The State of Western Australia v Taylor - [2012] WASCA 233

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- TAYLOR [2012] WASCA 233

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 30 AUGUST 2012

DELIVERED : 16 NOVEMBER 2012

FILE NO/S: CACR 207 of 2011

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
MICHAEL THOMAS TAYLOR
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :McCANN DCJ
File No  :IND GER 57 of 2011

Catchwords:

Criminal law - State appeal against sentence - Respondent convicted after trial of one count of unlawfully doing grievous bodily harm - Primary judge imposed a sentence of 18 months' immediate imprisonment - Whether sentence manifestly inadequate

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA), s 297(1)

Result:

Appeal allowed
Respondent resentenced

Category: D

Representation:

Counsel:

Appellant: Mr B Fiannaca SC & Ms S H Linton
Respondent: Mr P W Catalano

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Henry Sklarz

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

Bruno v The State of Western Australia [2005] WASCA 149
Clements v The State of Western Australia [2006] WASCA 69
Djiagween v The State of Western Australia [2012] WASCA 141
Hayes v The Queen [2003] WASCA 230
Hobby v The State of Western Australia [2011] WASCA 197
Holden v The State of Western Australia [2011] WASCA 238
Hussaini v The State of Western Australia [2009] WASCA 207
Mercanti v The State of Western Australia [2009] WASCA 109
R v Hodges [1999] WASCA 278
Steel v The State of Western Australia [2010] WASCA 118
The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414
The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394
The State of Western Australia v Munda [2012] WASCA 164
Trompler v The State of Western Australia [2008] WASCA 265
Ward v The State of Western Australia [No 2] [2010] WASCA 208

McLURE P: I agree with Buss JA.
BUSS JA: This is a State appeal against sentence.
On 10 October 2011, after a trial in the District Court before McCann DCJ and a jury, the respondent was convicted of one count of unlawfully doing grievous bodily harm, contrary to s 297(1) of the Criminal Code (WA) (the Code).
On 30 November 2011, his Honour sentenced the respondent to 18 months' immediate imprisonment. The sentence commenced on that date. A parole eligibility order was made.

The facts and circumstances of the offending

The complainant was a slightly‑built woman aged 21. She was unknown to the respondent, a well‑built man aged 43. At the time of the offending, the complainant was residing in Geraldton with a friend, Rodney Back. They lived in the same block of home units as the respondent's mother, Angelina Taylor.
On 14 October 2009, being two days before the offending occurred, there was an incident between the complainant and the respondent's mother. The complainant said in evidence at the trial that Ms Taylor had 'tipped her drink and smashed her cup' in the complainant's face, and the complainant had then 'turned around and … pushed her' (ts 33). The complainant added that 'we rang the police, and the police sorted everything out between me and her' (ts 34).
On 16 October 2009, the respondent travelled from Perth to Geraldton in his brother's motor vehicle. He was accompanied by his brother, his sister‑in‑law, their two teenage children and his mother's brother. The respondent went to Geraldton for the purpose of finding the complainant. He was angry about the altercation that had happened between the complainant and his mother.
On arrival in Geraldton, the respondent went to Mr Back's home unit and attempted to find the complainant. Another member of the respondent's family, Robyn Boddington, was already at the block of units. The complainant was not at home. The respondent told Mr Back, 'I'm the world's worst'.
The respondent and his relatives waited at the block of home units for the complainant to return home. Also waiting were two other women, Lesley Mongoo and Natasha Dick.

Eventually, the complainant returned home in her mother's motor vehicle, together with her mother and the complainant's two small children, aged 2 and 6. The respondent approached the vehicle as it came to a halt. He asked, 'Which one is Shari (the complainant)?'. Ms Dick identified the complainant. As the complainant alighted from the vehicle, the respondent grabbed her, pushed her against the vehicle, throttled her, and punched her several times to the head. The complainant's mother pleaded with the respondent to stop attacking the complainant. Ms Boddington also urged the respondent, 'stop it, Mick, let the girls finish it' or 'leave it to the girls'.
The respondent then ceased his assault upon the complainant. He stepped away while Ms Mongoo and Ms Dick attacked her. A violent brawl ensued. The complainant was unsuccessful in her attempt to escape to the safety of Mr Back's home unit.
Mr Back gave evidence that at some stage the complainant was able to pick up a broom handle. She waved the handle in an attempt to deter further assault. At about this time, the respondent shouted, 'get the wheel brace, get the wheel brace'. He then went to his brother's vehicle and returned with a blunt object. The trial judge found that it was an Aboriginal punishment stick. The respondent struck the complainant with the stick as she lay on the ground.
The respondent used the stick to inflict numerous blows on the complainant's legs. He caused a deep gash which penetrated to and fractured her right tibia.
As the respondent left the scene, he threatened the complainant, telling her that if she had another altercation with his mother, she would be attacked again.

