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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- JWRL (a child) [2010] WASCA 179

CORAM: MARTIN CJ
McLURE P
BUSS JA

HEARD: 19 MAY 2010

DELIVERED : 10 SEPTEMBER 2010

FILE NO/S: CACR 9 of 2010

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
JWRL (a child)
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :EM HEENAN J
Citation  :THE STATE OF WESTERN AUSTRALIA -v- JWRL [No 4] [2009] WASC 392
File No  :INS 93 of 2009

Catchwords:

Criminal law - State appeal against sentence - Respondent convicted of offence of unlawful assault causing death contrary to s 281 of the Criminal Code (WA) - Sentenced to suspended imprisonment - Whether sentence so inadequate as to manifest error - Whether offence less serious than offences involving culpable driving causing death - Whether sentencing judge erred in finding facts relevant for sentence - Whether sentencing judge erred in application of principles arising from The State of Western Australia v BLM to determine appropriate sentence

Criminal law - Criminal procedure - Disclosure obligations - Whether prosecution failed to disclose material relevant to charge

Legislation:

Criminal Appeals Act 2004 (WA), s 41(4)(b)
Criminal Code (WA), s 248, s 260, s 281, s 284
Criminal Procedure Act 2004 (WA), s 42, s 95
Road Traffic Act 1974 (WA), s 59
Sentencing Act 1995 (WA), s 15

Result:

Grounds of appeal 1, 2, 3 and 4 dismissed
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr B Fiannaca SC
Respondent: Mr R W Richardson & Mr S Vandongen

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: R W Richardson

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

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gray v The Queen [2001] HCA 65; (2001) 18475 ALJR 593
House v The King [1936] HCA 40; (1936) 55 CLR 499
Inge v The Queen [1999] HCA 99; (1999) 199 CLR 295
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
Pelemis v The State of Western Australia [2009] WASCA 151
Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48
R v Lobban [2001] SASC 392; (2001) 80 SASR 550
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81
The State of Western Australia v Atherton [2009] WASCA 148
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116
Wood v The Queen [2002] WASCA 95; (2002) 130 A Crim R 518

MARTIN CJ:

Introduction

The respondent, JWRL, was charged on indictment with murdering Steven John Rowe on 5 November 2008 (although the events giving rise to the death of Mr Rowe occurred on the evening of 31 October 2008) at Woodvale, a suburb of Perth. After trial by jury, he was acquitted of the charge of murder, and of the alternative count of manslaughter. He was, however, convicted of the alternative count of unlawfully assaulting another who died as a result of the assault, an offence created by s 281 of the Criminal Code (WA) in 2008, prior to the events giving rise to JWRL's conviction.
Because JWRL was a juvenile at the time of the events giving rise to his conviction, an order has been made suppressing publication of his name or any information that might reveal his identity. Because many of the witnesses in the case were also juveniles or young adults at the time of the events in question, I will adopt the practice adopted by the trial judge of referring to all participants by their initials, other than the deceased, Steven Rowe, whose name has been extensively published.
JWRL was sentenced to 2 years imprisonment, suspended for 2 years. The trial judge indicated that if circumstances arose in which JWRL was called upon to serve the term of imprisonment imposed, credit should be given for the 94 days he had spent in custody prior to sentence.
The State appeals against the sentence imposed. As the appeal was instituted after the commencement of s 41(4)(b) of the Criminal Appeals Act 2004 (WA), the common law principles generally applicable to State appeals against sentence have no application: see The State of Western Australia v Atherton [2009] WASCA 148 (Buss JA) [149], [385] (Miller JA); The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116, [29] (McLure JA), [56] (Miller JA).
However, the principles generally applying to appeals against sentence, by either the defendant or the State, continue to apply; Wallam [66] (Miller JA). Accordingly, this appeal can only be allowed if it is established that the trial judge erred in the exercise of the discretion reposed in him at the time of passing sentence, in the sense described in House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [3] – [4]. As all members of the High Court observed in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665:
[A] court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice. [15]

The grounds of appeal

There are four grounds of appeal. Ground 3 challenges a number of particular findings of fact made by the sentencing judge for the purposes of passing sentence. The State asserts that those factual errors caused the sentencing judge to err in his assessment of JWRL's culpability. Because that ground goes to the factual basis of the sentence imposed, it is appropriate to consider it first.
Grounds 2 and 4 assert that the sentencing judge made particular errors of law. Ground 1 asserts that the sentence imposed by the trial judge was so inadequate as to manifest error. It will be convenient to deal with the grounds of appeal in that order.

Ground 3

Before considering the particular findings of fact challenged by the State, it is appropriate to set out some established principles of law relating to the process of fact finding for the purposes of passing sentence.
Where the offender to be sentenced has been found guilty following trial by jury, the judge must determine the facts relevant to the sentencing process: see Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [5] and [36]. Although the facts found by the sentencing judge must be consistent with the verdict of the jury, it is the trial judge who must find those facts, rather than speculate about the facts that may or may not have been found by the jury: Cheung [9] – [11]. '[P]rovided the facts found by a sentencing judge are not inconsistent with the jury's verdict, a sentencing judge may well make an assessment of an offender's degree of culpability which would not be supported by all, or perhaps any, members of the jury': Cheung [36].
The facts found by the trial judge for the purposes of sentence are to be made on the evidence adduced at trial, together with any further material received during the sentencing process. For the purposes of sentence, the court may inform itself in any way it thinks fit: Sentencing Act 1995 (WA), s 15. As a result, facts and propositions that are not contentious may be received by the court informally, by a statement from the bar table, or by the production of documentary material. However, where there is a dispute as to fact, the dispute must be resolved by the trial of an issue, as part of the sentencing process, to which the rules of evidence are applicable: see Pelemis v The State of Western Australia [2009] WASCA 151. The party asserting a disputed fact relevant to sentence carries the onus of proving that fact. If the fact is asserted by the State and is said to be an aggravating circumstance, the State is obliged to prove the fact beyond reasonable doubt. If the fact is asserted on behalf of the offender, and is said to be a mitigating circumstance, the offender carries the burden of proving the fact on the balance of probabilities: see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25] and [27]. If the party asserting a contested fact fails to discharge the burden of proving that fact, it is not taken into account for the purposes of sentence: see R v Lobban [2001] SASC 392; (2001) 80 SASR 550 [32].

