Court of Appeal (WA)|1998-12-14|Before: Ms J, Ipp J, Kennedy J, Steytler J

The applicant was convicted on his own confession of one count of wilful murder, three counts of aggravated sexual penetration without consent, two counts of assault occasioning bodily harm, one count of attempted sexual penetration, three counts of burglary, two counts of disabling with intent to commit an indictable offence, two counts of deprivation of liberty, two counts of robbery, and one count of aggravated indecent assault.

The applicant was sentenced to strict security life imprisonment on the count of wilful murder. The learned sentencing Judge ordered him to serve at least 25 years of strict security life imprisonment before being eligible for release on parole. As regards the remaining offences, various terms of imprisonment were imposed, the total effect of these sentences being that in respect of all offences, save for that of wilful murder, the applicant was ordered to serve a finite term of 20 years imprisonment. By s88(5) of the Sentencing Act 1995 that aggregate finite term is to be served concurrently with the life term to which the applicant was sentenced.

The applicant seeks only to appeal against the non-parole period of the sentence of strict security life imprisonment imposed in respect of the charge of wilful murder. The applicant contends that the non-parole period of 25 years was "manifestly excessive". The grounds of appeal (which, in reality, are particulars of the latter contention) complain about four matters. Three involve what is said to be a failure on the part of the learned sentencing Judge to give adequate credit for the applicant's conduct in voluntarily going to the police and disclosing the offences he had committed, for his "fast track" plea of guilty pursuant to s101 of the Justices Act, and for the remorse he evinced. According to the fourth ground, the learned sentencing Judge erred in giving "too much consideration to victim impact statements"; in argument, this ground was expanded and questions of principle were raised in regard to the victim impact statements which are dealt with below.

The paramount factor influencing the sentence passed by the learned sentencing Judge in respect of the charge of wilful murder was the nature of the offence, which was truly appalling.

The victim of the wilful murder was Mrs Threnoworth, a 33 year old woman. She was happily married with two children, aged 9 and 5 years respectively. The applicant had observed Mrs Threnoworth on a number of occasions; after he had seen her "a couple of times" he made a decision that he was "going to rape her". When asked why he went to Mrs Threnoworth's home, he said "I went there to rape her".

At about 9.00 am on the day in question the applicant rang the front door bell of Mrs Threnoworth's home and when she opened the door he forced his way in. He grabbed her by her throat and bound her hands and her mouth with silver duct tape which he had purchased and brought with him for that very purpose. He forced her into the main bedroom and taped her hands to the head of the bed. He removed all her clothing except her jumper which he pulled over her head. He tied her feet to the base of the bed. He fondled her breasts and digitally penetrated her vagina. He then penetrated her vagina with his penis for about 10 minutes until he ejaculated.

At about this stage, the applicant appreciated that Mrs Threnoworth would be able to identify him and for that reason he decided to kill her. He went in to the ensuite bathroom and turned on the taps of the spa bath. He forced Mrs Threnoworth into the bathroom and made her sit on the edge of the bath. He removed his clothing and stepped into the bath. He forced Mrs Threnoworth's head into the corner wall of the spa and again penetrated her vagina with his penis until he ejaculated. When the spa bath was full the applicant put his hands around Mrs Threnoworth's neck and began strangling her. She struggled and the applicant struck her head a number of times against the tiled bathroom wall. This caused a large laceration to her forehead. He punched her in the chest region with his clenched fists in an effort to subdue her. Mrs Threnoworth continued to struggle but the applicant kept on strangling her and submerged her head under the water. He held her head down with his hands still around her neck. This continued until he was satisfied that Mrs Threnoworth was dead. Thereafter, the applicant cleaned up the house, wiped away blood and removed his fingerprints. He then left.

The learned sentencing Judge observed that "the facts relating to this murder make it the very worst of its sort". I entirely agree with this conclusion and in my view there is nothing more to be said on this issue. For that reason his Honour sentenced the applicant to strict security life imprisonment, and no complaint is made in regard to this.

At the relevant time s91(3) of the Sentencing Act provided that:

"A court that sentences an offender to strict security life imprisonment may, if it decides it is appropriate to do so, order that the offender is not to be paroled."

