Lee v The State of Western Australia

[2022] WASCA 137

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   LEE -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 137

CORAM:   BUSS P

MITCHELL JA

LIVESEY AJA

HEARD:   13 OCTOBER 2022

DELIVERED          :   28 OCTOBER 2022

FILE NO/S:   CACR 115 of 2021

BETWEEN:   CONLIN JAMES LEE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   FIANNACA J

File Number            :   INS 16 of 2021

Catchwords:

Criminal law - Appeal against sentence - Unlawful assault resulting in death - Mitigatory effect of the appellant's significantly deprived background including his foetal alcohol spectrum disorder - Alleged express error in dealing with the appellant's significantly deprived background including his foetal alcohol spectrum disorder - Manifest excess

Legislation:

Criminal Code (WA), s 281
Sentencing Act 1995 (WA)

Result:

Leave to appeal on ground 1 granted
Leave to appeal on ground 2 refused
Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant	:	Mr J Gullaci and Mr W Yoo
Respondent	:	Ms K C Cook

Solicitors:

Appellant	:	Aboriginal Legal Service - Perth
Respondent	:	Director of Public Prosecutions (WA)

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

Barbaro v The Queen (2014) 253 CLR 58

Bugmy v The Queen (2013) 249 CLR 571

Dinsdale v The Queen (2000) 202 CLR 321

Dungay v The Queen [2020] NSWCCA 209

Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443

Hiemstra v The State of Western Australia [2021] WASCA 96

Hili v The Queen (2010) 242 CLR 520

Hoare v The Queen (1989) 167 CLR 348

House v The King (1936) 55 CLR 499

KMC v Director of Public Prosecutions (SA) (2020) 267 CLR 480

Lovell v Lovell (1950) 81 CLR 513

Markarian v The Queen (2005) 228 CLR 357

McGuinness v The Queen [2021] NSWCCA 80

Minister v SZVFW (2018) 264 CLR 541

Munda v Western Australia (2013) 249 CLR 600

Nasrallah v The Queen (2021) 105 NSWLR 451

Neal v The Queen (1982) 149 CLR 305

Peterson v The State of Western Australia [2019] WASCA 207

Ryan v The Queen (2001) 206 CLR 267

The Queen v Morse (1979) 23 SASR 98

The Queen v Pham (2015) 256 CLR 550

The Queen v Reiner (1974) 8 SASR 102

The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81

The State of Western Australia v JWRL [2010] WASCA 179

The State of Western Australia v Smith [2019] WASCA 42

The State of Western Australia v Walley [2008] WASCA 12

Vagh v The State of Western Australia [2007] WASCA 17

Veen v The Queen (No 2) (1988) 164 CLR 465

Wong v The Queen (2001) 207 CLR 584

JUDGMENT OF THE COURT:

Introduction

1. This is an application for leave to appeal against sentence.

2. The appellant pleaded guilty to one count of unlawful assault resulting in death, contrary to s 281 of the Criminal Code (WA) (the Code), for which the maximum penalty is 20 years' imprisonment. The offending concerned a single punch to the head of the appellant's aunt, Ms Katrisha Dawn Shaw, which resulted in her death on 14 May 2020.

3. The sentencing judge imposed a sentence of 5 years immediate imprisonment and ordered that the appellant be eligible for parole.  The sentence was backdated to commence on 15 May 2020, when the appellant was taken into custody.

4. The appellant was on bail at the time of the offending.  For that offending, a magistrate later sentenced the appellant to 6 months' imprisonment for assault causing bodily harm to the appellant's domestic partner, Ms Kerhanna James, with whom the appellant has two sons. That sentence was ordered to operate cumulatively on the subject sentence. 

The grounds of appeal: the contentions of the parties

1. Apart from the contention that the sentence is manifestly excessive (ground 2), it is contended that the exercise of the sentencing discretion was vitiated by the following specific errors (ground 1):

   The learned sentencing judge 'LSJ' erred in dealing with the appellant's history of deprivation, his [Foetal Alcohol Spectrum Disorder] diagnosis, and how this was relevant to the sentence imposed.

   a.It was incorrect to reduce the mitigation arising from the appellant's traumatic childhood, and [Foetal Alcohol Spectrum Disorder] with associated mental impairments, in the way that it was because of the need for community protection.

   b.There was no need to reduce the mitigation given to deprivation, and [Foetal Alcohol Spectrum Disorder] with associated mental impairments, because it could have been set-off to whatever extent the LSJ thought proper by emphasising community protection in the sentence (Cf Hiemstra v Western Australia [2021] WASCA 96 [110] ‑ [112] (the Court)).

   c.The LSJ 'balanced the scales' in this case by giving greater weight to the need to protect the community with less weight to be given to the appellant's deprivations and mental impairments associated with [Foetal Alcohol Spectrum Disorder] (Sentencing Remarks [163]) which was incorrect. 

   d.The LSJ erred by concluding that the appellant's deprivations, and the effect of [Foetal Alcohol Spectrum Disorder] upon him, only mitigated the sentence to a 'small extent' (Sentencing Remarks [183] ‑ [184]).[1]

   [1] Ground of Appeal WAB 6.