The factual context

The following findings of fact made by the trial judge, which are not contested, provide the context for a consideration of those findings which the State disputes.
The evidence satisfied the trial judge that in 2008 it was common for groups of youths between approximately 16 and 19 years of age to congregate in the evenings at various places in the Woodvale area. Those places included the forecourt and surrounding area of the BP service station near the Woodvale shopping centre, the bus stop on the north‑eastern side of Timberlane Park in Woodvale Drive, and an area near the pizza shops at the Woodvale shopping centre.
On the evening of 31 October 2008 there were a number of groups of youths congregating on the streets and in the public areas of Woodvale. It was Halloween night, and a number of groups had been involved in 'trick or treating'. Others were congregating in public areas and drinking. The trial judge found that JWRL had consumed, at most, only a very small quantity of alcohol before the fatal encounter, and that intoxication was not a factor in his conduct that evening.
Earlier in the evening, JWRL, who was then 17 years old, and a group of friends, had been 'trick or treating' in the Woodvale area. After they had finished their trick or treating, they decided to walk to the Woodvale shops to order pizzas. JWRL went with his girlfriend, HK, to Pizza Hut, while other members of their group went to Domino's Pizza, which is nearby. JWRL observed a group of 12 or 15 youths who were yelling and acting aggressively. It appeared that their aggression was caused by the fact that a security guard had arrested one of the group (AC, or G by nickname) because he had been caught putting graffiti on a wall.
After eating their pizzas, JWRL and HK went to the house of a friend, SW.
Around 10 pm or 10.15 pm, HK contacted her parents to seek permission to spend the night at SW's house. They refused that permission and required her to return home. JWRL offered to accompany her on the walk home.
JWRL and HK set out on the walk to HK's home. JWRL insisted that they use a more circuitous route so as to avoid passing the BP service station where he believed other groups of youths might be gathered. However, using the route which JWRL chose, a different group of youths shouted at him and HK. That group was gathered in a carpark near the primary school.
JWRL left HK at her home. He set out to return to SW's house via the BP service station as he had agreed with SW to purchase a bottle of Coca Cola at the service station. Along the way he picked up a piece of wood, (he described it as a stick), which he found just off the side of the path on which he was walking. The piece of wood was jarrah, almost square in cross‑section, having dimensions of approximately 4 cm by 4 cm, and a length of approximately 72 cm. The trial judge described it as 'rough finished jarrah … show[ing] obvious signs of considerable weathering', and as being 'the sort of stake which one might readily find in a garden or in a park or as some minor part of a trellis or similar construction' (sentencing remarks [69]). JWRL said that he picked up the stick for his own protection because he was concerned that one of the groups that he had seen earlier in the evening might attack him.
As he passed the carpark near the primary school, he was called to join a group which he knew from Woodvale High School. That group included AL. Some of the group were drinking.
While JWRL was there, AL received a call on his mobile phone from JM. AL reported to JWRL that JM was seeking his assistance because JM had been 'mobbed' by RC and another group, and was hiding from them.
It is appropriate now to turn to the findings of fact made by the trial judge with respect to events earlier in the evening involving RC and Mr Rowe. They and other friends had been driving around the Woodvale area in Mr Rowe's car. They came across a group of youths at the bus stop in Woodvale Drive on the north‑eastern side of Timberlane Park. RC, Mr Rowe and other members of their group had consumed substantial quantities of alcohol, as had members of the group which they encountered near the bus stop. There was an altercation between the two groups.
Later in the evening, Mr Rowe, RC and their group went to Hungry Jack's restaurant to order food. RC and Mr Rowe walked into the restaurant carrying open bottles of beer from which they drank. The manager told them that they were not allowed to bring liquor into the store and ordered them to leave. Mr Rowe began to leave in compliance with this request, but RC refused. RC defiantly drank the remainder of the contents of his beer bottle while inside the restaurant, and only left after the manager had secured the intervention of a security guard.
RC, Mr Rowe and other members of the group then drove towards the BP service station where, as they had earlier noticed, a group of a dozen or more youths had congregated. Most of the members of the group got out of the vehicle near the BP service station, although the car was then parked in a street behind the service station. They joined the group which had congregated near the service station. Most of the members of the combined group were drinking alcohol when a police car came by. One of the group threw a beer bottle at the police car. The police car stopped and the policemen alighted to search for the person who had thrown the beer bottle. The group scattered. Mr Rowe hid in a bush in a street some distance away. RC stayed at the service station before making his way back to Mr Rowe's vehicle.
Another group walking through the Woodvale area that evening comprised JM (who later telephoned AL as I have mentioned), his girlfriend SH, and two other friends. JM was trying to avoid contact with RC, because of his fear of him. However, despite his efforts to avoid RC, he encountered him in a street where he was stopped by RC, and punched several times. RC also attempted to head-butt him. The trial judge found the assault was completely unprovoked, that JM offered no resistance and that, as soon as the opportunity arose, JM fled. While the fight was in progress, a car containing RC's friends and Mr Rowe drove up and Mr Rowe got out.
Mr Rowe went off on foot in the same direction taken by JM and was followed by RC. Their friends drove off in the car.
Shortly thereafter a police car stopped Mr Rowe. Police officers took his name and address, and made him pour away the contents of an open bottle of beer he was carrying. While this was occurring, RC came up and told the police officers that there was a disturbance at the Woodvale shopping centre. The police left to investigate the alleged disturbance. The trial judge found that each of Mr Rowe and RC were then attempting to track down JM.
In the meantime, JM had run down a number of streets, and taken up a position hiding behind a wall in the front garden of a house. From what he could hear from that position, he believed that he was being chased by a group of youths. It was at this point that he telephoned AL to seek assistance. As a result of that call, AL and JWRL set out to try to find JM.
It was in those circumstances that AL and JWRL met RC and Mr Rowe unexpectedly in a dark pathway between Delonix Circle and Woodvale Drive.
Mr Rowe walked up to AL and grabbed his shirt near the collar with both hands. Standing very close to AL, he accused him of 'bricking' one of his friends in the past. AL struggled to get free but could not break Mr Rowe's grip. He denied bricking the friend of Mr Rowe, although Mr Rowe rejected that denial. Mr Rowe removed his right hand from AL's shirt, drew it back, formed a fist and gave every indication that he was about to punch AL in the face. It was at that point that JWRL struck Mr Rowe with the wooden stake. It is clear that the stake struck Mr Rowe on the head, and that considerable force was used. The force was sufficient to break the stake at a point halfway along its length. The trial judge found that it broke at a point of weakness, where its width was reduced as a result of weathering, splitting and natural knotting, although that finding is challenged by the State.
The blow caused Mr Rowe to fall to the ground, and eventually caused his death.
AL and JWRL then ran back towards Delonix Circle as fast as they could, in fear of retribution from Mr Rowe's friends.
RC went to Mr Rowe's aid, but found him to be unconscious. RC used Mr Rowe's mobile telephone to make calls for help which eventually resulted in a vehicle being summoned which was used to take Mr Rowe to the emergency department of Joondalup Hospital.
A little later in the evening, there was a melee in a parking area in Delonix Circle adjacent to Timberlane Park involving some of the group who had been with Mr Rowe and RC.

The factual disputes

The State has given particulars of the findings of fact made by the trial judge which it disputes. It is convenient to address each issue of fact in the order in which the particulars are presented in the notice of appeal.

Ground 3.1(a): Where was JWRL standing when the blow was struck?

During the trial, and again in submissions relating to sentence, the State submitted that the evidence established that JWRL had struck Mr Rowe from behind. The trial judge rejected that submission. He found that when striking the blow, JWRL stepped forward a short distance from the position in which he had been standing beside AL. However, the trial judge considered that the evidence did not establish, one way or the other, whether the step forward taken by JWRL placed him behind Mr Rowe, from where he struck the blow, or level with him, as JWRL asserted. The trial judge referred to the evidence which established that the scene of the struggle was very dark, AL's limited vision of JWRL, and the unreliability of RC's evidence. The State submits that the trial judge was in error, and should have found that JWRL was behind Mr Rowe when he struck him, thus increasing the culpability of his conduct.

JWRL's evidence

JWRL gave evidence that at the time he swung the stake, he was standing just in front of Mr Rowe but to his right. His evidence was that he had swung the stake from the right side of his body to his left side, aiming at 'probably his arms' (ts 1579). He said that it was 'really, really dark', and that he had his eyes closed at the time he swung the stake (ts 1051). In cross‑examination, JWRL stated that he was standing half a metre to the left of AL (ts 1131). He confirmed that he had swung the stake from right to left across his body in the direction of Mr Rowe's arms after stepping forward (ts 1144 – 1145). It was put to JWRL that in fact he was standing to the right rear and to the side of Mr Rowe at a 45 degree angle at the time he struck him. He expressly denied that assertion on several occasions during cross‑examination (ts 1152 – 1156, 1158).

AL's evidence

AL gave evidence that JWRL was at a 45 degree angle on his left‑hand side (ts 817). His evidence was that JWRL was also on a 45 degree angle to Mr Rowe, being about a metre away from him and behind him (ts 818 – 819). His evidence also was that the strike was a downward motion which hit the back of Mr Rowe's head, on Mr Rowe's right‑hand side (ts 819 – 820).

However, in cross‑examination, AL stated that he did not in fact see the blow struck but only saw Mr Rowe fall to the ground (ts 889). Further, at a number of points during his evidence, he agreed that his focus was upon Mr Rowe, not JWRL, and that visibility was extremely poor (see for example, ts 813, 887 and 898). However, he also reiterated his earlier evidence to the effect that JWRL had approached Mr Rowe on a 45 degree angle from behind and to the side of him (ts 889).

RC's evidence

RC's evidence was that he saw a person take a step forward to the point where he was standing a little bit in front of Mr Rowe at the time he swung the blow which hit Mr Rowe on the back left‑hand side of his head (ts 535). However, he also gave evidence to the effect that it was dark, and that he had drunk 10 or 11 bottles of beer (ts 644). His evidence was that the weapon used was a long‑necked beer bottle (ts 645 and 641). His evidence as to where he was standing in relation to Mr Rowe also conflicted with previous statements he had made (ts 640). The trial judge considered RC's evidence to be completely unreliable, and placed no weight upon it.

The forensic evidence

Dr Judith McCreath performed an autopsy on Mr Rowe. She noticed abrasions to the right side of his head (ts 489 ‑ 490), and internal injuries, including a fracture of the skull sustained along the right side of the skull from the forehead, through the middle, above the ear and on to the back of the skull (ts 493 – 494). Her evidence was to the effect that the point of impact seemed to be above the right ear, extending from the front of the ear to the back (ts 502).

Conclusion

It can thus be seen that there was a conflict in the evidence given at trial as to the precise position of JWRL at the time he struck Mr Rowe. The State contends that the trial judge should have accepted the evidence of AL to the effect that JWRL was behind Mr Rowe at the time the blow was struck, and that JWRL's evidence as to the manner of striking the blow, being from the right‑hand side of his body toward the left‑hand side is inconsistent with the forensic evidence which establishes that the blow was struck to the right‑hand side of Mr Rowe's head.
The trial judge had the advantage of seeing and hearing all the witnesses who gave evidence with respect to the position of JWRL at the time he struck the fatal blow. There is no reason why the principles enunciated by the High Court in Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479 and refined in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 should not apply to appellate review of a finding of fact made by a trial judge for the purpose of sentence. Those principles relevantly dictate that where a finding by a trial judge is based to a substantial degree on the assessment of a witness's credibility, there should be a presumption in favour of preserving the judge's finding unless the judge has acted on evidence which is inconsistent with facts which are incontrovertibly established by the evidence. In this case, there are no incontrovertible facts or uncontested testimony which demonstrate that the trial judge was in error in failing to find that JWRL was behind Mr Rowe at the time the fatal blow was struck. The significance attributed to the State, in submissions, to JWRL's evidence as to the direction in which the blow was struck, when compared to the forensic evidence, overlooks the distinct possibility that Mr Rowe could have turned his head to the left just prior to the blow being struck, with the result that the right‑hand side of his head would have been presented to JWRL's advancing blow. Having regard to the conflicts in the evidence to which I have referred, and the unreliability of some of the testimony on this particular point, it was open to the trial judge to conclude that the State had not established beyond reasonable doubt that JWRL was behind Mr Rowe at the time the blow was struck. No basis for appellate intervention with that finding has been established.

