The State of Western Australia v Dimer - [2022] WASCA 148

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DIMER [2022] WASCA 148
CORAM:   QUINLAN CJ
BUSS P
MAZZA JA

HEARD:   3 FEBRUARY 2022
DELIVERED          :   11 NOVEMBER 2022
FILE NO/S:   CACR 49 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant
AND
JAYLEN DENNY DIMER
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   HALL J
File Number            :   INS 2 of 2021

Catchwords:

Criminal law - State appeal against sentence - Respondent convicted on his plea of guilty of one count of manslaughter - Sentence of 7 years 6 months' imprisonment - Manifest inadequacy

Legislation:

Criminal Code (WA), s 280

Result:

Leave to appeal granted
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	Ms A L Forrester SC
Respondent	:	Ms J Condon KC & Mr W C Yoo

Solicitors:

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

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

Al Jrood v The State of Western Australia [2016] WASCA 73
Beard v The State of Western Australia [2015] WASCA 74
Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176
Byrne v The State of Western Australia [2022] WASCA 64
CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Colledge v The State of Western Australia [2007] WASCA 211
Francis v The State of Western Australia [2019] WASCA 43
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hutton v The State of Western Australia [2022] WASCA 133
Impicciatore v The State of Western Australia [2020] WASCA 33
LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Paulose v The State of Western Australia [2019] WASCA 182; (2019) 90 MVR 386
Pomana v The State of Western Australia [2020] WASCA 204
R v Churchill [2000] WASCA 230
Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81
TDO v The State of Western Australia [2018] WASCA 135
The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397
The State of Western Australia v Camus [2014] WASCA 74
The State of Western Australia v Walley [2008] WASCA 12
The State of Western Australia v Zhuang [2021] WASCA 56
Wicks v The Queen (1989) 3 WAR 372

JUDGMENT OF THE COURT:

This is a State appeal against sentence.
On 28 April 2021, the respondent was convicted, on his plea of guilty, of one count in an indictment which alleged that on 5 July 2020, at Northbridge, the respondent unlawfully killed Giuseppe Raco, contrary to s 280 of the Criminal Code (WA).
The maximum penalty for manslaughter is life imprisonment.
On 28 April 2021, Hall J sentenced the respondent to 7 years 6 months' imprisonment. The sentence was backdated to 5 July 2020 to take account of time the respondent had spent in custody in respect of the offence. A parole eligibility order was made.
The State's sole ground of appeal alleges that the sentence of 7 years 6 months' imprisonment was manifestly inadequate.
We would grant leave to appeal. However, the ground has not been made out. The appeal must be dismissed.

The facts and circumstances of the offending

The facts and circumstances of the offending were not in dispute either before the sentencing judge or this court. Those facts and circumstances, as recounted by his Honour, are as follows.
At about 4.30 am on 5 July 2020 the respondent and his nephew were in Northbridge. The respondent had been drinking alcohol for a significant part of the previous day and night, including at a club in Northbridge. After leaving the club, the respondent and his nephew approached a group of men who were standing outside a kebab shop in James Street.
The group of men comprised Mr Raco, his cousin and a friend. Mr Raco and his cousin were standing outside the shop eating kebabs and talking. There were other customers of the shop in the vicinity.
The respondent's nephew approached the group. A verbal altercation occurred between the respondent's nephew and Mr Raco's friend. The nephew threw a punch, apparently aimed at the friend, which did not make contact. The nephew then endeavoured to engage in a fight with the friend.
Mr Raco did not participate in any violence. While Mr Raco was facing towards the scuffle involving the respondent's nephew, the respondent approached Mr Raco from behind and punched him to the back of his head. This attack involved a single blow with a clenched fist. After punching Mr Raco, the respondent walked away.
Mr Raco put his hand to his head. He walked about 20 metres and sat down near a wall. Shortly afterwards Mr Raco lost consciousness and stopped breathing. Employees of the club where Mr Raco worked and members of the public rendered medical assistance. Shortly afterwards police arrived and also gave assistance. An ambulance was called and Mr Raco was taken to Royal Perth Hospital.
Later on 5 July 2020 police arrested the respondent at his home in Girrawheen. The respondent cooperated with the police. He told them that the clothes he was wearing were those he had on at the time of the incident. During the evening of 5 July 2020 the respondent participated in an electronically recorded interview with police. He answered questions put to him. The respondent said he could not recall much from the previous night. However, he did not dispute that he was at the scene of the incident and identified himself on CCTV footage.
Mr Raco was treated at Royal Perth Hospital. He remained unconscious and was intubated in the intensive care unit. Mr Raco had an isolated internal head injury with no visible external injuries. He did not respond to treatment. Medical practitioners declared him to be brain dead at 5.30 pm on 5 July 2020. The life support system was disconnected the following day.
A post-mortem examination showed that Mr Raco's only significant injury was an acquired brain injury. There was swelling and bleeding around his brain and a laceration to the right vertebral artery. The immediate cause of Mr Raco's death was bronchopneumonia as a complication of the head injury.