The impact of the offending on the complainant and her children

The injury to the complainant's right tibia caused her extreme pain. Initially, the fractured tibia was treated with a plaster of Paris cast. Eventually, however, surgery was required and pins were inserted in the leg. She underwent a very lengthy rehabilitation with frequent trips from Geraldton to Perth for medical attention. The complainant had to use crutches for walking up to 18 months after the attack. During this period she had difficulty performing some ordinary personal and household activities. The complainant continues to suffer a degree of pain and some limitation upon her mobility.
Also, the offending caused the complainant to suffer ongoing emotional trauma. Her children, who were then aged 2 and 6, witnessed the attack. They experienced significant distress.

The trial judge's sentencing remarks

The trial judge recounted the facts and circumstances of the offending. He made these findings:
(a)The respondent's motive in travelling from Perth to Geraldton was 'to confront [the complainant] violently' (ts 61).
(b)When the respondent told Mr Back, 'I'm the world's worst', he was intending to convey a menacing demeanour and he intended to 'act out' that demeanour (ts 61).
(c)When the respondent initially assaulted the complainant 'he had no clear view in his mind as to what he was going to do, and he might simply have resorted to throttling and punching [her]' (ts 61 ‑ 62).
(d)When the complainant waived the broom handle, in an attempt to deter further assault by Ms Mongoo and Ms Dick, the respondent 'lost it and attacked [the complainant] with the punishment stick as a spur of the moment, violent, angry act because very deep‑seated emotions were enlivened at that point' (ts 62).
(e)The use of the punishment stick to bash the complainant's legs was intended by the respondent as a form of punishment, 'but was not part of the original plan and was done on the spur of the moment whilst he was extremely angry' (ts 62). The respondent did not, however, have a justifiable reason for being angry (ts 62).
His Honour said that the respondent 'was taught by his father to be a violent and drunken abuser of women' (ts 63), and then elaborated:
[The respondent] learnt his lessons well from his violent and drunken father, who died when [the respondent] was 19 years of age. I have no doubt this was a great loss, and placed [the respondent] in a difficult role or position, and that's more or less when he began his own career as a basher of women, for which he received some convictions, all in a domestic violence setting (ts 63).
The respondent has five children from a prior relationship with a woman to whom he was violent in the domestic setting. At the time of sentencing his children were aged between 16 and 24.
When he was sentenced, the respondent was in a stable relationship. He had a good employment history and a strong work ethic. The respondent was involved in traditional indigenous culture and was recognised as 'a senior lawman' (ts 63).
The material before the trial judge included a pre‑sentence report dated 29 November 2011. The author made these remarks about the respondent's attitude towards the complainant:
[The respondent] informs [me] that he had seen the victim several times around his mother's unit; however, he did not know her personally. He described her alleged behaviour towards him as reflective of a woman who was 'acting out of order', 'acting strangely', 'was tempered up and probably couldn’t stop herself' (original emphasis).
[The respondent], despite his above comments being suggestive of placing some of the blame upon the victim for how events unfolded, does accept in hindsight that his actions were wrong and should not have happened and that he is remorseful for his offending behaviour.
The author of the pre‑sentence report commented upon the respondent's prior convictions for violence, as follows:
