The State of Western Australia v JWRL [No 4]

[2009] WASC 392

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JWRL [No 4] [2009] WASC 392

CORAM:   EM HEENAN J

HEARD:   30 OCTOBER & 11 DECEMBER 2009

DELIVERED          :   11 DECEMBER 2009

FILE NO/S:   INS 93 of 2009

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecution

AND

JWRL (a child)
Accused

Catchwords:

Criminal law - Sentencing - New offence - Unlawful assault causing death - Code s 281 - Accidental death - Young offender - Offender on way to rescue friend attacked and pursued by group of youths - Assault by victim - Excessive force in self defence - Prior good character - General sentencing principles

Legislation:

Criminal Code (WA), s 281
Sentencing Act 1995 (WA)
Young Offenders Act 1994 (WA)

Result:

Imprisonment for 2 years, suspended for 2 years

Category:    B

Representation:

Counsel:

Prosecution                  :     Mr G J Huggins and Mr S B Sandover

Accused:     Mr R W Richardson

Solicitors:

Prosecution                  :     Director of Public Prosecutions (WA)

Accused:     Lavan Legal

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

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

D'Amico v The Queen [2000] WASCA 343; (2000) 33 MVR 148

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Kinmond v The Queen (1982) 5 A Crim R 413

Mason v The State of Western Australia [2005] WASCA 125

McKenna v The Queen (1992) 7 WAR 455

Norris v AT (A Child) [2003] WASCA 54

Penny v The State of Western Australia [2006] WASCA 173

R v Cascoe [1970] 2 All ER 833

R v Churchill [2000] WASCA 230

R v Isaacs (1997) 41 NSWLR 374

R v Liddington (1997) 18 WAR 394

R v Pisciuneri [2007] NSWCCA 265

R v Stebbings (1990) 4 WAR 538

Taylor v The State of Western Australia [2007] WASCA 218

The State of Western Australia v BLM [2009] WASCA 88

EM HEENAN J: 

Brief overview

1. Every so often the public is provided with stark reminders that even relatively minor anti‑social behaviour within sections of the community, if not controlled or checked, will, through a cascade of other circumstances, produce tragic, unexpected and accidental consequences.  Nowhere is this more apparent than in the events which led to the tragic death of Steven Rowe in the pedestrian laneway between Delonix Circle and Woodvale Drive on the evening of 31 October 2008.  The prevailing pattern of anti‑social behaviour in the general area consisted of groups of youths often gathering together at street corners and elsewhere and engaging in under-age drinking; other groups becoming involved in the practice of defacing walls, fences and other surfaces in the area with graffiti ‑ a habit which appears to have earned participants some dubious degree of notoriety; a prevailing pattern of bullying rising to episodic assaults and thefts by members of these groups from other young youths against whom they could flaunt their power; and corresponding concern and fear by those who had to suffer the ordeals and oppressions of living and travelling in an area where these activities were prevalent.

2. That this could happen and eventually result in the death of an 17‑year‑old young man is not only an appalling tragedy for the deceased and his family but it is an alarm call to the entire community to recognise realistically and unflinchingly what has been happening in our suburban streets.  It calls for a better recognition of the real threats and consequences of what might otherwise be regarded as low level anti‑social behaviour or offending and for the need to make measured judgments which recognise that a multitude of minor causes can contribute to an occasion where a crime is committed, where the offender's conduct is just a part, obviously an important part, of the overall tragedy.  Unless the community views such incidents from this wider perspective, some will be deceived into thinking that action directed to one individual offender, and the punishment which he necessarily deserves, will somehow be sufficient to prevent or deter similar offences in the future.  To adopt this latter view would be to indulge in a form of  optimistic self‑delusion and would be more likely to obstruct constructive community responses needed to deal with these more widespread problems than it would be to yield any lasting positive effects.

Trial and conviction

1. The crime of JWRL causing the death of Steven Rowe by an unlawful assault contrary to s 281 of the Criminal Code occurred in circumstances which, but for the establishment of that new offence on 1 August 2008, would not have been an unlawful homicide.  JWRL was acquitted by verdicts of the jury of the more serious charges of murder and manslaughter.  Having regard to the evidence, this must mean that the jury was not satisfied that the death of Steven Rowe was an event which had not occurred by accident.  On all the evidence and the verdicts of the jury, I am satisfied that his conviction resulted because the jury was satisfied beyond reasonable doubt that the requirements of lawful justification or excuse for self‑defence had been disproved.  The reason for this was that notwithstanding that when JWRL struck Steven Rowe and caused his fatal injury that was an occasion where JWRL had a genuine and reasonably based belief that he and his friend, AL, were about to be harmed by the deceased and probably by others, the force which JWRL used to respond to the actual and imminent attack upon his friend by the deceased was not a reasonable response in all the circumstances.  In short, the clear effect and meaning of the jury's verdict and my own conclusion from the evidence is that JWRL's crime resulted from the use of excessive force in what would, otherwise, have been a situation of self‑defence.

2. This raises a number of important but major issues which must be addressed in determining what sentence should be imposed by this court.  The task is made even more difficult because this is only the second occasion when anyone has come to be sentenced for this new offence of unlawful assault causing death which, because the death must be regarded as accidental, does not amount to manslaughter. 

3. As with all offences which involve causing the death of some other person, the court must acknowledge the enormity, the irreparable consequences and the stark tragedy of this death and the deep bereavement of the family and friends of the deceased. The loss which they have suffered, and the immeasurable effects which it will inevitably produce in their lives, cannot in any way be reduced by the sentence which the court imposes on the offender. This has long been realised. Nevertheless, it is the case that crimes involving homicide are of varying degrees of culpability, ranging from the most serious, murder, through manslaughter, and dangerous driving causing death, other culpable driving causing death, to this particular offence of occasioning death by an unlawful assault which does not amount, in the eyes of the law, to murder or manslaughter. These variations in the gravity and culpability of the different homicide offences are also recognised by Parliament in the variations in the sentences which may be imposed for the different crimes. This offence, against s 281 of the Code, is the least culpable variety of the different crimes of homicide. That is not to say that it is not serious or that its consequences are not tragic, permanent and destructive but, rather, that Parliament has recognised that a crime of killing may occur which does not justify, from the point of view of the community at large, a range of penalties or sentences as severe as those applicable for more serious forms of homicide.

4. This categorisation of homicide and graduation in the seriousness of penalties has been carefully chosen and accepted by Parliament after great experience, community dialogue and detailed research. The law relating to homicide in Western Australia has only recently been comprehensively re‑examined and amended as a result of a long and careful study by the Law Reform Commission of Western Australia set out in its final report of 2007. Important parts of the law in this case have been introduced as recently as 2008 because of recommendations of the LRCWA's report. However, the creation of this offence by s 281 of the Criminal Code did not result from any recommendation by the LRCWA but, rather, was the result of a response by government to particular public concern.  The new offence was also introduced into the criminal law of this State in July 2008.  Accordingly, the law which I must consider and apply in this case is, in several important respects, both modern and contemporary and is the result of careful recent research and recommendation by responsible authorities in this State.

5. The fatal blow came about because the deceased had already assaulted the offender's companion, AL, by grabbing the front of his shirt near his throat, accusing him of bashing another friend, which AL immediately denied, and speaking in an aggressive and threatening manner.  The deceased still had AL by the shirt in his left hand and had his right hand drawn back, about to punch AL somewhere in the face when the offender, JWRL, stepped forward and struck Steven Rowe with the wooden stick that he had been carrying.  There was only the one blow but it was struck with force.  Rowe dropped to the ground, AL and JWRL fled.  Steven Rowe lapsed into unconsciousness, was taken by other friends to Joondalup Hospital, received urgent neurological care and was then taken to Sir Charles Gairdner Hospital.  Tragically, he never regained consciousness and died five days later.

6. Another young man, RC, had been standing near to Steven Rowe when the fatal blow was struck.  His activities in attacking and bashing another boy, JM, without any provocation or justification, only about half an hour beforehand, significantly contributed to how the four youths met in the narrow pathway between Delonix Circle and Woodvale Drive where the fatal blow was struck and why JWRL was very afraid, as I am satisfied he was, of what was about to happen to AL and, quite possibly, to him.  To understand all this requires an appreciation of events in Woodvale on the evening of Halloween, 31 October 2008 and, further, something of the reputation which various groups of youths in the area had at the time for anti‑social conduct and of prior episodes in which various young men, including JM and the offender, JWRL, had been bashed or robbed by some of these groups.