2. In essence, the complaint made on appeal is that the appellant's history of deprivation, Foetal Alcohol Spectrum Disorder and associated mental impairments were features of mitigation which ought not to have been counter‑balanced by the need to recognise community protection in the sentence.  The appellant emphasises that the statement by the sentencing judge that these mitigatory factors only mitigated the sentence to a 'small extent' reveals error, necessitating that the sentence be set aside and the appellant re‑sentenced. 

3. For the State, it is contended that there was no error because the sentencing judge did not act on a wrong principle by failing to understand or apply the relevant law.[2]  In essence, the State contends that the sentencing judge undertook the orthodox sentencing process of giving weight to the conflicting purposes of punishment referred to in Bugmy v The Queen[3] and Peterson v The State of Western Australia.[4]  The State highlights three matters which it contends demonstrate that no error was made:

   (a)The sentencing judge did not proceed on the basis held to be erroneous in Peterson (similar to the error made in Bugmy) that because the offender was no longer youthful or inexperienced for sentencing purposes, he was morally wholly responsible for his conduct so that the deprivation associated with his background was a sentencing factor of little importance. 

   (b)Unlike Hiemstra v The State of Western Australia,[5] where the sentencing judge held that the mitigation arising from the offender's traumatic childhood had to be reduced because of the nature and seriousness of the offending, combined with his previous offending, no suggestion to that effect was made in this case. 

   (c)This case approaches the example given by Chief Justice Quinlan in Peterson, namely, that the 'full weight' of an offender's deprived background might be 'outweighed' by the need for community protection.[6]  Because the sentencing judge embarked on a process of giving weight to the conflicting purposes of punishment, it is contended that the appellant is in fact alleging a 'weighting' error by the sentencing judge and that this is not a proper ground of appeal.[7]

   [2] The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81 [23] (Pullin JA, Roberts-Smith JA agreeing).

   [3] Bugmy v The Queen (2013) 249 CLR 571.

   [4] Peterson v The State of Western Australia [2019] WASCA 207.

   [5] Hiemstra v The State of Western Australia [2021] WASCA 96 [113] ‑ [114] (Buss P, Mazza and Beech JJA).

   [6] Peterson v The State of Western Australia [11] (Quinlan CJ). See similarly McGuinness v The Queen [2021] NSWCCA 80 [61] (Wright J, Hoeben CJ in CL & Bellew J agreeing) citing Dungay v The Queen [2020] NSWCCA 209.

   [7] Vagh v The State of Western Australia [2007] WASCA 17 [49].

4. For the reasons that follow, the sentencing judge did not make the asserted errors of law in the exercise of his sentencing discretion.  Leave to appeal on this ground should be granted.  Leave to appeal on the ground of manifest excess should be refused.  The appeal should be dismissed. 

The circumstances of the offending

1. At the time of the offending, the deceased and the appellant were living in Broome.  The appellant was 25 years of age, and taller and stronger than the deceased. 

2. The deceased was a 44‑year-old Indigenous woman who was the biological sister of the appellant's mother, who died in 2011. 

3. The appellant had just learned that his girlfriend was pregnant, and he was celebrating.  By 2.40pm on 14 May 2020, the appellant and the deceased had been drinking together throughout the day.  They were both heavily intoxicated.  They were dropped to a liquor store where the deceased purchased a bottle of scotch whisky together with soft drinks.  They were then taken to the home of the deceased's mother and the appellant's grandmother.  They continued to drink at a table outside that home.

4. Whilst they were drinking, the deceased spoke about the appellant's mother.  This caused the appellant to become angry.  After becoming aggressive and making threats, the appellant struck the deceased once to the left side of her head with his fist.  This caused her to fall to the ground and strike the left side of her head on the concrete driveway. 

5. It was agreed before the sentencing judge that the fatal injury was caused when the deceased's head hit the ground after she was punched.

6. Although the appellant checked on his aunt, he soon left.

7. When the police and ambulance officers arrived, they saw that the deceased had swelling over her left cheek and blood in and around her left ear.  She sat up.  She vomited.  The deceased was acting in a confused manner and was initially resistant to assistance.  She was taken by ambulance to the Broome Hospital and admitted at 4.53 pm on 14 May 2020.  Soon after admission, the deceased's heart rate slowed and she was transferred to a resuscitation ward.  She became unresponsive.  A CT of the skull and brain showed extensive fractures on the left side of the skull, extending into the base, and a severe subdural haemorrhage on the left side, together with bleeding within the brain and shifting of the brain from the midline, together with marked compression of the brain.  The deceased did not recover.  She was declared dead at 11.05 pm on 14 May 2020.

8. Following a post-mortem conducted on 22 and 23 May 2020, the cause of death was determined to be complications involving an acute left-subdural haematoma with midline shift of the brain to the right, together with transtentorial herniation. 

9. After the appellant left the home of his grandmother, the appellant was heard to say that he had killed his aunt and, when he eventually arrived at his father's home in the early hours of the following day, he was told that police were looking for him in connection with his aunt's death.  The appellant told his father that he had 'just walked away' from his grandmother's home.  When he was advised later that morning that police would collect him, he said to his father that this had 'something to do with Kitty' (his aunt) and that he was 'going for a holiday'. 