The respondent's personal circumstances and antecedents

The respondent's personal circumstances and antecedents were outlined by the sentencing judge in his sentencing remarks.
The respondent was aged 26 at the time of the offending and when sentenced.
The respondent has seven siblings. His childhood was marred by frequent violence and substance abuse. The respondent's father was killed when the respondent was aged 11. The respondent's mother struggled to cope and the respondent and his siblings were often left to fend for themselves. In 2013 an older brother of the respondent committed suicide.
When the respondent was at school he engaged in truancy, fighting and abuse of alcohol. He failed to finish year 11 because he was sentenced to a term of detention. Upon release, he endeavoured unsuccessfully to complete year 12.
The respondent has a limited employment history. He has completed some work-related training. The respondent had completed two weeks as a fly‑in/fly‑out worker at Pannawonica before the offending.
The respondent's most recent relationship with a woman lasted for about 18 months and produced a daughter. That relationship broke down shortly before the respondent committed the offence.
The respondent has a long history of alcohol abuse. He began drinking alcohol at the age of 14 or 15 and by the age of 16 he was binge drinking for the purpose of becoming intoxicated. Alcohol has been a causative factor in his offending history.
His Honour found that the respondent had a lack of insight into the negative influence that alcohol has had upon him. That was an important risk factor in relation to possible future offending.
The sentencing judge noted that the respondent has a significant criminal record. His Honour said the record showed that there was a connection between the respondent's consumption of alcohol and his offending and that the respondent had a tendency to engage in violence. The respondent's previous convictions as an adult include aggravated armed robbery, aggravated burglary and commit offence in dwelling (multiple offences), criminal damage or destruction of property and obstructing police officers (multiple offences).
The information before his Honour included a psychiatric report dated 8 December 2020 from Dr Mark Hall, a consultant forensic psychiatrist, and a pre‑sentence report dated 8 December 2020. Dr Hall's report indicated that the respondent has a substance abuse disorder, but this disorder is not driven by any underlying mental condition. The respondent is dependent upon alcohol and has poor insight into its adverse effects. He has some antisocial traits, including a disregard for others, a tendency towards aggression and a lack of consequential thinking. The respondent does not, however, suffer from any serious or medically treatable mental illness. Dr Hall was of the view that the respondent's risk of future violent behaviour is high unless, in essence, the respondent stops using alcohol and addresses his antisocial behaviour, his tendency towards aggression and his lack of consequential thinking. The respondent needs to develop coping strategies and a more positive lifestyle, including the obtaining of employment.
The sentencing judge recorded that the respondent's plea of guilty to manslaughter was a significant mitigating factor. The plea was entered at the earliest reasonable opportunity. His Honour allowed a discount of 25% for the plea pursuant to s 9AA of the Sentencing Act 1995 (WA). His Honour noted that he had received a letter from the respondent expressing deep regret and remorse for his criminal conduct.
His Honour noted that Mr Raco was aged 40 when he was killed by the respondent. Mr Raco was married with a young child. His wife was pregnant. The impact of Mr Raco's death on his wife and other members of his family has been profound and devastating.
The sentencing judge referred to the maximum penalty for manslaughter and to the importance, in the present case, of personal and general deterrence and community protection from alcohol‑fuelled violence.
His Honour summarised the factors that were relevant in sentencing the respondent as follows [44]:
1.This was not a planned or [premeditated] killing, it occurred impulsively and without any thought for the possible consequences;
2.The killing involved a single blow, it was not a sustained assault;
3.There was no provocation, the deceased had no meaningful interaction with you before he was struck;
4.No weapon was used. Unlike those cases where a knife or other clearly dangerous weapon was used, your offence involved your closed fist;
5.You struck the deceased from behind in circumstances where he had no opportunity to defend himself and in what was a cowardly attack on an unsuspecting victim;
6.You did not stay or render any assistance, though it is unlikely that you would have been aware of the seriousness of the injury at the time and the hostile crowd may have made any thought of staying unrealistic;
7.At the time of the killing you were affected by alcohol. The voluntary use of alcohol is not a mitigating factor because it was your choice and you bear the consequences. However, this was not a clear‑eyed sober decision on your part and it needs to be seen in that light;
8.You cooperated with the police and made admissions to your involvement at an early stage; and
9.You have pleaded guilty at an early stage and, thereby, accepted responsibility for your actions.
The sentencing judge then proceeded to impose the sentence of 7 years 6 months' imprisonment.