Ground 3.1(b): The significance of the position of JWRL when the blow was struck

The trial judge observed:
This controversy about where JWRL was when the blow was struck, and whether or not he was behind Steven Rowe was mainly relevant to the prosecution's case for murder or manslaughter as perhaps disclosing, or allowing inferences to be drawn, whether the offender intended to cause Steven Rowe serious bodily harm and whether or not the death could be accidental had been excluded. However, as the jury has rejected both those contentions, and returned a verdict of guilty of an accidental killing under s 281, the issue is of greatly reduced significance. [55]
The State asserts that this observation reflects error because the position of JWRL at the time he struck Mr Rowe was directly relevant to the issue of self‑defence, and to the extent of JWRL's culpability. There are a number of reasons why this contention must be rejected.
First, if, as I have concluded, it was open to the trial judge to conclude that the evidence did not establish beyond reasonable doubt that JWRL struck Mr Rowe from behind, the observations of the trial judge have no impact because there is no factual basis for attributing greater culpability to JWRL, whatever view is taken as to the significance of the issue.
Second, the trial judge did not suggest that the issue was irrelevant to JWRL's culpability, but rather pointed out, correctly, that the primary relevance of the issue was in respect of the State's case for murder or manslaughter.
Third, the possible relevance of the precise position of JWRL to the question of self‑defence had no significance at the time sentence came to be passed. The trial judge accepted that the State had succeeded in establishing that self‑defence was not available. In any event, in this case, the issues concerning self‑defence focused mainly, although not exclusively, upon the threat to AL, not to JWRL. JWRL's position in relation to Mr Rowe was not directly relevant to the issues pertaining to self‑defence arising from the threat to AL.

Ground 3.1(c): The patterns of anti‑social behaviour in Woodvale

The State disputes findings made by the trial judge in relation to patterns of anti‑social behaviour and bullying in the Woodvale area, which are said to have been erroneously taken into account by the trial judge to support his conclusion that there was a degree of justification for JWRL's behaviour, in that he had a reasonable belief that he and AL were under threat of violence not only from Mr Rowe, but also from others.
It should first be noted that the findings made by the trial judge with respect to prevailing patterns of behaviour in the Woodvale area were of limited significance to the issues which he had to determine for the purposes of sentence. Relevantly to this particular ground, those issues were:
(a)did JWRL believe, at the time he took up the wooden stake and at the time he responded to Mr Rowe's assault upon AL that he (at the time he took up the stake) and that he and/or AL (at the time of the assault) were at risk of physical harm, and if so,
(b)were there reasonable grounds for that belief.
Those issues were relevant to the assessment properly made of JWRL's culpability. Those issues fell to be determined primarily by reference to the events which took place on 31 October 2008, and from the perspective of JWRL's awareness of those events. Generally speaking, this was the approach taken by the trial judge, in which he made specific findings in respect of JWRL's state of mind, and the reasonableness of his views primarily by reference to his experiences on the evening of 31 October 2008 (sentencing remarks [70] – [74]). In this context, the observations made by the trial judge in respect of prevailing social conditions in Woodvale on occasions other than the evening of 31 October 2008 were of limited significance.
But in any case, the findings made by the trial judge with respect to social disorder in the area of Woodvale were open to him on the evidence. There was evidence that there were a number of groups in the area actively engaged in applying graffiti to buildings and signs, and that these groups had distinctive names or 'tags'. There was evidence that these groups had been seen roaming the streets at night, and there was evidence from a number of sources of specific incidents involving violence or threats of violence. I will consider the specific evidence in more detail when dealing with the next particular relied upon by the State, which concerns the findings made by the trial judge in respect of JWRL's perception of the likelihood of an assault being committed upon either AL or him by Steven Rowe or RC.
Finally in relation to this issue, the findings of fact made by the trial judge in respect of the events involving JWRL that evening, augmented by the evidence to which I will refer below regarding the next issue, provided ample justification for a finding that JWRL had a reasonable belief that he and/or AL were at risk of physical harm, not only from Mr Rowe, but also from others on the evening of 31 October 2008.
As I have mentioned, the trial judge found that JWRL witnessed an altercation involving a large group of youths when he and HK collected their pizzas that evening. Further, he had insisted that they take a more circuitous route when walking to HK's home, because of his concern at the risks that might be confronted if they passed the BP service station. The trial judge accepted the evidence given by JWRL to the effect that his belief as to the risks which he confronted that evening, and which were reasonable, caused him to take up the wooden stake which he came upon. Further, AL had recounted to him the information which he had received in the course of the telephone call from JM, to the effect that JM had suffered an unprovoked assault by RC and a group, and was hiding out in fear of a further assault. These findings provide a sufficient basis for the finding made by the trial judge in respect of JWRL's beliefs, and as to the reasonableness of the grounds for those beliefs.
For these reasons, the complaint made by the State in respect of the observations made by the trial judge concerning the prevailing social conditions in Woodvale must be rejected.

Ground 3.1(d): JWRL's perception of the risk of assault by Mr Rowe or RC

The State complains of observations made by the trial judge in the following passage of his reasons:
A major issue at the trial was whether or not the prosecution had excluded, beyond reasonable doubt, that JWRL's harmful act to Steven Rowe had been done in self defence. If that had not been excluded, JWRL would have to have been acquitted of the charge under s 281. In regard to the ingredients of self defence under s 248, and in the circumstances as I have previously described them, I am satisfied that the jury could not have accepted that the prosecution excluded, as a reasonable explanation for what had occurred, that JWRL believed his act in striking Steven Rowe was necessary to defend AL and/or himself from a harmful act, namely an immediate assault by Steven Rowe and a high probability of an assault also by RC of both AL and himself and probably by others who were likely to come to their aid. Furthermore, I am satisfied not merely that the prosecution did not exclude the existence of reasonable grounds for that belief but that, on any objective assessment, JWRL did have reasonable grounds to believe that. Similarly, I consider that JWRL believed that his assault was a reasonable response in the circumstances, not being motivated by any desire to do anything more than to prevent Steven Rowe from assaulting his friend, to break off the encounter and to allow AL and himself to escape. I am satisfied that the plea of self defence broke down and failed at the point of whether or not there were objectively reasonable grounds for JWRL to believe that his action was a reasonable response in the circumstances. Obviously the blow was struck with considerable force - the evidence from Dr J A McCreath of the results of the post-mortem established this and the fact that the wooden stick broke in half as a result of the blow, is further confirmation. [28]
It was unnecessary for the trial judge to express a view as to the reasoning process likely to have been adopted by the jury in concluding that the State had established that the plea of self‑defence was not available. As I have already indicated, while the findings of fact made for the purposes of sentence must be consistent with the verdict of the jury, they must be the findings of the trial judge, rather than the supposed findings of the jury. On the evidence adduced in this case, there were a number of alternative processes of reasoning open to the jury in order to sustain its conclusion that the State had established that self‑defence was not available. The jury might have concluded that JWRL did not believe that the form of his response to the threat which was presented was a necessary and reasonable response in the circumstances, or that he lacked reasonable grounds for those beliefs: see Criminal Code, s 248. Alternatively, the jury might have considered that JWRL used excessive force: see Criminal Code, s 260. It is not possible to tell from the verdict of the jury what process of reasoning it adopted in order to conclude that the State had successfully established that self‑defence was not available to JWRL. Accordingly, it was unnecessary for the trial judge to speculate as to the process of reasoning likely to have been adopted by the jury, but rather, to make its own findings as to the subjective beliefs of JWRL, and the reasonableness of the grounds for those beliefs, and the degree of force used.
However, it is clear from the reasons of the trial judge which I have set out above that he has done just that. That conclusion is corroborated by various other findings made at different points in the reasons given at the time of passing sentence. Put shortly, it is clear that the trial judge found as a fact that JWRL believed that his assault upon Mr Rowe was necessary to defend AL and/or himself from an immediate assault by Mr Rowe, and the high probability of an assault also by RC and others, that his assault upon Mr Rowe was a reasonable response to the circumstances as JWRL believed them to be, but that there were only reasonable grounds for the first of those beliefs. This is because the trial judge found that the force used was more than an objectively reasonable response, that is, that JWRL used excessive force. However, the State asserts that the trial judge was in error in making these findings.
In support of that contention, the State submits that the evidence of the conduct of RC did not sustain a finding that JWRL subjectively believed that he was at risk of physical harm from RC, or that such a belief was objectively reasonable. In this context, it is necessary to refer to fresh evidence which was adduced in the course of the appeal, and which establishes that there was a serious breach of the State's obligation of disclosure prior to, and during the trial of JWRL.

