Bradbury v The State of Western Australia - [2020] WASCA 214

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BRADBURY -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 214
CORAM:   BUSS P
MAZZA JA
VAUGHAN JA

HEARD:   22 OCTOBER 2020
DELIVERED          :   18 DECEMBER 2020
FILE NO/S:   CACR 45 of 2020
BETWEEN:   DAVID MICHAEL BRADBURY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   TROY DCJ
File Number            :   IND 62 of 2019

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of two counts of unlawful detention, one count of unlawful wounding and one count of aggravated armed robbery - Total effective sentence of 6 years 8 months' imprisonment - Whether the sentencing judge erred in finding that the appellant was not genuinely remorseful for his offending - Whether the sentencing judge erred in failing to find that the onerous conditions of the appellant's prior and future incarceration in relation to the offences in question were mitigating

Legislation:

Criminal Code (WA), s 301(1), s 333, s 392
Sentencing Act 1995 (WA), s 8(4)

Result:

Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	Mr S D Freitag SC
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

LAT v The State of Western Australia [2018] WASCA 215
Nolan v The State of Western Australia [2013] WASCA 235
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
The State of Western Australia v Egeland [2018] WASCA 228

JUDGMENT OF THE COURT:

This is an appeal against sentence.
The appellant was charged on indictment with five counts.
Count 4 was discontinued by the State as part of a plea negotiation with the appellant's defence counsel.
Count 1 alleged that on 20 July 2018, at Mandurah, the appellant and Jessie Lindsay unlawfully detained Christopher Hewitt, contrary to s 333 of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and at the same place as in count 1, the appellant and Mr Lindsay unlawfully detained Steven Pinker, contrary to s 333 of the Code.
Count 3 alleged that on the same date and at the same place as in count 1, the appellant and Mr Lindsay unlawfully wounded Mr Hewitt, contrary to s 301(1) of the Code.
Count 5 alleged that on the same date and at the same place as in count 1, the appellant and Mr Lindsay stole from Mr Hewitt, with violence, $150 cash and personal belongings, the property of Mr Hewitt, and that Mr Bradbury and Mr Lindsay were armed with a dangerous weapon, namely a knife, and that the appellant and Mr Lindsay were in company with each other, contrary to s 392 of the Code.
The appellant entered pleas of guilty to counts 1, 2, 3 and 5.
On 10 March 2020, Troy DCJ sentenced the appellant to individual terms of immediate imprisonment as follows:
(a)count 1: 14 months;
(b)count 2: 12 months;
(c)count 3: 18 months;
(d)count 5: 4 years.
His Honour ordered that the sentences for counts 1 and 3 be served cumulatively upon each other and cumulatively upon the sentence for count 5 and that the sentence for count 2 be served concurrently with the sentence for count 5. The total effective sentence was therefore 6 years 8 months' imprisonment. The total effective sentence was backdated to 24 July 2018. A parole eligibility order was made.
The appellant relies upon two grounds of appeal. Ground 1 alleges that the sentencing judge erred in finding that the appellant's expressed remorse for his offending had not been established to the required standard as being genuine and therefore was not a mitigating factor. Ground 2 alleges that his Honour erred in failing to find that the onerous conditions of the appellant's prior and future incarceration in relation to the offences in question were mitigating.
We would refuse leave to appeal and dismiss the appeal. Our reasons are as follows.

The sentencing judge's sentencing remarks including the facts and circumstances of the offending and the appellant's personal circumstances

