Court of Appeal (WA)|2015-08-10|Before: Martin CJ

MARSHALL -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 156 (10 August 2015)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MARSHALL -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 156

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Manslaughter - Excessive use of force in self-defence - Whether sentencing judge erred in not finding that appellant's mental impairment significantly reduced moral culpability and considerations of general and specific deterrence - Whether sentencing judge erred in not finding that appellant's plea of guilty was entered at first reasonable opportunity - Whether sentence imposed manifestly excessive

Sentencing Act 1995 (WA), s 9AA

Abraham v The State of Western Australia [2014] WASCA 151

Armstrong v The State of Western Australia [2013] WASCA 290

Beard v The State of Western Australia [2015] WASCA 74

Beins v The State of Western Australia [No 2] [2014] WASCA 54

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

Dodd v The State of Western Australia [2013] WASCA 80

Fisher v The Queen [1999] WASCA 122

Heaton v The State of Western Australia [2013] WASCA 207; (2013) 234 A Crim R 409

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Hishmeh v The State of Western Australia [2012] WASCA 183

Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601

Kershaw v The State of Western Australia [2014] WASCA 111

Krijestorac v The State of Western Australia [2010] WASCA 35

Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442

Mack v The State of Western Australia [2014] WASCA 207

McNamara v The State of Western Australia [2013] WASCA 63

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nguyen v The State of Western Australia [2007] WASCA 114

Phillips v The State of Western Australia [2011] WASCA 69

Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508

Rowsell v The State of Western Australia [2015] WASCA 2

Schischka v The State of Western Australia [2015] WASCA 15

Smith v The State of Western Australia [2010] WASCA 176

The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397

The State of Western Australia v Camus [2014] WASCA 74

The State of Western Australia v Cross [2015] WASCR 46

The State of Western Australia v Gibson [2014] WASCR 203

The State of Western Australia v Joinbee [2015] WASCR 36

The State of Western Australia v Khasay [2014] WASCA 58

The State of Western Australia v Marshall [2014] WASCR 138

The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137

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

Thomas v The State of Western Australia [2014] WASCA 202

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

Wicks v The Queen (1989) 3 WAR 372

1 Christopher James Marshall appeals against the sentence of 7 years and 6 months imprisonment imposed following his conviction after pleading guilty to the offence of manslaughter in the Supreme Court. There are two grounds of appeal, although they raise three distinct assertions. The first is to the effect that the trial judge erred by failing to take proper account of the fact that Mr Marshall suffers from a neurocognitive impairment as a result of injuries sustained in a motor vehicle accident which reduced both the moral culpability of his conduct and the need for general and specific deterrence. The second assertion is to the effect that the trial judge erred by not making an adequate deduction from the sentence imposed to reflect Mr Marshall's guilty plea because it is said that plea was entered at the first reasonable opportunity. The third assertion is to the effect that the sentence imposed was manifestly excessive. For the reasons which follow each of these assertions and the appeal should be dismissed.

2 It is not contended that any factual error was made at the time sentence was passed. Accordingly, the circumstances of the offence and Mr Marshall's antecedents and circumstances can be taken from the remarks made by the Commissioner at the time of passing sentence.[1]

3 At about 10.30 pm on 24 January 2013, Mr Marshall was in a unit, which he occupied, with his girlfriend and two other friends celebrating a birthday. He had consumed a moderate amount of alcohol. Mr Marshall heard the noise of an argument coming from the area of an adjoining unit and went to investigate. He discovered that the deceased and two companions had gone to that unit to confront its occupant as a result of a prior disagreement. All three men were intoxicated. The deceased was later found to have a blood alcohol level of 0.316%, which establishes that he was severely intoxicated.

4 To his credit, Mr Marshall attempted to calm the situation down. He even offered to give his shirt to the deceased, who was shirtless. After some initial success, the deceased became aggressive towards Mr Marshall, who retreated to his unit in order to avoid further confrontation.

5 The deceased approached the front door of Mr Marshall's unit and attempted to open the security door. He pulled out and bent the grille section of the security door and ripped the flywire. He was yelling, 'Do you want to smash?' Again to his credit, Mr Marshall called the police, as did the occupant of the adjoining unit.

6 The deceased and his companions then walked to a bin storage area where they found some discarded chairs which they dismantled in order to arm themselves with pieces of wood or chair legs. During this time, Mr Marshall left his unit in the erroneous belief that the disturbance had concluded. However, the deceased and his companions returned, heading towards Mr Marshall and his unit. Seeing them approach, Mr Marshall armed himself with a golf club - perhaps provided by his girlfriend.

7 Mr Marshall and the deceased struck each other with the weapons they were holding. Both fell to the ground. By this time the golf club had broken and Mr Marshall used the shaft of the club to stab the deceased five times in the back.

8 The Commissioner was unable to make any specific findings with respect to the precise position of Mr Marshall and the deceased at the time of the stabbings. However, it is clear that five wounds were administered by Mr Marshall using the shaft of the golf club. Of those wounds, three were minor, but two were very significant, indeed fatal. One of those wounds penetrated the right lung of the deceased through his back, and extended through his diaphragm into his liver. The second wound extended through the back of the deceased into his left lung, his heart and to his anterior chest wall, ending just behind his breast plate, which was fractured. As a result of that wound, the golf club shaft was left embedded in the deceased. Each of these two significant wounds involved the penetration of almost the complete body of the deceased. The Commissioner found that those wounds were executed with considerable force.

9 After the final wound was administered, the deceased got up and staggered a short distance before collapsing. Mr Marshall telephoned an ambulance and waited at the scene until the ambulance and police arrived. When the police arrived, Mr Marshall told them he had caused the injuries, although in the course of a subsequent recorded police interview he initially sought to minimise his involvement. Mr Marshall initially denied to police that he had been armed with the golf club, although later in the course of the interview he admitted that he had used it.

