For the reasons that follow, we conclude that ground 1 has no merit.
The appellant did not maintain the complaint that the learned sentencing judge erred by having regard to first instance sentences that he had imposed for the crime of murder. Senior counsel for the appellant was correct not to pursue this complaint. To expect a sentencing judge to relate that experience and specify those cases, often too numerous to mention, would be unrealistic and burdensome.
The sentencing of offenders at first instance does not occur in an experiential vacuum. A sentencing judge does not, and should not, ignore the experience gained from sentencing offenders in the past, or from their knowledge of decisions of this court. It is one of the strengths of the criminal justice system that offenders are sentenced by judicial officers who are able to bring to bear their experience to the process of deciding a just sentence. The gaining of experience in this field is no different from how experience is gained generally. It is gradual and often instinctive. A judge cannot reasonably be expected to retain in their mind all of the individual sentences that they have imposed. It would be completely unrealistic, burdensome, and undesirable to require a sentencer, as a matter of routine, before sentencing an offender, to give notice to the parties of the outcomes of all similar cases they have decided in the past.
It must also be borne in mind that past sentences are no more than historical statements of what has happened in the past. The range of sentences imposed in the past does not fix the boundaries within which judges must, or even ought, to sentence.[16]
The real issue raised by ground 1 is not whether a sentencer is entitled to use their experience, but whether, on the facts of this case, the sentencing judge was obliged to give the appellant's counsel notice of the cases he had imposed at first instance in which a minimum period of 20 years or more was imposed where there was no premeditation.
As Buss P and Mazza JA acknowledged in Austin v The State of Western Australia,[17] a sentencing judge must conduct sentencing proceedings in accordance with the rules of procedural fairness. The rules of procedural fairness are concerned with processes, rather than outcomes. They are rules which govern what a court must do in the course of deciding how an offender is to be sentenced.[18] Fairness in this context is essentially a practical concept. It is not abstract in nature. The rules are concerned to avoid practical injustice.[19]
There are no hard and fast rules as to when a sentencing judge must inform the parties of specific cases decided in the past which may have some bearing on the sentencing of an offender. Generally, it is not necessary for a sentencing judge to give notice of comparable cases. However, there may be situations where, in order to avoid surprise and provide the assurance that fair procedures have been adopted, a sentencing judge should give notice of the outcome of a particular case or cases where the parties appear ignorant of them.[20] Such cases are uncommon. The present case is not one of them.
In the present case, counsel for the appellant made detailed submissions concerning the comparable cases. His Honour plainly understood the submission being made by the appellant, that the imposition of a minimum period of 20 years or more was generally imposed in cases where the killing was premeditated, in the sense that it involved planning, as opposed to cases where the intention to kill was formed momentarily before the event.
The proposition put by defence counsel never went so far as to submit that there were no cases where a minimum period of 20 years or more was imposed which did not involve premeditation. Such a submission would not have been tenable by an analysis of the comparable cases (as will be seen when we deal with grounds 3 and 4), and, even if it was historically true, it would not prevent the sentencing judge in the present case from imposing a minimum period of 20 years or more, provided that the seriousness of the offence warranted such a disposition. None of these propositions are novel and they were not thought controversial in the sentencing proceedings. When seen in its proper context, the sentencing judge's reliance on his own experience did no more than reinforce these points.
When the sentencing remarks are read as a whole, it is clear that the sentencing judge had regard to the comparable cases decided by this court, and also had regard to his experience as a sentencing judge, to impose the minimum period of 20 years. This process was transparent and fair. The appellant was not taken by surprise. There has been no practical injustice suffered by the appellant. Moreover, to uphold this ground, in the circumstances of this case, would impose an unrealistic burden upon sentencing judges, with no benefit whatsoever to the administration of criminal justice.
[2]
The learned sentencing judge erred in law by failing to give any mitigatory weight to the appellant's formal admissions and willingness to facilitate the course of justice, in the preparation of the matter for trial, prior to the entry of his plea of guilty.
[3]
Ground 2 is to be determined having regard to the following background.
The appellant was arrested and charged on 28 August 2021. On 18 April 2023, the appellant was indicted on a single offence of murder.
