Court of Appeal (WA)|2008-04-23|Before: Miller JA, Jenkins J, Steytler P, Lure JA

LUFF -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 89 (23 April 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LUFF -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 89

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Manslaughter and assault occasioning bodily harm - Effective sentence of 8 years' imprisonment - Whether trial judge recognised proper timing of plea - Whether use of expression 'late plea' revealed error

1 STEYTLER P: I have had the advantage of reading the reasons of Miller JA. I agree with them. They reflect my own reasons for joining in the decision of the court to dismiss the appeal.

2 McLURE JA: I agree with the reasons of Miller JA.

3 MILLER JA: At the hearing of this appeal the court unanimously dismissed the appeal and indicated that it would publish its reasons for so doing. These are my reasons for joining in the decision to dismiss the appeal.

4 The appellant was charged on an indictment which alleged counts of murder and unlawful assault occasioning bodily harm. The offences were alleged to have occurred on 15 June 2006 at Cloverdale. The victim of the alleged murder was David Allan Vonnahme and the victim of the assault occasioning bodily harm, Paul Martyn Chapman.

5 The appellant was arraigned before Jenkins J in the Supreme Court at Perth on 18 June 2007. On the first count on the indictment, he pleaded not guilty to murder but guilty to manslaughter. On the second count, he pleaded guilty to the offence of assault occasioning bodily harm.

6 The prosecutor advised the court that the prosecution accepted the plea of guilty to manslaughter and the plea of guilty to assault occasioning bodily harm in full satisfaction of the indictment. Convictions were then recorded accordingly.

7 Submissions were made by both the prosecutor and defence counsel. The prosecutor stated the facts in detail. They were summarised by the sentencing judge and that summary is not challenged.

8 On the date of the offences the appellant and the deceased (who were friends) were each aged 37 years. They had been friends for something like 30 years. The appellant resided at the deceased's house and had been living there for approximately 6 months. His family was with him. Full hospitality and friendship was extended by the deceased to the appellant and his family.

9 On 15 June 2006 the appellant took offence at the fact that the deceased had made a comment in his absence likening his behaviour to that of Paul Chapman. The appellant confronted the deceased and

punched him a number of times to the face. He fell backwards and appeared to lose consciousness.

10 An ambulance was called to attend to the deceased. Police officers attended at the house, but the deceased was able to assure police that all was well. The ambulance was stopped.

11 The appellant went to the backyard of the house. Paul Chapman was in the backyard drinking with another person. The appellant abused Mr Chapman and punched him with a clenched fist to the head several times. These punches constituted the assault occasioning bodily harm to which the appellant pleaded guilty.

12 The appellant went back to the house. In the kitchen he found the deceased. He assaulted him a second time, first punching him to the head with a clenched fist. The deceased fell into a sitting position on the hallway floor. The appellant then kicked him in the head with a steel-capped boot. This caused the deceased to fall backwards onto the floor, bleeding from the mouth.

13 It appears from the appellant's admissions to investigating police that he kicked him four or five times to the head. The appellant described what happened in the following way: 'I hit him. He fell. He sat like that and it was, like, boom, kick at the same time'.

14 The injuries inflicted by the appellant killed the deceased. A post-mortem examination revealed a number of significant injuries, but in particular, brain injuries which were most probably a consequence of the deceased being kicked to the head with the steel-capped boot of the appellant. It was also noted on post-mortem examination that the deceased was severely intoxicated. He had a blood alcohol reading of 0.229%. The appellant on the other hand had a negative reaction to blood alcohol reaction analysis.

15 The sentencing judge reviewed the personal circumstances of the appellant. He was 36 years of age. He was born into a highly dysfunctional family and suffered neglect and violence from his parents until he left home at the age of 15 years. He was made a ward of the state. However, approximately 7 years before the date of sentencing he commenced a relationship with a de facto partner by whom he has two children. His relationship with her has been good.

16 The appellant abused alcohol and drugs whilst a child. A psychological report revealed that he had serious issues of anger which required management. He had substance abuse issues and other issues from his childhood which also required counselling and group programmes. He was described as having a personality style 'hypersensitive to threats in his environment' and a sense that 'he is being victimised by others'.

17 The appellant had a record of convictions for violence and dishonesty and he received no credit for being of good character.

