Court of Appeal (WA)|2008-01-21|Before: Wheeler JA

THE STATE OF WESTERN AUSTRALIA -v- WALLEY [2008] WASCA 12 (21 January 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- WALLEY [2008] WASCA 12

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal - Manslaughter - State appeal against sentence - Whether sentence of 1 year 8 months manifestly inadequate - Whether trial judge correct to ignore deterrence - Knife attack in drunken argument - Turns on own facts

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Sentence of 1 year 8 months' imprisonment set aside

1 WHEELER & MILLER JJA: At the hearing of this appeal, the appeal was allowed, the sentence imposed by McKechnie J set aside, and, in lieu thereof, a sentence of 3 years' imprisonment substituted. The court undertook to provide reasons and these are our reasons.

2 This is a State appeal against sentence. The respondent pleaded guilty to the crime of manslaughter in circumstances in which she had stabbed to death her partner. She was sentenced on 1 August 2007 to imprisonment for 1 year 8 months with an order for eligibility for parole. The sentence was ordered to commence on 12 October 2006.

3 Leave to appeal has been granted to the State to appeal against the inadequacy of that sentence: Criminal Appeals Act 2004 (WA) s 24(1)(a). The grounds are as follows:

The learned sentencing Judge erred in law in failing to have regard to deterrence, by reasoning that -

(a) there was little utility in adding a deterrent element to the sentence to be imposed in respect of the offence for the reason that others at whom deterrence would be aimed are people also likely to be intoxicated; and

(b) for whom his Honour so concluded the prospect of deterrence disappeared because of their intoxication.

(a) The learned sentencing Judge erred in law in finding that the Respondent's anger was a mitigating factor.

(b) The learned sentencing Judge erred in law in finding that the Respondent's desensitisation to violent acts between men and women was a mitigating factor.

4 The respondent was charged on indictment that, on 20 September 2006, at East Victoria Park, she unlawfully killed Ronald James Bropho. She pleaded guilty to that offence on 28 May 2007. It was a plea of guilty at the first opportunity.

5 The facts revealed that the respondent was in a relationship with Mr Bropho (the deceased). At about 11 am on 20 September 2006, the respondent and the deceased went to the home of the respondent's mother in East Victoria Park. A number of other family members were present. Alcohol was consumed throughout the day, and the respondent and the deceased also used some amphetamines. During the course of the afternoon, the respondent became upset and began arguing with the deceased. The respondent became abusive and aggressive towards her mother, punching her a number of times. When her mother left the house, the respondent continued to argue with the deceased. They were arguing in the driveway at the front of the house until the respondent went inside. She demonstrated her aggression by smashing plates and other items in the kitchen of the house. She then came outside carrying three knives. These knives were removed from her by a family member who was present.

6 The respondent and the deceased continued to argue. The respondent returned to the inside of the house. The respondent then had another knife. It was about 20 to 30 cm in length. She struck the deceased in the left side of the neck with the knife and then ran away.

7 The deceased bled profusely and witnesses attempted to stop the bleeding by applying pressure to his throat, but he died at the scene within a short period of time. A post-mortem report concluded that the deceased died from a penetrating wound to the neck. The knife wound had penetrated approximately 9 cm and had severed the right internal jugular vein.

8 The learned sentencing judge sentenced the respondent on 1 August 2007. He noted that the plea of guilty was made at an early stage, being as soon as the prosecution had accepted a plea of guilty to manslaughter in satisfaction of the original charge of wilful murder.

9 The learned sentencing judge described the circumstances of the offence as common, but tragic. He described the respondent's life as "blighted" and the death of the deceased as being resultant from the abuse of alcohol.