10. The appellant has remained in custody since arrest on 15 May 2020. He was initially charged with murder but, following negotiations, the State discontinued the murder charge on 21 April 2021. On that date the appellant indicated that he would plead guilty to the charge under s 281 of the Code. The State accepted that the appellant's plea was entered at the first reasonable opportunity for the purposes of s 9AA of the Sentencing Act 1995 (WA).

11. The appellant explained to the sentencing judge that he could not clearly remember the events on the day of the assault that caused his aunt's death.  He remembered drinking whiskey with his aunt.  He remembered that he was really drunk. The sentencing judge accepted that the appellant was so drunk that he struggled to remain conscious.  Nonetheless, the appellant recognised what his aunt was saying when he punched her.  The statements made by the appellant after the offending demonstrated that he knew that he had caused his aunt serious harm. 

12. The sentencing judge recognised that the appellant was to be sentenced on the basis that he did not foresee that the deceased would die from being punched and that this was not reasonably foreseeable by an ordinary person in the appellant's position (ts 75 ‑ 76). 

13. The sentencing judge also recognised a number of aggravating factors relevant to sentence.  These were as follows:

    (a)The deceased was older and smaller than the appellant and not as strong.  Punching her in the face represented a cowardly act (ts 10). 

    (b)The deceased was in a vulnerable state, not only because of her lesser size and strength but also because she was very intoxicated (ts 10).

    (c)The appellant punched the deceased without warning, giving her no opportunity to defend herself.  She was effectively defenceless (ts 11). 

    (d)Because the appellant and the deceased were in a family relationship, the deceased was entitled to feel safe in the company of her nephew and to be respected by him (ts 11). 

    (e)The deceased had made no threats of violence nor did she engage in any physical altercation; she posed no threat to the appellant.  The assault was intended to punish the deceased for a perceived slight (ts 11).

    (f)The appellant did not stay to render assistance.  The appellant left because he recognised that he had caused his aunt serious harm and he probably realised that the consequences would include repercussions from his family.  Whilst this conduct increased his moral culpability, the appellant's aunt nonetheless received speedy assistance from his grandmother and her domestic partner (ts 11).

    (g)At the time of the offending the appellant was on bail for other alleged violent offending.  That offending concerned an assault against his domestic partner (ts 12).

14. For the appellant, the sentencing judge received submissions about mitigating features (ts 13).  These included:

    (a)The offending was committed whilst the appellant was grossly intoxicated and very angry.  Though this did not excuse or mitigate the appellant's conduct, it put it into context.  The assault was not the result of a 'clear-eyed, sober decision'.

    (b)The assault involved a single punch and did not form part of any sustained attack.  No weapons were used.

    (c)It was submitted that it was relevant that the appellant's blow did not directly cause the fatal injuries but that these were caused by the deceased's fall. The sentencing judge did not regard this distinction as being of any significance given that the offence under s 281 of the Code was introduced to deal with 'circumstances precisely of this kind'.

15. A number of victim impact statements were received, including from the deceased's domestic partner who was unable to return to Broome from his duties as a truck driver at the time of the offending.  He explained that the need to postpone the deceased's funeral for post‑mortem examination for a period of around two months caused him significant distress.  Many other members of the deceased's family described ongoing distress and pain following her death.  These consequences were described by the sentencing judge as profoundly sad (ts 16). 

The circumstances of the offender

1. At the time of sentencing, the appellant was 26 years of age.  His father is a Yawuru Aboriginal man in his early seventies and his mother was a Nyikina Aboriginal woman.  The sentencing judge accepted that the appellant had an abiding interest in his cultural heritage.

2. The sentencing judge found that the appellant had had problems with his health including a heart defect.  The appellant had suffered lifelong hearing difficulties.  These likely contributed to the appellant's difficulties with schooling (ts 21).  He was functionally illiterate and innumerate.

3. The appellant commenced drinking alcohol at 13 years and using cannabis at 15 years.  The appellant began to use methylamphetamine at the age of 17.

4. The appellant had secured funding to access supports and assistance through the National Disability Insurance Scheme and expressed willingness to participate in rehabilitation once sentenced. 

5. The appellant has an older brother and a younger sister from his parents' relationship and 16 siblings in all.  Unfortunately, the appellant's upbringing was marked by trauma, family dysfunction, exposure to illicit drug use and alcohol abuse, as well as exposure to violence and deprivation.  In particular, the sentencing judge noted that the appellant had described:

   [A] profoundly dysfunctional and traumatic relationship with your mother, who had a lifetime chronic alcohol and drug problem.  You were removed from your mother's care when you were just a few days old, and, within months of your birth, you had been made a ward of the State.  As a child you were regularly exposed to your mother's unpredictable and violent behaviour when intoxicated.  This included you witnessing serious attempts by your mother at self-harm.  You also witnessed episodes of family and domestic violence committed by other members of your mother's family.  Your mother died in 2011 from an alcohol-related illness, when you were 15 years old (ts 17). 