On 13 March 2024, Mr Yovich, on behalf of the appellant, emailed the Office of the Director of Public Prosecutions offering to plead guilty to manslaughter. He further stated that, if the offer was rejected (as it was on 14 March 2024), the appellant would make admissions at his trial as follows:
[4]
a) On Friday 27 August 2021 at approximately 3:30pm, Tony Daniel Ditri ('Mr Ditri') died after receiving two gunshot wounds at the Pemberton Waste Transfer Station ('tip').
>
> b) The gunshot wounds were caused by an Adler 12‑gauge shotgun, serial number 1614857 ('Adler shotgun').
>
> c) Mr Della Franca fired the Adler shotgun twice, causing the gunshot wounds.
>
> d) After Mr Ditri's death, Mr Della Franca moved the deceased's body to his farm where he stored it temporarily.
>
> e) Mr Della Franca ultimately took Mr Ditri's body to Anthony Grey's farm, 511 Glauders Road, Pemberton, where he buried the body in a paddock.
>
> f) Mr Della Franca also drove Mr Ditri's truck and trailer away from the tip. He drove the truck and trailer south of Pemberton and along Allis Road. He got the truck and trailer bogged on Allis Road before getting to the river. He left the keys in the truck and walked back to his farm. (Mr Della Franca's recollection was that he did not dispose of the keys to Mr Ditri's truck, and he does not know what happened to them).
[5]
Mr Yovich also informed the prosecutor that, subject to agreement about some edits, the statements of two witnesses could be read into evidence at trial, without the necessity of calling the witnesses. Mr Yovich also said that forensic evidence compiled by other witnesses could be given by a police officer, and that senior counsel did not foreshadow, or expect, any issue to be taken with respect to the continuity of forensic evidence at the trial.
On 12 June 2024, the appellant signed formal admissions (pursuant to s 32 of the Evidence Act 1906 (WA)) as foreshadowed in the email of 13 March 2024.
On 16 July 2024, Mr Yovich sent an email to the prosecutor containing proposed further admissions to dispense with the DNA and blood pattern analysis witnesses.
On 23 July 2024, the prosecutor emailed Mr Yovich to confirm that the proposed admissions would satisfy the State.
On 25 July 2024, Mr Yovich advised the prosecutor that the appellant would plead guilty to murder. The commencement of the trial had been scheduled for 26 August 2024.
[6]
It was submitted on appeal by Mr Yovich that where an accused person facilitates the course of justice, as the appellant had, by taking steps designed to shorten the trial, to confine the issues to be determined by the jury, or to alleviate the necessity for the prosecution to call a witness or witnesses, an offender should receive a discount on their sentence if they are convicted, whether or not the conviction results from a plea of guilty. The rationale for such a discount is that such conduct has a utilitarian benefit and may benefit witnesses who would otherwise be required to give evidence at a trial. The making of admissions or concessions prior to trial by an accused should be encouraged, and therefore should be rewarded whether or not the matter actually proceeds to trial.
Mr Yovich also submitted that any discount for making admissions or cooperating in the shortening of the trial process should be separate to any discount for a plea of guilty.
In oral argument, Mr Yovich accepted that, in the present case, the discount that could be given to the appellant was not 'very much'. However, he contended that it was clear from the sentencing remarks that his Honour gave no discount.
Before this court, Mr Yovich encapsulated his submissions in this way:[21]
[7]
But ... the essence of the point is that it was a separate, stand‑alone, albeit related [to the plea of guilty], mitigating factor. It justified some mitigation. It got no mitigation. And nothing in the results suggests that the - or in the sentencing reasons, suggests that the plea of guilty discount, expressly or otherwise, took into account that additional cooperation. That's the essence of the ground.
[8]
It was accepted that his Honour did not expressly acknowledge in the sentencing remarks, as a separate head of mitigation, the appellant's admissions and other concessions given before notification of the plea of guilty. However, the respondent submitted that the 'real value' in the appellant's cooperation came from the plea of guilty, and that the discount given for the plea of guilty, in effect, included his earlier cooperation. Alternatively, the discount that could reasonably be given for the facilitation of the course of justice before the notification of the plea of guilty was nominal and would not have resulted in any different minimum period being imposed.
[9]
The issue raised by ground 2 is whether the learned sentencing judge failed to take into account, as a relevant mitigating factor, the steps referred to between [62] ‑ [66] above, and, if so, whether the failure was material to the sentencing outcome.