The determination of facts for the purposes of sentencing

1. The proper approach to the determination of facts for the purpose of imposing sentence after conviction by a verdict of a jury is well‑established.  In R v Isaacs (1997) 41 NSWLR 374, 377 ‑ 378, the Court of Criminal Appeal summarised the established principles which were later approved by the High Court in Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [14]. In Cheung's case, the High Court decided, by a majority, that when making findings relevant to sentencing, a judge is not obliged to impose a sentence according to a view of the evidence most favourable to the offender.  Gleeson CJ, Gummow and Hayne JJ concluded that, provided the facts found by a sentencing judge are not inconsistent with the jury's verdict, the judge may make an assessment of an offender's degree of culpability which would not be supported by all, or perhaps any, members of the jury.  In Isaacs (supra), the Court of Criminal Appeal had stated the principles as follows (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ): 

   1.Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury … 

   2.Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing.  Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings … 

   3.The primary constraint upon the power and duty of decision‑making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury … 

   4.A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

   5.There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender … However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender … 

2. That line of authority was followed and applied by the New South Wales Court of Criminal Appeal in R v Pisciuneri [2007] NSWCCA 265 by Hislop J [57], with whom Spigelman CJ and Harrison J agreed. It is also implied in the observations of the Court of Appeal in this State in Mason v The State of Western Australia [2005] WASCA 125 [3]; (2005) 30 WAR 205, 207.

3. Accordingly, I approach the determination of the facts upon which JWRL should be sentenced on that basis.

The place of s 281 ‑ unlawful assault causing death

1. Although s 281 is contained in ch XXVIII of the Criminal Code which deals with homicide in its various forms it is an offence which stands alone, in contradistinction to the other crimes of homicide, in that it creates an offence notwithstanding that the death caused was accidental in the sense that the offender did not intend or foresee the death and also that the death was not reasonably foreseeable. For all other crimes of homicide, murder, manslaughter, culpable driving causing death, the death must be non-accidental. In that respect those other crimes of homicide reflect the long‑standing position at common law and, in this State before the enactment of s 281, that killing by misadventure or misfortune, where the act causing death is not unlawful or culpably negligent, is not a crime ‑ see Hale, 'Pleas Of The Crown' 492; Fost 264 ‑ 282; R v Nock (1877) 14 Cox CC 1 at 2; and Halsbury's Laws of England (4th ed, 2006) Reissue, vol 11(1), par 102.

2. This is because the provisions of s 281(2) expressly exclude the operation of s 23B(2) of the Code which, otherwise, provides that a person is not criminally responsible for an event which occurs by accident. Nevertheless, s 281 requires proof of an unlawful act, namely an unlawful assault upon the victim. Such an assault will, of itself, constitute an offence and render the offender liable to punishment. The distinguishing feature about s 281 is that where there is an unlawful assault, combined with the extreme result of death, a crime of particular gravity is committed. It is a crime of unlawful assault which produces lethal consequences and it is those consequences which distinguish this offence from other forms of unlawful assault.

3. Chapter XXX of the Code deals with a variety of offences of assault ranging from common assault (s 313), assaults occasioning bodily harm (s 317), assaults with specific intent (s 317A), and serious assaults (s 318).  There are also other offences under Ch XXIX involving the endangering of life or health which include disablement or wounding with some particular intent and of doing grievous bodily harm (s 297), and wounding (s 301).

4. These offences disclose that Parliament has prescribed penalties of varying severity which are, in a general way, proportionate to the gravity of the assault and/or the gravity of the purpose or intention of the offender. These provisions demonstrate that, for a long time and in many different ways, Parliament has prescribed penalties which vary in seriousness according to the nature and/or consequences of the assaults or violence done by the offender. Death being the most extreme consequence of an assault which the law recognises it is, accordingly, now regarded by s 281 as justifying the creation of an offence and the establishment of penalty which are both more serious than many other forms of assault. Under this new law a crime is committed even if the death be accidental.

5. This pattern of prescribing an offence and, in particular, a penalty which varies according to the consequences of the unlawful act is by no means novel. Sometimes it will be the case that whether or not, because of an unlawful act, death actually occurs is a consequence which has little, if anything, to do with the gravity of the offence or the degree of criminality by the offender. For example, the use of potentially fatal force, involving firearms or knives, may not result in a death due only to heroic and extraordinary efforts of medical intervention and timely resuscitation. Conversely, a relatively minor assault may nevertheless cause death because of the absence of medical attention or inevitable delay in providing it. These considerations reveal that there is a very wide spectrum of events and circumstances in which an offence under s 281 of the Code may be committed and that the degrees of culpability of offenders may also differ between wide extremes.

No tariff for the offence

1. It has often been said that there is no tariff in the sentences imposed for manslaughter because of the very wide band of circumstances in which the offence may occur and because of the great variability in the circumstances of culpability and in the personal features of offenders ‑ see per Buss JA in Penny v The State of Western Australia [2006] WASCA 173, [79] (Roberts‑Smith and McLure JJA concurring); see also D'Amico v The Queen [2000] WASCA 343; (2000) 33 MVR 148 per Ipp J. This is especially so in cases involving manslaughter arising from the use of a motor vehicle. Cases of that kind were reviewed by Buss JA in Penny (supra) at [79] ‑ [87] which was examined and discussed in Taylor v The State of Western Australia [2007] WASCA 218.

2. In R v Cascoe [1970] 2 All ER 833, 837 the English Court of Appeal noted that, with regard to sentencing, manslaughter is a crime which varies greatly in its seriousness and that 'it may sometimes come very close to inadvertence. This is one end of the scale. At the other end of the scale, it may sometimes come very close to murder.' This view is accepted and applied in this State - see R v Stebbings (1990) 4 WAR 538 and McKenna v The Queen (1992) 7 WAR 455, both cases dealing with motor vehicle manslaughter and with widely different sentences imposed. In D'Amico v The Queen [2000] WASCA 343 the Court of Criminal Appeal considered that 8 years' imprisonment was beyond the discretionary range for manslaughter and substituted a period of 5 years' imprisonment, acknowledging that sentencing was dependent upon the criminal culpability of the offender by reference to his negligence. ‑ see also R v Churchill [2000] WASCA 230 where a sentence of 3 1/2 years' imprisonment with eligibility for parole was not set aside as being inadequate in a case of a single stabbing with a knife. There have even been cases of suspended imprisonment for manslaughter where an attempt to challenge the sentence by the Crown was refused - R v McDonald [2000] WASCA 336.

3. 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.

Background leading to the creation of the offence of unlawful assault causing death

1. Section 281 of the Criminal Code, in its present form, was introduced by the Criminal Law Amendment (Homicide) Act 2008 (WA). Unlike other far‑reaching amendments to the previous law of homicide effected by that amendment, s 281 was not the product of any recommendations made by the LRCWA in its major report 'Review Of The Law Of Homicide' (final report 2007). In introducing the Bill to the Parliament the then Attorney General, the Hon Jim McGinty, said in his second reading speech:

   One-punch homicide: The Bill introduces a new offence of unlawful assault causing death in new s 281 of the Criminal Code.  This new offence is to address the so‑called one‑punch homicide cases.  An example of these types of cases is when a person who is punched falls to the ground and suffers a blow to the head from hitting the ground and dies.  Western Australia will be the first State in Australia to introduce legislation that creates an offence to deal specifically with this issue.  As the law currently applies, offenders who are charged with manslaughter in such cases are often acquitted on the basis that the death was an accident.  A death will be an accident when it was not reasonably foreseeable that death would result as a consequence of the punch.  Under the new provision, it will be irrelevant whether the death was foreseen or foreseeable, and it will also be irrelevant that the death was unintended.  The offence will be committed when a person unlawfully assaults another person who dies as a direct or indirect result of the assault.  This new offence reinforces community expectations that violent attacks, such as a blow to the head, are not acceptable behaviour and will ensure that people are held accountable for the full consequences of their violent behaviour.  A person convicted of this offence will be liable to a penalty of 10 years' imprisonment.  (Western Australia, Parliamentary Debates, Legislative Assembly, 19 March 2008, 1209 ‑ 1212 (Mr JA McGinty, Attorney General.)

2. This is only the second occasion upon which a court in this State has been required to pass sentence on an offender who has been convicted of the offence of unlawful assault occasioning death under s 281.

3. The one other occasion when an offender has been sentenced for this offence is the case of Zyrucha (127 of 2009 - 4 December 2009).  It resulted from a plea of guilty and a sentencing which occurred after the conviction of JWRL in the present case but while the pre‑sentence reports for him were still in the course of preparation.  Zyrucha was sentenced to an immediate term of 3 1/2 years' imprisonment by Simmonds J but the circumstances of that case are vastly different and cannot be compared with the present. 

4. Zyrucha, a man aged 31 years at the date of the offence, was living with a woman of about the same age who died, partly due to his conduct.  The couple had been in a relationship which appears to have involved frequent violence towards her by him and in which they both drank very heavily and resorted to a variety of illegal drugs and the misuse of prescription medicines.  The woman who died had a chronic illness, pulmonary sarcoidosis, which impeded her respiratory function.  Over a period of some two days or more immediately before her death she and Zyrucha had been drinking very heavily and had been taking drugs.  She was involved in a motor vehicle accident in which their car was damaged and she was taken for medical examination but discharged without any significant injuries being noted.  However, she was found to be unsteady on her feet and somewhat disoriented.  On returning to her home she and Zyrucha became embroiled in an argument and he hit her, 'slapped her around' in various ways.  In a second incident, several hours later, he hit her again in the area of the chest wall apparently by his fists.  She seemed very tired and sleepy and lay down and apparently went to sleep.  He slept beside her but on waking found that she was not moving.  Attempts to revive and resuscitate her failed and an ambulance crew confirmed that she was dead.  The cause of death could not be precisely established but was regarded as being due to multiple injuries, the effects of the pulmonary sarcoidosis, drug effect (stimulants, amphetamines and sedatives) all apparently leading to depressed respiration. 

