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[2016] WASCA 16
Court of Appeal (WA)
2016-01-19
Buss JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : THE STATE OF WESTERN AUSTRALIA -v- STOESKI [2016] WASCA 16
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Criminal law - State appeal against sentence - Respondent convicted, on his pleas of guilty, of two counts of murder - Sentence of life imprisonment, with minimum nonparole period of 21 years, on each count - Whether minimum terms manifestly inadequate
Sentencing Act 1995 (WA), s 7(2)(a), s 8(2) (repealed), s 9AA, s 85(1), s 88(5), s 90(1)(a)
Minimum nonparole periods imposed by the sentencing judge set aside
Minimum nonparole period of 27 years substituted on each count
Respondent : Seamus Rafferty, Barrister & Solicitor
Angliss v The State of Western Australia [2015] WASCA 8
Atherden v The State of Western Australia [2010] WASCA 33
Austic v The State of Western Australia [2010] WASCA 110
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Butler v The State of Western Australia [2010] WASCA 104
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
CMB v Attorney General (NSW) [2015] HCA 9; (2015) 89 ALJR 407
Cockram v The State of Western Australia [2011] WASCA 179
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Egitmen v The State of Western Australia [2014] WASCA 198
Fraser v The State of Western Australia [2009] WASCA 23
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Heijne v The State of Western Australia [2010] WASCA 86
Johnston v The State of Western Australia [2012] WASCA 18
Khan v The State of Western Australia [2013] WASCA 193
Kowaleff v The State of Western Australia [2010] WASCA 183
Kuzimski v The State of Western Australia [2012] WASCA 202
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mack v The State of Western Australia [2014] WASCA 207
Mikhail v The State of Western Australia [2012] WASCA 200
Mitchell v The Queen (1998) 20 WAR 257
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Pedersen v The State of Western Australia [2010] WASCA 175
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
Prestidge v The State of Western Australia [2014] WASCA 16
Rosewood v The State of Western Australia [2014] WASCA 21
Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656
Silva v The State of Western Australia [2013] WASCA 278
Stasinowsky v The State of Western Australia [2009] WASCA 20; (2009) 40 WAR 11
Stinson v The State of Western Australia [2014] WASCA 72
The State of Western Australia v Churchill [2015] WASCA 257
The State of Western Australia v Lee [2013] WASCA 246
The State of Western Australia v O'Kane [2011] WASCA 24
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
The State of Western Australia v Smith [2015] WASCA 87
Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91
Zwerus v The State of Western Australia [2015] WASCA 174
1 BUSS JA: This is a State appeal against sentence.
2 The respondent was convicted, on his pleas of guilty, of two counts of murder.
3 Count 1 alleged that, on 15 May 2013 at Girrawheen, the respondent murdered Venesa Marija Farcich, contrary to s 279 of the Criminal Code (WA) (the Code).
4 Count 2 alleged that, also on 15 May 2013 at Girrawheen, the respondent murdered Saso Filkovski, contrary to s 279 of the Code.
5 Simmonds J sentenced the respondent to life imprisonment, with a minimum term of 21 years before eligibility for parole, on each count. The sentences were backdated to 15 May 2013, being the date on which the respondent was taken into custody for the offences.
6 The life sentences are to be served concurrently. See s 88(5) of the Sentencing Act 1995 (WA).
7 I would allow the appeal, set aside the minimum terms imposed by his Honour and substitute a minimum non-parole period of 27 years on each count. My reasons are as follows.
8 The sole ground of appeal alleges that the minimum non-parole periods of 21 years were manifestly inadequate.
9 On 6 June 2015, Mazza JA granted leave to appeal.
The facts and circumstances of the offending
10 The victim in respect of count 1, namely Ms Farcich, was the respondent's long-term partner. They had two children together and shared a home in Girrawheen. Ms Farcich was about 169 cm tall and of medium build. The respondent was about 190 cm tall and of solid build. At the time of the offending their children were aged 7 and 2 years.
11 On 15 May 2013, between 11.30 am and 3.00 pm, the respondent and Ms Farcich were at their Girrawheen home. During that time, a violent incident occurred in the master bedroom. The respondent killed Ms Farcich by asphyxiation. After killing her, the respondent bound Ms Farcich's head and neck with multiple layers of duct tape. The tape covered her nose and mouth. He wrote '666 SLUT' across Ms Farcich's forehead with a blue marker pen. The respondent left her face down on the bedroom floor.
12 The respondent's murder of Ms Farcich was motivated by an unfounded and delusional belief in her infidelity. Ms Farcich told the respondent that she had not been unfaithful. The respondent disbelieved her.
13 The victim in respect of count 2, namely Mr Filkovski, was the respondent's long-term friend and associate. Mr Filkovski was about 170 cm tall and of solid build.
14 On 15 May 2013, after killing Ms Farcich, the respondent left their home and drove to Mr Filkovski's home, which was also in Girrawheen. At about 3.00 pm, the respondent and Mr Filkovski argued about the respondent's unfounded and delusional belief that Mr Filkovski was spreading rumours about him. Mr Filkovski told the respondent that he had not been spreading any rumours. The respondent disbelieved him.
15 The respondent had armed himself with a fishing knife. He stabbed Mr Filkovski about three times at the base of the left side of his neck (near the shoulder) and once in the upper right arm. The respondent had also armed himself with a chrome wishbone-type vehicle component. It was about 1.5 m in length. He struck Mr Filkovski repeatedly to the head with the component. This caused significant head trauma. Mr Filkovski died as a result of the injuries inflicted by the respondent.
16 The respondent then left Mr Filkovski's home and drove to another location. He told a friend that he had committed the offences. The friend drove to the respondent's and Ms Farcich's home and discovered her body. The friend telephoned the police at 4.15 pm. The respondent was taken to a police station and placed under arrest at about 4.50 pm. He declined to answer any questions or provide an account of the offences.
17 The sentencing judge said that each murder was at 'the upper end of seriousness of the offence of murder ... before account is taken of any factors of mitigation' [45].
18 His Honour found that there were a number of aggravating factors. As to count 1, the respondent intended to kill Ms Farcich; he was 'significantly larger' in stature; Ms Farcich was in the family home and especially vulnerable to an attack of the kind inflicted; the respondent's attack involved the repeated application of physical force; and he did not attempt to obtain any medical assistance for the victim [43]. As to count 2, the respondent intended to kill Mr Filkovski; the respondent was armed with two weapons; the attack involved the repeated application of physical force with the weapons; and he did not attempt to obtain any medical assistance for the victim [44].
19 The sentencing judge noted that it was a significant aggravating factor that the respondent had committed two murders with an intent to kill, but his Honour said that the offences 'might be seen as part of a single sequence of events' because they were committed 'very close in time and space to one another' [47].
20 His Honour accepted that the respondent's decision to kill each of the victims was 'spontaneous' and 'did not involve anything in the nature of planning or premeditation of anything resembling a rational kind' [35]. His Honour added that this feature did not mitigate the offending [35]. It merely indicated that there was 'no additional aggravation' [35].
21 Victim impact statements written by Ms Farcich's sisters and Mr Filkovski's mother and sister were read at the sentencing hearing. The statements reveal the devastating loss experienced by the families of the victims. Their distress was exacerbated by the respondent having been a trusted member of Ms Farcich's family and a trusted friend of Mr Filkovski's family. Ms Farcich's sisters and Mr Filkovski's mother and sister were especially shocked by the brutal manner and dreadful circumstances in which the murders were committed. The long-term negative impact of the offending upon the two young children of the respondent and Ms Farcich is obvious.