10 The Commissioner rejected a submission made on behalf of the State to the effect that Mr Marshall could have avoided further confrontation with the deceased and should have returned to his unit when the deceased was approaching. The Commissioner noted that there were two females in the unit, one of whom was Mr Marshall's partner, and the deceased had already tried to break down the door. Although with the benefit of hindsight there may have been better options available to Mr Marshall, the Commissioner concluded that there were reasonable grounds for Mr Marshall to believe that the actions which he took were necessary to defend himself. However, the Commissioner considered that the basis on which Mr Marshall had entered a plea of guilty to manslaughter - that being excessive use of force in self-defence - was consistent with the fact that the stabbing of the deceased in the back with a golf club was not a reasonable response to the circumstances as Mr Marshall believed them to be. The Commissioner considered that it necessarily followed from Mr Marshall's plea of guilty that at the time Mr Marshall fatally stabbed the deceased he did not have reasonable grounds to believe that he was under a threat from the deceased of such a nature as to justify stabbing the deceased in the back so as to cause his death. In other words, the Commissioner sentenced Mr Marshall on the basis that self-defence was not a complete answer to the charge of murder initially brought against him because of his use of excessive force.

11 The Commissioner noted that during his interview by police, Mr Marshall stated that he wanted to hurt the deceased enough to cause him to leave but did not intend to kill him. The Commissioner accepted that Mr Marshall did not intend to kill the deceased. However, he was satisfied that Mr Marshall had the intention of causing the deceased bodily injury, the nature of which endangered or was likely to endanger the life of the deceased. In other words, the Commissioner found that Mr Marshall had the intention necessary to satisfy the mental element of the offence of murder, had self-defence not applied to reduce that offence to manslaughter because of Mr Marshall's use of excessive force. The Commissioner described the stabbing of the deceased as being a frenzied response motivated by the need for Mr Marshall to defend himself, but overtaken by anger and frustration.

12 Mr Marshall was aged 32 at the time of sentence. He is the oldest of three children whose parents separated when Mr Marshall was six years of age. Both parents were drug users and as a young child Mr Marshall was exposed to drug use and violence. His schooling was disrupted by his family circumstances, although Mr Marshall completed year 10.

13 Mr Marshall has participated in two significant personal relationships. He has a son of the first relationship, who was 13 years of age at the time Mr Marshall was sentenced.

14 Since leaving school, Mr Marshall has worked in various capacities, although he was unable to work between 1999 and 2005 as a result of injuries he suffered in a serious car accident. During that period he received a disability pension. From 2005 onwards, Mr Marshall was engaged in relatively stable employment.

15 A psychiatrist who examined Mr Marshall prior to sentence reported that he had sustained a diffuse brain injury in the motor vehicle accident to which I have referred. According to Mr Marshall, he was on life support for two weeks after which he was transferred to a rehabilitation hospital. He reported that the injury changed his life dramatically: he became irritable, reckless and explosive; and his memory, both long-term and short-term, was very poor after the accident. He self-medicated, using illicit substances including cannabis, although he changed his drug of choice to intravenous amphetamines.

16 During this period, Mr Marshall spent a significant portion of the funds provided to him in settlement of his claim for damages for personal injury as a result of the car accident. Those funds were then transferred to the Public Trustee and administered on his behalf. After the Public Trustee took control of Mr Marshall's finances, his drug use reduced to the point where he only used amphetamines occasionally and was able to obtain employment and stabilise his life.

17 During examination, the psychiatrist detected evidence of frontal lobe impairment. More specifically, she identified problems with Mr Marshall's short-term memory, sequencing, planning and abstract thinking. She diagnosed Mr Marshall as suffering from a neurocognitive disorder of moderate severity due to traumatic brain injury. She considered that his areas of impairment included social cognition, including difficulties recognising social cues, and noted that there was evidence of increased extroversion and decreased inhibition. In the view of the psychiatrist, Mr Marshall's cognitive impairment contributed to his actions at the time of the relevant offence. She assessed his risk for future violence as moderate because of the presence of neurocognitive impairment.

18 A psychologist who had assessed Mr Marshall reported similar conclusions to those reported by the psychiatrist. The application of a clinical assessment tool caused the psychologist to conclude that Mr Marshall was at low to moderate risk of future violent offending.

19 The Commissioner noted that Mr Marshall has a number of convictions for prior offences, all of which were committed after he sustained his head injury in 1999. Those offences included three offences of burglary and four offences of reckless driving. Mr Marshall also has two prior convictions for offences involving the use of violence, which the Commissioner considered to be significant. In January 2002, Mr Marshall was convicted of assault occasioning bodily harm as a result of throwing a male person through a glass window, punching him and throwing him onto the bonnet of a motor vehicle.

20 In January 2012, Mr Marshall was again convicted of unlawful assault occasioning bodily harm following his assault upon his partner in which he forced her to the ground, kicked and punched her in the head, back and arms numerous times, although fortunately he was wearing thongs at the time. Mr Marshall was sentenced to a term of 15 months imprisonment for that offence, although the term was suspended for 2 years. Mr Marshall's commission of the offence of manslaughter during the period that term of imprisonment was suspended reactivated Mr Marshall's liability to that punishment. However, in the result, the Commissioner directed that six months of the term imposed be served concurrently with the sentence which he imposed for the offence of manslaughter, having regard to considerations of totality and the time which had elapsed between the imposition of the suspended sentence and Mr Marshall's commission of the further offence. That aspect of the Commissioner's decision is not challenged.

21 The Commissioner noted, appropriately, that Mr Marshall's prior offences were not an aggravating feature and did not increase the penalty appropriately imposed upon him. However, he considered that Mr Marshall's prior record revealed a behavioural problem which emerged after the brain injury which he suffered in the motor vehicle accident in 1999.

