McAlinden v Clifton - [2010] WASC 387

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: McALINDEN -v- CLIFTON [2010] WASC 387

CORAM: SIMMONDS J

HEARD: 5 NOVEMBER 2010

DELIVERED : 17 DECEMBER 2010

FILE NO/S: SJA 1083 of 2010

BETWEEN: SEAN GARY PATRICK McALINDEN
Appellant
AND
DARREN ROBERT CLIFTON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T J McINTYRE
File No  :MH 2266 of 2010

Catchwords:

Criminal law and procedure - Appeal against sentence of 15 months' immediate imprisonment with eligibility for parole for unlawful wounding other than in circumstances of aggravation - Whether sentence manifestly excessive because of its length or because of the failure to suspend it - Wounding by instrument not knife or glass - Consideration of appellate authorities - Younger first offender who had pleaded guilty - Significance of mental condition making a causal contribution together with other factors to offending but not established to be the greatest contributor

Legislation:

Criminal Appeals Act 2004 (WA), s 14(5)
Criminal Code (WA), s 294, s 297(1), s 297(3), s 301, s 317(1)(b)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr L M Levy SC
Respondent: Mr M J Walton

Solicitors:

Appellant: Brennan & Co
Respondent: Director of Public Prosecutions (WA)

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

Abdullah v The Queen [2002] WASCA 57
Black v The State of Western Australia [No 2] [2010] WASCA 145
Boyle v The State of Western Australia [2010] WASCA 97
Chan (1989) 38 A Crim R 337
Clements v The State of Western Australia [2006] WASCA 69
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Duggan v Coelho [2009] WASC 372
Etrelezis v The Queen [2001] WASCA 327
Evans v Vanderheide [2001] WASCA 352
Gok v The Queen [2010] WASCA 185
Hobbs v The Queen [2001] WASCA 104
Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264
Janerka v Bethell [2002] WASCA 198
Krijestorac v The State of Western Australia [2010] WASCA 35
Long v Mayger [2004] WASCA 41
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Messaoui v The Queen (Unreported, WASCA, Library No 9210.1, 4 December 1991) 12
Mitchell v The Queen [2001] WASCA 255
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Mourish v The State of Western Australia [2006] WASCA 257
Plant v Harrington [2010] WASC 364
R v Barbis and Rouse [2003] WASCA 107
R v Tsiaras [1996] 1 VR 398
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
Scolaro v Shephard [No 2] [2010] WASC 271
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
The State of Western Australia v Camilleri [2008] WASCA 217
The State of Western Australia v Collier [2007] WASCA 250
The State of Western Australia v Jeffries [2007] WASCA 255
The State of Western Australia v Redman [2009] WASCA 1
Trompler v The State of Western Australia [2008] WASCA 265
Wheeler v The Queen [No 2] [2010] WASCA 105
Wiltshire v Mafi [2010] WASCA 111

SIMMONDS J:

Introduction

This is an appeal by leave against a sentence of 15 months' immediate imprisonment with eligibility for parole. Magistrate McIntyre in the Magistrates Court at Mandurah imposed that sentence, following the appellant's conviction on his plea of guilty to a charge of unlawful wounding and after making a determination of certain issues for sentencing. The sole ground of appeal relied upon was that the sentence was manifestly excessive, with particulars concerning the appellant's age, antecedents, plea of guilty and remorse, on the one hand, and his medical history, on the other.
I first set out the background to the charge on which the appellant was convicted. I then describe the proceedings before the magistrate, before describing the proceedings before me. I then review the law applicable to the review of sentences for manifest excessiveness, before applying that law. The final section of my reasons is my conclusion.

Background

The following facts are those found by the magistrate in his determination of the issues for sentencing, as well as certain other findings to which he referred in his subsequent sentencing remarks. As will become clear, none of those findings are in contest.
The appellant was born on 24 July 1988. He knew a Mr CF, aged 17, through working with him.
On the evening of 6 March 2010, the appellant, together with CF and a Mr AB, another workmate of the appellant's, was at a party at the home of CF's mother, who was away overseas at that time. CF had invited a Mr SD to the party. However, CF was concerned about SD's attendance. CF was apprehensive that there might be some form of trouble caused by SD involving AB.
At the party CF made it known to SD he should leave it. SD then went to the front of the house and sat on a bench on a verandah, for between 45 and 90 minutes. He was in the company of others. It was while SD was seated there that the appellant approached him. Following an exchange with CF, the appellant had come from the rear or side of the house, with the intention of confronting SD for the purpose of requiring or compelling him to leave the house. The appellant said words, to those on the bench, to the effect 'which of you is [SD]?'. SD acknowledged who he was, and stood up. SD had been seated 'quietly' on the bench at that time (12 August 2010, findings, ts 76).
When SD stood up, the appellant 'immediately' struck him a blow to his chest with an 'instrument' which is not further described by the magistrate. SD then began punching the appellant, who also punched him, and the two went to the ground. While the two were on the ground and facing each other, with SD on one knee, the appellant took his arm out 'in a round motion' and slashed SD to the abdomen, thereby inflicting a second wound.
The magistrate further found that, as SD was leaving the house after these events, the appellant had said words to the effect (12 August 2010, findings, ts 76):
I'll slit your throats. I'll cut off your heads. I will feed you to the dogs. I've got a hole in the back yard.
The magistrate stated that this was 'a clear reinforcement of the fact that the accused knew he was in possession of a weapon and it confirms, in my view, some aspects of the findings of fact to which I have just referred' (ts 76).
The magistrate rejected the evidence of the appellant that he had been kicked in the head, or that he was wrestling on the ground trying to defend himself when by chance he found an object on the ground by which he inflicted the first wound, that to the chest.
The magistrate found that the appellant had inflicted the wound to the chest 'without any form of provocation or without any form of substantial interaction between [him and SD]' (12 August 2010, sentencing remarks, ts 2).
In his sentencing remarks the magistrate described the medical evidence before him, as to the wounds SD had sustained, as follows (12 August 2010, sentencing remarks, ts 2):
[H]e had a right side wound just lateral to the sternum. It had been drained at Mandurah. There was a right intercostal drain that was draining about 300 millilitres of blood.
There was a superficial laceration to the upper interior abdomen. No sutures were required. He was in a stable condition and, the most important finding, that he had been transferred to Mandurah hospital after a stab wound - sorry, I am misreading the report. He was found to have right pulmonary contusion, right pneumothorax, right haemothorax, and the wound was in close proximity to his right atrium, but there was no obvious injury.
So a pneumothorax is a collapse of the lung, and haemothorax is an accumulation of blood in the pleural cavity. So I've just heard what [SD] has had to say about the ongoing impact of the incident and it seems on the face of it that that's exactly what you would expect from something that happens in these circumstances.
However, the magistrate's reference to SD's evidence as to the 'ongoing impact' on him was nowhere further elaborated upon. Further, there was nothing in the evidence before me, being the transcript of the evidence given before the magistrate for the purposes of the determination of issues for sentence, as to what if anything SD had said in that regard. Neither counsel before me was able to identify any other evidence from SD, or of what SD had said, in that regard. For that reason, I do not consider I am in a position to give the matter of what SD had to say, concerning the 'ongoing impact' of the woundings he had received, any substantial weight in my deliberations.