6. The appellant had been troubled by bouts of depression and had engaged in acts of serious self-harm which included slashing his wrists, attempting to hang himself and dousing himself in petrol.  These incidents usually occurred whilst the appellant was intoxicated. 

7. The appellant's diagnosis of Foetal Alcohol Spectrum Disorder was made by a paediatrician, Dr Adams, when the appellant was aged 8.  In 2004, Dr Adams described poor impulse control, reduced short-term memory and low level frustration.  By the age of 12, a psychologist, Ms Baker, concluded that the appellant was functioning within the extremely low range of intelligence, together with mild intellectual disability.

8. The appellant had a long history of offending in Western Australia, including violent offending.  Between 13 November 2007 and 19 August 2018, the appellant was convicted of four counts of assault occasioning bodily harm, one count of doing grievous bodily harm with intent to do such harm, one count of aggravated common assault and one count of doing an act or omission causing bodily harm with intent.

9. Violence was a feature of the appellant's relationships.  The sentencing judge took the view that these matters demonstrated a need for personal deterrence notwithstanding the appellant's deprived, disadvantaged background and his Foetal Alcohol Spectrum Disorder and cognitive impairments. 

10. The sentencing judge noted that there were numerous letters of support from family, including letters from the appellant's father and domestic partner, Ms James.  Ms James, in particular, emphasised that the appellant was a good father who was able to look after his son whilst completing parole during 2019.  She told the sentencing judge about the appellant's commitment to be a couple and their plans to marry upon release.  She explained that she would continue to support the appellant and help him obtain counselling to give up alcohol and drugs on release.

The approach of the sentencing judge

1. The sentencing judge addressed in very considerable detail the facts and circumstances relevant to sentence.  Central to his consideration was a six-page typed letter dated 18 May 2021 from the appellant which contained a detailed history of the appellant's life, an account of his offending and his explanation about his feelings concerning the offence and his plans for the future. 

1. The appellant's counsel told the sentencing judge that the letter represented the appellant's own words which had been written down and typed up by his legal advisors before he signed it (ts 16). 

2. The sentencing judge reviewed evidence from Dr Vidovich, a neuropsychologist.  She expressed the view that the appellant's experiences had shaped his perception of relationships, causing difficulty with managing and regulating his emotions, together with the normalisation of heavy drinking and violence.  She expressed the opinion that, in the context of the consumption of alcohol and illicit substances, the appellant's cognitive and behavioural deficits were likely to be magnified.  These were the deficits associated with the appellant's Foetal Alcohol Spectrum Disorder.   

3. Dr Vidovich also confirmed the appellant's diagnoses of attention deficit hyperactivity disorder and speech and language disorders.  The speech and language disorders were related to the appellant's childhood hearing issues.  Dr Vidovich found the appellant presented with an unstable emotional personality disorder and antisocial traits.

4. Dr Vidovich expressed the opinion that custody would be more burdensome for the appellant than it would be for a prisoner without his disorders and impairments.  In addition, she expressed the following opinion about the existence of a causal connection between the appellant's offending and his various disorders:

   Collectively, and in the context of all the available information, it is my clinical opinion that there is a causal connection between Mr Lee's current (and historical) offending and his neurodevelopmental disorders – those being his diagnoses of Foetal Alcohol Syndrome Disorder, attention deficit hyperactivity disorder and an Intellectual Disability (ts 37).

5. As to this opinion, the sentencing judge expressed some reservations and observed:

   Dr Vidovich does not explain in any further detail the way in which that causal connection may have operated on this particular occasion. Nor, it seems to me, does Dr Vidovich allow, in drawing the connection between those matters and the commission of the offence in this case, for the fact you were so heavily intoxicated. She does not explain the way in which that may have affected the significance of those other factors.

   Therefore, while I accept that there may be some underlying effect from … Foetal Alcohol Syndrome Disorder cognitive impairments and the difficulties … suffered in the past that have resulted in impaired judgment when …confronted with the situation in which your aunt was making comments in relation to your mother, ultimately, it was your intoxication from alcohol, it seems to me, that prevented you from exercising proper control over your behaviour and not reacting in a violent way. So, while I give some weight to those matters that Dr Vidovich says are causally related to the offending, it seems to me that they cannot be given significant weight in reducing your moral culpability (ts 101).

6. In a passage that received attention from the parties on this appeal, the sentencing judge then explained:

   In any event, the situation is such that your persistent violent offending, as I noted earlier, means that there is a need to give greater weight to personal deterrence and to the need to protect the community, particularly your own community, from your violent offending.

   This is one of those cases in which, ultimately, the scales need to be balanced by giving greater weight to the need to protect the community, with the result that less weight will be given to your deprivations, the mental impairments associated with Foetal Alcohol Syndrome Disorder and your intellectual impairment, in the sense that those factors will have less mitigating effect (ts 101).

7. The sentencing judge placed particular weight on the fact that the appellant had successfully undertaken a substance abuse counselling program after release on parole during mid 2019.  During that period, the appellant remained free of alcohol and demonstrated a capacity to absorb information and understand what was necessary for him to avoid relapsing into drug and alcohol abuse, as well as to avoid offending.