5. Zyrucha pleaded guilty to a charge under s 281 on the basis that his conduct in assaulting the woman indirectly caused her death. He had a previous criminal record including convictions for attempted aggravated armed robbery, for which he had been sentenced to 2 years' imprisonment; stealing; possession of a weapon; and various drug offences. He had little education and a history of prior violence towards his father. Accordingly, the circumstances of his offence, the degree of his culpability, his age, antecedents and prior record are all in marked contrast to those of the present offender and I do not consider that it is possible to draw any parallels for the purpose of sentencing between Zyrucha's case and the present.

6. Not only are there no other precedents in this state to guide the sentencing task but, as the Attorney General's speech to Parliament disclosed, there are no other equivalent or comparable statutory provisions elsewhere in Australia and therefore no other judicial precedents for a comparable sentencing. 

7. In these circumstances, I must, therefore, have regard to the terms of the section of the Criminal Code, the general principles of sentencing as established by the Sentencing Act and those observations of courts dealing with other circumstances, which while not exactly analogous, may nevertheless provide some assistance.  In this particular case, because of this youth of this offender, regard must be had to the principles of sentencing established in connection with the Young Offenders Act 1994 (WA) but as they involve somewhat special and particular considerations, I shall defer attention to them until later.

8. For reasons which I will explain more fully later, I am satisfied that this particular offence resulted from the use of excessive force in self defence or in self defence of the offender's friend AL.  My view of the evidence at the trial which is consistent with the verdicts of the jury, is there was no intent by JWRL to cause Steven Rowe bodily injury of such a nature as to endanger or be likely to endanger his life or the life of any other person (s 279(1)(b)) and that the actual death was an accident in the sense that it was not intended or foreseen by JWRL and was not foreseeable by an ordinary person placed in the circumstances of the offender at the time.  If that had not been the case, the jury would have convicted of manslaughter. 

9. 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.

10. This is a case where the claim of self defence failed because the conduct of the offender was excessive and more than an objectively reasonable response by a person in those circumstances as he believed them to be.  Accordingly, while there were some elements of self defence present, the conduct of the offender and the force of the blow was excessive.

11. This is an important feature of the case because, in certain circumstances, the use of excessive force in self defence will be a partial defence to a charge of murder. Under s 248(3) an unlawful killing which would otherwise constitute murder, but which results from an act which would be an act done in self defence, except for the fact that the act is not a reasonable response by the person in the circumstances, as the person believes them to be, will render the offender guilty of manslaughter and not murder ‑ s 248(b). However, excessive force in self defence will not reduce the crime of manslaughter nor, as here, the crime of unlawful assault occasioning death. Nevertheless, it is a factor which needs to be taken into account when imposing sentence.

12. For example, in cases of manslaughter, the degree of aggression displayed against the victim is a critical factor to be taken into account but there is no precise measure of the punishment which should be meted out to offenders:  Kinmond v The Queen (1982) 5 A Crim R 413 ‑ see Criminal Law Western Australia ‑ by Weldon ‑ par 280.30 which deals with the effect for manslaughter in cases where the former defence of provocation reduced murder to manslaughter. Clearly, if the circumstances were such that some smaller degree of force by the offender would have been justified in all the circumstances to defend himself or another from a harmful attack by the victim, the fact that the victim was killed or injured by a response involving excessive force, is significantly different to a response by the offender in which no kind of harmful act or assault could be justified. Therefore, while not a defence, the circumstances of this case need to be seen in their full context to avoid attributing a higher degree of culpability to the offender than is warranted.

Victim impact statement

1. Under the provisions of ss 24, 25 and 26 of the Sentencing Act 1995, a victim impact statement on behalf of the family of Steven Rowe was prepared in writing and read orally to the court by Mrs Veronica Rowe, the mother of the deceased.  The statement was made on behalf of Mr John Rowe, Mrs Rowe and their two surviving children, the sisters of the deceased.  The courage and resolution of Mrs Rowe, and the Rowe family, in reading this statement to the court, was very obvious and I do not doubt that the whole trial constituted an extremely harrowing experience for all the Rowe family.  Their loss was sudden, and irreplaceable.  They are a close‑knit family and Steven was particularly loved and admired by his parents and sisters.  He was at the beginning of a promising career as an apprentice tradesman and had a wide circle of friends and acquaintances, all of whom have been greatly bereaved by his loss.  The impact of his death for his family and colleagues has been enormous and it is, of course, irreparable.  Nothing that this court can do will in any way diminish or ameliorate that loss.  Steven's death has left a void that can never be filled and I do not for the moment expect that expressions of sympathy, which naturally must be felt by all, will in any way diminish the family's loss.  The enormity of these consequences in all their magnitude must be recognised and respected. 

The Young Offenders Act (1994)

1. This legislation applies to this offender notwithstanding that since the commission of the offence he has attained the age of 18 years (on the day of his conviction) ‑ s 4.  It has specifically defined objectives and principles (s 6 and s 7) and those principles include:

   7(h)detaining a young person in custody for an offence whether before or after the person was found to have committed the offence should only be used as a last resort and, if required, is only to be for as short a time as is necessary.

   (j)punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways.

   …

   (l)in dealing with a young person for an offence, the age, maturity and cultural background of the offender are to be considered; and

   (m)a young person who commits an offence is to be dealt with in a way that:

   (i)strengthens the family and family group of the young person;

   (ii)fosters the ability of families and family groups to develop their own means of dealing with offending by their young person; and

   (iii)recognises the right of the young person to belong to a family.

2. These principles and considerations are amplified and extended when coming to sentencing ‑ s 46. When dealing with an offender aged 18 or over at the time of sentence the court must dispose of the matter by sentencing the offender under the Sentencing Act 1995 (WA) s 50B(2). The offence of unlawful assault causing death under s 281 of the Code is a Schedule 2 offence under the Young Offenders Act which means that, among other things, it is one which cannot be referred to a Juvenile Justice team; is one for which a conviction will normally be recorded (s 55); and is one which may lead to the application of Division 9 which deals with young persons who repeatedly commit serious offences so that detention is warranted to protect the community ‑ s 124 and s 125.  However, it can immediately be said this offender is not one to whom Division 9 applies.  There is no suggestion that he has, or may be inclined to, commit offences repeatedly.

3. This Young Offenders Act has been the subject of close examination by the Court of Criminal Appeal in Norris v AT (A Child) [2003] WASCA 54 and WO (A Child) v The State of Western Australia [2005] WASCA 94. The first case involved a number of road traffic offences, stealing and burglary but, importantly, also dangerous driving causing grievous bodily harm. Malcolm CJ, with whom Templeman and Miller JJ agreed, cited AM (A Child) & Anor v The Queen CCA SCT of WA, Library No 960263, 15 May 1989), a decision of the court comprising Franklyn, Wallwork and Murray JJ, in which their Honours said:

   The court has long accepted that in sentencing young persons it will be appropriate to take into consideration matters which are not readily applicable to adults.  Youth of itself is always regarded as a powerful mitigating factor.  The form of disposition will, wherever possible in the circumstances of the case, be less punitive and severe than that imposed upon an adult offender.  The rehabilitation or reformation of the young person will generally be regarded as a very weighty consideration in sentencing.  That should not be seen to be a consideration in tension with the general aims of sentencing.

   The protection of the community, achieved by the imposition of a sentence proportionate to the gravity of the crime, having regard to the particular circumstances of its commission and the circumstances personal to the offender, remain the ultimate aim of the courts.  General deterrence as well as particular deterrence must not be lost sight of, but it is particularly the case for young offenders that their rehabilitation is regarded as offering the best guarantee against their continuing offending, and therefore for the protection of the community from their lawless behaviour, and that is seen as a real possibility.  The relevant principles have long been established by the courts.  They pre-date the enactment of the Young Offenders Act.

4. Nevertheless, in Norris v AT a sentence of 15 months' imprisonment for dangerous driving causing grievous bodily harm was increased to 21 months and made cumulative upon other sentences of imprisonment of 9 months and 10 months respectively, resulting in total sentence being increased from 2 years and 2 months to 3 years and 6 months but with parole.

5. In WO (A Child) v The State of Western Australia (supra) there was an appeal by the young offender against a sentence imposed by the Children's Court for numerous offences, the most serious of which was an aggravated armed assault with intent to rob.  There was a history of prior offending and of breaches of intensive youth supervision orders imposed in respect of other offences including aggravated burglary, assault, stealing and like offences.  Notwithstanding that there had been many offences and a long history of prior offending, the appeals were successful and a small reduction in the periods of imprisonment was substituted.  The court made reference to the provisions of the Young Offenders Act and to the principle that detention for such an offender was a last resort. At [43] the court, Steytler P, Wheeler and McLure JJA, made reference to the significance of serious offences being those found within Schedule 2 of the Young Offenders Act, saying at [43] and [44]:

   The list [of serious offences] encompasses also some offences which are usually serious, but which experience has shown can be committed in circumstances which members of the community will ordinarily regard as trivial, although they would technically satisfy the description of the offence.  When a young offender comes to be sentenced for a serious offence, the sentencing principles will be different, depending upon whether that young offender has previously been found guilty of an offence for which a custodial sentence was imposed on two or more occasions, and whether the court is satisfied that the young offender is likely to reoffend.  In those circumstances, the Court is required to give 'primary consideration' to the protection of the community, and may make a special custodial order.

