The State of Western Australia v Bolton

[2024] WASCA 95

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BOLTON [2024] WASCA 95

CORAM:   BUSS P

HALL JA

VANDONGEN JA

HEARD:   21 JUNE 2024

DELIVERED          :   8 AUGUST 2024

FILE NO/S:   CACR 41 of 2024

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

BRADLEY WILLIAM BOLTON

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   CLEARY DCJ

File Number            :   IND 1716 of 2023

Catchwords:

Criminal law - State appeal against sentence - Whether sentencing judge erred by allowing maximum discount for plea of guilty - Whether respondent pleaded guilty at the first reasonable opportunity - Whether sentence manifestly inadequate - Where respondent pleaded guilty to one count of unlawful assault causing death

Legislation:

Criminal Appeals Act 2004 (WA), s 27(2)
Criminal Code (WA), s 222, s 281
Criminal Procedure Act 2004 (WA), s 35, s 39
Sentencing Act 1995 (WA), s 9AA, s 85(1)

Result:

Appeal allowed
Respondent resentenced

Category:    D

Representation:

Counsel:

Appellant	:	J C Whalley SC
Respondent	:	M R Gunning

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Gunning Young

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

Brewerton v The State of Western Australia [2017] WASCA 191

CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346

Director of Public Prosecutions (Vic) v Fatho [2019] VSCA 311

Gobetti v The State of Western Australia [2017] WASCA 130

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342

Jolly v The State of Western Australia [2017] WASCA 181

Law v The State of Western Australia [2009] WASCA 193

Lee v The State of Western Australia [2022] WASCA 137

LJH v The State of Western Australia [2016] WASCA 155

Marshall v The State of Western Australia [2015] WASCA 156

McAlpine v The State of Western Australia [2018] WASCA 195

Miller v Byrne [2016] WASC 236

R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

Rinaldi v The State of Western Australia [2017] WASCA 48

Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

SCN v The State of Western Australia [2017] WASCA 138

TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297

The State of Western Australia v JWRL (a child) [2010] WASCA 179

The State of Western Australia v Pereira [2023] WASCA 162

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

Thomas v The State of Western Australia [2014] WASCA 202

BUSS P:

1. This is a State appeal against sentence. 

2. The respondent was convicted, on his plea of guilty, of one count in an indictment. 

3. The count alleged that on 14 February 2023, at Armadale, the respondent unlawfully assaulted Gerald Arthur Lawrence, which assault resulted in Mr Lawrence's death, contrary to s 281(1) of the Criminal Code (WA) (the Code).

4. The maximum penalty for the offence is 20 years' imprisonment.

5. On 18 April 2024, Cleary DCJ sentenced the respondent to 1 year 10 months' immediate imprisonment.  The sentence was backdated to 16 February 2023 to take account of time the respondent had spent in custody in respect of the offence.  A parole eligibility order was made. 

6. The State relies upon two grounds of appeal. 

7. Ground 1 alleges, in essence, that the primary judge erred in fact and law in reducing the 'head sentence' (as defined in s 9AA(1) of the Sentencing Act 1995 (WA)) by 25%, pursuant to s 9AA, in circumstances where:

   (a)a head sentence may only be reduced by 25%, pursuant to s 9AA, if the plea of guilty was entered or indicated at the first reasonable opportunity;

   (b)her Honour found that the plea of guilty was entered at the first reasonable opportunity; and

   (c)there was no basis upon which such a finding could have been made.

8. Ground 2 alleges, in essence, that the sentence of 1 year 10 months' immediate imprisonment was manifestly inadequate. 

9. On 17 May 2024, I granted the State leave to appeal on both grounds and made an urgent appeal order. 

10. I would allow the appeal, set aside her Honour's sentencing decision (including the sentence imposed) and resentence the respondent. 

The facts and circumstances of the offending, the primary judge's sentencing remarks, the respondent's personal circumstances and antecedents and the submissions of the parties in the appeal

1. The facts and circumstances of the offending, the primary judge's sentencing remarks, the respondent's personal circumstances and antecedents and the submissions of the parties in the appeal are summarised in the reasons of Hall and Vandongen JJA.

2. In its written submissions the State argued in relation to ground 1 that:

   (a)a sentencing judge has no power under s 9AA of the Sentencing Act to allow the maximum discount of 25% unless the plea is entered or indicated at the first reasonable opportunity;

   (b)in the present case, there was no basis upon which it could be said that the plea was entered at the first reasonable opportunity; and

   (c)in the circumstances, it was not open to her Honour to allow the maximum discount of 25%.

3. Counsel for the respondent was defence counsel at the sentencing hearing before her Honour.

Ground 1

1. The prosecutor's statement of the material facts at the sentencing hearing before the primary judge and the committal summary report indicate that:

   (a)On 17 February 2023, the respondent was arrested and charged with unlawfully assaulting Mr Lawrence, which assault resulted in Mr Lawrence's death, contrary to s 281(1) of the Code.

   (b)On 17 February 2023, the respondent first appeared in the Armadale Magistrates Court.  He was remanded in custody.

   (c)On 24 February 2023, the respondent appeared again in the Armadale Magistrates Court.  He applied for bail.  The matter was adjourned to a later date to facilitate the preparation of a report that assessed the respondent's suitability for home detention bail.

   (d)On 17 March 2023, the respondent appeared again in the Armadale Magistrates Court.  His application for bail was refused.

   (e)On 26 May 2023, the respondent appeared again in the Armadale Magistrates Court.  The respondent entered a plea of guilty.  He was remanded to the Stirling Gardens Magistrates Court.

   (f)On 13 September 2023, the respondent appeared in the Stirling Gardens Magistrates Court.  He was committed to the District Court at Perth for sentence.

2. The respondent was represented by counsel at all of his appearances in the Armadale Magistrates Court.

3. By email of 10 April 2024, the primary judge's associate informed the prosecutor and counsel for the respondent that her Honour requested each of them to provide, by 15 April 2024, 'dot point submissions' addressing a number of specified matters including '[t]he timing of the plea of guilty'.

4. By email of 16 April 2024, sent at 10.49 am, the prosecutor informed her Honour's associate and counsel for the respondent that the respondent entered a plea of guilty on 26 May 2023, at the fourth mention hearing, and the State's position was that 'this was not at the earliest reasonable opportunity, however it was at an early stage'.

5. By email of 16 April 2024, sent at 4.46 pm, counsel for the respondent informed her Honour's associate and the prosecutor that the respondent maintained that he entered the plea of guilty 'at an early stage' and that the plea 'should attract the full discount under s 9AA'.

6. At the sentencing hearing before the primary judge, the prosecutor stated that the respondent's plea was not entered at 'the earliest opportunity', but the State accepted that the plea was entered at 'a very early stage in [the] proceedings' (ts 9).

7. At the sentencing hearing before her Honour, counsel for the respondent did not, in his written or oral submissions, advance any contentions and did not adduce any evidence in support of the proposition that the plea of guilty was entered (or indicated) at 'the first reasonable opportunity'.

8. In her sentencing remarks, the primary judge said (ts 48):

   You have pleaded guilty, and that is significant.  Given that there was no real indication that there would be a trial in this matter, and given the consequences of your actions, a trial would not have been a straightforward matter.  Your plea can be taken to be at the earliest opportunity, and has given great utility to the State.

   It must have been very traumatising for the witnesses, particularly Mr Lawrence's family, who were there on that day.  You have saved them the added trauma of attending court to give evidence of what they saw and did, and that is also significant. 

   In determining the discount I should give for your plea of guilty, I am also entitled to consider the strength of the State case.  Now, while it is the case that it seems like any defences were unlikely to succeed, medical evidence is always difficult to put before a jury.  And I accept that this is an unusual circumstances [sic] and an unusual offence.  So I acknowledge that while there is some strength to the State case, it may not have been, as such, overwhelming. 

   I must, though, predominantly acknowledge the early timing of your plea and the trauma you have saved the witnesses and the relatively swift closure to Mr Lawrence's family that you have given by your plea.  And while the State case was relatively strong, the benefit in your plea outweighs other factors in setting a discount.  And in accordance with the provisions of section 9AA, I've allowed a discount of 25 per cent from the head sentence I would otherwise have imposed had you been found guilty of the offence after trial and there were no mitigating factors.  (emphasis added)

1. Section 9AA of the Sentencing Act provides:

   (1)In this section -

   fixed term has the meaning given in section 85(1);

   head sentence, for an offence, means the sentence that a court would have imposed for the offence if —

   (a)the offender had been found guilty after a plea of not guilty; and

   (b)there were no mitigating factors;

   victim has the meaning given in section 13.

   (2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.

   (3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.

   (4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -

   (a)by more than 25%; or

   (b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.

   (5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.

   (6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.

2. Section 9AA applies where a person has pleaded guilty to a charge for an offence and the person is to be sentenced for that offence. 

3. Any discount under s 9AA for a plea of guilty is to the 'head sentence', as defined in s 9AA(1). The head sentence, as defined, must be discounted for the plea before any other discount is allowed for any other mitigating factor.

4. If the 'head sentence' for an offence is or includes a 'fixed term' (as defined in s 85(1) of the Sentencing Act), any discount under s 9AA for a plea of guilty must not exceed 25%. 

5. However, a discount of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at 'the first reasonable opportunity'. The making or the indication of a plea of guilty at 'the first reasonable opportunity' enlivens the power to grant the maximum discount. If the power is enlivened, the sentencing judge is not bound to give a 25% discount. The sentencing judge's discretion is informed by the considerations specified in s 9AA(2). See Thomas v The State of Western Australia.[1] The phrase 'the first reasonable opportunity' in s 9AA is not defined in the Sentencing Act.

   [1] Thomas v The State of Western Australia [2014] WASCA 202 [18] (McLure P; Mazza JA agreeing).

6. Rossi v The State of Western Australia[2] is the leading authority on the proper construction and effect of the phrase 'the first reasonable opportunity' in s 9AA.  The coram in Rossi comprised McLure P, Mazza JA and Hall J. 

   [2] Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508.

7. The salient facts of Rossi, for present purposes, were these.  The appellant pleaded guilty to six counts in Indictment 790 of 2013 (Indictment 790).  Between 17 October 2012 and 19 December 2012, police lawfully intercepted a mobile telecommunication service which belonged to and was used by the appellant.  The counts in Indictment 790 were established by the intercepted material.  Count 3 involved the sale of methylamphetamine.  The other counts involved offers to sell methylamphetamine.  The statement of material facts served on the appellant set out the precise time and date on which each offence was committed.

8. On 11 February 2013, the appellant in Rossi was charged in the Perth Magistrates Court with the offences which became the subject of Indictment 790.  On 28 June 2013, after the fourth or fifth disclosure/committal hearing, the appellant entered pleas of guilty to the offences in Indictment 790.  He was committed to the District Court for sentence.

9. The sentencing judge in Rossi indicated that he had reduced the 'head sentence', as defined in s 9AA(1), for each offence by 12.5%, being one half of the maximum allowed under s 9AA, in recognition of the appellant's pleas of guilty.