The obligation of disclosure

Section 95 of the Criminal Procedure Act 2004 (WA) obliges the prosecution to serve upon the accused any evidential material that is relevant to a charge which is to be prosecuted in a superior court of this State. That obligation is to be discharged within the prescribed period after an accused is committed for trial, and is a continuing obligation which must be satisfied 'as soon as practicable' at any time thereafter if the prosecutor receives or obtains evidentiary material that is relevant to the charge. This statutory obligation conforms to the common law obligation identified by the High Court in Gray v The Queen [2001] HCA 65; (2001) 184 ALR 593, and referred to in Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 [17].
The submissions presented to this court by the State in purported justification of the course taken in the prosecution of this case misconceive and unduly restrict the extent of the obligation of prosecutorial disclosure. The obligation is to disclose 'any evidentiary material that is relevant to the charge' irrespective of whether that material would assist the case of the prosecution, or the case of the defence: Criminal Procedure Act, s 95(1) and s 42. The legislative purpose which is evident from the imposition of this obligation is to ensure that an accused person has access to any and all evidentiary material relevant to the charge brought so that he or she can be afforded a fair trial. Given that evident legislative purpose, no narrow approach is to be taken to the ambit of the obligation posed by the statute. In particular, no narrow approach is to be taken to the notion of relevance.
At times, the submissions advanced on behalf of the State in relation to this issue appeared to suppose that relevance was to be assessed by reference to the case theory of the prosecution, or perhaps by reference only to the evidence which the prosecution proposes to call in support of its case. In the light of those submissions, it must be said clearly and emphatically that such an approach is fundamentally misconceived.
The legislature has specified that the obligation of disclosure is to be satisfied well before trial, and as soon as practicable after receipt of any evidentiary material which enlivens a further obligation of disclosure. It follows that the obligation will fall to be fulfilled at a time when the precise ambit of the evidence to be adduced, and the issues to be ventilated, at trial cannot be predicted with certainty. When regard is had to the legislative purpose underpinning the obligation of disclosure, and the inevitable unpredictability of the precise course to be taken at trial at the time when the obligation of disclosure falls to be fulfilled, it is appropriate to construe the obligation as extending to all evidentiary material which is relevant to the charge, or which could potentially be relevant to the charge. In this context, I mean the expression 'potentially relevant' to embrace relevance to any issue that might possibly or conceivably arise at trial and which is not fanciful or illusionary. Further, given the legislative purpose to which I have referred, it is appropriate for both prosecutors, and courts reviewing the performance by prosecutors of the obligation of disclosure, to take a liberal and expansive view of the ambit of material that is relevant or might potentially be relevant.

The fresh evidence

On the application of JWRL, this court received fresh evidence from a young man who was a witness for the prosecution at the trial of JWRL. I will refer to him by his initials, RM. His evidence in the appeal took the form of a written statement which was tendered, and oral evidence. That evidence sustains the following findings of fact.
RM gave a written statement to police in November 2008. On 8 October 2009, in the week prior to the commencement of JWRL's trial and in response to a request from the office of the DPP, RM attended that office with his mother and his grandfather. RM was there interviewed, in the presence of his mother and grandfather and another officer of the DPP, by Mr Huggins, who prosecuted for the State in JWRL's trial.
RM was taken through the statement he had given to police by Mr Huggins. Mr Huggins asked RM what he knew of gangs operating in the Woodvale area. In the course of responding to that question, RM told Mr Huggins that he knew of RC, and that so far as he knew, he was a member of one of those gangs.
RM went on to advise Mr Huggins that he had had two previous altercations with RC. He then recounted those altercations to Mr Huggins and the others present.
The first incident occurred in September 2008, a month or so prior to the events leading to the death of Mr Rowe. RM was at the Whitford City shopping centre. He saw RC across the shopping centre and RC smiled and waved at him. RC then started walking towards RM with four or five boys about RM's age or younger. When he was about 2 to 3 metres from RM, according to RM, RC's demeanour changed entirely. He scowled at RM, said something that he did not hear, and then head‑butted RM and ran out of the shops.