   There is, then, a stark distinction between two categories of young offenders who commit serious offences.  Those who have twice received custodial sentences are to be considered such a threat to the community that its protection is the paramount sentencing consideration.  Having regard to the structure of the Act, that departure from the principles governing the sentence of other young offenders is justified on the basis that, before that Division [div 9] can apply, a Court will have on two prior occasions reached the view that the time of 'last resort' has been reached

6. Coming to the present case, JWRL has never previously been sentenced to any period of detention and consequently, the provisions of Division 9 do not apply.  In September 2007 he came before the Children's Court for two offences which occurred respectively in January and August 2005, that is more than two years before those offences were dealt with in the Children's Court and more than four years ago now.  At the time of those offences he was 13 years of age.  For each of those convictions he was placed on a youth conditional release order and was made subject to 10 months of supervision.  Neither offence involved violence or dishonesty or any reason to suspect that he may then or afterwards have been a risk to the community.  I do not consider that they have any material significance for the proper disposition of the sentence now to be imposed.  It is unfortunate that in the submissions made for the State on sentencing shortly after the verdict of guilty was returned reference was made to these prior convictions without mentioning when they were imposed, when the offending behaviour occurred or what the actual disposition for those offences was.  In the context of the time and circumstances this inevitably gave rise to an implication that the prior record was serious and was material to the offence of which JWRL had just been convicted.  That wrong impression must now be corrected for those prior convictions do not in any way support such an implication. 

1. Detailed refutation of the effects of that disclosure is not possible without revealing information which may hurt innocent third parties.  I have nevertheless examined these convictions.  They are referred to in the pre‑sentence report which I have obtained.  There is no basis for inferring or implying that they have any relevance to this offence or to the present task.  Furthermore, JWRL has successfully completed the youth conditional release order and those responsible for supervising him were satisfied that he was not a person prone to a risk of repeating those offences or predisposed to commit other offences.

2. Despite these early failings I consider that JWRL should be regarded as a person of prior good character with no previous history of unlawful resort to violence, or anti‑social activity, and as a person who posed no particular threat to the community.  Despite the tragic death of Steven Rowe as a result of this crime, I consider that that is still an appropriate characterisation of the nature and character of this offender.

Pre-sentence report

1. At my direction an extended pre‑sentence report has been prepared by a senior Community Corrections Officer of the Department of Corrective Services and a psychological report for the court has also been prepared by the principal clinical and forensic psychologist of the adult community psychological services of the Department of Corrective Services.  Both of these contain outlines of JWRL's background, and other relevant family information. 

2. They report that he is the second of two sons born in England to parents who separated early in  his infancy.  His mother brought him to Perth with his brother when he was only a year old and he has had no contact with his father since.  He has grown up in a safe and loving relationship with his parent and brother.  His mother has worked hard to support the family and has a good relationship with him.  His physical health is sound and no psychological or psychiatric illnesses have been reported or diagnosed although recent testing, not surprisingly in view of his present situation, has revealed some depressive signs.  There is no history of alcohol abuse nor of substance or drug abuse.  The psychological report states that there is little to suggest that he at risk of future violence in the immediate future but there are some past risk factors, including his young age, to suggest that he would benefit from some form of intervention to assist in community living which minimises risks associated with continuing feuds arising from the current offence.

3. The clinical impression and test results indicated that JWRL had no cognitive impairment and the results on a standard intelligence test showed him to be in the upper percentile ranks of the average range, namely the 70th percentile as compared to same aged peers.  A positive impression was formed by the psychologist who regarded JWRL as communicating appropriately but who noticed there was marked bereavement evident from the death of his grandmother in 2008.

4. At school, certainly in the secondary stage, JWRL was subjected to frequent bullying.  The author of the pre‑sentence report and the psychologist confirmed this by inquiries from staff at the Woodvale High School.  He was described as an average pupil with a friendship network and a happy demeanour.  JWRL has a reasonable level of academic achievement, he left school abruptly in year 11 as a result of a last and extreme episode of bullying by his peers.  The incident which led to this was that JWRL was assaulted, hit from behind without warning by another student (younger than him, perhaps in year 11) at high school.  It appears that it was severe enough to lead to momentary loss of consciousness.  Worse, it was filmed in its entirety and placed on 'UTube'.  The filming of the incident, which started before the attack and involving JWRL being hit from behind without any prior conflict, strongly suggests that the attack was planned.  He went home that day and returned to school the following day but, due to the acute embarrassment of the episode and the humiliation of having the scene placed on the Internet (before it was removed) he left school, did not return, and took up employment.  Nevertheless, he has expressed a desire to return to school to gain tertiary entry.

5. A disturbing feature of the pre‑sentence report and the psychological report is that since the death of Steven Rowe, JWRL and his family have reported being subject to threats of violence by some associates of the deceased and for that reason have been forced to leave the family home for another undisclosed location.  This is consistent with expressions of concern which were made on behalf of one of the prosecution witnesses, and also by counsel for JWRL, during the course of the trial that there were signs of hostility towards that witness, and to the accused, by one or more young individuals who had connections with the case.  At one point, in the absence of the jury, I had occasion to inquire into this matter and to request that counsel for the DPP raise the matter with the police and report on whether or not there was any evidence of attempts to threaten or harass any witness or the accused or his family.  The report which I later received was to the effect that the police were well aware that there were undercurrents and feelings between various persons associated with the case and had the matter under close observation.  It was, therefore, unnecessary for me to take any further action during the course of the trial but the episode revealed that the concerns were not groundless but, rather, were being taken seriously and were receiving attention by the police. 

6. I should also say that, from my own observation during the course of the trial, some of the young men who were witnesses for the prosecution, and whom I am satisfied gave truthful and reliable evidence, appeared at times to be extremely nervous and apprehensive for their own security.

7. What did emerge in the evidence concerning the visit by RC and two of his friends, to the home of AL in January 2009, eventually resulting in RC being charged and convicted of making threats to kill, is that RC was actuated by a desire to attempt to intimidate AL and to influence the evidence which he might eventually give at this trial.  This is, therefore, one of those rare but disturbing occasions when persons associated with litigation have real fears that some irresponsible individuals may attempt to take the law into their own hands.  Any such person should be under no illusion that the law enforcement officers and others are fully cognisant of this level of threat and can be relied upon to take all necessary action if any unlawful conduct were to occur.

Remorse

1. In the course of submissions, counsel for the prosecution suggested that there were no signs of remorse by JWRL and that there was no basis for any mitigation of penalty for that reason.  This submission was accompanied by a submission that JWRL had pleaded not guilty to the indictment and so caused the Rowe family to experience the ordeal of the trial ‑ although none of the family was called or required to attend as a witness. Counsel for the prosecution also submitted that there had been no expressions of apology, sympathy, regret or other signs of remorse by JWRL either before or at the trial.  In response to an observation from the court that the only charge presented and pursued by the State was the indictment for murder of which JWRL was acquitted, counsel submitted that there had been no response by the offender or his solicitors, to a standard DPP overture before trial to put forward any submissions which the accused might wish to advance, about the possibility of a plea to a different charge, or to put information before the DPP, bearing on the charge.

2. In relation to these submissions, I consider that as the verdicts of the jury have unequivocally demonstrated, JWRL was justified in pleading not guilty to the charge of murder. The prosecution never swerved from pursuing, with full vigour, the case for murder, or failing that, manslaughter but, as the jury decided, the attempts to prove either of those offences failed. Section 7(2)(a) of the Sentencing Act provides specifically that an offence is not aggravated by the fact that an offender pleaded not guilty to it, and although s 8(2) of the Act provides that a plea of guilty, particularly an early plea of guilty, is a mitigating factor, there is simply no reason to assume that the DPP would have accepted a plea of guilty to an offence under s 281 in satisfaction of this indictment. Counsel for the prosecution did not attempt to persuade me that such a plea would have been accepted and, having regard to the way in which the case for murder and manslaughter was pursued, I consider that there is no reasonable probability that such a plea would have been accepted.

3. This, therefore, was a case in which JWRL had no real opportunity of avoiding a trial and I do not consider that adverse consequences in relation to sentencing should result because of that.  The length and nature of the jury's deliberations, as evidenced by questions which the members raised for the court during the time when they were considering their verdicts, showed that very real and difficult issues were occupying their attention.  I am satisfied that this was a case in which the issues of self defence and accident were squarely raised and required time and evidence for their determination.  As earlier remarked, I am also satisfied that the issue of self defence was refuted by the prosecution, not because there was no arguable basis for it to apply, but because, in the end, the degree of force used established to the satisfaction of the jury that there were not reasonable grounds for JWRL to believe that his act in striking Steven Rowe was a reasonable response in the circumstances ‑ or in other words that excessive force had been used.