The respondent's personal circumstances and mental health
22 The respondent was born on 24 October 1976. He was aged 36 at the time of the offending and was 38 when sentenced.
23 The respondent had a serious and longstanding addiction to illicit drugs. He suffered from a severe depressive illness and psychotic symptoms, and his behaviour was erratic when he was under the influence of drugs. In 1998, while abusing steroids, he played Russian roulette with a single live round in a pistol. In 2010, while under the influence of cocaine, he attempted suicide.
24 Despite his entrenched abuse of illicit drugs and, also, his abuse of prescription and other medication, the respondent did not have a prior criminal record.
25 The respondent's ingestion of drugs in the period leading up to the commission of the offences was substantial. It included:
(a) Heavy use of methylamphetamine (about $300 worth of the drug a day) on most days for at least six years. In particular, he admitted smoking about $300 worth of methylamphetamine on the day of and just prior to the offending.
(b) Oxycodone (a semi-synthetic narcotic analgesic), about 150 mg a week, to counteract insomnia arising from his use of methylamphetamine.
(c) Twenty Mersyndol tablets (an opiate-based analgesic) once or twice a week.
(d) Diazepam, 50 mg a night, during the 12 months preceding the offences.
(e) Tramadol, 800 mg a day, during the six months preceding the offences.
(f) Steroid tablets, which he had recommenced using about three weeks prior to the offending.
26 At the time of the offending, the respondent was intoxicated with methylamphetamine. This intoxication was the main contributing factor that triggered his offending.
27 The material before the sentencing judge included a report dated 1 September 2014 from Dr Victoria Pascu and a report dated 27 February 2015 from Dr Daniel de Klerk, each of whom is a consultant forensic psychiatrist.
28 The psychiatric reports indicated that the respondent was suffering from multiple mental illnesses at the time of the murders, including:
(a) a psychotic disorder, namely a long standing and delusional belief system about Ms Farcich's infidelity and a conspiracy to have the respondent viewed as mentally ill;
29 The respondent's psychotic disorder was, most likely, induced by his ingestion of drugs. No other mental illness, unrelated to drug abuse, was involved in the offending.
30 His Honour found that the respondent had reason to know of possible effects on his behaviour and mood of methylamphetamine and other drugs he ingested, but his Honour thought that the respondent did not have reason to believe that he might harm anyone but himself [69].
32 First, the sentencing judge found that the respondent had pleaded guilty at the first reasonable opportunity. His Honour said the pleas of guilty indicated that the respondent accepted responsibility for the murders, was willing to facilitate the course of justice, was remorseful and had victim empathy [49] - [51].
33 Secondly, his Honour accepted that, in addition to the remorse that could be inferred from his pleas of guilty, the respondent had, independently of those pleas, shown genuine remorse, an acceptance of responsibility for his actions and some insight into his entrenched substance abuse and its impact on his offending [52] - [55].
34 Thirdly, the sentencing judge accepted, with one qualification, that the respondent was of prior good character. The qualification was that the respondent had abused drugs for a long time and that fact '[qualified but did not eliminate] the significance of the mitigating factor [of prior good character]' [70].
35 Fourthly, the respondent's risk of reoffending was assessed by Dr Pascu as being low and by Dr de Klerk as being at least moderate. His Honour appears to have concluded that the risk of reoffending was dependent upon whether the respondent was able to abstain from using drugs [71] - [72]. His Honour found, on the basis of the respondent's good employment history and the psychiatric reports, that he had 'good prospects of rehabilitation' [75].
36 Counsel for the respondent submitted that it was open to the sentencing judge to reduce significantly any minimum non-parole periods on account of the mitigating factors.
37 It was argued that the minimum non-parole periods imposed by his Honour were 'broadly consistent' with the minimum non-parole periods in Kuzimski v The State of Western Australia [2012] WASCA 202.
38 According to counsel for the respondent, when the minimum non-parole periods in the present case are compared to the minimum non-parole periods in Kuzimski (and, to a lesser extent, the minimum non-parole periods in Mikhail v The State of Western Australia [2012] WASCA 200), it is apparent that the minimum non-parole periods imposed on the respondent were not 'so far outside the acceptable range of minimum non-parole periods that could properly have been imposed for the offences committed by [the respondent] so that they could be described as plainly unreasonable or unjust'.
39 Counsel for the respondent did not submit that this court should exercise its residual discretion to decline to allow the State's appeal.
40 A ground of appeal which alleges that a sentence (including a minimum term) is manifestly inadequate asserts the existence of an implied or inferred error.
41 It is necessary, in determining whether a minimum term is manifestly inadequate, to examine it from the perspective of the principles applicable to the fixing of the length of a non-parole period and the factors which a sentencing judge must take into account when fixing a minimum term. 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 antecedents of the offender.
42 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 period. See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 - 629 (Barwick CJ, Menzies, Stephen & Mason JJ); Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367 (Gibbs CJ, Murphy, Wilson, Brennan & Dawson JJ); Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 530 - 531 (Mason CJ & McHugh J), 536 (Dawson, Toohey & Gaudron JJ).
43 In Pedersen v The State of Western Australia [2010] WASCA 175, I made the following observations (McLure P & Mazza JA agreeing) about the determination of the minimum non-parole period where an offender is to be sentenced to life imprisonment for the offence of murder, and the sentencing court has decided (as in the present case) to proceed under s 90(1)(a) of the Sentencing Act and fix a minimum period:
Several observations may be made in relation to the determination of the non-parole period where an offender is to be sentenced to life imprisonment for the new offence of murder and the sentencing court has decided to proceed under s 90(1)(a) of the Sentencing Act 1995 (WA) and fix a minimum period (instead of proceeding under s 90(1)(b) and ordering that the offender must never be released).
First, the considerations which the sentencing court must take into account in setting the non-parole period are all relevant sentencing factors, including the circumstances of the offence, all aggravating and mitigating factors and the offender's personal antecedents.
Secondly, the non-parole period must be set by reference to achieving or satisfying all relevant sentencing objectives, including punishment, retribution, personal deterrence and general deterrence.
Thirdly, sentencing dispositions under the previous legislative scheme will generally be of some assistance in determining the length of the non-parole period for the new offence of murder where the sentencing court has decided to impose life imprisonment and set a minimum period under s 90(1)(a) of the Sentencing Act. It is essential, however, to bear in mind the following:
(a) The increase in the statutory minimum period from 7 to 10 years was made in the context of eliminating from the definition of murder, the unlawful killing of another person where the offender (merely) intends to cause bodily injury of such a nature as to cause, or be likely to cause, permanent injury to the health of the person killed or another person.
(b) The strict ranges of available non-parole periods based on the distinctions under the previous legislative scheme between wilful murder and murder, and between wilful murder carrying strict security life imprisonment and wilful murder carrying (merely) life imprisonment, have been abolished. These strict ranges were not always appropriate to the facts and circumstances of a particular offender and his or her offending. The proper exercise of the sentencing discretion is no longer constrained by the rigidity of the previous legislative scheme (including the sentencing framework).
(c) The comments of Wheeler JA (McLure P & Owen JA agreeing) in Atherden [30] - [31].
Fourthly, the offender's intention in relation to the particular killing is a relevant fact or circumstance (invariably, if not always, a very significant matter) to be considered together with all the other relevant facts and circumstances of the offending and the offender in determining the appropriate non-parole period.
Fifthly, the removal of the demarcation between wilful murder and murder, and the abolition of the strict ranges of available non-parole periods under the previous legislative scheme, may result in some increase in the non-parole period for offending that would formerly have attracted a non-parole period at or very close to the upper limit of a previously applicable range [41] - [46].
