the stains in the bedroom were consistent with a minimum of three applications of force to Ms Wilden. The "cast-off" patterns on the ceiling were consistent with having come from the Maglite torch. Because of the state of decomposition of Ms Wilden's body, it was not possible for the post-mortem examiner to determine the cause of death. However, there were no skeletal fractures.

7 The appellant was initially arrested and charged with wilful murder. I deal with the course of the plea later. In due course, the State accepted a plea of guilty to manslaughter on the basis that, notwithstanding the evidence that the appellant had inflicted violence on Ms Wilden, it was not possible to exclude other causes of death, including the ingestion of drugs, or epilepsy, from which she was known to suffer.

8 In the course of preparation of the pre-sentence report and psychological assessment, the appellant provided a version of the events surrounding Ms Wilden's death. Briefly, he asserted that, after the two of them had retired to bed, he found Ms Wilden searching for drugs that he had previously taken from her and that, when he was endeavouring to prevent her from finding drugs, she attacked him with an ornamental sword. He used the torch to defend himself, striking her. She sat on a corner of the bed. When he approached her, she again attempted to stab him, so he again hit her on the head in "self-defence". Although she was bleeding, he considered that she did not look very unwell, so they both went back to sleep. He described a course of events during the following day, which culminated in his returning home to find Ms Wilden dead on the floor. He said he then panicked, wrapped her body in a blanket, carried it to the van and left it there for about 20 days before deciding that the "right thing" to do would be to give her a burial. He then buried the body in the area where it was found.

9 Although the precise way in which Ms Wilden met her death could not be ascertained, the appellant's version of events was disputed by the State. The appellant declined to give evidence on oath, or to be cross-examined about that question. His Honour noted that it was clear that Ms Wilden was short, of slight stature, and intoxicated by drugs at the time at which she was killed. He noted that the appellant was six foot four inches tall and of "large stature". His Honour inferred that she was in no position to defend herself from an assault by the appellant. His Honour rejected entirely the appellant's version of events, which he considered to be inherently improbable. In particular, his Honour did not accept that it was necessary for the appellant to use the force which he did, in order to defend himself, nor that the blows to the head were accidental. He drew the inference from the forensic evidence that Ms Wilden was struck at least three times with a heavy Maglite torch and, in view of the lack of skeletal injuries, he also drew the inference that Ms Wilden was unlikely to have died immediately.

10 His Honour considered that a serious aggravating feature of the offence was the appellant's failure to seek any medical assistance for Ms Wilden or to take any steps to report her death. He considered that an "overwhelmingly aggravating" circumstance was the very callous and disrespectful treatment of the deceased once she had died, by storing her body in a van in the shed and by burying the body, covered in lime in order to hasten its decomposition, in an area used as a male toilet. I would add, although his Honour did not advert to it, that the appellant's initial excuse to police about the smell, which he said emanated from the killing of a pig, supports his Honour's observations about the callous and disrespectful treatment of the deceased. His Honour noted that it was the appellant's actions which had prevented a determination of the precise cause of death. Of course, it is always possible that the cause of death may not have been ascertainable in any event, but it seems reasonable to accept that it would have been an easier task for the forensic pathologist had the body not decomposed to the extent that it had.

11 His Honour then considered that the aggravating features placed the appellant's offence "at the top end of the range of manslaughter cases" and his Honour therefore considered that an appropriate starting-point under the old system of sentencing (that is, that applying prior to the one-third reduction required by the transitional provisions) would have been 16 years' imprisonment. I deal with the discount for the plea of guilty shortly.

12 In my view, the short answer to the appellant's complaint about his Honour's categorisation is that his Honour plainly did not mean that the appellant's offending was in the worst category of manslaughter. When his Honour used the expression "at the top end", he must have meant no more than that the offending was in the upper, rather than lower, range of seriousness of manslaughter offences. That is plain, in my view, since his Honour referred to a "starting-point" of 16 years' imprisonment. The maximum penalty for manslaughter is 20 years' imprisonment. That is the penalty which the legislature has indicated is appropriate to the very worst cases within the category of manslaughter cases. Had his Honour intended to say that the appellant's was such a case, he would, of course, have referred to 20 rather than 16 years.