22 The Commissioner specifically identified a number of matters of mitigation which he took into account. The first was Mr Marshall's plea of guilty. The Commissioner noted that Mr Marshall had been charged with murder and that the matter was listed for trial, which was to commence on 24 February 2014. About a month before the trial was due to commence, Mr Marshall offered to plead guilty to the offence of manslaughter. On 12 February 2014, that offer was accepted by the State on the basis that Mr Marshall's actions constituted excessive use of force in self-defence. A plea of guilty to the offence of manslaughter on this basis was formally entered in full satisfaction of the indictment on 17 February 2014. The Commissioner stated that he would discount the sentence by 15% 'for the benefits to the State and the witnesses' as a result of Mr Marshall's plea. No further elucidation of the reasons for the precise amount of the discount were provided by the Commissioner, although it seems a fair inference that he must have been of the view that the plea was not entered at the earliest reasonable opportunity, as no other factor which might have reduced the amount of the discount below the maximum of 25% permitted by s 9AA of the Sentencing Act 1995 (WA) was adverted to by the Commissioner.

23 The Commissioner also concluded that Mr Marshall was genuinely remorseful, although at times he had sought to minimise his offending behaviour.

24 The Commissioner was also satisfied that Mr Marshall had a good work ethic and noted that he had utilised his time in prison in order to improve himself.

25 The Commissioner was satisfied that Mr Marshall's neurocognitive impairment had played a part in his overreaction to the attack upon him by the deceased. He specifically rejected a submission by the State to the effect that Mr Marshall's impairment should not be given any significant weight in mitigation, noting that part of his cognitive weakness was the making of poor decisions, which contributed to Mr Marshall placing himself in a situation of confrontation on the evening in question. In this context, the Commissioner observed:[2]

I conclude that your cognitive impairment does reduce your culpability, but certainly not to the level akin to someone who suffers a serious mental impairment which limits their ability to know right from wrong. Also the level of this cognitive impairment is not such as to significantly reduce the weight to be given to personal and general deterrence.

26 The Commissioner also noted in mitigation that prior to what he described as 'the grossly aggressive behaviour of the deceased', Mr Marshall was at home acting in a peaceful manner; the sequence of events which led to his offending was not initiated by him; and indeed initially he made considerable efforts to avoid confrontation.

27 The Commissioner specifically referred to cases which the parties had asserted were comparable,[3] and to the need for the sentence imposed to recognise the importance of human life and 'the legitimate interests of the general community in the denunciation and punishment of people who cause the death of another'.[4]

28 In assessing the seriousness of Mr Marshall's offending behaviour, the Commissioner concluded that allowance should be made for the fact that Mr Marshall was under attack by a drunken armed person in company and believed that he needed to take action in order to defend himself. In the Commissioner's view, the seriousness of the offence lay in the number and force of the stab wounds which led to the death of the deceased. However, he rejected the State's submission that Mr Marshall's offending was at the higher end of the range of seriousness for the offence of manslaughter, although he acknowledged that it was a very serious offence.

29 The Commissioner concluded that in all the circumstances of the case, an appropriate sentence to be imposed for the offence of manslaughter was a term of imprisonment of 7 years and 6 months, backdated to the time at which Mr Marshall was taken into custody. Mr Marshall was ordered to be eligible for parole.

30 It is unnecessary to set out the precise terms of the grounds of appeal, and sufficient to refer to the summary of the assertions contained within those grounds which I have set out above.[5] As appears from that summary, two of those assertions involve an allegation of express error and the third involves an allegation of error to be implied from what is asserted to be the excessive sentence imposed for the manslaughter offence.

31 Leave to appeal has been granted in respect of the ground alleging manifest excess, or implied error. The question of leave to appeal in respect of the grounds asserting express error has been referred to this court. It is convenient to deal with the assertions of express error first.

32 As I have noted, the Commissioner specifically found that Mr Marshall suffered from neurocognitive impairment which contributed to the commission of the relevant offence. However, on behalf of Mr Marshall it is asserted that the Commissioner erred by failing to conclude that his neurocognitive impairment significantly reduced both his moral culpability and the need for general and specific deterrence.

33 Leaving to one side mental illness or disability which is self-induced, it is well established that the presence of such conditions may be relevant to the sentencing process.[6] The precise way in which the presence of such a condition might have an effect on sentence depends upon the nature of the condition and the circumstances of the offence. So, the effect which mental illness or cognitive disability may have upon moral culpability depends upon the nature, effect and severity of the condition and its symptoms, and the extent to which the condition contributed to the commission of the offence.[7] Similar considerations apply to any assessment of the extent to which mental illness or disability may affect the weight to be given to either general or specific deterrence.[8] No general proposition has been established to the effect that a particular quality of mental condition or grade of cognitive disorder will necessarily result in a significant reduction in the weight to be given to moral culpability, general deterrence or specific deterrence.[9]

34 Dealing firstly with moral culpability, mental impairment will only lessen moral culpability where there is a causal connection between the impairment and the offending conduct.[10] In the circumstances of this case, it is particularly apposite to note the observations of McLure P in Wheeler v The Queen [No 2]:[11]

Of particular significance is the magnitude of the effect of the condition on the ability to appreciate the wrongfulness of the act or to control his or her actions or emotions or to make reasonable (or reasoned) judgments. The magnitude of the effect of a mental impairment is important because, as noted by Owen JA, it is the nature of the human condition that even in the absence of mental impairment, a person may have heightened anxiety or emotions which impair judgment or control.

35 So, in the case of moral culpability, a mental condition may be significant because it deprives the offender of the ability to appreciate the wrongfulness of his or her act, or to control his or her actions or emotions, or because it impairs the capacity to make reasoned judgments.