10. The appellant in Rossi appealed against the sentences imposed by the sentencing judge.  He relied on two grounds of appeal.  The ground that is relevant, for present purposes, alleged that the sentencing judge erred in law by failing to give a sufficient discount, pursuant to s 9AA, for the appellant's pleas of guilty to the offences charged in Indictment 790.

11. Counsel for the appellant in Rossi alleged, relevantly for present purposes, that:

    (a)the sentencing judge made an error of fact in failing to find that the appellant's pleas of guilty were entered at 'the first reasonable opportunity'; and

    (b)the discount of 12.5% given by the sentencing judge was manifestly inadequate.

12. Counsel for the appellant in Rossi submitted in relation to the phrase 'the first reasonable opportunity' in s 9AA that:

    (a)the appellant had entered his pleas of guilty to the 'offer to sell' charges at the first reasonable opportunity; and

    (b)on the facts of the case, the first reasonable opportunity was 'a reasonable time after the supply by the State of the covert listening product on which the charges were based, which information was necessary to enable the appellant's legal representative to advise in relation to the appellant's plea to the charges' [28].

13. In Rossi, McLure P (with whose reasons Mazza JA and Hall J agreed) noted that the opportunities to plead guilty to a charge for an offence are governed by the Criminal Procedure Act 2004 (WA). After examining the statutory scheme embodied in the Criminal Procedure Act, her Honour concluded that 'the first opportunity for an accused to plead guilty to a charge for an indictable offence is after s 39(a) ‑ (c) of [the Criminal Procedure Act] has been complied with' [52]. Her Honour added that '[t]hat is what is known as a "fast‑track" plea' [52].

14. Significantly, her Honour then said [53]:

    However, the first opportunity is not necessarily the first reasonable opportunity to enter a plea of guilty.  Whether or not it is requires an objective assessment, having regard to all relevant circumstances in the particular case, as to whether it would have been reasonable for the accused to have pleaded guilty on an earlier occasion.

15. McLure P accepted two submissions made by counsel for the appellant about the relationship between s 9AA and the Criminal Procedure Act. First, 'often, but not in every case, the first reasonable opportunity for an accused person to plead guilty will be after the statutory requirements in s 35(4), (5), (6), (11) and (12), where applicable, [of the Criminal Procedure Act] have been satisfied' [68]. Secondly, 'that would not be the case if the reason for not pleading guilty at an earlier stage, and the related loss of relevant benefits under s 9AA, is due to the conduct of the State' [68].

16. However, her Honour did not accept other submissions made by counsel for the appellant [69] ‑ [70]:

    The appellant's third proposition is that the legislature has recognised in (relevantly) s 39 of the [Criminal Procedure Act] that before an accused person enters a plea to an offence with which they have been charged they are entitled to know and understand the charge in the prosecution notice (notice), to have had time to consider the notice and to seek legal advice about it, and to be advised of the relevant procedures that may be invoked as a consequence of being charged. That is a fair summary of s 39 which addresses the subjective circumstances of the accused at the time of the hearing. However, the criterion of 'first reasonable opportunity' is objective.  An accused cannot sit back and fail to take the necessary steps to put himself in a position to plead.

    The appellant also contends that where an accused does not know that they are guilty of the offence charged because they do not know the facts that make up every element of the offence, it cannot be concluded mechanically, if the accused pleaded guilty at a later stage in the proceedings, that the plea was not entered at the first reasonable opportunity.  This statement is too broad.  It depends on what is meant by knowledge and the reason for the claimed lack of knowledge.  (emphasis added)

17. Next, McLure P dealt with the submission of counsel for the appellant that the appellant had pleaded guilty at 'the first reasonable opportunity' [71] ‑ [76]:

    The appellant claims it was reasonable for the appellant not to plead guilty before obtaining disclosure of the recorded telephone calls alleged to contain the offers the subject of the charges in Indictment 790 because the statement of material facts contained very little detail of the factual basis of the offences and only briefly summarised the effect of the telephone calls rather than set out what was actually said.  Further the telephone calls relied on were amongst a number of telephone calls intercepted over the course of around two months.

    The appellant also claims that it is irrelevant that the appellant may have been able to obtain copies of the recordings from police earlier in the proceedings, as police were not obliged to provide disclosure unless he elected to proceed to a committal hearing.  I do not accept this submission.  A failure to request access to the recordings is relevant, as is any failure to respond to, or refusal of, the request.  There was no evidence that, prior to disclosure under the [Criminal Procedure Act], a request was made on behalf of the appellant of the investigating police or the DPP to listen to the records.

    The appellant contends that this is not a case in which it can be concluded that disclosure of the recordings was sought to ascertain the strength of the prosecution case or that he held back pleading as a bargaining chip in plea negotiations.

    At his sentencing,  the appellant bore the onus of establishing matters of mitigation on the balance of probabilities.  He fell well short of establishing that he entered pleas of guilty to the charges in Indictment 790 at the earliest reasonable opportunity. 

    The written and oral submissions put on behalf of the appellant at sentencing did not state with any precision or clarity that the appellant's delay in pleading guilty was because he did not know the facts that made up the elements of the offences the subject of Indictment 790.  Such a submission would have been met with bewilderment, the appellant having been the principal (and sole) offender who must have had actual knowledge of all the material (and other) facts of his offending.  At its very highest, any issue could only be one of recollection of detail.

    Based on all the material before the sentencing judge, the compelling inference is that disclosure of the recordings was sought before entering a plea to any of the charges in order to ascertain the strength of the prosecution case. … It is on the strength of the prosecution case that the appellant may have required legal advice.  (emphasis added)

1. Her Honour expressed her conclusions as follows [77]:

   (a)The appellant pleaded guilty at the fourth or fifth disclosure/committal hearing.

   (b)The sentencing judge did not err by failing to make a finding that the appellant's pleas of guilty to the counts in Indictment 790 were entered at the first reasonable opportunity.

   (c)The appellant's pleas of guilty were not entered at the first reasonable opportunity.

2. McLure P then referred to counsel for the appellant's submission that the discount under s 9AA for the offences the subject of Indictment 790 should have been significantly higher than 12.5% [78]. Her Honour rejected that submission. Her Honour held that it could not be said that a discount of 12.5% for the offences the subject of Indictment 790 was at, or towards, the lower end of the discretionary range [82]. There was certainly no foundation for the claim that the discount was manifestly inadequate [82].

3. The reasons of McLure P (Mazza JA and Hall J agreeing) in Rossi concerning the proper construction and effect of the phrase 'the first reasonable opportunity' in s 9AA have been referred to with approval in numerous decisions of this court.  See, for example, Thomas [15]; Marshall v The State of Western Australia;[3] LJH v The State of Western Australia;[4] Rinaldi v The State of Western Australia;[5] Gobetti v The State of Western Australia;[6] SCN v The State of Western Australia;[7] Jolly v The State of Western Australia;[8] Brewerton v The State of Western Australia.[9]

   [3] Marshall v The State of Western Australia [2015] WASCA 156 [41] (Martin CJ; Hall J agreeing).

   [4] LJH v The State of Western Australia [2016] WASCA 155 [45] (Martin CJ).

   [5] Rinaldi v The State of Western Australia [2017] WASCA 48 [35] (Mazza & Mitchell JJA & Beech J).

   [6] Gobetti v The State of Western Australia [2017] WASCA 130 [68] (Mazza JA & Hall J).

   [7] SCN v The State of Western Australia [2017] WASCA 138 [90] (Buss P, Beech JA & Hall J).

   [8] Jolly v The State of Western Australia [2017] WASCA 181 [26] (Buss P & Mazza JA).

   [9] Brewerton v The State of Western Australia [2017] WASCA 191 [48] (Martin CJ, Mazza & Mitchell JJA).

4. Section 8(1) of the Sentencing Act provides that mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.  The offender must establish a mitigating factor on the balance of probabilities.  See R v Olbrich;[10] Law v The State of Western Australia.[11]  A plea of guilty by an offender is a mitigating factor.  The offender bears the onus of establishing, on the balance of probabilities, that he or she pleaded guilty, or indicated that he or she would plead guilty, at 'the first reasonable opportunity', within s 9AA(4).  See Rossi [74].

   [10] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25], [27] (Gleeson CJ, Gaudron, Hayne & Callinan JJ).

   [11] Law v The State of Western Australia [2009] WASCA 193 [25] ‑ [34] (Buss JA; McLure & Pullin JJA agreeing).

5. Section 27(2) of the Criminal Appeals Act 2004 (WA) provides that after an appeal is commenced, this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has 'a reasonable prospect of succeeding'.

6. In Samuels v The State of Western Australia,[12] Steytler P, Wheeler and Roberts‑Smith JJA explained the meaning of the phrase 'a reasonable prospect of succeeding' in s 27(2). Their Honours said, relevantly [56]:

   The ordinary meaning of the words ['a reasonable prospect of succeeding'], taken in their context (which includes the legislative purpose) must … be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding … ; in effect, that it has a real prospect of success.

   See also their Honours' observations at [57] ‑ [61]. 

   [12] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

7. In the present case, ground 1 had at least a rational and logical prospect of succeeding. In other words, it was not irrational, fanciful or absurd to envisage it succeeding. It had at least a real prospect of success. Ground 1 therefore had at least 'a reasonable prospect of succeeding' within s 27(2).

8. Ground 1 had at least 'a reasonable prospect of succeeding' having regard to the relevant facts of Rossi and the proper construction and effect of the phrase 'the first reasonable opportunity' in s 9AA(4) as stated in Rossi.  In particular:

   (a)On 17 February 2023, the respondent was arrested and charged with the relevant offence. 

   (b)The respondent did not enter or indicate a plea of guilty to the offence until 26 May 2023, on his fourth appearance in the Armadale Magistrates Court.

   (c)The respondent was represented by counsel at all of his appearances in the Armadale Magistrates Court.

   (d)The prosecutor's position, as stated in her email of 16 April 2024 to her Honour's associate and in her oral submissions, was that the respondent's plea was not entered at 'the earliest reasonable opportunity' or 'the earliest opportunity', but the State accepted that the plea was entered 'at an early stage' or 'a very early stage' in the proceedings.

   (e)Counsel for the respondent stated in his email of 16 April 2024 to her Honour's associate that the respondent maintained that the plea of guilty was 'at an early stage' and that the plea 'should attract the full discount under s 9AA'.  Plainly, any lawyer who is acquainted with the text of s 9AA should know that a plea of guilty 'at an early stage' does not enable 'the full discount' of 25% to be given.  The 'full discount' of 25% cannot be given unless the plea has been entered or indicated at the first reasonable opportunity.  It would be astounding if counsel for the respondent (who is a very experienced criminal lawyer) was unaware of that simple principle.  However, counsel did not, in his written or oral submissions, advance any contentions or adduce any evidence in support of the proposition that the plea of guilty was entered (or indicated) at 'the first reasonable opportunity' within s 9AA.

   (f)The making or the indication of a plea of guilty at 'the first reasonable opportunity' enlivens the sentencing judge's power to grant the maximum discount of 25%.  See Thomas [18].  In other words, the making or indicating of the plea at 'the first reasonable opportunity' is a condition for the exercise of the power to grant the maximum discount.  See Miller v Byrne.[13]

   [13] Miller v Byrne [2016] WASC 236 [41] (Allanson J).