44 In Austic v The State of Western Australia [2010] WASCA 110, I summarised the legislative scheme for sentencing in relation to wilful murder and murder which existed before the commencement of the Criminal Law Amendment (Homicide) Act 2008 (WA) (the 2008 Act). I said (McLure P & Jenkins J agreeing), relevantly:
The principal distinction between strict security life imprisonment and life imprisonment was the difference in the minimum period that the offender was required to be held in custody before being considered for release on parole. The sentencing court had to set a minimum term of at least 20 and not more than 30 years for an offender sentenced to strict security life imprisonment for wilful murder, unless it was bound to order that the offender be imprisoned for the whole of the offender's life. The court was bound to order that the offender be imprisoned for the whole of the offender's life if it was necessary to do so in order to meet the community's interest in punishment and deterrence. The sentencing court had to set a minimum term of at least 15 and not more than 19 years for an offender sentenced to life imprisonment for wilful murder. The sentencing court had to set a minimum term of at least 7 and not more than 14 years for an offender sentenced to life imprisonment for murder [158].
45 The object of the amendments made by the 2008 Act was significantly to increase the power of judges to set minimum non-parole periods that are commensurate with serious murders. Under the current legislative scheme there are no maximum non-parole periods for murder. The seriousness of the offending is to be assessed by reference to all relevant facts and circumstances, and not merely the intention which accompanies the unlawful killing. Accordingly, minimum terms imposed for wilful murder and murder before the commencement of the 2008 Act do not provide a benchmark against which broad consistency is to be measured. See Mikhail [30] (McLure P, Buss & Mazza JJA agreeing); Kuzimski [20] (McLure P, Buss & Mazza JJA agreeing).
46 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a non-parole period is within the range of other non-parole periods imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a non-parole period is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
47 A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence (including a minimum term) is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
48 In Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58, French CJ, Hayne, Kiefel and Bell JJ said in relation to the notion of an 'available range' of sentences and the notions of 'manifest excess' and 'manifest inadequacy':
Reference to an 'available range' of sentences derives from the well-known principles in House v The King ((1936) 55 CLR 499; [1936] HCA 40 (House)). The residuary category of error in discretionary judgment identified (House at 505) in House is where the result embodied in the court's order 'is unreasonable or plainly unjust' and the appellate court infers 'that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance'. In the field of sentencing appeals, this kind of error is usually referred to as 'manifest excess' or 'manifest inadequacy'. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.
The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some 'substantial wrong has in fact occurred' (House at 505) in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an 'available range' of sentences, stating the bounds of an 'available range' of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the resentencing court to determine the bounds of the range within which the sentence should fall [26] - [28]. (original emphasis)
49 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
50 The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
51 I have examined numerous cases in which this court has heard and determined appeals against sentence for murder since the commencement of the 2008 Act. In particular, I have taken into account the facts and circumstances, and the sentencing dispositions, in Atherden v The State of Western Australia [2010] WASCA 33; Heijne v The State of Western Australia [2010] WASCA 86; Butler v The State of Western Australia [2010] WASCA 104; Austic; Pedersen; Kowaleff v The State of Western Australia [2010] WASCA 183; The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285; The State of Western Australia v O'Kane [2011] WASCA 24; Cockram v The State of Western Australia [2011] WASCA 179; Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91; Johnston v The State of Western Australia [2012] WASCA 18; Mikhail; Kuzimski; Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328; Khan v The State of Western Australia [2013] WASCA 193; The State of Western Australia v Lee [2013] WASCA 246; Silva v The State of Western Australia [2013] WASCA 278; Prestidge v The State of Western Australia [2014] WASCA 16; Rosewood v The State of Western Australia [2014] WASCA 21; Stinson v The State of Western Australia [2014] WASCA 72; Egitmen v The State of Western Australia [2014] WASCA 198; Mack v The State of Western Australia [2014] WASCA 207; Angliss v The State of Western Australia [2015] WASCA 8; The State of Western Australia v Smith [2015] WASCA 87; Zwerus v The State of Western Australia [2015] WASCA 174; and The State of Western Australia v Churchill [2015] WASCA 257.
52 I have also read and considered various cases in which this court or its predecessor heard and determined appeals against sentence for wilful murder or murder before the commencement of the 2008 Act; notably, Mitchell v The Queen (1998) 20 WAR 257; Stasinowsky v The State of Western Australia [2009] WASCA 20; (2009) 40 WAR 11; and Fraser v The State of Western Australia [2009] WASCA 23.
53 It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in all of the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features. I will, however, review Mitchell, Stasinowski, Fraser, Austic, Kowaleff, Silich, O'Kane, Cockram, Mikhail, Kuzimski, Lee and Churchill. In each of those cases, except Silich, the offender received a minimum non-parole period of at least 21 years. In Silich, the offender was convicted of two murders, committed almost simultaneously, and after a successful State appeal against sentence his minimum non-parole periods were increased from 15 to 19 years. The sentencing in Mitchell, Stasinowsky and Fraser was governed by the legislative scheme applicable before the commencement of the 2008 Act. The offender in each of those cases was sentenced to strict security life imprisonment for wilful murder and it was necessary, in the circumstances, for the sentencing judge to fix a non-parole period of at least 20 and not more than 30 years.
54 In Mitchell, the appellant was convicted, on his pleas of guilty at the first reasonable opportunity, of one count of wilful murder, three counts of aggravated sexual penetration without consent, two counts of assault occasioning bodily harm, one count of attempted sexual penetration without consent, three counts of burglary, two counts of disabling with intent to commit an indictable offence, two counts of deprivation of liberty, two counts of robbery and one count of aggravated indecent assault.
55 The appellant was sentenced to strict security life imprisonment on the count of wilful murder. The sentencing judge ordered him to serve at least 25 years' imprisonment before being eligible for release on parole. The appellant applied for leave to appeal against the minimum non-parole period on the ground that it was manifestly excessive.
56 The victim of the murder was a 33-year-old woman. She was married with two young children. The appellant had observed her on a number of occasions and had decided that he was 'going to rape her'. On the morning of the day in question, the appellant rang the front doorbell of the victim's home. When she opened the door he forced his way in. He assaulted and disabled her and then committed a number of serious sexual offences against her. He then appreciated that the victim would be able to identify him and for that reason he decided to kill her. The appellant began strangling her, struck her head a number of times against the tiled wall of her bathroom and drowned her after having filled a spa bath with water. He cleaned the house, wiped blood from some surfaces and removed his fingerprints. He then departed.
57 Some time later, the appellant forced his way into another woman's home, grabbed her by the throat, began to strangle her and taped her hands and mouth. Although he entered the woman's house with the intention of sexually assaulting her, he changed his mind. He did not carry out his intention and left the house.
58 The next day the appellant walked into a police station. He surrendered himself to police and made a full confession in relation to all of his offences. The appellant cooperated fully with the authorities and pleaded guilty on the fast-track system. He expressed remorse for his offending.
59 The sentencing judge decided it was not appropriate to order that the appellant not be paroled. His Honour was therefore bound under the sentencing legislation then in force to set a minimum period of at least 20 and not more than 30 years before the appellant became eligible for release on parole. The sentencing judge expressed the view that 'the facts relating to this murder make it the very worst of its sort'. As I have mentioned, his Honour fixed a minimum non-parole period of 25 years.
60 The Court of Criminal Appeal dismissed the appellant's application for leave to appeal.
61 In Stasinowsky, the appellant and a co-offender pleaded guilty to a charge of wilful murder. Both were sentenced to terms of strict security life imprisonment with a minimum non-parole period of 24 years. The appellant, a young woman, was aged 19; the co-offender, another young woman, was aged 18; and the victim was a girl aged 16. The appellant, the co-offender, the victim and another person lived together in a house. The killing took place in the house.
62 On the night in question, the appellant and the co-offender, who were in a sexual relationship, took a dislike to the victim. They decided to kill her, apparently only because they found her 'annoying'. They killed the victim by repeatedly bashing her over the head with a concrete block and strangling her with a chain. After they killed her, the appellant and the co-offender cleaned a substantial quantity of the victim's blood from the kitchen floor and walls. The bleeding was caused by the assault. The appellant and the co-offender then placed the victim's body in a 'wheelie' bin. They put the bin in a shed at the back of the property.