The learned sentencing Judge considered that such an order was not appropriate. That being so, s91(1) required his Honour to "set a minimum period of at least 20 and not more than 30 years the offender must serve before being eligible for release on parole". Despite the fact that his Honour regarded the wilful murder as the very worst of its sort, he fixed the non-parole period at 25 years.

His Honour declined to make an order under s91(3), and determined that the non-parole period should be 25 years, by reason of a number of mitigatory circumstances. The learned sentencing Judge had regard to the way in which the applicant suddenly, and of his own accord, ceased perpetrating a series of sexual offences against a woman who he was assaulting in a way very similar to the way in which he had commenced assaulting Mrs Threnoworth. Some time after he had wilfully murdered Mrs Threnoworth, the applicant forced his way into the complainant's home, grabbed her by the throat, began to strangle her and taped her hands and mouth. Although he had entered the house with the intent to sexually assault the complainant, something caused him to change his mind. He did not carry out his intention and left the house. The next day he walked into Central Police Station in Perth where he surrendered himself and made a complete confession of all his offences. He co-operated fully with the authorities and pleaded guilty so that the matter could proceed on an expedited basis, which it did. The applicant wrote the following letter to the learned sentencing Judge:

"I, Dale Robert Mitchell would like to make a public apology for the crimes that I have commited (sic).

I regret the awful crimes that I have commited (sic), not due to the prison term that I am facing, but because I am deeply sory (sic) for the pain and suffering that I have inflicted on the victims and their families. It was for this reason that I turned myself in to the Police."

His Honour stated that the non-parole period should be less than the maximum term of 30 years "by reason of what you did, by reason of your pleas, and by reason of the factors to which I have referred." Those factors were the applicant's change of mind in regard to his last victim and his conduct in voluntarily, of his own accord, handing himself over to the police and confessing his crimes.

The applicant's grounds based on the credit to which he is entitled for his act of turning himself over to the police and confessing his crimes, his plea of guilty on the fast track system, and his expression of remorse, can be dealt with together.

Plainly, the applicant's conduct in going to the police and confessing his offences is a mitigating factor of considerable weight, particularly where, but for the applicant's own actions, the Crown might well not have been able to identify him as the offender and prove his guilt: see R v Arnold (1991) 56 A Crim R 63. The early plea of guilty is another important mitigatory factor. It is to be born in mind, however, as Malcolm CJ said in Verschuren (1996) 91 A Crim R 1 at 2:

"While it is true that a substantial discount may by applied to a sentence on account of an early plea of guilty, the amount of that discount would depend very much on all the circumstances of the individual case. It is also true, as Murray J has said [in the same case], that it has been indicated in this Court that discounts of up to 25 per cent or even greater may be justified, depending on the circumstances. It must be emphasised, however, that there is no 'tariff' or fixed percentage applicable to the discount to be given for a plea of guilty."

Remorse is of course another mitigating factor, although, when seen against the horrific crimes committed by the appellant, its weight is relatively slight.

It is apparent from his Honour's remarks that but for these factors he might well have determined upon a non-parole period of 30 years. The fact is that the extent of the discretion open to his Honour was extremely limited. He was required to fix a non-parole period between 20 years and 30 years. Clearly, by the nature of the crime itself, it would have been inappropriate to order that the applicant be required to serve only the minimum period of 20 years. That being so, in accepting that the applicant was entitled to some reduction in the non-parole period by reason of the mitigatory circumstances in question, the range open to the learned Judge was a period some years less than 30 and a few years more than 20. His Honour fixed upon 25 years.

In Taylor v R, unreported; CCA SCt of WA; Library No 980152; 6 April 1998, I noted:

"[T]he very nature of the relevant factors [in the sentencing process] is such that inevitably different Judges will have different views as to the relative importance of each. Inherent in the system is the potential for differences to occur between Judges as to the relative significance of each relevant circumstance, and this often results in members of appellate courts being of a different opinion to that of the sentencing Judge as to the overall sentence imposed ...

The law recognises the potential for variance of judicial views in sentencing by laying down that, where no error of principle has occurred, the task of appellate courts sitting on sentencing appeals is merely to consider whether the sentencing Judge has exceeded the bounds of an appropriate sentencing discretion, not whether they would have imposed the sentence in fact ordered by the sentencing Judge. There is, therefore, an acknowledgment that a difference in judicial opinion in sentencing may arise, but as long as the sentence imposed has been arrived at after a correct application of the sentencing principles, and the sentences within an appropriate sentencing range, the sentence will not be set aside."

