The State of Western Australia v Munda

[2012] WASCA 164

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MUNDA [2012] WASCA 164

CORAM:   McLURE P

BUSS JA
MAZZA JA

HEARD:   13 FEBRUARY 2012

DATE OF FINAL

SUBMISSIONS       :   13 MARCH 2012

DELIVERED          :   22 AUGUST 2012

FILE NO/S:   CACR 117 of 2011

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

ERNEST MUNDA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :COMMISSIONER SLEIGHT

File No  :INS 72 of 2011

Catchwords:

Criminal law - State appeal against sentence - Manslaughter in circumstances of domestic violence - Drunken violence in Aboriginal communities - The Fernando propositions - Sentence imposed by primary judge manifestly inadequate

Criminal law - State appeal against sentence - Whether the Court of Appeal has a residual discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) to dismiss an appeal - Factors relevant to the exercise of the discretion - Factors relevant to a State appeal different from factors relevant to an appeal by an offender - Double jeopardy a mandatory irrelevant consideration - Purpose of State appeals against sentence - Discretion not applied

Legislation:

Acts Amendment (Prisons) Act 1981 (WA)
Crimes (Appeal and Review) Act 2001 (NSW), s 68A
Criminal Appeal Act 1907 (UK)
Criminal Appeal Act 1912 (NSW), s 5, s 5D, s 6
Criminal Appeals Act 2004 (WA), s 3, s 4(2), s 23, s 24, s 27, s 31, s 36, s 37, s 39, s 40, s 41
Criminal Code (Qld), s 699A
Criminal Code (WA), s 280, s 688 (repealed), s 689 (repealed), s 697 (repealed)
Criminal Code Act 1902 (WA)
Criminal Code Act Compilation Act 1913 (WA)
Criminal Code Amendment Act (No 2) 1976 (WA)
Criminal Code Amendment Act 1911 (WA), [No 52 of 1911]
Criminal Code Amendment Act 1913 (WA)
Criminal Code Amendment Act 1918 (WA)
Criminal Code Amendment Act 1954 (WA)
Criminal Law and Evidence Amendment Act 2008 (WA)
Criminal Law Amendment Act (No 2) 1998 (WA)
Criminal Law Amendment Act 1994 (WA)
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA)
Criminal Procedure Act 2004 (WA), s 3
Manslaughter Legislation Amendment Act 2011 (WA)
Sentencing (Consequential Provisions) Act 1995 (WA)
Sentencing Act 1995 (WA), s 6(1)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeal allowed
Respondent re-sentenced

Category:    A

Representation:

Counsel:

Appellant:     Ms S H Linton

Respondent:     Mr A Boe & Mr D D Brunello

Solicitors:

Appellant:     Director of Public Prosecutions (WA)

Respondent:     Aboriginal Legal Service (WA)

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

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Bahar v The Queen [2011] WASCA 249; (2011) 255 FLR 80

Bell v The Queen [2003] WASCA 216

Bolton v The State of Western Australia [2012] WASCA 2

Brown v The State of Western Australia [2011] WASCA 111

Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 86 ALJR 208

Colledge v The State of Western Australia [2007] WASCA 211

Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192

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

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1

Director of Public Prosecutions (Vic) v Karazisis [2010] VSCA 350; (2010) 206 A Crim R 14

Director of Public Prosecutions v Chatters [2011] TASCCA 8

Director of Public Prosecutions v Terrick [2009] VSCA 220; (2009) 24 VR 457

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

Grierson v The King [1938] HCA 45; (1938) 60 CLR 431

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lacey v Attorney‑General (Qld) [2011] HCA 10; (2011) 242 CLR 573

Luff v The State of Western Australia [2008] WASCA 89

M v The Queen [2004] WASCA 236

Macaree v The State of Western Australia [2011] WASCA 207

McLean v The Queen [2011] QCA 218; (2011) 212 A Crim R 199

McMaster v The Queen [2004] WASCA 52; (2004) 149 A Crim R 428

Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305

R v Abdulla [2011] SASCFC 20; (2011) 109 SASR 258

R v Campbell (No 2) (1981) 6 A Crim R 208

R v Churchill [2000] WASCA 230

R v DW [2012] NSWCCA 66

R v Fernando (1992) 76 A Crim R 58

R v Gordon [2000] WASCA 401

R v Grein [1989] WAR 178

R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7

R v KU; Ex parte Attorney‑General (No 2) [2008] QCA 154; [2011] 1 Qd R 439

R v McDonald [2000] WASCA 336

R v Morgan [2003] NSWCCA 230; (2003) 57 NSWLR 533

R v Morgan [2010] VSCA 15; (2010) 24 VR 230

R v Peterson [1984] WAR 329

R v Pitt [2001] NSWCCA 156

R v Powell [2000] NSWCCA 108

R v Saunders [2011] SASCFC 37; (2011) 210 A Crim R 1

R v Tait (1979) 46 FLR 386

R v Talbot [2009] TASSC 107

R v Wilson [2011] NTCCA 9; (2011) 30 NTLR 51

Rinaldi v The State of Western Australia [2007] WASCA 53

Rogers v The Queen (1989) 44 A Crim R 301

Samson v The State of Western Australia [2011] WASCA 173

The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119

The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137

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

The State of Western Australia v Collier [2007] WASCA 250

The State of Western Australia v Cunningham [2008] WASCA 240; (2008) 190 A Crim R 430

The State of Western Australia v Frazer (Unreported, INS 150 of 2009, 2 November 2009)

The State of Western Australia v Hyder [2011] WASCA 256

The State of Western Australia v Johnson [2009] WASCA 224

The State of Western Australia v Johnson [2010] WASCA 187

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

The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363

The State of Western Australia v Munda [2011] WASCSR 87

The State of Western Australia v Richards [2008] WASCA 134

The State of Western Australia v SJH [2010] WASCA 40

The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116

The State of Western Australia v Walley [2008] WASCA 12

THG v The State of Western Australia [2012] WASCA 139

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Wheeler v The Queen [No 2] [2010] WASCA 105

Wicks v The Queen (1990) 3 WAR 372

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Wongawol v The State of Western Australia [2011] WASCA 222

Table of Contents

McLure P's reasons.................................................................................................................. 7
The merits of the appeal
Buss JA's reasons.................................................................................................................... 22
The facts and circumstances of the offending
Previous history of domestic violence
The respondent's personal circumstances
The sentencing judge's sentencing remarks
The State's submissions
The respondent's submissions
The nature of manifest inadequacy
Sentencing for manslaughter and comparable cases

The Fernando propositions
Drunken violence against Aboriginal women in Aboriginal communities
The merits of the ground of appeal
Does this court have a residual discretion in relation to State appeals against sentence?
The alleged residual discretion:  the nature of a right of appeal
The alleged residual discretion:  the 1911 amendments to the CriminalCode
The alleged residual discretion: the 1913 amendments to s 669 of the Criminal Code
The alleged residual discretion:  the Criminal Code Act Compilation Act 1913 (WA)
The alleged residual discretion: the 1918 amendments to s 688 of the Criminal Code
The alleged residual discretion: the 1954 amendments to s 688 and s 689 of the CriminalCode
The alleged residual discretion: the 1975 amendments to s 688 of the Criminal Code
The alleged residual discretion: the 1976 amendments to s 688 of the Criminal Code
The alleged residual discretion: the 1981, 1994, 1995 and 1998 amendments to s 688 and s 689 of the Criminal Code
The alleged residual discretion: the repeal of s 688 and s 689 of the Criminal Code
The alleged residual discretion: the proper construction of s 689(3) of the Criminal Code
The alleged residual discretion:  the Criminal Appeals Act 2004
The alleged residual discretion: s 31(2) of the Criminal Appeals Act as originally enacted
The alleged residual discretion: s 41(4) of the Criminal Appeals Act as originally enacted
The alleged residual discretion:  the traditional common law principles applicable to State appeals against sentence
The alleged residual discretion:  the 2007 model agreement by the Council of Australian Governments
The alleged residual discretion:  the 'double jeopardy' law reform in Western Australia
The alleged residual discretion: case law on s 41(4)(b) of the Criminal Appeals Act
The alleged residual discretion: the sentencing appeal process under pt 3 of the Criminal Appeals Act, including the discretion conferred by s 31(4) of that Act and the ambit of the discretion
The alleged residual discretion:  the decision of the High Court in Green
Should the discretion under s 31(4) of the Criminal Appeals Act be exercised in the present case?
The result of the appeal and the re‑sentencing of the respondent
Mazza JA's reasons................................................................................................................ 67

1. McLURE P: This is a State appeal against sentence. An issue (belatedly) raised by the respondent is whether all the principles that, prior to the commencement of s 41(4)(b) of the Criminal Appeals Act 2004 (WA), informed the exercise of the court's power in relation to State appeals against sentence have been excluded by s 41(4)(b). It is not in dispute that the common law principle of double jeopardy has been excluded and is now an irrelevant consideration, both in determining whether to allow an appeal and in any consequential re‑sentencing.

2. The construction of s 41(4)(b) has been addressed by this court in a number of cases including The State of Western Australia v Wallam [2008] WASCA 117; The State of Western Australia v Cunningham [2008] WASCA 240 [21]; The State of Western Australia v Bennett [2009] WASCA 93 [67]; The State of Western Australia v Atherton [2009] WASCA 148; The State of Western Australia v SJH [2010] WASCA 40 [92]; The State of Western Australia v JWRL(a child) [2010] WASCA 179 [4]; and The State of Western Australia v Johnson [2010] WASCA 187 [5]. The majority in Wallam (Miller JA & Murray AJA) concluded that s 41(4)(b) did not impair any existing substantive right and was retrospective in its operation [65], [123]. A coram of five overturned Wallam on that issue:  The State of Western Australia v Richards [2008] WASCA 134 [41] ‑ [42].

3. Buss JA said in Atherton:

   It is beyond argument that in Cunningham and Bennett this court held unanimously that s 41(4), as amended, abrogated generally the common law principles applicable to State appeals against sentence.  This proposition was essential to the decision in each of those cases.  Cunningham and Bennett must be followed until the High Court or a five‑member bench of this court decides otherwise.  Individual judges (including single judges hearing State appeals against sentences imposed by magistrates) are obliged to conform.  It cannot reasonably be contended that the recent decisions in Cunningham and Bennett on the point in question were plainly wrong or, for some other reason, should not be followed by this court in the present case [160]. 

4. Miller JA expressly agreed [383]. Miller JA went on to conclude in Wallam [56], Cunningham [22] and Bennett [68] that the abrogation generally of the common law principles relating to State appeals had the consequence that an appeal by the prosecution is to be dealt with in accordance with the same principles as apply to appeals by sentenced persons. This proposition was also quoted with approval in Atherton [158].