63 The appellant was arrested three days after the killing. She was interviewed by police and admitted having committed the murder. She provided details of what she and the co-offender had done.
64 The appellant did not have a prior criminal record, but she did have a troubled background. A psychiatric report revealed that the appellant had a borderline personality disorder with a concomitant history of polysubstance abuse, including alcohol, cannabis, amphetamines, opiates and prescribed medications. She did not demonstrate any credible remorse. The sentencing judge said that the appellant's lack of remorse, coupled with the lack of any substantial motive and the casual manner in which the murder was committed, indicated a substantial risk that she would commit similar crimes in the future. He said the prospects for her future rehabilitation were 'bleak'. He took into account that the murder was premeditated, although he recognised that the decision to kill the victim was made only a short time before the murder. Also, he mentioned that the appellant and the co-offender had subsequently admitted to having been 'sexually excited by the violence of the event' and to have kissed each other immediately after, or shortly prior to, the victim's death.
65 The appellant appealed against the sentence of strict security life imprisonment and the length of the minimum non-parole period. It was alleged that the non-parole period was manifestly excessive. This court dismissed the appeal.
66 Steytler P and McLure JA said the violence involved in the murder was essentially motiveless, vicious, sustained and premeditated [87]. The victim was alive for a long time while she was repeatedly beaten [87]. The callous conduct and boastful attitude of the appellant left little scope for confidence in her rehabilitation, although that factor was mitigated to some degree by her age and immaturity, coupled with the difficulty in predicting how she would be in 20 years' time [88]. Given the brutality of her conduct and the absence of any genuine remorse, the appellant's favourable antecedents, although relevant, could not be given a great deal of weight [88]. Her plea of guilty, although important, was made in the face of an overwhelming prosecution case [88]. The most significant mitigating factor was the appellant's age [88]. Their Honours held that it could not be said that a minimum non-parole period of 24 years was outside the range of an acceptable exercise of discretion [89]. But for the appellant's age, plea of guilty and favourable antecedents, the brutal and callous nature of the murder might have justified a minimum non-parole period much closer to 30 years [89].
67 In Fraser, the appellant pleaded guilty to one count of wilful murder. He was sentenced to strict security life imprisonment with a minimum non-parole period of 27 years. He applied for an extension of time to appeal and leave to appeal against the minimum non-parole period on the ground, relevantly, that it was manifestly excessive.
68 The appellant and a co-offender (who was convicted after trial of being an accessory after the fact to the wilful murder committed by the appellant) travelled together from Melbourne via Adelaide and Perth to Geraldton. They met the victim who was travelling further north on a fishing holiday. He offered the appellant and the co-offender a lift in his vehicle in return for sharing fuel expenses. The three of them arrived in Exmouth and camped at a local caravan park. By this time the appellant had developed an unreasonable hatred of the victim. The appellant told the co-offender that he wanted to kill the victim. On the night in question, the appellant, the co-offender and the victim were at a beach. The appellant persuaded the victim to look away from him. When the victim did so the appellant struck a very forceful and savage blow with a metal bar to the side of the victim's head. The victim fell to the ground and the appellant continued to strike him to the back of the head about six times. The victim was not rendered unconscious. He removed his wallet and keys from his pocket and threw them towards the appellant. He said words to the effect, '[t]ake my wallet, take my car. Just stop'. The appellant removed the victim's credit cards from the wallet and demanded his PIN number. He pretended to call an ambulance on a mobile telephone. Next, the appellant went to the victim's vehicle and cut a length of rope from a hammock in the boot. He then returned to the place where he had assaulted the victim. The victim was still lying on the sand. The appellant pretended to make another call to the ambulance service and, on the pretext of following first aid advice, placed the rope around the victim's neck. The appellant then used the rope, over a period of at least five minutes, to strangle the victim slowly to death. While doing this the appellant sang a heavy metal song which included the words, '[l]ook into my eyes while you die'. The appellant continued singing this song as the victim gradually succumbed to what the sentencing judge described as 'a very painful and agonising death'.
69 The appellant and the co-offender dragged the victim's body to the vehicle and placed his body in the boot. However, the appellant was unable to start the vehicle. He removed the victim's body from the boot and dragged it into the ocean.
70 When the appellant and the co-offender were arrested by police they told lies as to the events which had occurred.
71 The appellant was aged 29 at the time of the offence. He had a turbulent childhood with very little parental support. The appellant had a very significant prior criminal record for offences including robbery, burglary, threats to harm, assault and dishonesty. A psychiatrist assessed the appellant as having an antisocial personality disorder and a borderline personality disorder. His personality was characterised by, amongst other things, manipulation, self-focus, problems accepting responsibility and antisocial behaviour. He showed a lack of victim empathy, cognitive distortions, a limited understanding of alternatives to his violent conduct, and he was not willing or able to account for his offending conduct. He was considered to be at a high risk of reoffending in a violent manner.
72 This court held that there was no merit in the appeal. It could not be said, in all the circumstances, that a minimum non-parole period of 27 years was outside the range of a sound sentencing discretion. An extension of time to appeal was therefore refused.
73 In Austic, the appellant was convicted after trial of the wilful murder of a woman aged 34. He was sentenced to life imprisonment with a minimum non-parole period of 25 years. The victim was 22 weeks' pregnant when she died. The appellant was the father of the unborn child. The appellant and the victim had known each other for many years. They had been involved in a casual sexual relationship for about 12 months before the victim's death. The appellant kept his relationship with the victim secret. He went to her home only for the purposes of sex. The visits were made when he was drunk.
74 On the night in question, the appellant arranged to go to the victim's home. He was intoxicated. He stayed for some time and had sexual intercourse with her. The appellant then walked to his home. Later that night he returned to the victim's home and stabbed her 21 times with a folding knife. The stabbing occurred in her bedroom. The appellant then walked to his home, leaving the victim to die. He travelled through some paddocks to avoid detection. On the journey, he threw away the knife. On returning home, the appellant set about destroying evidence that could implicate him in the victim's murder. In particular, he burned his clothes, had a shower and washed the thongs he had been wearing to remove traces of the victim's blood. Later, the appellant took other steps to avoid detection. These included telling lies to the police who were investigating the victim's murder.
75 The trial judge identified numerous features which placed the appellant's offending towards the upper end of the range of seriousness for wilful murders. These features included that the victim was very vulnerable; the appellant had taken advantage of the victim's trust to enter her home; the victim had no way of defending herself once the appellant commenced attacking her with the knife; the victim was cornered in her bedroom and had no means of escape; the attack was unprovoked; some of the stab wounds were inflicted after the victim had fallen to the floor; the appellant left the victim to bleed to death in her bedroom and she did not die immediately; the victim must have suffered agony during her last 20 to 30 minutes while she staggered out of her home and down the street, seeking help; the offence was not spontaneous but premeditated; the appellant killed the victim to 'extinguish the potential life' of his unborn child so that he 'would not suffer the inconvenience or embarrassment of her birth'; and the appellant's lack of remorse was underscored by the defences he ran at trial, including his attempts to blame the victim's death on two of her relatives.
76 The appellant was aged 34 at the time of sentencing. He had no relevant prior convictions. His personal antecedents were good.
77 This court dismissed the appellant's appeal against conviction and his appeal against sentence. The court held that the minimum non-parole period imposed by the trial judge was not manifestly excessive. Although a psychological report indicated that the appellant was at a low risk of relevant reoffending, his refusal to admit his guilt precluded a reliable assessment of that prospect. The trial judge correctly recognised that little weight could be given to the appellant's personal antecedents. The appellant's demonstrable lack of remorse underscored that finding.