The appellant and Mr Lindsay were sentenced together.
The facts and circumstances of the offending were as follows.
The offending occurred late in the evening of 20 July 2018.
At the appellant's direction, Mr Lindsay contacted Mr Hewitt and arranged for Mr Hewitt to attend urgently at an address in Mandurah where the appellant and Mr Lindsay were waiting. Mr Hewitt, accompanied by Mr Pinker, went to the address. When they arrived Mr Lindsay told Mr Hewitt to sit on a couch, which he did.
The purpose of the appellant and Mr Lindsay in procuring Mr Hewitt's attendance at the Mandurah address was to deal with a dispute. A couple of months earlier, Mr Hewitt had, on his version of events, acquired a car for about $200. Subsequently, while the car was being driven by a friend of the appellant's, the friend was stopped by police because the car had apparently been stolen. The appellant and Mr Lindsay intended that Mr Hewitt should pay some form of compensation as a result of the police having detained the appellant's friend.
After Mr Hewitt sat on the couch, the appellant entered the room. The appellant punched Mr Hewitt to the face and told him to tell the truth. The appellant locked the back door of the premises and Mr Lindsay sat next to Mr Hewitt to ensure that he did not attempt to leave.
Next, the appellant and, to some extent Mr Lindsay's partner, interrogated Mr Hewitt. The interrogation was video recorded on a mobile telephone. The interrogation included abuse and threats. Mr Hewitt was 'palpably scared' (ts 95).
After the appellant punched Mr Hewitt to the face, Mr Hewitt, on the appellant's version of events, 'kicked out' at the appellant. Defence counsel for the appellant had asserted that Mr Hewitt had 'kicked out' at the appellant, but conceded that the appellant was not injured as a result (ts 63 ‑ 64). His Honour said it was unnecessary for him to determine whether Mr Hewitt had 'kicked out' or not. His Honour added that if it did happen, the appellant's subsequent actions were 'completely disproportionate' (ts 95).
The appellant then used a 'commando-type hunting knife' and, in quick succession, stabbed Mr Hewitt three times to the right knee (ts 95 ‑ 96). The sentencing judge accepted, however, that the stabbing did not involve 'sadistic torture' (ts 96). His Honour also accepted that the stabbing did not occur in the early part of Mr Hewitt's detention, but appeared to have occurred after the protracted interrogation, and therefore was not the appellant's original objective.
On 22 July 2018, Mr Hewitt went to a hospital. His most serious injury was the wound to his right knee which was cleaned, explored and sutured. He also had abrasions to his foot and left axilla, clinically fractured nasal bones and a laceration to his lip and right ankle.
During the offending, the appellant threatened both victims (principally, Mr Hewitt) and said that if they wished to leave the premises they would have to promise to pay $5,000, being the compensation for the appellant's friend having been detained by the police. The appellant said that if Mr Hewitt did not promise to pay this amount Mr Hewitt would be put in the boot of a car and taken to the bush. Mr Hewitt promised to pay the $5,000 from his Centrelink payments over a period of six fortnights.
His Honour was satisfied beyond reasonable doubt that the appellant, assisted by Mr Lindsay, cut some of Mr Hewitt's pubic hair and told him that if he did not pay the $5,000 or if Mr Hewitt made a complaint to the police, the appellant would rape a little girl and leave Mr Hewitt's pubic hair at the scene to frame him. His Honour accepted that the appellant did not actually intend to commit any offence against a little girl or to frame Mr Hewitt. However, his Honour observed that it was 'quite chilling' that 'such a concept would occur to [the appellant]' (ts 96).
The appellant told the victims to give him 'everything that they had'. The victims then gave the appellant $150 cash, a gold watch and some cannabis. The appellant was not satisfied with the amount of cash or the value of the property given to him by the victims. He told Mr Pinker to go home and return with any valuable items. Otherwise, the appellant would 'open Hewitt up'. Mr Pinker, acting out of fear, went to his home and returned later with a laptop and some DVDs. The appellant and Mr Lindsay continued to detain Mr Hewitt. While Mr Pinker was away, the appellant continued to punch Mr Hewitt. The sentencing judge accepted, however, that the punching 'could not have been terribly protracted or forceful given the absence of significant facial injuries, confined it would appear to a nasal injury' (ts 97). The appellant gave Mr Hewitt a tea towel to staunch bleeding from the wound to his right knee.
The period for which Mr Hewitt was detained was between 40 minutes and two hours. The period of detention was longer for Mr Hewitt than for Mr Pinker.
His Honour found that the offending conduct of the appellant and Mr Lindsay was premeditated. However, his Honour accepted that the confrontation was not planned 'to the full extent it occurred'. Nevertheless, the fact that there would be a confrontation with Mr Hewitt was 'pre-planned and successfully engineered'. The detention of Mr Hewitt and Mr Pinker was protracted. A weapon was used. There were two victims. The victims were threatened (ts 97).