The State's submissions

Counsel for the State submitted that the sentence imposed by the sentencing judge was unreasonable or plainly unjust having regard to:
(a)the maximum penalty;
(b)the increase in the maximum penalty for manslaughter from 20 years' imprisonment to life imprisonment;
(c)the protection and vindication of the sanctity of human life as the paramount sentencing consideration;
(d)the serious nature of the respondent's offending and the circumstances in which the offence was committed, namely an unprovoked, alcohol‑fuelled assault in a public place upon a vulnerable person who was a stranger to the respondent;
(e)the respondent's personal circumstances; and
(f)the need for the sentence imposed on the respondent adequately to reflect the sentencing factors of punishment and personal and general deterrence.
Counsel contended that the State's case on appeal that the sentence imposed on the respondent was manifestly inadequate included, in part, emphasis being given to personal and general deterrence. The respondent's offending involved random and gratuitous alcohol‑fuelled violence in a public place.
Counsel also argued, more broadly, that:
(a)since the maximum penalty for manslaughter was increased to life imprisonment, sentences for manslaughter involving intentional violence have not 'fully reflected that increase and the intention of Parliament that they do so' (appeal ts 8);
(b)sentences for manslaughter should be 'firmed up … based on the increase in the maximum penalty' (appeal ts 14); and
(c)the attention that has been given to the increase in the maximum penalty has not resulted in 'the firming up of sentences that would be expected in the time that has passed since [the increase]' (appeal ts 15).

The respondent's submissions

Counsel for the respondent submitted that:
(a)the respondent's offending was not the most serious example of its kind;
(b)the respondent's offending was impulsive and not planned; and
(c)the respondent inflicted a single blow and did not use a weapon.
Counsel also referred to the following facts and circumstances:
(a)the respondent cooperated with police;
(b)the respondent pleaded guilty at the first reasonable opportunity and his plea was recognised by a 25% discount pursuant to s 9AA of the Sentencing Act;
(c)the respondent was remorseful and accepted that his actions had been cowardly;
(d)the respondent had a dysfunctional childhood characterised by frequent violence and substance abuse and often having to fend for himself; and
(e)the respondent's father was killed when the respondent was aged 11 and the respondent's brother committed suicide in 2013.
Counsel argued that the sentence imposed on the respondent, and other sentences imposed by this court for manslaughter following successful appeals, properly reflect the increase in the maximum penalty from 20 years' imprisonment to life imprisonment. The sentence imposed on the respondent was not unreasonable or plainly unjust.

The merits of the appeal

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;[1] CMB v Attorney‑General (NSW).[2]
[1] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1] (French CJ, Crennan & Kiefel JJ).
[2] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [55] (Kiefel, Bell & Keane JJ).
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 2004 (WA) not to interfere should be exercised.
A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.
A sentencing judge is obliged to sentence an offender in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.
By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. Section 9AA regulates the extent to which the court may reduce, on account of an offender's plea of guilty to a charge for an offence, the sentence that the court would have imposed for the offence if the offender had been found guilty after a plea of not guilty and there were no mitigating factors. Section 9AA does not prevent the court from reducing the 'head sentence' (as defined in s 9AA(1)) for an offence because of any mitigating factor other than a plea of guilty (s 9AA(6)).
Since the commencement of the Manslaughter Legislation Amendment Act 2011 (WA) on 17 March 2012, the maximum penalty for manslaughter has been life imprisonment. Previously, the maximum penalty was 20 years' imprisonment.
There is no sentencing tariff for manslaughter because of the great variation that is possible in the circumstances of the offending and the personal circumstances of the offenders. For example, manslaughter may involve an intentional act, without the intent for murder, which kills the victim; an intentional act, with the intent for murder, which kills the victim but involves excessive self‑defence; and an intentional act involving criminal negligence which kills the victim. Each case must be decided on its own facts. See Wicks v The Queen;[3] Colledge v The State of Western Australia;[4] The State of Western Australia v Walley.[5]
[3] Wicks v The Queen (1989) 3 WAR 372, 379 ‑ 380 (Malcolm CJ).
[4] Colledge v The State of Western Australia [2007] WASCA 211 [17] (Wheeler JA, Owen & Miller JJA agreeing).
[5] The State of Western Australia v Walley [2008] WASCA 12 [32] (Wheeler & Miller JJA).
The great variation in these circumstances explains the difficulty in discerning sentencing patterns for manslaughter. As Wheeler JA (Owen & Miller JJA agreeing) noted in Colledge [18]:
A person convicted of manslaughter may have had an intent to kill or do grievous bodily harm, but have formed it in circumstances where there was provocation; or may be acting in self-defence, although excessively; may have been so affected by substances of one kind or another as to be incapable of forming any clear intention; may suffer from a mental illness falling short of insanity; or may have been culpably negligent in the management of either a motor vehicle or some other thing. That list is by no means exhaustive, but one can see why there is much variation in sentencing. The University of Western Australia Crime Research Centre Report (UWA Crime Research Centre, Crime and Justice Statistics for Western Australia (2004) table X, p 73) demonstrates that, between 1996 and 2004, there was considerable variation in the median sentence for manslaughter; in 1998, it was as low as 4 years, while, in 1997, it was 8 years.