78 In Kowaleff, the appellant pleaded guilty to the murder of a woman. He was sentenced to life imprisonment with a minimum non-parole period of 26 years. He appealed against the minimum non-parole period alleging, relevantly, that it was manifestly excessive.
79 The appellant and the victim had, prior to her death, been in a relationship for about two years. During the relationship the appellant had been served with a violence restraining order which he breached on numerous occasions. The relationship finally ended in March 2008. The appellant was unable to accept that the relationship had finally ended. He pursued the victim relentlessly. Once again, she obtained a violence restraining order. The appellant repeatedly breached the new order by endeavouring to contact her.
80 Some weeks before he committed the murder, the appellant heard a rumour that the victim was seeing someone else. He became angry and began to plan her death. At some time prior to 18 August 2008, the appellant entered the victim's home, without her permission, and interfered with a sliding door so that he could easily and quietly enter the house. On 16 August 2008, he told the victim's niece to 'tell that slut [that is, the victim] she better move to a different country ... I'm going to kill her'.
81 Between midnight and 1.00 am on 18 August 2008, the appellant went to the victim's home. He had two bags which contained, collectively, a knife, a hammer and a tomahawk. He went to the house with the intention of killing the victim and her dog. Upon arrival, the appellant jumped a side fence and entered the victim's home through the sliding door. He opened the door slowly so as not to disturb the victim or the dog. The victim was in her bedroom. The appellant entered the house armed with the knife, the hammer and the tomahawk. He waited outside the victim's bedroom for about 30 minutes.
82 The appellant entered the victim's bedroom, strangled her and punched her in the face. She was rendered unconscious. He placed both his hands around her throat and pushed his thumbs hard into her larynx area until he believed she was dead. The appellant then attempted to kill the dog by beating it. He left the animal motionless on the kitchen floor. After attacking the dog, the appellant returned to the victim's bedroom. He noticed that the victim was still breathing. He made no attempt to revive her or call for medical assistance. Instead, the appellant dragged her from the bed to the adjoining bathroom. He attempted, by use of the shower, to remove blood from her body, and to clean her with a towel. He returned her to the bed. She was still alive. The appellant then committed three serious acts of sexual penetration upon her when it must have been obvious to him that she was dying. Some time later, the appellant, believing the victim to be dead, departed in her vehicle.
83 At the time of the offending, the appellant was aged 39. He had a prior criminal record, including offences for being on premises without lawful excuse, breaching a restraining order in relation to a former partner or girlfriend, breaching an intervention order in relation to his former wife, stalking and burglary. He had also been convicted of breaching a violence restraining order in relation to the victim.
84 Apart from an episode of depression following his separation from his former wife, the appellant did not have a history of mental illness. There were a number of psychiatric and psychological reports before the sentencing judge. His Honour found, on the basis of the expert evidence which he accepted, that the appellant was not suffering from a mental illness at the time of his offending.
85 The sentencing judge said the appellant was not remorseful and that he posed a danger 'to any woman that comes across [his] path'. His offending against the victim was motivated by 'jealousy, rage, lust and the desire to control'.
86 Apart from the appellant's early plea of guilty, there was no mitigation in any aspect of the appellant's offending or personal antecedents. His offending and personal antecedents demonstrated that he posed a danger to the community.
87 This court dismissed the appeal. It was not persuaded that the sentencing judge had erred in the exercise of his discretion by imposing a minimum non-parole period of 26 years.
88 In Silich, the offender was convicted after trial of the murder of his parents. The trial judge sentenced him to life imprisonment with minimum non-parole periods of 15 years. After a successful State appeal against sentence, this court increased the minimum non-parole periods to 19 years.
89 The decision in Silich was reviewed in Lee. McLure P (Mazza JA & Hall J agreeing) said, rightly, that there were some unusual aspects of the offending in Silich, and that the case is distinguishable from 'all the other cases decided under the current [homicide] law' [51].
90 As Mazza JA and I noted in Smith, the offender in Silich had no history of violence, he reported his offending to the police soon after it occurred, he did not attempt to conceal what had happened or destroy evidence, and he cooperated with the police [180].
91 It scarcely needs to be said that the sentencing disposition in one or two cases does not constitute a sentencing range. In the present case, that observation is especially pertinent in relation to the decision in Silich. Ultimately, each case must be decided on its own facts and circumstances.
92 In O'Kane, the offender was convicted, on his plea of guilty, of the murder of his 4-month-old son. He was sentenced to life imprisonment with a minimum non-parole period of 18 years. After a successful State appeal against sentence, the minimum non-parole period was increased to 23 years.
93 The offender had formed a relationship with the victim's mother about two years before the victim's birth.
94 About two months before the victim's death, the offender began physically abusing him. The offender deliberately kept the victim away from the victim's mother in order to conceal his injuries. The offender did not at any time seek medical attention for the victim.
95 The offender said that on the day before the victim's death he had bent the victim's head back and forth and heard a 'crack'. After that assault the victim began having seizures which commenced about 12 hours before his death. The offender reported having seen the victim 'twitching' in the early morning of 5 January 2009, and then witnessing the victim's death. The offender said that after the victim died he placed the body in the boot of his car and drove to the offender's mother's house.
96 The State's case in relation to the circumstances of the victim's death was a little different. However, the sentencing judge did not make a finding, as between the two versions before him, about the precise circumstances of the death. His Honour thought the differences in the versions did not have a significant bearing on sentencing.
97 On the evening of 5 January 2009, the offender telephoned the victim's mother and told her all was well with the victim. The offender remained at his mother's house for two days with the victim's body still in the boot of his car.
98 On 8 January 2009, the victim's mother ascertained from the offender's mother that she had seen the offender but not the victim. The victim's mother became concerned and contacted the police.
99 On 9 January 2009, the offender was apprehended by the police. Later, he participated in a video recorded interview in which he admitted killing the victim. The next day he took the police to a site where, on 7 January 2009, he had buried the victim's body.
100 Post-mortem reports concluded that the victim died as a result of the combined effects of recent traumatic brain injury and hypoxic ischaemic encephalopathy. The sentencing judge found that those injuries were caused by blunt force which the offender applied to the top of the victim's head.
101 The offender was aged 40 at the time of the offending. He had a severely troubled childhood. The offender had a prior criminal record. In 1994, he was convicted in New South Wales of seven counts of causing grievous bodily harm to his then infant son. The circumstances of that offending were similar to the murder. There was nothing in the offender's past or in his mental state which might account for the offending. Psychiatric and psychological reports before the sentencing judge did not indicate any mental illness or psychological difficulties which relevantly impaired the offender's mental functioning so as to reduce the blameworthiness or culpability of his conduct. A psychiatrist considered there was a 'serious risk' of future violence towards young children if the offender found himself in a similar situation. A psychologist thought there was a 'moderate risk' of violent reoffending generally.
102 Apart from a somewhat belated plea of guilty, there was little by way of mitigation. This court held that the minimum non-parole period of 18 years set by the sentencing judge was manifestly inadequate.
103 In Cockram, the appellant was convicted, on his plea of guilty, of murdering a man. He was sentenced to life imprisonment with a minimum non-parole period of 22 years. His co-offender, who pleaded not guilty, was convicted after trial and sentenced to life imprisonment with a minimum non-parole period of 23 years. The appellant appealed to this court on two grounds. First, he alleged that his minimum non-parole period of 22 years infringed the parity principle. Secondly, he alleged that the sentencing judge made an express error in his fact-finding for the purposes of sentencing. The appellant did not allege that the minimum non-parole period of 22 years was manifestly excessive. This court found that there was no merit in either of the grounds of appeal. The appeal was dismissed.