36 However, in the case of deterrence, both general and specific, it is the capacity of the offender to appreciate the difference between right and wrong which is relevant to the weight to be given to those sentencing factors. Accordingly, if the offender suffers from a mental condition which prevents him or her from appreciating the difference between right and wrong, he or she may be an inappropriate vehicle for general deterrence.[12] Similarly, it has been recognised that specific deterrence may be less relevant in cases of significant cognitive impairment,[13] particularly if the effect of the impairment was to prevent the offender from appreciating the difference between right and wrong, and thereby excluding the offender's capacity to make decisions taking into account the consequences which might follow from doing the wrong thing.

37 In this case, the Commissioner expressly found that Mr Marshall's cognitive impairment was causally connected to his offending behaviour. Consistently with the principles to which I have referred, he also concluded that Mr Marshall's moral culpability was thereby reduced, but not to the extent that may have applied to someone who could not distinguish right from wrong. In written submissions, it was contended on behalf of Mr Marshall that the Commissioner failed to conclude that Mr Marshall's cognitive impairment reduced his moral culpability. That assertion is incorrect and must be rejected.

38 The Commissioner did not consider that Mr Marshall's cognitive impairment had a significant effect upon the weight to be given to general or specific deterrence. It is clear from the passage from his reasons which I have set out above[14] that he took that view because of his conclusion that Mr Marshall's cognitive impairment was not such as to limit his ability to differentiate between right and wrong. Put another way, although the Commissioner considered that Mr Marshall's moral culpability was reduced because his cognitive impairment reduced his capacity to make appropriate decisions, the Commissioner did not consider that similar considerations applied to the factors of general and specific deterrence.

39 The Commissioner was correct to take this approach. The evidence to which I have referred did not establish that Mr Marshall was incapable of differentiating between right and wrong. Nor did it establish that he was incapable of making decisions or of appreciating the consequences of the decisions which he made, although it did establish that his decision-making processes were impaired to some extent, which contributed to the increased risk of him reoffending. In those circumstances there is no reason why Mr Marshall was not an appropriate vehicle for general deterrence, and every reason why specific deterrence remained a relevant factor given his prior record of violent offending and the assessed risk that he may commit further offences of violence in the future. In that context, specific deterrence would only be of diminished significance if Mr Marshall lacked the capacity to appreciate the likely consequences of his actions or the capacity to appreciate that his actions were wrong. However, the Commissioner did not conclude that Mr Marshall's mental condition had either of these consequences, nor was there any evidence capable of establishing that his neurocognitive impairment had either of those consequences. Accordingly, leave should be refused in respect of this aspect of Mr Marshall's appeal.

40 Mr Marshall asserts that the discount of 15% given by the Commissioner to reflect his plea of guilty was inadequate because the Commissioner should have concluded that the plea was entered at the first reasonable opportunity, with the consequence that there was no reason why Mr Marshall should not have received the maximum discount available under s 9AA of the Sentencing Act.

41 The proper construction and effect of that section, and the meaning of the phrase 'first reasonable opportunity', was recently considered by this court in Rossi v The State of Western Australia.[15] It is unnecessary to repeat the reasoning enunciated in that case, and sufficient for present purposes to observe that the determination of whether it would have been reasonable for an accused to have pleaded guilty on an earlier occasion requires an objective assessment of all the relevant circumstances of the case.[16]

42 In this case Mr Marshall was charged with murder on 25 January 2013. An indictment alleging his commission of that offence was filed on 25 October 2013, and on 28 October 2013 Mr Marshall first appeared in answer to that indictment. Indicative trial dates had been provided prior to committal, and those dates[17] were confirmed after committal. On 21 January 2014, just over a month prior to the commencement of the trial, Mr Marshall offered to plead guilty to the lesser offence of manslaughter, and on 12 February 2014 that offer was accepted by the State on the basis indicated earlier in these reasons. The formal plea was entered a few days later on 17 February 2014, one week before the trial was due to commence. An amended statement of material facts consistent with the offence of manslaughter to which Mr Marshall had pleaded guilty was then provided to the court by the State for the purposes of sentence. The terms of that amended statement were essentially accepted by Mr Marshall. There is no evidence to the effect that there were any discussions between representatives of the parties with respect to the possibility that a plea of guilty to a lesser offence might be offered by Mr Marshall, or accepted by the State, prior to 21 January 2014. In particular, there was no evidence to the effect that the State had indicated unequivocally to Mr Marshall or his representatives that it would not consider the acceptance of a plea of guilty to a lesser offence in satisfaction of the indictment for the offence of murder.

43 In support of this aspect of Mr Marshall's appeal, significant emphasis was placed upon the amended statement of facts presented by the State after it had agreed to accept the plea of guilty to the offence of manslaughter in satisfaction of the indictment. That argument is, with respect, misconceived. The question which must be determined in respect of this aspect of Mr Marshall's appeal is whether his plea of guilty to the offence of manslaughter was entered at the first reasonable opportunity. The amendment to the statement of material facts prepared by the State after Mr Marshall had offered to plead guilty to the lesser offence is irrelevant to that question, as it had no bearing upon Mr Marshall's decision to offer the plea; rather, it was the necessary consequence of the State's decision to accept the plea offered by Mr Marshall.

44 The objective circumstances of this case are that for reasons which have not been explained, a little over a month prior to the commencement of the trial Mr Marshall offered to plead guilty to a lesser offence. There is no evidence, nor any attempt to explain, why that offer was not made earlier.[18] In the course of argument, counsel for Mr Marshall suggested that some explanation may be found in his neurocognitive impairment. However, there is simply no evidence to that effect, nor any reasonable basis for drawing that inference, given that Mr Marshall has been advised and represented by competent and experienced counsel throughout.

