Criminal law - State appeal against sentence - Murder - Relevance of statutory minimum non­parole periods for offences of wilful murder and murder prior to the Criminal Law Amendment (Homicide) Act 2008 (WA) - Effect of guilty plea on non­parole period - Manifest Inadequacy - Parity - Circumstances of offending high on the scale of seriousness

Sentencing Act 1995 (WA), s 9AA, s 88(5), s 90(1)

Atherden v The State of Western Australia [2010] WASCA 33

Cockram v The State of Western Australia [2011] WASCA 179

Fraser v The State of Western Australia [2009] WASCA 23

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

Kuzimski v The State of Western Australia [2012] WASCA 202

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

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

Moody v French [2008] WASCA 67

Munda v The State of Western Australia [2013] HCA 38

Pedersen v The State of Western Australia [2010] WASCA 175

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

Stasinowsky v The State of Western Australia [2009] WASCA 20

Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188

The State of Western Australia v O'Kane [2011] WASCA 24

The State of Western Australia v Silich [2011] WASCA 135

Wongawol v The State of Western Australia [2011] WASCA 222

1 McLURE P: This is a State appeal against sentence. The respondent Jonathon Robert Lee (Lee) and his co-offender Sam Jacob Walker (Walker) pleaded guilty to the murder of David John Houston (the deceased).

2 Each offender was sentenced to life imprisonment with a minimum of 12 years to serve before being eligible for parole. The State's sole ground of appeal is that the non-parole period of 12 years is manifestly inadequate. The offender Lee applies for leave to cross-appeal on the ground that his non-parole period infringes the parity principle.

3 The facts of the offence are accurately summarised by the State. Walker and Lee were friends and had known each other for about four years. Lee was in a relationship with Amanda Lee Kelly (Kelly).

4 On 12 May 2012 Walker, Lee and Kelly went quad biking for a few hours. Afterwards, Lee and Kelly returned to their home in East Victoria Park. Lee telephoned Walker to try and obtain cannabis. Lee and Kelly then travelled to Walker's house in Fremantle where he lived with his parents (who were not home at any material time), arriving at about 3.00 pm. All three went to a back room and smoked cannabis.

5 While they were smoking, Walker offered to obtain different drugs for Lee and Kelly. He initially offered to obtain LSD and ecstasy, but both refused. He then offered to obtain crystal methylamphetamine, to which both Lee and Kelly agreed. Later that afternoon, all three left in separate cars to obtain the drugs.

6 Lee and Kelly obtained some syringes from a nearby shop and returned to the Fremantle house. Walker returned to the house with the deceased, who had supplied him with drugs in the past. The deceased supplied them with methylamphetamine.

7 Lee and Kelly went to a bedroom and injected the methylamphetamine. Walker and the deceased smoked cannabis. Later that evening, Walker remarked to Kelly, 'I'm going to kill David', while looking outside in the direction of the deceased. A short while later, Walker came up behind Kelly and put a shoelace around her throat. He said to her, 'Do you think this will work?'.

8 Walker, Lee and Kelly obtained further methylamphetamine from the deceased. After consuming the drug, Lee and Kelly went into a bedroom and then the bathroom to have sex. The deceased remained in the kitchen or lounge room with Walker.

9 Walker obtained a cord or ligature from somewhere in the house. He cut it with a pair of secateurs and then put it over the deceased's neck and around his throat and began to strangle him. The deceased screamed. His screams brought Lee and Kelly out of the bathroom to the kitchen area to find Walker lying on his back on the ground, choking the deceased, who was struggling, with the cord.

10 The deceased tried to resist. With his legs flailing about, he tried to get the cord off his throat. Walker screamed for help, saying that he was slipping.

11 At this point, Kelly grabbed string or something similar and joined with Walker in trying to choke the deceased. The deceased continued to struggle. Kelly called out words to the effect of, 'Knock him out'. Lee, in rapid succession, kicked the deceased three times in the face. He did so with such force as to cause his eye to bulge out of its socket, causing substantial bleeding. Walker continued to choke the deceased.

