Gore v. The State Of Western Australia - (01 Sep 2017)

Imposition of a sentence other than life imprisonment for the offence of murder will be an exceptional course

Criminal

The Appellant was convicted after trial of murdering the deceased, who was her former partner, on 13 June 2015. She was sentenced to life imprisonment with a non-parole period of 12 years. The Appellant now appeals against that sentence on the grounds that, the trial judge erred in declining to order a term of imprisonment other than life imprisonment and in fixing a non-parole period which was, in all the circumstances, manifestly excessive. The Appellant submits that, the trial judge erred in imposing a term of life imprisonment which, in the circumstances, is clearly unjust. It is submitted that, the Appellant had been a victim of the deceased's violence over a number of years and, critically, had been a victim of the deceased immediately prior to her grabbing the knife and inflicting the stab wound. The Appellant says that, her dire ill health means there is a real possibility that she will die in custody and away from her family in Derby. It is on this basis that, the Appellant submits that, the imposition of a life sentence was clearly unjust.

Under Section 279(4) of the Code, life imprisonment 'must' be imposed unless that sentence would be 'clearly unjust'. This statutory language indicates that, the imposition of a sentence other than life imprisonment for the offence of murder will be an exceptional course. Whether a sentence is clearly unjust is a matter for the evaluative judgment of the sentencing judge, having regard to all of the circumstances of the case. That judgment is to be made by reference to the principles of sentencing set out in Section 6 of the Sentencing Act, 1995 and having regard to the circumstances of the offence and the offender. The sentence imposed must be commensurate with the seriousness of the offence.

The background of domestic violence which the Appellant experienced was properly acknowledged by the trial judge as a significant mitigating factor. However, on the findings noted, the primary motivation for the offending was anger at the deceased for stealing money, rather than a belief (for which there were no reasonable grounds) that stabbing the deceased in the chest was necessary for self-defence. The Appellant's drunken state at the time of committing the offence was not a mitigating factor. While not premeditated, and not done with any intention to kill, the Appellant's act of stabbing the deceased in the chest with a kitchen knife was objectively highly likely to result in his death. The trial judge also appropriately took into account the Appellant's prior good character and her very serious medical conditions. The tragic outcome of the offending is that, subject to the exercise of the Royal Prerogative of Mercy by the executive government, the Appellant is likely to die in custody away from her family and country.

In sentencing the Appellant, it was necessary to take account of the more arduous nature of imprisonment for the Appellant in these grim circumstances. However, the Appellant's personal circumstances must be balanced against the need to impose a sentence which is commensurate with the seriousness of the offence. The punishment must still reflect the seriousness of the crime. The seriousness of the Appellant's offending conduct was such as to be capable of supporting a conclusion that, a sentence of life imprisonment was not clearly unjust, even taking into account the significant mitigating circumstances.

An allegation of manifest excess is an allegation of implied error. Such an error may be inferred where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the Court must conclude that a substantial wrong has occurred. Appellate intervention on the ground of manifest excess is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the Appellate Court is driven to conclude that, there must have been some misapplication of principle. To determine, if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty and any upper or lower limits on the available minimum term prescribed by law for the offence, the standards of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender.

The offence in the present case was not in the most serious category of murder, there being no pre-meditation and no intent to kill the deceased. However, the Appellant stabbed the deceased in the chest with a kitchen knife, principally out of anger at her money being stolen, at a time, when she had no reasonable grounds for believing there to be any necessity to act in self-defence. While the Appellant's personal circumstances demanded a reduction in the non-parole which might otherwise have been fixed, they did not necessarily demand the fixing of the lowest available non-parole period of 10 years. Fixing of a 12-year non-parole period was not unreasonable or plainly unjust. The sentence has not been shown to be manifestly excessive.

Tags : CONVICTION SENTENCE LEGALITY