10 The learned sentencing judge summarised the facts by saying that, after a period of heavy drinking, an argument had broken out, in the course of which the respondent had armed herself with three knives, but they had been taken away from her. A further altercation had occurred in circumstances which were described as "a drunken argument [where] perceptions and recollections of what happened and when they happened differ[ed]". His Honour accepted that the deceased had been violent towards the respondent. He found it difficult to say whether the respondent had been violent towards the deceased immediately before the stabbing, but accepted that the circumstances which led to the death of the deceased had occurred as follows:

[N]otwithstanding being stripped of the three knives, at some point shortly after, you raced into the kitchen, took out a steak knife, went back and very shortly after, stabbed your partner in the neck, severing his carotid artery, from which he died shortly thereafter.

11 The learned sentencing judge made reference to a pre-sentence report and submissions which had been made on behalf of the respondent. Notice was also taken of a letter written by the respondent and some other materials, which went to the personal circumstances of the respondent. His Honour concluded:

Clearly your background is one which again is regrettably all too common and tragic. You have been the victim of sexual violence, of domestic violence in your past relationships. You grew up in a house where alcohol was consumed excessively by your parents. You yourself have been a glue-sniffer. You have used amphetamines, cannabis and alcohol so you come before this court to be sentenced with a complex background.

There is little point in my adding a deterrent element to the offence. Often offences will carry an element to deter others but the others who are likely to be deterred are people also who are likely to be intoxicated, to whom the prospect of deterrence or consequences has disappeared because of their intoxication. Nevertheless, it does appear clear that on that day you were angry, maybe with, maybe without, justification, and it was that anger that fuelled your actions to some time, and I think it probably [sic] that over the years, because of your background, you have become desensitised to violent acts between men and women.

12 After taking into account her antecedents, the circumstances of the offence, the plea of guilty, the comparative youth of the respondent and her lack of prior violent offending, the learned sentencing judge noted how serious the unlawful killing of another human being was and then sentenced the respondent to a term of 1 year 8 months' imprisonment.

13 The first ground of appeal contends that the learned sentencing judge erred in law in failing to have regard to deterrence and by reasoning that there was little utility in adding a deterrent element to the sentence because others at whom deterrence would be aimed would be likely to be intoxicated.

14 The appellant contends that the learned sentencing judge fell into error in concluding that the circumstances of the case did not call for a deterrent sentence. It is argued that that error is demonstrated by the fact that immediately before the act of stabbing, the respondent had armed herself with three knives, and notwithstanding the fact that those knives had been taken from her had again armed herself with a steak knife and stabbed the deceased.

15 It is argued on behalf of the appellant that the learned sentencing judge misconceived the role and purpose of the sentencing process in concluding that those who were likely to be deterred by the sentence imposed upon the respondent in this case were also likely to be intoxicated and the prospects of deterrence "disappeared".

16 We accept this contention. The learned sentencing judge appears to have effectively ignored one of the primary bases of punishment in the criminal law. The concept of deterrence in sentencing was enunciated in R v Williscroft [1975] VicRp 27; [1975] VR 292. It was repeated in a passage cited by Rowland J (with whom Kennedy and Murray JJ agreed) in R v Leucus (1995) 78 A Crim R 40:

[T]he complainant and the community as a whole are entitled to see that the courts will grant them protection by not only properly punishing the offender, but letting it be seen that, whatever the circumstances, this type of conduct is not acceptable, not only generally, but also within personal relationships. In R v Radich [1954] NZLR 86, at 87, the Court of Criminal Appeal in New Zealand (in a passage which has been supported by the Court of Criminal Appeal in R v Cooke (1955) 72 WN (NSW) 132 and in the main by the Full Court of the Supreme Court of Victoria in R v Williscroft [1975] VicRp 27; [1975] VR 292) said:

'... one of the main purposes of punishment, which is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilised countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. If a court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine the appropriate amount of punishment.' (I have emphasised the portion which, in my view, impinges mostly on this matter.) (46 - 47)

17 The importance of deterrence in the sentencing process was also underlined in Veen v The Queen (No 2) [1988] HCA 14; (1988) 33 A Crim R 230; (1988) 164 CLR 465, where Mason CJ, Brennan, Dawson and Toohey JJ said:

The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. (476)

18 The personal circumstances of the offender are always of importance and, in the present case, those circumstances clearly required careful attention from the learned sentencing judge. However, to dismiss the concept of deterrence by stating that others who were likely to be deterred would be people who were likely to be intoxicated and to whom the prospect of deterrence had "disappeared because of their intoxication" was, in our view, an error of principle.