45 As there is no apparent reason or explanation for Mr Marshall's failure to offer to plead guilty to the offence of manslaughter at an earlier opportunity, it cannot be said that his plea was entered at the first reasonable opportunity within the meaning of that expression in s 9AA of the Sentencing Act. It follows that the Commissioner was unable to apply the maximum discount of 25%.[19]

46 By way of an alternative proposition, it was asserted that even if Mr Marshall was not entitled to the maximum discount available under s 9AA, he should have been given a discount of 20% because a discount of that magnitude was given in another case in which an accused had offered to plead guilty to manslaughter (subject to certain conditions) shortly prior to trial.[20] It is unnecessary to refer to that case in any detail as its circumstances are very different to the present case, not least because the plea of guilty which was offered was not accepted by the State and the case went to trial. For present purposes it is sufficient to observe that s 9AA of the Sentencing Act confers a discretion upon the court with respect to the amount of discount to be provided as a consequence of a plea of guilty,[21] save that the maximum discount available under the section cannot be allowed unless the plea is entered at the first reasonable opportunity. The court retains discretion as to the amount of the discount to be provided even where a plea is entered at the first reasonable opportunity.[22] As Mr Marshall's plea did not satisfy that condition, it was not possible for the Commissioner to allow a discount of 25% but otherwise the Commissioner had discretion as to the amount of the discount to be provided. The Commissioner's exercise of that discretion could therefore only be set aside by this court in accordance with the principles enunciated in House v The King.[23] Once it is accepted that Mr Marshall's plea was not entered at the first reasonable opportunity, the argument advanced in support of this aspect of Mr Marshall's appeal does not identify any error of a kind which could justify this court setting aside the Commissioner's exercise of discretion with respect to the amount of the discount afforded. The distinction between a discount of 20%, as compared to a discount of 15%, cannot be said to imply an error of the character referred to in House, especially given the unexplained lateness of the plea.

47 For these reasons, this aspect of Mr Marshall's appeal lacks substance. Leave to appeal on this ground should be refused.

48 An appeal against sentence brought on the ground that the sentence is manifestly excessive is, of course, an assertion of implied error. In order to determine whether an implied error has occurred in the sentencing process, the court must consider whether the sentence is unreasonable or unjust having regard to the maximum sentence prescribed for the offence; the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on the scale of seriousness of crimes of that type; and the personal circumstances of the offender.[24]

49 It has been observed many times that there is no customary range of sentences for the offence of manslaughter because of the almost infinite variety of circumstances in which the offence can be committed and the consequential variation in the sentences appropriately imposed in respect of any particular offence.[25] Nor do the cases establish any different pattern of sentences or different sentencing ranges in respect of offences committed by the use of excessive force in self-defence, as compared to offences committed by unlawfully killing another without the intent necessary to establish the offence of murder. However, this court has observed on a number of occasions over recent years that sentences imposed for the offence of manslaughter have trended upwards in recent years.[26] That trend reflects the value which the community places upon the sanctity of human life, which was recognised by the Parliament when it increased the maximum penalty for manslaughter from 20 years imprisonment to life imprisonment with effect from 17 March 2012.[27]

50 The appellant has referred to a number of cases which are said to be comparable to the circumstances of this case and which, viewed in combination, sustain the conclusion that the sentence imposed in this case was unreasonable or unjust.

51 Consideration of previously decided cases is, of course, a legitimate means of establishing standards of sentencing customarily observed with respect to a particular offence and for the purpose of ensuring broad consistency,[28] rather than arithmetical equivalence. Because of the significance of the maximum available penalty to the sentencing process, care must be taken in comparing sentences imposed for the offence of manslaughter committed prior to 17 March 2012 with sentences imposed in respect of manslaughter offences committed after the increase in the maximum penalty which took effect on that date. As it happens, the two cases which are said by the parties to be most comparable to the circumstances of this case each involve offences committed prior to the increase in the maximum penalty, with the consequence that caution must be applied with respect to the conclusions properly drawn from each case.

52 The first of those cases is a case upon which the appellant placed particular reliance - The State of Western Australia v Camus.[29] In that case a 22-year-old French national with no relevant prior convictions was convicted of manslaughter following a trial by jury on a charge of murder. The offender had been living temporarily in Broome with two friends who were also French nationals. After drinking extensively during celebrations to commemorate Christmas Eve 2011, they went to a hotel on the main street of Broome where they were refused entry as a result of their intoxication. The offender witnessed a serious and unprovoked assault upon his colleagues by the man who ultimately became his victim. He followed that man into a relatively dark and secluded area and stabbed him three times in the torso with a knife which had somehow come into his possession. One of the wounds inflicted was fatal. Following a successful appeal by the State against the sentence imposed, this court resentenced the offender to a term of 6 years and 6 months imprisonment.[30]

53 The similarities between the circumstances in Camus and the circumstances of the present case include the lack of planning or premeditation, the exceptional aggression demonstrated by each victim prior to the offence, and the use of weapons to inflict serious stabbing wounds. However, in this case Mr Marshall was under direct threat, whereas Mr Camus had witnessed violence perpetrated upon his friends, after which he followed his victim in order to stab him. It is also significant that Mr Camus did not have the benefit of any mitigation as a consequence of a plea of guilty, unlike Mr Marshall. On the other hand, however, there were a number of mitigating factors present in Camus that are not present in this case, including Mr Camus' youth; lack of any significant prior criminal record; an assessment that he was at a low risk of reoffending; a finding that a term of imprisonment would be more onerous as a result of the offender's lack of proficiency in English; and the unlikelihood that he would be able to maintain any contact with friends or family during his time in custody.