On this basis, in my view, the non-parole period in fact determined was well within an appropriate discretionary range.

Counsel for the applicant referred to Kenneally v The Queen, unreported; CCA SCt of WA; Library No 980284; 27 May 1998, a case of a horrific wilful murder in which this Court upheld an appeal by the offender against a sentence of strict security life imprisonment with a non-parole period of 25 years. This sentence was imposed after a five day trial where the applicant had pleaded not guilty. It was submitted that the applicant in the present case should receive a lower non-parole period than the offender in Kenneally v The Queen by reason of the fact that in the present case the applicant had voluntarily confessed to the police and pleaded guilty at the earliest possible stage, whereas in Kenneally the offender had denied guilt to the very end.

It must be remembered, however, that in Kenneally this Court merely upheld a sentence imposed by the trial Judge. Nothing was said by the members of the coram in that case that suggested that the sentence so upheld was to form the basis of any "tariff". It was entirely open to the learned sentencing Judge in this case to impose the sentence that he did, that sentence being within an appropriate discretionary range: cf Taylor v R. Accordingly, in my view, there is no substance in the three grounds to which I have so far referred.

I turn now to the applicant's argument based on the victim impact statements. The prosecution tendered several such statements to the Court as part of the sentencing process. It is plain from them, and from other evidence before the Court, that Mrs Threnoworth was a much loved person, and her death had a severe and far-reaching impact on the lives of many who cared for her deeply. Several of the persons so affected wrote statements which in an articulate and eloquent manner emphasised the tragic loss to them, and other individuals, and to the community as a whole, as a result of Mrs Threnoworth's death. Counsel for the applicant pointed out that "the raw emotion and the pain that was felt by all of the victims in this particular case is clear from looking at any of those statements". Counsel submitted that, for that reason, the learned sentencing Judge must have been swayed by the victim impact statements to an improper extent.

Counsel for the applicant referred in this regard to P (1992) 64 A Crim R, where the Full Court of the Federal Court said:

"It is essential, however, that the material [contained in victim impact statements] be presented in such a way that the prosecuting authority will not only not be seen to be promoting the interests of the victim at the expense of the interests of justice, but also the reality will be quite otherwise. Vengeance is not to be equated with justice. And the understandable feelings of a victim or a relative of a victim must not be allowed to move the court beyond the way of justice. For that reason it may be appropriate for the material to be presented other than in the form of direct statements by the victim or persons closely connected with the victims. It would be better that the material be presented through the report of an independent third party ... ."

Two points can be made about these observations. Firstly, they were made in the context of a prosecution brought in the Australian Capital Territory where no statutory provisions for victim impact statements existed. This position has to be contrasted with the legislative provisions contained in s24 to s26 of the Sentencing Act. Section 24(1) expressly entitles the victim to give a victim impact statement himself or herself. Section 25(1)(b) expressly provides for a description of the effects on the victim of the commission of the offence. To the extent that the observations of the court in P are inconsistent with these provisions, they have no application in this State. Secondly, there is nothing whatever to suggest that the victim impact statements moved the Court "beyond the way of justice". The only portion of his Honour's reasons which could be said to have been based in any way upon the victim impact statements was the following:

"It would be hard to imagine circumstances that could be worse. The life of a very caring and good woman, looking after a family and maintaining an excellent family environment, was brought to an end. Mention must be made of the shock of the circumstances in which her husband found her and which does not need further description. The last few minutes of her life must have been too frightening to behold and the family will be forever contemplating the horror through which she went."

Apart from the fact that nothing in his Honour's remarks could be construed to support the proposition advanced, the sentence in fact imposed by him was, as I have said, within his discretion.

Nevertheless, the applicant's submissions raise questions as to the use to which victim impact statements may be put.

Section 25(1) of the Sentencing Act defines a victim impact statement as a written or oral statement that:

"(a) gives particulars of any injury, loss or damage suffered by the victim as a direct result of the offence; and

(b) describes the effects on the victim of the commission of the offence."

The purpose of a victim impact statement is revealed by s24(1) which provides that such a statement may be given to a court "to assist the court in determining the proper sentence for the offender". Section 26(1) provides that:

"A court may rule as inadmissible the whole or any part of a victim impact statement."