   (g)The respondent bore the onus of establishing, on the balance of probabilities, that he had pleaded guilty, or had indicated that he would plead guilty, at 'the first reasonable opportunity', within s 9AA(4).  See Rossi [74].

   (h)Although the first opportunity for an accused to plead guilty to a charge for an indictable offence is after s 39(a) ‑ (c) of the Criminal Procedure Act has been complied with, the first opportunity is not necessarily the first reasonable opportunity to enter or indicate a plea of guilty.  See Rossi [53].

   (i)The elements of the offence which the respondent committed comprised, first, that the respondent unlawfully assaulted Mr Lawrence and, secondly, that Mr Lawrence died as a direct or indirect result of the assault.

   (j)The respondent participated in an electronically recorded interview with police on 16 February 2023.  The interview began at 2.51 pm.  Initially, the respondent said that he had not touched Mr Lawrence and that Mr Lawrence lost his balance and fell back (EROI 17, 21).  The respondent said there is not anything that affects his memory and he knew 'what happened that day' (EROI 46).  However, after being shown a segment of CCTV footage of the incident with Mr Lawrence, the respondent admitted that he had pushed Mr Lawrence but said he could not remember pushing him (EROI 52).  Later in the interview, the respondent said that he did not touch Mr Lawrence (EROI 53); that Mr Lawrence lost his balance and fell (EROI 53, 57); that he did not touch Mr Lawrence before Mr Lawrence lost his balance and fell (EROI 63 ‑ 64); and that he never hit Mr Lawrence (EROI 73).  After being shown another segment of CCTV footage, the respondent said it looked like he pushed Mr Lawrence; they were pushing one another that day; and when he pushed Mr Lawrence, Mr Lawrence '[j]ust laid there and people was [sic] helping him' (EROI 76).  The respondent insisted, however, that he did not remember pushing Mr Lawrence (EROI 77).  The respondent added, 'I know I pushed him, but I didn't mean to push him' (EROI 77).  The respondent then said that both he and Mr Lawrence were intoxicated and that the respondent pushing Mr Lawrence must have caused Mr Lawrence to fall over and hit his head (EROI 78).  The respondent insisted that he could not have pushed Mr Lawrence 'too hard' (EROI 79).  Later in the interview, the respondent said that Mr Lawrence pushed him and he pushed Mr Lawrence and 'that's how it went' (EROI 82).  Towards the end of the interview, when he was asked whether he wanted to say anything else about what the police officers had shown him and what they had talked about in the interview, the respondent replied, 'Not really, no'; 'Only shock when I seen [sic] that'; 'but I didn't know I done [sic] that'; and 'that was just out of the blue' (EROI 87).  The interview finished at 4.34 pm.

   (k)It is apparent from the respondent's interview with police on 16 February 2023 that the respondent claimed that he did not remember pushing Mr Lawrence but, upon being shown segments of the CCTV footage, he accepted that he did push Mr Lawrence and that the push must have caused Mr Lawrence to fall and hit his head.

   (l)When the respondent was sentenced by her Honour, counsel for the respondent did not assert (in his email of 16 April 2024 or in his written or oral submissions) that the respondent's delay in pleading guilty was because he did not know the facts that comprised the elements of the offence in question.  Any such assertion, if it had been made, would have had to grapple with at least two issues.  First, the reality that one segment of the CCTV footage clearly shows that the respondent forcefully pushed Mr Lawrence and that as a consequence Mr Lawrence fell backwards and struck his head on the ground.  There was never any dispute that Mr Lawrence died on 17 February 2023 as a result of complications arising from a subdural haemorrhage within his brain that was caused by his striking his head on the ground.  Secondly, when it was that the lawyers who were or had been acting for the respondent sought and obtained a copy of the CCTV footage.  An accused cannot sit back and fail to take the necessary steps to put himself or herself in a position to plead.  See Rossi [69]. There were no submissions or evidence before her Honour about the matters I have mentioned.

   (m)The prosecutor's position in oral submissions at the hearing before her Honour was that the respondent's plea of guilty was not entered at 'the earliest opportunity', but was entered at 'a very early stage in [the] proceedings' (ts 9).  Although that did not reflect precisely the statutory language of 'the first reasonable opportunity', it used similar language to that contained in the prosecutor's email of 16 April 2024, where she stated that the plea was 'not at the earliest reasonable opportunity, however it was at an early stage'.  The prosecutor's position, on a fair reading of her email and her oral submissions, was that the full discount of 25% was not available.  She did not accept or concede that the full discount of 25% was available.  Even if the prosecutor inferred that counsel for the respondent was seeking the full discount of 25% on the basis that the plea was entered at 'the first reasonable opportunity', the State's position was, at all times, consistent (namely, that the full discount of 25% was not available) and was contrary to the position advanced by counsel for the respondent.

   (n)In the circumstances (including the material before her Honour, the submissions or absence of submissions from the parties, the position consistently advanced by the prosecutor contrary to the position advanced by counsel for the respondent, and bearing in mind that the respondent bore the onus of establishing that he had entered or indicated his plea of guilty at the first reasonable opportunity), her Honour was required to make an objective assessment as to whether the plea of guilty could have been entered or indicated at an earlier stage than it was.  See Gobetti [71].

   (o)However, notwithstanding the position consistently advanced by the prosecutor, her Honour merely stated that the respondent's plea 'can be taken to be at the earliest opportunity' (ts 48).  Her Honour did not give any reasons for rejecting the prosecutor's position.  Although the State's grounds of appeal do not include a ground that impugns her Honour's decision to allow the maximum discount of 25% on the basis of inadequate reasons, the absence of any written or oral submissions from counsel for the respondent in support of the proposition that the plea of guilty was entered (or indicated) at 'the first reasonable opportunity', combined with the position consistently advanced by the prosecutor contrary to the position advanced by counsel for the respondent, the onus borne by the respondent and her Honour's failure to give any reasons for rejecting the prosecutor's position, supports the State's assertion in ground 1 that there was no reasonable basis upon which her Honour could find that the respondent's plea was entered at the first reasonable opportunity.

   (p)On an objective assessment of the circumstances (including the material before her Honour, the submissions or absence of submissions from the parties, the position consistently advanced by the prosecutor contrary to the position advanced by counsel for the respondent, the onus borne by the respondent and her Honour's failure to give any reasons for rejecting the prosecutor's position), it is at least reasonably arguable that the first reasonable opportunity for the respondent to indicate to the State a plea of guilty to the offence in question was during April 2023.

   (q)Further, on an objective assessment of the circumstances (including the material before her Honour, the submissions or absence of submissions from the parties, the position consistently advanced by the prosecutor contrary to the position advanced by counsel for the respondent, the onus borne by the respondent and her Honour's failure to give any reasons for rejecting the prosecutor's position), it is at least reasonably arguable that there was no basis upon which a finding could have been made that the respondent's plea was entered at the first reasonable opportunity.

9. The difference in the approach of this court between offender appeals against sentence and State appeals against sentence is explicable by the purpose underpinning each category of appeals.  Offender appeals are concerned with the correction of error in the particular case.  State appeals are concerned with establishing principles for the guidance of sentencing judges.  See Green v The Queen;[14] CMB v Attorney‑General (NSW).[15]

   [14] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1] (French CJ, Crennan & Kiefel JJ).

   [15] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [55] (Kiefel, Bell & Keane JJ).

10. If this court is to allow a State appeal against sentence and to impose a heavier sentence on the offender, the State must establish two matters. First, the State must make out an appellable error in the exercise by the sentencing judge of his or her discretion. Secondly, the State must negate any reason why the residual discretion of this court under s 31(4) of the Criminal Appeals Act not to interfere should be exercised.

11. The discretion conferred on this court by s 31(4) of the Criminal Appeals Act is residual only in the sense that its exercise does not fall to be considered unless the State has demonstrated that the sentence imposed by the primary judge 'turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust':  CMB [33].

12. In R v Borkowski,[16] the Court of Criminal Appeal of New South Wales dismissed a Crown appeal against sentence.  Howie J (McClellan CJ at CL and Simpson J agreeing) said that there had been a wrong decision by the sentencing judge.  However, it could not be said that the refusal to interfere to correct that decision was itself a wrong decision.  His Honour elaborated [70]:

    [T]he purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual.  It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles.  That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong.

    [16] R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1.

13. In Green [37], French CJ, Crennan and Kiefel JJ cited that observation of Howie J with approval.

14. So, the purpose of a State appeal may, in some cases where a sentencing judge has made an express error but the sentence imposed is not manifestly inadequate, properly be achieved by a statement of this court to the effect that the express error has been made out and the consequences of the error, without altering the sentence.  See Borkowski [70]; Green [37]; Director of Public Prosecutions (Vic) v Fatho.[17]

    [17] Director of Public Prosecutions (Vic) v Fatho [2019] VSCA 311 [79] ‑ [80] (Maxwell P, Priest & Beach JJA).

15. In its written submissions, the State made this submission in relation to the residual discretion [39]:

    When regard is had to all of the relevant sentencing considerations, it is clear that the court's intervention is required to ensure that proper sentencing standards are established and maintained.  There is no basis for the residual discretion to be applied in the present case.  The appeal should be allowed and the respondent should be resentenced according to law.

16. However, at the hearing of the appeal, senior counsel for the State said (appeal ts 10):

    I was going to talk about a qualification [to the State's written submission on the residual discretion] if the court was to find that appellable error was established in respect of ground 1, but not ground 2.  [T]hen we would accept the residual discretion should be exercised in the respondent's favour.

    But it seems from your Honour's questions it's unlikely that's an eventuality we will be facing.  But nonetheless, that's the State's position in that event.  We accept it would serve no purpose to simply increase the respondent's sentence by a month or so.

17. That qualification by senior counsel for the State was properly made, but it does not follow from the qualification that the State should not have advanced ground 1.  The State brought the appeal on ground 1 and ground 2.  Ground 1 raised an issue about the proper application by sentencing judges of the principles laid down in Rossi in determining whether a plea of guilty has been entered or indicated at the first reasonable opportunity.  The State may properly bring an appeal on a ground which raises an issue about the correct application of an important sentencing principle (at least where, as in the present case, another ground is properly raised) notwithstanding that the State acknowledges that it would be appropriate to apply the residual discretion if the ground in question was the only ground that was established.  As I have mentioned, the purpose of a State appeal may, in some cases where a sentencing judge has made an express error but the sentence imposed is not manifestly inadequate, properly be achieved by a statement of this court to the effect that the express error has been made out and the consequences of the error, without altering the sentence.

1. Counsel for the respondent made these submissions in his respondent's answer in support of the proposition that the plea of guilty entered by the respondent on 26 May 2023 was entered at the first reasonable opportunity [4.4] ‑ [4.7]:

   [The respondent] is a person of limited education and memory of the event.  Any plea required a very close analysis and consideration of the CCTV footage.

   Given [the respondent] was in custody, and access to prisoners in custody presents its own difficulties in relation to obtaining instructions, on a matter such as this a plea of guilty at the fourth mention should be seen as the first reasonable opportunity after Counsel had the opportunity to advise him of his position.