The sentencing judge noted that the appellant had a significant criminal history including convictions for threats to kill, aggravated assault occasioning bodily harm, being armed in a way that causes fear, and armed robbery. The appellant committed the offences in question within six weeks after release from prison for other violent offending (ts 98). In particular, his Honour observed that, on 21 February 2017, the appellant had been sentenced by Sleight CJDC following the appellant's conviction on his pleas of guilty of one count of threatening to unlawfully kill the appellant's mother, one count of aggravated assault occasioning bodily harm against his mother and one count of stealing a motor vehicle. Sleight CJDC imposed a total effective sentence of 1 year 9 months' immediate imprisonment.
During his sentencing remarks, Sleight CJDC said:
(a)the 'big difficulty' that faced his Honour was that previous attempts to rehabilitate the appellant had failed (ts 69);
(b)recently, while he was in custody, the appellant had engaged in counselling and had sought support and religious instruction from the prison chaplain (ts 69);
(c)the appellant had written a lengthy letter to his Honour pleading in essence for a further opportunity (ts 69);
(d)his Honour took into account the appellant's 'apparent motivation to do something to change [his] life', although his Honour was cognisant that 'all the attempts in the past … have been unsuccessful' (ts 69); and
(e)his Honour had no belief that if he released the appellant on a community-based order the appellant would comply with any conditions that his Honour might set (ts 70).
In the present case, Troy DCJ expressly took into account the presentence report in relation to the appellant, a letter of apology which the appellant had written to Mr Hewitt and other letters (including a letter from the appellant's parents) which referred to progress the appellant had allegedly made since he was remanded in custody for the offences in question. His Honour accepted that the appellant had made 'some considerable progress whilst [he had been] in custody' and also accepted that the appellant had done 'everything that [he could] to utilise [his] time [in custody] constructively' (ts 98). However, his Honour observed that it was impossible to say whether that would have any meaningful impact upon the appellant's ability not to resume violent offending upon his release from custody (ts 99).
The sentencing judge expressly took into account 'in the general sense' that the appellant's time in custody on remand had been 'more onerous' and would continue to be 'more onerous' as a result of the matters set out in an affidavit of Mara Barone sworn 4 February 2020 (ts 99).
The appellant was aged 35 when the offending occurred and was aged 37 when sentenced.
The appellant suffered significant trauma as a child. He experienced sexual abuse between the ages of 4 and 8. The trauma the appellant suffered was exacerbated by the murder of his aunt when the appellant was aged 12 and by the suicide of his uncle when the appellant was aged about 17. The death of the appellant's uncle continues to have a profound effect on the appellant.
The appellant has a history of using illicit drugs. Since the age of about 13 he has used cannabis, alcohol and methylamphetamine. He has suffered from chronic depression for a number of years.
His Honour said that the appellant's 'very significantly difficult background … and its impacting consequences' must be taken into account having regard to all relevant sentencing factors (ts 101).
The sentencing judge was of the view that the appellant posed a significant risk to public safety when he was in the community. The offences in question were consistent with the appellant having a continuing attitude of disobedience of the law. His prior criminal record underscored the need to give some significant weight to the sentencing objectives of punishment, protection of the public and personal deterrence.
The appellant 'utilised Mr Lindsay' in a deliberate and planned way 'to engineer Mr Hewitt's detention'. After a period of time, the appellant then inflicted physical injury with a weapon upon Mr Hewitt. There were two victims and multiple assaults. The injuries that were inflicted on Mr Hewitt were 'very unpleasant'. Although the assaults were not continuous they were unrelenting in the sense that they continued sporadically over a lengthy period of time and, in his Honour's opinion, the victims had no opportunity to resist in any meaningful or effective way (ts 103).
His Honour said that he would accommodate the totality principle by reducing the individual terms of imprisonment he would otherwise have imposed for counts 1, 2 and 3 and by making the individual term of imprisonment for count 2 concurrent with the individual term of imprisonment for count 5.
The sentencing judge then sentenced the appellant to 14 months' immediate imprisonment on count 1; 12 months' immediate imprisonment on count 2; 18 months' immediate imprisonment on count 3; and 4 years' immediate imprisonment on count 5. As I have mentioned, his Honour imposed a total effective sentence of 6 years 8 months' imprisonment, with parole eligibility, backdated to 24 July 2018.

