Munda v Western Australia

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Hayne,Crennan,Kiefel,Gageler,Keane JJ.,Bell J.
• Judgment Date: 02 October 2013
• Neutral Citation: [2013] HCA 38
• Docket Number: P34/2013
• Date: 02 October 2013

[2013] HCA 38

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Kiefel, Bell, Gageler And Keane JJ

P34/2013

Ernest Munda

Appellant

and

The State of Western Australia

Respondents

Representation

A Boe with D D Brunello for the appellant (instructed by Aboriginal Legal Service of Western Australia (Inc))

J McGrath SC with L M Fox for the respondent (instructed by Director of Public Prosecutions)

Munda v Western Australia

Criminal law — Appeal — Prosecution appeal against sentence — Where appellant pleaded guilty to manslaughter of de facto spouse — Where appellate court resentenced appellant on ground that original sentence manifestly inadequate — Whether appellate court failed to correctly apply principles attending disposition of prosecution appeal against sentence on ground of manifest inadequacy — Whether finding of manifest inadequacy open if similar sentences imposed for comparable offences — Whether appellate court erred in failing to exercise residual discretion.

Criminal law — Sentence — Principles — Relevance of deprived background of Aboriginal offender — Whether appellate court gave appropriate regard to appellant's antecedents and personal circumstances.

Words and phrases — ‘aggravating factors’, ‘antecedents and personal circumstances’, ‘manifestly inadequate’, ‘mitigating factors’, ‘residual discretion’, ‘social disadvantage’.

Criminal Appeals Act 2004 (WA), ss 24(1), 31, 41(4).

Sentencing Act 1995 (WA), ss 6, 8(1).

ORDER

Appeal dismissed.

1 French CJ, Hayne, Crennan, Kiefel, Gageler And Keane JJ. The appellant was convicted on his plea of guilty to the manslaughter of his de facto spouse, contrary to s 280 of the Criminal Code (WA). The appellant was sentenced by Commissioner Sleight in the Supreme Court of Western Australia to a term of imprisonment of five years and three months, with a non-parole period of three years and three months 1.

2 The respondent appealed against this sentence on the ground that it was manifestly inadequate. The Court of Appeal of the Supreme Court of Western Australia allowed the appeal, and resentenced the appellant to seven years and nine months imprisonment. He remained eligible for parole in accordance with the order of Commissioner Sleight 2.

3 In this Court, the appellant submitted that the Court of Appeal erred in failing to appreciate that there was no sufficient ground for interference by it in the sentence imposed by Commissioner Sleight, and in failing to have proper regard to the appellant's personal circumstances as an Aboriginal man. In particular, it is said that systemic deprivation and disadvantage, including an environment in which the abuse of alcohol is endemic in indigenous communities, should have been, but was not, taken into account by the Court of Appeal.

4 For the reasons that follow, the appellant's submissions should be rejected and his appeal dismissed.

(*)

5 At the time the deceased was killed, the appellant and the deceased were staying at the Mindi Rardi community near Fitzroy Crossing. They had been in a relationship for approximately 16 years and had four children together.

6 They attended a local tavern on the afternoon of 12 July 2010. Both became intoxicated and the appellant used some cannabis. When the pair returned to their house an argument developed. Each accused the other of being unfaithful. The appellant punched the deceased on numerous occasions, threw

her about their bedroom and repeatedly rammed her head into the walls. During the attack the deceased repeatedly screamed at the appellant, telling him to leave her alone. At one stage, the appellant caused the deceased to fall onto a bed mattress. He then stood over her and repeatedly punched her in the face. After the appellant had finished assaulting the deceased, they both went to sleep.

7 The next morning, the appellant had sexual intercourse with the deceased. He then left the house to get some tea. When the appellant returned, he noticed that the deceased had stopped breathing. He called for medical assistance and attempted first aid. The deceased was transported to Fitzroy Crossing Hospital and was pronounced dead on arrival.

8 A post-mortem examination confirmed that she had died from traumatic brain injury. She also had a fracture to her left jaw and a number of broken ribs. It is not disputed that all of her injuries were caused by the appellant.

