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[2000] WASCA 112
Court of Appeal (WA)
2000-05-05
Murray J, Pidgeon J, Wallwork J
Original judgment source is linked above.
The applicant was said to have aided the co-offender Leatch as directed and although his Honour accepted that she had some concern for her own well-being if she did not do as Leatch required, he said that while that explained her conduct it did not excuse it. There was no suggestion that Leatch threatened her or overbore her will to secure her participation. Indeed his Honour found that the applicant consciously decided to go along with whatever Leatch did:
"...guided as much by your romantic feelings for Leatch as any sense of fear for your own welfare and also well aware that what was being done suited your purpose as much as Leatch's in providing a means of getting away from Byford."
49 His Honour had regard to an important psychological report concerning the applicant, but he did not accept the suggestion that the applicant's intellectual deficit, as it was found to be, and submissive personality meant that she did not exercise judgment and make a conscious decision for herself to be involved in and to go along with what Leatch did. I have mentioned that his Honour spoke about the "romantic feelings" which the applicant had for Leatch. As his Honour concluded, "I accept that you had developed a sense of dependency toward him, just as you had developed an extremely strong romantic attachment."
50 Parker J noted that the applicant was aged only 19 years when the offences were committed, that she had no prior relevant criminal history and that her limited intellectual capacity meant that she had extreme difficulties at school and what is described in ground 1.1.3 as an "unfortunate childhood" involving an unhappy and abusive home life. All of that, his Honour found, had left the applicant with a "very low sense of self-esteem." His Honour considered those matters personal to the applicant counted in her favour and he found that "there is no basis upon which there is any justification for concluding that you are likely to present a continuing danger to the community."
51 Parker J expressed his final conclusion in the following way:
"Even so, in this case the seriousness of the conduct in which you consciously participated and actively assisted is so grave that I am unable to accept the submission that it would be appropriate to deal with you by fixing a minimum term at the minimum or at the lower end of the scale, the scale of 7 to 14 years which Parliament has set. The most difficult consideration is your intellectual capacity, and this has had to weigh heavily in my deliberations.
For the reasons I have indicated, however, I have in the end been satisfied that you had a sufficient appreciation of the shamefulness and the enormous moral wrong of what was occurring, and that you well knew that what was happening should not have happened and that you should not have participated, and that you gave in to a combination of the influence of the romantic attachment you felt for Leatch and the self-interest you felt out of concern for your own well-being if you stood up to Leatch, also the desire that you shared with Leatch to get away to another state. This conduct, I am satisfied, was seen by both of you as a means of achieving that objective."
52 His Honour appears to have overlooked nothing of relevance to the fixing of the minimum period, nor did he take into account anything which was irrelevant to that task. He was required to balance matters of mitigation, particularly those personal to the applicant, against the gravity of the offending conduct and there was ample evidence to support his Honour's conclusion that in that regard the moral culpability of the applicant was not substantially reduced. In those circumstances the difficulty of the applicant's task to demonstrate error in the exercise of the discretion is manifest.
53 Although in this case I would grant the applicant leave to appeal, I would dismiss the appeal because I am in the end unpersuaded that the learned sentencing Judge did not appropriately perform the immensely difficult task of balancing all the various competing considerations which led him ultimately to the conclusion, in the exercise of his discretion, that it was appropriate to grant the applicant eligibility for parole after serving a minimum period of 12 years. The gravity of the circumstances which led to the death of the victim, in which the applicant was found to have consciously participated intending that the victim suffer grievous bodily harm, required the conclusion that a substantial minimum period should be fixed. Whilst the applicant's prospects of rehabilitation were regarded as good, the mitigation to be found in her personal circumstances could not substantially detract from the length of the minimum period, once his Honour concluded, as was well open to him, that the applicant's moral culpability was not substantially reduced by reason of her intellectual deficit or other personal circumstances.
Sherratt
The Queen [2000] WASCA 112
Australian Coal v Commonwealth [1953] HCA 25; (1953) 94 CLR 621
House v The King [1936] HCA 40; (1936) 55 CLR 499
JDN [1998] VSCA 121
R v Anderson [1981] VicRp 17; [1981] VR 155
R v Clarke [1996] VICSC 30; (1996) 85 A Crim R 114
R v Dumas [1988] VicRp 8; [1988] VR 65
R v Richards [1999] WASCA 105
30 In Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 627 a majority of the High Court said that in fixing the minimum term:
31 That decision was followed in Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, a decision which in turn was followed in relation to the general considerations applying to the making of a parole eligibility order when imposing a finite sentence of imprisonment, in Thompson v The Queen (1992) 8 WAR 387, 395 - 396, which decision in its turn was followed in respect of that part of the sentencing process under the present legislation in R v Wongawol (1998) 101 A Crim R 350, 353, 359.
35 Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 was a case which came to the High Court from Victoria and concerned a provision of the Penalties and Sentences Act 1985 (Vic), which introduced a requirement to fix a minimum term in respect of a mandatory sentence of life imprisonment and afforded the opportunity to prisoners already serving such a sentence to apply to the court for a minimum term to be fixed in their cases. In the particular case the Judge at first instance, in fixing a minimum term, said he thought the term fixed was appropriate to the gravity of the crime and not disproportionate to the criminality involved.
37 Finally, Inge v The Queen [1999] HCA 55; (1999) 73 ALJR 1563 was a case of murder which came to the High Court from SA where the crime carries a mandatory life sentence and the sentencing Judge is empowered to fix a non-parole period. The appellant was 23 years of age and the period fixed was 20 years. He appealed against the non-parole period on the ground that it was manifestly excessive. The CCA of SA dismissed his appeal on the particular ground that the relative youth of the appellant at the time when he committed the murder counted against him in determining the appropriate non-parole period. An appeal to the High Court was, however, successful, the Court holding that there could not be a meaningful search for a due proportion between the life sentence imposed and the minimum non-parole period. At 1565 the majority described the attempt to achieve such a due proportion as "a somewhat unrealistic and artificial exercise." Their Honours went on to say:
45 That is not to say that the matters particularised in ground 1.1 did not require consideration in fixing the minimum period, but in my respectful opinion, the error in the approach exemplified by the ground is made manifest when one comes to ground 1.2. The relevance of an intellectual deficit in the offender to the sentencing process generally was recently discussed by this Court in R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998 and again in R v Dalgety [2000] WASCA 10, 3 February 2000 it was held that the offender's intellectual retardation did not eliminate the aim of general deterrence as one to which a sentence should properly give effect, but that factor would, generally speaking, still operate "sensibly moderated". Those cases were relied upon by the applicant, but in my respectful opinion to do so was to treat the process of fixing the minimum period rather as if it was the imposition of an effective finite term of imprisonment and, as has been seen, that is not the basis upon which the minimum period is to be fixed.
(1974) 9 SASR 452
(1974) 131 CLR 623
(1984) 58 ALJR 367
(1992) 8 WAR 387
(1990) 19 NSWLR 112
(1990) 169 CLR 525
(1999) 73 ALJR 1563
(1953) 94 CLR 621
(1936) 55 CLR 499
(1979) 46 FLR 386