Ground 1: the appellant's letter to the court

In his letter to the court, the appellant stated, relevantly and in essence that:
(a)the appellant was 'sorry for his actions and [took] full responsibility for [his] poor choices and how this situation spiralled into something [he has] much regret for';
(b)when the appellant 'was lent the car and it came back stolen from [Mr Hewitt], [the appellant] should [have] let the police deal with it';
(c)the appellant 'acted foolishly' and was 'sorry for [his] actions';
(d)the appellant was 'sorry [Mr Hewitt] got hurt after the fight';
(e)the appellant was 'genuinely sorry this happened and it really hit home when [his] son turned "8" a couple of weeks ago';
(f)the appellant, while in prison, was 'doing every course available to [him]';
(g)the appellant attends church regularly and has 'one on one counselling with Reverend Tony Walker';
(h)the appellant was affected greatly by the murder of his aunt when the appellant was aged 12 and by the suicide of his uncle when the appellant was aged 17;
(i)the appellant was sexually assaulted when he was a young boy;
(j)the appellant's mother and father tried their best, but a lot of the appellant's childhood years were traumatic for him;
(k)the appellant attends weekly Narcotics Anonymous meetings;
(l)the appellant has counselling at the prison counselling service, either on a weekly or a fortnightly basis, and that is helping him 'address a lot of stuff';
(m)the appellant was doing everything he could to address the circumstances that culminated in his appearance before his Honour for sentencing;
(n)the appellant was sorry that he had brought shame on his family;
(o)the appellant was concerned about the health of his father.

Ground 1: the appellant's letter to Mr Hewitt

In his letter to Mr Hewitt, the appellant stated, relevantly and in essence that:
(a)the appellant was 'sorry for the fight that happened' and for the fact that '[Mr Hewitt] got hurt and things got so heated etc over the car';
(b)the appellant reiterated that he 'really [was] sorry', and he hoped Mr Hewitt was 'getting on okay in [his] own life;
(c)the appellant had 'found God and [was] now a Christian';
(d)the appellant had 'no problem with [Mr Hewitt] anymore and he [wished Mr Hewitt] all the best with [his] life';
(e)the appellant had 'dealt with things wrong and should [have] let the police sort out the discrepancy with the car';
(f)the appellant 'never before saw things the way [he does] now with clarity';
(g)the appellant had 'found God' and had 'broken away from old friends and people in the drug scene';
(h)the appellant did not want 'to continue to waste [his] life anymore';
(i)the appellant 'genuinely [wished]' Mr Hewitt 'all the best for [his] future' and the appellant was 'sorry [Mr Hewitt] got hurt';
(j)the appellant hoped that Mr Hewitt might forgive him;
(k)the appellant wanted to live 'a quiet life … and be a father and working man';
(l)the appellant hoped that Mr Hewitt 'also might be clean and moving forward with [his] own life'.

Ground 1: the letter from the appellant's parents to the court

In their letter to the court, the appellant's parents stated, relevantly and in essence that:
(a)during 'the last six months' preceding the date of the letter (namely 26 April 2019) the appellant had shown 'much remorse and regret for the things he has done, he has also shown a lot of maturity in taking responsibility for his actions, more so now than ever before';
(b)the appellant 'has now committed his life to Christ';
(c)the appellant 'is earnest and sincere in his commitment to his faith'; and
(d)the parents hoped that the appellant would be offered 'an opportunity to make a fresh start in his new life as a committed Christian'.

Ground 1: the appellant's submissions

Counsel for the appellant submitted that the sentencing judge was in error in finding against the appellant on the issue of remorse.
It was argued that there were a number of pieces of evidence before his Honour that supported the appellant's expression of remorse as genuine and no significant or compelling evidence in opposition to the genuineness of his expressed remorse.
Counsel pointed to the following pieces of evidence:
(a)the appellant's letter to the court;
(b)the appellant's letter of apology to Mr Hewitt;
(c)the letter from the appellant's parents to the court; and
(d)the appellant's pleas of guilty.
Counsel noted, in particular, that:
(a)in his letter to the court, the appellant had said, 'I am [genuinely] sorry this happened and it really hit home when my son turned [8] a couple of weeks ago'; and
(b)in his letter to Mr Hewitt, the appellant said 'I [truly] am sorry man and believe it or not I have found God and am now a Christian'.