4. Nor do I consider that I should accept that JWRL has shown no signs of remorse or regret about what happened. There was evidence to the effect, and I accept, that very soon after the episode on the pathway, when JWRL was picked up on a nearby street by friends in a car and was then taken to the house where his other friends had been waiting for him, he was very concerned and shaken about what had happened and feared that he might have killed Steven Rowe. He said as much to his friends. His evidence at this trial, which the jury must be regarded as having accepted and which I also consider to be true, was that he never intended to kill Steven Rowe or to do him any serious harm or injury. His sole purpose was to end the assault by Steven Rowe upon AL and to allow AL and himself an opportunity to escape and so avoid a very real chance that a greater assault would have occurred. The rejections of the prosecution cases for murder and manslaughter necessarily compel that conclusion. It also follows from the verdict that Steven's actual death, while involving the commission of an offence under s 281, was accidental within the meaning of the law.

5. In view of the fact that JWRL was arrested and charged with murder very shortly after the event, and was committed for trial before this court, I accept his counsel's submissions that there was simply no suitable or practicable opportunity for JWRL to have made any communications to the Rowe family at all while these proceedings were on foot.

6. The pre‑sentence report which I have since received has independently reported that JWRL expressed regret for the loss of Steven Rowe's life and for the grief and loss which the Rowe family has suffered as a consequence of his behaviour.  According to the author of that report, JWRL would have liked to have been able to offer his condolences to the family but has been unable to approach them because of his bail conditions and his uncertainty whether the family would be receptive to his expressions of regret.  I accept that it would have been most inappropriate for JWRL to try and attempt to communicate with the Rowe family while this prosecution remained unresolved.  I also expect that most families, in the position of the Rowe family, might be inclined to suspect that any such approach was offensive, insincere and self‑serving and that, therefore, it is not a course of conduct which the court can assume should have been attempted.  Having regard to the circumstances, I consider that genuine concern and regret for the loss of a life has been demonstrated by this offender but the consequences of his conduct are so great that nothing can realistically be done to assuage them.

7. During the course of the trial and again in submissions relating to sentence, counsel for the prosecution submitted that the evidence disclosed that JWRL stepped forward and struck Steven Rowe from behind and on the back of the head.  These submissions were made on several occasions and in support of various suggestions that a great amount of force was involved; that the act was deliberate; that the deceased had no means of seeing or avoiding it; and that for these, and other, reasons the conduct was even more culpable.  There is no doubt, on the evidence, that when striking the blow, JWRL did step forward a short distance from the position in which he had been standing beside AL.  Whether this meant that the movement only brought him level with the position of Steven Rowe, as JWRL claimed, or whether it placed him a short distance beyond Steven Rowe, as AL suggested, cannot really be determined with any degree of satisfaction.  It was very dark, AL did not in fact see JWRL after he was grabbed by Steven Rowe because his attention was preoccupied with Steven Rowe and it was not until the blow was actually being struck, that he saw any sign of movement or of JWRL.  RC's evidence in relation to the details of this episode is utterly unreliable.  The forensic medical evidence shows that Steven Rowe was not hit on the back of the head, but rather on the right temporal/occipital area from about 2 o'clock to 8 o'clock ranging from above the front of the right upper ear down to the left of the right ear. 

8. 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.

9. I consider that I should find that, having been standing beside AL on the footpath from before the time AL was grabbed by the shirt front by the deceased, and then seeing Steven Rowe draw back his fist as if to strike AL, JWRL stepped forward a short distance, probably no more than one pace, and struck the blow which caused the death of Steven Rowe.  The poor visibility, the factors distracting AL, and the complete unreliability of the evidence of RC, do not permit any further conclusions to be drawn about precisely where the offender was when the blow was actually struck.

General sentencing principles

1. In the light of s 50B(2) of the Young Offenders Act and because JWRL has attained the age of 18 years by the time of this sentencing it is necessary to emphasise that this disposition is being undertaken under the provisions of the Sentencing Act 1995. Nevertheless, the principles and considerations to be applied to young offenders under s 46 of the Young Offenders Act still apply in this court when dealing with this offender ‑ s 50B(5).

2. Accordingly, attention must be given to the principles of sentencing as specified in s 6 of the Sentencing Act 1995. These provide that a sentence must be commensurate with the seriousness of the offence and that the seriousness of the offence must be determined by taking into account the statutory penalty, the circumstances of the commission of the offence including the vulnerability of any victim, any aggravating factors and any mitigating factors. A court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it. Aggravating factors are factors which, in the court's opinion, increase the culpability of the offender and mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.

3. In this case, the offence itself is a serious one and its consequences have been dire.  Recognising that to be the case, however, does not mean that it was accompanied by any aggravating factors and, indeed, none was present.

4. The options which are available for imposing sentence are set out in s 39 of the Sentencing Act and they range from minor to more severe punishments with various options in between.  Parliament has made it clear that a court should not use a sentencing option which is more severe than any of the other available options unless so justified by the seriousness of the offence or the need for the protection of the community. 

5. Section 218 of the Code establishes an offence for which an offender is liable to a penalty of up to 10 years' imprisonment and, by virtue of s 41(5) of the Sentencing Act, this court may impose a fine of any amount or use any one of the sentencing options in s 39(2) ‑ s 41(2).

6. In this case the State has submitted that because of the gravity of the offence and the offender's conduct only a sentence of imprisonment to be served immediately would be commensurate with the seriousness of the offence.  There was no suggestion by counsel for the State that a sentence of imprisonment to be served immediately was rendered necessary for the protection of the community because this offender posed a risk of reoffending such that the protection of the community required immediate imprisonment.  Rather, the submission was that the seriousness of the offence and the effect of a death in such circumstances require that such a sentence be imposed for purposes of general deterrence.  Causing death by an unlawful assault, even if accidental, is a serious offence and effect must be given to the verdict of the jury that the killing was not justified or excused by law and that the sentence reflects community disapproval and denunciation of violence as well as the need for general deterrence without losing sight of the offender's personal circumstances and the situation in which he was placed at the time of the offence.

7. I must observe that I am satisfied that the need for personal deterrence in this case is not high.  JWRL is obviously not a person who, by upbringing, past conduct, personal disposition or any other reason is prone to act violently.  Quite plainly, he acted as he did when he struck this blow out of fear:  fear for the welfare of his friend from childhood, AL, and fear for himself based on what he thought might happen both to AL and to himself if they could not get away from the deceased and the person with him and escape others whom he had reason to believe were in the close vicinity.  These fears were not baseless.  He knew that AL's friend, JM, had been bashed ('mobbed') by RC only a short time beforehand and that JM had managed to get away but was hiding and believed himself to be chased by RC's associates numbering up to five or six other youths.  He knew RC personally and by reputation and had had direct experience of being threatened by RC, in company with a group of other youths, on an earlier occasion.  He had real reasons to be afraid for himself and for AL.  The general character and threat posed by RC and various of his associates were known and shared by other young friends and acquaintances.  What happened immediately afterwards when RC and others associated with him attacked the innocent group of teenagers sitting near their car in Delonix Circle, punched MR and his friend AW, and then attacked the car in which this group of young boys and girls took refuge revealed the kind of conduct of which they were capable.  The subsequent behaviour of RC towards JM and his parents at the party in November or December 2008, and again by RC with other associates at AL's home in January 2009 revealed him to be a person ready to make threats of serious violence and as being disposed to carry them out.  Although those events occurred after the death of Steven Rowe, I regard them as revealing an established character and attitude of RC which had existed for quite some time before Steven Rowe's death and which, in a general way, caused him to be known and feared by young teenage boys in the general Woodvale area.

1. Attention must then turn to the role of general deterrence as a component in the sentencing process for this offence.  In this regard it is both appropriate and necessary to refer to the policy of the legislation as introduced to Parliament in March 2008.  Some of the speech of the then Attorney General has already been quoted in these reasons and I again draw attention to the Attorney General's statement that this new offence reinforces community expectations that violent attacks, such as a blow to the head, are not acceptable behaviour and that the new legislation will ensure that people are held accountable for the full consequences of their violent behaviour.  As he had said earlier, the Attorney was speaking in the context of a new offence to address the so‑called 'one punch' homicide cases.

2. This offence, however, is not a typical example of the so‑called 'one‑punch' homicide cases.  The cases which agitated such public concern which led to this legislation were commonly, but not only, cases where some unlawful fight or brawl had commenced, often on or near licensed premises, and in the process the offender punched his opponent, without intending to kill or cause serious bodily injury, but nevertheless causing the victim to fall down, usually hit his head and die from some associated head injury notwithstanding that death was not an intended or foreseeable consequence of the punch.  In many of these typical instances the victim had not provoked or participated in the fight.  What the new offence achieves is to attach serious criminal consequences to aggressive and violent behaviour even though the perpetrator may not have intended or foreseen that serious consequences would result.  The resort to aggression, even if the consequences are unexpected, is the unlawful conduct which the new offence is expected to punish and, by so doing, to deter the offender and others.