13 If his Honour is understood as saying that this was a serious case of manslaughter, and in the upper rather than the lower range, he was, in my view, correct. It involved more than one application of force, and the use of a heavy object as a weapon, in a case where there was a significant disparity in size between the appellant and the deceased. In those circumstances, there is nothing to suggest that what was done was done in excessive self-defence. The appellant not having provided any plausible account of the events, there is nothing to suggest that there was anything by way of provocation. The killing was therefore entirely unexplained.

14 There was a failure to attempt to seek medical assistance, in circumstances where a prompt seeking of such assistance may have been of value. There was a lengthy and deliberate attempt at concealment of the death.

15 There was, as his Honour has noted, the callous and disrespectful treatment of the deceased's body, which can only have increased the impact of the offence upon her family and friends. In this case, the victim impact statement of the father and stepmother of the deceased makes specific reference to the effect upon them of the manner of disposal of her body.

16 Although the way in which the appellant treated the body of the deceased is something which, of course, followed the offence, his Honour was right to regard that conduct as part of the circumstances of the offence for the purpose of ascertaining its gravity. In Bell v The Queen [2003] WASCA 216, Murray ACJ, with whom Hasluck J agreed, endorsed (at [24]) the following observation of Brooking JA in Director of Public Prosecutions v England [1999] VSCA 95; [1999] 2 VR 258:

If conduct, notwithstanding that technically it follows the crime, is so connected with it as properly to be viewed as one of its circumstances, that conduct, if it aggravates the crime, must be placed in the scales. [At [37], dealing with the treatment of a body after a homicide.]

McKechnie J in Bell also had regard to the behaviour of the applicant in concealment of the death in that case (at [62]).

17 The appellant's counsel referred to a table of cases which, he suggested, demonstrated that the sentence in this case was higher than that which had been imposed in the past, even in serious manslaughter cases. Wicks v The Queen (1990) 3 WAR 372 is authority for the proposition that there is no tariff for sentences for manslaughter. In that case, however, a term of 15 years in relation to a killing which was "very high" in the scale of criminality was upheld. That case suggests that the sentence in the present case, while undoubtedly severe, is not beyond an appropriate range.

18 One of the reasons why it is difficult to discern patterns in manslaughter sentences, is that the offences themselves are so variable. 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. The use of a table of cases is of limited usefulness in such a context.

19 Against that background, it seems to me that the proper approach was that undertaken by his Honour. That is, having regard to the maximum penalty, it was necessary to consider what was known about the circumstances of the offence, to consider its aggravating features (to which his Honour referred), together with those features which rendered it less serious (none were known) and then to determine where on the scale of seriousness the offending fell. In my view, there has been no error identified in his Honour's categorisation, once it is understood that in saying that the offending was at the "top", his Honour meant that it was in the upper range of seriousness.

20 The chronology of the appellant's plea was as follows:

Fifth status conference. Trial listed to commence on 4 December 2006

The appellant makes a first offer to plead guilty to manslaughter. Discussions then take place between prosecution and defence counsel

Appellant's counsel advises that the appellant is still prepared to plead guilty to manslaughter, but has instructed him not to inform the State of his version of events or say anything more (therefore leaving the basis of the plea unexplained)

DPP applies to adjourn the trial. Application opposed by appellant. At that stage, certain DNA evidence was not available

Appellant renews his offer to plead guilty to manslaughter

The appellant entered a plea of guilty to manslaughter and was convicted

21 Although much was made by the appellant's counsel of the fact that his plea was entered even in the absence of a forensic report, the respondent submits, and the appellant does not dispute, that the appellant did have a copy of a preliminary report, so that what was lacking was the full report and conclusions.

22 It was in those circumstances that his Honour had to evaluate the "worth" of the plea of guilty which was plainly, as his Honour said, a late plea. In Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, the High Court, (Gaudron, Gummow and Callinan JJ at [11] - [15]), considered the way in which a plea of guilty should be evaluated. At [11], the court referred to the fact that a plea might indicate remorse, acceptance of responsibility, and a willingness to facilitate the course of justice. Those are three distinct concepts, although they overlap, and circumstances relevant to one may also be relevant to others.