It was suggested that his Honour was influenced in his finding in relation to the appellant's expressed remorse by the prosecutor's criticism at the sentencing hearing of the appellant's references, in his letters to the court and Mr Hewitt, to the interaction he had with Mr Hewitt as a 'fight'.
The sentencing judge observed in his sentencing remarks:
I have read the letter you have written … to [Mr Hewitt] and the points made by the State prosecutor in that regard are … well made (ts 98).
Counsel for the appellant submitted that, while the use of the word 'fight' was less than '[an] ideal choice' by the appellant, there was a part of the interaction when Mr Hewitt did 'kick out' in response to the appellant having punched him. According to counsel, the use of the word 'fight' was not 'a wholly inaccurate word to use for at least the first part of the incident, although it is accepted it would be an inaccurate way to describe the rest of the incident' [19]. Counsel added that the appellant's choice of the word 'fight' should not be seen in isolation, but should be viewed in the context of the totality of the two letters which 'clearly [demonstrate] remorse' [20].
It was submitted that if his Honour made the alleged error in relation to the issue of remorse then the error was capable of having a material influence on the sentencing outcome.

Ground 1: its merits

This court can only intervene in a sentencing appeal if the sentencing judge made an express or implied material error of fact or law or if a miscarriage of justice has occurred. See LAT v The State of Western Australia.[1]
[1] LAT v The State of Western Australia [2018] WASCA 215 [39] (Buss P, Mazza & Beech JJA).
In The State of Western Australia v Egeland,[2] Buss P made the following observations concerning remorse as a mitigating factor:
[2] The State of Western Australia v Egeland [2018] WASCA 228 [39].
Numerous propositions in relation to remorse as a mitigating factor are well established, namely that:
(a)the offender bears the onus of establishing remorse on the balance of probabilities;
(b)remorse is not to be equated with sorrow for being caught or regret by the offender that he or she will be imprisoned or subject to some other punishment;
(c)an assertion of remorse by or on behalf of the offender need not be accepted by the sentencing judge if the existence of remorse is put in issue by the prosecutor or if the sentencing judge indicates that he or she may not be prepared to accept that the offender is remorseful;
(d)if remorse is to be mitigating, it requires a realisation by the offender that what he or she did was morally wrong and a sign of some sorrow for the impact or consequences or the potential impact or consequences of the offence;
(e)in determining whether the offender is remorseful, the sentencing judge is entitled to have regard to the offender's conduct as a whole;
(f)a plea of guilty will not, of itself, establish remorse although, together with other relevant evidence, the plea may be a relevant factor in enabling an inference of remorse to be drawn; and
(g)if the offender is genuinely remorseful, the remorse will usually be an important consideration in sentencing.
See Rowsell v The State of Western Australia [2015] WASCA 2 [16] ‑ [17] (McLure P & Newnes JA), [51] ‑ [52] (Mazza JA); Salkilld v The State of Western Australia [2017] WASCA 168 [58] (Buss P, Mazza & Beech JJA); Mrsa v The State of Western Australia [2018] WASCA 217 [40] (Buss P, Beech & Pritchard JJA).
Remorse is a strong emotion experienced by a person:
(a)who is sorry for their previous actions and the adverse impact those actions have had upon others; and
(b)who has resolved to reform and rehabilitate themselves.
A person will not be remorseful for their actions if the person merely regrets the consequences for themselves and their non‑victim family members (including any consequences for themselves under the criminal law) of those actions.
It is sometimes difficult to decide whether an offender is sincerely remorseful or not. Remorse resides in the offender's head. A decision as to whether the offender is sincerely remorseful or not involves an ultimate finding by inference from other facts. Ordinarily, the post‑offence conduct of the offender (that is, their actions as distinct from their words) will be a more reliable guide than the offender's words in evaluating whether the offender actually feels remorseful or not.
In the present case, the appellant relied upon documents including his letter to the court, his letter of apology to Mr Hewitt, his parent's letter to the court and his pleas of guilty in support of his contention before the sentencing judge that he was genuinely remorseful for his offending.
However, his Honour was not satisfied that the appellant had established genuine remorse on the balance of probabilities (ts 98).