104 In Mikhail, the appellants, who were father and son, were convicted after trial of the wilful murder of a man and his wife. The trial judge sentenced each of them on both counts to life imprisonment with minimum non-parole periods of 37 years. The minimum non-parole periods were the highest ever imposed in this State. The appellants alleged that they were manifestly excessive.
105 The son had borrowed $20,000 from the male victim, who was a drug dealer. Interest was accruing rapidly and the son had little prospect of repaying the debt. The son decided to kill the male and female victims. The father joined in the plan. Thereafter, what happened was a joint endeavour.
106 The appellants' primary target was the male victim. The female victim's death was required because the appellants knew she was always with her husband. To kill one, they would have to kill the other.
107 The murders were committed on 13 June 2008. In the week prior to that date, a deep grave was prepared at a property in Chittering. The son was familiar with the Chittering property. On 8 June 2008, he purchased ammunition for a shotgun he owned. The son was involved in a business called 'Swan Living'. Both he and his father had swipe cards to access its warehouse premises in Kewdale.
108 On the evening of 13 June 2008, the male and female victims were lured to the Kewdale premises. When they were inside, the son fired the shotgun twice at the male victim and once at the female victim. Both were shot and killed at close range. Early the next morning, the bodies of the victims were taken to and buried in the previously prepared grave on the Chittering property. In the next few days, the victims' motor vehicle was driven to Lancelin and abandoned in a quarry.
109 The appellants went to considerable lengths to conceal the fact of, and their involvement in, the murders. In addition to the facts I have recited, the Kewdale premises were arranged with a view to removing all traces of the killings. The appellants engaged in misleading conduct to divert and distract the police from the truth. However, nearly six months after the murders, police discovered shotgun wadding in the Kewdale premises that had made contact with the female victim's body. Also, police knew from GPS equipment in the son's vehicle that he had made a number of trips to the Chittering property at about the time the victims disappeared. A third search of the Chittering property located the bodies of the victims.
110 The son was aged 21 at the time of the offences. He had an obsessive compulsive disorder and there were indications that he was suffering from long-standing depression. However, the sentencing judge concluded that those matters fell a long way short of justifying any modification in sentence. The father was aged 54 at the time of the offences. In 2004, he was convicted of one count of attempting to pervert the course of justice as a result of attempting to cover up offences committed by his son in 2003, when the son was a juvenile.
111 This court held that the circumstances of the offending were at the very high end of the scale of seriousness. There were two murders, both premeditated and minutely planned with a view to the appellants avoiding responsibility for them. The killings were ruthless, cold-blooded executions. The mental states of the appellants were not impaired by mind-altering substances or any mental condition that reduced culpability. There was no remorse. There was nothing to suggest that the son's offending was attributable to immaturity or any other characteristic that may be a source of youth-related mitigation. He was not led into the commission of the offences. There were no mitigating factors of any significance. This court dismissed both appeals.
112 In Kuzimski, the appellant was convicted after trial of two counts of murder and one count of criminal damage by fire. He was sentenced to life imprisonment with a minimum non-parole period of 32 years on each offence of murder and 7 years' imprisonment, concurrent, for the arson offence. The appellant appealed on the ground that the minimum non-parole periods were manifestly excessive.
113 On 30 April 2010, the appellant went to residential premises in Carlisle, where a drug dealer he knew resided. She lived in a shed at the rear of the premises. The appellant thought that, if he had the opportunity, he would rob the woman of her drugs or money. The murder victims, two other women aged 26 and 32, shared a house at the premises.
114 During the afternoon of 30 April 2010, the drug dealer introduced the appellant to the victims. He spoke to the victims at various times throughout the day and night. The appellant's plan to rob the drug dealer did not come to fruition. She eventually departed from the Carlisle premises in her car. The appellant remained at the house and, later that evening, he and the victims departed in a Toyota LandCruiser owned by a house-mate of the victims.
115 At about 5.00 am on 1 May 2010, the LandCruiser was found on fire on the verge of Tonkin Highway in Wattle Grove. After the fire was extinguished, the bodies of the victims were discovered in the vehicle. Both women had been murdered before the vehicle was set alight.
116 One of the victims had three penetrating injuries to the right side of her face, two of which caused or contributed to her death. The three injuries were consistent with having been caused by an object such as a screwdriver. She also had bruising which was consistent with strangulation and a gaping injury on the top of her head. She had a high concentration of methylamphetamine in her blood.
117 The other victim died as a result of a penetrating injury at the inner aspect of her right eye which extended into her brain. The injury was consistent with the use of an object such as a screwdriver. She also had a high concentration of methylamphetamine in her blood.
118 The trial judge found that the appellant's attack on the victims was ferocious and must have continued for a period of time. Her Honour also found that neither of the victims had died immediately and both would have suffered considerably before death.
119 When the LandCruiser was parked on the verge of Tonkin Highway with the victims inside it, the appellant set the vehicle alight. He opened the petrol cap so the petrol would fuel the fire. He also placed timber in the vehicle to feed the flames. Her Honour found that the appellant had set fire to the vehicle with the intention that the victims would be burned and evidence connecting him to the victims and the vehicle would be destroyed. After committing the offences, the appellant returned to his father's home where he showered. Later, he disposed of his clothing in a garbage bin at a railway station.
120 After his arrest, the appellant told the police that the LandCruiser had been followed by another car and that the driver of this car had run the LandCruiser off the road; the male occupants of the car had attacked the appellant and one of the victims; and that the appellant had fled the scene, leaving the victims behind. The appellant gave evidence to similar effect at trial.
121 The trial judge found that the appellant murdered the victims because he wanted to experience what it was like to kill another person.
122 The appellant was aged 37 at the time of sentencing. He had a chronic history of cannabis, amphetamine and heroin abuse. The appellant did not suffer from a serious or medically treatable mental illness. He had a lengthy prior criminal record. His previous offences included convictions for assault, burglary, armed robbery and weapons offences. He had served numerous sentences of imprisonment. Psychiatric and psychological reports identified a causal relationship between the appellant's substance abuse and his risk of violent offending in the future, which was assessed as high. Her Honour said that the appellant was at a very high risk of committing serious violent offences in the future.
123 The trial judge found that the appellant intended to kill one of the victims, but did not make the same finding in relation to the other victim. Nevertheless, her Honour found that there was no relevant difference between the appellant's culpability for the murder of each victim. Although her Honour said that the appellant had insufficient time to plan the murder of the victims, she identified, as significantly aggravating, the brutality and violence directed towards them and the length of time the attack would have taken. There were no mitigating circumstances.
124 This court held that, having regard to all relevant sentencing considerations, the minimum non-parole period of 32 years for each offence was well within the sound discretionary range. The appeal was dismissed.
125 In Lee, the respondents (Lee and Walker) pleaded guilty to the murder of a man. Each respondent was sentenced to life imprisonment with a minimum non-parole period of 12 years. After a successful State appeal against sentence, the minimum non-parole period of each respondent was increased to 21 years.
126 Lee and Walker were friends. Lee was in a relationship with a woman, Kelly.
127 On 12 May 2012, Lee, Walker and Kelly smoked cannabis at a house in Fremantle where Walker lived with his parents. Walker offered to obtain different drugs for Lee and Kelly. Later that afternoon, Lee, Walker and Kelly left the house in separate cars.
128 Lee and Kelly obtained syringes from a shop and returned to the Fremantle house. Later, Walker returned to the Fremantle house with the victim, who had supplied him with drugs previously. The victim supplied Lee, Walker and Kelly with methylamphetamine.
129 The facts and circumstances culminating in the murder of the victim and its aftermath were summarised in the reasons of McLure P (Mazza JA & Hall J agreeing):
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 [the victim]', while looking outside in the direction of the [victim]. 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?'.