19 It may well have been that the respondent lived in an environment in which alcohol pervaded the day-to-day life of herself, her family and her associates, but this did not minimise the importance of deterrence in the sentencing process. Not only was general deterrence required, but personal deterrence loomed as an important factor. The fact that the respondent and others associated with her were intoxicated at the time of the offence and that they were likely to continue to abuse alcohol was a relevant explanation for the commission of the offence of unlawful killing, but it did not offer an excuse for it and it did not take away from it the need for deterrence in the sentencing process. Drunkenness of itself carries little or no weight as a mitigating factor in cases of this nature: Wicks v The Queen (1989) 44 A Crim R 147; (1989) 3 WAR 372, 382 (Malcolm CJ).

20 We would therefore uphold the first ground of the appeal.

21 This ground contends that the learned sentencing judge erred in finding that the respondent's anger was a mitigating factor and further erred in finding that the respondent's desensitisation to violent acts between men and women was a mitigating factor.

22 The learned sentencing judge certainly took account of the fact that on the day of the offence the respondent was angry and that this anger had fuelled her actions. He thought that it was probable that over the years she had become desensitised to violence between men and women.

23 The respondent's disposition to anger and the desensitisation to violence consequential upon her life experience were both relevant to the sentencing process (see Wicks v The Queen (382)). They were relevant in two ways. The respondent's undoubted and unfortunate desensitisation reduced the moral culpability of her offending. However, it also increased the risk of her reoffending, so that the protection of the community became an important factor in the sentencing process (similarly to some cases of mental illness; cf Lauritsen v The Queen [2002] WASCA 203; (2000) 22 WAR 442, [29] (Malcolm CJ)). The desensitisation seems to have been taken into account only in mitigation however, as the ultimate sentence imposed was extremely low for the crime committed.

25 The principles upon which a prosecution appeal against sentence falls to be considered are very well settled and have been stated and re-stated in this court on numerous occasions. It is sufficient to refer to Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 where the court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) said:

The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass (1993) 72 A Crim R 561 and R v Clarke [1996] VICSC 30; [1996] 2 VR 520. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic [House v The King [1936] HCA 40; (1936) 55 CLR 499]. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice. [15]

26 There is undoubtedly an element of double jeopardy involved in a prosecution appeal against sentence (R v Grein (1988) 35 A Crim R 76; [1989] WAR 178, 180 (Malcolm CJ citing R v Peterson (1983) 11 A Crim R 164; [1984] WAR 329, 330)) and that factor must be borne carefully in mind when considering any prosecution appeal against sentence.

27 Although it was not a finding made by his Honour, counsel for the respondent submitted to us that the respondent's sentencing should have been, and was, approached on the basis that she had been the victim of significant violence at the hands of the deceased over a number of years and that the stabbing of the deceased occurred in circumstances in which he was violent towards her in a way that caused her to be fearful, or perhaps in a way which should be regarded as significantly provocative. It was submitted that the courts have, in other cases, recognised that a lenient sentence may be appropriate where, even though provocation or self-defence cannot be made out, there is a long history of violence by the deceased which explains a female offender's response. It was submitted that this was particularly the case in relation to Aboriginal women, who have even more difficulty than other domestic violence victims in obtaining access to services and support.

