Court of Appeal (WA)|2009-01-23|Before: McLure JA, Blaxell J, Steytler P, Lure JA, Miller JA

FRASER -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 23 (23 January 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FRASER -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 23

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Wilful murder - Strict security life imprisonment with minimum of 27 years - Whether sentence manifestly excessive - Whether breach of parity principle - Turns on own facts

Criminal law and procedure - Extension of time for filing notice of appeal - Delay of 6 months - Lack of merit

Criminal Law Amendment (Homicide) Act 2008 (WA), s 10, s 19

Sentencing Act 1995 (WA), s 91

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Application for extension of time to appeal refused

2 McLURE JA: The appellant pleaded guilty to one count of wilful murder for which he was sentenced by Blaxell J to a term of strict security life imprisonment with a minimum period of 27 years before being eligible for release on parole (the non-parole period).

3 The appellant seeks an extension of time, leave to appeal and to appeal against the non-parole period. He relies on two grounds, being that the non-parole period of 27 years (1) is manifestly excessive and (2) lacks parity with the sentence imposed on his co-offender, Kelly Brown, who was convicted after trial of being an accessory after the fact to the wilful murder committed by the appellant.

4 The facts of the offence are as follows. The appellant and Brown met in Melbourne and travelled via Adelaide and Perth to Geraldton. The victim, Mr John Blood, was travelling further north on a fishing holiday. He offered the appellant and Brown a lift in his car in return for sharing fuel expenses. The three arrived in Exmouth on 27 October 2006 and camped at a local caravan park. By this time the appellant harbored an unreasonable hatred of the victim. The appellant indicated to Brown that he wanted to kill him. On Saturday night the three visited three beaches on the western side of the North West Cape to see turtles. It was at the last of the beaches that the victim was killed. When they arrived at the third beach at about 11.00 pm the victim parked his vehicle. The three walked southwards along the moonlit beach looking for turtles. After the three had walked along the beach about 50 m, the appellant said he had forgotten his cigarettes and jogged back to the vehicle. The appellant's actual intention was to fetch a weapon with which to kill the victim. The weapon was a piece of camping equipment which was a round metal bar with a hook on the end. The appellant caught up with Brown and the victim who were now 100 m along the beach. The appellant got the victim to look away from him on the pretext that he had seen a turtle in the water. When the victim looked in the direction of the water, the appellant used the metal bar to strike a very forceful and savage blow to the side of the victim's head. When the victim fell to the ground he was able to raise an arm to defend himself while the appellant continued to strike the victim to the back of his head about six times. The victim had not been rendered unconsciousness and while lying face down in the sand was able to take his wallet and keys from his pocket and throw them towards the appellant. He said words to the effect, 'Take my wallet, take my car. Just stop'. The appellant took the credit cards out of the wallet and demanded to know the victim's PIN number. The appellant pretended

to call an ambulance on a mobile phone. The appellant then walked back to the victim's car and cut a length of rope from a hammock in the boot. He returned the 100 m to where the victim was still lying on the sand. The appellant then pretended to make yet another call to the ambulance service and on the pretext of following first aid advice, placed the rope around the victim's neck. Having wrapped the rope around his neck, the appellant then pulled on both ends of it and over a period of at least five minutes slowly strangled the victim to death. Whilst doing this the appellant was singing a heavy metal song which included the words, 'Look into my eyes while you die'. The appellant continued singing this song while the victim slowly succumbed to what the trial judge described as 'a very painful and agonising death'.

5 The appellant and Brown returned to the car. Brown assisted the appellant to empty the boot in order to make room for the victim's body. They returned to the body with the hammock from the car. The appellant tied the victim's body to the hammock and he and Brown dragged it to the car. The body was then loaded into the boot. However, the appellant was unable to start the car. The appellant removed the victim's body from the boot and dragged it into the ocean.

6 The appellant and Brown were arrested by police on 30 October 2006. They fabricated lies as to the events that had occurred. The trial judge, who watched the appellant's police video record of interview described him as disturbingly offhand and casual, displaying no emotion.