The proceedings before the magistrate

By prosecution notice dated 11 March 2010, the appellant was charged with the offence of unlawfully wounding SD in circumstances of aggravation, contrary to Criminal Code (WA) s 301(1) (Code). The circumstances of aggravation alleged were that a child (CF) was present at the time of the offence.
On 18 May 2010 the appellant pleaded guilty to the charge before the magistrate. His counsel (not senior counsel before me) began to make sentencing submissions before the magistrate adjourned the hearing to allow for a trial of certain issues.
On 12 August 2010 a hearing of the issues took place, and SD, the appellant and others gave evidence. On the same day, following the taking of that evidence and the prosecution's indication that the circumstances of aggravation should be deleted, the magistrate announced his findings of fact. Following further submissions by counsel for the appellant, the magistrate made his sentencing remarks and sentenced the appellant. Given the nature of the ground of appeal, I do not consider it is necessary to reproduce those remarks except in the respects that represent certain findings of fact I describe below. I should particularly note it is not suggested there is any error of principle disclosed by the magistrate's sentencing remarks. Rather, the sentence itself is relied upon as disclosing error.

The proceedings before me

By appeal notice dated 13 August 2010 the appellant applied for leave to appeal against his sentence.
On 19 August 2010 appellant was granted bail to attend the hearing of the appeal. At the conclusion of the hearing before me on 5 November 2010 at which I reserved judgment on the appeal I extended the appellant's bail to a date to be fixed, which became the date of the delivery of these reasons.
By orders dated 13 September 2010, McKechnie J granted the appellant leave to appeal on the grounds specified in the appeal notice. Those grounds were as follow:
1.Having made findings of fact following a trial of the issues, the learned Magistrate erred in concluding that the Complainant/victim did not in any way contribute to the events culminating in the Appellant committing the offence;
2.Notwithstanding whether the learned Magistrate erred as set out in paragraph 1 hereof, the sentence imposed was manifestly excessive;
PARTICULARS
a.The learned Magistrate failed to give sufficient or proper weight to the Appellant's age, antecedence [sic], plea of guilty and remorse;
b.The learned Magistrate failed to give sufficient or proper weight to the appellant's medical history; and
c.The learned Magistrate failed to order a pre‑sentence report in circumstances where he imposed a term of imprisonment, to be served immediately, having regard to the Appellant's age, antecedence and unblemished record.
3.The learned Magistrate erred in failing to consider whether the sentence imposed should be suspended in failing to access the necessary considerations and principles, which apply. Dinsdale v The Queen (2000) 202 CLR 321 and Long v Mayger [2004] WASCA 41 at [26] and [27]; and
4.The learned Magistrate erred in failing to take sufficient or proper consideration of the non‑custodial sentences available under parts 3A, 89 and 10 of the Sentencing Act 1995.
At the hearing of the appeal before me on 5 November 2010 senior counsel for the appellant confirmed what appeared from his written submissions dated 1 November 2010, namely, that the appellant abandoned grounds 1, 3 and 4, and did not pursue particular 2c.
Thus the appeal was conducted before me on the basis of ground 2 with particulars a and b.
I turn now to the law applicable to such an appeal.

Law applicable to an appeal against sentence on manifest excessiveness

The applicable law is not in contest. For the most part, it is sufficiently stated for my purposes in The State of Western Australia v Collier [2007] WASCA 250 [18] ‑ [19] (Steytler P, McLure & Miller JJA agreeing), referring to Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; and Chan (1989) 38 A Crim R 337, as follows:
In any appeal against sentence an appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing judge: Lowndes … It may intervene if there is a material error of fact or law. Error may be inferred if the result is unreasonable or unjust: Dinsdale … 324 ‑ 325.
In order to determine whether or not a sentence is unreasonable or unjust, in the sense that it is manifestly excessive, the sentence must be viewed in the perspective of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan … 342.
I also note Boyle v The State of Western Australia [2010] WASCA 97 [38] (Blaxell J, McLure P & Owen JA agreeing):
In the end, a determination that a sentence is manifestly excessive is a conclusion which often does not admit of amplification beyond stating the respect in which the sentence is excessive. It may be excessive because the wrong type of sentence was imposed (for example, custodial rather than noncustodial) or because the sentence imposed was manifestly too long. The degree of elaboration that is possible will vary from case to case (Dinsdale at 325 - 326).
As I understood the case for the appellant, both forms of manifest excessiveness are contended for here, in the length of the term of imprisonment, and in the failure to suspend that term. However, principal attention was focussed in argument on the length of the appellant's sentence, and, for the most part, I focus on that form of manifest excessiveness in the remaining sections of these reasons, except for the penultimate section, where I focus on the failure to suspend that term.
I turn then to consider the four matters referred to in Chan (342) as described in Collier [19], namely, the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type, and the personal circumstances of the offender.

The maximum sentence prescribed for the offence

The maximum penalty for the offence of unlawful wounding contrary to Code s 301(1), committed other than in circumstances of aggravation, is and was at all times material to me, 5 years' imprisonment. The summary penalty in such a case is 2 years' imprisonment and a fine of $24,000. The summary conviction penalty is a jurisdictional limit only, in the sense that a sentencing magistrate must consider the maximum penalty, not just the summary penalty limit, and may take a starting point above that limit, before tempering the penalty if appropriate by subjective circumstances, taking care only in the final sentence not to exceed that limit: Wiltshire v Mafi [2010] WASCA 111 [26] ‑ [32] (Pullin & Buss JJA, Mazza J); and see Scolaro v Shephard [No 2] [2010] WASC 271 [161], [162], [179] (Martin CJ), in the context of an appeal in respect of conviction and sentence for an offence of unlawful wounding not committed in circumstances of aggravation.
Having regard to the maximum penalty, and allowing for the appellant's plea of guilty, but not for any other personal circumstances of the appellant, it may be seen that the penalty the appellant received was, allowing for the maximum discount given for such a plea (see Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [37] (Steytler P, Wheeler, McLure & Buss JJA)) just above one‑third of that maximum. The most I consider I can take from that proportion is that the offence was one of significant seriousness, but some distance from the most serious of its kind.
I turn now to the standards of sentencing customarily observed with respect to offences of that kind.

Standards of sentencing customarily observed with respect to offences of that kind

On the authorities I believe that the following propositions in connection with sentencing for the offence of unlawful wounding are established. I also consider those propositions not to be in contest between the parties.
1.The offence of unlawful wounding is a serious one, but also one which need not attract a sentence of imprisonment: Messaoui v The Queen (Unreported, WASCA, Library No 9210.1, 4 December 1991) 12; Evans v Vanderheide [2001] WASCA 352 [20] (Miller J);
2.The threat to life and health posed by the offender's action and the possibility of more serious harm is a relevant sentencing consideration: Messaoui (13); Scolaro [No 2] [202];
3.Other relevant sentencing considerations include the extent of the wounding, including its impact on the life of the victim; the nature of the act by which the wounding was caused, including the force used and whether a weapon of any kind was used, and if so, what kind of weapon; and the circumstances of the offence, including whether the offender's conduct was entirely unprovoked and unexpected by the victim: Scolaro [No 2] [150], [202] and [207]; Hobbs v The Queen [2001] WASCA 104; and see in relation to the offence of unlawfully doing grievous bodily harm contrary to Code s 297 Trompler v The State of Western Australia [2008] WASCA 265 [9] ‑ [11] (Wheeler JA, Buss JA agreeing); however,
4.Previous decisions of single judges of this court on sentencing for the offence of unlawful wounding do not appear to establish an identifiable range, such that a sentence falling outside that range could be said to manifest error, in terms of whether its length, up to the maximum term of 5 years, including a length of 18 months, is manifestly excessive, or whether a sentence of imprisonment to be immediately served is manifestly excessive: Scolaro [No 2] [197]; and see [199], agreeing with Duggan v Coelho [2009] WASC 372 [27] (Hall J); at the same time,
5.Sentencings the subject of appellate cases may be of assistance in determining whether the sentence in the case before the court was manifestly excessive. This includes sentencing for other offences, such as doing grievous bodily harm contrary to Code s 297(1) (the maximum penalty for which is 10 years' imprisonment, absent circumstances of aggravation or similar); unlawful wounding with intent to maim, disfigure, disable or do grievous bodily harm, contrary to Code s 294 (the maximum penalty for which is 20 years' imprisonment); and offences analogous to unlawful wounding from other states. It seems to me that it is also appropriate to add assault occasioning bodily harm other than in circumstances of aggravation, contrary to Code s 317(1)(b) (the maximum penalty for which is, like that for unlawful wounding other than in circumstances of aggravation, 5 years). See Scolaro [No 2] [164] ‑ [196]; at the same time
6.The following from Scolaro [No 2] [163] must be noted:
Each of the parties referred to appellate cases that are said to be comparable to support their argument on the question of whether the sentence imposed was manifestly excessive. However, the decisions in those cases are appropriately replete with observations to the effect that the very wide variety of circumstances that can constitute the offence of unlawful wounding, and of the offenders who can be convicted of such offences, prevents the adoption of any hard and fast rules as to sentences appropriately imposed or the identification of a range within the parameters provided by the Parliament. Accordingly, when regard is had to decisions in other cases, care must be taken to identify all the relevant circumstances of that case before drawing any conclusion as to whether or not the sentence in this case was manifestly excessive.