It must be accepted that, in the sentencing proceedings, defence counsel submitted that the steps referred to at [62] ‑ [66] above and the appellant's plea of guilty were mitigating factors. In neither the oral nor the written submissions was it suggested that the learned sentencing judge was obliged to give separate and distinct discounts. They were, in effect, presented together as associated matters, with primary emphasis given to the plea of guilty.
In these circumstances, it is not surprising that the learned sentencing judge did not give separate and distinct discounts. Rather, as defence counsel had approached the matter, the sentencing judge focused his attention on the mitigating effect of the plea of guilty.
The failure to give separate and distinct discounts does not, in the circumstances of the present case, lead to the conclusion that the sentencing judge disregarded, or overlooked, the fact that the appellant had given the assistance referred to at [62] ‑ [66] above. It may well be that the learned sentencing judge included the appellant's earlier concessions in the discount that he gave for the plea of guilty, bearing in mind the overlap between the circumstances as referred to above. After all, the appellant's earlier assistance, before notification of his intention to plead guilty, matters little, because the plea of guilty entitled the appellant to the full benefit to be received for the fact that there would be no trial and, of course, no witnesses to be called.
If there was some separate and distinct mitigatory benefit derived from the earlier offers of the appellant, it would, in light of the plea of guilty, result in very little additional mitigation. Even if it was accepted that the learned sentencing judge erred as alleged in ground 2, in our opinion, on a resentencing by this court, when all relevant factors are considered, particularly the objective criminality of the offending, no different sentence would be imposed.
Ground 2 fails.
[10]
As mentioned earlier, grounds 3 and 4 amount to a claim that the minimum period of 20 years was manifestly excessive.
[11]
The general principles to be applied in cases where a minimum period is alleged to be manifestly excessive were explained by the court in Sturniolo v The State of Western Australia,[22] as follows:
[12]
The following principles are well established.
A ground of appeal which alleges that a sentence, including a minimum term, is manifestly excessive asserts an implied or inferred error. Implied error arises where the end result is so unreasonable or unjust that the appellate court must conclude that there has been some misapplication of principle in the exercise of the sentencing judge's discretion.
In determining whether a minimum term is excessive, it is necessary to have regard to the principles applicable to the fixing of the minimum term and the factors which a sentencing judge must take into account. Relevant factors include the maximum penalty for the offence, any upper or lower limits on the available minimum term, the standards of sentencing customarily observed with respect to minimum terms for that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
A non‑parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum term.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a non‑parole period is within the range of other non‑parole periods imposed for similar offending does not of itself necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a non‑parole period is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. The sentencing range is a factor in deciding whether a sentence is manifestly excessive. However, the sentencing range does not fix the bounds of a sound exercise of the sentencing discretion in a particular case.
[13]
In his written and oral submissions, senior counsel for the appellant acknowledged the seriousness of the appellant's offending, having regard to the aggravating factors found by the learned sentencing judge and described above at [33]. Of the seven aggravating factors, senior counsel for the appellant submitted that the features that the appellant initiated the confrontation with Mr Ditri, that Mr Ditri was vulnerable, and that the killing occurred at a public place did not significantly elevate the seriousness of the offence. As Mr Yovich put it in his written submissions to [23]is court:23
[14]
[I]t is submitted that the features of the offence that best help place it in the scale of seriousness are the appellant's intention to kill, the lack of premeditation, the use of a firearm and the firing of two shots, one in the back (counterbalanced against the fact that the attack was not a sustained one and did not cause prolonged suffering) and the post‑offence cover‑up.
[15]
The written submissions filed on behalf of the appellant involve a detailed analysis of a large number of cases decided by this court in which the adequacy or inadequacy of a minimum period was challenged. In all, more than 30 such cases were mentioned.
The appellant emphasised the outcomes in Silva v The State of Western Australia;[24] Ritchie v The State of Western Australia;[25] The State of Western Australia v Churchill;[26] The State of Western Australia v Smith;[27] Angliss v The State of Western Australia;[28] Egitmen v The State of Western Australia;[29] Stinson v The State of Western Australia;[30] The State of Western Australia v Lee;[31] and Cockram v The State of Western Australia.[32] Those cases, like the present case, involved the intentional murder of a single victim, but without extensive deliberation or planning beforehand. The appellant submitted that the outcomes in Ritchie and Lee could be distinguished on the facts. The minimum periods imposed in the remaining cases ranged from 15 years to 22 years.