I note that he has prior convictions for: Common Assault in 1986 (a tavern bouncer), Common Assault in 1987, Assault Occasioning Bodily Harm and two counts of Common Assault in 1993 (he broke the jaw of his then de facto partner in 1987 and later slapped her to the face in 1990 and 1991). Alcohol use appears to have been involved. The Assault Public Officer conviction of 2004 reflects [the respondent] spitting upon the chest of a policeman who had been sent in response to [the respondent] damaging a housing unit where he resided. … [The respondent] was intoxicated. The Being Armed or Pretending to be Armed in concert with the Wilful Damage conviction of 2010 involved [the respondent] having a physical altercation with his brother that escalated into [the respondent] arming himself with a log splitter axe which he then used to strike his brother's motor vehicle, smashing a window and damaging various body panels. The arresting police officers reported that [the respondent] appeared intoxicated.
[The respondent], I note, has been able to remain conviction free for periods of up to eleven years; however, abstinence from offending still remains elusive and may partly reflect [the respondent's] issues of emotional regulation and bouts of alcohol abuse.
His Honour described the respondent's recent antecedents as 'not too bad' (ts 63), but said the respondent was 'very easily vulnerable to acts of senseless violence, particularly against women' (ts 63).
The trial judge accepted that the respondent was remorseful for his offending conduct (ts 63). However, he also found that the respondent was 'at [an] elevated risk of reoffending in a similar way, albeit more likely in a familial context, rather than against a stranger, because of his deep‑seated emotional training to respond to provocation from women in a violent way' (ts 63).
His Honour said that Aboriginal punishment sticks were intended to be used 'to inflict ceremonial punishment rather than to maim and hurt people for pleasure or for some gratuitous purpose' (ts 64). He added that Aboriginal cultural law was not a relevant sentencing consideration, but 'it feeds into the motive and the nature of the weapon' (ts 64).
A little later, the trial judge noted that the Aboriginal punishment stick used by the respondent was a blunt object (ts 66). Like a baseball bat, it became a serious weapon when it was applied repeatedly and with force against the complainant's tibia (ts 66).
His Honour referred to the decisions of this court in Trompler v The State of Western Australia [2008] WASCA 265, Mercanti v The State of Western Australia [2009] WASCA 109 and Ward v The State of Western Australia [No 2] [2010] WASCA 208. He commented:
Cases such as Trompler, Mercanti and Ward [No 2] have been mentioned. In all of those cases, which were bad cases, the sentence, I think, never got above three years. I think between two to three years was the range established by those cases.
… I think there would be a strong sense of injustice if [the respondent] received a sentence in the same category as Mercanti and Ward [No 2], both of whom perpetrated potentially life‑threatening acts which inflicted very serious harm (ts 66).
The trial judge emphasised that the respondent went to Geraldton 'charged with emotion and a sense of indignation and injustice at his belief about what had happened to his mother' (ts 67). His Honour was of the view that the complainant had '[run] into [the respondent] who'd been trained to bash up women as a boy' (ts 67). He thought that these circumstances were 'a significant distinguishing factor [from] Ward [No 2] and Mercanti' (ts 67). The trial judge added that '[those] were as cold‑blooded attacks as I've ever come across' (ts 67).
His Honour said he took into account the fact that the respondent had not previously been imprisoned. Although it is not of any significance for sentencing purposes, I note that the respondent's criminal record indicates that in 1989 he was imprisoned for 1 month on each of two offences, the sentences being ordered to be served concurrently. His Honour then said:
There are very strong reasons here why [the respondent] should be restored to the community as soon as possible, both for his own personal employment reasons, for his family reasons and to resume his role as a role model. Okay, he's now a fallen role model and I've taken that into account, but that does not mean that on his release from prison he can't still be a useful member of the community (ts 67 ‑ 68).
Finally, the trial judge maintained that Trompler and Mercanti were distinguishable from the present case in that 'potentially lethal force was not used in this case' (ts 68).

