Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - One count of murder - Convicted after trial - Minimum term of 18 years before parole - Offender 18 years old - Unprovoked and sustained attack with intention to kill -Whether minimum term manifestly excessive

Sentencing Act 1995 (WA), s 90(1)

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

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

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

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

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

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

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

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

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

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

1 JUDGMENT OF THE COURT: This is an application for leave to appeal against sentence. The appellant was convicted after trial before a jury of one count of murder. He was sentenced by Hall J to life imprisonment with a non-parole period of 18 years. The appellant contends that the non-parole period was manifestly excessive.

2 For the following reasons, we would refuse leave to appeal.

3 The appellant was 18 years old at the time of the offence. He had effectively been homeless for several years, living on the streets of Fremantle. The victim was also living on the streets of Fremantle at the time of the offence, although he was not homeless. He suffered from a disease that caused wasting of his muscles, with the result that he walked with a limp.

4 The appellant was ill-disposed towards the victim, believing that the victim had had a sexual relationship with the appellant's girlfriend. Two days before this offence, the appellant and the victim had been involved in a physical altercation in Fremantle, some of which was filmed on CCTV. The sentencing judge described the appellant as the aggressor in the altercation, observing that it demonstrating the appellant's anger towards the victim.

5 In the late afternoon of 4 September 2012, the appellant went to the Woolstores Shopping Centre in Fremantle, with a friend, Mr Trevor Murray, to buy alcohol. The victim happened to be at the Centre. A security guard heard the appellant say that he had previously 'smashed' the victim and threatening to 'smash' him again. The appellant and Mr Murray walked to a park near the Town Hall, where they drank alcohol. The victim joined the group. After some time, they left together and at around 8.30 pm were in Collie Street in Fremantle.

6 The offence appears to have occurred in a nearby laneway. Exactly what happened is unknown. Mr Murray denied being in the laneway and the appellant's version of events was clearly rejected by the jury. However, the sentencing judge found that the victim had been severely beaten and that the appellant had repeatedly stabbed him with a pair of scissors. He concluded that while Trevor Murray may have played a part in causing some of the victim's injuries, the appellant had initiated the assault and had inflicted the fatal injuries. His Honour considered that the number, nature and location of the stab wounds inflicted by the appellant was consistent only with an intention to kill the victim.

7 After the attack, the appellant fled the scene and disposed of the scissors down a drain. He was later arrested by police and, when interviewed, made certain admissions and showed police where the scissors had been disposed of. He subsequently retracted the admissions and blamed Mr Murray entirely for the killing.

8 The sentencing judge had before him a psychological report and a pre-sentence report.

9 The psychological report noted that the appellant was in the middle of seven children in a blended family structure. His parents separated when he was 2 years old. The appellant lived with his mother until the age of 10 or 11, when she vacated the house in which they were living and left no information as to her whereabouts. In his teenage years, the appellant had transient living arrangements, living at various times with his father, with a friend or on the streets. At the time of the offence, the appellant was in a volatile and sometimes violent relationship with a significantly older girlfriend who was heavily pregnant. The author of the report notes that the appellant has since discovered that his assumption that he was the father of the child is incorrect.

10 The appellant's primary school years were said to have been marked by multiple suspensions due to fighting with his peers and aggressive behaviour towards teachers. It is evident that that behaviour continued into high school as the appellant was ultimately expelled from high school after year nine due to aggressive behaviour.

11 The appellant told the author of the psychological report that he commenced smoking cannabis and drinking alcohol when in year 6 or 7 at school, his consumption of alcohol increasing significantly while living on the streets. Departmental records indicated that the appellant commenced using amphetamines when he was 14. The appellant reported a history of depression.

12 The appellant was assessed as currently being at a high risk of violent reoffending. The author of the psychological report concluded that the appellant coped with painful emotions and memories by shutting them off and avoiding dealing with them, including in respect to his offending in this case. The psychologist considered that due to his background the appellant had failed to develop adequate coping skills and that the combination of inadequate coping skills and personality features had resulted in aggressive and violent behaviour in the past and, in the absence of successful treatment, would lead to a high risk of violence in the future. His treatment needs were described as substantial.

13 The author of the pre-sentence report considered that in light of the appellant's apparent inability to accept his culpability, intervention to address the factors underpinning his offending was likely to prove 'challenging'.

14 The sentencing judge found that the murder was not planned or premeditated. While the appellant may have intended to assault the victim in the laneway, the intention to kill had occurred suddenly in the heat of the assault when the scissors fell to the ground from the victim's clothes. His Honour described the offence as unprovoked, and as a frenzied and sustained attack upon a vulnerable victim who had very little ability or opportunity to defend himself.