Senior counsel for the appellant referred me to a range of authorities from this court, both of single judges and of the Court of Criminal Appeal, on challenges on the manifest excessiveness ground, being challenges to:
•sentencings for unlawful wounding other than in circumstances of aggravation contrary to Code s 301: Long v Mayger [2004] WASCA 41; R v Barbis and Rouse [2003] WASCA 107; and Evans;
•sentencings for unlawful assault occasioning bodily harm other than in circumstances of aggravation, contrary to Code s 317(1)(b): Boyle; The State of Western Australia v Camilleri [2008] WASCA 217; and Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264;
•sentencings for unlawfully doing grievous bodily harm, other than in circumstances of aggravation or similar, contrary to Code s 297(1): Boyle; The State of Western Australia v Redman [2009] WASCA 1; Trompler; Camilleri; Clements v The State of Western Australia [2006] WASCA 69; and Etrelezis v The Queen [2001] WASCA 327; and
•sentencing for unlawfully doing grievous bodily harm in circumstances of aggravation, contrary to Code s 297(3): The State of Western Australiav Jeffries [2007] WASCA 255.
Senior counsel for the appellant explained his choice of authorities as being ones to include cases not concerning sentencings for glassing offences (that is, where the offender had used a drinking glass or a bottle): see Boyle (bicycle for assault occasioning bodily harm and a knife carried as a defensive weapon in doing grievous bodily harm); Redman (single punch doing grievous bodily harm); Camilleri (punches occasioning bodily harm and doing grievous bodily harm); Jeffries (tree branch doing grievous bodily harm in circumstances of aggravation); Barbis and Rouse (for one offender, but not the other, a knife brought to a burglary and used in wounding); Evans (shanghai sling shot used for wounding); and Hooper (single punch doing grievous bodily harm). The remaining authorities senior counsel referred me to concern sentencings for glassing offences. In Scolaro [No 2] [157] ‑ [158] Martin CJ accepted the observation of the sentencing magistrate as to the prevalence of glassing offences, which prevalence, the Chief Justice observed on the authorities, might result in less significance being attached to personal circumstances.
Senior counsel for the appellant stressed there was no finding in this case that the instrument the appellant had used was a knife. However, I would add that the magistrate's findings included, as I have indicated, that the appellant 'knew he was in possession of a weapon' (12 August 2010, findings, ts 76), although the magistrate does not indicate the reason for that possession, nor as I have said does he indicate the nature of the instrument concerned. At the same time, the magistrate does not, in his sentencing remarks, indicate a concern for general deterrence arising out of the possession of that weapon like the concern endorsed in Hobbs [30] (Kennedy J, Pidgeon & Wallwork JJ agreeing). There, in a review of a sentencing for grievous bodily harm done by an 18‑year‑old picking up a knife and stabbing a person already injured in a fight, Kennedy J referred to a submission of the Crown that:
[R]esort to knives and other weapons in circumstances such as existed in this case calls for a sentence which focuses primarily upon general deterrence. It is conduct which the community abhors and it is necessary to sentence in a way that sends a message to the community, to the young offender, and to any like-minded person prepared to carry a knife, that conduct involving the use of a knife will be seriously dealt with. There is considerable force in this submission.
I accept that on the findings of the magistrate, so far as they are evident to me, there is no basis for a similar concern here.
For his part, counsel for the respondent referred me to only authorities on or including sentencing for unlawful wounding: Scolaro [No 2] (glassing); Black v The State of Western Australia [No 2] [2010] WASCA 145 (knife picked up at the scene of violence); Duggan (glassing); Long (also referred to by senior counsel for the appellant); Janerka v Bethell [2002] WASCA 198 (glassing); Abdullah v The Queen [2002] WASCA 57 (knife brought to a robbery); and Hobbs.
My review of the authorities on sentencing for unlawful wounding referred to by both counsel produces the same conclusion, on a different sample, as that in Scolaro [No 2] [197], as to the lack of an identifiable range within the parameters set by Parliament up to the maximum penalty. I also note that the authorities on sentencing for unlawful wounding I reviewed include ones on pre‑transitional period sentencings at levels up to 2 years' immediate imprisonment (16 months when the transitional period discount of one‑third is included), one following a plea of guilty (Abdullah, where the sentence's length was not challenged, and leave to appeal against denial of eligibility for parole was refused), and one following trial (Hobbs where a sentence of 2 years' immediate imprisonment with eligibility for parole was upheld). Further, there is a review of authorities on sentencings for assault occasioning bodily harm, including Hooper, in Mourish v The State of Western Australia [2006] WASCA 257 [12] (McLure JA, Steytler P & Wheeler JA agreeing), referred to in Boyle [39]. The sentences in the authorities reviewed in Mourish include ones upheld or imposed on appeal up to 2 years' immediate imprisonment with parole eligibility after inclusion of the transitional period discount. Mourish itself was a decision dismissing an appeal against a sentence of 2 years' imprisonment suspended for 2 years on a plea of guilty involving a punch to the face and bodily harm of a 'relatively minor nature' [4]. In my view, the authorities I have just referred to, of both kinds, support, for cases not involving glassings, the observation of Hall J in Duggan [27] (a glassing case) that 'even if a range could be discerned [from the authorities his Honour considered], a sentence of 18 months' immediate imprisonment would not appear to be outside it', on which observation see also Scolaro [No 2] [199] (another glassing case).
At the same time, the authorities referred to by senior counsel for the appellant and counsel for the respondent, as well as in Mourish and that case itself, lead me to observe that a sentence of 15 months' immediate imprisonment following a plea of guilty is of a more severe, although some distance from the most severe, kind. Indeed, I did not understand counsel for the respondent to contend otherwise. Of course, this of itself does not show manifest excess. The relative seriousness of the offence and the personal circumstances of the offender need also to be considered. I turn to those matters.