8. Whilst the appellant did not use alcohol or drugs whilst on parole, shortly after completing parole he returned to drinking alcohol in excess and using drugs.  The appellant was abusing alcohol and methylamphetamine over a protracted period before the commission of the subject offence. 

9. The sentencing judge took the view that the effects of the appellant's deprived background, the disadvantages suffered as a child and the effects of Foetal Alcohol Spectrum Disorder:

   … need to be considered in the context that during that period of seven months while you were on parole, they were still present, yet they did not result in you committing any offences or behaving in a violent way.  What appears to be the trigger for your violent behaviour is your alcohol use, your intoxication (ts 92).

10. The sentencing judge had regard to the sentencing considerations of general deterrence, mitigation, remorse, youth, disadvantaged background, mental impairment and intoxication.

11. The sentencing judge recognised that any kind of unlawful assault causing death required a sentence that reflected the need for general deterrence.  His Honour held that punishment was also an important consideration because there was a need to impose punishment of sufficient severity to reflect the fact that the appellant had taken another person's life.  The sentencing judge applied the principles discussed in TheState of Western Australia v Smith,[8] which adopted observations made by McLure JA in The State of Western Australia v Walley:[9]

    … [O]ffences 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.

    [8] The State of Western Australia v Smith [2019] WASCA 42.

    [9] The State of Western Australia v Walley [2008] WASCA 12 [39], a case of manslaughter.

12. In addition, in Smith the court endorsed observations made by Martin CJ in The State of Western Australia v JWRL[10] to the following effect:

    When considering the appropriate level of punishment to be imposed for an offence contrary to s 281 of the Criminal Code, the court should give full weight to the high value attached to human life. This weight is reflected in Parliament's enactment of s 281. Because of the wide range of conduct and circumstances capable of constituting an offence contrary to s 281 of the Criminal Code, the imposition of a term of imprisonment to be served immediately is no more inevitable nor axiomatic than it is in the case of a conviction for manslaughter or dangerous driving causing death. However, given the sanctity of human life and the value properly placed upon the loss of human life, as with offences of manslaughter and dangerous driving causing death, it will be an unusual case in which a sentence of imprisonment to be served immediately is not imposed.

    [10] The State of Western Australia v JWRL [2010] WASCA 179 [140].

13. The sentencing judge reduced the appellant's sentence by 25%, reflecting that the plea was entered at the first reasonable opportunity, per s 9AA of the Sentencing Act.

14. When considering whether any further reduction for mitigation was appropriate, the sentencing judge accepted that the appellant had expressed genuine remorse, showing insight into the tragic consequences of his conduct.  Whilst the sentencing judge accepted that the appellant was still a young man, at the age of 26 he regarded the 'mitigating effects of youth' as being 'much reduced'.  Nonetheless, the sentencing judge found that the appellant's letter demonstrated a capacity for mature thought and insight.

15. In concluding his approach to sentence, the sentencing judge explained:

    I have reduced the sentence that would have been appropriate, before taking into account mitigating factors, by 25%, and I have reduced it further to reflect your remorse and your acceptance of responsibility, and also to reflect, although only to a small extent, the factors in your past (the deprivations) and the effects of FASD.

    However, I have also made allowance on the other side of the ledger, as I have said, for the need to protect the community, which is a significant factor in this case (ts 105).

16. The focus of the appeal in this case concerns the extent to which the appellant's disadvantaged or deprived background should have been regarded as a mitigating factor.  Before addressing that issue, it is appropriate to address the sentencing remarks in this case.

The sentencing remarks in this case

1. With all respect to the sentencing judge, it may be doubted whether sentencing remarks approaching 40 pages in length and taking two hours to deliver, which included the extensive recitation of High Court and Court of Appeal authority, were necessary or appropriate, particularly in a case where the offender is functionally illiterate and affected by Foetal Alcohol Spectrum Disorder and associated cognitive and behavioural deficits.

2. In addition, it is not normally necessary for a sentencing court to categorise with any degree of precision the particular weight given to each of the considerations relevant to sentence, particularly those pointing in different directions. 

3. Whilst it is normally necessary for a sentencing court to identify the relevant facts and circumstances of the offending and the offender, as well as the key principles to be applied, the sentencing court is required to impose a proportionate sentence which is not arrived at by any mathematical process.[11]   Rather, subject to the common law and the terms of the Sentencing Act, the sentencing court must exercise a broad discretion involving what has been described as an 'instinctive synthesis',[12] by which a number of circumstances and principles must be taken into account.[13] 

   [11] Hoare v The Queen (1989) 167 CLR 348, 354 (Mason CJ, Deane, Dawson, Toohey & McHugh JJ); Veen v The Queen (No 2) (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson & Toohey JJ); Ryan v The Queen (2001) 206 CLR 267 [33] (McHugh J).

   [12] Wong v The Queen (2001) 207 CLR 584, [75] (Gaudron, Gummow & Hayne JJ); Markarian v The Queen (2005) 228 CLR 357 [139] (Kirby J).