7 The appellant was aged 29 at the time of the offence. He had a turbulent childhood with very little parental support. He experienced episodes of physical and sexual abuse and was introduced to heroin by an uncle at the age of 9. By the age of 13 he was addicted to heroin and working as a street prostitute. The appellant has a very significant prior record of convictions for offences including robbery, burglary, threats to harm, assault and dishonesty. The most recent convictions arose from an incident outside the appellant's home in Melbourne in 2003. He had an argument with two 16-year-old boys during which he splashed them with petrol and threatened to set them on fire with a cigarette lighter. A co-offender held a knife to the throat of one of the boys and they were then robbed of personal possessions. The appellant was on parole for these offences when he killed Mr Blood.

8 The sentencing judge characterised the gravity of the appellant's offence as being extremely high and towards the upper end of the scale of seriousness for wilful murder. He continued:

I am also satisfied that the offence was premeditated and planned by you prior to leaving Exmouth on the night it occurred. There was no discernible motive for the crime other than your irrational dislike for Mr Blood combined with your desire to steal his car and other property. Your antecedents include previous convictions for offences involving significant unreasoning violence. Although your upbringing and personal circumstances may help explain why you are the person you are today, they do not offer any prospect of you ever changing your ways.

...

I am also satisfied that you pose a very significant future risk to the community and that there is a strong likelihood that you will commit further violent offences should you ever be given the opportunity. In coming to this conclusion I not only have regard to the facts of the offence and the fortuitous way in which it was committed but also the lack of real remorse and the psychological and psychiatric assessments which confirm that you are a high risk of future violent offending.

9 The sentencing judge determined that the appropriate non-parole period was 27 years after 'balancing ... all relevant sentencing considerations, whether aggravating or mitigating in nature, including the circumstances of the offence, the circumstances which are personal to you, the need to protect the community and the requirement that the overall penalty be commensurate with the seriousness of the crime'.

10 The sentencing judge had before him a psychiatric and psychological report concerning the appellant. The psychiatrist reported that the appellant had commented that the victim's family deserved to see justice done and said in effect that he hoped he was never let out of prison. It is also reported that he said he did not know how he felt about killing the victim although acknowledged he had to do the right thing by the family. On one occasion he acknowledged that it was must have been terrifying for the victim. These statements are relied on by the appellant in the appeal as demonstrating some remorse.

11 The psychiatrist assessed the appellant as having antisocial personality disorder and borderline personality disorder. The psychiatrist continued:

The [appellant] has a number of risk factors for future violence, particularly previous violence, relationship instability and employment problems, early childhood adjustment difficulties, personality disorder and prior supervision failure. In addition he is impulsive and appears thus far unresponsive to psychological treatments he has undertaken in the past. He displays a relative lack of empathy for his victim and while taking apparent responsibility for committing the offence ... also blames the Victorian Justice System and [Brown]. Given the interplay of all these factors, I consider that [the appellant] is at high risk of future violence.

...

I consider that at present any psychiatric treatment is likely to have limited benefit in preventing [the appellant] from re-offending.

12 The psychological report noted that the appellant displayed signs consistent with a personality-type disorder characterised by among other things, manipulation, self-focus, problems accepting responsibility and antisocial behaviour. He is said to have shown lack of victim empathy, cognitive distortions, instrumentally driven behaviour, a limited understanding of alternatives to his violent conduct and was not able or willing to account for his offending behaviour. He was considered to be at high risk of re-offending in a violent manner.

13 On 1 August 2008 the offence of wilful murder was abolished as was the penalty of strict security life imprisonment: s 10 and s 19 of the Criminal Law Amendment (Homicide) Act 2008 (WA) (the 2008 Act). That Act has no application to the sentencing of the appellant.