So, manslaughter is, of its nature, an offence where the facts and circumstances of each case will usually differ significantly. See Walley [32]. Wheeler and Miller JJA pointed out in Walley [32] that comparisons with sentences imposed at trial, and even in the case of R v Churchill[6] (after appeal), are seldom helpful in manslaughter cases.
[6] R v Churchill [2000] WASCA 230.
Sentences for manslaughter should, however, reflect the value which Parliament has placed on human life. See Taylor v The State of Western Australia;[7] Walley [32].
[7] Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81 [54] (Miller JA; Owen & Wheeler JJA agreeing).
As we have mentioned, the maximum penalty for the offence of manslaughter committed by the respondent in the present case is life imprisonment. The effect of the increase in the maximum penalty from 20 years' imprisonment to life imprisonment was examined in The State of Western Australia v Auckram.[8] If Parliament, by a legislative amendment, increases the maximum penalty for an offence, Parliament's new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes. An increase in the maximum penalty for an offence is an indication that sentences for the offence should be increased. See Muldrock v The Queen.[9]
[8] The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397 [120] - [127] (Buss JA).
[9] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).
This court had decided numerous appeals against sentence for manslaughter since the maximum penalty was increased to life imprisonment. See Auckram; Beard v The State of Western Australia;[10] Marshall v The State of Western Australia;[11] Al Jrood v The State of Western Australia;[12] LCM v The State of Western Australia;[13] Liyanage v The State of Western Australia;[14] Brewerton v The State of Western Australia;[15] TDO v The State of Western Australia;[16] Francis v The State of Western Australia;[17] Paulose v The State of Western Australia[18]; Pomana v The State of Western Australia;[19] Byrne v The State of Western Australia;[20] Hutton v The State of Western Australia.[21] The appeal by the State in Auckram was allowed. The appeals by the offenders in Al Jrood, LCM and TDO were allowed. The other appeals were dismissed.
[10] Beard v The State of Western Australia [2015] WASCA 74.
[11] Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99.
[12] AlJrood v The State of Western Australia [2016] WASCA 73.
[13] LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1.
[14] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359.
[15] Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176.
[16] TDO v The State of Western Australia [2018] WASCA 135.
[17] Francis v The State of Western Australia [2019] WASCA 43.
[18] Paulose v The State of Western Australia [2019] WASCA 182; (2019) 90 MVR 386.
[19] Pomana v The State of Western Australia [2020] WASCA 204.
[20] Byrne v The State of Western Australia [2022] WASCA 64.
[21] Hutton v The State of Western Australia [2022] WASCA 133.
In TheState of Western Australia v Camus,[22] a majority of this court allowed the State's appeal against a sentence for manslaughter. The maximum penalty applicable in that case was 20 years' imprisonment. In his reasons Buss JA noted (Mazza JA agreeing) that sentences for manslaughter (when the maximum penalty was 20 years' imprisonment) had, in general, tended to increase in recent years [87].
[22] TheState of Western Australia v Camus [2014] WASCA 74.
Intermediate appellate courts have regard to comparable cases to ensure consistency in the application of relevant legal principles and to ensure broad consistency in outcome. In the case of offences against the law of Western Australia, this is done through the work of this court and its predecessor, the Court of Criminal Appeal, and not by reference to sentences passed at first instance. See Hili v The Queen;[23] Impicciatore v The State of Western Australia;[24] Pomana [67]; The State of Western Australia v Zhuang.[25]
[23] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [56] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
[24] Impicciatore v The State of Western Australia [2020] WASCA 33 [279] (Buss P & Mazza JA).
[25] The State of Western Australia v Zhuang [2021] WASCA 56 [111] (Buss P, Mazza & Vaughan JJA).
Sentencing patterns for a particular offence emerge over time as a result of the experience of courts of first instance in sentencing offenders who have committed the offence with varying degrees of culpability and as a result of this court reviewing individual sentences through the mechanism of an offender appeal or a State appeal.
It is significant that since the maximum penalty for manslaughter was increased to life imprisonment, with effect from 17 March 2012, this is only the third appeal against sentence that has been brought by the State. As we have mentioned, the appeal by the State in Auckram was allowed. The appeals by the offender and the State in Francis were dismissed.
