THE STATE OF WESTERN AUSTRALIA -v- STOESKI [2016] WASCA 16 (19 January 2016)

THE STATE OF WESTERN AUSTRALIA -v- STOESKI [2016] WASCA 16 (19 January 2016) - WASCA 2016 case summary — Zoe

[100]

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].

[107]

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)

[127]

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'.

[189]

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].

At a glance

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Judgment (251 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- STOESKI [2016] WASCA 16 (19 January 2016)

Legislation Cited (3)

Cases Cited (14)