   [13] See, by way of example only, s 6 'Principles of sentencing', s 7 'Aggravating factors', s 8 'Mitigating factors' and s 9AA 'Plea of guilty' in the Sentencing Act 1995 (WA).

4. Whilst it is important that the approach of the sentencing court be simply and clearly explained to an offender, particularly the reasons why particular punishment is imposed, sentencing remarks are not to be viewed as a written judgment.  As was explained by Wells J in The Queen v Reiner:[14]

   A trial judge, when imposing a sentence, directs his remarks to the prisoner first, and to other people next. They do not constitute a written judgment (they are not 'Reasons for Sentence'); they do not purport to represent an exhaustive inventory of the facts and matters taken into account; they are not published as a monograph on the judicial art of sentencing.

   [14] The Queen vReiner (1974) 8 SASR 102, 114.

5. Sentencing remarks 'ought not to be approached by a court of appeal in a hostile or hypercritical manner'[15] and the court presumes that the sentencing judge knows the sentencing law.[16]  This court must approach the sentencing remarks made in this case with these considerations in mind. 

   [15] The Queen vReiner 106 (Bray CJ).

   [16] KMC v Director of Public Prosecutions (SA) (2020) 267 CLR 480 [28] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).

Determination of the appeal concerning the issue of the appellant's disadvantaged background

1. The sentencing judge recognised that the High Court in Bugmy accepted that the effects of profound childhood deprivation must be given ‘full weight’ when determining an appropriate sentence.[17]  Sometimes, these may warrant a very significant reduction to the sentence because the offender will be less likely to have the resources to exercise proper judgments, particularly when avoiding a criminal lifestyle. 

   [17] Bugmy v The Queen [44] (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ).

2. In Bugmy, the offender, who was an Aboriginal man aged 29, had pleaded guilty to three offences including causing grievous bodily harm with intent.  His background was characterised by alcohol abuse and violence when growing up, a lack of formal education, and a long record of convictions and incarceration including for offences of violence.  He also had a history of head injury and of auditory hallucinations.

3. In the Court of Criminal Appeal of New South Wales, Hoeben JA said that with the passage of time, the extent to which social deprivation in a person's youth and background can be taken into account, must diminish.  This is particularly so when the passage of time has included substantial offending.  Nevertheless, Hoeben JA said that consideration of the background of social deprivation experienced by the offender in Bugmy remained a matter of relevance which could properly be taken into account in sentencing, but any reduction on that account would be 'modest'.

4. In the High Court, the offender (who was the appellant) challenged Hoeben JA's statement of principle.  He submitted that the effects of childhood deprivation do not diminish with time and with repeated incarceration.  Despite his age and his long criminal record, the appellant contended that it was open to the primary judge to impose a lenient sentence reflecting his reduced moral culpability for his offence.

5. In Peterson v The State of Western Australia,[18] Buss P and Mazza JA summarised the principles embodied in Bugmy, relevantly, as follows:

   [18] Peterson v The State of Western Australia [2019] WASCA 207 [52] ‑ [55].

   In Munda v The State of Western Australia ([2013] HCA 38; (2013) 249 CLR 600), French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ distinguished between an offender's moral culpability, on the one hand, and the objective seriousness of his or her offending, on the other:

   The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant's offending.

   In Veen v The Queen [No 2] ([1988] HCA 14; (1988) 164 CLR 465, 476 ‑ 477), Mason CJ, Brennan, Dawson and Toohey JJ explained that a relevant sentencing factor (for example, a mental abnormality which makes an offender a danger to society when he or she is at large, but diminishes his or her moral culpability for a particular offence) has two countervailing effects: one which tends towards a longer custodial term of imprisonment and the other which tends towards a shorter term.

   The principles enunciated by the High Court in Bugmy, in the passage quoted at [47] above, are, relevantly, as follows:

   (a)The effects of an offender's profound childhood deprivation do not diminish with the passage of time or repeated offending.

   (b)The effects of an offender's profound childhood deprivation are to be given 'full weight' in every sentencing decision relating to the offender.

   (c)However, the effects of an offender's profound childhood deprivation may point in different directions in relation to relevant sentencing factors; for example, those effects may diminish the offender's moral culpability for the offending, but may also increase the importance of protecting the community from the offender's criminal behaviour.

   (d)Those conflicting purposes of punishment, in a sentencing context, must be weighed in the balance.

   In our opinion, the principles enunciated by the High Court in Bugmy do not apply solely to an offender whose upbringing has resulted in the offender suffering from alcohol addiction and mental illness.  The principles are of broader application.  They are relevant to an offender who, for whatever reason or combination of reasons, has experienced very significant childhood deprivation of a kind and to a degree which leaves its mark on the offender throughout their life, such as to impair the offender's capacity to mature and to learn from experience, and to reform. 

6. The High Court's statement in Bugmy that the effects of an offender's profound childhood deprivation must be given 'full weight' in every sentencing decision relating to the offender, notwithstanding the passage of time, was referring to 'full weight' being given to the effects of that deprivation and not to 'full weight' being given to those effects as a mitigating factor.  The distinction is important.  It is necessary to exercise particular care when referring to ‘weight’ in this context.