23 So far as willingness to facilitate the course of justice is concerned, his Honour appears to have accepted that the plea indicated at least some willingness to facilitate the course of justice. It might be said that it did not indicate a significant degree of willingness, since the appellant had declined to assist either the State or his Honour in evaluating the circumstances of the offence, by giving a truthful indication of the basis upon which the plea was entered. However, his Honour plainly gave some credit for this aspect of the plea.

24 Next, it was submitted to us on behalf of the appellant that the plea indicated "acceptance of responsibility", in the sense that the entry of the plea indicated that the appellant had accepted that he had been responsible for causing the death of the deceased. In my view, that is not what the High Court meant by acceptance of responsibility. If the court had been intending to refer only to an acceptance of criminal responsibility, then that element would be present in every case in which a plea of guilty was entered, so that it would not be necessary to evaluate that aspect of the plea.

25 Rather, the court was referring, in my view, to a sense of personal responsibility. It is often the case that offenders are inclined to "externalise" responsibility for their actions. They blame substance abuse, or consumption of alcohol, or the actions of the victims of their offences, or some other compulsion under which they are operating, or the failure of parole or other authorities to provide them with adequate assistance. "Acceptance of responsibility" is intended, I think, to indicate that an offender has accepted that he or she is personally responsible for the offence committed.

26 It is plain, in my view, that the appellant did not accept responsibility in that sense. His explanation of the circumstances of the death, which his Honour rejected, in large measure attempted to blame Ms Wilden for the offence, suggesting that he had been acting under self-defence or provocation or even at some point attempting to assist her by denying her access to drugs. His account suggested that at least some aspect of the way in which he struck Ms Wilden was "accidental". Finally, he referred to some health issues, which he suggested led him to act in a confused way in endeavouring to conceal the death. Indeed, the psychological assessment refers to him as having " ... somewhat magnanimously stated 'I want to accept partial responsibility ... I don't want to wash my hands of the whole thing'", and as downplaying the extent of the injuries he had inflicted.

27 As I have already noted, his Honour rejected the appellant's account. It followed that he rejected the proposition that any of those factors was "responsible" for the death of the deceased. Finally, although his Honour did not refer to this matter, it is to be noted that there is a distinct similarity between the explanation given by the appellant in the present case, and the way in which he endeavoured to explain the circumstances of a previous offence in which he caused grievous bodily harm to a woman with whom he had at that time recently been in a relationship. In that case, he had, after an argument, followed the victim of the offence in his motor vehicle, and had struck her with the vehicle, causing some injuries. He had suggested that he had lost control of the vehicle so that the injuries were to a degree accidental, and had suggested that his health was "a major issue" at the time of the offence and had contributed to the event in some way (Colledge v The Queen [2001] WASCA 132; (2001) 33 MVR 262).

28 Finally, so far as remorse is concerned, the absence of remorse is indicated by the appellant continuing his pattern of deception by giving a false account of the way in which the deceased had died, thereby denying her friends and relatives even the limited comfort of knowing the truth. Further, the attitude which resulted in the disrespectful treatment of the body is demonstrated to have continued even after the entry of the plea. The pre-sentence report and psychological report confirm the appellant's apparent lack of regard for the deceased, and his focus upon his own position and his own interests.

29 Although the discount for the plea of guilty was, it is true, a very minimal one, in the particular circumstances of this offence, having regard to the way in which the appellant's plea of guilty came to be made, I am of the view that no error has been demonstrated.

30 Finally, so far as ground 5 is concerned, it will be apparent from what I have said earlier that I am not persuaded that the sentence was manifestly excessive in the light of the circumstances of this offence. Although the ground refers to the personal circumstances of the appellant, there is nothing remarkable in them. The appellant was 44 years of age, single and unemployed. He had a relatively short record of convictions, but it included offences of assault occasioning bodily harm in 1994, and the grievous bodily harm in 2000, to which I have already referred. He came from what was described as "an average middle class family". He had been fully employed until 1995, when he was incapacitated by a lower back injury. He had some health issues, but nothing at the time of the offence, or at the time of sentencing, of particular note.