3. The situation in the present case is rather different.  JWLR, and for that matter AL, did not initiate any violence or assault.  They were not looking for a fight.  They had not sought out Steven Rowe or his companion.  From their point of view, the encounter was unexpected and unwelcome.  They were obviously hoping to avoid any conflict or assault.  The assault which commenced was, sadly it must be said, initiated entirely by the deceased.  He did grab AL by the front of the shirt and he did speak to him in an aggressive and threatening manner and he was, to every appearance, about to strike him in the head or the face with his fist when the fatal blow was struck.  Clearly, the deceased was adversely affected by alcohol as the post‑mortem reading disclosed, and probably, in the opinion of Dr McCreath, at a level greater than that blood alcohol recording.  His companion, RC, was also affected by alcohol, and to a significant degree.  This emerges from the tally of drinks which he had consumed in the course of that afternoon and evening (something in the order of 12 stubby bottles of beer or more).  It is confirmed by the description given by JM of his behaviour, speech and gait  at the time when RC assaulted JM, which I am satisfied was only about half an hour or less before the fatal episode.

4. There is no basis to conclude that JWRL was adversely affected by alcohol at the time of the incident.  He said that he had not been drinking at all that afternoon or evening up to that point.  Those who were in his company at SW's home and who went 'trick or treating' with him in the early part of the evening confirm that.  His girlfriend, HK, whom he walked home, and whom I accept to be a truthful witness, also confirmed that.  According to AL, when he met JWRL at the Woodvale Primary School carpark, on JWRL's way back after dropping off HK at her home, he, AL, was drinking occasional sips out of a bottle of neat vodka which had been brought to that group by one of the other young girls, AC, or ET.  AL said that JWRL had also been drinking vodka from that bottle.  JWRL denied drinking vodka on that occasion and the allegation was not pressed further by counsel for the prosecution either in cross‑examination or in his final address to the jury.  In cross‑examination AL accepted that he could have been mistaken about whether or not JWRL joined in drinking any of the vodka.

5. The evidence satisfies me that, at the most, JWRL had had a very small quantity of alcohol before the fatal encounter and that his conduct was not in any way associated with or the result of drinking or intoxication.  The paradox is that, of the four young boys present at the critical time, JWRL was the only one who had had virtually nothing to drink that evening.

6. During the course of the trial and again in the submissions relating to sentence counsel for the prosecution was very critical of JWRL for carrying with him the wooden stick (exhibit 14) which he variously described as the 'weapon' or as being like a baseball bat.  The stick in question is a relatively short jarrah stake which is almost square in cross-section with dimensions of approximately 40 mm by 40 mm and with a longitudinal length of approximately 72 cm.  It is rough finished jarrah and shows obvious signs of considerable weathering.  It is 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.  The break in the piece of wood is almost exactly halfway along and it is at a point where there was an established reduction in the cross‑section of the stake due to weathering, splitting and natural knotting ‑ that is, at a point of clear weakness.  It was the case that the stick broke as a result of the force of the blow.

7. 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. 

8. 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. 

9. Earlier that very evening when he, HK and the others had gone to get pizzas at the Woodvale shopping centre after they had finished their trick or treating, JWRL and HK came across a group of 15 or so youths who were creating a disturbance because one of their number ('G') had been apprehended by a security guard near the pizza house because he was caught putting graffiti on the nearby walls.  This group was angry and shouting at the security staff because 'G' had been seized.  Later in the same evening, when setting out to walk HK home, JWRL had insisted that they go by a more circuitous route to avoid passing the BP service station where he believed other groups of youths hung out.  Even then, further along the journey, he became alarmed because a different group of youths were shouting at him and HK from another carpark near the primary school.  JWRL had had experience in the past of being accosted by groups of youths, and sometimes punched, so when he was walking back alone he picked up the stick.  His explanation was that he carried it for protection and whether he would have used it and how he might have used it would depend on what threat he encountered.  I am satisfied that that was a truthful explanation and that there were reasons for JWRL to think and act as he did.  He was not looking for a fight that evening.  Quite the opposite.

10. The evidence also was that AL picked up an empty wine bottle while with the group of friends at the Woodvale primary school carpark once he had decided to go off in search of JM, that is immediately after he got JM's telephone message to come and help him because he had been mobbed by RC; was being chased by five or six youths; and was hiding in fear of them.  AL's explanation was that he also took the bottle purely for protection, not knowing what he might encounter.  In fact, he dropped the bottle shortly before he was grabbed by Steven Rowe and the bottle played no part it the events which then occurred.  Again I do not accept the evidence of RC that the bottle was used by JWRL to strike Steven Rowe, that it was then dropped and that he, RC, then picked up the bottle and threw it at the fleeing pair.  The jury obviously did not accept that explanation and it was never part of the actual case for the prosecution.  Again I am satisfied that AL took the bottle, essentially for self protection, however ill-advised that decision may have been.  Nothing turns on his conduct in this respect.

11. Of course, if JWRL had not had the stick with him he could not have used it to strike Steven Rowe and, in that case, one hopes that there would have been no fatal injury. What might have happened instead must lie in the realms of conjecture but the chances of AL being assaulted to a greater degree by the deceased and/or by RC and of JWRL being drawn into the ensuing fight would seem to have been considerable. It is still the law that a person is entitled to use reasonable force to defend himself or another from an actual or threatened attack so long as the conditions of s 248 of the Criminal Code are satisfied.  Had less force been used in this blow the probabilities are high that such conduct would have been lawful.

12. These are all factors which refute some aspects of the case for the State which sought to accentuate the culpability of this offender.  That he was culpable cannot be doubted but it is the degree of culpability which I must determine for present purposes.

Events leading to the fatal encounter - conditions at Woodvale

1. There was evidence, which I accept, that in 2008 it was common for groups of youths in the 16 to 19‑year age range or thereabouts to congregate in the evenings at various places in the Woodvale area.  One such meeting place was the forecourt and surrounding area of the BP service station near the Woodvale shopping centre.  Indeed, there was a group of youths there, many of whom where under-age, and who were drinking on the evening of 31 October 2008.  Another place where a group congregated that evening was near the bus stop on the north-eastern side of Timberlane Park in Woodvale Drive.  There was a group drinking there on the evening of 31 October.  A third location was near the pizza shops at the Woodvale shopping centre. 

2. Several of the witnesses spoke of previous experiences of seeing groups of youths roaming the streets at night.  One spoke of the Timberlane Park vicinity as being 'a dodgy area' because groups of young men used to hang out there, drink and smoke.  The police searches of the pathway where the fatal blow was struck, between Delonix Circle and Woodvale Drive, discovered two discarded hypodermic syringes which revealed positive traces of blood but which, after testing, were shown not to have any association with any of the persons of interest in these proceedings.  It was also the case that there were, again on the evening of 31 October 2008, at times smaller groups in the vicinity of the various carparks at the Woodvale primary school.

3. It is also the case that, at least as known to the youths in that age group, there were groups of youths actively engaged in defacing signs and buildings with various forms of graffiti.  These different groups, or 'crews', went under different names and, at least among themselves, had distinctive signs or marks known as 'tags'.  These included UE ('Up Everywhere'); KFA; CMF; and SFR.  RC admitted that he had his own 'tag' and that in the past, when under 18, had been referred to a Juvenile Justice team because of graffiti activities.  All this seemed to have been known, at least to some extent, by the police because one of the police cars in the area that night (and there were several) had been tasked to attend because of reports of graffiti activity.  There was also a fair degree of under-age street drinking in the area and certainly on the night of 31 October 2008.  The groups where they congregated as mentioned were all, to various degrees, drinking that evening.

4. These activities were accompanied by low level anti‑social and aggressive behaviour.  Again, just to mention the evening of 31 October 2008, there was a number of such incidents.  At about 10.00 pm JWRL and his group of friends who had been trick or treating decided to walk down to the Woodvale shops to order some pizzas.  They came across a group of 12 or 15 youths who were yelling and acting aggressively because one of the security agents had taken one of their members, 'G', into custody because he had been caught graffiti-ing.  The other members of the group were milling around outside, yelling, shouting and acting in a threatening way. 

5. A little later in the evening RC, the deceased, Steven Rowe, and the other friends who were driving around in Rowe's car, came across a group of youths at the bus stop in Woodvale Drive near the north-eastern side of Timberlane Park.  They too were drinking and two of that group seemed to be involved in some kind of altercation and were facing off against each other.  Another member, 'BA'. was so drunk that he had to be taken away and dropped off somewhere.  Again, a little later in the evening, RC, Steven Rowe and their group went to a Hungry Jack's store nearby to order food.  Steven Rowe and RC had been drinking from the late afternoon onwards and by this point were both affected by drink.  They walked into the restaurant carrying open bottles of beer from which they continued to drink.  The manageress told them that they could not bring liquor into the store and ordered them to leave.  Steven Rowe began to leave but RC refused.  He, ostentatiously and defiantly, drank the remainder of the contents of his beer bottle while inside and only left after the manageress had called the security guard to intervene.