   In relation to this, original Counsel for [the respondent] was provided an opinion [on] 25 May 2023 as to [the respondent's] position, indicating that a plea of guilty was appropriate.

   On 26 May 2023, [the respondent] appeared in Court and entered a plea of guilty.

2. Counsel for the respondent did not make those submissions or adduce evidence in support of them at the sentencing hearing before the primary judge.

3. Counsel for the respondent made these submissions at the hearing of the appeal in support of the proposition that the plea was entered at the first reasonable opportunity (appeal ts 11):

   In respect of … ground 1, the submissions are stated in my written submissions.  I can't take it much further than that.  What I would say is that it was at the first reasonable opportunity.  I think that [the respondent] had representation from not only one lawyer but several.

   So even his representation had changed.  I do note that the solicitor asked me to look at the CCTV and give an opinion on the matter.  I gave that opinion, and the very next day [the respondent] was in court and he pleaded guilty to the charge.  So I would have thought that, in all the circumstances, it was the first reasonable opportunity.

4. Counsel for the respondent did not make those submissions or adduce evidence in support of them at the sentencing hearing before her Honour.

5. Indeed, as I have mentioned, despite the prosecutor's submissions to the primary judge about the timing of the respondent's plea of guilty, counsel for the respondent did not, in his email of 16 April 2024 or in his written or oral submissions, advance any contentions or adduce any evidence in support of the proposition that the plea of guilty was entered (or indicated) at the first reasonable opportunity.  Counsel for the respondent should have made submissions and, as necessary, adduced evidence before her Honour on this issue.

6. Some of the submissions that I have set out at [56] and [58] above are assertions that are not supported by evidence; for example, evidence about when and in what circumstances any of the respondent's lawyers first obtained the CCTV footage and evidence about what difficulties the respondent's lawyers had in gaining access to and obtaining instructions from the respondent.  However, senior counsel for the State did not object to this court having regard to those assertions.  It is appropriate, in the circumstances, for this court to take the assertions into account.

7. I am of the opinion, having regard to:

   (a)the paucity of information before her Honour in relation to the timing of the respondent's plea of guilty; and

   (b)the absence of submissions by counsel for the respondent and the absence of evidence in support of the proposition that the plea had been entered (or indicated) at the first reasonable opportunity,

   that it was not reasonably open to her Honour to find, in effect, on an objective assessment that the respondent had discharged his onus of establishing, on the balance of probabilities, that he had pleaded guilty, or had indicated that he would plead guilty, at the first reasonable opportunity, within s 9AA(4).

8. I have formed that opinion on the basis of the matters I have set out at [46] above.

9. However, on an objective assessment of the additional information and submissions put before this court by counsel for the respondent (see [56] and [58] above), in combination with the information put before the primary judge, I am satisfied that the respondent's plea of guilty on 26 May 2023 in the Armadale Magistrates Court was entered at the first reasonable opportunity, within s 9AA(4).

The respondent's application to challenge the primary judge's findings of fact

1. I agree with Hall and Vandongen JJA, for the reasons they give, that the respondent's application to challenge the primary judge's findings of fact should be dismissed.

Ground 2

1. I agree with Hall and Vandongen JJA, for the reasons they give, that ground 2 has been made out.

Residual discretion

1. I agree with Hall and Vandongen JJA, for the reasons they give, that this court should resentence the respondent to a term of 3 years 6 months' immediate imprisonment.

Orders

1. I would make the following orders:

   1.The respondent's application filed 28 June 2024 is dismissed.

   2.The appeal is allowed.

   3.The primary judge's sentencing decision, including the sentence imposed by her Honour, for the offence charged in IND 1716 of 2023 is set aside.

   4.The respondent is resentenced to 3 years 6 months' immediate imprisonment.

   5.The new sentence is taken to have taken effect on 16 February 2023.

   6.The respondent is eligible for parole.

HALL & VANDONGEN JJA:

1. Late in the afternoon of 14 February 2023, the respondent was at the Jull Street Mall in Armadale.  He had been drinking throughout the day and he was drunk.  Mr Lawrence was also at the Jull Street Mall.  He too was affected by alcohol. 

2. The two men knew each other, and they often argued.  This day was no exception.  However, on this occasion their argument turned physical, and a brief scuffle ensued.  During the scuffle the respondent pushed Mr Lawrence, causing him to fall backwards.  When Mr Lawrence fell, his head struck the ground, with catastrophic results.

3. Mr Lawrence died in hospital a few days later.

1. The respondent was charged on indictment with one count of unlawfully assaulting Mr Lawrence and causing his death, contrary to s 281(1) of the Criminal Code (WA) (Code).

2. On just his fourth appearance in the Armadale Magistrates Court, the respondent entered a plea of guilty and was committed to the District Court for sentence.  The respondent was sentenced in the District Court on 18 April 2024 to 1 year and 10 months' immediate imprisonment.  An order was made that he be eligible to be considered for release on parole, and the sentence was backdated to commence on 16 February 2023 to account for the time the respondent had already spent in custody.  As a result, the respondent was immediately eligible for parole.

3. The State appeals against the sentence imposed on the respondent, contending that the sentencing judge erred by reducing the head sentence by 25%, the maximum discount allowed under s 9AA of the Sentencing Act 1995 (WA). The State also argues that the sentence of 1 year and 10 months' immediate imprisonment was manifestly inadequate.

4. On 17 May 2024, Buss P granted the State leave to appeal on both grounds of appeal and made an urgent appeal order.

5. For the following reasons, we would allow the appeal and resentence the respondent to 3 years and 6 months' immediate imprisonment.

Facts found by the sentencing judge

1. Before summarising the relevant facts, it is necessary to say something about the approach to the facts that was taken by counsel for the respondent during and after the hearing of the appeal.

2. At the hearing of the appeal, the respondent's counsel made several submissions about the factual context in which he suggested the issues raised by ground 2 should be determined.  A number of those submissions were inconsistent with, or were not based on, the sentencing judge's findings of fact.  This occurred in circumstances in which the respondent's counsel had not given any prior notice of his intention to challenge the sentencing judge's findings.

3. After the court pointed out to the respondent's counsel that he had not given the court or the State any notice of his intention to challenge the sentencing judge's findings, counsel eventually indicated that he wished to make a formal challenge.  Orders were then made requiring the filing and service of an application in the appeal, together with written submissions, that identified with precision the factual errors the respondent alleged the primary judge had made.  Orders were also made requiring the appellant to file and serve any submissions in reply.

4. On 28 June 2024, an application in the appeal, a supporting affidavit, and written submissions were filed on behalf of the respondent.  It appeared from those documents that the respondent did not actually wish to challenge any of the sentencing judge's findings of fact.  Instead, the respondent was contending that the sentencing judge should have made findings which she expressly said she was not prepared to make.

5. It is convenient to identify the findings the respondent seeks to impugn in the course of summarising the facts found by the sentencing judge.

6. Her Honour's findings were largely informed by CCTV footage that recorded most of the incident involving the respondent and Mr Lawrence.  Her Honour also had regard to the statement of material facts that was read aloud at the sentencing hearing, the contents of the prosecution brief and the respondent's record of interview with police. 

7. The sentencing judge found that the respondent and Mr Lawrence had a history of ongoing arguments.  At about 5.30 pm on 14 February 2023, the respondent and Mr Lawrence were both at the Jull Street Mall in Armadale. They had been arguing with each other throughout the day. 

8. The respondent had received news of a death in his family, and he wanted to grieve in peace.  However, Mr Lawrence would not leave him alone.  The respondent became annoyed and frustrated with Mr Lawrence.  At one point he asked police officers to issue Mr Lawrence with a move‑on notice.

9. Both the respondent and Mr Lawrence were affected by alcohol, and they were yelling and swearing at each other.  Shortly before the incident that led to his death, Mr Lawrence had removed his shirt and was wearing only a pair of trousers.

10. The CCTV footage showed that for several minutes the respondent and Mr Lawrence were standing in the mall talking to each other.  On occasions, the respondent would move a short distance away from Mr Lawrence, as if to walk away, but each time he would return to where Mr Lawrence was standing, and they would continue to talk.  At one point, Mr Lawrence walked a short distance away from the respondent.  The respondent then walked in the same direction, as if to follow him, but Mr Lawrence turned around to face him. 

11. The sentencing judge made detailed findings about what then occurred, based on her interpretation of about six seconds of the CCTV footage.

12. When Mr Lawrence turned around to face the respondent, he had his arms outstretched from his sides.  Both men appeared to be talking to each other.  When the respondent was about 1 m away from him, Mr Lawrence raised his right arm and tapped either his chin or the side of his face with his hand, twice in quick succession.  Her Honour said that she was unable to make a finding about why Mr Lawrence did this, or whether the respondent saw it.  However, she said that when Mr Lawrence tapped his chin he was remonstrating with the respondent in some way, and that Mr Lawrence was angry and frustrated.

13. The sentencing judge was not prepared to find that Mr Lawrence's tapping of his chin or the side of his face amounted to an invitation to the respondent to hit him.  She also did not accept that the tapping was an aggressive or provocative act, or a threat.  Her Honour concluded that Mr Lawrence's actions did not explain or excuse the respondent's behaviour, but she said they provided context and assisted in assessing the seriousness of the offence.

14. The respondent challenges the sentencing judge's decision not to find that Mr Lawrence's tapping to his face was an aggressive, threatening or provocative act.  He submits that the CCTV footage, and a selection of passages from various witness statements that formed part of the prosecution brief, demonstrates the tapping of the face 'can only be explained as a gesture intended to goad or invite a physical reaction from [the respondent]'.[18]

    [18] Affidavit of Mark Russell Gunning, sworn 28 June 2024, par 3i.

15. The sentencing judge found that the respondent then turned his body slightly sideways, towards Mr Lawrence, and raised his right arm to about shoulder height.  He then brought his arm across his body towards Mr Lawrence.  Her Honour said that it was not necessary to decide whether the respondent punched Mr Lawrence, or whether he attempted to punch or push him.  She concluded that the respondent did not make contact because Mr Lawrence was able to move back, lift his left arm and, as he already had his right arm up (having just touched his chin), Mr Lawrence was able to block the respondent's arm.  Her Honour did say that Mr Lawrence had to 'raise his arm and defend himself'.[19]

    [19] ts 43.

16. Mr Lawrence then took a small step backwards with his left foot.  At the same time, the respondent moved forward towards Mr Lawrence.  Her Honour said that as Mr Lawrence blocked the respondent's swinging right arm, it appeared that Mr Lawrence either grabbed hold of the respondent's arm, or he became entangled in some way with the respondent.