The second incident was about a week later when RM was at the train station and bus port at Whitfords City shopping centre. While he was waiting for a bus, RC walked past him and while doing so, made the symbol of a gun with his hands, and made a gunshot noise like 'pow'. He then looked at RM and said, 'If there weren't cameras here, I would fucking kill you'.
RM responded asking why, given that he had done nothing wrong. RC responded, 'I'm going to fucking stab you'.
It appeared to RM that Mr Huggins and the other officer of the DPP were taking notes of what he was saying. However, RM was not asked to amend his statement or to make a new statement referring to the incidents involving RC.
In evidence before this court, RM confirmed that he had told JWRL of each of these incidents involving RC within a day or so of their occurrence (appeal ts 103). However, he did not advise Mr Huggins, in the course of the meeting to which I have referred, of that fact. Surprisingly, he was not asked by Mr Huggins whether he had advised JWRL of the incidents involving RC. The failure to ask that question appears inexplicable, given that RM had stated in his deposition, which Mr Huggins had taken him through, that he was a friend of JWRL.
The State gave no notice to JWRL or his representatives of the information received from RM at any point prior to or during the trial. It was not until counsel for JWRL learned of this material from RM that any issue in respect of disclosure arose. However, by then RM had completed his evidence.
The State sought to justify the failure to disclose this material, in part upon the basis that JWRL had said, in the course of his recorded interview with police, that he thought that the person accompanying Mr Rowe was someone other than RC. However, AL's evidence at trial was that he recognised the person who was with Mr Rowe at the time he was confronted as RC (ts 814). It seems reasonable to conclude that the prosecution would have been aware that AL was likely to give evidence to that effect, especially given that his deposition, which forms part of the prosecution brief, refers to the person accompanying Mr Rowe as 'a guy named [R]' (giving RC's first name). Further, and in any event, the State was at all material times in possession of a deposition provided by RC, to the effect that he was the person who accompanied Mr Rowe at the time of the confrontation with AL and JWRL. Additionally, the video record of interview of JWRL had been ruled inadmissible in a ruling given prior to trial.
Given the evidentiary material available to the State from each of AL and RC, reference to the video record of interview of JWRL by way of purported justification of the non‑disclosure of the evidentiary material obtained from RM is fundamentally misconceived. The ambit of the obligation of disclosure is not to be determined by reference to only part of the evidence - in this case, the State's view of the evidence that might be given by JWRL in the event that he was called to give evidence - but rather by reference to the totality of the evidence and the issues that might potentially arise at trial. The evidentiary material available to the State placed RC at the scene of the critical events immediately preceding the assaults which resulted in the death of Mr Rowe. His propensity to violence was plainly relevant to the issues likely to arise at trial, given the predictability of an issue arising in respect of self‑defence.
Further, on a broader view of the evidence, RC was, on any view, a key player in many of the incidents that were to be investigated in the course of evidence, as the State must have known, and was to be called as a witness by the State. This is another reason why his character and credibility were likely to be an issue. The State's failure to disclosure the evidentiary material obtained from RM is patently unjustifiable.
The duty of the prosecutor was clear. In the course of the interview with RM he should have ascertained whether or not RM had spoken to JWRL about the incidents involving RC. Whatever the answer to that question, he should then have requested RM to provide an additional statement which should have been prepared, executed, and transmitted to the accused and his legal representatives immediately. This was not done.
This conspicuous departure from appropriate prosecutorial conduct becomes more egregious when the course of the trial is considered.
The prosecutor opened on the basis that RC was present with Mr Rowe at the time of the fatal assault. In that circumstance, it was disingenuous for the State to submit, in this appeal, that the police interview of JWRL, in which JWRL did not identify RC as the other person present with Mr Rowe, provided some justification for non‑disclosure. On the State's case, the jury would inevitably have to assess JWRL's beliefs, and the objective reasonableness of those beliefs, in a tense situation in which RC was present and a prospective participant. The State could not have known whether or not JWRL would give evidence, and if he did give evidence, what he might say.
The prosecutor opened the case to the jury on the basis that 'a real issue in this trial' was whether the State established that self‑defence was not available to JWRL (ts 33). Counsel for JWRL focused upon self‑defence in the course of his opening.
RC was called by the State. He confirmed that he assaulted JM earlier in the evening (ts 522), and that he was present with Mr Rowe at the time of the fatal altercation (ts 528). The State also led evidence from RC about the fight which occurred between the groups in Delonix Circle after Mr Rowe had been taken to hospital (ts 545 ‑ 546).
Before RC was cross‑examined, the trial judge was invited to rule upon the admissibility of evidence on a number of topics which counsel for JWRL wished to pursue in cross‑examination. In the course of argument, counsel for JWRL contended that the evidence was admissible in part because it went to the question of whether RC had a violent disposition which was generally known within the younger community of Woodvale, which went to the question of whether there were reasonable grounds for JWRL's apprehension of harm, for the purposes of assessing the availability of self‑defence (ts 560).
In the course of ruling on the argument, the trial judge stated:
In relation to the question of violent disposition there seems to be a tacit acknowledgment by the prosecution that evidence which preceded the fatal assault which might tend to establish such a disposition would be relevant and admissible. Whether that is an admission or not, I consider that that approach is justified and that evidence before the fatal blow about the character of violent disposition and notoriety, if any, of [RC] as a member of a group known to engage in threatening behaviour or believed to engage in threatening behaviour, is therefore relevant and admissible (ts 566).
That ruling was made on 16 October 2009, eight days after the prosecutor had interviewed RM. Following that ruling, the prosecutor can have been in no doubt that the information he was given by RM during the course of the interview was directly relevant to the charge brought against JWRL, and in particular, directly relevant to a vital issue in the case, the issue of self‑defence. Nevertheless, he continued to fail to disclose that information to the defence.
RC was then cross‑examined at length. His propensity to violence was a central feature of that cross‑examination.
AL was called by the State. He gave evidence of the telephone call which he received from JM, in which JM advised that he had been attacked by RC (ts 803). AL testified that he advised JWRL of the substance of that telephone call, after which they both went looking for JM. AL gave evidence of the events at the time of the fatal altercation and confirmed that the person present with Mr Rowe was RC (ts 814).
In cross‑examination AL described RC as 'a dero'. He stated that he was not surprised to hear that JM had been 'mobbed' by a group including RC. He amplified these observations in the following terms, when asked the following questions (of RC):
Did he have a particular reputation that you were aware of - your understanding of his reputation---Well, obviously it's one of the biggest deros in Woodvale so---
Biggest - biggest what---Deros in Woodvale.
…
And by that you mean that he had a reputation for fighting people---Pretty much, yeah, bashing people (ts 858).
RM was called by the State. During his evidence‑in‑chief, he confirmed the statement in his deposition to the effect that he was a friend of JWRL. He stated that JWRL was:
[A] very close friend of mine. I've been friends with him from year 8. We were in the same contact class in high school (ts 986).
That evidence, known to the prosecutor from the deposition, gave rise to the very real prospect that RM would have told JWRL of the incidents involving an assault and a threatened assault by RC, as in fact he had.
After the State closed its case, JWRL gave evidence. His evidence was to the effect that he thought the person next to Mr Rowe in the laneway was either RC or KM. When asked of his state of mind at the time of the confrontation, he stated that he 'was scared we were going to get bashed. … By [RC] and his gang that just bashed [JM]' (ts 1049).
The prosecutor devoted a significant part of his closing address to the jury to RC and the evidence concerning his propensity to violence. In the course of his address he conducted a detailed review of the evidence concerning RC and his involvement in violent events. He suggested that much of the evidence related to events which occurred after the fatal altercation, and that the jury should attach less weight to that evidence (ts 1217) and therefore, inferentially, greater weight to evidence of violent incidents prior to 31 October 2008. Of course, his breach of the obligation of disclosure meant that the jury had not heard of the two incidents involving RC and RM in September 2008, and of which the prosecutor was aware.
He further suggested to the jury that the defence was using the evidence relating to RC and his violent propensities 'as a smoke screen'. He suggested to the jury that the defence strategy was:
Let's throw as much mud as we possibly can at [RC]. Let's divert the jury's attention away from what really happened that night. Let's make out [RC] to be this nasty person and that's why the accused is acting as he was (ts 1218).
The prosecutor accepted, in his address to the jury, that JWRL 'had heard stories about [RC]'. However, he put to the jury that there was no evidence which besmirched RC's character as a result of any incident which occurred prior to the night in question (ts 1224 ‑ 1225). In this context, the prosecutor stated to the jury:
Where's the actual evidence of [RC] being some sort of thug who goes around bashing people for no reason whatsoever on a regular basis? There isn't. We've got this evidence about him and [JM], fine. [AL] said, 'He's the biggest dero in Woodvale', but he hadn't actually witnessed [RC] being violent to anyone before (ts 1223).
That assertion was made to the jury less than three weeks after the prosecutor had been told by RM of the unprovoked violent attack by RC upon him, and the subsequent threat made to him by RC. Putting the case to the jury in the way in which the prosecutor did, with that undisclosed knowledge, was a serious departure from appropriate prosecutorial and professional standards.
During the course of this appeal, the State denied that there had been any breach of the obligation of disclosure. In the circumstances which I have related, that assertion is utterly indefensible. The State's failure to concede that there had been a breach of the obligation of disclosure, and a serious breach at that, suggests that there is a continuing misconception within the Office of the Director of Public Prosecutions as to the ambit and significance of that obligation. If there is such a misconception, it should be remedied immediately.
Given that the State's failure to comply with its obligations of disclosure resulted in evidence known to the State not being led as to the previous violent propensities of RC, it would be quite unfair, and contrary to public policy, to entertain the State's contention that the evidence led at trial did not sustain the trial judge's conclusion that JWRL believed, on reasonable grounds, that his act in striking Mr Rowe was a necessary and appropriate response to the threat with which he was confronted. But in any event there was ample evidence to justify that finding.
JWRL gave evidence that he believed RC to be 'a violent and an angry person that was in a gang that goes round beating up people and robbing them' (ts 1042). His evidence was that his belief was based on personal experience (and he related two incidents involving RC in his evidence) and upon what he had been told. As I have mentioned, AL gave evidence of RC's reputation in Woodvale for fighting and bashing people. JM gave evidence of an unprovoked assault by RC earlier on the evening in question, and that he had been in previous altercations with RC (ts 435). RC admitted the assault upon JM in the course of his evidence. Further, the contextual evidence, both generally and specifically relating to the evening in question to which I have referred in relation to the previous particular provides further support for the finding made by the trial judge. That finding was clearly open to him. The State's contentions on this topic should be rejected not only because of its own misconduct, but also because they are without factual foundation.

Ground 3.1(e): The trial judge's evidentiary rulings regarding the respondent's belief

The next particular advanced by the State asserts that the finding of the trial judge that JWRL believed his act in striking Mr Rowe was a necessary and reasonable response to the threat with which he was confronted should be set aside for the additional reasons that:
(a)the trial judge had refused to allow the prosecution to call rebuttal evidence at trial which the State contends could have disproved one basis for this belief; and
(b)had refused to allow prosecuting counsel to cross‑examine JWRL at trial on those parts of his video record of interview which were inconsistent with his evidence on the question of whether he believed RC to be present at the scene at the time of the fatal altercation.
These contentions misconceive the process of fact finding for the purpose of sentence. As I have mentioned, the trial judge was obliged to find facts relevant to sentence from the evidence adduced at trial, augmented by non‑contentious material placed before him during the sentencing process, or, in the event of contention, further evidence led on the trial of an issue relevant to sentence. The State was aware, at the time of the sentence hearing, that it had been refused the opportunity to lead rebuttal evidence, or to tender the video record of interview of JWRL, or to cross‑examine him upon it. No attempt was made by the State to lead further evidence on any of those matters prior to the passing of sentence. Accordingly, the matters to which the State refers in support of this ground were not in evidence before the trial judge, nor are they in evidence before this court. The State's contentions are misconceived and must be rejected. And in any event, as I have already observed in relation to ground 3.1(d), there was ample evidence to sustain the relevant finding of the trial judge.
Although not particularised in the notice of appeal, in submissions the State also relied upon what it asserted was the error of the trial judge in allowing evidence of violent incidents involving RC subsequent to the fatal altercation to be led at trial. For the reasons I have already given regarding the State's misconduct in relation to evidence concerning RC's violent propensities, this proposition should not be entertained by this court. However, and in any event, as I have already observed, there was ample evidence of events prior to the altercation between Mr Rowe and JWRL to sustain the finding of the trial judge as to JWRL's subjective belief at the time of the assault, and in relation to the objective reasonableness of those beliefs.