Mr Yovich also referred to a number of cases which involved the murder of a single victim with an intent to kill, followed by an extensive cover‑up of the crime, being Lee; The State of Western Australia v Attwood;[33] Ruthsalz v The State of Western Australia;[34] Broadbent v The State of Western Australia;[35] Mack v The State of Western Australia;[36] and the related cases of Mansfield and Marchesano v The State of Western Australia.[37] In relation to these cases, it was submitted that the minimum periods ranged from 17 years to 26 years. However, in every case except Lee, the offenders, unlike the appellant in this appeal, went to trial. Further, all of the cases but Mack involved planned and premeditated killings, with multiple participants. It was submitted that all of these cases were materially more serious than the appellant's case, yet the appellant received a minimum period broadly comparable to those of several of the offenders involved in these cases.
In this appeal, the appellant maintained the submission made in the sentencing proceedings, that the comparable cases show that, in cases involving no extensive premeditation, like the present case, it is usual for a minimum period of 20 years or less to be imposed.
In essence, it was submitted on behalf of the appellant that, having regard to the cases referred to at [83] and [84] above, the minimum period imposed on the appellant was inconsistent with the outcomes in these cases.
The appellant emphasised the contention that the appellant will have no reasonable expectation of a useful life after release. It was submitted that this prospect should have resulted in the imposition of a lower minimum period. The appellant will be 84 years of age at the time the minimum period expires. This factor, in combination with the other mitigating factors, including the appellant's plea of guilty and his favourable antecedents, should have led his Honour to impose a substantially lower minimum period.
[16]
The respondent submitted that the minimum period of 20 years was amply justified by the serious features of the offending and the absence of significant mitigation, apart from the guilty plea. It was submitted on behalf of the respondent that no significant reduction could be given for the possibility that the appellant would not have a useful life after he served the minimum period, because the seriousness of the offending was such that he had forfeited the right to such an expectation.
As for the comparable cases, the respondent argued that, bearing in mind that there is no discernible tariff in relation to the minimum period for murder, and that the guidance comparable cases can give is flexible and designed to ensure a broad consistency of outcomes, the minimum period imposed on the appellant was not inconsistent with the standards customarily imposed.
The respondent submitted that the present case was a serious example of its type, and that the minimum period of 20 years was within the proper range of an appropriate exercise of the sentencing discretion.
[17]
Subject to exceptions which do not apply to this case, the mandatory penalty for murder by an adult is life imprisonment.[38] When imposing a life sentence, the court may either order that the offender never be released or set a minimum period of at least 10 years that the offender must serve before being eligible for release on parole: see s 90(1) of the Sentencing Act 1995 (WA). There is no upper limit where the court sets a minimum term.[39]
There is no doubt that the offending the appellant engaged in involved a high level of objective criminality. Mr Yovich began his plea in mitigation by accepting that the offence was one of 'grave seriousness'.[40] Mr Ditri had done nothing to justify the appellant's ire. The appellant's belief that Mr Ditri had stolen things from him was without foundation. On 27 August 2021, the appellant, having seen Mr Ditri at the rubbish tip, drove there, armed with a loaded 12‑gauge shotgun. Although the sentencing judge found that, at the point he left his property, it could not be said that the appellant intended to kill Mr Ditri, the appellant, at least, contemplated the possibility of violence, and prepared himself for that eventuality.
Upon his arrival at the tip, and without any hint of provocation on the part of Mr Ditri, the appellant had formed the intention to kill Mr Ditri. Once formed, he carried out his intention by discharging, at very short range, two shotgun blasts, one after the other, including a blast to Mr Ditri's back. Mr Ditri was at all times unarmed and was completely defenceless against the appellant's attack. He was evidently taken by surprise, and had no chance of escaping. The appellant's actions were ruthless, cold‑blooded, and cowardly.
Although the killing occurred at the local rubbish tip, a place to which the public had access, we accept that this was not, having regard to all of the surrounding circumstances, a matter of any great importance. However, all of the other aggravating factors identified by the learned sentencing judge, considered together, more than justify the conclusion that the offending involved a high degree of criminality.
Immediately after the commission of the offence, the appellant embarked upon a concerted process of disposing of Mr Ditri's body in an attempt to hide what he had done. Further, he continually and deliberately misled the police as to the circumstances of the killing and where the body was located. It took more than two weeks after the killing for the body to be found.