14 Section 91 of the Sentencing Act 1995 (WA) (Sentencing Act) as it then was and as it applies to the appellant, provides:

Imposing strict security life imprisonment

(1) A court that sentences an offender to strict security life imprisonment must, unless it makes an order under subsection (3), set a minimum period of at least 20 and not more than 30 years that the offender must serve before being eligible for release on parole.

(2) The minimum period begins to run when the term of strict security life imprisonment begins.

(3) A court that sentences an offender to strict security life imprisonment must order that the offender be imprisoned for the whole of the offender's life if it is necessary to do so in order to meet the community's interest in punishment and deterrence.

15 This court in Stasinowsky v The State of Western Australia [2009] WASCA 20 reviewed the case law and identified the legal principles applicable to determining the length of the non-parole period for an offender sentenced to strict security life imprisonment. For present purposes, it is sufficient to note the following. First, an offender sentenced under s 91(1) is not in the worst category of offender. The worst category is reserved for those offenders who are the subject of an order made under s 91(3) that the offender be imprisoned for the whole of the offender's life. Secondly, the non-parole period is the minimum time that a judge determines justice requires that the offender must serve having regard to the circumstances of the case: Power v The Queen [1974] HCA 26; (1973) 131 CLR 623, 629. The circumstances of the case is a reference to all relevant sentencing factors including the circumstances of the offence, all aggravating and mitigating factors and the offender's antecedents. The minimum time will be determined by reference to achieving recognised sentencing objectives including punishment, retribution and deterrence (both personal and general). Thirdly, the approach approved by the High Court in Mitchell v The Queen [1996] HCA 45; (1996) 184 CLR 333 applied to the issue of whether the grant of parole was appropriate under the law as it stood prior to the commencement of the 2008 Act. It has no application in determining the length of the non-parole period under s 91(1) of the Sentencing Act.

16 The appellant claims the non-parole period of 27 years is manifestly excessive. When applied to determining whether an individual sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentencing customarily imposed for offences of that type, the level of seriousness of the circumstances of the offending and the matters personal to the offender. Error is inferred from the outcome and does not depend upon establishing an express error in the reasons of the sentencing judge. I will assume that the test applies by way of analogy to the length of the non-parole period under s 91(1) of the Sentencing Act.

17 The appellant relied on a number of matters in support of his manifest excess claim. First, he says the sentencing judge erred in assessing the offence as falling within the upper end of the scale of seriousness of the offence of wilful murder. This claim is without merit. The murder was premeditated, callous and brutal with the victim slowly succumbing to a very painful and agonising death. The murder cannot be attributed to any recognisable human frailty such as jealousy, passion, revenge or greed. It was irrational violence for its own sake. As noted by the sentencing judge, the appellant's antecedents include previous convictions for offences involving significant unreasoning violence.

18 The sentencing judge also found that there was a lack of real remorse. That finding was clearly open on the evidence, including the police record of interview and the totality of the expert reports. The comments recorded by the psychiatrist reflect at best some understanding by the appellant of the depth of the depravity of his conduct.

19 The appellant contended that he was sentenced on the basis that he will never be rehabilitated. The sentencing judge did not make a finding in those terms. He did say the appellant was the person he was as a result of his upbringing and personal circumstances and that would not change. However, that falls short of a positive finding that there was no prospect of rehabilitation in the long term. But on any view of the evidence before the sentencing judge, the prospects of future rehabilitation are at best bleak. The nature and the circumstances of the offence together with the appellant's antecedents compel the sentencing judge's finding that the appellant is at a very high risk of future violent offending.

20 The appellant also complains that the sentencing judge gave excessive weight to some factors and inadequate weight to others. That is simply another way of saying that having regard to all relevant sentencing factors, the non-parole period of 27 years is manifestly too long. A weighting error of this kind is just a conclusion that is implicit in, and flows from, a finding that a sentence is manifestly excessive; it is not a reason for concluding that a sentence is manifestly excessive: Trompler v The State of Western Australia [2008] WASCA 265 [32].