12 Walker moved to the side of the deceased. Lee told him to put his forearm under the deceased's neck, which he did. Lee then stomped on the deceased's head as hard as he could. Lee then leant down and further punched the deceased to the head about four times. Lee believed that he had fractured the deceased's skull. Walker then continued to choke the deceased for about 30 seconds until both Walker and Lee believed him to be dead.

13 Lee and Walker dragged the deceased into the shower in the bathroom, which was still running. Lee left briefly to check on Kelly. When he returned, he heard a loud gasp coming from the deceased's body.

14 Concluding from the gasp that the deceased was still alive, Lee kicked him in the chest about four times. He then went through the deceased's pockets and took his mobile telephone. Lee went and obtained rope from a shed. Meanwhile, Walker and Kelly started to clean up the blood from around the kitchen.

15 When he returned to the bathroom, Lee took the deceased's body outside and wrapped it in a barbeque cover. Walker assisted Lee in tying the barbeque cover with the rope.

16 Lee then got dressed and took the deceased's other mobile telephone and debit card. He went to Walker's car and reversed it closer to the house. With the aid of some chipboard, Lee and Walker dragged the deceased's wrapped body outside and into the boot of Walker's car. Walker went back inside and Lee drove the car to the end of the street.

17 Walker had sufficient time to clean up and have a shower before his father returned later that night. He had a casual conversation with his father. Lee left and drove to his parents' home in Murdoch, disposing of the deceased's mobile telephones in a skip bin along the way.

18 At about 5.00 am the next morning Walker went to see Lee at his parents' home and discussed with him what to do with the deceased's body, which was still in the back of Walker's car. The two men went back to Walker's house and smoked cannabis. Walker went to a nearby Bunnings store and hired a utility and Lee returned to his parents' home.

19 Walker later transferred the body to the tray of the utility, concealing it by placing some doors on top of the body. Walker drove to an isolated area of land on the outskirts of Bunbury, dug a shallow grave and put the deceased's body in it. He then poured acid over the body to assist in its decomposition before filling the grave with sand, tar and concrete.

20 The GPS in the hired utility led the police to the gravesite. Lee was interviewed on 30 May 2012 and admitted being involved in the deceased's murder. Walker was interviewed on 1 June 2012 and also admitted being involved in the deceased's murder. Both pleaded guilty to the charge at the first reasonable opportunity.

21 The sentencing judge found that each of Walker and Lee intended to cause the death of the deceased.

22 Walker was aged 26 at the time of the offence. He was at that time living with his parents and employed as a labourer in a fencing business. He had previously worked on crayfishing boats but was unable to continue in that industry as a result of fracturing bones in his foot in an accident.

23 Walker was diagnosed with attention deficit hyperactivity disorder at the age of 6 and was prescribed stimulant medication between the ages of 7 and 17. He also had a long history of illicit drug and alcohol abuse. He started using illicit drugs and drinking alcohol at the age of 13. He began using methylamphetamine when he was 18, progressing to intravenous use when he was 23. By the time he was 24 or 25 he had commenced using heroin. In the period leading up to the offence, Walker's drug use had escalated. In 2005 he received treatment at Perth Clinic for a drug induced psychosis, and in 2009 had two presentations at Fremantle Hospital in the context of behaviours secondary to his longstanding anger management problems, drug abuse and dependence. After completing an outward bound course in 2011, Walker was successful in keeping himself drug free for a period of six months. He relapsed back into drug use after suffering the foot injury.

24 The psychiatric evidence before the sentencing judge was to the effect that there was no evidence that Walker had a major mental illness, a mood disorder or a psychotic disorder but that he had a marked inability to control and regulate his emotions with outbursts of anger and violence when real or perceived needs were not met.

25 Walker had a prior criminal record of offences all of which had been dealt with in the Magistrates Court. The convictions were for drug, assault, damage and traffic offences. A fine was imposed in each case. Walker has always had, and continues to have, strong family support.

26 The sentencing judge accepted that since being in custody on remand Walker had taken the opportunity to tackle his substance abuse issues and had shown remarkable improvement. He also found that Walker was remorseful.