The ground of appeal

The sole ground of appeal alleges that the trial judge erred in law by imposing a sentence that was manifestly inadequate.
On 11 March 2012, Mazza JA granted leave to appeal.

The merits of the ground of appeal

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.
Section 297(1) of the Code provides that any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 10 years. This offence is to be compared to and contrasted with the offence created by s 294 of the Code. By s 294(1), relevantly, any person who, with intent to do some grievous bodily harm to any person, unlawfully does any grievous bodily harm to any person by any means whatever, is guilty of a crime, and is liable to imprisonment for 20 years. As I have mentioned, the respondent was charged with and convicted of the offence contrary to s 297(1).
In Trompler, Wheeler JA (Buss JA agreeing) noted that there are, in general, three matters of significance in determining the criminality of an offence which involves unlawfully doing grievous bodily harm. First, there is the nature of the harm which is inflicted. Although any grievous bodily harm is necessarily serious, it may range from a permanent injury with which the complainant is able to cope, to a severe and life-threatening injury which occasions significant permanent disability. Secondly, there is the nature of the act which causes the harm. This may range from a single act, to repeated acts of violence. Thirdly, there is the background to and circumstances of the offence. This may range from a response to a provocative act of the complainant, to random and senseless violence. See Trompler [9] ‑ [11]. See also Hussaini v The State of Western Australia [2009] WASCA 207 [23] (Wheeler JA).
McLure JA made these comments in Trompler about the broad range of sentences (post-transitional) for unlawfully doing grievous bodily harm:
The sentences actually imposed for offences of this type have a post‑transitional range of 8 months (Camilleri) to 5 years and 4 months (Bruno v The State of Western Australia [2005] WASCA 149). I have reviewed many of the cases in between (including R v Hodges [1999] WASCA 278; Hayes v The Queen [2003] WASCA 230; Clements v The State of Western Australia [2006] WASCA 69; Etrelezis v The Queen [2001] WASCA 327) [38].
In each of The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394, Bruno v The State of Western Australia [2005] WASCA 149, R v Hodges [1999] WASCA 278, Hayes v The Queen [2003] WASCA 230 and Clements v The State of Western Australia [2006] WASCA 69, the offender entered a plea of guilty.
In Trompler, Wheeler JA observed:
I would note that in Camilleri (The State of Western Australia v Camilleri [2008] WASCA 217), I reviewed a number of cases involving offences of grievous bodily harm. They reveal that, as one would expect, serious offences of the kind inevitably attract sentences of imprisonment of some severity and that, prior to the increase in the maximum penalty from 7 years to its current maximum of 10 years, relatively serious examples of that kind of offence would result in a range of sentences (pre‑transitional) of 3 to 5 years. Allowing for the effect of the transitional provisions and the effect of the increase in the maximum, one would expect a post‑transitional range of 3 to 5 years for those offences which are towards the upper end of the range, although not of the most serious kind [19].
In Mercanti, Miller JA (Wheeler & Pullin JJA agreeing) held that the general range established in cases of unlawfully doing grievous bodily harm is between 8 months and 5 years 4 months, but more like 3 to 5 years for offences towards the upper end of the range [35]. His Honour added that these ranges were 'post‑transitional' and, in view of the decision of the majority in The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, this was the appropriate range to apply [36]. See also Djiagween v The State of Western Australia [2012] WASCA 141; Holden v The State of Western Australia [2011] WASCA 238; Hobby v The State of Western Australia [2011] WASCA 197; Steel v The State of Western Australia [2010] WASCA 118; Ward [No 2].
In the present case, although the State relies solely on implied error (that is, manifest inadequacy), it is necessary to address some statements by the trial judge in his sentencing remarks.
First, his Honour's assertion that Trompler, Mercanti and Ward [No 2] established a sentencing range of between 2 and 3 years, is incorrect (ts 66). In Trompler, it was held that a 'post‑transitional' range of 3 to 5 years is to be expected for those offences which are towards the upper end of the range, although not of the most serious kind. In Mercanti, it was held that the general range, in 'post‑transitional' terms, for unlawfully doing grievous bodily harm is between 8 months and 5 years 4 months, but more like 3 to 5 years for offences towards the upper end of the range. In Ward [No 2], there are comments about the range of sentences which reflect the observations in Trompler and Mercanti.