Ground 3.1(f): JWRL's reason for the carrying the stake

The State takes issue with the following observations made by the trial judge at the time of passing sentence:
The picture painted for the prosecution in the course of the trial was that JWRL was carrying this 'weapon' without any justification and by so doing exhibited an inclination and a preparedness to use violence. It was put that he was not under any direct personal threat at any time in the evening, even during the fatal encounter, and that there was no lawful justification for him to have armed himself with such a weapon. Again these submissions were chiefly relevant to the case for murder which was being presented. These were features of that case which, according to the prosecution, would allow the jury to infer, along with other evidence, that JWRL was intent upon, or ready to use, such force as would be likely to cause serious bodily injury. That approach must be regarded to have been rejected by the jury and I also reject it [70].
The State asserts that its submissions as to JWRL's reasons for carrying the stake were not only relevant to the murder case, but also relevant to the issue of self‑defence, and challenges the assertion that its submissions must be taken to have been rejected by the jury.
The State's contentions misconstrue what was said by the trial judge. The trial judge did not state that its submissions were irrelevant to the issues relating to self‑defence, but rather, that the issue of JWRL's intent prior to the altercation, when he took up the stake, was principally relevant to the murder case. That proposition is undoubtedly correct.
For the reasons I have already given, it was unnecessary for the trial judge to enter into speculation as to the process of reasoning undertaken by the jury, as there are a number of potential reasons why the jury might have concluded that the State had excluded self‑defence. However, it is significant that in the portion of the reasons set out above, the trial judge also expressed his own view. Further, the findings he made for the purposes of sentence with respect to JWRL are contained in the following portion of his reasons:
I am satisfied that the reason that JWRL picked up this stick, as he did from a nearby park just after leaving HK at her home; why he carried it with him until he met AL and other friends at the primary school carpark; and why he continued to carry it when he went with AL in search of JM; was because he was afraid of being confronted or attacked by some group of youths whom he knew to be in the vicinity that night and whom he had reason to fear because of prior encounters [71].
Given the evidence to which I have referred above, that finding was plainly open to the trial judge on the evidence. The State's challenge to that finding must be rejected.

Ground 3.2: The degree of force used

The State further asserts, under this ground, that the trial judge erred in assessing the degree of aggression involved because the offence involved:
(a)a deliberate blow to the area of the deceased's head;
(b)a blow from behind the deceased;
(c)the use of a weapon; and
(d)the use of considerable force.
Dealing with these propositions in turn, first, there is no doubt that JWRL struck Mr Rowe in the head with the stake. However, JWRL's evidence was that he was aiming for his arms, and had his eyes closed at the time the blow was struck.
In relation to JWRL's position at the time the blow was struck, I have already given my reasons for the conclusion that it was open to the trial judge to fail to be satisfied that JWRL struck Mr Rowe from behind.

In relation to the characterisation of the stake as a 'weapon', I have already given my reasons for concluding that it was open for the trial judge to find that JWRL believed, on reasonable grounds, that carrying the stake was necessary and appropriate for his own protection.
In support of its contention that the trial judge underestimated the degree of force used by JWRL at the time of striking the blow, the State asserts that there was no evidence suggesting that the wood had broken in half at 'a point of clear weakness', as described by the learned sentencing judge (sentencing remarks [69]). The State submits that the only evidence as to the composition of the stick came from the respondent himself who stated that it felt 'kind of rotten'.
This is an extraordinary submission. It appears to ignore the best evidence of the condition of the stake, which is the stake itself. The stake was tendered in evidence. It is apparent from even the most superficial observation of the exhibit that the description by the trial judge of the stake having broken at a clear point of weakness, where there is a significant reduction in the width of cross‑section of the stake due to weathering, splitting and natural knotting is entirely correct. Further, JWRL's evidence to the effect that the stake 'felt kind of rotten' is corroborated by a superficial inspection of the stake, which shows numerous splits in the wooden fabric due to age and weathering.
The State's submission on this topic should never have been made. It is utterly without foundation.
But in any event, as I have already noted, the trial judge expressly found that JWRL struck the blow with considerable force. In that regard, his Honour referred to the evidence from Dr McCreath and to the fact that the stake broke in half as a result of the blow (sentencing remarks [28]).
For these reasons, the various contentions advanced by the State under ground 3 in respect of the findings of fact made by the trial judge must be rejected.

Ground 2

Ground 2 takes issue with the following observations made by the trial judge in the course of his sentencing remarks:
These observations about the variability of culpability and therefore the absence of a tariff of sentences in relation to cases of manslaughter apply with even greater force to cases of unlawful assault occasioning death because, unlike manslaughter or culpable driving causing death, the s 281 offence does not entail any component of culpable negligence. This means that it must be regarded as an offence of less severity than manslaughter or culpable driving causing death. This has obvious implications for the approach to sentencing in a case of an offence under s 281. [19]
In particular, the State asserts that the trial judge erred in law when asserting that an offence contrary to s 281 of the Criminal Code must be regarded as an offence of less severity than the offence of culpable driving causing death.
It is important to place the observations made by the trial judge in context. The observations were made in a portion of his Honour's remarks in which the dominant point being made was that because of the great range of circumstances that might constitute the commission of an offence like manslaughter, or a contravention of s 281, there is no tariff for offences of that kind. When read with other portions of his Honour's remarks, it is clear that the general approach taken by the trial judge was that while some cases of manslaughter, or dangerous driving causing death may result in a sentence of immediate imprisonment, such a sentence is not inevitable in each and every case. Rather, the point being made by his Honour was that the appropriate sentence depends critically upon the particular circumstances of the offence, and of the offender.
Viewed in that context, it would not be appropriate to construe his Honour's remarks as meaning to connote that each and every offence contrary to s 281 of the Criminal Code must be regarded as less serious than each and every offence of culpable driving causing death. Given his Honour's acknowledgement that some cases of each offence might result in a term of immediate imprisonment, while others may not, such a meaning cannot have been intended. Accordingly, I would construe the passage to which the State refers as conveying the meaning that, generally speaking, and subject to the particular circumstances of the case, offences contrary to s 281 should generally be regarded as less serious than offences of manslaughter or culpable driving causing death.
The State makes no complaint about the observation that, generally speaking, contraventions of s 281 should be regarded as less serious than the offence of manslaughter. That is because the offence of manslaughter requires that death be the foreseeable consequence of the actions constituting the commission of the offence. Section 281 has no such requirement. Further, the maximum penalty for manslaughter is 20 years imprisonment, whereas the maximum penalty for a contravention of s 281 is 10 years imprisonment. This indicates the view of the legislature in relation to the relative seriousness of the two offences.
In relation to his Honour's observations in respect of culpable driving causing death, it is not immediately clear whether, in this context, his Honour was referring to the offence created by s 284 of the Criminal Code (which does not relate to death caused by culpable driving of a motor vehicle), or the offence created by s 59 of the Road Traffic Act 1974 (WA) of dangerous driving causing death (which does relate to motor vehicles). However, in either case, as the trial judge points out, an element of each offence involves driving a motor vehicle or other conveyance in a manner that is, in all the circumstances of the case, dangerous. By contrast, s 281 has no such requirement. However, s 281 does require, as an element of the offence, that the offender commit an unlawful assault. With respect to the trial judge, I do not think it can be said that an offence which has, as one of its elements, the commission of an unlawful assault, can generally be said to be a less serious offence than an offence which has, as one of its elements, dangerous driving. That conclusion is reinforced by the fact that the maximum sentence imposed by the legislature for an offence contrary to s 281 is the same as the maximum sentence available for contraventions of s 284 of the Criminal Code and of s 59 of the Road Traffic Act, where death is caused (unless, in the case of the Road Traffic Act offence, circumstances of aggravation are present). Accordingly, even read subject to the important contextual qualification to which I have referred, I would not agree with the proposition that contraventions of s 281 should, generally speaking, be regarded as less serious than contraventions of s 284 of the Criminal Code or s 59 of the Road Traffic Act.
However, there is no reason to suppose that this observation led the trial judge into error. As I have already mentioned, the emphasis of his sentencing remarks was to the effect that there was generally no tariff for offences of this character, in that the appropriate sentence depended critically upon all the circumstances of the offence and of the offender. Further, to the extent that the trial judge took into account sentences imposed for other offences, he took account of sentences imposed for the offence of manslaughter, rather than sentences imposed for culpable driving causing death or dangerous driving (see sentencing remarks [101]). As I have observed, the State makes no complaint about his Honour's observation that, generally speaking, an offence contrary to s 281 of the Criminal Code should be regarded as less serious than the offence of manslaughter.
Accordingly, while I accept that the trial judge was in error to make the comparison which he made between the general severity of offences contrary to s 281 of the Criminal Code and offences of culpable driving, I do not accept that this observation caused him to fall into error in relation to the sentence which he imposed upon JWRL. For that reason, I would dismiss ground 2.