27 Lee was aged 23 at the time of the offence. He left school at the end of year 10 and had a sporadic employment history as a result of an entrenched pattern of polysubstance abuse. He began using cannabis at age 14 and from the age of 15 used a variety of drugs including ecstasy and heroin. Lee commenced offending as a juvenile. As an adult, he had been convicted of aggravated armed robbery, for which he received a conditionally suspended imprisonment order which was subsequently breached on two occasions, and drug and stealing offences. As a result of his offending he had been involved in drug and alcohol programmes and received psychological counselling. He also had an extensive history of contact with mental health professionals, generally in the context of his substance misuse.

28 Both the psychiatric and psychological reports refer to Lee exhibiting a grandiose sense of his intelligence and of his ability to manipulate people, including psychologists and other professionals involved in his assessment and treatment. The psychologist and psychiatrist assessed Lee as being at high risk of violent offending in the future without intervention. He continued to have support from family members. The sentencing judge accepted that he was genuinely remorseful.

29 In order to follow the discussion, it is necessary to refer to the current and immediately preceding legislative framework in the Criminal Code (WA) (Code) and Sentencing Act 1995 (WA) in relation to the offence of murder.

30 Prior to the commencement on 1 August 2008 of the Criminal Law Amendment (Homicide) Act 2008 (WA) (the Homicide Amendment Act):

• there was a separate offence of wilful murder (being an unlawful killing committed with an intention to kill);
• for wilful murder, the court was required to impose a sentence of life imprisonment or strict security life imprisonment;
• for strict security life imprisonment, the court was required to impose a non-parole period of at least 20 years but not more than 30 years, unless it was ordered that the offender never be released;
• for life imprisonment for wilful murder, the court had to impose a non-parole period of at least 15 years but not more than 19 years;
• if the offender was convicted of murder (being an unlawful killing committed with an intention to do grievous bodily harm), the non-parole period for life imprisonment was at least 7 years but not more than 14 years.

31 Under the current legislative regime, there is only a single offence of murder that encompasses the former offences of wilful murder and murder (Code, s 279(1)(a) and s 279(1)(b) respectively).

32 In sentencing an offender for murder under the current law:

• a person (other than a child) who is guilty of murder must be sentenced to life imprisonment unless that sentence would be clearly unjust given the circumstances and the person is unlikely to be a threat to the safety of the community when released from imprisonment, in which event the maximum sentence is 20 years (Code, s 279(4));
• if sentenced to life imprisonment, the non-parole period must be of at least 10 years duration unless it is ordered that the offender never be released (Sentencing Act, s 90(1)). There is no longer a prescribed maximum non-parole period.

33 As noted in Mikhail v The State of Western Australia [2012] WASCA 200, the Homicide Amendment Act was based on a report of the Law Reform Commission of Western Australia which recommended against increasing the upper limit of 30 years for the non-parole period. That recommendation was rejected. In his second reading speech, the Attorney General explained that 'In keeping with the Government's tough-on-crime policy, the new sentencing regime for murder is likely to lead to tougher sentences for murderers that are more in line with community expectations in ensuring that the punishment matches the seriousness of their crime'.

34 In summary, the effect of the Homicide Amendment Act was to create a single offence of murder, increase the minimum non-parole period for that offence from 7 years to 10 years for an offender sentenced to life imprisonment and remove all other minimum and maximum non-parole periods. The purpose of the reform was to ensure that the non-parole period for an offender sentenced to life imprisonment for murder is commensurate with the seriousness of the circumstances of the offence. Consistently with the text and purpose of the Homicide Amendment Act, non-parole periods above the statutory maximums under the old regime have been imposed for serious cases of murder committed with an intention to kill (Mikhail (37 years); Kuzimski v The State of Western Australia [2012] WASCA 202 (32 years)) and for serious cases of murder without any intention to kill (The State of Western Australia v O'Kane [2011] WASCA 24 (23 years); Pedersen v The State of Western Australia [2010] WASCA 175 (19 years); Johnston v The State of Western Australia [2012] WASCA 18 (18 years)).

35 However, this is the first occasion, to my knowledge, where a court has imposed a non-parole period for murder under the current law which is below the statutory minimum for an equivalent offence under the old regime. The removal of the statutory minimums for murder with an intention to kill allows for that outcome in appropriate circumstances. The question is whether this is such a case.

36 The minimum period before being eligible for release on parole under s 90(1)(a) of the Sentencing Act is determined by reference to what justice requires, having regard to all the circumstances of the case: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 629. Of course, parole will only be granted, if at all, at the will of the Executive.