Secondly, his Honour's assertions that, by contrast with the present case, Mercanti and Ward [No 2] involved 'potentially life‑threatening acts' and Mercanti involved 'potentially lethal force', are incorrect (ts 66, 68). In Mercanti, the offender was convicted after trial of one count of unlawfully doing grievous bodily harm and sentenced to 2 years 4 months' immediate imprisonment. His appeal against sentence was dismissed. The offender punched the complainant to the right side of the jaw. The complainant's jaw was broken and he lost several teeth. He was rendered unconscious and fell to the floor. The sentencing judge imposed sentence on the basis that, although the complainant's injury constituted grievous bodily harm, it was not 'the worst kind of grievous bodily harm'. In my opinion, the punch to the complainant's jaw cannot reasonably be described as a potentially life‑threatening act or as involving potentially lethal force. In Ward [No 2], the offender was convicted after trial of one count of unlawfully doing grievous bodily harm to another man by biting off part of the complainant's right thumb. The offender's appeal against a sentence of 3 years' immediate imprisonment was dismissed. On any view, the offending in Ward [No 2] did not involve a potentially life‑threatening act.
Thirdly, his Honour's assertions that the respondent was 'very easily vulnerable to acts of senseless violence, particularly against women' (ts 63) and that the complainant had '[run] into [the respondent] who'd been trained to bash up women as a boy' (ts 67), inappropriately diminished the culpability of the respondent. The respondent must understand that violent abuse of women is intolerable. He was aged 43 when he committed this offence. The unsatisfactory circumstances of his childhood cannot excuse the respondent's failure to assume responsibility for, and redress, his unacceptable attitude and conduct towards women. The complainant was the victim. The respondent cannot excuse his criminal behaviour by continuing to perceive himself as the ongoing victim of what was, without doubt, an emotionally deprived and distorted upbringing.
Fourthly, his Honour's assertion that Aboriginal cultural law 'feeds into the motive' of the respondent does not reflect the existence of a traditional belief as to the exacting of retribution in the circumstances which prompted the respondent's assault (ts 64). There was no evidence to the effect that the respondent's conduct towards the complainant was in accordance with any system of traditional belief. In any event, it goes without saying that the criminal justice system does not countenance anyone taking revenge upon another.
Fifthly, his Honour's assertion that there were 'very strong reasons' for restoring the respondent to the community as soon as possible, including to enable him to resume his role as a 'role model' (now a 'fallen role model') (ts 67 ‑ 68), indicates that his Honour attached unwarranted significance to the respondent's personal circumstances in determining the sentencing outcome. It scarcely needs to be said that a man of mature years who is 'very easily vulnerable to acts of senseless violence, particularly against women' (ts 63) does not, at least in those respects, model behaviour that is to be encouraged among boys or young adult males.
I will now make some additional observations about Trompler, Mercanti and Ward [No 2].
In Trompler, the offender was convicted on his plea of guilty of one count of unlawfully doing grievous bodily harm to another man. The sentencing judge imposed a term of 2 years' immediate imprisonment. Just after midnight on the day in question, the offender was outside a sports and recreation club in South Hedland with a friend. The offender was confronted by a former work colleague who was accompanied by the complainant. The former colleague wanted to discuss with the offender some grievance he had against him. The offender suggested to the former colleague that they should discuss the matter at another time. The offender and his friend walked some 100 m up the road. The former colleague and the complainant followed them. The complainant approached the offender and words were exchanged. The complainant punched the offender twice in the chest. The offender said, 'that's enough'. He then took a Swiss army knife from his pocket and opened the blade. The complainant then punched or pushed the offender a third time. The offender responded by slashing the complainant across the stomach with the knife. Although the wound initially appeared to be small, by the time the complainant arrived at hospital a large part of his small bowel was lying exterior to his abdomen. He remained in hospital for 7 days. The complainant made a complete recovery but was left with a large scar across his stomach. The injury would have been life threatening without medical treatment. This court, by a majority, allowed the offender's appeal against sentence and substituted a term of 16 months' immediate imprisonment. Although the injury in Trompler was life‑threatening, the actual circumstances of the offending involved, in essence, excessive self‑defence. As Wheeler JA noted, the original sentence 'made insufficient allowance for the difficult situation in which the appellant, a mature man of hitherto unblemished character, found himself' [17].
In Mercanti, the offence occurred in a nightclub at about 5.30 am on the day in question. The male offender was not intoxicated. The complainant, a tall and strongly built man, was very intoxicated. The offender was aged 41 and the complainant 26. The incident happened quickly. The sentencing judge found that it happened 'within 48 seconds after your first meeting with him … it was not premeditated and it was somewhat spontaneous' [24]. Her Honour accepted that the offence fell 'towards the lower end of the scale', mainly because the complainant did not suffer severe injury [26]. The offender had prior convictions in 1993 for assault occasioning bodily harm and for common assault. Fines were imposed. The offender also had a prior conviction in 2007 for common assault. He was not a person of good character and he had not shown any remorse.