5. The question for this court is whether the authorities in this State are inconsistent with the judgment of the High Court in Green v The Queen (2011) 86 ALJR 36. The issue before the High Court in Green was the role of the parity principle in Crown appeals against sentence in New South Wales.  The intermediate appellate court had allowed Crown appeals against two sentences on the ground of manifest inadequacy notwithstanding that the intervention resulted in disparity with an unchallenged sentence imposed on a co‑offender.  The High Court allowed the appeal and reversed the decision.  It is necessary to refer to the relevant statutory framework in New South Wales. 

6. The jurisdiction of the New South Wales Court of Criminal Appeal to entertain a Crown appeal against sentence is found in s 5D(1) of the Criminal Appeals Act 1912 (NSW) which provides:

   The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.

7. Section 6(3) of the same New South Wales statute deals with offender appeals against sentence. It provides that if the court is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, it shall quash the sentence and pass such other sentence in substitution therefore and in any other case shall dismiss the appeal.

8. Section 68A of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) implemented part of a model agreement made in 2007 by the Council of Australian Government (COAG) for Double Jeopardy Law Reform. So too did s 41(4)(b). Governments agreed, inter alia, that:

   All jurisdictions should implement reforms to provide that when a court is considering a prosecution appeal against sentence, no principle of 'sentencing double jeopardy' should be taken into consideration by the court when determining whether to exercise its discretion to impose a different sentence, or in determining what sentence to impose.

9. Section 68A of the CAR Act provides:

   (1)An appeal court must not:

   (a)dismiss a prosecution appeal against sentence, or

   (b)impose a less severe sentence on any such appeal than the court would otherwise consider appropriate,

   because of any element of double jeopardy involved in the respondent being sentenced again.

10. The plurality (French CJ, Crennan & Kiefel JJ) in Green said:

    The primary purpose of appeals against sentence by the Attorney‑General or Director of Public Prosecutions (Crown appeals) under section 5D … is 'to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons'. That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under section 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the 'residual discretion' [1].

11. They continued:

    Crown appeals under s 5D and like provisions in other States and Territories have long been regarded by this court as exceptional. That exceptional character, reflected in the primary purpose of such appeals, informs the exercise of the Court's 'residual discretion' embedded in the words 'may in its discretion' in s 5D(1). That 'residual' discretion, is a discretion to dismiss a Crown appeal notwithstanding that the sentence appealed against is shown to be erroneously lenient [24].

12. The plurality noted that the characterisation of Crown appeals as 'exceptional' only rested in part on longstanding judicial concern about exposing sentenced persons to double jeopardy, that is, the risk of being re‑sentenced [25]. It was said that concern had to yield to the operation of s 68A of the CAR Act. After reference to the decision of the New South Wales Court of Criminal Appeal in R v JW (2010) 77 NSWLR 7, the High Court said:

    It is not necessary for this court to review the correctness of the construction of s 68A in JW.  On any view of its operation it does not extinguish the residual discretion [26]. (emphasis added)

13. On that subject, the plurality said:

    A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is 'to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons'. That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges [36].

14. According to the plurality, a powerful consideration enlivening the residual discretion not to allow the Crown appeals against the erroneously lenient sentences in Green was the resultant creation of unjustifiable disparity between any new sentence and an unchallenged sentence previously imposed upon a co‑offender [37]. The other circumstances relevant to the exercise of the residual discretion include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re‑sentencing on progress towards the respondent's rehabilitation [43]. I will refer to the parity and other considerations referred to by the High Court as 'the residual discretionary considerations'.

15. It is clear from Green ([24]) that Crown appeals against sentence in New South Wales are still to be regarded as exceptional in that they are informed by a different purpose to offender appeals against sentence, notwithstanding the non‑applicability of the common law principle of double jeopardy.

16. The decision in Green must be read with Lacey v Attorney‑General for the State of Queensland (2011) 242 CLR 573. The issue in Lacey was whether error was necessary to enliven the jurisdiction of the Queensland Court of Appeal to intervene in a Crown appeal against sentence. The answer depended on the proper construction of s 699A(1) of the Criminal Code (Qld). The High Court said that the approach taken to the construction of statutory provisions relating to Crown appeals against sentence has been informed by the specific application of the principle of legality in statutory interpretation [17], [20]. That principle of construction presumes that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities [43]. The basic right in issue in Lacey was 'the liberty of the subject' [61]. Applying the legality principle of construction, the High Court held that s 699A(1) conferred jurisdiction on the Court of Appeal to vary a sentence only where it was determined that there was an error on the part of the sentencing judge.

17. I understand the expression 'erroneously lenient' in Green to mean that the sentencing judge has made an appealable error and that a different sentence should, absent any residual discretionary considerations, be imposed. 

18. Because there is no single correct sentence but a sound sentencing range, a sentence may be erroneously lenient and still be within the sound discretionary range.  However, that can only be so where the error made by the sentencing judge is express, not implied.  Manifest excess and manifest inadequacy are implied errors.  They are the labels used to describe a sentence that is unreasonable or unjust because it is outside the sound discretionary range.  The closest civil law analogy is Wednesbury unreasonableness which enlivens the power to judicially review administrative action:  Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

19. Unlike New South Wales, the legislative framework in this State does not in terms differentiate between offender and State appeals against sentence.  However, that does not prevent a conclusion that the purpose of State appeals against sentence differs from offender appeals against sentence with the consequence that the relevance of and/or the weight to be given to sentencing considerations can differ.

1. Section 31 of the Criminal Appeals Act applies in the case of an appeal commenced by an offender under s 23 or by a prosecutor under s 24(1) against, inter alia, a sentence imposed or any order made as a result of a conviction on indictment: s 31(1)(a).

2. Section 31(3) provides that unless under subs (4) the Court of Appeal allows the appeal, it must dismiss the appeal. Section 31(4) provides that:

   The Court of Appeal may allow the appeal if, in its opinion ‑ 

   (a)in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed.

3. Thus, the court's discretion to allow an appeal under s 31(4)(a) is only enlivened if, in its opinion, a different sentence should have been imposed. The requirement that a different sentence should have been imposed directs attention to the circumstances and appropriate outcome as at the time of sentencing. That is not the only condition which must be satisfied in order to enliven the power in s 31(4)(a). This court has always construed s 31(4) (and its predecessors) as also requiring the appellant to establish error by the sentencing judge (or other miscarriage of justice). If those (two) conditions are satisfied, the court then has a discretion to allow the appeal.

4. Section 41(4) provides:

   The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor) ‑ 

   (a)may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard; but

   (b)despite paragraph (a), must not take into account the fact that the court's decision may mean that the person is again sentenced for the offence.

5. Section 41(4) clearly applies if the court's s 31(4) discretion to allow the appeal has been enlivened. (It is unnecessary to determine whether it has a wider operation.) Thus, in both offender and State appeals the court may, in the exercise of its discretion under s 31(4)(a), take into account any material change to the person's circumstances occurring in the period between when the sentence was imposed and when the appeal is heard; but the fact that the court's decision may mean that the offender is again sentenced for the offence is an irrelevant consideration.

6. Although there is a residual discretion under s 31(4) in offender appeals, it must be the case that there would be little, if any, practical scope for the exercise of the discretion to dismiss an offender's appeal against sentence commenced within time if the sentence when passed, and at the time of the hearing of the appeal, is erroneously excessive.

7. It is beyond doubt that, as a matter of statutory construction, this court has a 'residual discretion' to refuse to intervene if a sentence is erroneously lenient at the time it was imposed.  In light of the decisions of the High Court in Lacey and Green, this court has to determine the following issues: (1) does it have a residual discretion to dismiss a State appeal against a sentence that was, at the time of sentencing and is, at the time of the appeal, erroneously lenient; (2) does the purpose of a State sentencing appeal differ from an offender appeal; and (3) is the scope of relevant considerations under s 31(4) wider or otherwise different in State appeals.

8. The three questions are closely inter‑related.  They were not directly in issue in Wallam, Bennett, Cunningham, Atherton or any other subsequent State appeal against sentence. On my reading of these and other relevant cases, the reference to s 41(4)(b) abrogating generally 'the common law principles' applicable to State appeals against sentence is confined to the double jeopardy principle: Wallam [28], [29] (McLure JA), [55] (Miller JA); Cunningham [21] (Miller JA); Bennett [67] (Miller JA). Further, as is evident from reading Buss JA's reasons in Atherton as a whole (particularly [149]) the issue being agitated at the time was whether s 41(4)(b) applied to the exercise of the discretion in s 31(4) to disallow an appeal and in re‑sentencing or was confined to re‑sentencing. Moreover, the use of the plural 'common law principles' is in recognition of the fact that the principle of double jeopardy was the basis of, or informed, more specific statements of principle according to the particular circumstances of the case, such as whether to intervene at all or in re‑sentencing when the 'principle of moderation' applied.

9. I am fortified in this view of the cases by the fact that, common law principles of double jeopardy and statutory construction aside, there are and were no other common law principles in play.  There were only judicial statements of principle as to how the statutory discretion should be exercised. 

10. An appeal is unknown to the common law.  It is a creature of statute.  The precise nature of appellate jurisdiction will be expressed in the statute creating the jurisdiction or inferred from its statutory context:  Lacey [56]. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction [44].

11. The three issues for determination in this appeal are, at root, questions of statutory construction.  It is the words of the statute that ultimately govern, not the judicial expositions of its meaning:  Weiss v The Queen (2005) 224 CLR 300 [9]. However, a judicial statement of principles which affect how the sentencing discretion should be exercised, either generally or in a particular kind of case, may give rise to binding precedent: Wong v The Queen (2001) 207 CLR 584 [57]; Lacey [55].

12. Having regard to the application of the legality principle to the statutory construction of the provisions relating to State appeals against sentence, I am not persuaded that the intention or effect of s 41(4)(b) is to bring the purpose of a State appeal against sentence into line with those that apply to an appeal against sentence by an offender. Thus I would answer question (2) in the affirmative. That is, s 41(4)(b) has not altered the purpose of a State appeal which is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.

13. Subject to one reservation, question (1) should also be answered in the affirmative. The reservation concerns whether s 6(1) of the Sentencing Act 1995 (WA) excludes the residual discretion to decline to intervene in a Crown appeal against a sentence that is erroneously lenient at the time the appeal is heard. See Green [33] footnote 62. In my view s 6(1) cannot exclude the residual discretion if the sentence is erroneously lenient but otherwise within the sound discretionary sentencing range. It is in that category of case that the limiting purpose of State appeals most obviously applies.

14. Section 6(1) can only arguably exclude the residual discretion if the error has resulted in a sentence that is outside the sound discretionary sentencing range, it being unjust or unreasonable (that is, manifestly inadequate). In the absence of detailed submissions on the point, I will assume in the respondent's favour that there is a residual discretion to dismiss a State appeal against a sentence that is manifestly inadequate at the time of the appeal. However, such an outcome would be rare. With one possible exception, the residual discretionary considerations are themselves relevant to an assessment of whether a sentence is manifestly inadequate as at the date of the hearing of the appeal. Questions of parity (and disparity) may not inform such an assessment.