37 As to what is meant by 'the circumstances of the case', the court in Stasinowsky v The State of Western Australia [2009] WASCA 20 said:

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. Many of those factors (including such matters as a plea of guilty, remorse, age) will bear on an assessment of the prospects of rehabilitation. The minimum time will be determined by a reference to achieving the recognised sentencing objectives including punishment, retribution and deterrence (both personal and general). If the primary focus is on the prospect of rehabilitation, the non-parole period is more likely to be set at the shortest time required in which a parole authority could form a proper view of the offender's prospects of rehabilitation. That approach was expressly rejected by the High Court in Power [72].

38 As noted in Mikhail, that statement remains relevant notwithstanding the changes made by the Homicide Amendment Act [19].

39 Mandatory minimum and maximum penalties of imprisonment and non-parole periods can have a significant impact on the extent of discounts given for mitigating factors, including pleas of guilty: Atherden v The State of Western Australia [2010] WASCA 33 [41] - [42]; Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 [19]. The constraints attributable to mandatory minimum and maximum non-parole periods for murder have largely disappeared under the current law.

40 However, the usual approach of giving a discount within a standard range for an early plea of guilty for a fixed term (ie, a term that is not life imprisonment), which is now capped by s 9AA of the Sentencing Act at no more than 25% of the head sentence, is not appropriate where the court is required to fix a non-parole period consequent upon a head sentence of life imprisonment. That is consistent with s 9AA which does not apply to life sentences and associated non-parole periods. The gravity of offending which calls for the imposition of a sentence of life imprisonment also influences the weight given to mitigating factors in setting the non-parole period, for the reasons discussed in Stasinowsky. See also Moody v French [2008] WASCA 67 [33]. The inapplicability of the standard discount range to the non-parole period has not previously been expressly addressed by this court because of the almost universal use by judges in the General Division of the Supreme Court of the High Court-endorsed intuitive synthesis approach to sentencing.

41 The State must establish that the sentencing judge made a material error of law or fact. In particular, it is required to demonstrate that the non-parole period of 12 years is outside the range of a sound exercise of the sentencing discretion, it being manifestly inadequate. The question is whether it is unreasonable or unjust. This court cannot intervene merely because it would have imposed a different minimum period.

42 In determining whether a non-parole period is manifestly inadequate, regard is had to the standards of sentencing customarily imposed for offences of that type, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.

43 Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors. This is not a case in which the previous 30 year maximum non-parole period (or any other mandatory minimum or maximum non-parole period under the old regime) has any distorting impact in the comparative exercise. That is to be contrasted with Mikhail (a non-parole period of 37 years) and Kuzimski (a non-parole period of 32 years).

44 As already noted, what is unique about these appeals is that the non-parole period of 12 years is well below the minimum non-parole period of 15 years for wilful murder under the old regime. Indeed, the State contends that the respondents' offending would have attracted a sentence of strict security life imprisonment under the old regime, in which event the minimum non-parole period would have been 20 years. The respondents' relative youth and early guilty pleas would not have been determinative on that question: Stasinowsky (a 24 year non-parole period for an offender aged 19); Fraser v The State of Western Australia [2009] WASCA 23 (a 27 year non-parole period for an offender aged 29). However, it is unnecessary to determine that issue. I am left in no doubt that the non-parole period of 12 years is manifestly inadequate.

45 The circumstances of the offending place it at the high end of the scale of seriousness of the offence of murder. The killing of the deceased was intentional, unprovoked, ferocious and sustained, and merciless in its execution. It is further aggravated by the fact that the offence was committed in company against a defenceless, unsuspecting victim and deliberate steps were taken to conceal the crime. Walker's premeditation and the manner in which he disfigured and disposed of the body is also aggravating.

46 The offenders were not callow youths when they committed the offence. They fit into the twilight category of 'relative youth'. They both had a long history of illicit drug abuse and prolonged experience of its seriously damaging and detrimental effects on their personalities and their lives. Their capacity to behave with such savagery and detachment cannot be laid solely at the door of their methylamphetamine-fuelled intoxication during the period of the offending and its aftermath.