The standards of sentencing customarily observed with respect to manslaughter since the maximum penalty was increased to life imprisonment are discernible from the decisions of this court which we have collected at [48] above. In the present case, counsel for the State acknowledged that the sentence imposed by the sentencing judge appears to fall within the sentencing pattern revealed by those cases. Counsel for the State did not assert that his Honour had departed from that sentencing pattern.
If, during the period of about 10 years since the maximum penalty for manslaughter was increased to life imprisonment, the State was of the view that the standards of sentencing customarily observed with respect to manslaughter did not appropriately reflect the increase in the maximum penalty, the State could have challenged, on the ground of manifest inadequacy, individual sentences imposed at first instance. However, as we have mentioned, since the increase in the maximum penalty to life imprisonment the State has only appealed to this court against sentence on two previous occasions. That circumstance, of itself, requires circumspection before accepting counsel for the State's assertion that the increase in the maximum penalty for manslaughter has not been appropriately taken into account in sentencing decisions.
We are satisfied, having regard to:
(a)the appeals against sentence for manslaughter which this court has decided since the maximum penalty was increased to life imprisonment; and
(b)the great variation that is possible in the circumstances of offending for manslaughter and in the personal circumstances of the offenders,
that the increase in the maximum penalty to life imprisonment has been appropriately taken into account by this court in deciding sentencing appeals for manslaughter.
It is not apparent, based upon the sentence appeals that this court has decided since the increase in the maximum penalty to life imprisonment, that sentences for manslaughter, either for offences involving intentional violence or for offences generally, do not appropriately reflect the increase in the maximum penalty.
In the present case, the respondent's offending was undoubtedly serious. He attacked Mr Raco by inflicting a single blow with a clenched fist. It was a cowardly act of intentional violence in a public place. Mr Raco was vulnerable because he was struck from behind without warning. Mr Raco was unknown to the respondent. The respondent was not in any sense provoked. After his random and gratuitous attack, the respondent left the scene without any concern for Mr Raco's welfare.
The seriousness of the respondent's criminality is not reduced by the absence of some aggravating factors which have occurred in other cases. For example, the respondent's attack was not planned or premeditated; the attack involved a single blow and was not sustained; and no weapon was used in the attack. However, the absence of aggravating factors of that kind is of relevance in placing the respondent's offending within the spectrum from the least serious category of case to the most serious category of case involving manslaughter.
The respondent's prior criminal record and the failure of previous sentences to achieve the purpose for which they were imposed did not aggravate the seriousness of the current offending. However, as a result of those matters, the respondent did not have the mitigation of prior good character.
As the sentencing judge noted, the respondent has a long history of alcohol abuse and alcohol has been a causative factor in his offending history. The respondent's risk of future violent offending is high unless he stops using alcohol and addresses his antisocial behaviour, his tendency towards aggression and his lack of consequential thinking.
Mr Raco's death has had a profound and devasting impact upon his wife and other members of his family. No sentence can remedy their tragic loss and terrible suffering.
The principal mitigating factor was the respondent's plea of guilty at the first reasonable opportunity. As we have mentioned, the sentencing judge allowed a discount of 25% pursuant to s 9AA of the Sentencing Act. The respondent's upbringing was dysfunctional. Ultimately, he evinced remorse and an acceptance of responsibility for what he had done.
In our opinion, the sentence of 7 years 6 months' imprisonment was not unreasonable or plainly unjust.
The sentence was commensurate with the seriousness of the offence, taking into account:
(a)the maximum penalty;
(b)the facts and circumstances of the offending;
(c)Mr Raco's vulnerability;
(d)the sentencing dispositions in cases with at least some features comparable to the present case;
(e)the importance of appropriate punishment, denunciation and personal and general deterrence;
(f)the respondent's personal circumstances and antecedents; and
(g)all aggravating and mitigating factors.
The sentence imposed was reasonably open to his Honour on a proper exercise of his discretion. Error is unable to be inferred from the sentencing outcome. The sentence was not manifestly inadequate.
The ground of appeal has not been made out.

Conclusion

We would grant leave to appeal, but the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BS
Associate to the Honourable Justice Buss
11 NOVEMBER 2022