17. Her Honour said that Mr Lawrence then took one step backwards before straightening up his body.  The respondent then stepped towards Mr Lawrence. According to her Honour, the CCTV footage appeared to show that Mr Lawrence still had both of his arms forward, and that they may have been touching the respondent's still raised right arm.  However, her Honour said:[20]

    I'm unable to make a finding about whether Mr Lawrence in fact has a hold of you, but it seems unlikely that he has, because the next movement of you is a push with your right arm, and Mr Lawrence instantly goes backwards, away from you.  You appear to have connected to somewhere in his upper chest or throat area.  So it's that movement, I find, that puts Mr Lawrence off balance and makes him fall backwards.  The movement that you took is a slight pulling backwards or a slight pulling back of your right arm and then a push.  So it's not a push from a static position.  You do pull your arm back slightly, but not to any great extent.  (emphasis added)

    [20] ts 40 - 41.

18. The respondent challenges the emphasised portion of this passage of the sentencing remarks.  The respondent submits, in effect, that the sentencing judge should have found that Mr Lawrence did have hold of his forearm immediately before he pushed Mr Lawrence. 

19. In written submissions filed after the hearing of the appeal, the respondent's counsel argues that the sentencing judge should have found that Mr Lawrence either had hold of the respondent's arm, or both of his arms, or that the two men were in some way entangled or connected to each other.  Further, the respondent argues:[21]

    [21] Respondent's written submissions filed 28 June 2024.

    The Respondent submits this for the following reasons based on a close viewing of [CCTV footage]:

    a.Having raised his arm, Mr Lawrence in reaction, grabs [the respondent's] forearm with both hands.

    b.He does not block the motion as Her Honour found at [ts] 40.

    c.Instead, Mr Lawrence grabs [the respondent] on two locations on his forearm.  One closer to the elbow and one hand situated closer to [the respondent's] wrist.

    d.To which [the respondent] reacts by pushing his forearm forward.

    e.This can only be interpreted as a push to have Mr Lawrence release his grip on his forearm.

    f.It was not intended to result in Mr Lawrence falling to the ground.

    g.Considering the Statement of Jennifer Bennel at Prosecution Brief page 12, paragraph 31 the push was characterised as the 'kind of push you do to say "behave" or "go away"' and can only be characterised in this way'.  (emphasis added)

20. The sentencing judge found that Mr Lawrence fell to the ground in an uncontrolled manner.  His legs struck the ground first, and this caused his head to hit the ground with force. His hands and arms then immediately seized in front of his body, and he was rendered unconscious.

21. The sentencing judge was unable to make a finding about the force the respondent used when he pushed Mr Lawrence.  However, she said that the force used was enough to send Mr Lawrence backwards, and that it gave him no time to defend himself or to put his arms back to protect himself from a fall.

22. Her Honour found that the push was not the only act that caused Mr Lawrence's death.  She concluded, in effect, that the assault was comprised of a combination of the respondent's first action when he brought his right arm around his body, coupled with the push that immediately followed.

23. On that basis, her Honour said:[22]

    I accept, therefore, though, that the assault or assaults which led to Mr Lawrence's death are minor.  In combination, they are not at the very lowest end of such offending, but they are by no means serious.

    [22] ts 43.

24. The sentencing judge also found that when Mr Lawrence was lying motionless on the ground, the respondent stepped forward and appeared to remonstrate with him for a short time.  The respondent then moved away and sat down on a seat nearby when someone came to Mr Lawrence's aid. 

25. Family members and members of the public attended to Mr Lawrence while he lay motionless on the ground, and an ambulance arrived about 10 minutes later.  Mr Lawrence was then taken to Armadale Hospital. 

26. While he was still at the scene, the respondent said to Mr Lawrence's partner: 'Sorry, I didn't hit him.  I just pushed him away.'

27. Mr Lawrence had urgent medical treatment and a CT scan.  The scan showed that he had bleeding on his brain.  He never regained consciousness, and was declared dead on 17 February 2023.  Mr Lawrence died from complications due to his head injury, including bronchopneumonia.

28. The respondent took part in an electronic record of interview with police on 16 February 2023.  In that interview, the respondent admitted that his relationship with Mr Lawrence had been tumultuous over several years.  He admitted that he had been drinking during the day, and he agreed that he had argued with Mr Lawrence.  However, he said that he never touched Mr Lawrence and that he had fallen back on his own accord.  When he was then shown the CCTV footage of the incident, he said that he could not remember pushing Mr Lawrence.

29. The sentencing judge found that Mr Lawrence was vulnerable because he was intoxicated.  The CCTV footage showed that Mr Lawrence had been unsteady on his feet well before his altercation with the respondent.  The respondent knew that Mr Lawrence was intoxicated, as that is what he told a psychologist and a psychiatrist who prepared reports for the purposes of sentencing.

30. Her Honour also concluded that the respondent's offending was aggravated 'in a small way', because he did not render any assistance to Mr Lawrence after he had fallen to the ground, and that there was a 'small amount of persistence' involved in the offending.

31. Before dealing with other aspects of the sentencing proceedings that took place before her Honour, it is convenient to deal with the respondent's challenges to the sentencing judge's findings of fact.

The challenges to the sentencing judge's findings

1. The respondent makes two challenges to the sentencing judge's findings. 

2. Firstly, he submits that the sentencing judge was wrong not to find that Mr Lawrence tapped his face with his right hand, and that this was an aggressive, threatening or provocative act.  He submits that the sentencing judge should have found that Mr Lawrence tapped his face, and that when he did so he was 'goading' or inviting a physical reaction from the respondent.

1. Secondly, the respondent submits that the sentencing judge was wrong not to have found that immediately before he was pushed, Mr Lawrence had hold of one or both of the respondent's arms.  The respondent says that this finding should have been made because of what can be seen in the CCTV footage.  The respondent ultimately submits that he should have been sentenced on the basis that he pushed Mr Lawrence to get him to release his grip on the respondent's arm, and that he did not intend that Mr Lawrence would fall to the ground.

2. After counsel filed the application in the appeal, the court wrote to the respondent's counsel seeking clarification of the scope of the respondent's challenge to the sentencing judge's findings.  The court's letter observed that the respondent's written submissions appeared to impugn the integrity of the respondent's plea of guilty and the judgment of conviction.  This is because the submissions appeared to suggest that the court should in effect find that Mr Lawrence had consented to being assaulted by the respondent, that the respondent had been provoked by Mr Lawrence, and (possibly) that the respondent had acted in self‑defence.

3. The court required the respondent's counsel to:

   (a)confirm whether the respondent was seeking to impugn the integrity of the judgment of conviction; and

   (b)advise on what basis the court could take into account any of the assertions made in the respondent's written submissions.

4. In his reply dated 3 July 2024, counsel said that the respondent was not seeking to impugn the integrity of the judgment of conviction.  He said that the respondent did not contend that Mr Lawrence had consented to the assault, or that he had been provoked, or that he had acted in self‑defence. 

5. Counsel explained the respondent's position in the following terms:

   Consent

   It was never intended that the interpretation of the tapping by Mr Lawrence to the left side of his face was consent by Mr Lawrence to be assaulted.

   Whilst it is contended that it was goading or asking for physical confrontation (in the sense of saying 'come on') it is not suggested that the action of tapping the face can be seen as a consent by the victim to be assaulted and in fact the raising of the arm in respect of the goading is accepted as being an assault, albeit that it did not touch and was not intended to touch Mr Lawrence.

   Self-Defence

   In relation to the question of self‑defence, it is not contended that [the respondent] was acting in self‑defence and at no stage were we given instructions by [the respondent] in relation to that and nor does it arise in our submissions by inference from the CCTV.

   Provocation

   The assessment was that [the respondent's] swing was not such that it was a justifiable response to the goading (tap on the cheek).

   At the time of entering the plea it was not appreciated that it was [the respondent's] arm that was grabbed first by Mr Lawrence after the swing.

   Nevertheless the swing, the grabbing of his arm by Mr Lawrence, and the push was in effect one transaction and on balance it was not considered to be such that the respondent should run a defence of provocation but rather reduced further the culpability of the respondent's response to the goading.

   In other words, the swinging of the arm was not a justified response to the goading, the grabbing of the respondent's arm by Mr Lawrence was a justifiable response and the push in respect of that follows from the swing and cannot be separated and therefore it is not contended that there is a break in the causative effect of Mr Lawrence ultimately falling from [the respondent's] response which ultimately resulted in his death.

   Judgment of Conviction

   It is not contended that the submissions should impugn the integrity of the judgment of conviction.  (emphasis added)

6. There are at least two difficulties with counsel's explanation.

7. Firstly, the contention that Mr Lawrence had 'goaded' the respondent, or that he had asked the respondent for a physical confrontation, can only be sensibly interpreted as a submission that Mr Lawrence encouraged the respondent to engage in a consensual fight.  It was not suggested that Mr Lawrence was merely ironically mocking or scoffing at the respondent (though this seems the more obvious interpretation).

8. The central element of an offence contrary to s 281 of the Code is that the offender 'unlawfully assaults another'. The word 'assault' is relevantly defined in s 222 of the Code in the following terms:

   A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.  (emphasis added)

9. It can be seen, therefore, that the submission that Mr Lawrence 'goaded' the respondent, or that he had asked the respondent for a physical confrontation, is inconsistent with the admission inherent in the respondent's plea of guilty that he assaulted Mr Lawrence.

10. Secondly, counsel says that the respondent does not contend that he was acting in self‑defence.  However, it is difficult to understand the submission that the push that ultimately caused Mr Lawrence to fall to the ground 'can only be interpreted as a push to have Mr Lawrence release his grip on [the respondent's] forearm…[i]t was not intended to result in Mr Lawrence falling to the ground', as anything other than an assertion that the respondent was acting in self‑defence.

11. After receiving the above response from the respondent's counsel, the court again wrote to the parties:

    The Court notes that in your letter you state:

    (a)the respondent does not seek to impugn the integrity of the judgment of conviction in the State's appeal against sentence; and

    (b)the respondent does not contend that the assault was consented to by the victim, provoked by the victim or done in self‑defence.

    The Court proposes, on the basis of those statements, to disregard any submissions made on behalf of the respondent in his written and oral submissions and in correspondence since the hearing of the appeal that are inconsistent with those statements.

    Please inform the Court and the Director of Public Prosecutions (WA) in writing by 4 pm on 4 July 2024 whether (and, if so, on what basis) you object to the Court proceeding in the manner indicated in this letter.

12. Once again, in his reply to the court's correspondence, counsel confirmed that the respondent did not seek to impugn the integrity of his conviction.  However, counsel also said that he objected to the court's proposal that it disregard his submissions that Mr Lawrence 'goaded' the respondent, or that the respondent pushed Mr Lawrence to have him release his grip on the respondent's forearm.  Counsel said, somewhat enigmatically, that he would set out the basis on which he objected to the court's proposal the following day.

13. As foreshadowed, the respondent's counsel provided a further response to the court on 5 July 2024:

    In relation to the interaction between [the respondent] and Mr Lawrence, Her Honour accepted that [the respondent] was frustrated by Mr Lawrence's actions and that this frustration built up over the day. Her Honour accepts [the respondent's] decisions at the point of this incident, were made in that context.

    Her Honour nevertheless states that it does not excuse his conduct even to conduct a minor assault but it does place it in context as to the overall offending.

    The respondent's submission, is that the assault in all the circumstances was a minor assault with significant consequences, that is the death of Mr Lawrence.