15. Question (3) should also be answered in the affirmative.  Differences in legislative purpose have the potential to impact on the relevance of, and/or weight to be given to, the range of considerations which may inform the exercise of the discretion to allow an appeal. 

16. It follows from the answers to these questions that in my view Miller JA's observation that a State appeal is to be dealt with in accordance with the same principles as apply to appeals by offenders is wrong.  It reflects an erroneous assumption that all the pre‑s 41(4)(b) sentencing principles applicable to State appeals were dependent for their existence on the double jeopardy principle.

17. The identification of matters actually embraced by the double jeopardy sentencing principle (and thus excluded as mandatory irrelevant discretionary considerations) has been addressed by intermediate appellate courts in other Australian jurisdictions:  R v JW; Director of Public Prosecutions (Vic) v Karazisis (2010) 206 A Crim R 14; Director of Public Prosecutions v Chatters [2011] TASCCA 8; R v Wilson (2011) 30 NTRL 51.

18. The following propositions emerge from the analysis in R v JW (see [141]):

    (i)the words 'double jeopardy' in s 68A refer to the circumstance that an offender is, subject to the identification of error on the part of the sentencing judge, liable to be sentenced twice;

    (ii)s 68A removes from consideration on the part of the Court of Criminal Appeal the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject;

    (iii)s 68A prevents the appellate court from exercising its discretion not to intervene on the basis of such distress and anxiety;

    (iv)s 68A also prevents the appellate court from reducing the sentence which it otherwise believes to be appropriate on the basis of such distress and anxiety; and

    (v)s 68A prevents the court from having regard to the frequency of Crown appeals as a sentencing principle applicable to an individual case by taking either step referred to in (iii) or (iv), or otherwise.

19. Proposition (v) is a reference to the 'rarity' of State appeals. The New South Wales Court of Criminal Appeal said that insofar as rarity was intended to apply as a sentencing principle by way of guidance to courts of criminal appeal, it should now be understood as reflecting the double jeopardy principle, now abolished [129]. It also concluded that there remained a residual discretion to reject a Crown appeal, notwithstanding the abolition of the double jeopardy principle [95].

20. R v JW has been followed in Tasmania (Director of Public Prosecutions v Chatters) and the Northern Territory (R v Wilson).  The approach taken in Victoria (Director of Public Prosecutions (Vic) v Karazisis) is also consistent with R v JW.

21. The pre‑s 41(4)(b) principles relating to State appeals are summarised by Steytler P in The State of Western Australia v Marchese [2006] WASCA 153 [25] ‑ [40] and The State of Western Australia v Collier [2007] WASCA 250 [18] ‑ [23]. What has unambiguously emerged from Green is that not all the principles relating to State appeals referred to in those cases depend, in whole or in part, on the double jeopardy principle.  That is most obviously so in relation to the residual discretionary considerations.  The approach of the High Court in Green is to identify the purpose, principles and type of considerations that survive the exclusion of the double jeopardy principle.  That is in contrast to that taken in R v JW, particularly in proposition (ii).  I will follow the approach of the High Court which requires the identification of particular considerations that enliven the residual discretion to dismiss an appeal from an erroneously lenient sentence.

22. Against the background of Green and Lacey, I would construe s 31(4) and s 41(4) as giving rise to the following propositions (without intending to be exhaustive):

    (1)this court's discretion under s 31(4) to allow an appeal is enlivened if the appellant (State or offender) establishes that the sentence is erroneously lenient or excessive (that is, the sentencing judge made an appealable error and the court is of the opinion that the sentencing judge should have imposed a different sentence);

    (2)in deciding whether or not to allow an appeal and in any re‑sentencing the court may, subject to s 41(4)(b), take into account any relevant matter that has occurred between the time of sentencing and when the appeal is heard;

    (3)s 41(4)(b) excludes the double jeopardy principle in the exercise of the discretion under s 31(4) and in re‑sentencing. That is, the mere fact that the offender may again be sentenced for the offence is an irrelevant consideration. However, relevant actions, events and consequences associated with the serving of the sentence under appeal or the manner of the conduct of the appeal or otherwise, such as the residual discretionary considerations, are not excluded; and

    (4)in a State appeal against sentence, the court has a residual discretion to decline to allow an appeal against a sentence that is erroneously lenient at the time of the hearing of the appeal.  Save where parity considerations arise, the residual discretion is only likely to be exercised if the error has not resulted in a manifestly inadequate sentence.

23. For the reasons given below, there is nothing in the facts or circumstances of this appeal that would require or justify this court exercising the residual discretion to decline to allow the State appeal.

The merits of the appeal

1. The factual background is detailed in the reasons of Buss JA.  It is sufficient for present purposes to note the following.  The respondent pleaded guilty to unlawfully killing the deceased, his de facto wife of around 16 years and the mother of his four children.  The offence took place on 13 July 2010.  On 6 July 2011 the respondent was sentenced by Commissioner Sleight to a term of imprisonment of 5 years and 3 months.  The State says the sentence is manifestly inadequate.

2. The sentencing judge found the circumstances of the offence to be as follows:

   [The respondent] assaulted [his] de facto wife repeatedly. She was thrown about the room, with her head being rammed into fibro walls of [their] house. [The respondent] also punched [the deceased] on numerous occasions to the face and head. [The respondent's] de facto wife was screaming at [him] and telling [him] to leave her alone. At one point in time, [the deceased] was pushed onto the mattress of the bed and then repeatedly punched to the face. At another point during the assault, [the deceased] finished up on the floor, crying. She was bleeding from the mouth and … had a cut to her nose [5].

3. After the violence ceased, the respondent and the deceased went to sleep.  When the respondent woke the following morning, he sexually penetrated the deceased.  The respondent later left the house to purchase some supplies and on his return noted that the deceased had stopped breathing.

4. The respondent had caused bruising to the deceased's head, face, chest and limbs, bleeding and swelling of her brain, a fracture to her left jaw and a number of broken ribs.  The deceased died from her head injuries.

5. The respondent perpetrated a sustained violent attack on the deceased. The sentencing judge characterised the circumstances of the offending as being towards the upper end of the range of seriousness [12]. It is at least that.

6. At the time of the offending the respondent was very drunk and had been using cannabis [3]. The deceased had also been drinking.

7. The respondent was aged 32 at the time of the offence.  He was raised by his parents and had a close and supportive family.  However, during his childhood he was exposed to the negative influences of alcohol and domestic violence within his extended family.  He was educated to Year 10 and held various positions of employment after leaving school.  The respondent has a long history of alcohol and cannabis abuse.  He had been unemployed for the four years prior to the killing.

8. The respondent had a lengthy record of offending which commenced in 1997.  On 4 May 2009, he was convicted in the District Court at Broome of causing grievous bodily harm to the deceased.  The circumstances of the offence are detailed in Buss JA's reasons.  The respondent inflicted life‑threatening injuries on the deceased.  The circumstances of that offending placed it high on the scale of seriousness of offences of that type.  The penalty imposed for it was manifestly inadequate.  On the same date the respondent was convicted in the Broome Magistrates Court of breach of bail and two counts of common assault, committed against his niece and an ex‑partner of his sister respectively.  He was sentenced to 6 months' imprisonment suspended conditionally for 12 months for both assault offences.  On the same date, and as a consequence of the grievous bodily harm conviction, the District Court at Broome made a lifetime violence restraining order prohibiting the respondent from having any contact with the deceased.  Unsurprisingly perhaps, the deceased and the respondent ignored that order.  However, the court clearly recognised that the respondent posed a significant risk to the deceased's safety. 

9. The respondent was also convicted on 29 June 2006 of assaulting a public officer and escaping from lawful custody for which he received a total sentence of 8 months' imprisonment.  In addition he had a considerable number of convictions for alcohol‑related driving offences and driving without a licence.

10. The sentencing judge found that the respondent displayed a continuing attitude of disregard for the law and a willingness to use violence [19] and that he had a limited understanding of the relationship between his drinking and his violence [21].

11. There were mitigating factors.  The respondent made a fast‑track plea of guilty (although the State case against the respondent was very strong), demonstrated a willingness to cooperate with police and was to some extent remorseful for his conduct.

12. The respondent is an Aboriginal man.  He has good English communication skills (ts 8, 21).  His early life was traditional.  His work experience was in CDEP programmes in remote Aboriginal communities and on Aboriginal cattle stations (ts 9).  The respondent was able to remain largely sober when living in dry Aboriginal communities.  His drinking escalated when in 2008 he and his family moved to Aboriginal communities within walking distance of Fitzroy Crossing and licensed premises.  Alcohol became the central feature of the lives of the respondent and the deceased.

13. The respondent had participated in substance abuse and family violence programmes during the period of suspension of the term of imprisonment for the grievous bodily harm offence (ts 14 ‑ 15).  He killed the deceased around two months after the expiry of that period. 

14. This court can only intervene if the sentencing judge made an express or implied material error of fact or law.  As previously noted, a claim of manifest inadequacy (and manifest excess) relies on the implication of error.  The sentence must be shown to be unreasonable or unjust, it being outside the range of a sound sentencing discretion. 

15. In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.

16. The maximum penalty for the offence committed by the respondent is 20 years.  The subsequent increase in the maximum penalty to life imprisonment (Manslaughter Legislation Amendment Act 2011 (WA)) has no relevance to the sentencing (or any re‑sentencing) of the respondent. The circumstances of the offending are at the high end of the scale of seriousness of the offence of manslaughter. The respondent's antecedents do him no credit.

17. As to sentences customarily imposed, what was said in Brown v The State of Western Australia [2011] WASCA 111 in relation to manifest excess is equally applicable to manifest inadequacy [6]:

    The range of sentences customarily imposed for comparable offences is only one of a number of relevant factors in the determination of whether a sentence is manifestly excessive.  Thus, the range of sentences customarily imposed does not establish the range of a sound sentencing discretion:  Hili v The Queen (2010) 272 ALR 465; Fernandes v The State of Western Australia [2009] WASCA 227 [15]; The State of Western Australia v Akizuki [2008] WASCA 267 [71]. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors: Sabau v The State of Western Australia [2010] WASCA 3 [18].

1. It was recognised by both parties at the sentencing hearing that a term of immediate imprisonment was the only appropriate disposition.  It was also conceded by the prosecutor at sentencing that the case was not in the worst category with the consequence that the sentencing range established under the transitional provisions for manslaughter remained applicable:  The State of Western Australia v BLM [2009] WASCA 88 [43].

2. Little guidance is provided by the sentences reviewed in cases in which the court declined to allow an appeal or reduced the otherwise appropriate sentence in reliance on principles based on or informed by the double jeopardy principle, including R v Churchill [2000] WASCA 230; The State of Western Australia v Walley [2008] WASCA 12 and R v Gordon [2000] WASCA 401. The influence of the double jeopardy principle is clear when the only relevant factor relied upon was the mere fact that the offender was being sentenced again for the offence. It is also clear from the cases that the double jeopardy principle of moderation in re‑sentencing (now excluded) had a very significant influence on the decision whether or not to allow an appeal.

3. Sentences of immediate imprisonment imposed for manslaughter (for a plea of guilty with the 20‑year maximum penalty) range between 2 years 4 months and 12 years.  The fact that the sentence imposed on the respondent falls within that range does not prevent a conclusion that it is, in all the circumstances of this case, manifestly inadequate.  As noted in Walley, manslaughter is by its very nature an offence in respect of which the facts and circumstances differ widely in every case and sentences for the offence should reflect the value placed upon human life by the legislature [32].

4. It is clear from the State's written submissions that the gravamen of its complaint concerns weighting errors; in particular, that the sentencing judge gave too little weight to deterrence, personal and general.  The sentencing judge said:

   [I]t is proper for a court to recognise the problems of alcohol abuse and violence which exist in many Aboriginal communities and the social disadvantages that they create. These social disadvantages often create a conditioning within the community to accept as normal alcohol abuse and violence, as if it were a way of life. In such circumstances, there needs to be a recognition that, although punishment plays a role in personal and general deterrence, to change such behaviour requires a change in the social circumstances [23].

5. The principles relating to the sentencing of Aboriginal offenders were canvassed by this court in Richards.  It is the experience of judicial officers in this jurisdiction that the gross over‑representation of Aboriginal people in this State's criminal justice system referred to in Richards is directly related to alcohol abuse and, more recently, often in combination with illicit drug abuse.  As those working in the criminal law in this State would know, a grossly disproportionate number of offenders convicted and sentenced for manslaughter in the Supreme Court in recent years are Aboriginal, as are most of their victims. 

6. Even if it is established that a person's addiction to alcohol and/or drugs is mitigatory because of events in their formative childhood years or otherwise, that does not inevitably reduce the weight to be given to personal deterrence.  Indeed, addictions ordinarily increase the weight to be given to personal deterrence (and/or community protection) because of the associated increase in the risk of reoffending.  See Samson v The State of Western Australia [2011] WASCA 173 [12], [14]; Wongawol v The State of Western Australia [2011] WASCA 222 [38], [39]. At the very least that risk is nullified during the period of incarceration. Further, the courts must exercise caution in characterising or treating an offender as a 'victim' because it can lead adult perpetrators to wrongly believe that they are not truly responsible and accountable for their conduct, leading to a failure to properly protect the community. The courts also see the devastating consequences of alcohol‑related severe family dysfunction in the blighted lives of the children who continue the cycle of offending. See THG v The State of Western Australia [2012] WASCA 139 [22].

7. Moreover, it is wrong in principle to reduce the weight to be given to general deterrence in circumstances where alcohol‑fuelled violence is endemic in the community generally, even if not sufficiently deterred in fact by the prospect of imprisonment:  Gordon; Walley; Bolton v The State of Western Australia [2012] WASCA 2 [41].

8. The evidence in this case did not establish that the respondent was raised in circumstances of such deprivation and difficulty as to render his addictions mitigatory.  It is the case that the respondent will be separated from his family and country for the term of his imprisonment.  However, as he is able to communicate in English and has had prior experience in the prison system, it cannot be said that imprisonment would bear particularly harshly upon him.

9. A sentence of 5 years and 3 months' imprisonment for the offence committed by the respondent is, having regard to all relevant circumstances, manifestly inadequate and should be set aside.  It fails to give due recognition to the seriousness of the offence, the seriousness of the circumstances in which it was committed and the need for both personal and general deterrence.  I would impose a sentence of 7 years and 9 months' imprisonment.  The respondent will remain eligible for parole.

1. BUSS JA: On 4 July 2011, the respondent was convicted, on his plea of guilty in the Supreme Court before Commissioner Sleight, of one count of manslaughter, contrary to s 280 of the Criminal Code (WA).

2. The respondent was sentenced to 5 years 3 months' imprisonment.  The sentence was backdated to 13 July 2010, being the date on which he was taken into custody for the offence.  A parole eligibility order was made.

3. The State appeals to this court against sentence. 

4. The sole ground of appeal alleges that the sentencing judge erred in law by imposing a sentence that was manifestly inadequate.  On 19 September 2011, Mazza J granted leave to appeal on this ground.

The facts and circumstances of the offending

1. The respondent and the deceased woman had been in a relationship for about 16 years.  They had four children.  The respondent and the deceased were traditional Aboriginal persons of the Walmajarri people. 

2. On 12 July 2010, the respondent and the deceased returned to the house where they were staying at the Mindi Rardi community near Fitzroy Crossing.  They had been drinking at a local tavern that afternoon and were, to some extent, affected by alcohol. 

3. During the evening, the respondent and the deceased were in their bedroom.  An argument developed.  This culminated in the respondent assaulting the deceased.  The argument and the assault were prolonged.  The respondent threw the deceased around the bedroom.  He pushed her into the fibro concrete walls.  He punched her twice in the face, causing her to fall.  When the deceased was on the ground, the respondent stood over her and punched her several times in the face.

4. The respondent told police in a video‑recorded interview that the reason he assaulted the deceased was 'to keep her quiet'.  After he had ceased assaulting her, the respondent and the deceased went to sleep.  He awoke the following morning and had sexual intercourse with the deceased.  Later, he left the house to get some tea.  When he returned, he discovered that the deceased had stopped breathing.  The respondent attempted some basic first aid and then called for medical assistance.  He became distressed when he realised that she was dead.  Relatives arranged for the attendance of an ambulance.

5. The deceased was taken to Fitzroy Crossing Hospital.  She was pronounced dead on arrival.  The cause of death was traumatic brain injury, with bilateral and recent subdural haemorrhage and recent contusions.  The deceased also had a fractured jaw and fractures to five of her ribs.

Previous history of domestic violence

1. On 4 May 2009, the respondent was sentenced to 12 months' imprisonment, conditionally suspended for 12 months, in the District Court at Broome for the offence of unlawfully doing grievous bodily harm to the deceased.  Also, on 4 May 2009, the respondent was sentenced to 6 months' imprisonment, conditionally suspended for 12 months, in the Magistrates Court at Broome for two offences of common assault, each of which was committed on a female family member while he was drunk.  The sentences imposed on 4 May 2009 were ordered to be served concurrently.

2. The respondent killed the deceased a little over two months after the expiration of the conditionally suspended imprisonment order imposed on 4 May 2009.  At the time of the deceased's death, there was a subsisting life‑time violence restraining order which had been imposed on the respondent in relation to her.  This order had been ignored by both of them in that they had resumed their domestic relationship.

3. The facts and circumstances of the offence of unlawfully doing grievous bodily harm to the deceased, for which the respondent was sentenced on 4 May 2009, were similar to the facts and circumstances of the manslaughter offence. 

4. On 23 October 2008, the respondent and the deceased were walking between the Kurnangki community and the Mindi Rardi community.  The respondent had been drinking at the Crossing Inn for about nine hours.  He was angered by the deceased's jealous reaction towards his socialising with other women.  He picked up a large rock and threw it at her.  The rock hit the deceased's legs and she fell to the ground, striking her face.  The respondent then inflicted multiple blows to the deceased with a clenched fist and an open hand.  This caused numerous lacerations to the deceased's legs and upper body.  The respondent then struck her twice on the forehead with a metal shovel.  This caused two deep lacerations.  The deceased also suffered a fractured femur, tibia and right radius.  When the deceased was admitted to Broome Hospital she also had hypothermia.  The serious nature of the fracture to the deceased's femur required her to be transferred from Broome Hospital to Royal Perth Hospital. 

5. At the sentencing hearing on 4 May 2009, for the offence of unlawfully doing grievous bodily harm, the sentencing judge, Groves DCJ, discussed the offence with the respondent:

   GROVES DCJ:        This is a very serious offence.  No bloke, no man, beats up his missus.  You know that is wrong, don't you?

   THE ACCUSED:    Yeah.

   GROVES DCJ:        The result of that is that you have been in the gaol since 20 December 2008.

   THE ACCUSED:    Yeah.

   GROVES DCJ:        Four months nearly ‑ a bit over four months you have been in gaol.

   THE ACCUSED:    Seven.  This makes seven.

   GROVES DCJ:        Sorry?

   THE ACCUSED:    This make seven months.

    … 

   GROVES DCJ:        You get into trouble when you have been drinking too much grog.  You know that, don't you?

   THE ACCUSED:    Yeah.

   GROVES DCJ:        The grog gets you into trouble.  You have to do something about that.

   THE ACCUSED:    Yeah.

   GROVES DCJ:        Otherwise if you keep on drinking too much, then you get into more trouble and you end up back here again, back in the prison.

   You have got to do something about that if you want to keep out of the prison or the gaol for the future.  Your wife suffered very, very serious injuries, didn't she?

   THE ACCUSED:    Yeah.

6. The sentence imposed by Groves DCJ was wholly inadequate.

The respondent's personal circumstances

1. The respondent was born on 14 May 1978.  He was aged 32 when he killed the deceased and was 33 when sentenced.

2. The respondent was born in Derby.  He and his four siblings were raised by their parents.  The respondent lived a traditional early life.  He was brought up within an extended family unit.  The family moved between Aboriginal communities near Fitzroy Crossing.  The respondent learned about traditional culture and law.  He went hunting with his father.  He participated in the traditional ceremonies of his people.  The respondent speaks Walmajarri language and his mother's traditional language, Kriol.  He also understands two other Aboriginal languages.  The respondent is not unintelligent.  He has very good oral communication skills in English.

3. The respondent completed year 10 at school.  He then commenced employment at a cattle station.  He has worked in various occupations, but during the four year period before sentencing he was unemployed. 

4. Although he has a close and supportive family, the respondent was exposed, in his formative years, to the negative influences of alcohol and family violence.  The respondent has a long history of alcohol abuse.  He commenced drinking when he was 17.  He also has a long history of cannabis use.  The respondent's alcohol abuse has been characterised by bouts of binge drinking at Fitzroy Crossing after pay day, after playing football or at the end of the cattle mustering season.  Nevertheless, the respondent has been capable of living in 'dry' communities, or living a 'dry' lifestyle, while working at cattle stations for lengthy periods.  During the year preceding the offence in question, the respondent made some progress while subject to the conditional suspended imprisonment order.  He participated in several sessions designed to address substance abuse.  However, he failed to report on a number of occasions, as required, during the subsistence of the conditional suspended imprisonment order, and these failures resulted in oral and written warnings being given to him. 

5. As I have mentioned, the deceased was the respondent's partner for about 16 years.  Their four children were aged 2, 7, 10 and 16 at the time of sentencing. 

6. The respondent's prior criminal record includes numerous convictions for alcohol‑related driving offences and driving without a licence.  Also, he was convicted in December 2003 of robbery, for which he received a 15 month community based order.  Further, in June 2006 he was convicted of assaulting a public officer, for which he received 8 months' immediate imprisonment.  I have already referred to the offences against the deceased and the female family members for which the respondent was sentenced on 4 May 2009.

The sentencing judge's sentencing remarks

1. The sentencing judge published his sentencing remarks in the form of written reasons.  See The State of Western Australia v Munda [2011] WASCSR 87. 

2. His Honour referred to the facts and circumstances of the offending, the previous history of domestic violence and the respondent's personal circumstances.  His Honour found that:

   (a)the fact that the offence in question occurred 'so shortly after the expiration of [the respondent's] suspended terms of imprisonment shows a continuing attitude of disregard for the law and a willingness to use violence' [19]; and

   (b)the incident leading to the deceased's death was 'largely spontaneous, arising out of [the respondent's] suppressed anger, which was released under the influence of alcohol' [19].

3. The sentencing judge noted various matters of mitigation.  First, the respondent participated in two video‑recorded interviews with the police.  This demonstrated his willingness to cooperate and, to some extent, his remorse.  Secondly, the respondent pleaded guilty at the first opportunity.  His Honour decided that a significant discount should be given for this fast‑track plea, even though the State's case against the respondent was very strong.  Thirdly, the respondent was remorseful for his offending behaviour.  However, he had limited understanding of the relationship between his alcohol consumption and his violence. 

4. His Honour took into account that, in serving a term of imprisonment, the respondent was likely to be isolated from his family and friends in that he was likely to be incarcerated in a prison some distance from his community. 

5. The sentencing judge acknowledged that it was proper to recognise the problems of alcohol abuse and violence which exist in many Aboriginal communities, and the social disadvantages they create.  He explained:

   … These social disadvantages often create a conditioning within the community to accept as normal alcohol abuse and violence, as if it were a way of life. In such circumstances, there needs to be a recognition that, although punishment plays a role in personal and general deterrence, to change such behaviour requires a change in social circumstances. However, notwithstanding these considerations, the seriousness of an offence must always be given proper weight. Like in all communities, the sentences imposed play a role in trying to protect the vulnerable. This includes, in Aboriginal communities, Aboriginal women, who are frequently subject to violence [23].

6. His Honour took into account that the respondent was likely to suffer punishment 'by way of payback' upon his release from custody.  His Honour had received a letter to that effect from the elders of the respondent's community.  The 'payback' would involve the respondent being struck by sticks, or nulla nullas, on his arms, legs and body.  The severity of the proposed punishment was unknown.  His Honour accepted, however, that it may result in injury requiring treatment in hospital.  His Honour took the prospect of 'payback' into account but, for reasons he gave, he accorded it limited weight. 

7. After referring to other relevant sentencing factors and the decision in R v Gordon [2000] WASCA 401, the sentencing judge set out his conclusion:

   In my view, the appropriate sentence, taking into account all factors except your plea of guilty, is a term of imprisonment of 7 years and 6 months. I will reduce this sentence for your plea of guilty to a term of imprisonment of 5 years and 3 months. This will be backdated to 13 July 2010. I should stress that the penalty I have imposed does not in any way reflect the value of the life of the deceased. Nothing that can be done by this court can compensate for the loss suffered by family members, particularly your children [33].

8. As I have mentioned, his Honour made a parole eligibility order.

The State's submissions

1. Counsel for the State argued that, upon examination of the objective seriousness of the respondent's criminal behaviour and upon consideration of the sentences that have been imposed in comparable cases, it is apparent that the sentence of 5 years 3 months' imprisonment is outside the range of a sound discretionary judgment, and so inadequate as to manifest error. 

2. The cases relied on by the State, for the purposes of comparison and the establishment of a range, were Gordon, The State of Western Australia v Walley [2008] WASCA 12 and Luff v The State of Western Australia [2008] WASCA 89.

3. It was submitted that the need to maintain proper standards of sentencing, and to provide effective deterrence for the kind of offence committed by the respondent, justifies this court's intervention.

The respondent's submissions

1. Counsel for the respondent argued that the cases relied on by the State do not set a range that is sufficient to enable proper comparison with the sentence imposed in the present case.  None of the cases was truly comparable.  It was submitted that there is no reasonable basis for inferring error from the outcome of the sentencing judge's exercise of the sentencing discretion. 

2. Counsel for the respondent also argued that, notwithstanding s 41(4)(b) of the Criminal Appeals Act 2004 (WA), this court retains a residual discretion not to intervene in a State appeal against sentence. According to counsel, it was appropriate, in the present case, for this court to exercise this discretion not to intervene.

The nature of manifest inadequacy

1. A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error.  It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

1. The guidance afforded by comparable cases is flexible rather than rigid.  The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case.  Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. 

Sentencing for manslaughter and comparable cases

1. At the material time, the maximum penalty for the offence of manslaughter was 20 years' imprisonment.  Since the commencement of the Manslaughter Legislation Amendment Act 2011 (WA) on 17 March 2012, the maximum penalty has been life imprisonment. The applicable maximum for present purposes is, of course, 20 years.

2. There is no sentencing tariff for manslaughter because of the great variation that is possible in the circumstances of the offending and the offenders.  Each case must be decided on its own facts.  See Wicks v The Queen (1990) 3 WAR 372, 379 ‑ 380 (Malcolm CJ); Colledge v The State of Western Australia [2007] WASCA 211 [17] (Wheeler JA, Owen and Miller JJA agreeing).

3. The great variation in these circumstances explains the difficulty in discerning sentencing patterns for manslaughter.  As Wheeler JA noted in Colledge:

   A person convicted of manslaughter may have had an intent to kill or do grievous bodily harm, but have formed it in circumstances where there was provocation; or may be acting in self-defence, although excessively; may have been so affected by substances of one kind or another as to be incapable of forming any clear intention; may suffer from a mental illness falling short of insanity; or may have been culpably negligent in the management of either a motor vehicle or some other thing.  That list is by no means exhaustive, but one can see why there is much variation in sentencing.  The University of Western Australia Crime Research Centre Report (UWA Crime Research Centre, Crime and Justice Statistics for Western Australia (2004) table X, p 73) demonstrates that, between 1996 and 2004, there was considerable variation in the median sentence for manslaughter; in 1998, it was as low as 4 years, while, in 1997, it was 8 years [18].

4. Sentences for manslaughter should, however, reflect the value which the Parliament has placed upon human life.  See Walley [32] (Wheeler and Miller JJA).

5. I turn to consider the cases relied on by the State, namely, Gordon, Walley and Luff.  These cases have some features comparable to the respondent's offending.

6. In Gordon, the offender and the deceased were in a relationship.  On the evening of 20 February 1999 they were at home.  The offender had consumed a substantial quantity of alcohol.  A domestic argument erupted.  The offender became extremely violent.  He inflicted multiple injuries to the deceased's upper body.  These injuries were consistent with a protracted and brutal flogging.  The sentencing judge found that it was 'at least possible and probably likely' that the offender used a piece of angle iron in attacking the deceased.  The deceased bled to death internally.  She suffered multiple soft tissue injuries and multiple rib fractures.  The deceased could have taken up to six hours to die after she received these injuries.  Although the offender attempted unsuccessfully to revive the deceased, he failed to seek any medical assistance for her.  If this assistance had been provided her life could well have been saved. 

7. The offender in Gordon severely mutilated his arms, as an act of contrition, when he realised the deceased was dead.  He was aged 45 when the offending occurred.  He had a significant prior criminal record including convictions for manslaughter, two aggravated assaults, four common assaults, six assaults occasioning bodily harm, one offence of assaulting a public officer, two offences of resisting arrest and three offences of escaping legal custody.  Generally, his prior offending was directly related to alcohol abuse.  The offender's previous offence of manslaughter was committed in 1979.  He was sentenced to 3 years' imprisonment.  This earlier offence was committed in remarkably similar circumstances to the offending in question:  it involved an attack upon his then de facto wife while he was intoxicated.  At the time of the offence in question, the offender was on parole for a number of other offences.  One of these other offences involved an assault occasioning bodily harm to the deceased.  His parole was cancelled.

8. Initially, the offender in Gordon was charged with murder.  Later, the Crown applied to amend the charge to manslaughter.  The offender then pleaded guilty.

9. The sentencing judge in Gordon imposed a term of 7 years' imprisonment.  This term was to be served cumulatively upon the offender's existing sentence under which he remained liable to serve 500 days in order to satisfy the cancelled parole order and the remission given on that sentence.  His Honour refused to make a parole eligibility order, but pointed out that there was at least a possibility of the offender being released on parole as a result of the period he already 'owed' to the Parole Board.

10. In Gordon, the Crown appealed against sentence to the Court of Criminal Appeal. By a majority (Kennedy and Anderson JJ; Wheeler J dissenting), the appeal was dismissed. However, Anderson J described the sentence as 'very lenient', and not a sentence which he would himself have arrived at on a consideration of all of the material before the sentencing judge [19]. Wheeler J would have allowed the Crown's appeal and substituted a sentence of 9 years' imprisonment without eligibility for parole. Gordon was, of course, decided before the enactment of the Criminal Law and Evidence Amendment Act 2008 (WA) and, also, before the introduction of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). The sentence of 7 years' imprisonment imposed by the sentencing judge equates to a term of 4 years 8 months under the transitional provisions embodied in the 2003 Act.

11. In Walley, the offender and the deceased were in a relationship.  During the late morning on 20 September 2006, they went to the offender's mother's home.  A number of other family members were present.  Alcohol was consumed throughout the day.  The offender and the deceased also used some amphetamines.  In the afternoon, the offender became upset.  She began arguing with the deceased.  The offender became abusive and aggressive towards her mother, and punched her a number of times.  After her mother left the house, the offender continued to argue with the deceased.  The offender then smashed plates and other items in the kitchen.  She came outside with three knives.  A family member took these knives from her.  The offender and the deceased continued to argue.  The offender then went inside the house and obtained another knife.  It was about 20 cms to 30 cms in length.  She stabbed the deceased in the left side of the neck.  The offender then ran away.  The deceased bled profusely.  He died at the scene within a short period.  The knife penetrated to a depth of about 9 cms. 

12. The offender in Walley pleaded guilty at an early stage, namely, as soon as the State accepted a plea of guilty to manslaughter in satisfaction of the original count of wilful murder. 

13. The sentencing judge in Walley described the offender's life as 'blighted', and the death of the deceased as being the result of alcohol abuse.  After referring to the offender's antecedents, the circumstances of the offending, the plea of guilty, the comparative youth of the offender, her lack of prior violent offending and the seriousness of the offence of manslaughter, the sentencing judge imposed a term of 1 year 8 months' imprisonment. 

14. This court allowed the State's appeal against sentence.  It substituted a term of 3 years' imprisonment.  The court decided, relevantly for present purposes, that the sentencing judge erred in giving no weight to general deterrence.  Walley was decided before the enactment of the Criminal Law and Evidence Amendment Act 2008, but after the introduction of the Sentencing Legislation Amendment and Repeal Act 2003.

15. In Luff, the offender and the deceased had been friends for about 30 years.  Each of them was aged 37 when the offending occurred.  The offender resided at the deceased's house.  He had been living there for about six months when he killed the deceased.  The offender took offence at a comment the deceased had made about him in his absence.  The offender confronted the deceased and punched him a number of times to the face.  The deceased fell backwards and appeared to lose consciousness.  An ambulance was called.  Police officers then attended the house, but the deceased was able to assure them that 'all was well'.  The attendance of the ambulance was cancelled.  The offender went to the backyard of the house and abused another man.  He punched the other man several times to the head.  The offender then went into the house and found the deceased in the kitchen.  He punched him again to the head.  The deceased fell to a sitting position on the floor.  The offender then kicked him to the head with a steel‑capped boot.  The deceased fell backwards onto the floor.  He was bleeding from the mouth.  The offender made admissions to the police to the effect that he had kicked the deceased four or five times to the head.  The deceased died as a result of the injuries inflicted by the offender.  Notably, the deceased had brain injuries which were probably caused by his having been kicked to the head with the steel‑capped boot.  The deceased was severely intoxicated but the offender had a negative reaction to blood alcohol reaction analysis. 

16. The offender in Luff had a highly dysfunctional family background.  As a child, he suffered neglect and violence from his parents.  He left home at the age of 15 and was made a ward of the State.  The offender had serious anger management problems.  He also had substance abuse and other issues from his childhood.  The offender had a prior criminal record with convictions for violence and dishonesty.  However, about seven years before he was sentenced for the manslaughter of the deceased, the offender commenced a relationship with a woman.  They had two children.  His relationship with her was positive. 

17. The sentencing judge in Luff imposed a sentence of 7 years 4 months' imprisonment for manslaughter.  This sentence was imposed before the enactment of the Criminal Law and Evidence Amendment Act 2008, but after the introduction of the Sentencing Legislation Amendment and Repeal Act 2003.  A parole eligibility order was made. 

18. The offender's appeal to this court was dismissed.  The sole ground of appeal was that the sentencing judge erred in finding that the plea of guilty to the charge of manslaughter was a late plea.  Miller JA (Steytler P and McLure JA agreeing) said:

    The sentence imposed for the crime of manslaughter was within the range that could have been expected in the circumstances of the case. It recognised the fact that there had been a plea of guilty and although the sentencing judge erred in describing it as a late plea, there was no injustice done to the appellant. He received the full benefit of his plea. In my opinion, the appellant has failed to make out the ground of appeal upon which leave was granted. No error has been shown on the part of the sentencing judge in relation to the sentence imposed upon the appellant for manslaughter [29].

19. I have examined numerous other sentencing dispositions for manslaughter referred to by the parties, including R v Churchill [2000] WASCA 230; R v McDonald [2000] WASCA 336; Bell v The Queen [2003] WASCA 216; The State of Western Australia v Frazer (Unreported, INS 150 of 2009, 2 November 2009); and Macaree v The State of Western Australia [2011] WASCA 207. It is unnecessary to reproduce the relevant facts and circumstances or the sentencing outcomes.

The Fernando propositions

1. In R v Fernando (1992) 76 A Crim R 58, Wood J set out a number of factors which can lead a person of Aboriginal background into offending behaviour and which, in appropriate cases, may have a particular relevance to the manner in which a sentencing disposition should be structured. These factors are to be found in the following propositions enunciated by his Honour:

   (A)The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group.

   (B)The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.

   (C)It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.

   (D)Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides.  In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.

   (E)While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor.  This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

   (F)That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.

   (G)That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.

   (H)That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part (62 ‑ 63).

   See also Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305, 326 (Brennan J); Rogers v The Queen (1989) 44 A Crim R 301, 306 ‑ 307 (Malcolm CJ); Director of Public Prosecutions v Terrick [2009] VSCA 220; (2009) 24 VR 457 [42] ‑ [53] (Maxwell P, Redlich JA & Robson AJA); R v Morgan [2010] VSCA 15; (2010) 24 VR 230 [38] ‑ [39] (Maxwell P & Buchanan JA); R v KU; Ex parte Attorney‑General (No 2) [2008] QCA 154; [2011] 1 Qd R 439 [129] ‑ [133] (de Jersey CJ, McMurdo P & Keane JA); McLean v The Queen [2011] QCA 218; (2011) 212 A Crim R 199 [21] ‑ [22] (White JA, Fraser JA & Philippides J agreeing).

2. In Churchill, Kennedy ACJ (Anderson and Wheeler JJ agreeing) referred to the Fernando propositions with apparent approval [26].

3. Cases in New South Wales decided after Fernando have emphasised that the recognition of an offender's personal circumstances, in accordance with the Fernando propositions, must 'not have the unintended consequence of apparently devaluing the effect of offences on victims, including circumstances where the victims are already themselves subject to the same pattern of disadvantage':  R v Powell [2000] NSWCCA 108 [24] (Simpson J). See also R v Pitt [2001] NSWCCA 156 [20] (Wood CJ at CL, Sully J agreeing).

4. In R v Morgan [2003] NSWCCA 230; (2003) 57 NSWLR 533, Wood CJ at CL (Simpson and Adams JJ agreeing) made these observations:

   As has been made clear by subsequent decisions, [my] remarks [in Fernando] were not intended as an exhaustive statement of sentencing practice, or as justifying any special leniency in relation to offenders of the class to whom they applied:  R v Hickey (Court of Criminal Appeal, 27 September 1994, unreported), R v Ceissman (2001) 160 FLR 252 and R v Pitt [2001] NSWCCA 156.

   Rather, they were intended to reflect an understanding of some of the factors which can lead a person of this racial background into offending behaviour, and which, in appropriate cases, may have a particular relevance for the way in which a sentencing order may suitably be framed.  They can have also a particular relevance for persons appearing before the courts who come from remote parts of the country, and who have particularly disadvantaged backgrounds, or when the offence is alcohol‑related [20] ‑ [21].

5. Where an offender alleges that he or she has suffered relevant disadvantage, the disadvantage must be established by evidence relevant to the particular offender, even if the disadvantage in question is attributable to the offender's membership of a particular ethnic group.  See KU [133].

6. Relevant personal disadvantage, including disadvantage arising by reason of membership of a particular ethnic group, will be a relevant consideration in sentencing an offender, but the consideration may, in some circumstances, attract little weight.  For example, the offending in question may be very serious or the offender may have an extensive prior criminal record and a propensity to re‑offend or the offender may be a significant danger to the community.  See Terrick [54] ‑ [56].

Drunken violence against Aboriginal women in Aboriginal communities

1. In Gordon, Wheeler J referred to the importance of maintaining adequate standards of punishment for a crime which involves the taking of human life. Although the role of the criminal law in deterring drunken violence against Aboriginal women in Aboriginal communities is problematic, her Honour stressed, correctly in my opinion, that 'it is important to indicate very clearly that drunken violence against Aboriginal women is viewed very seriously' [35]. The point made by Wheeler J remains of utmost importance. Sentences imposed for drunken violence against Aboriginal women within Aboriginal communities (especially sentences for drunken violence which results in death) must properly reflect the sentencing factors of the protection of vulnerable women, personal deterrence and general deterrence. See Walley [15] ‑ [19] (Wheeler and Miller JJA), [39] (McLure JA).

The merits of the ground of appeal

1. In the present case, the respondent's offending was undoubtedly very serious.  It is properly characterised as within the upper range of seriousness for offences of manslaughter.  In particular:

   (a)The respondent committed an unprovoked, sustained and savage attack upon a vulnerable, unarmed and defenceless woman.  The assault continued over a period of about two hours.

   (b)The persistent and violent nature of the assault is demonstrated by the injuries inflicted.  As I have mentioned, the deceased suffered traumatic brain injury, with bilateral and recent subdural haemorrhage and recent contusions, a fractured jaw and fractures to five of her ribs.

   (c)The deceased was significantly shorter and smaller in stature than the respondent.

   (d)The respondent continued his attack despite the deceased's repeated pleas for him to stop and leave her alone.  He showed no mercy.

   (e)The only reasonable inference to be drawn from the level of violence inflicted by the respondent, and from the prolonged nature of the attack, is that the respondent intended, despite his intoxication, that the deceased should suffer some bodily harm.

   (f)When the deceased was killed, there was a subsisting life‑time violence restraining order which had been imposed on the respondent in relation to her.  Although the order had been ignored by both of them, in that they had resumed a domestic relationship, the existence of the order should, nevertheless, have emphasised to the respondent that he was prohibited from engaging in any violent conduct towards the deceased.

The alleged residual discretion:  the 2007 model agreement by the Council of Australian Governments

1. In 2007 a model agreement was made by the Council of Australian Governments for Double Jeopardy Law Reform.  It was agreed, relevantly, that:

   All jurisdictions should implement reforms to provide that when a court is considering a prosecution appeal against sentence, no principle of 'sentencing double jeopardy' should be taken into consideration by the court when determining whether to exercise its discretion to impose a different sentence, or in determining what sentence to impose.

   See Council of Australian Governments, Double Jeopardy Law Reform:  Model Agreement by COAG (2007).

2. Pursuant to this agreement, legislative reforms have been introduced in New South Wales, Victoria, Western Australia, South Australia, Tasmania and the Northern Territory.  See Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [25] (French CJ, Crennan & Kiefel JJ).

The alleged residual discretion:  the 'double jeopardy' law reform in Western Australia

1. By the Criminal Law and Evidence Amendment Act 2008, the Parliament of Western Australia repealed s 31(2) of the Criminal Appeals Act.  It also repealed s 41(4) of that Act and inserted a new s 41(4) instead. 

2. The new s 41(4) of the Criminal Appeals Act reads:

   (4)The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor) ‑ 

   (a)may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard; but

   (b)despite paragraph (a), must not take into account the fact that the court's decision may mean that the person is again sentenced for the offence.  (emphasis added)

3. The provisions for the repeal of s 31(2), and for the repeal of the original s 41(4) and the substitution of the new s 41(4), were inserted into the Bill (which upon enactment became the Criminal Law and Evidence Amendment Act 2008) by amendments moved by the Attorney General, Mr JA McGinty, on 2 November 2006.  This court's reasons in Marchese were published on 4 August 2006.

4. The Attorney General addressed the Legislative Assembly in relation to the amendments, as follows:

   The new clause will simply repeal section 31(2). Given that this new clause and new clause 40, which is not before the house right now, are interrelated, I will address them both together. State appeals against sentences are invariably from sentences perceived to be inadequate in the sense of not being appropriately severe. In recent years appeal courts have asserted certain discretion to refuse to intervene in the sentencing process in a prosecution appeal, even when an error has been shown by the appeal.  The courts exercise a discretion not to intervene, having regard to the so‑called double jeopardy, and having the offenders stand the [sic] sentence twice.  For that same reason, even if a re-sentence takes place, the appellate court will often impose a lesser sentence than would otherwise have been appropriate.  The government is concerned that this approach is now being taken regularly, with the result that sentences that have been shown to be inadequate remain uncorrected.  The amendment to the Criminal Appeals Act 2004 prevents resort to double jeopardy as a basis of refusal to impose a different sentence when a prosecution appeal should otherwise have succeeded, and the discretion to impose a lesser sentence than would otherwise be appropriate on such appeals.

   In other words, the courts appear reluctant to increase the sentence to an appropriate measure when a court has, in the first instance, imposed what is recognised to be an inadequate sentence based on what I thought was woolly thinking around the so-called double jeopardy principle that someone should not be exposed to different sentencing.  I think that is a reluctance to do justice and it needs to be corrected.  What is proposed to be inserted with this amendment is a direction to the court that, when dealing with an appeal against sentence, it should not place weight on the fact that this is an appeal against sentence, or on any operation of the double jeopardy rule with respect to the person being sentenced twice for the same offence.  (emphasis added)

   See Western Australia, Parliamentary Debates, Legislative Assembly, 2 November 2006, 8216 (Mr JA McGinty, Attorney General).

5. The amendments were put without further debate, and passed without dissent.  They commenced on 27 April 2008.

6. The new s 41(4) applies where an appeal court is deciding an appeal against sentence that:

   (a)does require it to impose a sentence, or to vary a sentence imposed, on a person for an offence; or

   (b)may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence.

7. The language of this provision suggests that an appeal court may exercise the power conferred by the new s 41(4)(a) before the appeal court has decided to allow or dismiss the appeal and, if it decides to allow the appeal, before it imposes a sentence or varies an existing sentence imposed on a person for an offence.

8. So, for example, it appears that an appeal court may take into account the matters referred to in the new s 41(4)(a) in connection with deciding whether it should exercise the discretion under s 31(4).

9. It is unnecessary, however, in this appeal, to explore any limits upon or pre‑conditions to the exercise of the power conferred by the new s 41(4)(a), or the interaction or relationship between the new s 41(4)(a) and s 39 or the more general powers under s 40.

10. I merely note that in The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116, McLure JA stated, in the context of considering the new s 41(4)(b), that:

    Section 41(4) applies where an appealable error has been established [27].

The alleged residual discretion: case law on s 41(4)(b) of the Criminal Appeals Act

1. In Wallam, McLure JA observed that until the commencement of the new s 41(4)(b) of the Criminal Appeals Act, the common law principles relating to State appeals were mandatory relevant considerations which had a substantive effect on the sentence to be imposed [35]. Her Honour said that s 41(4)(b) changed the law so that a mandatory relevant consideration to the offender's benefit became a mandatory irrelevant consideration [35].

2. Miller JA agreed with McLure JA that the new s 41(4)(b) excluded 'the double jeopardy principle as a relevant consideration in the appeal court's determination of the sentence that should be imposed on a State appeal' [54]. A little later, his Honour said:

   In my opinion, the subsection means and has the effect that the attitude of restraint formerly applicable to Crown appeals because of the double jeopardy principle has gone and an appeal by the prosecution (now the State of Western Australia) is to be dealt with in accordance with the same principles as apply to appeals by sentenced persons [56].

3. In The State of Western Australia v Cunningham [2008] WASCA 240; (2008) 190 A Crim R 430, Miller JA (Steytler P & Buss JA agreeing) said:

   Prosecution appeals are no longer subject to the 'double jeopardy' principle (for a statement of which see Dinsdale v The Queen (2000) 202 CLR 321; 115 A Crim R 558 at [62] per Kirby J). Section 41(4)(b) of the Criminal Appeals Act 2004 (WA) now provides that the double jeopardy principle is no longer a relevant consideration when the appeal court is determining the sentence to be imposed on a State appeal: The State of Western Australia v Wallam (2008) 185 A Crim R 116 at [29] (McLure JA) and [54] (Miller JA). This section applies to all cases in which the sentence appealed from dates after 27 April 2008: The State of Western Australia v Richards (2008) 37 WAR 229; 185 A Crim R 413. See also The State of Western Australia v Collier (2007) 178 A Crim R 310 at [20] (Steytler P).

   The result is that the appeal in this matter falls to be decided in accordance with the general principles that relate to the hearing of appeals against sentence:  Wallam at [66] ‑ [67] (Miller JA) and see House v The King (1936) 55 CLR 499 at 504 ‑ 505 (Dixon, Evatt and McTiernan JJ); Lowndes v The Queen (1999) 195 CLR 665 at [15]. In short, some error must be shown in the exercise of the discretion exercised by the sentencing judge, either by a wrong principle being employed, some extraneous or irrelevant matter guiding or affecting the sentencing judge, a mistake as to the facts, failure to take into account some material consideration, or, alternatively, the sentence is unreasonable or plainly unjust [21] ‑ [22].

   See also, to the same effect, The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137 [67] ‑ [68] (Miller JA, Owen & Buss JJA agreeing).

4. In The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119, I expressed the view [160], with which Miller JA agreed [383], that the Criminal Law and Evidence Amendment Act 2008 had the effect of abrogating the common law principles applicable to State appeals against sentence.  Miller JA said:

   Those common law principles had the effect that there was an attitude of restraint in relation to Crown appeals against sentence.  It was sometimes said that Crown appeals should be a comparative rarity.

   The justification for this was that a Crown appeal against sentence put the prisoner in jeopardy of punishment for a second time, a feature ordinarily missing from an appeal by a sentenced prisoner:  See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [62].

   It was made clear in The State of Western Australia v Cunningham [2008] WASCA 240 (Miller JA at [21] ‑ [22]; Steytler P and Buss JA agreeing) and in The State of Western Australia v Bennett [2009] WASCA 93 at [67] ‑ [68] (Miller JA, Owen & Buss JJA agreeing) that the common law principles applicable to State appeals against sentence have been abrogated, and a State appeal falls to be decided in accordance with the general principles that relate to the hearing of appeals against sentence. There is no question of the provisions of s 41(4)(b) merely abrogating the common law principle of moderation only if appellable error is demonstrated and the court is called upon to re-sentence [383] ‑ [385].

   See also, to the same effect, The State of Western Australia v Johnson [2009] WASCA 224 [29] (Buss JA, Owen & Wheeler JJA agreeing).

The alleged residual discretion: the sentencing appeal process under pt 3 of the Criminal Appeals Act, including the discretion conferred by s 31(4) of that Act and the ambit of the discretion

1. A number of observations may be made in relation to the sentencing appeal regime under pt 3 of the Criminal Appeals Act, including the discretion conferred by s 31(4) of that Act and the ambit of the discretion.

2. First, the right of appeal against sentence conferred on an offender by s 23(1) and s 23(2) of the Criminal Appeals Act, and the right of appeal against sentence conferred on a prosecutor by s 24(1) of that Act, are expressed in language which is not materially different in substance. Each ground of appeal in an appeal against sentence (whether commenced by an offender or a prosecutor) requires leave of this court. See s 27(1).

3. Secondly, an appeal against sentence (whether commenced by an offender or a prosecutor) necessarily involves an assertion that the primary judge exceeded or misused the sentencing discretion committed to him or her. The appellant must establish that the primary judge made a material error of law or fact or that a miscarriage of justice has occurred and, in terms of s 31(4), a different sentence should have been imposed. The material error of law or fact may be express or implied. See House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ); Dinsdale [3] ‑ [4] (Gleeson CJ & Hayne J).

4. Thirdly, unless under s 31(4) this court allows an appeal against sentence (whether commenced by an offender or a prosecutor), the appeal must be dismissed. See s 31(3).

5. Fourthly, this court 'may allow the appeal' against sentence if, in its opinion, 'a different sentence should have been imposed' (emphasis added). See s 31(4)(a). The phrase 'may allow the appeal' in s 31(4) applies equally to an appeal against sentence by an offender and an appeal against sentence by a prosecutor. The phrase 'a different sentence should have been imposed' in s 31(4) refers to the formation by this court of an opinion that the primary judge should have imposed a sentence different from the sentence he or she in fact imposed. However, this court has a discretion as to whether to allow an appeal against sentence (whether commenced by an offender or a prosecutor), even if the court is persuaded that the primary judge made a material error or that a miscarriage has occurred, and the court is of the opinion that a different sentence should have been imposed. See Marchese [26].

6. Fifthly, subject to s 39(3), this court must decide an appeal against sentence (whether commenced by an offender or a prosecutor) on the evidence and material that were before the primary judge. See s 39(1). Section 39 applies to appeals against conviction and appeals against sentence. By s 39(3), the obligation of this court to decide an appeal against sentence (whether commenced by an offender or a prosecutor) on the evidence and material that were before the primary judge does not affect this court's power under s 40 to admit evidence. Section 40 applies to appeals against conviction and appeals against sentence.

7. Sixthly, subject to s 41(4)(b), where an appeal against sentence (whether commenced by an offender or a prosecutor) is before this court, in deciding whether, in the exercise of its discretion under s 31(4), the appeal should be dismissed (even though the court is satisfied that the primary judge made a material error or that a miscarriage has occurred, and even though the court is of the opinion that a different sentence should have been imposed):

   (a)the court must take into account the evidence and material that were before the primary judge (s 39(1));

   (b)the court may take into account any matter, including any material change to the offender's circumstances, relevant to the sentence, that has occurred between when the primary judge dealt with the offender and when the appeal is heard (s 41(4)(a)); and

   (c) the court may take into account any new or fresh evidence of relevant matters, including relevant matters that occurred prior to or in the course of the imposition of sentence by the primary judge, if the court has exercised its power under s 40(1)(e) to admit the new or fresh evidence.

8. Seventhly, where an appeal against sentence (whether commenced by an offender or a prosecutor) is before this court, and the court is deciding whether, in exercise of its discretion under s 31(4), to dismiss the appeal (even though the court is satisfied that the primary judge made a material error or that a miscarriage has occurred, and even though the court is of the opinion that a different sentence should have been imposed), s 41(4)(b) prohibits the court from taking into account, in making that decision, the fact that, if the court were to allow the appeal, the offender may again be sentenced for the offence in question.

9. Eighthly, subject to s 41(4)(b), where an appeal against sentence (whether commenced by an offender or a prosecutor) is before this court, and the court has decided to allow the appeal and to impose a sentence or to vary the original sentence, the court must take into account, in determining the sentence or the variation, all relevant evidence and material before the court.

10. Ninthly, where an appeal against sentence (whether commenced by an offender or a prosecutor) is before this court, and the court has decided to allow the appeal and to impose a sentence or to vary the original sentence, s 41(4)(b) prohibits the court from taking into account, in determining the sentence or the variation, the fact that the offender is again being sentenced for the offence in question.

11. Tenthly, as this court noted in Cunningham, Bennett, Atherton and Johnson, sentencing appeals by the State are to be decided in accordance with the general principles that relate to the hearing of appeals against sentence. A relevantly uniform statutory regime governs appeals against sentence to this court by the State, and by offenders, under pt 3 of the Criminal Appeals Act.  These general principles, and relevantly uniform provisions, include the applicable provisions of the Sentencing Act (notably, the requirement in s 6(1) of that Act that a sentence imposed on an offender must be commensurate with the seriousness of the offence); the discretion under s 31(4) of the Criminal Appeals Act; the scope of the power to admit additional evidence relevant to whether an appeal should be allowed or dismissed; and the scope of the power to admit additional evidence relevant to any re‑sentencing by this court consequent upon an appeal being allowed. 

12. It is important to record, however, that the factors which are relevant to the discretion under s 31(4), and the content of the factors, in a particular case will differ, depending on whether the appeal is commenced by an offender or a prosecutor. The existence of this dichotomy is attributable to the different purpose underpinning appeals by offenders, on the one hand, and appeals by the State (or the Crown), on the other. See Green, where French CJ, Crennan and Kiefel JJ observed:

    The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is 'to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons' (Griffiths v The Queen (1977) 137 CLR 293 at 310 per Barwick CJ; Everett v The Queen (1994) 181 CLR 295 at 300 per Brennan, Deane, Dawson and Gaudron JJ, discussed in Lacey v Attorney‑General (Qld) (2011) 242 CLR 573 at [8] ‑ [20] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. See also R v Borkowski (2009) 195 A Crim R 1 at 18 [70]). That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the 'residual discretion' [1].

13. The new s 41(4)(b) has not circumscribed the discretion under s 31(4), apart from abrogating the common law concept of double jeopardy. See Green [26]. The new s 41(4)(b) has not altered the primary purpose of State appeals against sentence.

14. Eleventhly, it is unnecessary, in this appeal, to explore in detail the ambit of the discretion under s 31(4) or the circumstances in which the discretion is likely to be exercised. It is sufficient, for present purposes, to note that:

    (a)The discretion under s 31(4) applies to all appeals against sentence under pt 3 of the Criminal Appeals Act (whether commenced by an offender or a prosecutor).

    (b)Where an offender has appealed against sentence, the discretion may be exercised if the interests of justice require or justify its exercise.  This will depend on all the facts and circumstances of the particular case, in the context of the purpose underlying appeals against sentence by offenders, namely, the correction of judicial error in particular cases.  However, the court would be most unlikely, in practice, to exercise the discretion in the case of an appeal by an offender which has been commenced and pursued without delay.  Ordinarily, the interests of justice would require that such an appeal be allowed where the offender has established that the primary judge made a material error or that a miscarriage has occurred, and the court is of the opinion that a different sentence should have been imposed.

    (c)Where the State has appealed against sentence, the discretion may be exercised if the interests of justice require or justify its exercise.  This will depend on all the facts and circumstances of the particular case, in the context of the purpose underlying State appeals against sentence; the primary purpose being to establish principles to govern and guide primary courts in the sentencing of offenders.  Factors which may be relevant in a particular case include delay in commencing or pursuing the appeal, parity with co‑offenders, totality as a result of cumulative sentences having been imposed subsequently for other offences, or the conduct of the State in relation to the appeal or the primary proceedings.  Obviously, the examples I have given are not exhaustive.

1. It is unnecessary, in this appeal, to examine the interaction or relationship between s 6(1) of the Sentencing Act (which states that a sentence imposed on an offender must be commensurate with the seriousness of the offence) and the discretion under s 31(4).

2. Since 27 April 2008, when the Criminal Law and Evidence Amendment Act 2008 commenced, this court has heard and allowed numerous State appeals against sentence and against pre‑sentence orders under pt 3 of the Criminal Appeals Act (to which the new s 41(4)(b) applied). The discretion was not sought to be invoked in any of these appeals.

3. Since 27 April 2008, this court has also heard and dismissed numerous State appeals against sentence under pt 3 of the Criminal Appeals Act (to which the new s 41(4)(b) applied). None of these appeals was dismissed as a result of the exercise of the discretion under s 31(4). The discretion was not sought to be invoked in any of them.

4. Twelfthly, it is unnecessary, in this appeal, to examine the circumstances in which evidence received under s 41(4)(a), or new or fresh evidence admitted under s 40(1)(e), may persuade this court, subject to s 41(4)(b), to impose a more severe or a more lenient sentence than might otherwise have been the case where an appeal against sentence (whether commenced by an offender or a prosecutor) is allowed and it is necessary for this court to impose a sentence or to vary the original sentence.

The alleged residual discretion:  the decision of the High Court in Green

1. In the present case, counsel for the respondent submitted in effect that since 27 April 2008, when the Criminal Law and Evidence Amendment Act 2008 commenced, the approach of this court to the determination of State appeals against sentence under pt 3 of the Criminal Appeals Act has been erroneous, and is inconsistent with the decisions of other courts in relation to comparable legislation in New South Wales and Victoria and some other jurisdictions. 

2. Counsel relied, in particular, on the High Court's decision in Green, the decisions of the Court of Appeal of New South Wales in R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7 and Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1; and the decision of the Court of Appeal of Victoria in Director of Public Prosecutions (Vic) v Karazisis [2010] VSCA 350; (2010) 206 A Crim R 14. See also R v DW [2012] NSWCCA 66; R v Abdulla [2011] SASCFC 20; (2011) 109 SASR 258; R v Saunders [2011] SASCFC 37; (2011) 210 A Crim R 1; R v Talbot [2009] TASSC 107; Director of Public Prosecutions v Chatters [2011] TASCCA 8; R v Wilson [2011] NTCCA 9; (2011) 30 NTLR 51; Bui v Director of Public Prosecutions(Cth) [2012] HCA 1; (2012) 86 ALJR 208.

3. Section 68A of the Crimes (Appeal and Review) Act 2001 (NSW) is expressed in language different from, but the provision is analogous to, s 41(4)(b) of the Western Australian Criminal Appeals Act.

4. In New South Wales, appeals against sentence by offenders and appeals against sentence by the Crown are not governed by relevantly uniform provisions. Section 5D(1) of the Criminal Appeal Act 1912 (NSW) confers the Crown's right of appeal against sentence and, also, deals with the determination by the Court of Criminal Appeal of Crown appeals against sentence. It provides, relevantly, that on a Crown appeal against sentence the Court of Criminal Appeal 'may in its discretion vary the sentence and impose such sentence as to the said court may seem proper' (emphasis added). By contrast, appeals against sentence by offenders are dealt with in s 5(1) and s 6(3) of the Criminal Appeal Act 1912. Section 6(3) provides that:

   On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.  (emphasis added)

5. Nevertheless, (subject to s 41(4)(b)) this court is entitled and bound to take into account, in deciding whether to exercise the discretion under s 31(4) of the Western Australian Criminal Appeals Act to dismiss a State appeal (even though the court is persuaded that the primary judge made a material error or that a miscarriage has occurred, and even though the court is of the opinion that a different sentence should have been imposed), matters of the kind referred to by French CJ, Crennan and Kiefel JJ in Green at [42] ‑ [44], as within the 'residual discretion' (if and to the extent that the matters are relevant, factually, in the particular case). See also Lacey v Attorney‑General (Qld) [2011] HCA 10; (2011) 242 CLR 573 [12] ‑ [15]. See [242] above.

6. Also, in my opinion, where this court decides to allow a State appeal against sentence and to impose a sentence or to vary the original sentence, (subject to s 41(4)(b)) the court is entitled and bound to take into account, in exercising this power to impose a sentence or to vary the original sentence, matters of the kind referred to in Green at [42] ‑ [44] (if and to the extent that the matters are relevant, factually, in the particular case).

7. But, as I have mentioned and as noted in Green, the factors and the content of the factors which are relevant to the exercise of the discretion under s 31(4) in the context of a State (or Crown) appeal, as distinct from the factors and the content of the factors which are relevant in the context of an appeal by an offender, are different because of the different purpose underpinning a State (or Crown) appeal. This dichotomy is not attributable to any difference in the statutory text governing the rights of appeal against sentence. Nor is it attributable to the common law concept of double jeopardy, which, as I have mentioned, has been abrogated by s 41(4)(b).

Should the discretion under s 31(4) of the Criminal Appeals Act be exercised in the present case?

1. In the present case, it was submitted on behalf of the respondent that even if this court was of the opinion that the sentencing judge made a material error and that a different sentence should have been imposed, the court should dismiss the appeal in exercise of the discretion under s 31(4) of the Criminal Appeals Act.  The respondent submitted that the following alleged 'factors' required the exercise of the discretion:

   (a)The suggestion by a member of this court, during the hearing of the appeal, that offending of the kind committed by the respondent was prevalent, especially amongst regional or Aboriginal offenders (appeal ts 16), was not addressed before the sentencing judge and was not supported by any material adduced in the appeal.

   (b)The utility of any guidance by this court in relation to sentencing for manslaughter would be 'compromised' as a result of the maximum penalty for the offence having been increased recently from 20 years' imprisonment to life imprisonment.

   (c)Any statement of principle by this court regarding sentencing for manslaughter would, as a result of the recent increase in the maximum penalty, 'simply serve to confuse the jurisprudence'.

   (d)Any intervention by this court in relation to the original sentence imposed on the respondent would be 'unjust in light of the principles of consistency and fairness' in that the original sentence was 'in range'.

2. In my opinion, there is no merit in the respondent's submission. The alleged 'factors' do not require or justify, either individually or in combination, the exercise of this court's discretion under s 31(4). My reasons are as follows.

3. First, I do not rely on any suggestion of prevalence in deciding whether to allow the appeal or in deciding upon the appropriate disposition in re‑sentencing.  The status of general deterrence, as an important sentencing factor, in offences of the kind committed by the respondent does not depend, for its efficacy, upon proof of prevalence.  Secondly, although the maximum penalty for manslaughter has been increased from 20 years' imprisonment to life imprisonment, this alteration does not materially diminish the importance of this court's reasons or the utility of the guidance they will provide to primary judges who are sentencing for manslaughter.  Thirdly, for the reasons I have given, the original sentence imposed in the present case was manifestly inadequate.  A different sentence should have been imposed.  Fourthly, this court's intervention is necessary to ensure the observance of proper standards of sentencing for manslaughter, especially in the context of domestic relationships with a history of violence, and to emphasise the importance of the protection of vulnerable women, general deterrence  and the value of human life in sentencing for manslaughter committed in that context.

4. The interests of justice do not require or justify the exercise of the discretion under s 31(4).

The result of the appeal and the re‑sentencing of the respondent

1. The appeal should be allowed and the sentencing decision of the sentencing judge should be set aside.  This court has the materials necessary to re‑sentence the respondent.

1. A sentence must be imposed on the respondent which is commensurate with the seriousness of the offence.  After taking into account the maximum penalty for the offence (20 years' imprisonment), the circumstances of the commission of the offence (including the vulnerability of the deceased) and all other relevant sentencing factors, I would impose a term of 7 years 9 months' imprisonment.  I have reduced the sentence I would otherwise have imposed to reflect the mitigation in the respondent's plea of guilty at the first opportunity, his cooperation with the police and his expressions of remorse and contrition.  This new sentence should be taken to have taken effect on 13 July 2010, being the date on which the respondent was taken into custody for the offence.  He should remain eligible for parole.  The respondent will become eligible to be considered for release on parole as from 13 April 2016, when he will have served 5 years 9 months.

2. MAZZA JA:  I agree with McLure P.