54 The other most comparable case upon which the respondent placed particular emphasis is Armstrong v The State of Western Australia.[31] In that case the offender stabbed his friend with a knife in self-defence following a confrontation during which the friend had acted aggressively and advanced towards the offender with the knife which was ultimately used. Both men were heavily intoxicated at the time. The victim was stabbed a number of times as a result of a frenzy of anger, incoherence or lack of control.[32] The offender was originally charged with murder, although following negotiations the State agreed to accept a plea of guilty to the offence of manslaughter in satisfaction of the indictment. Mr Armstrong was originally sentenced to 10 years imprisonment, but on the erroneous basis that the maximum penalty applicable to the offence which he committed was that of life imprisonment, when in fact the maximum penalty applicable at the time the offence was committed was 20 years imprisonment. Following a successful appeal against that sentence, this court imposed a sentence of 8 years imprisonment.

55 The sentence imposed by this court in Armstrong in respect of an offence committed at a time when the maximum penalty was less than that applicable at the time of the offence committed in this case, places an obvious and significant difficulty in the path of the appellant's assertion that the sentence imposed in this case was manifestly excessive given the comparable circumstances of the two cases. Three propositions were advanced on behalf of the appellant in an attempt to overcome that obstacle.

56 First, it was submitted that in Armstrong, the sentencing judge found as a fact that the offender was no longer under threat after the first stab wound, but nevertheless continued to inflict further wounds, whereas it is said that Mr Marshall believed at all stages that his life was under imminent threat by the deceased. However, it must be noted that the Commissioner was unable to make findings with respect to the precise circumstances in which the fatal wounds were inflicted by Mr Marshall and in particular was unable to make any findings with respect to the relative positions of the two men at the time the stabbings occurred.[33] It should also be noted that Mr Marshall stated to police that his actions were at least in part a result of his anger and loss of control, which was found to be the reason for the infliction of the fatal wounds in Armstrong.

57 Second, it is submitted that in Armstrong there was no finding to the effect that mental impairment contributed to the commission of the offence, whereas in this case the Commissioner expressly found that Mr Marshall's neurocognitive disability contributed to the commission of the offence and reduced his moral culpability. Third, it is submitted that in this case Mr Marshall had made all reasonable efforts to placate the deceased and avert confrontation prior to the offence, whereas Mr Armstrong had been an active participant in the confrontation which preceded the offence.

58 The differences in the circumstances of the two cases identified in the last two submissions must be acknowledged. However, it must also be remembered that the sentence imposed by this court in Armstrong was greater than the sentence imposed upon Mr Marshall, and in respect of an offence committed prior to the increase in maximum penalty in March 2012.

59 In considering each of Camus and Armstrong, it must be emphasised that one or two cases do not reveal customary standards of sentencing. The difference in the sentences imposed by the court in Camus and Armstrong is the inevitable consequence of the exercise of discretionary judgment in circumstances in which there is no single unique correct sentence,[34] and in which mathematical equivalence is not to be expected.

60 A number of other cases were identified by the appellant in support of the proposition that the sentence imposed in this case was manifestly excessive. In The State of Western Australia v Auckram,[35] the offender was convicted of manslaughter after trial on a charge of murder. The offender shot the victim four times following an argument during which the victim made threatening remarks to the offender. He was initially sentenced to a term of 4 years 11 months imprisonment conditionally suspended for a term of 18 months. Following a successful appeal by the State, this court resentenced the offender to a term of 6 years imprisonment. It is of significance that the offender in Auckram did not have the mitigatory benefit of a plea of guilty, unlike Mr Marshall. It is also of some significance that Mr Auckram was found to have had an intention to kill his victim, whereas in this case Mr Marshall was found to have had the intention of causing a bodily injury of such a nature as to endanger or be likely to endanger life. However, the personal circumstances of the offender in Auckram were of particular significance in the resentencing process. It was of particular significance that Mr Auckram had been diagnosed as suffering from tonsillar carcinoma and had been informed by an appropriately qualified expert that the five-year survival rate for that condition was around 50%. There was therefore a very real prospect that Mr Auckram would die before completing the term of imprisonment imposed by this court.

61 The appellant also relied upon The State of Western Australia v Walley.[36] However, the circumstances of that case were very different, and the penalty imposed by this court following a successful appeal by the State was imposed at a time when the common law principle of double jeopardy applied to successful prosecution appeals against sentence. The offence was also committed at a time when the maximum penalty was 20 years imprisonment. Further, in that case the offender, who stabbed a partner to death during the course of a drunken argument, was found to have lived a life blighted by the abuse of alcohol and to have been a victim of sexual violence and domestic violence in previous relationships.

62 The appellant also referred to sentences imposed at first instance for the offence of manslaughter in three other cases.[37] However, it is unnecessary to consider any of those cases in detail. Consistency in sentencing with respect to offences committed in Western Australia is to be assessed by reference to the decisions of this court, rather than by reference to decisions of judges at first instance.[38]

Analysis and conclusion with respect to manifest excess

63 The two cases most comparable to the circumstances of the present case are the decisions of this court in Camus and Armstrong. Because each of those decisions involves a sentence imposed by this court following a successful appeal, they are of particular significance. However, it is also significant that each of those cases involve offences committed prior to the increase in the maximum penalty for manslaughter to life imprisonment. When account is taken of that significant difference, and of the mitigating circumstances present in Camus, it cannot be said that those cases, viewed in the context of the other cases to which I have referred, sustain the conclusion that the sentence imposed upon Mr Marshall was inconsistent with customary standards of sentencing. In particular, while it may be observed that the sentence imposed in this case was towards the upper end of the range available to the sentencing judge, having regard to the seriousness of the offending conduct it cannot be said that the sentence imposed exceeded that range or was otherwise unreasonable or unjust. It follows that this ground of appeal should be dismissed.

64 Leave to appeal has been granted in respect of the ground of appeal alleging manifest excess. However, for the reasons I have given, that ground should be dismissed. Leave to appeal should be refused in respect of the assertions alleging express error, and the appeal dismissed.