Ground 4

Ground 4 arises from the following observations made by the trial judge at the time of passing sentence:
Taking the range of penalties encountered for the more serious offence of manslaughter as a preliminary guide, and adjusting those having regard to the fact that this offence, unlike manslaughter, involves an accidental killing, it seems that, for a first offence and for a young offender, no more than around three years' imprisonment would be justified as a starting point. Having regard to the other mitigating factors and to the principles emerging from The State of Western Australia v BLM (supra) that must be reduced by a factor of approximately one-third, which gives a general indicative range of approximately two years' imprisonment subject to parole. [101]
The State asserts that the trial judge 'erred in law in finding that the principles espoused in the case of The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 required that the appropriate term of imprisonment be reduced by one‑third'. That case arose out of the repeal of the so‑called 'transitional sentencing provisions'. Those provisions required that sentencing judges discount by one‑third the sentence to be imposed to ensure that no disparity in total sentences arose from the abolition of the automatic application of one‑third remission which previously applied. The majority in BLM held that, except for cases in the worst category, where there is an established range of sentences capable of affording comparison, a sentencing judge must now have regard to the minimum term which would have been required under that range of sentences and tailor the sentence to be imposed so as to avoid an unjustifiable disparity in respect of the minimum custodial period to be imposed.
If the trial judge had made the finding attributed to him by the State, it would plainly have been an error. Section 281 of the Criminal Code created the new offence of unlawful assault causing death in 2008. It commenced operation on 1 August 2008. Obviously no sentences were imposed for that offence before the introduction of the so‑called 'transitional sentencing provisions' in 2003, and we were not referred to any sentences imposed for that offence before those provisions were repealed with effect from 14 January 2009. Accordingly, there is no pre‑established sentencing range and so the principle enunciated in BLM to which I have referred can have no application to cause any reduction in a sentence properly imposed for a contravention of s 281.
However, when the portion of the trial judge's reasons set out above are read in context, it is clear that his Honour was taking, as his starting point, a range derived from sentences imposed for the offence of manslaughter. Because of his view of the relative seriousness of the offence of manslaughter, as compared to a contravention of s 281, he has clearly adjusted downwards the indications of range that he has taken from the penalties imposed for the offence of manslaughter, in order to arrive at a starting point of around 3 years imprisonment for JWRL's contravention of s 281. If the sentences for manslaughter to which his Honour was referring for the purpose of undertaking that process were imposed prior to 2003 (when, as I have explained, automatic remission of one‑third of the sentence imposed was applied to all sentences), the process would be invalid unless the figure arrived at was reduced by one‑third, to allow for the abolition of remission.
The reasons given by the trial judge do not specify with particularity the sentences for manslaughter to which he had regard for the purposes of the process he undertook. However, references to penalties imposed for manslaughter are found in various other parts of his Honour's reasons. Most of the cases referred to by his Honour in that regard precede 2003. One exception is Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48 where Buss JA conducted a review of sentences imposed for manslaughter arising from the use of a motor vehicle. However, at the completion of that review, Buss JA observed that all the cases which he had considered were decided prior to 2003, with the result that any indication of sentence derived from that review would have to be reduced by one‑third: Penny [87]. Similarly, in Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81, another case referred to by the trial judge, indications of sentencing range derived from decisions made prior to 2003 were adjusted to take account of the transitional provisions: Taylor [43] (Miller JA).
The trial judge is an experienced judge of this court who can be taken to be cognisant of the various changes in relation to remission and sentencing practice between the period prior to 2003 and the present. It would be obvious to anyone with that knowledge that a downward adjustment of one‑third to an indicative sentencing range would only be appropriate if the range was derived from sentences imposed prior to 2003. When regard is had to the cases specifically referred to by the trial judge at various parts of his reasons, it seems clear that the process described by the trial judge, in which he derived a starting point by reducing a starting point derived from sentences imposed for manslaughter was undertaken by reference to sentences imposed for manslaughter prior to 2003. On that basis, in order to make that starting point comparable to sentences imposed today, when there is no automatic remission of one‑third, a deduction of one‑third was entirely appropriate. Accordingly, when properly construed and read in context, the portion of the reasons set out above does not reveal error. Ground 4 must be dismissed.

Ground 1

Ground 1 asserts that the sentence of 2 years imprisonment, suspended for 2 years, imposed by the trial judge is so inadequate as to manifest error. Accordingly, the principles to which I earlier referred concerning the limited role of an appellate court on a sentence appeal enunciated in cases such as House, Dinsdale and Lowndes are apposite.
The submissions advanced in support of this ground identify a number of specific errors, and the ground itself refers to a number of general considerations. I will deal first with the specific errors asserted by the State.

Reference to the length of wood as a 'stick'

At a number of points of in his sentencing remarks, the trial judge referred to the length of wood carried by JWRL as a 'stick'. That is the term that was used by JWRL in the course of his evidence. However, that was not the exclusive terminology used by the trial judge, and on some occasions he referred to the piece of wood as a 'stake', as I have noted.
As I have indicated, I have viewed the length of wood which is an exhibit. I would not describe it as a 'stick', nor would I consider that term likely to be used by a member of the public viewing the length of wood. It is I think more properly described as a stake (which is the term often used by the prosecutor and sometimes used by the trial judge), or perhaps as a 'piece of wood'.
However, nothing turns on this. As I have indicated above, the findings made by the trial judge in respect of the breakage of the length of wood at a point of weakness are plainly justified by superficial observation of the exhibit. More importantly, however, as I have already indicated, the trial judge found that considerable force was used when JWRL struck the blow, referring expressly to the forensic evidence given by Dr McCreath, and the fact that sufficient force was used to break the stake (sentencing remarks [28]).

Rejection of the State's submission that JWRL carried the stake as a weapon

This aspect of the State's submissions under ground 1 relies upon the assertions made under ground 3 to the effect that the trial judge erred by rejecting the State's submission that it should have been concluded that JWRL was carrying the stake as an offensive weapon to be used to exact violence upon others. I have set out above the reasons for my conclusion that it was open to the trial judge to find, as he did, that JWRL carried the stake for his own protection, because of his belief, based on reasonable grounds, of the risk of harm which he faced.

Use of the stake as a weapon constituting an aggravating circumstance

Next the State asserts that the trial judge erred in failing to find that the use of the stake constituted an aggravating circumstance. However, that submission must be viewed in a context in which the trial judge found that JWRL believed that use of the stake was a necessary and reasonable response to the risk of harm which he apprehended, and that JWRL's belief was objectively reasonable in respect of the first of those beliefs. I have set out above my reasons for concluding that such a finding was open to the trial judge. Accordingly, on the findings made by the trial judge, JWRL's culpability essentially lay in the lack of reasonable grounds for his belief that striking Mr Rowe with the stake was a necessary and reasonable response, given the excessive force which JWRL used.
The State's complaint that the trial judge failed to expressly enunciate the use of the stake as an aggravating circumstance is essentially semantic. As the sentencing judge made clear, he considered that JWRL's use of the stake with excessive force, causing the death of Mr Rowe, was the culpable conduct for which he was imposing sentence. In those circumstances, describing the use of the stake as aggravating would have been tautological, as it was essentially the forceful use of the stake for which JWRL was being sentenced. The State's complaint lacks substance and should be rejected.

JWRL's prior criminal record

During the sentencing hearing, the State tendered and relied upon prior convictions sustained by JWRL which were entirely irrelevant to the offence of which he was convicted, and to the sentence properly imposed for that offence. The State complains that when excluding those convictions from consideration, the trial judge asserted that JWRL 'should be regarded as a person of prior good character'. Those words are not accurate, given JWRL's prior convictions. However, the important point which the State concedes is that the prior convictions are irrelevant to the sentence properly imposed for the offence of which JWRL is convicted. The point taken by the State is pedantic, given that the inaccurate observation made by the trial judge had no bearing upon the sentence properly imposed, given the State's appropriate concession that the prior convictions are irrelevant.

The finding of remorse

The State complains that the trial judge should not have found that JWRL had expressed remorse for the commission of the offence, relying upon the evidence given at trial as to JWRL's conduct immediately following the offence. However, the trial judge made his finding based upon a pre‑sentence report which he received in which the author of the report recorded JWRL's expression of regret. During the sentencing process, the State did not suggest that there should be a trial of an issue on that topic, and accordingly it was open to the trial judge to accept the proposition contained in the pre‑sentence report provided to him.
For these reasons, there is no substance in the particular complaints identified by the State under ground 1, which should be rejected.
The general considerations identified by the State in the ground itself are:
(a)the serious nature of the offence and the circumstances in which it was committed;
(b)the need for general deterrence;
(c)the need for punishment for offending of this nature; and
(d)an asserted undue regard paid by the trial judge to the personal circumstances of the respondent.