    Her Honour states she was unable to make a finding about what the tap on the side of Mr Lawrence's face was about and unable to make a finding about what it might have done in respect of [the respondent's] reaction.

    In that respect, Her Honour['s] findings are neutral. However, Her Honour does accept that the tap by Mr Lawrence was in circumstances of remonstrating with [the respondent] in some way.

    Her Honour states it seems Mr Lawrence was either angry or frustrated as well.

    Her Honour leaves open whether it was a 'come on have a go or some other sort of gesture'.

    It is our position that it was a gesture to say 'come on have a go' and this has perhaps some affect [sic] in placing the matter in context.

    This distinction between Her Honour's assessment of the situation, in all the circumstances, is not likely to play out as a major factor.

    Her Honour's findings clearly, in our submission, show that the sentence was not manifestly inadequate.

    The tap on the chin we nevertheless say, is an expression or gesture where the compelling inference is one of goading where there is clearly anger or frustration shown between the parties leading up to the incident, and where Mr Lawrence turns around to face [the respondent] with his arms out and then taps his chin, which evokes an immediate reaction by [the respondent].

    It is not the respondent's position that the tap on the chin was a consent to the assault, the tap was not such to amount to provocation in law and did not leave open self‑defence. This is consistent with Her Honour's findings at page 71 of the Appeal Book, paragraphs 5 and 10.

    In relation to the push by [the respondent], Her Honour accepts that it was part of one transaction, Appeal Book page 71, paragraph 25 ‑ 40.

    As previously set out, it is open to the Court, on viewing the video that [the respondent's] push was in response [to] his forearm being held which the Respondent submits is evident from the video.  (emphasis added)

14. If, as the respondent's counsel suggested in his correspondence with the court, Mr Lawrence had made a gesture to the respondent that should be interpreted as an indication that the respondent should 'come on have a go', it is difficult to understand how that might place what then occurred 'in context', unless the 'context' is that it occurred during a consensual fight.  Further, counsel's submissions that the respondent's push was in response to his forearm being held does nothing to alleviate any concerns that the respondent may be seeking to go behind his plea of guilty.

15. In all of the circumstances, it is not possible to entertain the respondent's application to challenge the sentencing judge's findings.  That application, and the submissions in support of it, are inconsistent with the respondent's plea of guilty and they traverse a judgment of conviction that has not been appealed.  The application must be dismissed.

Victim impact statements

1. The sentencing judge was provided with two victim impact statements.  One of those statements was written by Mr Lawrence's brother, and the other was written by a woman who regarded Mr Lawrence as her brother.

2. Both of those victim impact statements are a testament to the entirely understandable sense of loss and devastation felt by people for whom Mr Lawrence was an integral part of their life.  Her Honour said that the effect of the respondent's offending behaviour had been profound.

Pre-sentence report

1. The writer of a pre‑sentence report suggested that the respondent blamed his offending on his substance use and on the victim, and that he appeared to be preoccupied with what might happen to him.

2. The writer of the report noted that the respondent was born in Perth.  He was removed from his biological parents when he was just two days old, and he was declared to be a ward of the State.  He was then placed with a foster family.  The respondent stayed with his foster parents for the duration of their lives.

3. The respondent met his biological mother when he was 12 years old and has maintained contact with her since that time.

4. The respondent has had only one significant relationship, which lasted for 18 years.  The respondent has a 35‑year‑old son from that relationship.

5. The respondent attended high school until year 10 and then had intermittent periods of employment as a gardener and car wash attendant.  However, he has not worked in over 10 years and has received Centrelink benefits during that time.

6. The respondent has limited supports in the community and has few interests other than gardening and looking after his pets.

7. The respondent is an alcoholic.  He has consumed alcohol daily since he was approximately 20 years old.  He told the report writer that he recognised that his alcohol consumption is excessive.  He said he wanted to abstain upon release from prison and expressed a willingness to engage in counselling.

Psychiatric report

1. The respondent impressed as being simplistic and unsophisticated in his thinking when he presented for an interview with a psychiatrist engaged to prepare a pre‑sentence report.  However, no formal thought disorder was detected.

2. According to the psychiatrist, the respondent only partially accepted responsibility for his behaviour, and his expressions of remorse appeared to be superficial and driven by the negative consequences to himself.  Further, he had minimal insight into the fact that alcohol disinhibited him and increased the risk he would offend in a violent manner.  The respondent had never attempted to engage with supports or meaningfully reduce his substance use.

3. The psychiatrist concluded that the respondent's behaviour was not significantly influenced by any diagnosable major mental illness.  However, the psychiatrist made the following observations:

   [The respondent] has been subject to longstanding experiences of victimisation and environments where violence was seen as a means to resolve conflict and normalised.  Additionally, [the respondent] was unable to form significant and stable attachments to any parental figures in his formative years.  Additionally, [the respondent] was raised in an environment where alcohol use and abuse was normative.  He also reported witnessing and being subject to significant abuse and violence from authority figures, namely police.

   The above experiences have resulted in the development of a poor sense of self, difficulty with emotional regulation, a distrust and dislike for authority, an impaired capacity to self‑soothe and discharge aggression.  As [the respondent's] emotional needs were not met in his formative years, he has therefore struggled to view other people as reliable, tending to see others as either sources of terror or for gratification or control.

   [The respondent] has therefore manifest vulnerable personality traits with both antisocial and narcissistic characteristics, however there was insufficient evidence to make a firm diagnosis of a personality disorder.  It is noted that [the respondent] has been able to sustain some relationships over time, he does not have a significant and entrenched history of violent offending, and he has shown empathy towards some others.  I did not elicit any evidence of a pre‑existing Conduct Disorder or Oppositional Defiant Disorder in childhood.

   In the context of limited ability to self‑soothe, [the respondent] has resorted to alcohol use as a means to manage mood and relieve distress.  [The respondent] has continued to consume alcohol despite significant harm or consequences.

   [The respondent] has been the victim of significant assaults.  In particular, 4 years ago, he was stabbed whilst in a public space, following which he developed post‑traumatic stress disorder‑related symptoms that significantly impacted his functioning for a period of 12 months.  Over time, the symptoms have attenuated, however, he continues to experience some level of hypervigilance and re‑experiencing phenomena that does not fulfil the full diagnostic criteria for PTSD.

4. In relation to the question of the respondent's risk of reoffending, the psychiatrist said that his chances of reoffending violently are reduced with abstinence from alcohol use, the presence of a supportive network, stable accommodation, and an enhanced capacity to cope with stress.

Psychological report

1. A psychological report was also prepared for sentencing.  In that report it was concluded that there were predisposing factors in the respondent's background that increased his risk of offending.  Those factors included his entrenched history of alcohol and substance abuse, his early life experiences, the fact that he felt as though he did not fit in or belong, his attitudes and beliefs around the use of violence and his acceptance of violence as a means to resolve conflict and solve problems.  Further, his history of being a victim of violence and his subsequent experience of post‑traumatic stress disorder symptoms, such as hypervigilance and threat sensitivity, likely also impacted his decision making at the time of the offence.

2. The psychologist said that there was a moderate risk that the respondent would reoffend.

The respondent's personal circumstances

1. The following is based on the sentencing judge's findings about the respondent's personal circumstances.

2. The respondent was almost 56 years old at the time of sentencing.  He was unemployed, single, and lived in public housing.  He had a son who was 35 years old but had limited contact with his grandchildren.

3. The respondent was the victim of a knife attack about four years before he was sentenced.  This made the respondent apprehensive when in public places.  The respondent had also normalised violence because of his childhood experiences, and he had difficulties regulating his emotions and an impaired ability to deal with aggression.  As a result, the respondent had used violence to solve his problems in the past.

4. The sentencing judge also accepted that the respondent had a complex psychological history, and that alcohol and violence were often the solution to his problems.  She noted that while he had been in custody, and had not been drinking alcohol, the respondent had not shown any violent tendencies.  On that basis she concluded that there was a link between the use of alcohol and his violent behaviour.  In that regard, her Honour said that it was 'probably inevitable' that the respondent would have resorted to physically resolving the situation.

5. The respondent had an extensive criminal record.  Her Honour found that most of the respondent's previous offending was not of a particularly serious nature.  However, there were convictions for assault and disorderly conduct, demonstrating that his behaviour in this matter was not out of character. 

6. The sentencing judge also appeared to accept that the respondent had limited insight and a lack of awareness about the factors that had led to him reoffending in the past, although his risk of reoffending would be reduced if he abstained from drinking alcohol.  Accordingly, her Honour concluded that she would give some weight to the need to deter the respondent from engaging in similar behaviour in the future.

Sentencing remarks

1. Given the nature of the ground of appeal it is unnecessary to refer to her Honour's sentencing remarks in any further detail.

2. We have already summarised the factual basis on which her Honour sentenced the respondent, as well as her findings about the respondent's personal circumstances.

3. The sentencing judge found that the respondent entered a plea of guilty 'at the earliest opportunity', which was of 'great utility to the State'. The sentencing judge discounted the sentence by 25%, in accordance with s 9AA of the Sentencing Act.  The State does not suggest that the sentencing judge did not conclude that the respondent pleaded guilty at the first reasonable opportunity.  

4. The sentencing judge was also prepared to find that the respondent had shown some remorse.  In that regard, her Honour took into account a letter of apology that the respondent had written, which included an apology to Mr Lawrence's family.

1. Her Honour accepted that she was required to give 'full weight' to the high value attached to human life.  However, she concluded that because the respondent did not foresee or intend Mr Lawrence's death:[23]

   … general deterrence is not relevant to the consequence, but it is still important.

   [23] ts 52.

2. No complaint is made about that approach.

3. In her Honour's view, the respondent's physical acts that caused Mr Lawrence's death were 'not at the very lowest end of such offending, but they are by no means serious.'[24]  However, she concluded that a sentence of imprisonment was the only appropriate sentence. 

   [24] ts 43.

4. The sentencing judge said that had the respondent been found guilty after trial, she would have sentenced him to 2 years and 10 months' imprisonment.  After applying a discount of 25% for his plea of guilty, and taking into consideration other mitigating factors, she imposed a sentence of 1 year and 10 months' immediate imprisonment.

5. That sentence was backdated to commence on 16 February 2023, and an order was made that the respondent be eligible for consideration for release on parole.  The effect of those orders was that the respondent became eligible to be considered for release on parole on 16 January 2024, some three months before he was sentenced.

Grounds of appeal

1. The appellant relies on two grounds of appeal, which are in the following terms:

   1. The sentencing judge erred in fact and law in reducing the head sentence by 25% pursuant [to] section 9AA of the Sentencing Act 1995 in circumstances where:

   1.1.a head sentence may only be reduced by 25% if the plea of guilty was entered or indicated at the first reasonable opportunity;

   1.2.her Honour found that the plea of guilty was entered at the first reasonable opportunity; and

   1.3.there was no reasonable basis upon which such a finding could have been made.

   2. The sentence of 1 year 10 months' imprisonment was so inadequate as to manifest error in the exercise of the sentencing discretion, having regard to:

   2.1.The maximum penalty of 20 years' imprisonment;

   2.2.The need for the sentence to properly reflect the sanctity of human life and the value properly placed on the loss of human life;

   2.3.The seriousness of the offence; and

   2.4.The personal circumstances of the offender.