Plainly, the tendency of a victim impact statement will ordinarily be to increase the sentence that would otherwise be imposed. In other words the facts disclosed in a victim impact statement are, in effect, aggravating circumstances. This Court has held that circumstances of that kind have to be proved beyond reasonable doubt: see Langridge (1996) 87 A Crim R 1 where Kennedy J noted (at 21):

"It is for the Crown to prove beyond reasonable doubt the facts going to sentence and which, if found, would be likely to result in a more severe sentence than would otherwise be the case." (See also Walsh and Owen JJ at 25).

Views to the same effect have been expressed by the Court of Appeal of the Supreme Court of Victoria. As was pointed out by Callaway JA and Crockett AJA in R v Ali [1996] VicRp 56; [1996] 2 VR 49 at 60:

"The effects of the crime on the victim go to the circumstances of the offence."

"The burden of proof concerning the circumstances of the offence rests on the Crown and must be discharged beyond reasonable doubt."

In regard to the circumstances of the offence, it is for the Crown to prove the version of the facts on which it invites the Judge to sentence.

The Sentencing Act does not require a victim impact statement to be adduced under oath and the usual practice is that, after conviction and in the course of addressing the court on sentence, the prosecutor provides the defence with a copy of the victim impact statement which is tendered to the court. In my view, the same rule should obtain in regard to the admissibility of victim impact statements as applies to the statement of material facts made by Crown counsel. This rule was set out in R v Aloia [1983] WAR 133 (at 136) where Burt CJ (with whom Kennedy J agreed) said, when dealing with the material on which the court might act in determining issues concerning mitigation of sentence:

"It is a question which often arises on a plea of guilty, particularly on a hand-up brief. In such a case the sentencing Judge can safely rely upon the statement of material facts made by Crown counsel unless as to facts extending beyond the elements of the offence they are challenged by the prisoner. If such facts, assuming them to be facts of aggravation, or so challenged they must be proved."

See also The Queen v Wong, unreported; CCA SCt of WA; Library No 1489, 20 November 1995.

Of course the mere fact that victim impact statements are produced and not challenged does not make it obligatory for the trial Judge to accept what is stated therein (cf. Salisbury (1994) 76 A Crim R 565 at 1504). The use that the sentencing Judge makes of a victim impact statement is a matter within his or her discretion.

In the present case the victim impact statements were tendered by counsel for the prosecution without any objection by counsel for the applicant. It is true that the statements were produced in the course of argument and counsel for the applicant had very little time in order to consider them fully. Nevertheless, it was open for counsel to ask for a short adjournment for the purpose of examining the victim impact statements carefully, and taking instructions in connection therewith. This was not done and in my view the omission to object to the statements at the trial substantially detracts from the force of the argument now advanced: cf. Varney v The Queen, unreported; CCA SCt of WA; Library No 960463; 23 August 1996 per Ipp J (with whom Owen J agreed).

In any event, counsel for the applicant was unable to point to any passage in his Honour's sentencing remarks which suggested that he was swayed to any improper extent by the victim impact statements. I have above referred to that portion of his Honour's sentencing remarks where he could be said to have relied on the victim impact statements. In my view no exception whatever could be taken to the learned Judge's observations in this connection.

Counsel for the applicant referred to Previtera (1997) 94 A Crim R 76 where Hunt CJ at CL held that, where the offence for which a sentence is to be imposed involves the death of the victim, a victim impact statement dealing with the effect of the death upon the family of the victim can never be relevant to the sentence imposed. The learned Judge was of the opinion that loss or injury suffered by persons other than the victim directly injured by the crime could not be relevant to the sentence imposed. Thus, where the crime involves the death of the victim, a victim impact statement would be irrelevant. A further rationale for this view, as expressed by his Honour (at 86-87), is that:

"It is regarded by all thinking persons as offensive to fundamental concepts of equality and justice for criminal courts to value one life as greater than another. It would therefore be wholly inappropriate to impose a harsher sentence upon an offender because the value of the life lost is perceived to be greater in the one case than it is in the other."