6. That group, including RC, Steven Rowe and others, then drove towards the BP service station where, as they had earlier noticed, a group of a dozen or more youths were congregated.  Most of the boys in the car then got out but they did not park the car in the vicinity.  Rather, it was driven around the block and parked in a street behind, which connected by a pathway to the street on which the service station stood.  This was because there was still a quantity of alcohol in the boot of the car and the group did not want to risk having the car searched by the police and the liquor confiscated.  At the BP service station they joined the group, many of whom were known to RC and some of whom appeared to have come from the bus stop area on Woodvale Drive already mentioned.  Most, if not all, of this group were drinking when a police car came by.  One of the group, said to be RF, then threw a beer bottle at the police car.  The police immediately stopped, got out and started searching for the culprit.  The group of 15 or so then scattered, most of them running in different directions.  One of those who fled was Steven Rowe, who a little later was discovered by one of his friends hiding in a bush in a street some distance away and who asked not to be revealed.  RC stayed at the service station, without incident, and then began to make his way back to Steven Rowe's car which had been parked, as already described, some distance away. 

7. It was in the immediate aftermath of this episode that JM and his girlfriend, SH, and two other friends were walking through the area when JM caught sight of RF.  Assuming that where RF was RC would probably be nearby, JM retreated, waited and then followed a different route to his destination.  It was when he was doing this that the very thing which he wished to avoid happened, namely that he came across RC in the street.  RC stopped him, punched him several times and tried to headbutt him.  This was a completely unprovoked assault and JM did not try to resist.  As soon as he got the opportunity he ran away.  While this altercation was still in progress a car with RC's friends drove up and Steven Rowe got out.

8. Shortly after JM fled (there was controversy over quite how long) Steven Rowe, followed by RC, went off on foot in the same direction taken by JM.  They left their friends in the car, which drove off and, seeing other police cars about, decided to leave the area and go and wait, at a Shell service station some distance away, for a telephone call to meet up with their companions.

9. Shortly afterwards one of the police cars stopped Steven Rowe as he was jogging north in Woodvale Drive towards Timberlane Park.  The officers took his name and address, made him pour away the contents of an open beer bottle that he was still carrying and told him to go home.  While this was happening RC came up and spoke to the police officers as well.  He told them that there was a disturbance going on back at the Woodvale shopping centre and the police left to investigate that.  RC denied that either he or Rowe were at that time attempting to pursue JM, saying that they were just looking for their friends in the car in order to be picked up.  I consider that that is a false explanation.  Steven Rowe then had with him a mobile phone and there is no suggestion that he or RC attempted to use it to make contact with their friends in the car who, by then, were waiting at the Shell service station.  No credible reason was offered why RC should be going north on Woodvale Drive nor, after the police had left, why he and Rowe should turn off Woodvale Drive and take the footpath towards Delonix Circle.  That conduct is quite inconsistent with the explanation of looking for their friends in the car.

10. On the other hand, JM, who had managed to give RC and his friends the slip by turning down a number of side streets and hiding behind a wall in the front garden of a house, said that he heard running and shouting and car engines revving.  He believed that there were five or six youths searching for him.  It was at this point that he made his rather agitated and frightened call to AL to come and help him and to pick him up from his hiding place.  He repeated that call at least once but, because of what happened in the laneway, AL never got to him that night.

11. The probabilities are overwhelming that RC and, sadly, Steven Rowe were searching for JM.  What they might have done had they found him remains unknown but the chances are that further recriminations or a fight would have occurred.  Instead, and completely by chance, RC and Rowe met AL and JWRL when the two pairs were walking towards each other on the dark footpath between Woodvale Drive and Delonix Circle where the fatal encounter then occurred.

12. There had been previous occasions of violent or aggressive behaviour by RC, usually in company with others, in the weeks and months before this incident.  According to AL, who was a truthful and in the main reliable witness, and whose evidence must largely, if not entirely, have been accepted by the jury, RC was known within the circle of youths in that area, many of whom had been at Woodvale Senior High School together, as one of the principal 'derros' in the area, a known member of a graffiti gang with a reputation for fighting, gatecrashing parties and causing disturbances which required the police to be called.  This was, essentially, the same view held by JM, whose evidence was not challenged and whom I regarded as being very truthful and reliable. 

1. JWRL also knew RC, both by direct experience and by this reputation.  JWRL described an incident some time in 2008 before, when he and a friend, MB, had been to one of the stores near the BP service station to buy some food and, on coming out together, were confronted near the traffic lights by a group of six or seven youths all holding beer bottles.  The group included RC, who demanded from JWRL's friend MB that he give him his money.  Surrounded as they were, MB gave the group $20, swore at them and then he and JWRL left without further incident.  JWRL also described another incident when, because of his friendship with him from school, he and another friend gave Steven Rowe a lift in the friend's vehicle to an area where a number of Rowe's friends were waiting.  On dropping him off the friends who had been waiting then came up and started remonstrating with JWRL and his friend in the car, and started kicking the vehicle.  According to him, Steven Rowe then came back and joined in also kicking the vehicle.  The accounts of these two episodes were not challenged and I accept them as being essentially true.

2. JM described a series of incidents with RC stretching back over about three years.  According to him, RC repeatedly accused him of mistreating RC's younger brother at school ‑ an allegation which JM absolutely denied.  Despite this, on some six or seven occasions before the evening of 31 October 2008 RC had assaulted and punched JM on this pretext.  When this first happened JM, two years younger than RC, had tried to fight back but that only made it worse.  On the later occasions RC was usually accompanied by a group of three or four others and resistance by JM would have been pointless.  Accordingly, there was every reason for JM to try and avoid RC and his associates when JM came across RF on the evening of 31 October 2008.  I am satisfied that JM did everything that was reasonably possible for him to do to avoid any such confrontation.  When he unfortunately met RC in the street, the anticipated assault immediately followed.  He did not try and resist but ran away as soon as he could.  I accept that he had well grounded reasons to fear what might happen to him if he was discovered by RC or RC's friends whom he believed were pursuing him.

3. That fear was clearly conveyed to AL in the telephone message for help from JM, and the substance of it then conveyed to JWRL.  It matched his own knowledge and appreciation of RC.  From that point on, both AL and JWRL knew that AL's friend, JM, had been assaulted by RC for no reason, had fled, was hiding in fear, and believed himself to be pursued by a group of five or six young men.  He had asked for help.

4. Earlier that evening, after the trick and treating had finished, and JWRL and his girlfriend, HK, were back at SW's home, the time came for HK to go home.  After some discussion, including a telephone call to her parents, she decided that she would walk home, a journey of about 20 or 30 minutes by foot, which would entail passing the BP service station and some of the other areas where groups of youths were likely to be that night.  JWRL was not prepared to let her go alone and insisted on walking her home.  Furthermore, he was not prepared to follow the most direct route which HK herself contemplated.  He insisted on following a route which avoided passing near the BP service station or other places where he thought it likely that groups might be.  HK fell in with this insistence and JWRL walked her home by this somewhat circuitous route.  Even so, as the pair was passing near one of the carparks at the Woodvale primary school, they saw a car with a group of youths in the distance who were talking and yelling loudly and who shouted at them.  JWRL and HK ignored these calls and walked on, fortunately, without incident. 

5. JWRL got HK to her home, dropped her off without going inside, and began his walk back.  HK, however, was rather worried about JWRL and so sent a text message to her friend, SW, to say that JWRL was on his way back and would SW text her on his return.  Her explanation for doing so was that she was a little concerned about JWRL's safety in the area that evening.  I consider that she had good reason for this apprehension.  Whether this evening was typical of conditions in the Woodvale area at night or, rather, was exceptional does not detract from the realisation that there were many risks for a young man walking alone along the streets in that area that night.

6. HK also described having been with JWRL on an earlier occasion walking in the area when a group of kids had come and punched JWRL in the face.  She and another girl who gave evidence said that they would avoid the area around the BP service station on Friday or Saturday nights.

7. It is a sad but unmistakeable fact that when the two pairs, RC and Steven Rowe on the one hand and AL and JWRL on the other, met each other unexpectedly in the dark pathway between Delonix Circle and Woodvale Drive, that Steven Rowe was the aggressor.  He walked straight up to AL and grabbed AL's shirt near the collar with both his hands and, standing very close to him, accused him of 'bricking' one of his mates in the past.  AL did not fight back.  He struggled to get free but could not escape Steven Rowe's grip.  He denied bricking the friend, only to be told aggressively by Steven Rowe that he knew that he had.  AL believes that at that point he turned around and called for help from one of his friends, MR, although neither RC nor JWRL can remember hearing any such call.  AL could not break Steven Rowe's grip on his shirt.  Steven Rowe let go with the right hand, drew his right arm back, formed a fist and gave every indication of being about to punch AL in the face.  It was then that JWRL struck the blow with the stick which felled and eventually killed Steven Rowe. 

8. As soon as that happened both AL and JWRL ran back towards Delonix Circle as fast as they could and disappeared into side streets or backyards, fearing that they would be pursued by friends of the two whom they had met in the laneway.  AL believed that the two they had met in the laneway had been involved in the earlier attack on JM and also believed that they were part of a group of five or six in the area.  JWRL also thought that one of the two was either RC or one of his friends and so had been involved in the attack on JM.  Both AL and JWRL were understandably frightened.