Relative seriousness of the offence

Senior counsel for the appellant put to me that this offence was, in terms of the extent of the wounding and the nature of the act that caused it, at 'about [the] mid-range' for offences of its type. He directed me to the fact that, while the wounding required hospitalisation and treatment, there were no ongoing complications in evidence and, while this was not a case of mere recklessness in holding the instrument in a situation where the victim came at the offender, but rather, on the magistrate's finding, one where the appellant 'deliberately' stabbed SD using the instrument, there was no finding of an intention to do serious injury, and no finding of use of a knife or (as I understood the submission) similar offensive weapon.
However, in respect of the wounding by stabbing, I note the medical report as described by the magistrate referring to pneumothorax, haemothorax and a wound close to the right atrium, albeit without any obvious injury to it. A wounding of that kind, caused by an instrument of whatever nature capable of inflicting it, was in my view indicative of serious conduct which carried the possibility of more serious harm than SD suffered: see on that possibility's relevance to sentencing for unlawful wounding, Messaoui (13) and Scolaro [No 2] [202]. Such a matter was one the magistrate himself referred to when he said (sentencing remarks, ts 7):
Any wound to a person's chest cavity is capable of very serious consequences, and it's fortunate that there were not more serious consequences.
I have left aside the further wound, after the stabbing, that SD sustained from the instrument, in the ensuing physical exchange with the appellant. While that wound might be taken as illustrating other risks arising from the appellant carrying the instrument, there was no reference to such other risks in the magistrate's sentencing remarks, or in submissions put to me by counsel for the respondent.
In my view, in terms of the extent of the wounding to the chest and the nature of the act that caused it, and particularly by reference to the extent of the risks posed by the stabbing done deliberately with an instrument capable of inflicting such wounding as was caused by that stabbing, I would have placed the offence above the mid-range for which senior counsel for the appellant contended. At the same, in my view, it could not be placed at the most severe end of seriousness, for the reasons senior counsel proffered.
However, senior counsel for the appellant put particular emphasis on the significance of the circumstances of the offence as limiting its relative seriousness. Senior counsel directed my attention to the lack of any finding that the appellant had sought out SD for the purposes of personal advantage or revenge. Rather, the appellant had sought him out with the purpose of requiring or compelling him to leave the house at which he had remained notwithstanding that CF had told him to leave the party. Most importantly, in senior counsel's submission, and as was common ground in the appeal, this purpose was arrived at after CF had told the appellant of CF's apprehension that the person he wanted the appellant's help removing was someone he was concerned was going to engage in an act of violence with someone at the party. I took these matters to be put forward, both as indicating that there was no personal advantage or revenge involved in the stabbing, and that it was not a random or senseless act in the terms used in Trompler [11].
However, I note there was no quarrel with the magistrate's finding that SD was not causing 'any form of trouble' at the time the appellant approached him on the bench, such as by 'swearing, smashing things, causing damage to the property or any other of the forms of trouble with which I so often deal' (12 August 2010, findings, ts 76). It seems to me that, at the least, this would have left the stabbing as objectively a grossly disproportionate response to whatever conduct the appellant might have been responding to, if the stabbing was such a response, a matter to which I return below. Counsel for the respondent submitted to me that the appellant's stabbing in fact represented a senseless act of violence and aggression, putting aside any question that the appellant might have been vulnerable to suggestion arising from conduct of SD to which he was responding. The possibility he had such a vulnerability is part of what I return to below. While I would agree with that categorisation if such a matter were put aside, I will explain below why, in my view, that matter cannot be put aside. That matter, in my view, is inconsistent with that categorisation.
In all of those circumstances, but apart from the matter put aside, it seems to me that I have sufficient reason to place the offence somewhat lower in the scale of seriousness than heretofore, by reference to the circumstances of the offence. However, I do not consider that they cause me to put the offence into the mid-range as senior counsel contends.
However, there is the further matter of the circumstances of the offender of which I need to take account in assessing whether or not manifest excessiveness has been made out. I turn to those circumstances now.

The personal circumstances of the offender

The matters referred to in the particulars of the manifest excessiveness ground on which reliance was put in the appeal were the appellant's age, his antecedents, his plea of guilty, his remorse, and his medical history. As to the first three of these, I note that the appellant was 21 years of age at the time of the offending, and 22 years of age at sentencing; he pleaded guilty at what I accept was the first reasonable opportunity; he had no criminal record of any kind; and he was employed. However, there appears to be no finding by the magistrate of remorse, and no evidence of remorse apparent to me other than that plea of guilty. I should note that there was only one authority among those to which I was referred or which was reviewed in Mourish, involving a review of sentencing for unlawful wounding or assault occasioning bodily harm, that upheld against a challenge on the manifest excessiveness ground a sentence of 15 months or greater of immediate or suspended imprisonment and that involved a similar offender. By similar offender I mean one as young or younger than the appellant who had pleaded guilty and had no, or no relevant, record. However, I should add that there was evidence in that one authority apart from his pleas of guilty that the offender was remorseful.
That authority was Mitchell v The Queen [2001] WASCA 255. There the appellant was sentenced to 2 years' immediate imprisonment (equating to 16 months with the transitional period discount) with eligibility for parole on each of two counts of assault occasioning bodily harm, to be served concurrently. The appellant had become involved in a brawl in a hotel after he had had 'a [great] deal to drink'. There was no explanation in the decision of how the brawl started. The appellant knocked out two men, and stomped on each while they were lying on the ground. The appellant also hit each with a bar stool. Each victim received bruising to the face and swelling to the eyes, while one victim received a broken nose. The appellant had in fact indicated to the court he had intended to discontinue his appeal against the sentence. However, Malcolm CJ (Wheeler J and Burchett AUJ agreeing) said this as to such an appeal [33]:
In my opinion, the application for leave to appeal against sentence was bound to fail in any event. The two offences of assault were very serious and clearly warranted the imposition of sentences of imprisonment, notwithstanding the applicant's youth and absence of any prior record. The sentences imposed were, in all the circumstances, well within the limits of a sound exercise of the sentencing discretion, cf Tan v R, unreported; CCA SCt of WA; Library No 960188; 1 April 1996; Garlett v Dillon, unreported; SCt of WA; Library No 960353; 5 July 1996; and Casserly v R, unreported; SCt of WA; Library No 990164; 31 March 1999. In my opinion, the aggregate sentence of two years was 'just and appropriate', having regard to all the relevant factors.
I note that the circumstances of the offending in Mitchell might be described as involving random and senseless acts of violence, on a person already rendered defenceless by the offender; however, the extent of the wounding might be described as no more serious than that in this case. So far as that authority goes, and in particular what is said in [33] concerning the 'limits of a sound exercise of the sentencing discretion', it seems to me it suggests the present sentence was not clearly an inappropriate exercise of sentencing discretion.
However, there is a further matter in respect of the appellant's personal circumstances which was that to which senior counsel for the appellant particularly directed his oral argument. That matter was the appellant's mental condition, which, in my view, calls for separate treatment in these reasons.