28 The difficulty with this submission is that his Honour made no such finding, and that the materials upon which such a finding could have been made were, so far as we can tell from the material in the appeal book, extremely limited. His Honour accepted that the respondent had been the victim of sexual violence and of domestic violence in her past relationships. He accepted that she grew up in a house where alcohol was consumed excessively by her parents and that she herself had been a glue-sniffer and a user of amphetamines, cannabis and alcohol. It had been put to his Honour that the respondent had spent some time in a women's refuge, where she had been seen with her arm in a sling and had said that the deceased had broken her arm. It was also put that the deceased had, on one occasion, stabbed her in the arm with a fork. These matters were not contested, but they are far from putting the respondent's case into the category of cases of a long history of violence at the hands of the deceased which was found in the comparable cases on which the respondent's counsel attempts to rely. Rather, it was clear that violence was a feature of the respondent's background generally, with some uncertain quantity of that violence perpetrated by the deceased. Coming to the events of the day in question, however, it is clear that the respondent had been aggressive and abusive with her mother before the confrontation with the deceased. It may be that her mother had also been aggressive towards her. So far as the confrontation with the deceased was concerned, the only finding which his Honour was able to make was:

As is often the case with events that occur in a drunken argument, people's perceptions and recollections ... differ, but it would appear at some stage your late partner did violence to you - whether you had done violence to him before is really difficult to say - in a context where you, he and at least your mother were all drinking heavily.

29 Before us, the respondent's counsel attempted to rely on certain passages of the respondent's videotaped record of interview to suggest that there had been a long history of violence by the deceased which should result in a compassionate sentence. These passages do not appear to have been the subject of particular emphasis before his Honour. That is not surprising, since the interview is a rambling one in which the respondent, on a number of occasions, makes statements which are inconsistent with each other, and which are, at times, inconsistent with the known facts. For example, at a number of points she describes the deceased as having loved her children (from a previous relationship) as if they were his own, while at other points she says that she, in effect, "gave up" her children so that she could be with the deceased. She, at times, said that she had, in effect, stabbed him to stop him from hitting her, or because she was tired of him hitting her, but at other times she said, in effect, that she had done so in order to demonstrate to him that he could not leave her, she being concerned that he may have some interest in another woman. Further, she denied having any recollection of the earlier incident in which she had obtained the three knives, which makes her account both of the facts and of her state of mind, difficult to accept at face value.

30 In short, it appears to us that the submissions of the respondent attempted to justify the sentence imposed by his Honour by reliance upon findings which were neither made by his Honour nor apparently open to him.

31 Counsel for the respondent referred in argument to a number of cases in which the facts bore some similarity to the present case. A number of those cases related to sentences imposed by trial judges. Those sentences differed immensely. There were sentences of probation (when that disposition was open in 1993), suspended imprisonment and terms of finite imprisonment ranging between 2 and 3-1/2 years. The cases were all prior to the application of the transitional provisions contained in sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).

32 Comparison with sentences imposed at trial and even in the case of R v Churchill [2000] WASCA 230 (after appeal) are seldom helpful in

cases of this nature. Manslaughter is by its very nature an offence in respect of which the facts and circumstances differ widely in every case. Sentences for the offence should reflect the value placed upon human life by the legislature (R v Bangard [2005] VSCA 313; (2005) 13 VR 146 [12] (Buchanan JA) and Taylor v The State of Western Australia [2007] WASCA 218 [54] (Miller JA)).

33 In the present case, the sentence imposed by the learned sentencing judge was, on any view of it, manifestly inadequate. The sentence was not proportionate to the gravity of the offence: Veen v The Queen (472), Hoare v The Queen [1989] HCA 33; (1989) 40 A Crim R 391; (1989) 167 CLR 348, 353 - 354 and Wicks v The Queen (379).

34 The respondent unlawfully killed the deceased in circumstances of violence where she plunged a knife into his neck and caused almost instant death. She had previously been armed with knives which were taken from her. Despite her intoxicated condition, she deliberately armed herself and brought about the death of another human being by the use of a knife. A sentence which carried deterrent elements both general and personal was essential and it was no answer for the learned sentencing judge to say that "others who are likely to be deterred are people also who are likely to be intoxicated, to whom the prospect of deterrence or consequences has disappeared because of their intoxication". That is a novel sentencing principle which, in our view, finds no place in the criminal law.