Walker, Lee and Kelly obtained further methylamphetamine from the [victim]. After consuming the drug, Lee and Kelly went into a bedroom and then the bathroom to have sex. The [victim] remained in the kitchen or lounge room with Walker.
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 [victim]'s neck and around his throat and began to strangle him. The [victim] 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 [victim], who was struggling, with the cord.
The [victim] 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.
At this point, Kelly grabbed string or something similar and joined with Walker in trying to choke the [victim]. The [victim] continued to struggle. Kelly called out words to the effect of, 'Knock him out'. Lee, in rapid succession, kicked the [victim] 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 [victim].
Walker moved to the side of the [victim]. Lee told him to put his forearm under the [victim]'s neck, which he did. Lee then stomped on the [victim]'s head as hard as he could. Lee then leant down and further punched the [victim] to the head about four times. Lee believed that he had fractured the [victim]'s skull. Walker then continued to choke the [victim] for about 30 seconds until both Walker and Lee believed him to be dead.
Lee and Walker dragged the [victim] 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 [victim]'s body.
Concluding from the gasp that the [victim] was still alive, Lee kicked him in the chest about four times. He then went through the [victim]'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.
When he returned to the bathroom, Lee took the [victim]'s body outside and wrapped it in a barbeque cover. Walker assisted Lee in tying the barbeque cover with the rope.
Lee then got dressed and took the [victim]'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 [victim]'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.
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 [victim]'s mobile telephones in a skip bin along the way.
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 [victim]'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.
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 [victim]'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.
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 [victim]'s murder. Walker was interviewed on 1 June 2012 and also admitted being involved in the [victim]'s murder. Both pleaded guilty to the charge at the first reasonable opportunity.
The sentencing judge found that each of Walker and Lee intended to cause the death of the [victim] [7] - [21].
130 Walker was aged 26 at the time of the offending. He had a long history of illicit drug and alcohol abuse. Psychiatric reports indicated there was no evidence that Walker had a major mental illness, a mood disorder or a psychotic disorder, but he had a marked inability to control and regulate his emotions, with outbursts of anger and violence when his real or perceived needs were not met. Walker had a prior criminal record. The convictions were for drug, assault, damage and traffic offences. A fine was imposed in each case. The sentencing judge accepted that, since being in custody on remand, Walker had tackled his substance abuse issues and had shown remarkable improvement. His Honour also found that Walker was remorseful.
131 Lee was aged 23 at the time of the offending. He had an entrenched pattern of polysubstance abuse. Lee had a prior criminal record. His previous convictions included aggravated armed robbery, for which he received a conditionally suspended imprisonment order that was subsequently breached on two occasions, and drug and stealing offences. The psychiatric and psychological reports referred to Lee exhibiting a grandiose sense of his intelligence and his ability to manipulate people. Lee was assessed as being at a high risk of violent offending in the future, without intervention. The sentencing judge accepted that he was genuinely remorseful.
132 This court held that the circumstances of the killing of the victim placed it at the high end of the scale of seriousness of the offence of murder. The killing was intentional, unprovoked, ferocious and sustained, and merciless in its execution. It was further aggravated by the fact that the offence was committed in company against a defenceless, unsuspecting man, and deliberate steps were taken to conceal the crime. This court was satisfied that the minimum non-parole periods of 12 years were manifestly inadequate.
133 In Churchill, the respondent was convicted after trial of murdering a man with whom she was in a domestic relationship. The killing occurred at their home. She was sentenced to life imprisonment with a minimum non-parole period of 17 years. After a successful State appeal against sentence, the minimum non-parole period was increased to 21 years.
134 The respondent stabbed the victim with two knives and assaulted him with an electric frypan, causing numerous injuries and ultimately his death. There were 14 stab injuries and 26 incised injuries. A penetrative injury to the victim's chest travelled obliquely downwards and inwards to an estimated depth of 9 - 10 cm, penetrating the chest cavity and extending into the frontal aspect of the left lung, which was partially collapsed. The cause of death was multiple penetrating stab and incised cut injuries, including the stab wound to the chest.
135 The diverse nature and location of the victim's injuries were only consistent with multiple impacts from a sustained, prolonged and severe assault. Injuries to the victim's hands were consistent with him attempting to defend himself from the respondent's repeated attacks.
136 After killing the victim, the respondent mopped up his blood from the floor inside their house, moved him to the rear patio, changed his shorts and used a garden hose to wash the blood from his body and the patio. The respondent also changed her clothes, which were marked with the victim's blood.
137 The respondent lied to a neighbour and an ambulance officer about the circumstances of the victim's death. She told the ambulance officer that the victim had returned home during the night and she was unable to rouse him in the morning, which was when she first noticed he was covered in blood. She claimed to have hosed the victim to assist him to regain consciousness.
138 The sentencing judge found that, when the respondent inflicted the injuries which caused the victim's death, the respondent did so with the intention of killing him. However, there was no finding that the offence was premeditated or planned.
139 The respondent was aged 41 at the time of the offence. She had suffered a seriously deprived childhood and a dysfunctional upbringing. She had a long history of alcohol abuse and had been subjected to physical and sexual abuse during her life.
140 The respondent had a very significant prior criminal record, including a conviction in 1999 for the manslaughter of her then partner, who also died from stab wounds; a conviction in 2001 for unlawfully doing grievous bodily harm with a knife; a conviction in 2003 for unlawful wounding with a knife; a conviction in 2005 for unlawful wounding with a broken bottle; and a conviction in 2008 for making a threat to injure, endanger or harm another by becoming aggressive towards and threatening to stab the victim, after the victim refused the respondent's request for money. The respondent had served terms of imprisonment for these prior offences.
141 This court held that the circumstances of the respondent's offence placed it at the high end of the scale of seriousness for the offence of murder. She engaged in a sustained, prolonged and frenzied attack on the victim, whom she intended to kill. She used multiple weapons and went to considerable lengths to attempt to cover up the murder. The victim's death was the culmination of a broader course of violence inflicted on him by the respondent. No doubt the respondent's long-standing alcoholism contributed to the commission of the murder. She demonstrated a lack of remorse, insight and acceptance of responsibility for the victim's death. The only mitigating factor of any significance was the respondent's disadvantaged and dysfunctional upbringing. This court was satisfied, having regard to all sentencing considerations and the standards of sentencing customarily imposed, that the minimum non-parole period of 17 years was unreasonable and plainly unjust.
142 In Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656, Gleeson CJ, Gummow, Hayne and Callinan JJ said a plea of guilty is ordinarily to be taken into account in mitigation for two reasons [22]. First, the plea is usually evidence of some contrition or remorse on the offender's part. Secondly, the community is spared the expense of a contested trial. The extent of the mitigation afforded by the plea varies depending on the circumstances of the case.
143 Prior to the introduction of s 9AA of the Sentencing Act, the rationale in this State for reducing, on account of a plea of guilty, the sentence that would otherwise have been imposed on an offender, was explained by the High Court in Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [17] - [22] (Gaudron, Gummow & Callinan JJ) and by this court in Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [29] - [38] (Steytler P, Wheeler, McLure & Buss JJA).
144 In Cameron, the High Court allowed an appeal against sentence by an offender because the sentencing judge had not properly considered the mitigating circumstances of the offender's plea of guilty. The relevant statutory provisions included s 7(2)(a) and s 8(2) (now repealed) of the Sentencing Act. At all material times, s 7(2)(a) has provided that an offence is not aggravated by the fact that the offender pleaded not guilty to it. Section 8(2) provided:
A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.
145 In Cameron, Gaudron, Gummow and Callinan JJ referred to the observations in Siganto which I have summarised at [142] above. Their Honours then said:
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.
...
Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing [11], [14].
[Section] 8(2) must be read as allowing that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice. That being so, the relevant question is not simply when the plea was entered but ... whether it was possible to enter a plea at an earlier time [19].