65 BUSS JA: This is an appeal against sentence.

66 The appellant was convicted, on his late plea of guilty in the Supreme Court before Commissioner Sleight, of unlawfully killing Quentin Cornwall on 25 January 2013, contrary to s 280 of the Criminal Code (WA).

67 On 1 August 2014, the sentencing judge imposed a sentence of 7 years 6 months' imprisonment for the offence. A parole eligibility order was made.

68 I agree with Martin CJ (with whose reasons Hall J has expressed his agreement) that the appeal should be dismissed. My reasons are as follows.

The facts and circumstances of the offending, the sentencing judge's sentencing remarks, the expert reports, the appellant's personal circumstances and antecedents and the appellant's submissions in the appeal

69 The facts and circumstances of the offending, the sentencing judge's sentencing remarks, the expert reports, the appellant's personal circumstances and antecedents and the appellant's submissions in the appeal are summarised in the reasons of Martin CJ. I will not repeat or elaborate upon them, except to the extent necessary to explain my reasons.

70 It is apparent from the grounds of appeal, as developed in the appellant's written submissions and counsel for the appellant's argument at the hearing of the appeal, that the appellant relies in substance on three grounds.

71 The first ground alleges, in essence, that the sentencing judge erred by failing to find that the appellant's neurocognitive impairment significantly reduced his moral culpability for the offending and the need for personal and general deterrence.

72 The second ground alleges, in essence, that his Honour erred by failing to find that the appellant's plea of guilty was entered at the first reasonable opportunity for the purposes of s 9AA of the Sentencing Act 1995 (WA).

73 The third ground alleges that the sentence of 7 years 6 months' imprisonment was manifestly excessive.

74 On 15 November 2014, Mazza JA granted leave to appeal on the ground alleging manifest excess and referred the other grounds to the hearing of the appeal.

75 The appellant was born on 7 December 1981. He was aged 31 at the time of the offending and was 32 when sentenced.

76 In 1999 the appellant was a passenger in a motor vehicle that was involved in a serious accident. He suffered a frontal lobe injury to his brain.

77 The material before the sentencing judge included a report dated 17 June 2014 from Dr Gosia Wojnarowska, a consultant psychiatrist, and a report dated 1 May 2014 from Mary-Anne Martin, a forensic and clinical psychologist.

78 Dr Wojnarowska diagnosed that, as a result of the injuries he sustained in the motor vehicle accident, the appellant suffers from 'neurocognitive disorder due to traumatic brain injury, moderate severity'. Dr Wojnarowska said in her report that 'since the accident [the appellant] has demonstrated problems with planning, decision-making and inhibition'. His neurocognitive impairment has 'affected his ability to judge the situation, predict the consequences and inhibit his actions'. There is no doubt that the impairment is 'still significant and can result in [the appellant's] impulsive and dangerous acts, over which he would have limited control'. Dr Wojnarowska expressed the view that the appellant 'exercised poor judgment' in that part of his interaction with the victim which resulted in the victim's death. As to the appellant's risk of reoffending, Dr Wojnarowska said:

There is no evidence of symptoms of major mental disorder other than cognitive impairment and associated affective and behaviour instability. His future risk may be exacerbated by environmental stressors such as instability in his living situations, lack of personal support or access to alcohol. In summary, in my opinion, [the appellant's] risk for future violence is moderate and is primarily related to the presence of neurocognitive impairment.

79 The appellant told Dr Wojnarowska that in about mid-2012 his general medical practitioner had prescribed antidepressant medication for him. According to the appellant, this medication had significantly improved his mood, irritability and capacity to control his anger.

80 Also, the appellant told Dr Wojnarowska that he had spent the compensation he received for the injuries he had suffered in the motor vehicle accident on illicit drugs.

81 Dr Wojnarowska recommended that the appellant be prescribed with anti-epileptic medication. This may reduce his irritability and impulsivity. The appellant's antidepressant medication should continue because he subjectively appraises it to be beneficial. Dr Wojnarowska also recommended that he participate in programmes in prison which may assist him with anger management and problem solving.

82 Ms Martin expressed opinions similar to those of Dr Wojnarowska.

83 It is apparent from the sentencing judge's sentencing remarks that his Honour accepted the views of Dr Wojnarowska and Ms Martin in relation the appellant's neurocognitive impairment, including his risk of reoffending.

84 The appellant has a prior criminal record. All of his previous offending has occurred after the motor vehicle accident in 1999.

85 His previous convictions include three burglary offences, four reckless driving offences and two significant offences involving violence.

86 On 23 January 2002, the appellant was convicted of unlawful assault occasioning bodily harm. This offending involved the appellant throwing a man through a glass window, punching him and throwing him on the bonnet of a motor vehicle.

87 The appellant did not commit any offences between 15 November 2003 and 6 August 2011.

88 On 6 January 2012, the appellant was convicted of another offence of unlawful assault occasioning bodily harm. This offending involved the appellant assaulting his partner. He forced her head to the ground and, on two occasions, kicked and punched her numerous times to the head, back and arms. At the time the appellant was wearing thongs. The appellant told Dr Wojnarowska that when he committed this offence he and his partner had been drinking alcohol and using amphetamines. According to the appellant, he 'lost control' and assaulted her. The appellant said that after he was charged with the offence against his partner he ceased using amphetamines.

89 It is well-established that where an offender's mental illness or psychological difficulties have not been self-induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is a relevant factor in the sentencing process.

90 The effect of mental illness or psychological difficulties (falling short of insanity) on the kind or length of sentence to be imposed has been considered by the Court of Criminal Appeal and this court on numerous occasions. See, for example, Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442; Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; Krijestorac v The State of Western Australia [2010] WASCA 35; Wheeler v The Queen [No 2] [2010] WASCA 105; Smith v The State of Western Australia [2010] WASCA 176; The State of Western Australia v Khasay [2014] WASCA 58.