Ground 1

1. By this ground the State asserts that it was not open to the sentencing judge to afford the respondent a discount of 25% on his sentence, in accordance with s 9AA of the Sentencing Act.

2. The effect of s 9AA(1) and (2) of the Sentencing Act is that if a person pleads guilty, the sentencing court may reduce the 'head sentence' for the offence.  The head sentence for this purpose is the sentence that a court would have imposed if the offender had been found guilty after a plea of not guilty and there were no mitigating factors.  Where the sentence is a fixed term of imprisonment (that is, not life imprisonment[25]) the maximum reduction allowed is 25%.[26]  However, a court does not have the power to reduce a sentence of imprisonment by the maximum of 25% unless the offender pleaded guilty, or indicated that they would plead guilty, at the 'first reasonable opportunity'.[27]

   [25] s 85(1) of the Sentencing Act.

   [26] s 9AA(4)(a) of the Sentencing Act.

   [27] s 9AA(4)(b) of the Sentencing Act.

3. The State submits that the sentencing judge erred in affording the respondent a discount of 25% because he did not plead guilty, or indicate that he would plead guilty, at the first reasonable opportunity.  In support of that submission the State primarily relies on the fact that the respondent did not plead guilty until his fourth appearance in the Magistrates Court. 

4. The respondent first appeared in the Magistrates Court on 17 February 2023, which was the day of his arrest.  He then appeared on two more occasions on 24 February and then on 17 March 2023, when an application for bail was heard and refused.  The respondent then appeared again on 26 May 2023, and entered a plea of guilty.

5. In our view, there is no merit in the State's contention. 

6. The meaning of the phrase 'first reasonable opportunity' has been considered by this court on several occasions.[28]  Relevantly, the first opportunity to plead guilty is not necessarily the first reasonable opportunity to plead guilty.  What is required is an objective and evaluative assessment of when it would have been reasonable for an offender to have pleaded guilty, having regard to all the circumstances of the specific case. 

   [28] Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 [64] ‑ [70] (McLure P; Mazza JA & Hall J agreeing); Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 [123] (Beech JA; Buss P & Pritchard JA agreeing).

7. Often, but not in every case, the first reasonable opportunity to plead guilty will be after the statutory requirements in s 35(4), (5), (6), (11) and (12) of the Criminal Procedure Act 2004 (WA), as applicable, have been satisfied.[29]  However, as we have already said, much will depend on the relevant circumstances.

   [29] Higgins [123].

8. The State does not suggest that the sentencing judge made any error of principle, or that she misconstrued s 9AA in some way.  The State also does not dispute that the sentencing judge found that the respondent entered a plea of guilty at the first reasonable opportunity, as required by s 9AA, which then empowered her to allow a discount of 25%.  Further, the State does not contend that the sentencing judge did not afford it procedural fairness in deciding to allow a discount of 25%, and does not suggest that her Honour's decision is infected by error because she failed to give adequate reasons.

9. The State also did not make any submissions that addressed whether there was any evidence before the sentencing judge that the procedural steps in s 39 of the Criminal Procedure Act had been complied with or, if those steps had been complied with, whether the respondent had failed to take the necessary steps to put himself in a position to plead.[30]

   [30] Rossi[69].

10. It was not suggested that counsel for the respondent had not contended at sentencing that the respondent had pleaded guilty at the first reasonable opportunity.  It is true that counsel did not say anything about the timing of the plea in either his written or his oral submissions at sentencing.  However, as Buss P has noted, the respondent's very experienced counsel did make brief submissions about that issue in an email that was sent to the sentencing judge's associate shortly before the sentencing proceedings took place. 

11. We agree that lawyers who appear before courts exercising criminal jurisdiction should know that a 25% discount is only available under s 9AA of the Sentencing Act if a plea of guilty has been entered at the first reasonable opportunity.  While counsel's email was not expressed in terms that precisely reflected the text of s 9AA, it must be inferred that he was seeking a 'full discount' of 25% on the basis that the plea had been entered at the first reasonable opportunity.  There is no reason to think that the prosecutor who appeared at sentencing, or the sentencing judge, thought otherwise.

12. The sole basis of the State's contention that it was not open to her Honour to find (on the balance of probabilities) that the respondent had entered a plea of guilty at the first reasonable opportunity is that he entered that plea on his fourth appearance in the Magistrates Court.  This conclusion is said to be supported only by the fact that the respondent was represented by counsel at all of his appearances in the Magistrates Court, and by pointing to the fact that the charge was not amended before the plea was entered. 

13. In order to succeed on this ground, it is incumbent on the State to establish that the sentencing judge made a material error in undertaking the objective and evaluative determination required by s 9AA.  A material error is not established by merely counting the number of occasions an offender appeared in court before entering a plea of guilty. 

14. The number of appearances made by an offender before pleading guilty is plainly a relevant consideration for the objective assessment that is required by s 9AA(4)(b). However, all the relevant circumstances must be considered in a context in which an offender bears the onus of persuading a sentencing court that a plea was entered at the first reasonable opportunity. To approach the issue on too narrow a basis would not meet the requirements of s 9AA and might encourage hasty or unreasonable pleas of guilty.

15. Understandably, the State does not suggest that the respondent's first appearance in the Magistrates Court was the first reasonable opportunity for him to plead guilty.  That appearance followed the respondent's arrest which had taken place earlier on the same day. 

16. The State has not persuaded us that the sentencing judge erred in concluding, as her Honour must have, that neither of the following two appearances amounted to the first reasonable opportunity to enter a plea of guilty. 

17. There is no evidence that the statutory requirements in s 35(4), (5), (6), (11) and (12) of the Criminal Procedure Act had been satisfied by the time of the respondent's second or even third appearance.  Further, beyond pointing to the number of appearances, the fact that the respondent was represented by counsel at those appearances in the Magistrates Court (when an application for bail was made and considered) and the fact that the charge was not amended on either occasion, the State has not articulated any reason for concluding that the sentencing judge was in error in determining, as she must have, that it would not have been reasonable to expect the respondent to have pleaded guilty when he made either of those earlier appearances. 

18. In our view, ground 1, which challenges a sentencing judge's objective and evaluative assessment, reached on the balance of probabilities, about whether the respondent entered a plea of guilty at the first reasonable opportunity, cannot succeed. 

Ground 2

Relevant principles

1. The principles to be applied when the State submits that a sentence is manifestly inadequate are well established.  In that regard, it is sufficient to refer to what was recently said about those principles in The State of Western Australia v Pereira:[31]

   The principles to be applied in the context of grounds of appeal in which the State asserts that error should be inferred from a resulting sentence are well established.  Those principles, which need not be repeated, were comprehensively summarised in The State of Western Australia v Hussian [[2020] WASCA 186 [88] ‑ [97]; [132] ‑ [134]] … It is sufficient to once again observe that in determining whether an individual sentence is manifestly inadequate, the court is required to examine it in light of the prescribed maximum penalty, the standards of sentencing customarily observed in relation to the relevant offence, the place that the offending occupies on the scale of seriousness for offences of the type in question, and the offenders' personal circumstances.

   …

   It must always be borne in mind that the issue for an appellate court is not whether it would have exercised the primary sentencing discretion differently.  The critical question is whether a sentence, or a total effective sentence, is unreasonable or plainly unjust.  Further, in the context of a State appeal against sentence, as a majority in the High Court in Green v The Queen [[2011] HCA 49; (2011) 244 CLR 462 [1]] explained, the main purpose of prosecution appeals against sentence is to lay down principles for the governance and guidance of courts in sentencing convicted persons. (footnotes omitted)

   [31] The State of Western Australia v Pereira [2023] WASCA 162 [42] ‑ [43].

2. This court has only considered appeals against sentences imposed for offences contrary to s 281 of the Code on three occasions:[32] The State of Western Australia v JWRL,[33] The State of Western Australia v Smith[34] and Lee v The State of Western Australia.[35]  Accordingly, the standards of sentencing for that offence are not yet fully developed.

   [32] This court considered sentences for offences contrary to s 281 of the Code in TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297, but only for the purpose of imposing sentences for those offences after successful appeals against convictions for manslaughter in which judgments of conviction for offences of assault causing death were substituted.

   [33] The State of Western Australia v JWRL(a child) [2010] WASCA 179.

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

   [35] Lee v The State of Western Australia [2022] WASCA 137.

3. It is clear that general deterrence is an important sentencing consideration for offences contrary to s 281 of the Code. There is a well‑recognised need to deter potential offenders and to adequately protect the community from acts of violence because offences against the person are widespread in the community. It is also an unfortunate fact that a great number of those types of offences are caused by or involve people who are intoxicated.

4. In JWRL, Martin CJ made the following observations:[36]

   It is reasonable to infer from the elements of the offence that it was created by the Parliament in response to rising concerns in respect of levels of violence in the community, and the consequences of violence, whether foreseen or unforeseen.  Violence always carries with it the risk of serious unforeseen consequences, as this case tragically demonstrates.

   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. (citations omitted)

   [36] JWRL [139] ‑ [140] (Martin CJ; Buss JA & McLure P agreeing).

5. Because all human life is valuable, it will always be necessary to give weight to the high value attached to human life, and to the adverse effect that a loss of life will have on others. However, it is also important to appreciate that a wide range of conduct and circumstances can constitute an offence contrary to s 281. Accordingly, the nature of the act that caused the death, as well as the background and circumstances in which that act was performed, will generally be significant factors that will guide a proper assessment of the seriousness of a particular offence.

The parties' submissions

1. The appellant's submissions focus on a comparison between the seriousness of the respondent's offending behaviour, on the one hand, and the seriousness of the conduct in Smith and Lee on the other.  Smith and Lee are the only two decisions of this court that have considered sentences imposed for an offence contrary to s 281 of the Code after the maximum penalty for that offence was increased from 10 years' imprisonment to 20 years' imprisonment in 2017.

2. In essence, the State submits that although the assault committed by the respondent was less serious than the assaults in Smith and Lee, the sentences imposed in those cases support the conclusion that the sentence imposed on the respondent was not commensurate with the seriousness of the offence and is unreasonable and plainly unjust.

3. The respondent, on the other hand, submits that the sentence imposed was not manifestly inadequate.  He argues that, unlike in the cases relied on by the State, the respondent did not intend to harm Mr Lawrence.  Further, he draws attention to the fact that in Lee the victim was the offender's aunt, and to the fact that in both Smith and Lee, the offenders used 'coward punches' by punching their respective victims to the head without giving any warning.

The merits of ground 2

1. The maximum penalty of an offence contrary to s 281 of the Code is 20 years' imprisonment. This is a significant maximum penalty. It reflects the serious view that Parliament has taken of offences where a risk of death materialises from the use of violence where death was neither intended nor foreseen, and it could not reasonably have been foreseen.