Mr Ditri's death has devastated his family and community.[41]
The most significant mitigating factor was the appellant's plea of guilty. Even though the plea was entered late in the proceedings, and in the face of an overwhelming prosecution case, it saved the victims from having to live through the trauma of a trial, and it saved the community the cost of such a trial. There is nothing to indicate that the appellant is truly remorseful for the crime.
All of the other matters of mitigation were, in our opinion, of little weight because of the seriousness of the crime. Here, we are speaking of the appellant's good character, his good works in the community, and his health.
As to the effect of the appellant's age, at the time he was sentenced he was 67 years old. By itself, this would not usually be such an age as to have any real impact on the sentence. However, if the appellant serves the minimum period imposed by the learned sentencing judge, he will be 84 years old by the time he is eligible for release on parole. There is a realistic prospect that, if he is released at that time, his reasonable expectation of a useful life will, in all likelihood, be destroyed.
In Gulyas v The State of Western Australia,[42] Steytler P discussed the relevant principles applicable to the sentencing of an offender who has reached an advanced age. In his Honour's summary of the applicable principles, he noted that a sentencer may take into account the hardship for an offender arising out of their knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of a useful life after release.[43] However, his Honour observed that the punishment must still reflect the crime, and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of a useful life after release.
We now turn to the comparable cases.
In 2008, amendments were made to the Code to do away with the separate offences of wilful murder and murder, to create a single crime of murder (the present s 279 of the Code), and to make changes to the regime of penalties.[44]
Since the 2008 amendments, there have been numerous sentence appeals decided by this court, challenging the length of the minimum period imposed for the crime of murder. All, or nearly all, of these cases were cited in the sentencing proceedings and in this court, where they were described and analysed at some length in the parties' written submissions.
Many of the cases cited by the parties in this court were of little or no assistance. No less than 12 of them, being: Ruthsalz; Mansfield; Marchesano; McIntosh v The State of Western Australia;[45] Silva; Corbett; Crossland v The State of Western Australia;[46] Zwerus; Angliss; Egitmen; Stinson; and Johnston v The State of Western Australia,[47] were offender appeals where this court refused leave to appeal in respect of a ground which alleged that the minimum period was manifestly excessive. In other words, in each case, this court found that the minimum period was not even arguably excessive. Such cases in no way provide a marker as to the upper limits of the proper exercise of the sentencing discretion.[48]
State appeals against sentence in which this court chose not to interfere with a minimum period but found it to be either lenient or at the low end of a sentencing discretion provide little assistance: see, for example, Attwood and Smith.
Helpful reviews of the comparable cases were undertaken by McLure P in Churchill[49] and by Buss JA in Stoeski.[50] These reviews were cited with apparent approval in Doohan v The State of Western Australia.[51] Another review was undertaken by Mitchell J in Corbett.[52]
We have read all of the cases cited by the parties in this appeal. The cases are set out in alphabetical order in a schedule to these reasons. Some non‑exhaustive propositions may be discerned:
[18]
(1) The minimum period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation, through conditional freedom after imprisonment for the minimum term.
(2) The guidance afforded by comparable cases is flexible, not rigid.
(3) It is not uncommon for minimum periods to be between the range of 17 and 23 years for a single offence of murder, including in cases where there has been a plea of guilty and/or an absence of any intention to kill.
(4) Ordinarily, an intention to kill aggravates the seriousness of the offence.
(5) The range of minimum periods imposed in other cases does not fix the range of an appropriate exercise of the sentencing discretion in any particular case. The mere fact that a minimum period is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. Conversely, the fact that a minimum period falls within the ordinary range does not necessarily mean that the sentencing discretion has not miscarried. The sentencing range is but one factor in deciding whether a sentence is manifestly excessive.
(6) In the end, what is crucially important is that each case is decided on its own facts and circumstances, and that the minimum period reflects the principle that it is the minimum period of imprisonment that justice requires the offender to serve.
[19]
While the presence and degree of premeditation is a relevant and, generally, a significant sentencing factor, it is not the predominant sentencing consideration. The cases do not stand for the proposition that, where there is no extensive premeditation, a minimum period of 20 years or more should generally not be imposed.
In our opinion, taking into account all of the facts and circumstances of the offence and the offender, the imposition of a minimum period of 20 years was entirely appropriate, particularly having regard to the high level of objective criminality and the limited mitigation available to the appellant. In our opinion, the present case was one where the appellant, by his actions, has forfeited the right to any reasonable expectation of a useful life after release. The imposition of a minimum period of 20 years' imprisonment was not unreasonable or plainly unjust. Implied error has not been demonstrated. Grounds 3 and 4 have not been made out.