Hunt CJ at CL (with whom Graham AJ agreed) returned to this theme in R v Bollen, unreported; CCA SCt of NSW; 25 March 1998, observing firstly:

"However, the [sentencing] Judge then said that he had 'borne in mind' the seven statements filed, the material which they contained about the deceased and the reaction of the respective authors of those statements to his death."

"I am satisfied that, by bearing this material in mind and by having regard to the particular effects of the death of the deceased upon the members of his family, the Judge has taken irrelevant material into account and thus has fallen into error."

The basis of the views so formulated by Hunt CJ at CL was the New South Wales sentencing legislation dealing with victim impact statements. The relevant provision is s23C(3) of the Criminal Procedure Act 1986 (NSW) which provides that such statements must not be considered in connection with the determination of the punishment to be imposed "unless the Court considers that it is appropriate to do so". As mentioned, in the view of the learned Judge, it was not "appropriate to do so" when the victim impact statement concerned the effect of the death of the victim upon his or her family. The New South Wales legislation, however, is fundamentally different in this respect to the legislation in this State which, by s13(b), defines a victim (where the offence results in a death) as:

"Any member of the immediate family of the deceased."

The effect of this definition, read with s24(1) of the Act, is that, where the offence results in a death, any member of the immediate family of the deceased is regarded as a victim who may give a victim impact statement to a court. This legislative provision removes the linchpin of the reasoning set out in Previtera and Bolland, and in my view the strictures expressed in these cases against the use of victim impact statements have no application in this State.

Finally, counsel for the applicant submitted that the victim impact statements contravened s25(2) of the Sentencing Act. This section provides:

"A victim impact statement is not to address the way in which or the extent to which the offender ought to be sentenced."

Regrettably, several of the victim impact statements tendered to the Court contained observations by the victims as to the sentence they believed should be imposed. The presence of these suggestions in the victim impact statements constituted a breach of the Act. They should have been deleted from the statements before they were tendered to the Court. There is a duty on prosecuting counsel to ensure that observations of this kind are not contained in victim impact statements. Again, in my view, there is also a duty on defence counsel to object timeously to impermissible material in victim impact statements. The prosecution should do its best to ensure that defence counsel are given copies of the statements sufficiently early to enable them to make a reasoned and proper judgment as to their admissibility. Should defence counsel have inadequate time to do this, they should, as previously mentioned, seek a short adjournment to enable them to carry out their duties properly.

It was submitted by counsel for the applicant that the contravention of s25(2) was so serious that it tainted the whole sentencing process. I leave open the question whether there may be instances where contraventions of this kind are so extreme that the entire sentencing process miscarries. In my view, however, that is not this case. It is quite clear from the learned Judge's sentencing remarks and the sentence in fact imposed by him that he paid no heed to the remarks complained of.

Accordingly I would dismiss the application for leave to appeal against sentence.

I have had the advantage of reading the reasons for decision proposed to be published by Ipp J. I agree with them and with his Honour's conclusions. I have nothing to add.

Dale Robert Mitchell & Ors v The Queen & Anor [1998] WASCA 334 (14 December 1998)

Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367

Mitchell v The Queen [1996] HCA 45; (1996) 184 CLR 333

A number of authorities, for example, R v Miller [1995] VicRp 60; [1995] 2 VR 348 and Inkson v The Queen [1996] TASSC 13; (1996) 6 Tas R 1, have expressed the view that sentencing Judges should not be required to impose a harsher penalty upon an offender who has caused the death of a person who was widely loved than upon one who caused the death of an unloved victim. This is commonly justified upon the basis that it is offensive to fundamental concepts of equality and justice for criminal courts to value one life as greater than another - see, for example, R v Previtera (1997) 94 A Crim R 76, at 86-87. However, in R v Birmingham (No 2) (1997) 69 SASR 502, at 506, Perry J expressed the view that there is no breach of this principle in making allowance for the trauma and upsets suffered by surviving members of the family of a victim of a homicide, who are specifically brought within the description of victims, although they may not have suffered injury, loss or damage "as a direct result of the offence". Section 25(1)(a) of our Act does not permit this. However, a family member is entitled by s25(1)(b) to describe the effects on him or her of the commission of the homicide.

Dale Robert Mitchell & Ors v The Queen & Anor [1998] WASCA 334

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Dale Robert Mitchell & Ors v The Queen & Anor [1998] WASCA 334 (14 December 1998)