Dealing firstly with the nature of the offence and the circumstances, as I have already indicated, essentially the trial judge found that the assault committed by JWRL upon Mr Rowe would have been justified by self‑defence but for the excessive force used by JWRL rendering unreasonable his belief that the force was reasonable and appropriate. Accordingly, the sentence imposed by the trial judge is to be assessed on the basis that the essential culpability of JWRL lay in the use of excessive force in a circumstance in which the use of lesser force would have been justified. That is a characteristic which puts this offence at the lower end of the range of culpability in the spectrum of circumstances that might constitute the commission of an offence contrary to s 281 of the Criminal Code.
Turning then to the issues of general deterrence and punishment, it is of significance that s 281 can be contravened when death was neither foreseen nor reasonably foreseeable. As the trial judge observed, that important consideration distinguishes this offence from the offence of manslaughter. Put another way, the offence created by s 281 comprises two components: the culpable conduct of the offender, which lies in the commission of an unlawful assault, and the consequences of that conduct, namely, death, which need be neither foreseen nor reasonably foreseeable. If the consequence of death was foreseen or reasonably foreseeable, the offence of manslaughter would apply. JWRL was acquitted of manslaughter.
Deterrence has no part to play in relation to a consequence which is neither foreseen nor reasonably foreseeable. Deterrence can only play a role in relation to the element of the offence created by s 281 which involves the commission of an unlawful assault. However, the level of punishment appropriately imposed obviously must take account of the consequence of the unlawful assault, namely, the death which it caused.
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: see Wood v The Queen [2002] WASCA 95; (2002) 130 A Crim R 518 [72]; Inge v The Queen [1999] HCA 99; (1999) 199 CLR 295, 314 ‑ 315 (Kirby J) 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.
In relation to the issue raised by the State in respect of the personal circumstances of JWRL, it is to be remembered that JWRL was a juvenile at the time of the commission of the offence with no relevant prior convictions. Those circumstances, and the prospects for JWRL's rehabilitation, were important factors properly taken into account by the trial judge. There is no substance in the State's assertion that the trial judge gave undue weight to those considerations.
The critical question in this case is whether, on the facts found by the trial judge, and having regard to the personal circumstances of JWRL, including his youth and lack of prior relevant convictions, a sentence of 2 years imprisonment suspended for 2 years was outside the range of sentences open to the trial judge, so as to manifest error.
As I have indicated already, the relevant facts found by the trial judge were that JWRL was a young man of 17 years of age, with no relevant prior convictions, responding to a situation not of his making, in which he had a reasonably‑based fear of an imminent assault upon AL and/or himself. He overreacted to that circumstance and used excessive force. The degree of force which he used has to be seen in the context of the failure of the State to establish beyond reasonable doubt that death was foreseen or foreseeable. If the jury had considered that the force used by JWRL was force of a kind which would have given rise to the foreseeability of death, the jury would have convicted of manslaughter. In this context, JWRL's evidence to the effect that he was aiming for Mr Rowe's arms, not his head, that it was extremely dark, and that he closed his eyes at the time of striking the blow are of significance.

Given that JWRL caused Mr Rowe's death by striking him on the head with a piece of wood using considerable force, a sentence of imprisonment was appropriate.
However, as the culpability of JWRL essentially lies in the use of excessive force in a situation in which the use of lesser force would have been justified, that period is appropriately placed at the lower end of the range, given the age and antecedents of JWRL.
The State did not forcefully press any submission that a sentence of 2 years imprisonment was outside the range of sentences properly open to the trial judge. The State's essential complaint was directed at the decision of the trial judge to suspend that sentence. However, having regard to the youth of JWRL, his lack of any prior relevant conviction and the fact that he had spent 94 days in custody prior to sentence, it was open to the trial judge to conclude that the prospect of JWRL's rehabilitation would be enhanced by the suspension of the sentence, and that course was not precluded by the level of culpability properly attributed to JWRL, given the circumstances in which he found himself on that fateful evening.
In all these circumstances it cannot be said that the imposition of a term of imprisonment of 2 years, suspended for 2 years, was outside the range of sentences open to the trial judge. No error has been demonstrated, and ground 1, and the appeal, should be dismissed.
McLURE P: I agree with the Chief Justice, generally for the reasons he gives, that the sentencing judge made no material error of fact or law in sentencing the respondent. Thus the appeal must be dismissed. I propose to state my own views on a number of matters, starting with the State's challenge to the conclusions of the sentencing judge in [28] of his reasons. The sentencing judge was satisfied that:
(a)the jury could not have accepted that the prosecution excluded, as a reasonable explanation for what had occurred, that the respondent believed his act in striking Steven Rowe was necessary to defend AL and/or himself from a harmful act, namely an immediate assault by Steven Rowe and a high probability of an assault also by RC of both AL and himself and probably by others who were likely to come to their aid;
(b)on any objective assessment, the respondent had reasonable grounds for the belief referred to in (a);

(c)the respondent believed that his was a reasonable response in the circumstances, not being motivated by any desire to do anything more than to prevent Steven Rowe from assaulting his friend, to break off the encounter and to allow AL and himself to escape;
(d)the plea of self defence broke down and failed at the point of whether or not there were objectively reasonable grounds for the respondent to believe that his action was a reasonable response in the circumstances.

The matter in (a) is the sentencing judge's conclusion as to the effect of the verdicts. The matters in (b) and (c) are the sentencing judge's own factual findings. The matter in (d) is the sentencing judge's conclusion based on the matters in (a), (b) and (c). However, it is clear when [28] is read with [3] that the sentencing judge was of the view that his conclusion in (a) was not only mandated by the verdicts but also reflected the sentencing judge's own finding based on the evidence. I agree with the Chief Justice for the reasons he gives that the State must fail in its challenge to the sentencing judge's findings that the respondent had a genuine and reasonably based belief that his act in striking Mr Rowe was reasonably necessary to defend his friend AL and himself from a harmful act by Mr Rowe and probably by others. The sentencing judge was aware that the harmful act from another person need not be imminent (s 248(4)(a)).
The appellant challenges the correctness of the conclusions/findings in (a), (b) and (d) but not (c). However, it should be noted that the finding in (c) does not strictly correlate with an element of the defence of self defence in s 248 of the Criminal Code (WA). Under s 248(4), a person's harmful act is done in self defence if, inter alia, the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be and there are reasonable grounds for that belief. Thus the test of a reasonable response is objective having regard to the circumstances as the person believes them to be, the belief as to which circumstances must also be reasonable. Thus, I take the conclusion in (d) to be that the State negatived self defence on the basis that the respondent's response was not reasonable because of the use of excessive force. That conclusion follows from the sentencing judge's findings about the respondent's beliefs referred to in (a) and (b).
In the circumstances, it is unnecessary to determine whether the sentencing judge erred in concluding that the jury could not have accepted that the prosecution excluded, as a reasonable explanation of what had occurred, that the respondent believed his act in striking Mr Rowe was necessary to defend AL or himself.
I agree with the Chief Justice that the prosecution breached its continuing duty to disclose to the respondent the information provided by RM to officers of the DPP on 8 October 2009 concerning a person he knew as 'R'. The respondent's video record of interview with police provides no foundation for the prosecution's failure to disclose the material before the commencement of the trial. In particular, there is no justification for the inappropriately narrow focus on the respondent's identification evidence of the two men he and AL met in the dark pathway. In his record of interview, the respondent referred to violent gangs operating in the Woodvale area (ts 15); the steps he took on the night in question to avoid gang activity (ts 15); that just prior to the encounter with Mr Rowe, one of AL's friends had been beaten up by five people (ts 16); that members of the gangs in the area usually carry weapons (ts 18); the respondent picked up the wooden stake for protection (ts 19); the respondent and AL ran from the scene because 'these gangs are usually on drugs and beat you up senselessly' (ts 20); that the respondent had been mugged by a gang before; and that a person named 'R' was a member of a gang who was always blocking people and the respondent had a couple of friends that R had mugged (ts 23). Thus, it was apparent from the video record of interview that self defence would be an issue at trial and that it extended beyond the threat posed solely by the two people encountered on the dark pathway.
Thus, the information provided by RM to the prosecutor prior to trial was evidentiary material relevant to the charge (Criminal Procedure Act 2004 (WA) s 42(1), s 95) and should have been disclosed to the respondent. It is unnecessary to determine whether the statutory expression 'relevant to the charge' includes material that is potentially relevant. I doubt that it does. However, I agree with the Chief Justice's criticisms of the conduct of the prosecution in relation to the proceedings against the respondent.
My final observation relates to a particular of ground 1, being that the imposition of a suspended term of imprisonment of 2 years reflected an erroneous assessment of whether the respondent had demonstrated remorse. The sentencing judge made a factual finding based on the evidence at trial that the respondent had demonstrated genuine concern and regard for the loss of a life [53]. This was clearly a credibility based assessment. No attempt was made by the State to provide the court with references to all the relevant evidence on the subject. It has fallen well

short of raising even an arguable challenge to the sentencing judge's finding on remorse. In any event, the evidentiary references supplied by the respondent (and the pre‑sentence report) support the finding. Having regard to all relevant sentencing factors, there is no merit in the appellant's claim that the sentence was manifestly inadequate either in the length of the term of imprisonment or its suspension.

BUSS JA: I agree with the Chief Justice that the sentencing judge, EM Heenan J, made no material error of fact or law and that in consequence the appeal should be dismissed. Subject to two qualifications, I agree with the Chief Justice's reasons. The first qualification is that, for the reasons McLure P gives, it is unnecessary to determine whether the sentencing judge erred in concluding that the jury could not have accepted that the prosecution excluded, as a reasonable explanation of what had occurred, that the respondent believed his act in striking Mr Rowe was necessary to defend AL or himself. The second qualification is that, for the reasons McLure P gives, it is unnecessary to determine whether the statutory expression 'relevant to the charge' in s 42(1) and s 95 of the Criminal Procedure Act 2004 (WA) includes material that is potentially relevant.