7. The notion of 'full weight', as explained by the High Court in Bugmy, concerns the effects of an offender's profound childhood deprivation being taken into account, notwithstanding the passage of time, and not to taking those effects into account solely for the purpose of mitigation.

8. A sentencing judge will give 'full weight' to the effects of an offender's profound childhood deprivation by taking those effects into account as part of the instinctive synthesis process in arriving at the sentence.

9. As the High Court recognised in Bugmy, the effects of an offender's profound childhood deprivation may point in different directions in relation to relevant sentencing considerations.  For example, on the one hand, those effects may be mitigating, at least to some extent, in that the effects may diminish the offender's moral culpability for the offending.  However, on the other hand, those effects may not be mitigating, at least to some extent, in that they may increase the importance of protecting the community from the offender's criminal behaviour.

1. More recently, in Nasrallah v R, [19] Bell P explained:

   … Plainly enough, the nature and degree of an offender’s background of deprivation will vary with the circumstances of each case and is a matter that must be established by evidence.

   On the other hand, as Bugmy also makes clear, an environmental factor that may lead to a substantial reduction in moral culpability for a violent offence may correspondingly increase the importance of protecting the community from the offender so that, in the sentencing calculus, the existence of particular profound childhood deprivation may not lead to an overall reduction in sentence. This does not mean that “full weight” has not been given to Bugmy considerations. (footnotes omitted)

   [19] Nasrallah v The Queen (2021) 105 NSWLR 451 [8]-[9].

2. In addition to these sentencing considerations, the particular circumstances of the case before the sentencing judge raised the appellant's residual capacity for insight into his offending and its causes.  No doubt relying upon the appellant's letter, as well as his capacity to remain alcohol and drug free whilst on parole, the sentencing judge explained to the appellant that personal deterrence was an important sentencing consideration:

   That suggests to me that you are someone who can be deterred, that is, who can be persuaded not to commit an offence by virtue of the consequences that you might face.  For that reason, I do not consider that your deprived background means that either general deterrence or personal deterrence are not relevant matters in your case.  It may be that the extent to which they are relevant is somewhat reduced, but they remain significant factors … (ts 98).

3. As the sentencing judge recognised, the appellant's disadvantaged background was a circumstance of mitigation.  The recognition of relevant mitigatory factors cannot however 'lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence'.[20] In Munda v Western Australia[21] the High Court explained, by reference to Brennan J's decision in Neal v The Queen:[22]

   It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide. (footnotes omitted)

   [20] Veen v The Queen (No 2) (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson & Toohey JJ).

   [21] Munda v Western Australia (2013) 249 CLR 600 [53] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).

   [22] Neal v The Queen (1982) 149 CLR 305.

1. The majority in Peterson recognised that the weighing of competing sentencing considerations may demonstrate a need for personal and general deterrence as well as the protection of the community, particularly vulnerable women.[23] 

   [23] Peterson v The State of Western Australia [2019] WASCA 207 [59] - [60] (Buss P & Mazza JA).

2. The sentencing judge recognised, with respect correctly, that the effect of deprivation must be balanced with other sentencing considerations and objectives, including the need for general deterrence and community protection. 

3. Ultimately, it cannot be said that the sentencing judge erred when stating that the appellant's past deprivations and ongoing effects of Foetal Alcohol Spectrum Disorder could only be reflected to a ‘small extent’ when determining the appropriate sentence to be imposed in this case.  That observation did not diminish the necessity to give ‘full weight’ to the appellant’s past deprivation and its ongoing impact, nor did it suggest that other than ‘full weight’ had been given to this sentencing consideration. 

4. Rather, it was a comment confined in the circumstances of this case to the extent to which that sentencing factor operated to reduce the appellant’s sentence.

5. To summarise, the sentencing judge did not fail to take the appellant’s past deprivation and its ongoing impact into account. First, those factors were not ignored.  They were properly and explicitly taken into account.  Secondly, and in any event, it is well recognised that the weight to be given to relevant considerations in the exercise of a discretion is not ordinarily a matter which can be made the subject of complaint on appeal, whether the complaint is one of inadequate weight or of excessive weight.  Here, the sentencing judge explained his approach to the appellant’s past deprivation and its ongoing impact, Foetal Alcohol Spectrum Disorder and associated cognitive impairment and disability.

6. The appellant’s real complaint is that these should have been given greater mitigatory effect in reduction of the sentence. As was explained in Lovell v Lovell:[24]

   The references in the various authorities on this matter to a failure to give sufficient weight to relevant considerations should not be understood in such a sense as to entitle an appellate tribunal to deal with an appeal from an order made in the exercise of a discretion in the same way as in the case of an appeal from any other order. If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v Wakefield (1891) AC 173, 179) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.

   [24] Lovell v Lovell (1950) 81 CLR 513, 519 (Latham CJ). See also Minister v SZVFW (2018) 264 CLR 541 [37] (Gageler J).