21 Finally, the appellant claims the non-parole period was excessive having regard to the range of non-parole periods imposed for offences of a similar nature. The court in Stasinowsky conducted a detailed review of the relevant case law and concluded that the approach taken in Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 has resulted in excess weight being given to the potential for rehabilitation in some cases: Stasinowsky [71].

22 For the reasons given earlier, the offence committed by the appellant is within the upper end of the scale of seriousness. The only significant mitigating factor is the appellant's plea of guilty which came very shortly before trial. His age is not mitigatory particularly when regard is had to his criminal antecedents. His unfortunate childhood has some mitigatory effect but that is outweighed by the fact that it explains the person the appellant has become which only serves to emphasise the need for significant weight to be given to personal deterrence. In all the circumstances it cannot be said that a non-parole period of 27 years is outside the range of a sound sentencing discretion. I would dismiss ground 1.

23 The principle of parity of sentencing between offenders is explained in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606. Gibbs CJ said (609):

The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.

24 Equal justice requires that, as between co-offenders, there should not be a marked disparity in sentence which gives rise to a justifiable sense of grievances: Lowe (617 - 618). If the difference in sentence is a reasonable consequence of factors which support different treatment as between co-offenders (whether because of different degrees of culpability or differences in their circumstances), there can be no justifiable sense of grievance.

25 Ordinarily, the parity principle applies to co-offenders, namely those convicted of the same offence. Brown was convicted after trial of the lesser offence of being an accessory after the fact of wilful murder. She made early offers to plead guilty to being an accessory after the fact, had a minor record of offending, showed some remorse and cooperated in the trial process. She was sentenced to a term of imprisonment of 4 years and 8 months reduced on appeal to 3 years and 8 months.

26 The statutory maximum for the offence committed by Brown is 14 years' imprisonment. However, the transitional provisions in the Sentencing Legislation Amendment and Repeal Act 2003 (WA) applied at the relevant time in which event the effective maximum penalty was 9 years and 4 months. The appellant was sentenced to strict security life imprisonment which has a minimum non-parole period of 20 years in the absence of an order under s 91(3) of the Sentencing Act. It may be thought that the vastly different statutory maximum penalties for the offence committed by each of the appellant and Brown demonstrate that the parity principle can have no application.

27 However, the State conceded that the parity principle applied but contended it was not breached. I have reservations as to the correctness of

the concession both because of the difference in the levels of seriousness of the offences and maximum penalties applicable and the propriety of comparing, not two sentences, but a sentence and a non-parole period. However, as the correctness of the State concession was not raised in the appeal, I will assume that the parity principle applies. If it does, the difference in the offences and the statutory maximum penalties are relevant differentiating factors.

28 There are other significant differences in the sentencing considerations applicable to each offender. Brown was 21 years of age at the time of the offending and was vulnerable to influence from the appellant. Her vulnerability arose out of the fact that her psychological adjustment had been severely compromised since middle childhood. She was dominated by the appellant. Her relationship with the appellant was described by a psychologist in the following way:

[Brown] described a period of diminishing confidence in herself. The behaviours and interactions outlined were consistent with the patterns seen in domestically violent relationships where one's confidence, sense of self and sense of equality in a relationship is eroded via an array of behaviours (physical, sexual, verbal) that create an extreme power imbalance within the relationship. Additionally ... , and [the appellant] took deliberate steps to isolate her from her family. Assaults and threats by her then partner were commonplace ...

29 The different sentencing considerations applicable to Brown have the consequence that the appellant can have no justifiable sense of grievance. I would dismiss this ground.

30 There was a very lengthy delay of around six months in applying for leave to appeal, not all of which is adequately explained. There being no merit in the appeal, I would refuse an extension of time.

Law Amendment (Homicide) Act 2008

Legislation Amendment and Repeal Act 2003

FRASER -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 23 (23 January 2009)

At a glance

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Judgment (46 paragraphs)

FRASER -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 23 (23 January 2009)

Legislation Cited (2)

Cases Cited (4)