[20]
While we would grant leave to appeal in respect of grounds 3 and 4, we would refuse leave to appeal on grounds 1 and 2. The appeal must be dismissed because none of the grounds have been made out.
The orders that we would make are as follows:
Leave to appeal is granted on grounds 3 and 4.
Leave to appeal is refused on grounds 1 and 2.
The appeal is dismissed.
[21]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[48] See GUE v The State of Western Australia [2022] WASCA 121 [59], where this court expressly approved of the statement made by Quinlan CJ in Pedrochi v Brown [2021] WASC 81 [43].
The facts were summarised in his Honour's sentencing remarks: The State of Western Australia v Della Franca [2024] WASCSR 21.
The appellant had lived in Pemberton all his life. At the time of the offence, he was 64 years of age. He lived alone on his family farm, where he grew avocado trees, and grazed cattle and sheep.
Mr Ditri, the victim, was, at the time of his death, 40 years old. He lived in Pemberton with his wife and their three young children. He owned and ran a gardening, landscaping and handyman business. He was a well‑known and well‑regarded figure in the Pemberton community.
In about 2018, the appellant began to develop baseless, paranoid beliefs that locals were stealing his avocados and livestock. Consequently, he installed CCTV surveillance cameras to monitor anyone who approached his farm. One such camera, which overlooked the appellant's property, was near the local rubbish tip.
In early August 2021, the appellant told a local resident that Mr Ditri was stealing his sheep. On 21 August 2021, the appellant reported to the police that his avocadoes and livestock were being stolen from his farm. On 22 August 2021, two police officers attended the appellant's farm, where he repeated these allegations and added an allegation that marron were being stolen from his dam. Later that day, the appellant gave the police a note which listed the names of people whom he believed were stealing from him. At the top of the list was Mr Ditri. There is no evidence Mr Ditri had stolen anything from the appellant.
After they had spent some time looking around the appellant's farm, one of the police officers, Sergeant Barke, told the appellant to call police if he saw any trespassers in the days that followed.
On 27 August 2021, Mr Ditri spent the day mowing lawns. He finished his last job at about 3.30 pm, and then drove to the local rubbish tip to dispose of the lawn clippings. He drove there in his distinctive truck and trailer, and dumped the clippings.
Meanwhile, it came to the appellant's attention that Mr Ditri was at the tip. The appellant drove to the tip, taking with him a loaded Adler 12‑gauge shotgun. The appellant got out of his vehicle, confronted Mr Ditri with his baseless allegations of theft, and then shot him twice with the shotgun from a distance of about one metre away. One of the shots struck Mr Ditri's back and exited through his chest.
Both shots were fired in quick succession, but it was necessary for the appellant to work the action of the shotgun to eject the spent cartridge from the first shot and then load the next cartridge. The shotgun blasts immediately killed Mr Ditri.
The appellant alleged that, before he shot Mr Ditri, he had pushed him, and Mr Ditri had pushed the appellant back. The learned sentencing judge said that he was unable to make a finding that this occurred, but, in any event, his Honour did not consider that it made any significant difference to the appellant's criminality. This point was accepted by senior counsel for the appellant, Mr Yovich SC, at the sentencing hearing. Further, it was accepted on behalf of the appellant, and his Honour found that at the time when the appellant shot at Mr Ditri, he intended to kill him.
Mr Ditri's body was then taken by the appellant to his farm. The appellant returned to the rubbish tip and drove away Mr Ditri's truck and trailer, intending to leave them somewhere near the Warren River. He put two marron nets in the trailer to make it look as if Mr Ditri had intended to go marron fishing. However, before arriving at the planned destination, the truck became bogged. The appellant left the truck where it was bogged, disposed of the keys, and walked the approximately 15 km back to his farm.
Upon his return, the appellant put Mr Ditri's body into a large fertiliser bag. He wrapped the body in a large sheet of plastic and put it into an apple crate. Using a forklift, the appellant put the apple crate onto the back of his utility. He then drove to a neighbouring farm, on which he grazed some of his sheep. The appellant dug a hole in a paddock and buried Mr Ditri's body, which was still in the fertiliser bag. He then dumped the apple crate, hid the plastic sheet in a secluded spot, and drove home.