47 Moreover, to suggest, as counsel for Walker did, that his culpability was materially reduced because he was motivated to kill by the perceived need to protect the deceased's girlfriend from violence is fanciful. The conduct of Walker (like that of Lee) is so far outside the scope of what may be regarded as consistent with the frailty of our humanity that it is properly described as gratuitous, irrational violence.

48 Further, the non-parole period of 12 years is not broadly consistent with comparable cases. I have reviewed all of the cases in which offenders have been sentenced for murder under the current law. A non-parole period of 12 years is significantly lower than most of the non-parole periods imposed on offenders who pleaded guilty to murder but who had no intention to kill: O'Kane; Pedersen; Atherden; Wongawol v The State of Western Australia [2011] WASCA 222. That may be expected to occur very occasionally but not routinely.

49 It is dramatically below the non-parole periods imposed for wilful murders of comparable seriousness in Stasinowsky and Fraser. It is also well below the non-parole period of 22 years imposed for murder with intent to kill in Cockram v The State of Western Australia [2011] WASCA 179 where there was a plea of guilty albeit at a late stage.

50 The respondents relied on The State of Western Australia v Silich [2011] WASCA 135. In that case the offender was found guilty after trial of the wilful murder of his parents. The offender was convicted under the old regime and sentenced under the current law. On appeal the non-parole period was increased from 15 years to 19 years. Although the jury found that the offender intended to kill, there were some unusual aspects of the offending. The jury rejected the offender's defence that he was acting involuntarily at the time because he was sleepwalking. There was also an issue at trial as to whether the level of his alcohol intoxication permitted a finding of intention to kill. The sentencing judge found that there was no planning or premeditation involved, that the offender had no history of violence and that he was at low risk of reoffending. Following the attacks, the offender arranged the bodies of the deceased so that their hands were adjoining and then telephoned a friend and told him that he did not know what had happened and that he 'just went berserk'. The police were then advised.

51 It is clear from a reading of the transcript of the hearing of the appeal and the reasons for decision in Silich that there was no suggestion that the circumstances would have justified strict security life imprisonment under the old regime and thus a non-parole period of 20 years or more. The focus at the hearing and in the reasons was on the non-parole period of 15 years to 19 years that applied to life imprisonment for wilful murder under the old regime. In that context it is relevant to note that then, as now, an offender sentenced to life imprisonment is to serve that sentence and the non-parole period concurrently with any other term that he or she is serving or has yet to serve: s 88(5) of the Sentencing Act. Silich is distinguishable from this case and all the other cases decided under the current law.

52 For these reasons, the non-parole period of 12 years is manifestly inadequate. In a State appeal against sentence, the court has a residual discretion to decline to allow an appeal against a sentence that is erroneously lenient: Munda v The State of Western Australia [2013] HCA 38. However, there is nothing in the facts or circumstances of these appeals that require or justify this court to exercise any such discretion. Neither respondent suggested otherwise.

53 It remains for this court to resentence the respondents. Lee contends that the parity principle requires that he receive a shorter non-parole period than Walker. 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:

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 (609).

54 There are some material differences in the involvement of Lee and Walker in the offence. Walker's conduct was premeditated. Lee's was not. The fatal injury (neck compression) was inflicted by Walker not Lee. However, Lee fully and enthusiastically participated in and facilitated the violence inflicted on the deceased with an intention to kill him. The fact that he did not inflict the ultimately fatal injury was not for want of trying on his part. The fact that it was inflicted by Walker is of little moment.

55 As to the disposal of the body, Lee was more actively involved at the outset, whereas Walker took over after hiring the utility. Walker's conduct in relation to the disfigurement and disposal of the body was an aggravating feature. On the other hand, Lee's personal circumstances are less favourable than those of Walker. He had a more serious criminal record and was assessed by experts as being at high risk of re-offending. When regard is had to the totality of the circumstances of the offending and the personal circumstances of the offenders, they should be treated equally. I would refuse leave for the sole ground of the cross-appeal which is thereby taken to be dismissed.

56 Having regard to all relevant circumstances, the justice of the case requires that a non-parole period of 21 years be imposed. Accordingly, I would allow the appeals, set aside the non-parole period of 12 years imposed on each respondent and in lieu thereof impose a non-parole period of 21 years.