2. The sentencing judge found that the respondent's assault on Mr Lawrence comprised a combination of two physical acts.  Firstly, the respondent brought his right arm around his body, towards Mr Lawrence.  Although her Honour did not find that the respondent made contact with Mr Lawrence, she found that the respondent's act at least constituted a threatened assault.  She also found that it caused Mr Lawrence to raise his arm to defend himself.  Secondly, her Honour found that the respondent then pushed Mr Lawrence away, and it was this action that directly caused him to fall and hit his head on the ground.  Her Honour found that it was unlikely that Mr Lawrence had hold of the respondent just before the respondent was pushed to the ground.

3. We have had the opportunity of viewing the CCTV footage of the incident.  When assessed objectively, while the acts comprising the respondent's assault on Mr Lawrence took place over a very short period, and his conduct clearly did not fall towards the upper end of the scale of seriousness, it could also not be said that it fell right at the lower end of that scale. 

4. Mr Lawrence was facing the respondent at all relevant times, and there is no reason to think that Mr Lawrence was taken unawares when the respondent brought his right arm across his body or when he was pushed.  However, the CCTV footage makes it clear that the respondent did not just push Mr Lawrence away, as the respondent said to Mr Lawrence's partner when she arrived at the scene. 

5. Based on the sentencing judge's findings, and on our own viewing of the CCTV, the respondent deliberately swung his arm at Mr Lawrence in what was quite clearly an attempt to strike him.  The respondent then took a big step towards Mr Lawrence before he forcefully pushed Mr Lawrence away, causing him to fall straight back to the ground from a standing position, and to hit his head on the pavement.  

6. In assessing the seriousness of the offence, the circumstances in which the offence was committed must also be taken into account.  There was a history of animosity between the respondent and Mr Lawrence.  They had been arguing with each other for some time before the assault.  They were also both intoxicated.  The respondent, who was grieving a death in his family, was annoyed and frustrated because Mr Lawrence would not leave him alone. 

7. The actual assault took place over a very short period, and on the spur of the moment.  However, in the minutes leading up to the incident that resulted in Mr Lawrence being pushed to the ground, the respondent had, but did not take, several opportunities to diffuse the situation by simply walking away. 

8. There was a degree of vulnerability about Mr Lawrence.  He was drunk, and generally unstable.  This meant that he was susceptible to losing his balance and experiencing an unprotected fall. 

9. The respondent knew that Mr Lawrence was drunk. He must also have known that Mr Lawrence was unstable on his feet, as this is readily apparent from the CCTV footage. This is not to say that Mr Lawrence's death was a reasonably foreseeable event. At the hearing of the appeal, senior counsel for the State accepted that it was not. However, the respondent ought to have at least appreciated that there was a risk that Mr Lawrence might suffer a non‑life‑threatening injury. In any event, the offence committed by the respondent is the very type of offence with which s 281 of the Code is concerned. In sentencing for an offence created by s 281, full weight must be given to the high value attached to human life by punishing the use of violence that results in death, whether foreseen, unforeseen, or even if death could not reasonably have been foreseen.

1. We have already referred to the two victim impact statements that were before the sentencing judge.  Understandably, the death of Mr Lawrence had a profound effect on members of his family and his friends.

2. The sentencing judge concluded that the respondent's failure to render assistance to Mr Lawrence as he lay on the ground was an aggravating factor, albeit 'in a small way'.[37]  In mitigation, she took into account the respondent's deprived background, which has caused the respondent to normalise violence and to have difficulty with emotional regulation.  Having regard to the contents of the respondent's letter and the pre‑sentence reports, including the psychological and psychiatric reports, the sentencing judge generously accepted that the respondent was, to some degree, remorseful. 

   [37] ts 45.

3. Apart from those matters, the only mitigating factor of any significance was the respondent's plea of guilty. As we have already said, the sentencing judge discounted the sentence she would otherwise have imposed in accordance with s 9AA of the Sentencing Act by the maximum discount of 25%.

4. The cases referred to by the State are of limited assistance in determining the standards of sentences customarily imposed for offences contrary to s 281. In any event, because an offence contrary to s 281 is likely to be committed in a wide range of circumstances, and by people possessing highly variable personal circumstances, previous cases are only ever likely to be of limited assistance.

5. As has been said on many occasions, comparable cases are only a guide, and the fact that a particular sentence is outside the range of sentences imposed in other cases for similar offending does not necessarily establish error.  This court is concerned with ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.  When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

6. As we have already observed, there have only been two cases in which sentences for offences contrary to s 281 of the Code have been considered by this court since the maximum penalty was increased to 20 years' imprisonment. However, the absence of comparable cases does not preclude this court from deciding that a particular sentence is manifestly inadequate.[38]

   [38] McAlpine v The State of Western Australia [2018] WASCA 195 [54].

7. The offender in Smith was just over 18 years old when he committed an offence contrary to s 281. He was initially sentenced to 2 years' immediate imprisonment. However, after a successful State appeal, he was resentenced to 4 years and 9 months' immediate imprisonment. A discount of 20% was allowed under s 9AA of the Sentencing Act because the offender pleaded guilty at an early stage.

8. In Smith, the deceased and the offender were at a house party.  The offender, who was intoxicated, became involved in a verbal altercation with the deceased's sister, and the deceased challenged the offender to a fight.  Reluctantly, the offender went outside to fight the deceased.  While they were fighting on the road in front of the house, a police car approached with its emergency lights activated.  As the deceased walked over to the police car, the offender unexpectedly punched the deceased to the head with his clenched right fist.  The deceased fell to the ground, hit his head on the bitumen, and later died from his head injury.  The offender verbally abused the police officers and then fled the scene.

9. The court in Smith said that while the offence was not in the most serious category, the respondent brazenly inflicted a heavy blow to the head of an unsuspecting victim who was walking towards the onlooking police officers.[39]  The court concluded that a sentence of 2 years' immediate imprisonment failed to properly reflect the high value of human life, or to have an appropriate deterrent effect.

   [39] Smith [25].

10. While there are some similarities between that case and the respondent's case, the offending conduct in Smith was objectively more serious when compared to the respondent's behaviour.  The respondent did not punch Mr Lawrence, and the degree of force used in Smith seems to have exceeded the force used by the respondent.  Further, it could not be said that Mr Lawrence was 'unsuspecting' as the deceased was in Smith.

11. However, as the court said in Smith, there were 'substantial' mitigating factors in the offender's favour, such as youth, good antecedents, an early plea of guilty, remorse and insight into the offending, and good prospects of rehabilitation.  Apart from his early plea of guilty, the same could not be said for the respondent.

12. In Lee the offender pleaded guilty and was sentenced to 5 years' immediate imprisonment.  That sentence had been discounted by 25% for a plea entered at the first reasonable opportunity.  Leave to appeal against that sentence on the basis that it was manifestly excessive was refused.

13. The offender in Lee was 25 years old at the time of the offence.  He was taller and stronger than the deceased, who was his 44‑year‑old aunt.  They had both been drinking in the lead up to the offending, and the deceased was vulnerable as a result.  The deceased said something that upset the offender.  The offender became angry and hit the deceased once to the left side of her head with his fist.  The deceased fell to the ground and hit her head on the concrete driveway, causing a fatal injury.  The offender checked on his aunt but then left the scene.

14. The offending in Lee was also objectively more serious than the offence committed by the respondent.  Further, considered overall, it was also more serious than the offending in Smith.  As in Smith, the deceased was also punched without any warning.  However, the deceased in Lee had made no threats of violence, nor did she engage in any physical altercation with the offender.  The offender assaulted her to punish her for a perceived slight.  The deceased was older and smaller than the offender, they were in a family relationship, and she posed no threat to him.  The offence was also aggravated because the offender was on bail at the time for other violent offending.

15. As we have already noted, the offender in Lee pleaded guilty at the first reasonable opportunity and received a discount of 25%.  Further, his disadvantaged background was a circumstance of mitigation.

16. The decisions of Smith and Lee do not fix any limits on the range of sentences that might properly have been imposed on the respondent in this case.  They are, however, relevant as yardsticks against which the sentence imposed on the respondent may be measured.  On that limited basis, they do tend to support a conclusion that a sentence of 1 year and 10 months' imprisonment was manifestly inadequate.

17. The sentence imposed on the respondent had to give effect to the need to deter others from resorting to violence.  Although Mr Lawrence's death was not intended, foreseen, or reasonably foreseeable, violence always carries with it the risk of serious unforeseen consequences.  Unfortunately, violent behaviour and intoxication tend to travel together.  There is legitimate disquiet about the effect that alcohol fuelled violence can have on individuals and on their right to feel safe.    

18. Given the respondent's history, and his lack of insight, there was a need for the sentence to give effect to personal deterrence.  Further, and importantly, full weight was required to be given to the fact that a human life was lost as a direct consequence of the respondent's actions.

19. Ultimately, after taking into account all of the circumstances of this case, and the relevant sentencing factors, we are of the view that the sentence of 1 year and 10 months' imprisonment was unreasonable or plainly unjust. 

20. Having regard to the maximum penalty of 20 years' imprisonment, the circumstances of the commission of the offence as discussed above, the respondent's plea of guilty at the first reasonable opportunity and the other mitigating factors identified by the sentencing judge, as well as the respondent's personal circumstances, it must be inferred that the sentencing judge made a material error in the exercise of her sentencing discretion.  A significantly higher sentence should have been imposed.

Residual discretion

1. The respondent's counsel did not submit that if this court were to conclude that either of the grounds of appeal were made out that the court should exercise its residual discretion to dismiss the appeal.  While the respondent does not bear any onus in establishing that the residual discretion should be exercised in his favour,[40] there is nothing in the circumstances of this case to warrant the exercise of that discretion.

   [40] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [54] ‑ [67] (Kiefel, Bell & Keane JJ).

Resentencing

1. The respondent's counsel was asked at the hearing of the appeal whether there was any information he wished to put before the court if the State's appeal was allowed and it became necessary to resentence the respondent.  Counsel advised that there was nothing further as to facts and circumstances affecting the respondent that have occurred since the original sentencing upon which he wished to rely.

2. We have the necessary information to resentence the respondent.

3. Having regard to the maximum penalty, the circumstances of the commission of the offence committed by the respondent, the aggravating and mitigating circumstances identified by the sentencing judge, the relevant sentencing principles, and allowing the same 25% discount for the respondent's plea of guilty at the first reasonable opportunity (in accordance with s 9AA of the Sentencing Act), we are of the view that the respondent should be resentenced to a term of 3 years and 6 months' immediate imprisonment.

4. That sentence properly reflects the relative seriousness of what the respondent actually did, namely, threatening to apply force to Mr Lawrence and then pushing him to the ground. However, it also gives appropriate weight to the fact that a human being lost his life, and to the need to deter alcohol fuelled violence. 

5. Of course, the sentence we would impose cannot be regarded as a measure of the value of Mr Lawrence's life.

Orders

1.The respondent's application filed 28 June 2024 is dismissed.

2.Ground 1 is dismissed.

3.The appeal is allowed.

4.The sentence imposed by the District Court for the offence charged in IND 1716 of 2023 is set aside.

5.The respondent is resentenced to 3 years and 6 months' immediate imprisonment.

6.The sentence is backdated to commence on 16 February 2023.

7.The respondent is eligible for parole.

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

RH

Associate to the Honourable Justice Vandongen

8 AUGUST 2024