When Mr Ditri did not come home that evening, a family friend went looking for him. The family friend went to the rubbish tip. When he got there, he heard five or six gunshots coming from the direction of the appellant's farm. At the sentencing hearing, his Honour found that the only reasonable explanation for the appellant firing the shots in that direction was to scare people away from the rubbish tip, in case they discovered evidence that may have implicated him.[2]
The family friend persisted with his search, and heard more gunshots. He left the rubbish tip, and eventually drove to the appellant's house, where he got out of his car and asked the appellant to stop shooting at him because he wanted to search the rubbish tip. The appellant accused the family friend of stealing from him. The appellant was observed to be in a highly agitated state.
At about midday the following day, 28 August 2021, a group of local men found the apple crate and the plastic sheeting. The police were alerted. Two detectives from Bunbury went to Pemberton, and arrested the appellant as a suspect in relation to Mr Ditri's death. The appellant participated in a video‑recorded interview. He denied going to the rubbish tip or seeing Mr Ditri the previous day.
On 29 August 2021, the appellant told detectives that he had more to say, and participated in a second video‑recorded interview. In this interview, the appellant told police that a CCTV camera had alerted him to the presence of someone at his avocado patch. The appellant said that he went down to the avocado patch, but could not see anything. The appellant said that he received another alert about 10 minutes later, and let off 10 ‑ 20 rounds of ammunition from his gun. The appellant said that, when he went down to the same area of the avocado patch for the second time, he found Mr Ditri's body. The appellant told police that he wrapped Mr Ditri's body, took him to the Larkin Bridge, and dumped his body in the river. This account of how Mr Ditri met his death, where he was killed, and what the appellant had done with the body was false.
Later in the same interview, the appellant changed his version of events. The appellant admitted that he shot Mr Ditri at the rubbish tip, but said that he had done so after 'a scuffle'. The appellant falsely told police that he went to the tip with a .22 calibre rifle, and that during the struggle the rifle had accidentally discharged. The appellant also falsely claimed that he shot Mr Ditri only once.
Later still in the interview of 29 August 2021, the appellant agreed that he had lied about the firearm he used to kill Mr Ditri. He agreed that he had used a shotgun, not the .22 calibre rifle.
On 30 August 2021, in a further video‑recorded interview, the appellant maintained that the shooting was an accident. The appellant said that he had taken the shotgun to the rubbish tip for his own protection and to scare Mr Ditri. When the appellant was asked where he had disposed of Mr Ditri's body, he gave the police a location some 20 km from where he had actually buried the body. The learned sentencing judge found that the appellant told this lie in order to prevent the police finding Mr Ditri's body.
On 15 September 2021, Mr Ditri's body was found at a neighbouring farm, where it had been buried. A post‑mortem examination showed that there was more than one gunshot wound. Further investigation revealed that Mr Ditri had been shot from a distance of between 1 m and 1.4 m. It was therefore impossible for the shots to have been fired in a physical struggle, as the appellant had described to the police. Eventually, a spent shotgun cartridge was found at the rubbish tip. This cartridge was found to have been fired from the shotgun that police believed had been used by the appellant to kill Mr Ditri.
It was submitted on your behalf that there are some patterns that may be discerned from examining cases in the Court of Appeal. [Senior counsel for the appellant] referred to about 40 cases in all, including 27 cases referred to in Attwood v The State of Western Australia [2020] WASCA 49. He set out the other cases in the written submissions. I am not going to name all of those cases, because they were referred to for general principle, not for comparative purposes.
[Senior counsel for the appellant] submitted on your behalf that the lack of premeditation on the part of an offender is a significant factor in determining the appropriate non‑parole period. He submitted that a consideration of all the cases where the Court of Appeal has considered sentences for murder under the current legislative regime reveals that in almost every case where the non‑parole period was 20 years or more the crime was premeditated. I can say for certain that there have been a number of cases in which I have imposed a sentence in that range, and there have been other sentences imposed at first instance of which I am aware, where that was not the case. This is the difficulty with simply examining the outcomes in the Court of Appeal.
[Senior counsel for the appellant's] written submissions went on to deal with two particular cases where there was no premeditation and submitted that the circumstances of those offences were more serious than yours. I accept that is the case. However, I have some difficulty with the final proposition put by [senior counsel for the appellant], that is: