The State of Western Australia v Pym [No 2] - [2025] WADC 54

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- PYM [No 2] [2025] WADC 54
CORAM:   ASTILL DCJ
HEARD:   29 AUGUST 2025
DELIVERED          :   29 AUGUST 2025
FILE NO/S:   IND 271 of 2023
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
AND

JOSHUA MICHAEL PYM

Catchwords:

Criminal law - Where person found to have committed offence following Criminal Law (Mental Impairment) Act 2023 (WA) special proceeding - Court ordered disposition under pt 5 of the Criminal Law (Mental Impairment) Act 2023 (WA) - Whether custody order or community supervision order ought to be imposed - Limiting term for custody order

Legislation:

Criminal Code (WA)
Criminal Law (Mental Impairment) Act 2023 (WA)
Sentencing Act 1995 (WA)

Result:

Custody order imposed
Limiting term set as 5 years

Representation:

Counsel:

The State of Western Australia	:	Ms A J Finn
Accused	:	Ms F R Veltman

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Frances Veltman, Kennedy Chambers

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

Bugmy v The Queen (2013) 249 CLR 571
Dimitrovska v The State of Western Australia [2015] WASCA 162
Dunbar v The State of Western Australia [2020] WASCA 90
Greenup v The State of Western Australia [2024] WASCA 91
Juma v The State of Western Australia [2011] WASCA 54
Lee v The State of Western Australia [2022] WASCA 137
Mitchell v The Queen (1998) 20 WAR 257
O'Brien v The State of Western Australia [2016] WASCA 23
Oxenham v The State of Western Australia [2015] WASCA 30
Peake v The State of Western Australia [2015] WASCA 239
R v Tsiaris [1996] 1 VR 398
SAL v The State of Western Australia [2021] WASCA 192
SYO v The State of Western Australia [2024] WASCA 31
The State of Western Australia v Chokolich [2024] WASC 346
The State of Western Australia v Pym [2025] WADC 16
Trompler v The State of Western Australia [2008] WASCA 265
Zhang v The State of Western Australia [2013] WASCA 121

ASTILL DCJ:

Introduction

Mr Pym is charged on indictment that on 26 February 2022 at Greenmount he, with intent to maim, disfigure, disable or do some grievous bodily harm to Barry Adam Risi did grievous bodily harm to Barry Adam Risi contrary to s 294(1) of the Criminal Code (WA). For the reasons I delivered on 21 March 2025[1] (previous reasons) I found for the purposes of s 41(2)(c) of the Criminal Law (Mental Impairment) Act 2023 (WA) (the Act) that Mr Pym committed the offence charged.
[1] The State of Western Australia v Pym [2025] WADC 16.
Having made a finding under s 41(2)(c) I must make an order under pt 5 of the Act.[2] The offence I have found Mr Pym to have committed is a serious offence.[3] Because the offence is a serious offence, I do not have the option of releasing Mr Pym unconditionally[4] and must impose a custody order unless I am satisfied on the balance of probabilities that any risk Mr Pym appears to present to the safety of the community can be adequately managed under a community supervision order.[5]
[2] Section 43(5) of the Act.
[3] Section 9(1) and sch 1 sub-div 3 item 13 of the Act.
[4] Section 46(4) of the Act.
[5] Section 46(2)(a) of the Act.
For the reasons I will outline, I am not satisfied on the balance of probabilities Mr Pym's apparent risk can be adequately managed under a community supervision order. Instead, I am satisfied the protection of the community warrants the making of a custody order.
In reaching that conclusion I have had regard to the relevant factors set out in s 47(a) through to s 47(g), the objects and principles of the Act[6] and the paramount consideration of community protection.[7]
[6] Section 7(1) and s 7(2) of the Act.
[7] Section 8 of the Act.

Facts of the offending

The facts of the offending are set out in my previous reasons. I do not intend to repeat them in detail but will outline those that are necessary for the purposes of making an assessment under s 47(1)(c) of the Act and s 6(2)(b) of the Sentencing Act 1995 (WA) (the SA).
On 26 February 2022 Mr Pym was a paying lodger at Mr Risi's home in Greenmount. At some time just after 10.00 pm, he was home at the address and in company with Mr Risi and Mr Risi's then partner, Ms Kellie Moore.
Mr Risi was in the lounge room. Ms Moore was in the kitchen Mr Pym was in the general vicinity of the lounge room and kitchen areas. An argument developed between Mr Pym and Ms Moore regarding money that Mr Pym had paid as part of the lodging agreement. Mr Pym became increasingly agitated and Mr Risi asked him to leave.
Mr Risi began to usher Mr Pym from the house. He did so in a non‑confrontational and non‑physical way, motioning Mr Pym to the front door of the house. Mr Risi was unarmed. Mr Pym was complying and moving towards the front door, with Mr Risi following a short distance behind him.
Mr Risi had ushered Mr Pym through the front door and Mr Pym left momentarily. Mr Risi closed the door behind him. Only moments later, Mr Risi opened the door again at which point Mr Pym rushed through the front door. He had armed himself with a nearby screwdriver.
Mr Pym attacked Mr Risi, catching him by surprise. He immediately plunged the screwdriver into Mr Risi's right orbital socket which continued into Mr Risi's brain. This caused an immediate brain haemorrhage behind the eye socket which placed increasing pressure on Mr Risi's eye. The penetrating impact was sufficient to pierce the orbital socket as well as causing a fracture to the sphenoid sinus and the lateral maxillary sinus wall.
Mr Risi fell back from both the force of the impact as well as the injury he had sustained. Mr Pym continued to attack Mr Risi with the screwdriver causing superficial lacerations to the head, neck and upper chest. Mr Pym struck Mr Risi at least a further seven times with the screwdriver.
When Mr Risi fell to the ground, Mr Pym fell with him. By this stage Mr Pym had lost the screwdriver but continued to hit Mr Risi multiple times to the face and head with his fist. The only thing Mr Risi was doing was trying to protect his face from further injury. Mr Pym continued to assault Mr Risi until he was driven away by Ms Moore who had come to Mr Risi's defence by hitting Mr Pym with a broom handle.
Mr Pym left the house and was subsequently arrested nearby at 10.57 pm. At that point he was becoming increasingly psychotic.
From the materials subsequently received for sentencing, it is evident that at the time Mr Pym attacked Mr Risi he was in the beginning stages of a psychotic episode. However, for the purposes of setting the limiting term I cannot take into account any effect Mr Pym's mental impairment may have had upon his offending.[8] Despite any mental impairment Mr Pym may have had and consistent with the finding I have made in my previous reasons, I was satisfied Mr Pym was still capable of holding, and did hold, an intent to cause Mr Risi grievous bodily harm.
[8] Section 50 of the Act; The State of Western Australia v Chokolich [2024] WASC 346 [73] (Quinlan CJ) (Chokolich).
Because of the injury inflicted by Mr Pym, Mr Risi was required to undergo a lateral canthotomy to prevent the likely risk of permanent injury to his right eye by way of blindness. Despite undergoing surgery, Mr Risi has been left with residual symptoms consisting of blurred and double vision[9] that interfere with his ability to read and to do fine point work. With focus, Mr Risi can maintain single point vision but his vision returns to double when focus is lost. However, the evidence did not allow a finding to be made as to what degree these residual injuries are likely to be permanent.
[9] ts 138.
Mr Risi also complained of numbness to the right side of his head where the screwdriver caused the penetrating injury to his brain, as well as 'micro seizures'.[10] These were not relied upon as being part of the injury the subject of the charge, nor was the expert evidence led sufficient to be capable of identifying this as being causally related to the injury inflicted by Mr Pym.
[10] ts 138.

Materials

For the purposes of determining what order to make, the following reports were provided:[11]
(a)Disability Justice Service predisposition report dated 1 August 2025 prepared by Ms Armilda Ho and Ms Sarah Beveridge‑Pearce;
(b)Adult Community Corrections predisposition report dated 7 August 2025 prepared by Ms Nicola Lloyd;
(c)Forensic psychological report dated 30 July 2025 prepared by Dr Dylan Galloghly;
(d)Forensic psychiatric report dated 31 July 2025 prepared by Dr Madeline McCreanor; and
(e)Forensic psychiatric report dated 10 August 2025 prepared by Dr Gosia Wojnarowska.
[11] Section 47(4) of the Act.

Personal circumstances

Mr Pym was born on 25 April 1995 and is currently 30 years old. He was 26 years and 10 months old when he committed the offence. I am not satisfied Mr Pym's offending was caused, or contributed to by, immaturity resulting from his age.[12]
[12] Juma v The State of Western Australia [2011] WASCA 54 [44].
He is the eldest of four siblings. All three of Mr Pym's siblings, along with his mother, have been diagnosed with schizophrenia suggesting a high genetic loading towards psychotic illness.[13] Collateral information suggests Mr Pym was exposed to drugs and alcohol whilst in utero and was born into a high conflict home environment.[14]
[13] Dr McCreanor's report, page 2, par 2.
[14] Dr McCreanor's report, page 2, par 2.
Mr Pym's parents separated when he was 10 years old. Collateral materials suggest his mother was neglectful and unsupportive.[15] During this time Mr Pym attempted suicide by hanging. This was a potentially hypoxic event which may have affected the subsequent development of Mr Pym's brain.[16] Shortly afterwards, Mr Pym went to live with his father.
[15] Dr Galloghly's report, page 4, par 11.
[16] Dr McCreanor's report, page 2, par 2.
From age 12, Mr Pym left his father's residence and subsequently became homeless.[17] He has remained largely itinerant ever since. From age 12 to 16, Mr Pym was exposed to violence, homelessness, sexual and physical assaults.[18] It is not surprising given the history described by Mr Pym that his education was seriously disrupted, having attended eight primary schools and recorded 506 days absent from school from Year 1 to Year 10, and been suspended for a total of 45 days for aggression towards students and teachers.[19] He was expelled in Year 9 and did not return.[20]
[17] Dr Galloghly's report, page 4, par 11.
[18] Dr McCreanor's report, page 2, par 2.
[19] Dr McCreanor's report, page 7, par 39.
[20] Dr Galloghly's report, pages 4 - 5, par 15.
From 11 years old he was introduced to smoking cannabis whilst residing with his father.[21] At approximately 15 he moved to alcohol and methamphetamine.[22] Many of Mr Pym's frequent admissions to hospital for psychosis have recorded methamphetamine use being present. Mr Pym reports having used cannabis daily until his incarceration for the present offence[23] smoking up to 30 cones a day.[24] He cannot envisage living his life in the community without being able to drink alcohol and smoke marijuana.[25]
[21] Dr McCreanor's report, page 6, par 38.
[22] Dr McCreanor's report, page 7, par 45.
[23] Dr McCreanor's report, page 7, par 45.
[24] Dr Galloghly's report, page 5, par 18.
[25] Dr McCreanor's report, page 8, par 47.
There is no formal diagnosis of Foetal Alcohol Spectrum Disorder and, even if there was, I would be prohibited by s 50(2)(b) of the Act from taking into account any mental impairment it might cause. But notwithstanding the fact Mr Pym 'did not recall many problems in his childhood' and that he had 'quite a normal upbringing',[26] it is evident from the materials received that Mr Pym endured what can be described as profound childhood deprivation during his earlier formative years. That profound childhood deprivation must be given 'full weight'[27] as considered in Lee v The State of Western Australia,[28] which I have done.
[26] Dr Galloghly's report, page 4, par 12.
[27] Bugmy v The Queen (2013) 249 CLR 571 [44] (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ).
[28] Lee v The State of Western Australia [2022] WASCA 137 [61] - [64] (Lee).
Mr Pym has never held employment. He has, since the age of 12, remained consistently homeless. He described his 'leisure activities' as including 'having gatherings with friends where they would drink alcohol, use illicit drugs, write and listen to music and have sex with females'.[29] He considers a 'good life' to include drinking alcohol and using cannabis and if an order was imposed prohibiting him from using these substances, he indicated he would seek a prescription for medicinal cannabis.[30] Mr Pym tends to associate with antisocial peers[31] and has limited prosocial support in the community.[32]
[29] Dr Galloghly's report, page 5, par 17.
[30] Ms Lloyd's report, page 5.
[31] Dr Galloghly's report, page 12, par 60 and page 18, par 82.
[32] Dr Wojnarowska's report, page 10, par 56.
Mr Pym's most significant prosocial support within the community is his aunt, though she has been unable or unwilling to provide Mr Pym with accommodation.[33] A Guardianship and Administration Order was made on 24 January 2024 with the next review date being 24 January 2026. He has received funding under the National Disability Insurance Scheme (NDIS) for 'Capacity Building Supports'[34] but that funding does not have an allocation for the provision of support workers.[35] Previous occupational therapist assessments have shown that Mr Pym is fully dependent with budgeting and has difficulty with day‑to‑day tasks when not assisted.[36]
[33] Dr McCreanor's report, page 7, par 42.
[34] Ms Lloyd's report, page 6.
[35] Dr Galloghly's report, page 12, par 57.
[36] Dr McCreanor's report, page 7, par 43; Ms Lloyd's report, page 5.
He has held one significant relationship which has been 'on‑off' over the past 10 years since he was 18. He now describes that relationship as having ended.[37] He has a 7‑year‑old son from this relationship who he does not have contact with. Whilst Mr Pym has expressed to the report writers an interest in reconnecting with his son, Department for Child Protection and Family Support confirm that Mr Pym's son is the subject of a protection order and Mr Pym has previously advised the case worker that he does not want contact with his son.[38]
[37] Dr Galloghly's report, page 4, par 13.
[38] Ms Lloyd's report, page 4.
Mr Pym has a criminal history that, whilst not lengthy, is relevant. His offending commenced in 2015 when he was 20 with his first drug‑related offence (possessing cannabis). Except for convictions for breaching bail[39] and criminal damage,[40] the remainder of his offending has been violence related.[41] Mr Pym's risk of reoffending in a like manner was consistently assessed as 'high' across all three reports.[42]
[39] Conviction recorded 13 July 2021.
[40] Conviction recorded 16 November 2021.
[41] Conviction for endangering life, health or safety of a person and being armed in a manner to cause fear recorded 29 June 2021; three convictions for unlawful assault occasioning bodily harm recorded 13 July 2021.
[42] Dr Galloghly's report, page 14, par 67; Dr Wojnarowska's report, page 14, par 77; Dr McCreanor's report, page 10, par 69 and page 11, par 76.
The most likely scenario identified was Mr Pym engaging in reactive violence towards a peer.[43] However, he was also at risk of assaulting another person, possibly a stranger and potentially without provocation or warning, by striking them with his hand or a concealed weapon.[44] These scenarios were likely to occur in the context of Mr Pym being intoxicated and psychotic. The likelihood for all scenarios was increased where there was an absence of stable accommodation, support and lifestyle structures, antisocial peer association and ongoing illicit substance use.[45]

Mental health

[43] Dr Galloghly's report, page 17, par 75.

[44] Dr McCreanor's report, page 10, par 70.

[45] Dr Galloghly's report, page 17, par 78.

The materials are consistent in the diagnosis of chronic paranoid schizophrenia, though Dr Wojnarowska offered the further diagnosis that his condition is treatment resistant. It seems that the hesitation Dr McCreanor holds in offering the additional qualifier of 'treatment resistant' is the fact Mr Pym has not been trialled on clozapine, which she refers to as 'the gold‑standard' medication for schizophrenia.[46]
[46] Dr McCreanor's report, page 13, par 90.
Regardless, it is evident that Mr Pym has been suffering from schizophrenia from a very early age. He was first made known to the public mental health service from as early as 2016 when he was an involuntary patient for approximately two months. He has spent a significant part of his adult life either as a voluntary or involuntary patient[47] with a long history of non‑compliance with medications resulting in relapses into mental illness. He currently reports that he would like to stop taking antipsychotic medication due to the side effects and would prefer to work with a personal trainer.[48]
[47] Dr Galloghly's report, page 7, pars 34 - 42.
[48] Dr Galloghly's report, page 11, par 50.
He is currently being treated through the administration of two long‑standing antipsychotics through monthly depot injection. His mood has been steady over the last 12 months,[49] but he remains symptomatic.[50] He continues to experience positive psychotic symptoms and impaired judgement. He has not engaged in education or participated in treatment whilst in custody.[51]
[49] Dr Galloghly's report, page 9, par 44.
[50] Dr McCreanor's report, page 13, par 90; Dr Wojnarowska's report, page 11, par 63.
[51] Dr Galloghly's report, page 9, par 45.
In addition to the diagnosis of schizophrenia, Mr Pym also meets the criteria for mild to moderate intellectual disability. He has been assessed as holding an IQ of 76.[52] He exhibited significant cognitive and functional impairment across most domains, particularly in memory, attention and verbal reasoning but also displayed problems with learning, impulsivity, receptive language and adaptive functioning.[53] Due to his cognitive impairment, he is assessed as being unable to adhere to community‑based orders.[54]
[52] Dr Galloghly's report, page 10, par 48; Dr Wojnarowska's report, page 11, par 60.
[53] Dr Galloghly's report, page 10, par 48.
[54] Dr McCreanor's report, page 13, par 94.
Mr Pym's inability to remain abstinent from illicit substances was reflected in his diagnosis of a substance use disorder, though Dr Wojnarowska notes it is currently in remission due to being in a controlled environment.
There is a consensus of opinion that in the event Mr Pym is made the subject of a custody order, the best accommodation option would be the Bennett Brook Disability Justice Centre.

What order should be made?

A custody order must be made unless the court is satisfied on the balance of probabilities that any risk that the person appears to present to the safety of the community can be adequately managed under a community supervision order. There is a clear consensus in opinion based on the materials I have received that there is no capacity to safely manage Mr Pym's risk by way of a community supervision order.[55]
[55] Dr Wojnarowska's report, page 14, par 77; Dr McCreanor's report, page 15, par 108; Dr Galloghly's report, page 1, par 5.
Despite having achieved that consensus and despite the presumption against making something other than a custody order, I must still have regard to the matters set out in s 47 of the Act before coming to a final decision.

The protection of the community

The consensus of opinion is that Mr Pym continues to present as a high risk to the community. His risk scenario includes unprovoked random violence against strangers. His mental illness is seen as a significant contributing factor to that risk. Mr Pym remains symptomatic despite being in a controlled environment and treated by two antipsychotic medications.

The nature of the offence and the circumstances of its commission

At [182] ‑ [189] of my previous reasons I noted the difficulties the absence of any psychiatric evidence caused in my assessment of what Mr Pym's state of mind might have been at the relevant time. Subsequently I have received the additional materials referred to above at [17] that touch upon this issue.
Those materials suggest Mr Pym was unable to provide an account for the offending other than a delusional interpretation of what took place[56] which was consistent with other delusions that Mr Pym has frequently held regarding fears of being raped and murdered.[57]
[56] Dr Wojnarowska's report, page 13, par 72.
[57] Dr McCreanor's report, page 14, par 101.
Regardless of the extent to which Mr Pym's mental illness may have contributed to his offending or how his delusions may have affected his perception (which, for the reasons as I have previously indicated, I was not in a position to make a finding about), I am satisfied this offending occurred in the context of some level of contribution by his mental illness.
What appears to be the primary relevance of this factor when considered in the context of the paramount consideration provided for by s 8 of the Act is best stated by Dr Galloghly when he opined the 'index offence is an example of Mr Pym's capacity to perpetrate serious violence associated with his mental illness and severe polysubstance abuse'.[58] The present offending is indicative of the level of violence and the type of extreme harm Mr Pym can cause to others when under the effect of illicit substances (which he now admits he was under around the time of the offence)[59] and when his mental illness is operative.

The person's character, antecedents, age and health

[58] Dr Galloghly's report, page 18, par 81.

[59] Dr McCreanor's report, page 14, par 14.

I have already set out above some of the relevant aspects of Mr Pym's character, antecedents, age and health.
Most relevantly for the purposes of making the present assessment, what Mr Pym's character, antecedents, age and health demonstrate is that he is someone who encountered a difficult upbringing that brought him into contact with the criminal justice system at an early age. Throughout his teens and early adulthood, he has been itinerant or in prison, his peer network is largely a negative one, and he has led a life of entrenched substance addiction.
Mr Pym's ability to acquire the necessary skills to adapt to adult functioning has been impaired through the disruption caused by his prolonged periods of incarceration, hospitalisation or the lack of stable accommodation and compounded further by his intellectual impairment.
Whilst Dr Galloghly opines that Mr Pym 'shows some ability for self‑regulation and emotional stability when he receives support, follows treatment and has a structured lifestyle',[60] as is evident, the occasions throughout his life where he has been able to achieve those things have been few.

The nature of the person's mental impairment

[60] Dr Galloghly's report, page 18, par 82.

Mr Pym's mental impairment is chronic and enduring. It is intrinsically linked to his risk of reoffending. That condition is exacerbated by his substance use which he has little interest in overcoming.
Entangled within that diagnosis is his comorbid intellectual disability which limits the level of insight Mr Pym can achieve into his condition. His mental impairment remains symptomatic despite treatment efforts. Consequently, his condition will be difficult to treat pharmacologically and psychologically.
Once removed from a controlled environment, his condition will require significant support and supervision within the community. Implementing those supports and supervision will be challenging given the lifestyle Mr Pym has experienced to date. However, absent doing so will present significant risk given the nature of Mr Pym's mental impairment and the likelihood of relapse.

The relationship between the mental impairment and the offending conduct

This has largely been addressed above when dealing with s 47(1)(b) of the Act. However, irrespective of whether any psychosis or delusional beliefs may have contributed to his offending, it is also evident Mr Pym presents as an increased risk due to impaired impulsivity and emotional regulation.
There is a consensus of opinion that his executive limitations, substance exposure and his delusional structure, are all factors that are likely to significantly contribute to him responding violently when challenged such as occurred during the course of the index offending.

The degree of risk that the person appears to present to themselves or the safety of the community because of their mental impairment

Mr Pym's risk has been variously assessed as 'high if he is not subject to the conditions of a custody order',[61] a 'significant risk to the community' if left untreated, unsupported, and using substances,[62] and a 'high risk of violent reoffending'.[63] Mr Pym's risk of harm is not just to others but, given his previous history of self‑harm, also extends to risk of harm to himself.
[61] Dr Wojnarowska's report, page 14, par 77.
[62] Dr McCreanor's report, page 15, par 105.
[63] Dr Galloghly's report, page 19, par 86.
Due to his limited supports in the community and his cognitive impairments, his risk of relapsing to substances when confronted with life stressors is considered 'likely'[64] and given his limitations on functioning independently it is probable he would quickly devolve to an unstructured lifestyle. All of these factors increase the risk that Mr Pym presents to either himself or others.

The extent to which adequate resources are available for the treatment, care and support of the person in the community

[64] Dr Wojnarowska's report, page 14, par 77.

Mr Pym is assessed as requiring supervision from support staff to meet his daily needs for self‑care, occupation, physical health and personal support needs.[65] Notwithstanding Mr Pym's access to NDIS funding, this will be insufficient to manage his needs.[66] His level of supervision and support is assessed as 'high' and given his limited capacity to understand and adhere to his legal conditions, this provides added difficulty.
[65] Dr McCreanor's report, page 15, par 106.
[66] Dr Wojnarowska's report, page 15, par 79; Dr Galloghly's report, page 19, par 87.
Mr Pym currently has no accommodation options available to him as well as limited prosocial supports. Because of this, he does not have any of the necessary supports in place to transition directly to the community.[67] The consensus opinion is there are insufficient resources to manage Mr Pym's risks within the community.

Victim impact statement

[67] Dr McCreanor's report, page 15, par 107.

A 'victim of an offence' is permitted to give a 'victim impact statement'[68] for the purposes of assisting the court in determining what order to make.[69] A 'victim' is a 'person who has suffered injury, loss or damage as a direct result of the offence.'[70] As can be seen, the definition of 'victim' adopted for the purposes of the Act is substantively the same as provided for by s 13 of the SA.
[68] As defined in s 143 of the Act.
[69] Section 144(1) of the Act.
[70] Section 142(1)(a) of the Act.
Mr Risi has provided a victim impact statement dated 27 August 2025. It is clear this document falls within the definition provided for by s 143 and I have taken it into account when considering the factors under s 47(1) as set out above.
I have also received a document from Ms Moore dated 28 August 2025, purporting to be a victim impact statement for the purposes of s 143.
In Dimitrovska v The State of Western Australia[71] Martin CJ when considering the admissibility of victim impact statements under the provisions of the SA, endorsed the remarks made by the court in Mitchell v The Queen[72] that:
[71] Dimitrovska v The State of Western Australia [2015] WASCA 162 [68] (Martin CJ) (Dimitrovska).
[72] Mitchell v The Queen (1998) 20 WAR 257.
The reception of victim impact statements must, it seems to me, be approached by sentencing judges with a degree of flexibility; subject, of course, to the overriding concern that, in justice to the offender, the judge must be alert to avoid placing reliance on inadmissible matter.
Whilst that observation was made in the context of considering the operation under the SA, I see no reason why a similar approach would not be adopted when receiving such a statement under s 143 of the Act.
However, the principal point of difference between the Act and the SA in this regard is the absence of a comparative provision to that of s 23A of the SA.
Section 23A of the SA was inserted in 2016 through enactment of the Sentencing Legislation Amendment Act 2016 (WA). Prior to that introduction, the definition of 'victim' was as per s 13 of the SA.
The effect of s 23A of the SA was to expand the definition of 'victim' for the purposes of div 4 to include a 'primary victim in relation to an offence.' A 'primary victim' includes 'a witness to the offence.' Thus, a witness to an offence is, by operation of s 23A, now considered to be a victim capable of providing a victim impact statement under s 24 of the SA to 'assist the court in determining the proper sentence for the offender.'
The similarity in language between s 143 of the Act and s 13 of the SA, coupled with the absence of a comparative provision to s 23A, does suggest the definition of 'victim' in s 143 is intended to be much narrower than what is provided for in s 23A.
If I was sentencing Mr Pym under the SA, then it is evident from s 23A of the SA I would be permitted to have regard to Ms Moore's document as a victim impact statement for the purposes of determining the proper sentence for the offender.[73] However, it is div 4 of the SA that governs the receipt and admissibility of that material when making that assessment. As discussed in further detail below, in setting a limiting term I must exercise the task of determining the 'hypothetical sentence' by reference to the relevant considerations under the SA. But that task of determining the 'hypothetical sentence' under s 50(2) of the Act does not, in my view, extend to permitting receipt of material that would be admissible by operation of s 23A of the SA.
[73] Section 24(1) of the SA.
Section 144 of the Act governs the receipt of material constituting a victim impact statement for the purposes of assisting the court in determining what order to make under pt 5. In determining what order to make, that includes the making of the custody order and the setting of a limiting term. To the extent material is capable of meeting the definition of a 'victim impact statement' under s 143 then the court, when carrying out the task of setting the limiting term, can take that material into account in the way provided for by s 24(1) of the SA but it is s 143 that governs its receipt, not s 23A.
Whilst appreciating the need to adopt a 'degree of flexibility', that flexibility cannot extend to placing reliance upon otherwise inadmissible material.
I have no doubt that witnessing the attack upon Mr Risi must have been traumatic for Ms Moore to observe and is likely to have an indelible effect upon her. That is something, in my view, I can be satisfied of from the objective facts that I have found and her proximity to what took place. To this extent, it is a factor that I consider to be relevant and take into account when considering the nature of the offence and the circumstances of its commission for the purposes of s 47(1)(b) of the Act, and also as part of the circumstances of the commission of the offence under s 6(2)(b) of the SA when determining what limiting term to impose.
However, I do not consider s 143 of the Act would permit me to receive and have regard to as a victim impact statement the document provided by Ms Moore as to the effect that her witnessing the offence may have had upon her, or any injury she may have sustained because of it. For that reason, I have not had regard to the contents of that document.
This analysis also has an effect upon the material that I can relevantly consider within Mr Risi's victim impact statement.
As noted above at [55] the definition of victim is someone who has 'suffered injury … as a direct result of the offence' (emphasis added). The victim impact statement may contain particulars of any 'bodily harm or psychological or psychiatric harm suffered by the victim as a result of the offence' (emphasis added).
Mr Risi's victim impact statement, quite understandably, focuses heavily upon the significant ongoing effects the serious brain injury caused when he sustained the penetrating injury to his eye, has had upon him. As noted at [120] ‑ [121] and [152] ‑ [153] in my previous reasons, the injury the subject of the charge was the injury to Mr Risi's eye and the likely risk of permanent injury by way of blindness in the absence of medical treatment. The penetrating wound to the brain, whilst a sequala of the injury to the eye, was not part of the element of grievous bodily harm relied upon by the prosecution.
Again, as recognised in Dimitrovska[74] a victim impact statement will necessarily be subjectively expressed and is reflective of the victim's perspective of the offender's conduct and its consequence. However, to the extent it is necessary to make a finding with respect to a victim's prognosis or residual injury, then that is to be determined on the basis of evidence from an appropriately qualified witness. That is the process I have adopted here.

Conclusion

[74] Dimitrovska [74] - [75] (Martin CJ).

My review of the factors contained in s 47(1) of the Act reinforces the view I had already come to as outlined above at [35]. I am not satisfied on a balance of probabilities that Mr Pym's risk can be adequately managed under a community supervision order and that a custody order must be made under s 49.

What limiting term ought to be imposed?

Having come to the conclusion that a custody order must be made, I am now required by s 50 to set a limiting term which reflects the 'best estimate' of the term of imprisonment I would have ordinarily imposed if I were 'stand[ing] in the shoes' of a hypothetical sentencing court.[75]
[75] Chokolich [61].
In making this assessment I must apply the ordinary sentencing principles but must assume Mr Pym pleaded guilty at the earliest opportunity[76] and cannot have regard to his mental impairment as a relevant sentencing factor.[77] Otherwise, all other factors that would ordinarily be relevant to the sentencing exercise can be taken into consideration.[78]
[76] Section 50(3)(a) of the Act.
[77] Section 50(2)(b) of the Act.
[78] Chokolich [73].
The hypothetical sentence must be assessed without regard to the mental impairment. The mental impairment may ordinarily be relevant to the circumstances of the offending as a mitigating factor or as an aggravating factor. The task of assessing a hypothetical sentence without regard to mental impairment may require the court, when making findings of fact, to artificially ignore the potential impact the mental impairment may have had upon capacity to formulate intent. In carrying out this task of setting the hypothetical limiting term, the court can only achieve a 'best estimate'.[79]
[79] Chokolich [67] - [68].
To the extent the court identified in R v Tsiaris[80] the recognised ways in which mental health may be relevant to sentencing, I have disregarded Mr Pym's mental impairment in the carrying out of this hypothetical exercise. Further, consistent with what I have outlined above at [77] I have not increased or decreased the sentence I would have otherwise imposed because of Mr Pym's mental impairment.

Mitigating factors

[80] R v Tsiaris [1996] 1 VR 398, 400.

To reflect the discount I would have given Mr Pym for pleading guilty at the earliest opportunity, I reduce the head sentence ‑ that is, the sentence I would have otherwise imposed for the offence if Mr Pym had been found guilty after a plea of not guilty and there were no other mitigating factors ‑ by the sum of 25%.
As noted above at [23] I have given 'full weight' to Mr Pym's disadvantaged background.
A disadvantaged background can be relevant in the sentencing exercise in a variety of ways:[81]
(a)Because it forms part of the offender's overall background and antecedents.
(b)It may help explain or place into context a pattern of offending and assist the assessment of the risk of reoffending and prospects of rehabilitation. It may assist in identifying the relevant issues if rehabilitation is to be successful.
(c)It may be causally connected to the offending or may explain why an offender offended. In some circumstances this may lessen the offender's moral culpability.
(d)It may bear upon whether the offender's time in custody will be more onerous than otherwise might be the case.
(e)Where an offender has been able to overcome a disadvantaged background, it may be relevant to show the offence committed was out of character.
[81] SYO v The State of Western Australia [2024] WASCA 31 [65] (SYO).
Where these principles are engaged, their application is not discretionary, nor is it necessary to establish a causal link between the disadvantaged background and the offending before it will be relevant.[82] However, the mere fact of childhood disadvantage is not mitigatory and does not, of itself, necessarily reduce the moral culpability of an offender. The reduction in moral culpability will follow from the impact of something which was beyond the control of the offender on the capacity of the offender to behave lawfully.[83]
[82] SAL v The State of Western Australia [2021] WASCA 192 [87].
[83] SYO [69].
Where the offender retains full capacity to make choices about unlawful behaviour but makes poor choices, albeit those choices might be influenced by childhood experiences, then the offender's moral culpability as well as the significance of personal and general deterrence is not diminished.[84]
[84] SYO [70].
In the present matter, the State accepts the evidence regarding Mr Pym's childhood is capable of being considered 'deprived' and that there is a link between that deprivation and Mr Pym's subsequent personality issues, instability and substance abuse. Notwithstanding, the State submits because of the risk Mr Pym presents to the community, the relevance of Mr Pym's deprived childhood 'points in different directions' and this would reduce the mitigating effect when applying the intuitive synthesis discussed in Lee when considering this factor.
The difficulty with this approach is the extent to which Mr Pym's deprived childhood, subsequent substance abuse and mental impairment are inexorably linked. It is clear these three factors, in combination, cause the significant risk to the community which would ordinarily elevate the need for protection in the way the State submits.
However, as noted, s 50(2)(b) of the Act prohibits me from taking Mr Pym's mental impairment into account. Absent Mr Pym's mental impairment, there is nothing about Mr Pym's deprived childhood to suggest that it makes him an elevated risk of reoffending or that he is someone who, because of that feature, the community needs to be protected against.
It is evident though that because of his deprived childhood he has, from an early age, never had stability or structure. This upbringing removed prosocial supports and forced Mr Pym to gravitate towards, and integrate with, antisocial peers to fill those roles. In doing so they have reinforced many of Mr Pym's criminogenic values and beliefs. Many of these antisocial peers are people that Mr Pym has become reliant upon for accommodation or life support and yet, because of their nature, are in a position where they can continue to exert influence over Mr Pym in relation to the encouragement of substance use and inevitable relapse.

If I could consider Mr Pym's disadvantaged upbringing in the context of Mr Pym's mental illness and the significant contributing factor that presents to his risk, then the State's submission regarding the need for increased protection of the community would have force and would cause this factor to 'point in [a] different direction'. But where I am prohibited to do so by operation of s 50(2)(b) then in my view it is a factor that must be given 'full weight', and I take it into consideration when determining what sentence would otherwise have been imposed.
There is nothing before me that establishes evidence of Mr Pym's remorse. Whilst it does not aggravate Mr Pym's offending, as noted above, particularly at [27], it cannot be said that Mr Pym is of good character or that this offending is out of character.

Aggravating factors

The matters relevant to the evaluation of the seriousness of an offence of unlawfully doing grievous bodily harm are well established and will ordinarily involve a consideration of:[85]
(a)the nature of the harm caused;
(b)the nature of the acts which caused the injuries; and
(c)the background and circumstances of the offence.
[85] Trompler v The State of Western Australia [2008] WASCA 265 [9] - [11] (Wheeler JA).
Additionally, when considering the offence of doing grievous bodily harm with intent, an assessment of the nature of the intent held will also be a relevant consideration.
Here, when examining the seriousness of Mr Pym's offending, there were a number of relevant factors that in my view render the offending serious:
(a)The offending was committed within Mr Risi's house where he was entitled to feel safe. Whilst Mr Pym was a paid lodger at the house, he had been welcomed into the house on that basis of trust which was breached when Mr Pym committed this offending.
(b)Whilst Mr Pym's use of the weapon was opportunistic, nevertheless he armed himself with an improvised weapon that had the capacity to, and in fact did, cause serious injury.
(c)The attack was entirely unprovoked and caught Mr Risi when he was surprised and defenceless. As a consequence, throughout the attack he remained vulnerable and was unable to properly defend himself. At all times Mr Risi only ever acted to protect himself and did nothing to cause or contribute to the attack against him. Mr Pym's response could only be considered an extraordinary overreaction to the apparent trigger for the offending, being the unmet demand for money directed to Ms Moore.
(d)The attack against Mr Risi was a ferocious one involving multiple blows to vulnerable areas of his body. The attack was persistent and only stopped when Ms Moore came to Mr Risi's assistance to drive Mr Pym away.
(e)In the absence of receiving medical assistance, Mr Risi was likely to have sustained permanent serious injury to his eye by way of blindness to the right eye. The injury inflicted had potential to cause Mr Risi serious harm well beyond the injuries that were the subject of the grievous bodily harm.
(f)As explained in my previous reasons, I am satisfied that Mr Pym held the intention to inflict grievous bodily harm upon Mr Risi when carrying out the attack. For the purposes of this assessment, I am satisfied that Mr Pym held the intention to inflict an injury that was likely to cause a permanent injury to health. I am not satisfied that he held the intention to inflict an injury that was likely to endanger Mr Risi's life, however I am satisfied he was entirely reckless as to that prospect.
The State also submits that, as an aggravating factor, I should be satisfied Mr Pym's post‑offence conduct showed an absence of concern for Mr Risi and would amount to a 'callous disregard' that ought to increase Mr Pym's culpability.[86]
[86] Greenup v The State of Western Australia [2024] WASCA 91 [76].
At [189] of my previous reasons I indicated the evidence of Ms Moore suggested that Mr Pym might have been experiencing the onset of a psychosis at the point in time that he left the premises. This seems to provide a more logical explanation for why it was that Mr Pym was leaving the premises. Whilst s 50(2)(b) of the Act prevents me from considering Mr Pym's mental impairment, including when making a factual assessment, that does not mean that by disregarding that mental impairment I can then be satisfied beyond reasonable doubt that the cause for Mr Pym's leaving of the premises was due to a callous disregard for Mr Risi. It simply means in those circumstances I am unable to make a finding as to why Mr Pym left and this remains a neutral finding for the purposes of sentencing.
Whilst the evidence of Mr Risi's residual injuries and symptoms was not such that it satisfied me Mr Risi had sustained a permanent injury to health, that does not preclude me from taking the fact he sustained these injuries and continues to experience these symptoms into account as a relevant fact for the purposes of sentencing. Accordingly, I take into account the residual symptoms Mr Risi described which I have outlined above at [15].

Appropriate limiting term

Ordinarily, when sentencing an offender, a court must impose a sentence that is commensurate to the seriousness of the offence. The seriousness of the offence is determined by taking into account:[87]
(a)the statutory penalty for the offence. The statutory penalty for an offence of doing grievous bodily harm with intent is a maximum of 20 years' imprisonment;
(b)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;
(c)any aggravating factors; and
(d)any mitigating factors.
[87] Section 6(2) of the SA.
The offence of grievous bodily harm with intent can be committed in a wide variety of facts and circumstances and so the sentences imposed will, necessarily, be equally varied.
A review of sentences customarily imposed in relation to offences of grievous bodily harm with intent has been, at various times, conducted and to the extent that a range can be discerned from previously determined cases, analysis has suggested that sentences of between 4½ years and 8 years' imprisonment have been imposed after trial.[88] In cases involving serious examples of this offence type, not amounting to a 'worst case category', sentences after trial have not customarily exceeded 8 years' imprisonment,[89] which amounts to a term of 6 years' imprisonment after a full discount for a plea of guilty is given.
[88] Oxenham v The State of Western Australia [2015] WASCA 30 [37] (Martin CJ).
[89] Zhang v The State of Western Australia [2013] WASCA 121 [61] (Mazza JA).
However, the range of sentences customarily imposed do not fix the quantitative boundaries within which sentences must be imposed, as reflected in the fact that there has been a recent 'firming up' of sentences, particularly in relation to those cases which are at the upper end of the spectrum of seriousness but still not amounting to a 'worst case category'. Evidence of that 'firming up' and the fact that sentences higher than 8 years may be imposed in relation to 'extremely serious' examples was seen in the review undertaken in Dunbar v The State of Western Australia.[90]
[90] Dunbar v The State of Western Australia [2020] WASCA 90 [80] - [86].
Whilst not determinative of the issue, many of the cases that have been seen to be an 'extremely serious' example of this type of offending have been where the injury inflicted was life‑threatening or did leave a permanent injury to health, or where the offender's intention was to inflict a life‑threatening injury.
Mr Pym's offending lacks those features. That does not amount to a mitigating factor but, rather, is simply the absence of what would otherwise be a significantly aggravating factor. Nevertheless, I agree with the State's submission that the absence of some of the more serious features that could have been present renders Mr Pym's offending serious, but not within the category that could be considered 'extremely serious' or at the 'upper end of the spectrum'.
Having considered all the factors that I would be required to take into account if sentencing Mr Pym, in my view the hypothetical or 'best estimate' sentence that would be imposed that reflects a sentence commensurate with the seriousness of Mr Pym's offending is one of 5 years' immediate imprisonment.
I am advised that Mr Pym has been in custody since the date of his arrest on 26 February 2022. This is a factor that would ordinarily be taken into consideration either through the court's inherent discretion or through backdating a sentence pursuant to s 87 of the SA.[91] It is appropriate for this time already spent in custody to be taken into account when fixing the limiting term. Pursuant to s 50(4) of the Act I order the limiting term to have commenced from 26 February 2022 to recognise the time Mr Pym has already spent in custody.
[91] Peake v The State of Western Australia [2015] WASCA 239 [40] (Buss JA); O'Brien v The State of Western Australia [2016] WASCA 23 [65] (Buss JA).

Conclusion

Having concluded that the 'best estimate' sentence commensurate with the seriousness of Mr Pym's offending is one of 5 years' imprisonment, it therefore follows that the limiting term I impose for the purposes of s 50(2) is one of 5 years taken to have commenced from 26 February 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
EO
Associate to Judge Astill
29 AUGUST 2025