7. In the same case, Kitto J explained (533):

   The proposition that the appeal court will consider whether "no sufficient weight" has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully. Lord Atkin, in Evans v Bartlam (1937) AC 473, 481, said that if the appellate tribunal "sees that on other grounds (i.e. other than grounds of law) the decision will result in injustice being done it has both the power and the duty to remedy it"…

8. This approach was applied by this court in Gelmi v The State of Western Australia:[25]

   The assertion in two of the particulars of the ground of appeal that the trial judge gave 'insufficient weight' to some sentencing factors is misconceived. An alleged failure by a judge who has exercised a discretion to give any or sufficient weight, or a complaint that a judge who has exercised a discretion gave excessive weight, to a relevant consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet; Dinsdale v The Queen; Vagh v The State of Western Australia; Pedersen v The State of Western Australia.  A complaint about the attribution of weight to a relevant consideration therefore does not ordinarily give rise to an express error that enlivens an appellate court's jurisdiction to intervene in an appeal against a judge's discretionary decision or judgment. In the absence of a failure to exercise the discretion conferred on the judge, a weighting error is, ordinarily, merely a conclusion that is implicit in, and flows from, a finding by an appellate court that the outcome or result of the judge's exercise of the discretion is unreasonable or plainly unjust. Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention. (footnotes omitted)

   [25] Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443 [81] (Quinlan CJ, Buss P & Mazza JA).

9. Finally, the sentencing judge recognised, with respect correctly, that in the particular circumstances of this case the mitigating effect of these factors had to be weighed in the balance with other matters including the need to protect the community, notably vulnerable women in the appellant's community, and the need to reflect deterrence, both general and personal, in the sentence which was imposed. 

10. In these circumstances, we would grant leave to appeal but dismiss this ground of appeal.

Determination of the appeal concerning the complaint of manifest excess

1. When addressing a complaint of manifest excess, this court must determine whether the sentence is 'unreasonable or plainly unjust' having regard to all of the matters relevant to the determination of sentence.[26]  Accordingly, the court will usually consider:

   (a)the statutory penalty for the offending;

   (b)the circumstances of the offending, including the vulnerability of any victim;

   (c)any aggravating and mitigating factors; and

   (d)the standards of sentence customarily observed concerning similar offending.[27]

   [26] House v The King (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ); Hili v The Queen (2010) 242 CLR 520 [58] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

   [27] The Queen v Morse (1979) 23 SASR 98, 99 (King CJ).

2. An appeal court is only permitted to intervene if the sentence is shown to be outside the permissible range of sentences open, on a proper exercise of the judge's discretion, for this kind of offending by this offender.  It is not sufficient for this court to determine merely that it may have imposed a different sentence.  It is only if it is demonstrated that the sentence was unreasonable or plainly unjust that this court is permitted to find that there has been a failure to properly exercise the sentencing discretion.[28]  Whilst the appeal court may consider what are said to be comparable sentences, these merely provide yardsticks which illustrate but do not define the permissible range of available sentences.[29]

   [28] Dinsdale v The Queen (2000) 202 CLR 321 [58] - [59] (Kirby J); Markarian v The Queen [25] (Gleeson CJ, Gummow, Hayne & Callinan JJ).

   [29] The Queen v Pham (2015) 256 CLR 550, 558 [29] (French CJ, Keane & Nettle JJ); [47] (Bell & Gageler JJ), citing Hili v The Queen 537 [54] and Barbaro v The Queen (2014) 253 CLR 58, 74 [41].

3. The debate between the parties on this issue centred on the close comparison undertaken by the sentencing judge with the case of Smith.  That was a case involving a State appeal against sentence where this court increased the sentence from 2 years' immediate imprisonment to 4 years 9 months' immediate imprisonment for offending which bore some similarity to the circumstances of this case.  Ultimately, the sentencing judge held that the starting point in this case should be greater than in the case of Smith because the offending in this case was more serious.

4. In both cases, the offending involved one punch that caused the victim to fall to the ground and sustain a fatal head injury.  Though both cases involved one punch and a victim who did not expect to be punched, there were significant differences.  The offender in Smith was younger and had been challenged by the victim to a fight.  The victim in this case was particularly vulnerable.  The offender in Smith had no relevant prior criminal convictions.  Nonetheless, the offender in Smith did not have the background of deprivation nor the mental impairments of the appellant in this case.  In addition, the reduction for the plea of guilty made in Smith was 20% rather than the 25% which was allowed in this case.

5. Notwithstanding these differences, the sentencing judge recognised, as did the parties on this appeal, that the decision in Smith provided some guidance regarding the appropriate level of sentence, even though it could not be regarded as determining the appropriate sentence in this case. 

6. Having regard to the circumstances of the offending and the offender in this case, and acknowledging that the decision in Smith is relevant, we do not think that it can be said that a sentence of 5 years' immediate imprisonment is manifestly excessive. 

7. We would refuse leave to appeal against sentence on the ground of manifest excess.

Conclusion

1. We would grant leave to appeal on ground 1 but refuse leave to appeal on ground 2. 

2. The appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

BS

Associate to the Honourable Justice Buss

28 OCTOBER 2022