The appellant's mental condition

The magistrate had before him two reports concerning the appellant's mental condition, one from the appellant's general practitioner, a Dr van der Walt, and one from a psychiatrist, a Dr Blumberg, to whom the general practitioner had referred the appellant in May 2009 for a psychiatric assessment. The magistrate's sentencing remarks are for the most part sufficient for my purposes to indicate the relevant content of those reports (sentencing remarks, ts 4 ‑ 6):
I refer now to the reports provided by the medical practitioners; that provided by Dr van der Walt is in this form:
'Sean is suffering from adjustment disorder and depressive submissions, since he has been in a fight for life and death when his brother was threatened with a knife against his throat by an assailant. He had to try and save his brother's life, and in the process, he himself was attacked. This whole episode was very traumatic to Sean and since then he has been hyperactive whenever he gets threatened. I feel that this would have an affect on the day of his alleged offence on 6 March 2010 in the way that he reacted when he was attacked. It is quite possible that he perceived the threat to be a greater danger to himself than the average person would.'
Clearly the doctor is not in the position to comment on the circumstances of the offence, but he does put forward the information that I've just described. We also have, as I've already said, a report from Dr Bloomberg, and he refers to your account of the offence. I'll read it because it touches upon some other issues:
'Mr McAlinden was unable to give a clear, coherent account of the alleged offence, and disputed a number of facts in the statement of material facts. Mr McAlinden gave a vague account of the alleged offence, and stated, "I was attacked and was defending myself." He stated he was at a friend Cody's party, and Cody requested him to ask the complainant to leave the party.
He stated the complainant allegedly punched him and thereafter started kicking him in the head and face. He stated he reacted, "by defending myself." He stated one of the complainant's friends grabbed him by the neck in a headlock and threw him onto the floor. Mr McAlinden stated, "The whole incident is vague." He disclosed drinking between eight to 10 beers over a three‑hour period prior to the altercation, and smoked a joint of marijuana prior to the offence.
Mr McAlinden also disclosed that he was not taking his antidepressant medications and had ceased his medications approximately two to three weeks prior to the incident. He denied acting on any psychotic phenomenology at the time of the offence. Mr McAlinden stated there was conflicting evidence from the witnesses, and reiterated on a number of occasions that he did not have any weapon. He stated, "An altercation broke out and I reacted in self defence".'
The report goes on to outline the doctor's involvement with you. It's a comprehensive report and, as we've already indicated, it touches upon a number of issues, one of which is alcohol consumption. The other is cannabis consumption. The other is medication that you had been prescribed. At page 3 of the report it says:
'I reviewed Mr McAlinden again on 23 March 2010, where he informed me of this altercation, brawl, in Waroona. He disclosed prior to this incident, he had ceased his medication two weeks previously, "As I was feeling good." Mr McAlinden stated that he was working well and getting on with his life.'
So that brings together a number of issues that have to be taken into account. There are many people who have problems, and they are prescribed medication. There are many examples where the courts deal with people who have had medication prescribed, and they failed to take it. This appears to be a situation here where you've failed to take prescribed medication, and, again, as is so often the case, the failure to take the medication or the taking of the medication itself is associated with alcohol and cannabis consumption.
So the net result is an effect upon the person who has imbibed the substances or failed to take their medication. So the report goes on, and I've had an opportunity now of reading it. I've read the recommendations which are at page eight of the report and I also take into account what's here under heading number 5, page 7 of eight.
'On the date of the alleged offence, 6 March 2010, Mr McAlinden had not been taking his prescribed antidepressant medication. He ceased his medication two weeks prior to the offence. As stated in my report, Mr McAlinden presented with mixed anxiety and depressive symptoms, and post‑traumatic anxiety symptoms which seem to have stemmed from the previous trauma he was exposed to when his father's and brother's lives were threatened, and Mr McAlinden, as a result, defended his family in self defence.
Mr McAlinden alleged that on 6 March 2010 he was attacked, unprovoked, and an altercation broke out, and he used self defence to escape the situation. In my opinion, due to Mr McAlinden's past experiences, his capacity to assess the gravity of any perceived threat or danger would have been affected more than the average individual. He was also noncompliant with his antidepressant medication which also, in my opinion, would have affected his judgment. He reacted instinctively and impulsively to remove himself from the threat and danger.'
So I'm prepared to take into account in assessing the gravity of your offence, the information that's been put in front of me.