15 His Honour noted that the appellant was 20 years of age at the time of sentencing. He had had a childhood devoid of real love or support and had developed a significant alcohol problem, often drinking himself to the point of insensibility. The sentencing judge noted the conclusion of the psychologist that the appellant was at a high risk of violent reoffending.

16 In mitigation, the sentencing judge took into account the appellant's initial co-operation with police, including showing them where the murder weapon was located and in making admissions. His Honour observed, however, that the co-operation was largely undone by the appellant's subsequent retraction of the admissions and his denial of any involvement in the victim's murder, which he sought to blame on Mr Murray.

17 The sentencing judge also took into account the appellant's dysfunctional childhood and his youth. He considered the appellant's immaturity had played a significant part in the offence but that the appellant's youth as a mitigating factor was heavily outweighed by the seriousness of the offending. However, his Honour observed that youth usually indicated that a person has a real prospect of rehabilitation and on that basis he reduced the non-parole period he would otherwise have imposed.

18 The appellant was sentenced to life imprisonment with a period of 18 years before being eligible for parole.

19 The sole ground of appeal is that the non-parole period of 18 years is manifestly excessive.

20 A contention that a minimum term is manifestly excessive relies upon inferred error. In order to succeed, the appellant must demonstrate that the minimum term was unreasonable or plainly unjust so that error may be inferred.

21 It is necessary, in order to determine whether a minimum term is unreasonable or plainly unjust, to examine it from the perspective of the maximum sentence prescribed by law, the upper or lower limits on the available minimum term, the standards of sentencing customarily observed with respect to minimum terms for the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that kind, and the personal circumstances and antecedents of the offender: Egitmen v The State of Western Australia [2014] WASCA 198 [46].

22 Under s 90(1) of the Sentencing Act 1995 (WA), where a court sentences an offender to life imprisonment for murder it must, unless it orders that the offender never be released, set a minimum period of not less than 10 years before the offender becomes eligible for parole. Subject to that stipulation, the minimum period is determined by reference to the period of imprisonment that justice requires the offender to serve before being eligible for release, having regard to all of the circumstances of the case: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 629; Mikhail v The State of Western Australia [2012] WASCA 200 [18] - [19]. There is no upper limit to the period that may be set.

23 The range of sentences customarily imposed with respect to the minimum term for the offence is not, of course, decisive in determining whether in any particular case a minimum term is manifestly excessive: Prestidge v The State of Western Australia [2014] WASCA 16 [65]. A sentencing range is merely one of the factors to be taken into account in deciding whether a minimum term is manifestly excessive. The fact that a minimum term is outside the range does not of itself establish that the sentencing discretion miscarried.

24 Counsel for the appellant referred to a number of cases in which the offender had pleaded guilty to murder, and to three cases in which the offender had been convicted of murder after trial; namely, Prestidge; Johnston v The State of Western Australia [2012] WASCA 18; and Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328. We have had regard those cases and a number of other cases, including The State of Western Australia v Lee [2013] WASCA 246; Silva v The State of Western Australia [2013] WASCA 278; Rosewood v The State of Western Australia [2014] WASCA 21; Stinson v The State of Western Australia [2014] WASCA 72; and Egitmen.

25 None of the cases is directly comparable to the present case. Some have features that are comparable to the present case but each also has significant distinguishing features. It is unnecessary to canvass the details of the cases. Suffice it to say that it is clear that the minimum term in this case is broadly consistent with other sentences that have been imposed.

26 The seriousness of the appellant's offending is demonstrated by the nature and circumstances of the attack on the victim. That attack, while not pre-meditated, was unprovoked. The victim was vulnerable because he suffered from a muscle wasting disease and, as the sentencing judge found, had very little ability or opportunity to defend himself. The appellant killed the victim in a frenzied and sustained attack, repeatedly stabbing him with the scissors in a manner calculated to cause his death. Why the appellant formed the intention to kill the victim remains unknown.

27 There was little by way of mitigation beyond the appellant's youth and dysfunctional childhood and, as the sentencing judge observed, the appellant's youth as a mitigating factor was heavily outweighed by the seriousness of the offending. Only limited weight could be given to the appellant's initial co-operation with police in light of the appellant's subsequent retraction of the admissions he had made and his attempt to blame Mr Murray for the murder. The appellant did not have the benefit that a plea of guilty would have attracted by way of mitigation.

28 The appellant has been assessed as being at a high risk of violent reoffending and it is evident from the psychological report that the road to rehabilitation may be somewhat problematic.

29 In our opinion, it is not reasonably arguable that the minimum term of 18 years before eligibility for parole fell outside a proper exercise of the sentencing discretion. It could not be described as unreasonable or plainly unjust. There is no proper basis upon which this court might be entitled to interfere with it and leave to appeal should therefore be refused.

30 We would refuse leave to appeal and dismiss the appeal.