In Ward [No 2], the complainant went to a party at a house where the offender lived. After being away from home for 5 weeks, the offender returned to find that his landlady had installed a new 'boyfriend'. The new boyfriend invited people to a barbeque. This barbeque had been intended only for the offender and his friends. The offender became angry. During the party the offender challenged the complainant to participate in an arm wrestle. The offender then attacked the complainant, with premeditation, and without warning or provocation. The offender punched the complainant in the face and then bit the complainant's right thumb after they fell to the ground. The offender severed part of the complainant's right thumb with his teeth. After spitting out the part he had severed, the offender bit the complainant's left thumb, breaking the skin. He was then restrained by others at the party. The offender was aged 46. He was intoxicated. His attack on the complainant was fuelled by rage. The offender had no prior criminal record, had an excellent work and professional history, had been an excellent family man and friend to acquaintances, and had contributed to the community. On the other hand, the offender's initial violence towards the complainant was premeditated and unnecessary, the act of biting was intentional and there was an absence of remorse.
In the present case, the seriousness of the offending is apparent from the following:
(a)The respondent travelled from Perth to Geraldton for the express purpose of violently confronting the complainant.
(b)The inflicting of violence upon the complainant was premeditated and motivated by vigilantism. The respondent did not act spontaneously. There was no provocation, in any sense, from the complainant.
(c)The respondent's desire for revenge was not satisfied by his initial assault, which involved grabbing the complainant, pushing her against her mother's mother vehicle, throttling her, and punching her several times to the head.
(d)When the complainant defended herself after being set upon by two of the respondent's relatives, the respondent shouted for a weapon to be obtained (a wheel brace), before he retrieved the Aboriginal punishment stick from his brother's motor vehicle.
(e)The respondent used the punishment stick as a club. He repeatedly struck the complainant's legs while she was defenceless.
(f)The offending occurred in the presence of the complainant's very young children.
(g)The offending caused the complainant to suffer severe pain. She had a prolonged convalescence. The complainant and her children experienced significant distress. The complainant's emotional trauma has not been completely resolved.
The respondent pleaded not guilty and went to trial. This does not, of course, aggravate the seriousness of his offending, but it does demonstrate an unwillingness to accept responsibility for his conduct. The mitigating force of a plea of guilty was absent.
The respondent's defence at trial was that he had acted in self‑defence and that the complainant had provoked his initial assault upon her.
The trial judge accepted that the respondent was remorseful. However, any remorse emerged at a very late stage and was, at best, muted. The respondent continued to maintain at the sentencing hearing that the complainant had provoked his initial assault upon her by hitting him on the head with a full beer can, and had later thrown rocks at him and other members of his group (ts 8 ‑ 16). His Honour found, consistently with the evidence given by the complainant and her mother, that the complainant did not hit the respondent with a beer can but was, instead, attacked by him immediately upon alighting from her mother's motor vehicle (ts 59). Further, the respondent's very late and, at best, muted remorse was not accompanied by any insight into his conduct. This is illustrated by his statement to the author of the presentence report that the complainant was a woman who was 'acting out of order', 'acting strangely' and 'was tempered up and probably couldn't stop herself'.
The respondent has a prior criminal record and a history of violent offending. Although he did not commit any offences between 1992 and 2004, the respondent's subsequent relapses reflect, in part, his inability to regulate his emotional responses and, in part, his abuse of alcohol. As I have mentioned, the trial judge found that the respondent was 'at [an] elevated risk of reoffending in a similar way' to his offending against the complainant (ts 63). This elevated risk will continue unless and until the respondent accepts that any personal or other difficulties he has with women must not be resolved by violence and he ceases to abuse alcohol.
In my opinion, the sentence of 18 months' immediate imprisonment was not commensurate with the seriousness of the offence. After evaluating and weighing all relevant facts and circumstances and all relevant sentencing considerations, I am satisfied that the sentence was manifestly inadequate. This is the only conclusion reasonably open when the sentence imposed by his Honour is viewed from the perspective of the maximum penalty (10 years' imprisonment); the seriousness of the offending; the necessity for denunciation of the respondent's behaviour; the importance of the protection of vulnerable women; the significance of personal and general deterrence as sentencing factors; and after taking into account the general standards of sentencing applicable to the offence and the respondent's personal circumstances.
The ground of appeal has been made out.

The result of the appeal and the resentencing of the respondent

The appeal should be allowed and the sentencing decision of the trial judge should be set aside.
It was not submitted on behalf of the respondent that the discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be applied. See The State of Western Australia v Munda [2012] WASCA 164. No proper basis exists for applying the discretion. The sentence imposed by his Honour is substantially less than the sentence that was open on a proper exercise of the sentencing discretion. Appellable error has been very clearly established. Although the State relied solely on implied error (that is, manifest inadequacy), the statements in his Honour's sentencing remarks, which I have noted and commented on at [40] ‑ [45] above, are significant. They explain why his Honour imposed a sentence that was unreasonable or plainly unjust and they also underscore the necessity for this court's intervention to ensure the proper approach to sentencing in this State for offences of the kind in question.
This court has the materials necessary to resentence the respondent.
After taking into account the maximum penalty, the facts and circumstances of the commission of the offence and all other relevant sentencing factors, I would impose a sentence of 3 years 6 months' immediate imprisonment. The new sentence should be taken to have taken effect on 30 November 2011. The respondent should remain

eligible for parole. He will become eligible to be considered for release on parole as from 31 August 2013, when he will have served 21 months.

MAZZA JA: I agree with Buss JA.