18 The sentencing judge took account of all factors, including the appellant's pleas of guilty. I shall turn to what her Honour said about the pleas of guilty when I deal with the grounds of appeal.

19 The sentencing judge imposed for the offence of manslaughter a sentence of 11 years' imprisonment in terms of the pre-transitional regime. After reducing that sentence by one-third it resulted in a sentence of 7 years 4 months' imprisonment. The sentence in relation to the second count was 12 months' imprisonment in the pre-transitional regime. After deduction of one-third it became a sentence of 8 months' imprisonment.

20 The sentences were ordered to be served cumulatively. The appellant was made eligible for parole.

21 Leave to appeal has been granted on one ground only. It is formulated in the following way:

Her honour in sentencing erred as a matter of law and fact in that Her honour found that the plea to the charge of manslaughter was a late plea when it was not in issue that the plea had been indicated shortly after the State indicated that the Plea of guilty to manslaughter would be accepted in satisfaction of the indictment only shortly prior to the trial.

22 The issue of the plea of guilty and its timing was raised by the sentencing judge. It was not specifically relied upon by the appellant's counsel in the plea in mitigation - although remorse was relied upon.

23 The following exchange occurred immediately before sentence was pronounced:

JENKINS J: Mr Paternoster, when did he make his first offer to plead guilty to manslaughter?

PATERNOSTER, MR: Your Honour, there had been discussions with the director's office but those discussions indicated initially that manslaughter wasn't available and it was approximately three weeks before the trial that it was indicated that if a submission was made in relation to manslaughter that that was likely to be accepted. What did happen, of course, we were - I think it was possibly two weeks before the trial that that indication was given by the state, that they would accept that, the plea to manslaughter, but there had been discussions on and off since the time he was charged.

24 The sentencing judge made the following observations about the pleas that were entered to the two counts on the indictment:

Mr Paternoster has just explained to me why your offer to plead to the alternative charge of manslaughter was not made earlier and that explanation has not been disputed by the state.

Shortly before your trial you did formally offer to plead guilty to the lesser charge of manslaughter. That plea has been accepted by the state. You pleaded guilty in this court on the morning of your scheduled trial. It has been confirmed that the plea to manslaughter was accepted on the basis that you did not intend to kill or to do grievous bodily harm to the deceased.

Your admissions to the police soon after the assaults and the comments that you have made since indicate that you are extremely remorseful for your actions and that you accept full responsibility for them. Consequently, although your plea was late your sentence will be reduced significantly because of those factors.

It is the use of the words 'although your plea was late' that the appellant complains about.

25 The sentencing judge did err in describing the appellant's plea as a late one. He pleaded guilty to manslaughter as soon as the prosecution indicated that a plea to that offence would be accepted in satisfaction of the indictment for murder. The plea was made at the first reasonable opportunity: see Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465 [10] (Ipp J); cf Gallop v The State of Western Australia [2007] WASCA 243 [12] - [13] (Steytler P) (where a plea to indecent assault could have been made at any time but was only made after a charge of burglary was withdrawn).

26 The sentencing judge made it clear however that because of the plea the sentences would be significantly reduced. In Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Gaudron, Gummow and Callinan JJ made clear the significance of a plea of guilty:

It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v The Queen it was said:

'a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.'

It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice. (footnotes omitted) [11]

27 The sentencing judge recognised that the appellant's plea indicated both remorse and an acceptance of responsibility. Clearly it also played a part in facilitating the course of justice.

28 Her Honour stated that in terms of the first count on the indictment there would be a significant reduction of sentence by reason of the appellant's plea of guilty to manslaughter. No indication was given of the extent to which that reduction was made, but there was no requirement for this. The sentencing judge was only required to state that the sentence was reduced from what it would otherwise have been by reason of the plea of guilty: Sentencing Act 1995 (WA) s 8(4).

29 The sentence imposed for the crime of manslaughter was within the range that could have been expected in the circumstances of the case. It recognised the fact that there had been a plea of guilty and although the sentencing judge erred in describing it as a late plea, there was no injustice done to the appellant. He received the full benefit of his plea. In my opinion, the appellant has failed to make out the ground of appeal upon which leave was granted. No error has been shown on the part of the sentencing judge in relation to the sentence imposed upon the appellant for manslaughter. I would therefore dismiss the appeal against sentence.

LUFF -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 89 (23 April 2008)

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LUFF -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 89 (23 April 2008)

Cases Cited (1)