In our opinion, the appellant's description in his letter to the court and in his letter to Mr Hewitt of his offending against Mr Hewitt as a 'fight' was of significance. The description of his offending as a 'fight' indicated that the appellant minimised the seriousness of his criminal behaviour towards Mr Hewitt and, also, minimised his responsibility for it. The word 'fight' is not, on any reasonable assessment, an accurate description of the true nature of any part of the incident involving the appellant and Mr Hewitt. The appellant initiated the violence. Later, the appellant escalated the violence by stabbing Mr Hewitt with the knife. The appellant also punched, threatened, made demands upon and detained Mr Hewitt. The appellant's overall offending was violent and protracted. If Mr Hewitt in fact 'kicked out' at the appellant, after the appellant had punched Mr Hewitt to the face, the appellant was not injured as a result and his subsequent actions were, as the sentencing judge noted, 'completely disproportionate' (ts 95).
It is also of significance that, in his letter to the court and in his letter to Mr Hewitt, the appellant said he was sorry that Mr Hewitt 'got hurt'. Those statements did not involve a direct acceptance of responsibility. The appellant did not expressly acknowledge that he had deliberately hurt Mr Hewitt.
Although the letters must, of course, be read and considered as a whole, both of the appellant's letters focus on the impact of the appellant's offending on himself and his family.
The appellant's letter to the court also dealt at some length with the appellant's wish to lead a better life after his release from custody. That wish may have been genuine when the letter was written, but his Honour was entitled to be sceptical about the appellant's ability to pursue and give effect to his wish upon re-entering the community.
The author of the presentence report noted, correctly, that the appellant had an extensive court history with only limited gaps in his offending. The author also noted, correctly, that the offences in question occurred within a short period after the appellant's release from custody after serving a term of imprisonment for violent offending. The appellant sought to explain his extensive court history to the author of the presentence report by stating that he had made 'poor choices'. The appellant attributed the 'poor choices' to negative peer associations, drug use, a dysfunctional relationship and childhood trauma. The appellant had an entrenched history of substance abuse spanning 20 years (on an 'on and off basis'). The author observed, correctly, that the appellant's explanation of his extensive court history 'somewhat demonstrates a lack of acceptance of personal responsibility for his offending behaviours which is furthered by the fact that he is yet to evidence a significant change in [his] behaviour; such as desistance from offending'.
In our opinion, the appellant's extensive criminal record and his entrenched history of substance abuse warranted the exercise of caution before accepting as genuine the appellant's self-serving statements to the effect that he is profoundly sorry for his criminal conduct and the adverse impact that his conduct has had upon Mr Hewitt.
Further, the exercise of caution before accepting that the appellant was sincerely remorseful was warranted because similar assertions of remorse had been put by or on behalf of the appellant to Sleight CJDC when his Honour sentenced the appellant on 21 February 2017 for other violent offending. As we have mentioned, the appellant committed the offences against Mr Hewitt and Mr Pinker within six weeks after his release from prison for the other violent offending.
The appellant's letter to the court and his letter to Mr Hewitt indicate that he regrets having committed the offences in question and the consequences under the criminal law that his offending will have for him and his family. However, his expression of responsibility for his offending and of apology for the impact that his offending has had on Mr Hewitt appears to reflect a shallow emotional response rather than true remorse.
The assertions made by the appellant's parents in their letter to the court are, no doubt, their genuine beliefs about and hopes for the appellant. However, in all the circumstances (in particular, having regard to the appellant's letters, criminal history and personal circumstances and antecedents), little weight could be given to their beliefs and hopes.
The appellant did not make any admissions to the police. Although he pleaded guilty, the pleas were not entered or indicated at the first reasonable opportunity.
We are satisfied that the sentencing judge was entitled, in all the circumstances, to fail to be satisfied, on the balance of probabilities, that the appellant was genuinely remorseful. Indeed, an evaluation of the objective facts and circumstances of the offending; the pleas of guilty; the appellant's criminal history; the appellant's personal circumstances and antecedents; the appellant's letter to the court and his letter to Mr Hewitt; and the letter from the appellant's parents to the court (considered in their totality), justified his Honour's conclusion that he was not persuaded, on the balance of probabilities, that the appellant had evinced any genuine remorse.
Ground 1 fails.