There have been a number of recent decisions of the Court of Criminal Appeal in which members of the court have described the possible relevance of the mental condition of an offender to their sentencing. These include Krijestorac v The State of Western Australia [2010] WASCA 35 [17] ‑ [19] (Wheeler JA, Owen JA & Newnes J agreeing); Wheeler v The Queen [No 2] [2010] WASCA 105 [6] ‑ [10] (McLure P, Newnes JA agreeing) and [55] - [61] (Owen JA); and Gok v The Queen [2010] WASCA 185 [53] ‑ [61] (Mazza J, McLure P agreeing & Buss JA agreeing as to these matters). Having regard to the submissions that senior counsel for the appellant and counsel for the respondent put to me as to the appellant's mental condition and its relevance, if any, to his sentencing, I consider that the following describes the law that is material for my purposes.
From Gok [53] ‑ [61] I note the following:
The relevance of mental impairment in the exercise of the sentencing discretion has been explained in a number of cases in this court over recent times, including Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125; Krijestorac …; Wheeler v The Queen [No 2] …
All of these cases cite with approval R v Tsiaras [1996] 1 VR 398, 400, where the court (Charles & Callaway JJA and Vincent AJA) said that there were at least five ways in which mental impairment may be relevant. Their Honours said:
'First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.'
These principles do not just apply to offenders with a serious psychological illness, they apply to any offender who, either at the time of offending or at sentence, has a mental disorder, abnormality or impairment of mental function: Krijestorac [18]; R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
Where it is sought to argue that an offender's moral culpability is lessened by mental impairment, the offender must on the balance of probabilities demonstrate a causal connection between the impairment and the commission of the offence. The greater the contribution of the mental impairment, the more the moral culpability will be lessened. A reduction in moral culpability will generally be reflected in the penalty imposed: Thompson v The Queen [53].
In cases where the mental impairment is not causative of the offence, it may still be relevant to issues such as the offender's rehabilitation, treatment, deterrence and the question of whether any sentence of immediate imprisonment would weigh more heavily on the offender than a person in normal health.
While the existence of a mental impairment will almost always be relevant to the sentencing of an offender and will often result in a lower sentence, this is not always the case. As Gleeson CJ pointed out in R v Engert (1995) 84 A Crim R 67, 71, the existence of a mental impairment is one of the factors which must be balanced with other factors to produce a just sentence. It is wrong to assume that the existence of a mental impairment will automatically result in a lesser sentence: see also Lindsay v The State of Western Australia [2010] WASCA 142 [23].
The impact of general deterrence is something which is often misunderstood. It is not the law that once it is demonstrated that an offender has a mental impairment that general deterrence is irrelevant. General deterrence still operates when a court is sentencing an offender with a mental impairment but its effect is, to use a phrase sometimes used in the cases, 'sensibly moderated'. In many cases, general deterrence will be given less weight because the offender is simply an inappropriate medium for making an example to others. However, it is an extreme case where considerations of general deterrence are eliminated entirely. These propositions are evident from F v The State of Western Australia [39], Champion v The Queen (1992) 64 A Crim R 244, 254 - 255 (Kirby P), and Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190, 200 (Murray J).
The degree to which general deterrence is moderated very much depends on the facts of the case. At one end of the spectrum stands the case where the offender is so afflicted by his or her mental impairment or impairments that general deterrence plays virtually no part. At the other end are cases where the moderation of general deterrence is small because the offender knows what he or she is doing and appreciates the gravity of his or her actions: R v Wright (1997) 93 A Crim R 48, 51 (Hunt CJ).
With respect to personal deterrence, again much depends upon the circumstances. The law assumes that an offender has the intellectual capacity to be deterred from committing an offence by the prospect of being punished if the offence is committed and detected. Where an offender's mental impairment affects that person's ability to understand this, the effect of personal deterrence will be moderated. The extent to which it is moderated will depend upon the extent to which the offender has the ability to reason in the way I have described. In some cases, as the Court recognised in R v Tsiaris [sic], personal deterrence has little point whereas in other cases it would be more significant.
As to the matter of a causal connection between the mental condition in question and the commission of the offence, I note the description in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 [26], drawing on R v Tsiaras [1996] 1 VR 398, of the way impaired mental functioning may reduce the offender's moral culpability, as that description is reproduced in Krijestorac [18] ‑ [19]:
Verdins is useful, however, for its consideration of two aspects of Tsiaras principles. First, it makes it clear that, as has in my view been previously understood in this State, the principles enunciated are not confined to 'serious psychiatric illness', but are applicable in any case where the offender is shown to have been suffering at the time of the offence, or is suffering at the time of sentencing, from a mental disorder, abnormality or impairment of mental function, whether or not the condition can be properly labelled a serious mental illness (at [5]). Second, the court listed the various ways in which impaired mental functioning has been held to be capable of reducing moral culpability. The court said impaired mental functioning at the time of offending may reduce the offender's moral culpability if it had the effect of (at [26]):
(a)impairing the offender's ability to exercise appropriate judgment;
(b)impairing the offender's ability to make calm and rational choices, or to think clearly;
(c)making the offender disinhibited;
(d)impairing the offender's ability to appreciate the wrongfulness of the conduct;
(e)obscuring the intent to commit the offence; or
(f)contributing (causally) to the commission of the offence.
The court in Verdins noted that the list was not exhaustive. For myself, I would have considered that pars (a) through to (e) are all examples of the way in which a mental disability may contribute causally to the commission of the offence and, in my view, that is how the concept of causal contribution has usually been understood in this State.
As to the possibility of a mental condition relevant to sentencing not resulting in lower sentence, I note the following, from Wheeler [No 2] [7]:
However, a sentencing consideration may be relevant in more than one respect and not affect the outcome because it weighs in the balance both positively and negatively. The complexities are explained by Gleeson CJ in R v Engert (1995) 84 A Crim R 67 as follows:
'[T]he question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system (71).'
It was common ground that, while the appellant had not suffered from a serious psychiatric or psychological illness, he was suffering from a mental disorder, abnormality or impairment of mental function at the relevant time. From this point I will refer to the appellant's mental condition in that respect simply as his mental condition.
Further, it appeared to me that it was common ground that there was a causal connection between his mental condition and his offending. In any event, it seems to me that the magistrate's sentencing remarks, in the respect I will reach below, are inconsistent with the view that there was no causal connection. However, the significance of that causal connection for the appellant's sentencing was heavily contested.
Counsel for the respondent laid emphasis on the appellant's evidence that when CF asked him to come out and help CF 'get rid of' SD, the appellant replied he would go out, 'but I'm not fighting anyone' (12 August 2010, sentencing hearing, examination‑in‑chief, ts 58). I understood this was to emphasise that the appellant had not approached the matter of the removal of SD as one he feared would involve threats he might have to respond to. However, I consider that, in view of what the appellant had been told by CF, that remark should not be taken as one indicating his belief there would be no such threat. It seems to me the remark indicated the appellant was embarking on the removal of SD with the intention he would not respond to any threats with violence.
Counsel for the respondent also laid emphasis on the fact, as indicated in the psychiatrist's report, that the appellant's mental condition was not of a major kind, and indeed that the report refers to the appellant's 'main concern' at the time of the interview with the psychiatrist following the charge as being with regard to the upcoming court hearing on that charge.
I put aside the first consideration, as I could find no indication in the recent authorities that the categorisation of the mental condition, as serious psychiatric illness or otherwise, is of itself significant to sentencing. Rather, it is the extent of the effect of the mental condition in question on the offender in ways relevant to sentencing, including, but not limited to, the extent to which that condition may have contributed to their offending (see Gok [56]), that matters. It seems to me that in a particular case a serious psychiatric illness might have no relevant effect, while in another case a psychiatric illness that is not of the serious sort might have such an effect.
In respect of the causal contribution of a mental condition, it seems to me, on the authorities, that the impact of the condition on the offender's capacity to understand what they faced and to control their actions is undoubtedly potentially relevant. However, the impact on the offender of being charged with the offence that is more intense than otherwise because of their mental condition cannot be said to have any causal contribution to the commission of the offence charged, although such impact might have evidentiary significance in that respect (in showing the effect on them of stress), and it might of course have relevance to sentencing in other ways, such as indicating that a prison sentence would weigh more heavily on the offender: see Tsiaras (400), quoted in Krijestorac [17]. Although no such other relevance was pressed on me, there is one matter in that respect appearing in the psychiatrist's report to which I return below.
The mental condition of the appellant that both the general practitioner and the psychiatrist describe in their reports is an adjustment disorder and depressed mood or depressive symptoms which gave the appellant an elevated perception of threat or danger relative to that which a person not suffering from that condition would have. They both ascribe that mental condition to an episode involving a threat to the lives of the appellant's father and brother to which the appellant had responded in defence of his family. Although on the psychiatrist's report this episode had occurred just over 18 months before the offence in this case, and counsel for the respondent laid emphasis on that matter, neither report indicates the author discounts the effect of the episode or the extent or effects of the mental condition on that account, and on that basis it seems to me that neither should I.
However, it is not clear from either report that the appellant's mental condition affected his capacity to control his response to the elevated perception of threat or danger to which they both refer. In respect of the appellant's self‑control, the psychiatrist's report refers to 'anger management issues' the appellant had, and to his 'having poor ego strengths with poor control of his impulses', while the general practitioner's report refers to him having been, since the episode involving his father and brother, 'hyperreactive whenever he gets threatened'.
However, the psychiatrist's report refers to difficulties the appellant experienced during his schooling out of Australia, when 'he used violence to defend himself', which the author appears to indicate as the source of the anger management issues. In my view, the anger management issues have not been shown to be brought on or made worse by the appellant's mental condition, and those issues might account for the hyperreactive condition referred to by the general practitioner.
In the psychiatrist's report there are statements indicating that lack of anger management might have contributed to offending that was a response to an elevated perception of threat or danger brought on by the appellant's mental condition. In the report the psychiatrist says this (at page 7 of his report), in respect of the account of the offending the appellant gave the psychiatrist in terms of defending himself, an account to which the magistrate referred above, which also points to a further factor, than the appellant's mental condition and anger management, as a possible contribution to his offending:
He reacted instinctively and impulsively to remove himself from the threat and danger.
Mr McAlinden also disclosed using alcohol and marijuana prior to the offence which, in my opinion, would have affected his capacity and judgement.
As stated in my report, Mr McAlinden has had an 'anger management problem' over the years which he is addressing. His perception when exposed to danger or in a threatened situation is elevated as a result of his previous trauma.
The further factor the psychiatrist's report refers to is thus his alcohol and marijuana use. The psychiatrist indicates earlier in his report that the appellant has a need to address his 'polysubstance use' as substance use would 'clearly fuel and perpetuate his anger problems' (page 7). However the report gives no indication that such substance use was brought on or otherwise contributed to by the appellant's mental condition.
I consider that the reports of the general practitioner and of the psychiatrist indicate that the appellant had a mental condition which would have made a causal contribution to offending which was a response to a perceived threat or danger where the perception of it was more elevated than that of a person without that condition. Such a contribution would have been effects of the kinds in all of the five categories (a) ‑ (e) from Verdins [26] referred to in Krijestorac [18] above.
However, where such a contribution is not found to be the greatest contributor to the offending, this is relevant to assessing the significance of a mental condition for the moral culpability of the offender. See Gok [56]; and Boyle [50], considered in this respect below. There was no such finding in this case, and in my view the evidence before the learned magistrate did not compel such a finding. As counsel for the respondent emphasised, on the evidence the significance of the appellant's mental condition to his sentencing must be qualified accordingly.
However, counsel for the respondent went further, to submit that the appellant's mental condition was not such as to materially reduce his culpability for the offending in view of the findings of the magistrate as to the conduct of SD immediately prior to being stabbed. I disagree.
I begin by noting there was no express finding that the appellant's offending was a response to his perception of a threat or danger. The account of the offending the appellant had given to the general practitioner and the psychiatrist was, as the magistrate indicated above, inconsistent with his findings, in particular that SD had not acted in an aggressive way prior to being stabbed (see 12 August 2010, findings following hearing, ts 76). I consider this to be a finding that there was no reasonable basis in the conduct of SD at that point for a perception by the appellant that he was in danger or being threatened.
However, the magistrate's sentencing remarks included the statement, appearing immediately after the last of his quotations from the reports quoted above, that 'I'm prepared to take into account in assessing the gravity of your offence, the information that's been put in front of me' (12 August 2010, sentencing remarks, ts 6). In my view, this indicates his finding there was a causal connection between the appellant's mental condition and his offending. The magistrate did not indicate how that contribution was made. I consider that, as senior counsel for the appellant put to me, the stabbing should be understood against the evidence from CF that he had informed the appellant of CF's apprehension that the person CF wanted the appellant's help in removing was going to engage in an act of violence with someone at the party. On that basis, I consider I should infer that it was more likely than not that the appellant, with his special vulnerability in his mental condition to perceiving threats or dangers, perceived a threat or danger from SD's conduct in standing up when the appellant asked which of those on the bench was SD, to which the appellant responded to as he did. As I will indicate, the magistrate in his findings referred to evidence as to SD's conduct in that respect.
In my view, the finding on this inference as to the contribution the appellant's mental condition made to his offending is inconsistent with the stabbing being a senseless act of violence and aggression as counsel for the respondent had submitted. There was no such finding by the magistrate. At the same time, the evidence of the contributions of the appellant's anger management issues and his substance use, neither of which should be ascribed to his mental condition, qualifies the significance of that mental condition for sentencing purposes. The issue for me is how to assess that qualification. In making that assessment, I have derived assistance from Black, which, as will be seen, has points of significant similarity, as well as significant difference, from this case.