(*)

9 Previously, on 4 May 2009, the appellant had been sentenced to 12 months imprisonment, conditionally suspended for 12 months, for the offence of unlawfully doing grievous bodily harm to the deceased on 23 October 2008. On that occasion the injuries inflicted on the deceased included a fractured femur, tibia and right radius as well as deep lacerations to her forehead inflicted by the use of a metal shovel. The injuries to the deceased's leg were sufficiently serious to require her to be transferred from Broome Hospital to Royal Perth Hospital for treatment 3.

10 On 4 May 2009, the appellant was also sentenced to six months imprisonment, conditionally suspended for 12 months, for two offences of common assault upon his 13 year old niece and the ex-partner of the appellant's sister 4.

11 The appellant killed the deceased a little more than two months after the expiration of the conditionally suspended imprisonment order 5.

12 At the time of the deceased's death, the appellant was subject to a lifetime violence restraining order in relation to the deceased. This order prohibited the appellant from having any contact with the deceased. It had evidently been ignored by both the appellant and the deceased in that they had continued their domestic relationship 6.

(*)

13 The respondent submitted before Commissioner Sleight that ‘for this particular offence … a sentence in the range of seven to nine years' imprisonment would not be inappropriate’.

14 Section 6 of the Sentencing Act 1995 (WA) (‘the Sentencing Act’) provides relevantly that:

• ‘(1) A sentence imposed on an offender must be commensurate with the seriousness of the offence.

  • (2) The seriousness of an offence must be determined by taking into account —

  • (a) the statutory penalty for the offence; and

  • (b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and

  • (c) any aggravating factors; and

  • (d) any mitigating factors.’

15 By s 8(1) of the Sentencing Act ‘mitigating factors’ are ‘factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.’

16 As to the seriousness of the offence, the maximum penalty was 20 years imprisonment. Commissioner Sleight referred to three features of the offence committed by the appellant which he regarded as aggravating factors 7. First, his

Honour referred to the earlier offence against the deceased and the violence restraining order in relation to her. Secondly, his Honour noted that the appellant was in a domestic relationship with the deceased, which should have provided her with protection. Thirdly, the attack was sustained and involved considerable violence. The Commissioner concluded that, within the broad range of offending punishable as manslaughter, the offending in this case did not fall within the ‘worst category of offences of this type’ but was nonetheless ‘towards the upper end of the range of seriousness.’ 8

17 The Commissioner then turned to the appellant's personal circumstances, noting that he was a traditional Aboriginal man and that as a child he was exposed to the ‘negative influences of alcohol and family violence.’ 9 His Honour noted that the appellant had a long history of alcohol and cannabis abuse 10.

18 The appellant had attended school until year 10 and went on to hold various jobs. However, he had been unemployed for about four years when he committed the offence 11. The appellant also had a long history of offending dating back to 1997 12. Some of the offences involved violence, such that the Commissioner concluded that the offence for which he was to be sentenced could not be considered uncharacteristic 13.

19 Commissioner Sleight accepted that he was obliged to take the appellant's circumstances of disadvantage into account as mitigatory factors 14:

‘The sentencing of Aboriginal people can present unique problems which must be addressed. Firstly, it should be stated that the same sentencing principles apply in every case, irrespective of the [identity] of an offender within a particular ethnic group.

Secondly, it is proper for a court to recognise the problems of alcohol abuse and violence which exist in many Aboriginal communities and the social disadvantages that they create. These social disadvantages often create a conditioning within the community to accept as normal alcohol abuse and violence, as if it were a way of life. In such circumstances, there needs to be a recognition that, although punishment plays a role in personal and general deterrence, to change such behaviour requires a change in the social circumstances. However, notwithstanding these considerations, the seriousness of an offence must always be given proper weight. Like in all communities, the sentences imposed play a role in trying to protect the vulnerable. This includes, in Aboriginal communities, Aboriginal women, who are frequently subject to violence.’

20 His Honour also took account of the prospect of the appellant suffering traditional payback in the form of severe corporal punishment, but gave ‘limited [weight] to it.’ 15

(*)

21 Section 24 of the Criminal Appeals Act 2004 (WA) (‘the Criminal Appeals Act’) authorises an appeal by a prosecutor to the Court of Appeal against the sentence imposed on a convicted person.

22 Sub-sections (1) and (4) of s 31 of the Criminal Appeals Act...