35 In all of the circumstances of the case, we consider that the appeal should be allowed, the sentence imposed by the learned sentencing judge should be set aside and in lieu of that sentence there should be a sentence of 3 years' imprisonment. The order for eligibility for parole should remain. It was common ground that the respondent was taken into custody on 20 September 2006, so the sentence should commence from that date.

36 McLURE JA: These are my reasons for joining in the orders made by the court on 7 December 2007. The facts, grounds of appeal and reasons of McKechnie J are detailed in the joint judgment and not repeated here.

37 Special principles apply to State appeals against sentence. They are detailed in The State of Western Australia v Houston [2005] WASCA 167 [52] - [54] (Steytler P) and The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 [25] - [28] (Steytler P). For present purposes it is sufficient to note that State appeals are brought in rare and exceptional cases to establish some point of principle and that when a

court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.

38 I interpret the gravamen of ground of appeal 1 to be that the sentencing judge erred in giving no weight to the sentencing objective of general deterrence. That objective is to deter other persons in the community from committing similar offences. It is apparent from the sentencing judge's reasons that he considered the factor of general deterrence but gave it no weight. General deterrence is a relevant (mandatory) sentencing consideration: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 476; R v Leucus (1995) 78 A Crim R 40. A mandatory relevant consideration must be taken into account and given weight although the extent of the weight to be given to it is a matter to be determined in the exercise of the sentencing discretion: R v S [2006] WASCA 266 [16].

39 The sentencing judge made an error of law in giving no weight to general deterrence. That error enlivened this court's jurisdiction to intervene and re-sentence the respondent. In the re-exercise of the sentencing discretion, I gave significant weight to the need for general deterrence. The implied assumption underlying the sentencing judge's approach in this case was that the general deterrence objective could only potentially apply to alcohol-fuelled offences of this type. That assumption is in my respectful opinion incorrect. Even if it is correct, it does not justify giving no weight to general deterrence. I accept that at the time of the alcohol-fuelled infliction of personal injury or death, the level of alcohol consumption may impair the offender's capacity to process and act on conventional inhibitors to such conduct. However, conventional inhibitors, including the prospect of imprisonment, are relevant to potential offenders avoiding conduct or situations in which alcohol-fuelled violence is likely to occur. Moreover, offences against the person are widespread in the community in general and in Aboriginal communities in particular. A great number of such offences are caused or contributed to by alcohol and other substance abuse. The failure to give any weight to general deterrence has the practical effect of reducing the severity of the sentence that would otherwise be imposed. That is to send the wrong message to potential offenders and fails to adequately protect the interests of potential victims.

40 Counsel for the respondent submitted that, having regard to the history of violence perpetrated on the respondent by the deceased and sentences customarily imposed for offences of the type committed by the respondent, the court should not be satisfied that a different sentence should have been imposed (see s 31(4) of the Criminal Appeals Act 2004 (WA)). As to the first matter I agree with the conclusion of Wheeler JA and Miller JA that the respondent attempted to justify the sentence by reliance upon findings which were neither made by the sentencing judge nor open to him. Further, the cases relied on by the respondent as demonstrating the range of sentences customarily imposed do not require or justify the sentence of 1 year 8 months imposed by the sentencing judge. The circumstances of the offending, in particular the nature and extent of the violence perpetrated by the respondent, were serious.

41 Although I was satisfied the State had made out ground of appeal 1, I was not so satisfied in relation to ground of appeal 2. The State contended that the sentencing judge mitigated (reduced) the sentence because the respondent acted in anger and was desensitised to violent acts between men and women. I am not persuaded that is correct. On my reading of the reasons, those matters were referred to simply as an explanation (but not justification) for the respondent's conduct.

Legislation Amendment and Repeal Act 2003

THE STATE OF WESTERN AUSTRALIA -v- WALLEY [2008] WASCA 12 (21 January 2008)

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Judgment (61 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- WALLEY [2008] WASCA 12 (21 January 2008)

Legislation Cited (2)

Cases Cited (7)