In Black the offender had appealed against sentences on his fast track pleas of guilty of a total of 3 years' immediate imprisonment with eligibility for parole under the present sentencing regime (on which, see The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129). One sentence, of 2 years and 6 months, was imposed for unlawfully doing grievous bodily harm with intent contrary to Code s 294. The other sentence, to be served cumulatively on the first, was of 6 months, for unlawful wounding contrary to Code s 301 apparently other than in circumstances of aggression. The grounds of appeal included the manifest excessiveness of the two sentences. The Court of Criminal Appeal dismissed the appeal.
The appellant had been told by a friend, W, that at a party from which W had just come he had been assaulted and a female friend had been punched in the face. This was false. The appellant had accompanied W back to the party in a vehicle with two others, with the intention of assaulting guests. On arrival the appellant remained in the vehicle after W got out. By the time the first complainant JA approached W and pushed him in the chest telling him to leave, the appellant had found a knife in the vehicle. The appellant got out of the car with the knife in his hand. As a result of contact with another person, RR, the appellant swung the knife at RR, which caused a 12 cm cut to the left side of RR's chest. This cut penetrated the chest cavity, cut an artery inside his chest and damaged three ribs. JA was also injured during the incident, with a stab wound to his left side 4 cm deep and 3 cm wide. This wound required some stitches. The charge of grievous bodily harm with intent was in respect of RR, while the wounding charge was in respect of JA.
The appellant was 21 years old at the time of the offences, and 22 at sentencing, an apprentice with no relevant prior convictions. The sentencing judge accepted that the appellant's involvement in the incident had 'stemmed in part from characteristics associated with [the offender's] ADHD' (Black [24] (McLure P, Buss JA & Mazza J agreeing)), and that the effects of the daily medication had ceased by the time of the offending, making him distracted, impulsive and hyperactive. The court agreed that the fact the offender's actions occurred when his ADHD symptoms were not controlled by his medication [29]:
[I]s a relevant factor but is not, in the circumstances of this case, deserving of significant weight. The evidence does not justify a finding that the appellant was 'inveigled' to accompanying [W]. The misinformation supplied by [W] did not provide a reasonable basis for the appellant (even with his symptoms) to accompany [W] and others to confront a group of total strangers at their party. The most favourable inference is that the appellant set out knowing that his group's actions had the very significant potential to cause a violent confrontation. When the obvious potential was realised, the appellant picked up a knife and whatever his intention at that stage, by the time he stabbed RR, he did so with the intent to cause some grievous bodily harm. The medical evidence adduced by the appellant does not justify a finding that his ADHD symptoms materially ameliorate his culpability for the offending. Were it otherwise, there would be serious questions about the risk of re-offending, with adverse consequences for the appellant in the sentencing process: Wheeler … [No 2] … [7] ‑ [10].
In the judgment of Mazza J there is a discussion of another psychological condition to which the sentencing judge gave weight. This discussion was as follows [37] ‑ [40]:
In the hearing of the appeal a matter which was given some emphasis by Mr Karstaedt was that when the appellant was 15, he was severely bashed by a large group of people which left him with a fear of violent situations and that fear, in part, caused him to behave in the way that he did on the night in question. Mr Karstaedt referred to a report by a psychologist, Ms Cinzia Zuin, to this effect, which was before the learned sentencing judge.
On the facts in this case, I accept that the psychological effect of what occurred to the appellant when he was 15 is mitigatory. However, it cannot be said that the sentencing judge was not aware of it, or that he did not give it mitigatory weight. At ts 21 he said:
'Now, as Mr Crispe outlined to me, you did have that difficulty a number of years ago where there was an assault and when you were set upon by a group, and I take that into account in relation to this matter.'
Overall, his Honour identified all relevant mitigating factors in this case, which I think were compelling. There is no doubt in my mind that his Honour took all of the mitigating factors into account and that the sentences he imposed were properly within his discretion.
What cannot be lost in this case, is that the appellant used a knife and deliberately inflicted serious injuries upon RR and then unlawfully wounded JA. The use of a knife is a serious aggravating circumstance. The potential for serious or fatal injury is increased when a knife is produced and used in a situation of conflict. While the appellant is young, there appears to be a growing tendency amongst some young people to use a knife when confronted by conflict, notwithstanding the obvious risks that creates. His Honour gave due weight to general deterrence in this case. He was right to do so.
There are obvious and significant points of similarity between the mental condition of the offender in Black and its contribution to his offending and the mental condition of the appellant and its contribution to his offending in this case. However, it is not possible to regard the mitigatory weight of the former mental condition as on all fours with that of the latter mental condition. In particular, there were in Black significant points of difference from this case: elements of intention to do 'some grievous bodily harm'; the offender's intervention in a situation of violence; the use of a knife; and the acceptance of the prevalence of or growing tendency towards conduct of the kind. At the same time, Black in my view indicates the need for care in the assessment of evidence as to the causal contribution of a mental condition to offending.
I should add that it was not put to me that the appellant's mental condition was such that the consideration referred to in Black [29], itself referring to Wheeler [No 2] [7] ‑ [10], might be engaged. That consideration was that a causal connection between a mental disorder and an offence might reduce the importance of general deterrence and increase the importance of particular deterrence or of the need to protect the public: see, in particular, Wheeler [No 2] [7] above. There was no indication in the report of the general practitioner or the psychiatrist that risks from the appellant's mental condition would be better managed in a custodial than a non-custodial setting. To the contrary, the psychiatrist's report included the statement that 'Mr McAlinden's mental state may decompensate if given a custodial disposition'. This statement might tend to make his mental condition relevant to sentencing in the second and fifth ways described in Tsiaras (400), quoted in Gok [54], above. However, nothing was made of this in submissions before me, nor so far as I could tell in submissions to the magistrate. In any event, the weight to be given to the matter is insufficiently clear from the report to permit a conclusion on such weight to be arrived at.
Applying the care in assessing the causal contribution to his offending that the appellant's mental condition made, which I consider Black indicates is called for, it seems to me that the appellant's mental condition was such that I should assess it as materially reducing his culpability for the offending. Unlike in Black, on the evidence to which the magistrate referred that I consider below the appellant did not seek to intervene in a situation of violence, but rather by reason of his elevated perceptions of threats of danger or violence associated with his mental condition reacted to one that he saw presented to him as he did when he sought to have SD removed.