Ground 2: the appellant's submissions

Counsel for the appellant submitted that the sentencing judge was in error in failing to find that the onerous conditions of the appellant's prior and future incarceration in relation to the offences in question were mitigating.
Ms Barone's affidavit, including a bundle of internal prison records annexed to that affidavit, establish that the appellant had been moved within the prison system for his own protection. The appellant had been assaulted by other prisoners. At the time of sentencing the appellant was being held at the West Kimberly Regional Prison.
Defence counsel for the appellant submitted to his Honour that his Honour should take into account the appellant's past and likely future experience in custody as 'a generalised mitigating factor' (ts 58).
Counsel for the appellant submitted to this court that the sentencing judge indicated in his sentencing remarks that he had taken the circumstances of the appellant's time in custody into account in 'the general sense' (ts 99). His Honour did not, however, expressly refer to those circumstances as being mitigatory or as warranting a reduction in sentence.
Counsel for the appellant argued that it is apparent from his Honour's sentencing remarks that his Honour did not give any mitigatory weight to the conditions of the appellant's prior and likely future incarceration.

Ground 2: its merits

Section 8(4) of the Sentencing Act 1995 (WA) provides that if, because of a mitigating factor, a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.
However, failure by a sentencing judge to comply with s 8(4) of the Sentencing Act is not an appealable error. See Royer v The State of Western Australia;[3] Nolan v The State of Western Australia.[4]
[3] Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [59] (Owen JA); [229] (Miller JA).
[4] Nolan v The State of Western Australia [2013] WASCA 235 [44] (Buss JA; Mazza JA & Hall J agreeing).
In the present case, it was apparent that the appellant's time in custody had been more onerous and would continue to be more onerous for the reasons explained by Ms Barone in her affidavit. However, it does not appear that the appellant was at risk in prison because of any cooperation with law enforcement authorities.
The sentencing judge said:
I also take into account in the general sense … that [the appellant's] time in custody has been more onerous and will continue to be more onerous for the reasons set out by Ms Barone in her affidavit (ts 99).
His Honour's statement in that passage, that he 'also' took into account the conditions under which the appellant had been and would continue to be held in custody, built upon a statement he had made shortly before that passage. In the earlier statement his Honour said that he '[took] into account' that the appellant had made 'some considerable progress whilst [he had] been in custody' and that the appellant had 'done everything that [he could] to utilise [his] time constructively' (ts 98). The subject matter of his Honour's statement in the passage in question and the subject matter of his Honour's earlier statement were, of their nature, mitigating.
The sentencing judge's statement that he had taken into account in 'the general sense' that the appellant's time in custody had been more onerous and would continue to be more onerous must be understood having regard to the submission by defence counsel for the appellant that his Honour should take into account the appellant's past and likely future experience in custody as 'a generalised mitigating factor'.
It is plain (in context and on a fair reading of his Honour's sentencing remarks as a whole) that, in taking into account 'in the general sense' that the appellant's time in custody had been more onerous and would continue to be more onerous, his Honour was treating those circumstances as mitigating. The present and future conditions of the appellant's incarceration could only have been mitigating. Those conditions were not neutral for sentencing purposes.
By stating that he had taken that factor into account 'in the general sense', the sentencing judge was indicating that he had given mitigating weight to the present and future conditions of the appellant's incarceration.
It is true that his Honour did not comply with s 8(4) of the Sentencing Act in that he did not state in open court that he had reduced the sentence he would otherwise have imposed on the appellant because of the onerous conditions of the appellant's prior and future incarceration. However, as we have mentioned, failure by a sentencing judge to comply with s 8(4) is not an appealable error.
We are satisfied that, in the circumstances, the sentencing judge took into account, as a mitigating factor, the present and future conditions of the appellant's incarceration and that his Honour recognised that factor by reducing the sentence he would otherwise have imposed.
Ground 2 fails.

Conclusion

Neither of the grounds of appeal had a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Honourable Justice Buss
18 DECEMBER 2020