147 Section 8(2) was repealed and s 9AA was introduced by the Sentencing Amendment Act 2012 (WA).
(1) In this section -
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if -
(a) the offender had been found guilty after a plea of not guilty; and
(b) there were no mitigating factors;
victim has the meaning given in section 13.
(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a) by more than 25%; or
(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
149 The expression 'fixed term', referred to in s 9AA(1) and s 9AA(4), is defined in s 85(1) of the Sentencing Act to mean in effect a term of imprisonment imposed on an offender that is not a life sentence.
150 The maximum limit under s 9AA(4) on the discount available for a plea of guilty, namely 25% of the 'head sentence' (as defined in s 9AA(1)), applies only where the head sentence for the offence in question is or includes a 'fixed term'. So, the maximum limit under s 9AA(4) does not apply where, as in the present case, the head sentence for the relevant offence is life imprisonment.
[T]he 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 [40]. (emphasis added)
152 However, as McLure P (Buss & Mazza JJA agreeing) observed in Churchill [34], a plea of guilty to the offence of murder, where the offender is sentenced to life imprisonment, will ordinarily result in a significant discount to the minimum non-parole period, even on the application of the principles in Cameron.
153 In the present case, there were numerous features of the respondent's offending, and its consequences, that placed the murders, individually and collectively, at or towards the high end of the scale of seriousness:
(a) the respondent committed two discrete acts of murder;
(b) the murders were committed in different locations, by different means and with an interval of time between the murders (that is, the time that elapsed between the respondent completing his offending against the first victim in their Girrawheen home and driving to and confronting the second victim at his Girrawheen home);
(c) the respondent intended to kill each of the victims;
(e) the first victim (Ms Farcich) was the respondent's partner and the mother of his two children;
(f) the first victim was very vulnerable: she was significantly shorter and smaller in stature than the respondent, and she was isolated with the respondent in their bedroom;
(g) the motive for the murder of the first victim was an irrational belief as to her infidelity;
(h) the respondent treated the first victim's body in a degrading manner after he killed her by binding her head and neck with duct tape and writing '666 SLUT' across her forehead with a blue marker pen;
(i) the second victim (Mr Filkovski) was the respondent's long-term friend and associate;
(j) the second victim was very vulnerable in that he was at home alone when the respondent arrived and attacked him with two weapons;
(k) the motive for the murder of the second victim was an irrational belief that he was spreading rumours about the respondent;
(l) the respondent did not at any stage attempt to obtain medical assistance for either of the victims;
(m) the respondent's murder of the first victim has in effect deprived their young children, who were aged 7 years and 2 years at the time of the offending, of their parents, with obvious long-term traumatic consequences; and
(n) the murders have had a significant and ongoing negative impact on the families of the victims.
154 There was no material difference in the seriousness of, or the respondent's culpability for, each of the murders.
155 There were, of course, some mitigating factors. The respondent pleaded guilty at the first reasonable opportunity. He accepted responsibility for his criminal conduct and facilitated the course of justice. The sentencing judge made unchallenged findings that the respondent had shown genuine remorse and had some insight into his entrenched substance abuse and its impact on his offending. His Honour accepted that, apart from the significant qualification that the respondent had abused drugs for a long time, he was of prior good character. His Honour also made an unchallenged finding, based on the respondent's good employment history and the psychiatric reports, that he had 'good prospects of rehabilitation'.
156 However, although all of the mitigating factors had to be taken into account:
(a) the brutal, sustained and unprovoked nature of the two discrete acts of murder, in the context of the respondent's entrenched drug abuse, lessened the weight that could be given to his favourable personal antecedents;
(b) the pleas of guilty at the first reasonable opportunity were made in the context of a very powerful, if not overwhelming, State case; and
(c) his Honour's unchallenged finding to the effect that the respondent had 'good prospects of rehabilitation' had to be understood in the context of his entrenched drug abuse and the difficulty which is invariably involved in predicting the prospects of rehabilitation of an offender who has committed very grave crimes and is, in any event, to be incarcerated for many years.
157 The circumstances I have mentioned affected the weight to be given to those mitigating factors.
158 The respondent was intoxicated with methylamphetamine at the time of the offending. His psychotic disorder was, most likely, induced by his ingestion of drugs. No other mental illness, unrelated to drug abuse, was involved in the offending. It is well-established that where an offender has psychological, cognitive or emotional difficulties (including a loss of control, a loss of the capacity for sensible decision-making, and a loss of the ability to appreciate consequences), and those difficulties have been self-induced by the consumption of illicit drugs, his or her condition is not a mitigating factor for sentencing purposes. The offender is morally responsible for his or her condition.
159 In the present case, the primary sentencing considerations were condign punishment (for the intentional and unprovoked killing of two vulnerable people by the application of brutal, sustained and unprovoked violence) and personal and general deterrence. Personal deterrence was less important in view of the sentencing judge's unchallenged finding as to the respondent's 'good prospects of rehabilitation', but it remained a relevant consideration. The respondent's pleas of guilty at the first reasonable opportunity and the other mitigating factors had to be brought to account in determining the appropriate sentencing disposition.
160 I am satisfied, after taking into account and evaluating all relevant facts and circumstances (including the sentencing judge's unchallenged findings of fact) and all relevant principles relating to the imposition of a minimum non-parole period, that the length of the minimum non-parole periods fixed by his Honour was unreasonable or plainly unjust, and therefore manifestly inadequate. In particular, the terms of 21 years did not adequately reflect the fact that the respondent committed two discrete murders, each of which had the serious features that I have described, in different locations, by different means and with an interval of time between the murders, and the value which Parliament, in its enactment of the current legislative scheme pursuant to the 2008 Act, has placed on human life. The interests of justice, in all the circumstances, required the imposition of substantially longer minimum non-parole periods. That is the only conclusion reasonably open. The minimum non-parole periods fixed by his Honour were not merely lenient. They were substantially
outside the sentencing range open on a proper exercise of his Honour's discretion. Error in the exercise of the discretion should be inferred from the sentencing outcome.
The result of the appeal and the resentencing of the respondent
163 As I have mentioned, counsel for the respondent did not submit that the residual discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. The respondent does not, of course, bear an onus to establish that the residual discretion should be exercised in his favour. Rather, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised. See CMB v Attorney General (NSW) [2015] HCA 9; (2015) 89 ALJR 407 [33] - [34] (French CJ & Gageler J), [66] (Kiefel, Bell & Keane JJ).
164 In my opinion, there is no basis, in the present case, for invoking the discretion. The minimum non-parole periods imposed by the sentencing judge were substantially less than the minimum non-parole periods open on a proper exercise of the sentencing discretion. Appealable error has been very clearly established. This court's intervention is necessary to ensure the preservation of proper sentencing standards for the offences in question.
165 This court has the material necessary to resentence the respondent.
166 After taking into account the facts and circumstances of each offence and all other relevant sentencing factors (including matters of mitigation), I would substitute a minimum non-parole period of 27 years on each count.
167 The sentencing judge's other orders, namely the imposition of a sentence of life imprisonment on each count and the backdating of each sentence to 15 May 2013, should not be disturbed.
168 The respondent will be eligible to be considered for release on parole in relation to each offence when he has served 27 years calculated from 15 May 2013.
(1990) 169 CLR 525
(2015) 89 ALJR 407
(2013) 45 WAR 328
(1998) 20 WAR 257
(1974) 131 CLR 623
(2009) 40 WAR 11
(2011) 43 WAR 285
(2014) 253 CLR 58
(2002) 209 CLR 339
(1984) 58 ALJR 367
(1999) 195 CLR 665
(2008) 36 WAR 393
(1998) 194 CLR 656
(2011) 42 WAR 91