The failure to suspend the sentence

As I have indicated, a sentence may be manifestly excessive by reference to the type of sentence chosen or to the length of sentence: see Boyle [38]. Here, as I have said, senior counsel for the appellant relied on both, although both counsel appeared to concentrate their attention in argument before me more on the second than the first type of manifest excessiveness. Here I focus my attention on the first type.
In respect of the type of sentence, it was common ground that a custodial disposition was not manifestly excessive. However, it was contended for the appellant that the failure to suspend the term of imprisonment was manifestly excessive.
In determining whether or not to suspend a term of imprisonment, the sentencing judge must 'look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender' (Dinsdale [85] (Kirby J)). It follows that the matters I have rehearsed in previous sections of these reasons are also relevant to whether or not the sentence imposed by the magistrate was manifestly excessive by reason of his failure to suspend it.
In respect of matters relevant to the circumstances of the offending, senior counsel for the appellant particularly relied on authorities in which, notwithstanding the seriousness of the offence for which a sentence of immediate imprisonment was imposed, the failure to suspend the sentence was found to be manifestly excessive. See Boyle (knife causing grievous bodily harm; appeal against transition period sentence of 16 months' immediate imprisonment upheld on the basis that the failure to suspend the term was manifestly excessive); and see Etrelezis (glass causing grievous bodily harm; appeal against pre-transitional period sentence of 3 years' immediate imprisonment upheld on the basis that the failure to suspend was manifestly excessive).
However, in both cases I note there was conduct of an objectively provoking kind which the court appears to have considered precipitated the offending: see the use of pepper spray by the victim in Boyle [48] and the head butting by the victim in Etrelezis [45]. Here, it seems to me, there was no equivalent conduct. SD's standing up, even in the context of what CF had told the appellant of SD, does not appear to me on the evidence before the magistrate, on the view most favourable to the appellant, to be equivalent conduct. That evidence was that by the way SD stood up he was 'just sort of saying "Why are you picking on me?" sort of thing': 12 August 2010, cross‑examination of witness CDR, ts 35 (one of those who had accompanied SD to the party and who had seen SD stand up from the bench). This evidence which it appears was not challenged was referred to by the magistrate without him clearly making a finding as to it (12 August 2010, findings, ts 75). However, I would stress this lack of equivalence is simply a matter to be weighed with the other matters, including the circumstances of the offender, in assessing manifest excessiveness in the present respect.
I should also note from Boyle the suspension, notwithstanding the most serious injury caused by the knife. That injury, to the victim's hand, was one which without treatment would have resulted in loss of flexion of the thumb, difficulty in spreading the fingers, and persistent numbness. The victim impact statement showed the injury had produced 'very significant physical and psychological effects of an enduring kind' [23], and she had suffered 'significant emotional impact' [24].
In Etrelezis the injury caused by the glass required treatment for the eye without which the victim would have suffered permanent injury to the eye. There was no evidence of any enduring effects apparent from the decision. The stabbing injury in this case was not inflicted by a knife or by glassing, even if the injury was inflicted by an instrument capable of inflicting a significant chest wound. The injury here was less severe than that in Etrelezis; I have previously indicated that, while the magistrate in this case referred to evidence from SD of an 'ongoing impact' of the wounding, I am not in a position to give what SD had to say any substantial weight in my deliberations.
In respect of matters relevant to the personal circumstances of the offender, I understood senior counsel for the appellant to rely on the matters in the particulars a and b of ground 2. I have considered the personal circumstances of the offenders in Boyle and Etrelezis. In Boyle the offender was about 24 years of age at the time of the offences and 26 years of age at the time of sentencing. He had pleaded guilty, had no convictions and had a good employment history. He also had shown genuine remorse, had surrendered to police, had taken steps towards his rehabilitation and was at a low risk of reoffending. He also had ADHD and a major depressive disorder. The experts' reports in Boyle showed a connection between the offences and those psychiatric problems, which the sentencing judge found in the fact that the offender was 'naturally prone to being anxious', and his offences had been 'spurred predominantly' by his poor coping skills and his suspicious nature [21]. Those skills and that nature had been brought about by his mental problems. However, these problems did not deprive him of 'the ability to know what was right from wrong, or to appreciate how lethal that knife could be' [21]. In addition, the materials before the sentencing judge showed the offender had made considerable treatment gains in the period following his arrest, while it was the consensus of the expert opinion in the case that a custodial sentence would be 'likely to undo these gains and trigger a regression in the appellant's condition' [22].
In this case the principal differences in personal circumstances lay in the lack of any evidence of remorse apart from the plea of guilty, the absence of evidence of a predominant causal contribution of the mental condition to the offending and the absence of evidence of treatment gains in the period following the appellant's arrest. The psychiatrist's report in fact refers to the appellant's continuing address of anger management issues, to the benefit he would derive from treatment for his polysubstance use and to the need for follow‑up on his mental state.
In Etrelezis the offender was 20 years of age at the time of the offence and 22 years of age at sentencing. He had a strong employment history, had no relevant criminal record, there was evidence of remorse (although no plea of guilty, the conviction having followed a trial) and there was a low likelihood of re-offending. There was no evidence referred to in the decision of any anger management issue, polysubstance abuse or mental condition contributing to offending, let alone calling for treatment.
In this case the principal differences in personal circumstances lie in the mental condition which made a causal contribution to the offending, but also in the absence of any clear basis for assessing the risk of reoffending as low.

Conclusion

In arriving at my conclusion on manifest excessiveness, I must bear in mind the following, from Scolaro [No 2] [200]:
The principle that a court of appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion is a principle of the utmost importance to the administration of criminal justice (see Lowndes …; House v The King [1936] HCA 40; 55 CLR 499). It is a principle which should not be diminished or devalued by over-enthusiastic appellate intervention in the sentencing process. Any erosion of that principle erodes the integrity of our systems for the administration of justice, and would convert sentences imposed at first instance to a kind of provisional sentence until confirmed on appeal. The public interest in the finality of the sentencing process requires that appellate intervention be limited to demonstrated cases of error and not extend to differences of opinion within a range of sentences reasonably open. This is, of course, not to say that a sentence which is manifestly excessive may not demonstrate error, but it is to acknowledge the long-established principle that manifest excess will not be established merely because an appellate court would have imposed a different sentence.
To properly observe that principle, it seems to me I must proceed, not by reference to whether or not on my own assessment of the facts and circumstances it was open to impose the sentence the magistrate did, but to whether or not it was reasonably open to the magistrate to take a view of the facts and circumstances that would result in such a sentence. See Plant v Harrington [2010] WASC 364 [36] (Hall J). Taking account of those matters, after considering the factors from Chan (342) as discussed above and particularly in view of the sentencings from the body of authority I have referred to both on the length of sentence and its suspension, I have concluded that the sentence is one which was manifestly excessive in length if not in not having been suspended. I reach this conclusion noting, against the backdrop of my review of the authorities both counsel referred to, as well as the other authorities referred to in Mourish [12] and Mourish itself, where I have located the offending on the scale of seriousness of offending of that type and the personal circumstances of the appellant, qualified as to remorse as I have indicated. I particularly take account of his mental condition, after allowing for the relative significance of its causal contribution to the offending.
I would thus allow the appeal. I understood that, were that to be my conclusion, senior counsel for the appellant wished me to resentence the appellant, but on the basis of further submissions he would then make, for the purposes of which senior counsel wished to adduce further information under Criminal Appeals Act 2004 (WA) s 14(5). Counsel for the respondent made no objection to my re-sentencing the appellant in such a case, but neither did he concur in my doing so.
I will hear from the parties as to the orders I should make, including whether I should proceed to resentence the appellant or return the matter to the Magistrates Court.