9. When Steven Rowe collapsed after the blow RC went to his aid but found him to be unconscious.  He dragged him into the shrubbery at the side of the path because he was afraid that some others associated with his attacker would return.  He used Steven Rowe's mobile telephone to call for help.  At first he rang his friends in the car, who by then were waiting at the Shell service station, and asked them to come but found that they were unable to come immediately.  The fact was that JB in the car was not prepared to drive back through the area where they had already seen several police cars because there was marijuana in the car.  They first had to get rid of the marijuana at a friend's home before going back to the area.  There was no suggestion that Steven Rowe or RC had been using marijuana that evening.  Accordingly, RC then rang another friend, KC, who with four other friends immediately drove around to the laneway.  KC had some first-aid experience, checked the unconscious Steven Rowe and then with the help of one of the others put him in the vehicle and drove him to the Emergency Department at Joondalup Hospital, arriving within about 10 minutes of having left the scene at the laneway between Delonix Circle and Woodvale Drive.

10. Three of the other young boys who had come with KC then set off in search of RC, who had left the scene immediately they had arrived.  That group, later joined by others, of unknown identity and from unknown sources, then descended about 15 or 20 minutes later on a group of young girls and boys who were sitting by a parking area in Delonix Circle adjacent to Timberlane Park.  Without the least justification, members of the newly arrived group then attacked MR, punching him violently in the face, and then AW who, in the ensuing melee, both managed by stages to retreat into the parked car.  The girls involved also, by degrees, got back into the car, whereupon youths from this newly arrived group started kicking and punching the outside of the car, trying to get at the occupants.  Some three members of this group jumped on to the car and started stomping on the roof.  Another tried, unsuccessfully, to kick in the rear window.  RC punched in one of the rear passenger windows before one of the girls climbed into the driver's seat and drove away.  I am satisfied that this episode, although after the injury to Steven Rowe, and perhaps inflamed by the knowledge that Steven Rowe had been injured, was an example of the kind of thing which might happen to a group of youths who were attacked by those who had been in groups drinking in the area at night.  Unpleasant and horrifying though it is to recognise it, that was an example of the risk lurking in the area for those who, for any reason, attracted the notice of these groups.

Other sentencing considerations

1. In the event that a term of imprisonment were to be imposed I should give attention to whether or not JWRL should be made eligible for parole in respect of the term of imprisonment by making a parole eligibility order under s 89 of the Sentencing Act.  For this eventuality, such an order was sought by counsel for JWRL and not opposed by the State.  It is also supported by the recommendations in the pre‑sentence report which I have received.  There is every reason to expect that JWRL would be a good candidate for parole and that he would be assisted in returning to the community under supervised conditional care and that his reintegration into the community and the general community welfare would be advanced by making a parole eligibility order and I consider that should be done.

2. I am also required to consider the recent sentencing amendment legislation of 2008 which repealed significant portions of the transitional provisions of 2003.  These amendments were discussed comprehensively by the Court of Appeal in the recent decision of The State of Western Australia v BLM [2009] WASCA 88 where the court was comprised by Owen, Wheeler, Pullin, Buss and Miller JJA. There was a division of opinion among their Honours as to the effect of the new legislation when it came to sentencing under the new regime but the majority view, which is binding upon me, was that adopted by Owen, Wheeler and Pullin JJA. At [43] and following their Honours explained that except for cases in the worst category, of which I do not consider this to be an example, where there is an established range of sentences capable of affording comparison, the sentencing judge must have regard to the minimum terms which would have been required to have been served under that range of sentences and tailor the sentence to be imposed so as to avoid unjustifiable disparity in respect of the minimum custodial sentence.

3. This dicta is not of direct application to the present case because, being one of the first two occasions when an offender has been sentenced under s 281, there is no established range of sentences for such an offence which is capable of affording comparison. However, if I were to take the reference of the Attorney General in Parliament in the second reading speech as representing a typical one punch type death for which the offence was intended to apply, that would provide some guide. As for any type of offence, there must be a range of seriousness. Clearly second, third or other repeated offences would be regarded as more serious and culpable. Similarly, an assault leading to the death of the victim where the assailant was a member of a group which significantly outnumbered the victim would be another example of a more culpable version of the offence. It was submitted to me that this particular offence must be regarded as being at the upper range of seriousness, and hence culpability, but that cannot be accepted. This was undoubtedly a serious offence because of its consequences but it is not an occasion which warrants the maximum possible penalty because of the features which I have described.

4. 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.

5. This exercise, of course, can only proceed on the footing that all other forms of disposition short of imprisonment are excluded and that the seriousness of this offence is such that only imprisonment can be justified.  This is very much a matter of value judgment but I do not consider that that proposition can be made good as a general view for all such cases.  So much depends upon the circumstances of each particular case.  I have already observed that I do not consider that any policy of personal deterrence necessitates such a course in this case.

6. Assessing the requirements of general deterrence is more difficult and abstract but this case had special features. The offender's conduct was in response to an unprovoked assault upon his friend, with a further assault imminent. He had good reason to be afraid for his friend's and his own safety, and he was very young and inexperienced, with no prior record of being involved in offences of violence. The question of general deterrence cannot be fully answered because it is simply impossible to gauge the deterrent effect generally of a prison sentence in this particular case. I refer again to s 64 of the Act which is an imperative by Parliament that a court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified. I do not, for a moment, think that in every such case such a conclusion must be drawn. Certainly, I have not been persuaded that it must always be drawn.

Disposition

1. The choice of the type of sentence appropriate for this or any offender convicted of this offence must have regard to  the sanctity which the community rightly and necessarily places on the value of human life and the enormity of the loss of life due to any unlawful act.  It is the loss of a life, any life, which transforms the gravity of what has occurred even if there are many mitigating factors present.  As the authorities dealing with sentences for manslaughter and some other forms of homicide show, there are occasions when a sentence for a homicide offence will not involve imprisonment or immediate imprisonment but there are few, if any, clear and indisputable criteria for determining when, and when not, that may be the correct disposition. 

2. Reference to the sentencing options available under s 39 of the Sentencing Act is, however, instructive.  Those sentencing options not involving imprisonment such as conditional release orders (s 39(2)(v)); fines (s 39(2)(c)); community based orders (s 39(2)(d)); intensive supervision orders (s 39(2)(e)) are, as a matter of law, available responses but it is difficult to envisage how any one of them could amount to a sentence 'commensurate with the seriousness of the offence' (s 6) where the offence involved a loss of life although, I hasten to add, I do not exclude the possibility of that occurring in some special circumstances.  More commonly, however, a crime resulting in the death of a person generates a community expectation that it is an offence of such gravity that 'the seriousness of the offence is such that only imprisonment can be justified' (s 6(4)(a)) but that proposition must always be examinable and examined before a sentence of imprisonment is imposed.

3. In this present case, however, I have concluded that that general proposition holds good and should be accepted after the necessary process of examination which I have conducted.  Consequently, I conclude that a sentence of imprisonment should be imposed for this offence.

4. That still leaves the question of whether or not, notwithstanding that conclusion, the sentence of imprisonment should nevertheless be suspended under pt 11 or suspended with conditions under pt 12 of the Sentencing Act ‑ see R v Liddington (1997) 18 WAR 394. In Dinsdale v The Queen (2000) 202 CLR 321, 328; [2000] HCA 54 Gleeson CJ and Hayne J said at [16] of the WA Sentencing Act:

   … the Act requires a court passing sentence to decide first whether a sentence of suspended imprisonment could properly be imposed before deciding to impose a sentence of actual imprisonment.

5. Yet, as s 76(2) of the Act provides, suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.  Accordingly, while I consider that a sentence of imprisonment would be appropriate in all the circumstances, I may not impose such a sentence without first considering whether suspended imprisonment for an equal term should be imposed but suspended.

6. In the present case I consider that there should be a term of imprisonment but that it should be suspended.  The imposition of a term of imprisonment reflects the seriousness of the offence and serves as a general deterrent.  The fact that it is suspended means that the offender is subject to being required to serve the sentence should he reoffend by committing an offence which may lead a court to require him to serve some or all of the period of the suspended imprisonment under s 80.  The sentence will demonstrate to the offender the seriousness of his conduct yet, having regard to the various mitigating factors which I have mentioned and his youth, provide a better opportunity for rehabilitation and reintroduction to the community, which is a major policy of the Young Offenders Act. In my view, the appropriate sentence is two years' imprisonment, to be suspended for two years, and to be on condition that the offender perform the standard obligations contained in s 83 of the Sentencing Act and a program requirement under ss 84(a) and 84A of the Act and that will be the sentence of the court.

7. It is to be noted that since his conviction on 30 October 2009 until today JWRL has spent 44 days in prison pending sentence.  He was in custody from the date of his arrest on 1 November 2008 until he was released on bail by order of this court on 22 December 2008, and he has been in custody from his conviction on 30 October 2009 until today in connection with this offence.  Accordingly, if circumstances ever arise in which JWRL should be sentenced to serve part or all of the sentence which I have imposed but suspended, the period to be served should give credit for the total of 94 days spent in custody to date.