91 I will restate the principles which in the present case are relevant to the first ground of appeal.

92 The effect of mental illness or psychological difficulties (falling short of insanity) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. See R v Verdins [2007] VSCA 102; (2007) 16 VR 269 [25] (Maxwell P, Buchanan & Vincent JJA); Wheeler [No 2] [9] (McLure P, Newnes JA agreeing). An offender who seeks to rely on mental illness or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour. See Wheeler [No 2] [10]; Smith [72] (Buss JA, McLure P & Mazza J agreeing); Phillips v The State of Western Australia [2011] WASCA 69 [48] (Buss JA, McLure P agreeing).

93 In R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, Wood CJ at CL explained the rationale for the sentencing principle that if an offender suffers from a mental disorder or abnormality (that has not been self-induced), general deterrence should ordinarily be given relatively less weight:

The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice [254].

See also R v Wright (1997) 93 A Crim R 48, 50 - 51 (Hunt CJ at CL, Gleeson CJ agreeing generally & Hidden J agreeing); Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 [62] (RA Hulme J, Macfarlan JA & Johnson J agreeing).

94 In Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1, Basten JA pointed out that although mental impairment will often tend to diminish moral blameworthiness or culpability and, in consequence, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects [12]. His Honour referred to the observation of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 that 'the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or the need to protect the public' (71). See also Wheeler [No 2], where McLure P said, citing Engert (71), that a sentencing consideration may be relevant in more than one respect and not affect the outcome because it weighs both positively and negatively in the balance [7].

95 Ultimately, however, in the application of these principles, 'it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise': R v Letteri (Unreported, NSWCCA, 18 March 1993) 14, adopted and emphasised by Gleeson CJ in Engert (71).

96 In the present case, the sentencing judge referred to the mitigating matters he took into account [48]. Those matters included the appellant's neurocognitive impairment [48]. His Honour said:

I also take into account your neuro-cognitive impairment, which played a part in the overreaction by you to the attack on you by the deceased. In accordance with well recognised legal authorities, a mental disorder may reduce culpability so as to affect punishment and may affect the weight to be accorded to deterrence, whether general or personal. The State submits that your neuro-cognitive impairment should not be given any significant weight in mitigation because you did not take proper care of yourself and did not do all that you needed to do to prevent you losing control as you have done when committing prior offences. However, I reject this submission. Part of your cognitive weakness, according to the psychiatric report I have received, is making poor decisions. Although it may have been prudent not to consume alcohol and not to place yourself in a confrontational situation with the deceased, in my opinion, this was a manifestation of your poor decision-making.

Also it should be taken into account that prior to the grossly aggressive behaviour of the deceased, you were at home, acting in a peaceful manner. The sequence of events which led to your offending was not initiated by you and you made considerable effort initially to avoid any confrontation.

I conclude that your cognitive impairment does reduce your culpability, but certainly not to the level akin to someone who suffers a serious mental impairment which limits their ability to know right from wrong. Also the level of this cognitive impairment is not such as to significantly reduce the weight to be given to personal and general deterrence [48].

97 That passage from his Honour's sentencing remarks reveals, relevantly, his Honour's view that:

(a) the appellant's cognitive impairment reduced his moral culpability for the offending; and

(b) the level of his cognitive impairment did not significantly reduce the weight to be given to personal and general deterrence.

98 In my opinion, the sentencing judge did not err as alleged in the first ground of appeal. That is, his Honour did not err by failing to find that the appellant's neurocognitive impairment significantly reduced his moral culpability and the need for personal and general deterrence.

99 It is true that the appellant's impairment was a mitigating factor which reduced his moral blameworthiness or culpability for the offending behaviour. Also, it is true that the appellant's impairment reduced the weight that would otherwise be given to general deterrence as a sentencing consideration. However, his neurocognitive disorder and the associated moderate risk of reoffending increased the importance of the protection of the public as a relevant factor in the sentencing process. Although the appellant's previous convictions for unlawful assault occasioning bodily harm did not aggravate the seriousness of the offending in question, those prior offences demonstrated the appellant's propensity, as a result at least in part of his impairment, to react with violence in certain circumstances. The appellant's impairment was therefore relevant to the sentencing process in more than one respect. It weighed both positively and negatively in evaluating the appropriate sentence to be imposed on the appellant.

100 In any event, as I will explain in considering the third ground of appeal, which alleges manifest excess, I am satisfied that the sentence of 7 years 6 months' imprisonment was within the appropriate range available to the sentencing judge on a proper exercise of his discretion and after having regard to all relevant facts and circumstances (including the appellant's neurocognitive impairment) and all relevant sentencing factors.

102 At about midnight on 24 January 2013, the appellant stabbed the victim. On 25 January 2013, he was charged with murder. On 25 October 2013, the State filed an indictment which contained a single count alleging murder. On 28 October 2013, the appellant appeared in court in answer to the indictment. The appellant pleaded not guilty and, at a later date, a trial was listed to commence on 24 February 2014.

103 On 21 January 2014, the appellant offered to plead guilty to the lesser offence of manslaughter. On 12 February 2014, the State accepted the offer on the basis that the appellant's actions in relation to the victim constituted the excessive use of force in self-defence. On 17 February 2014, the appellant appeared in court and entered a plea of guilty to manslaughter which the State accepted in full satisfaction of the indictment.

104 It was not suggested, either before the sentencing judge or in the appeal, that any discussions had occurred between the parties prior to 21 January 2014 in relation to a possible plea by the appellant to the offence of manslaughter. Further, it was not suggested, either before his Honour or in the appeal, that the State had at any material time indicated to the appellant or his representatives that it would not consider or accept a plea to manslaughter in full satisfaction of the indictment.

105 Section 9AA of the Sentencing Act applies where a person has pleaded guilty to a charge for an offence and the person is to be sentenced for that offence.

106 Any discount under s 9AA for a plea of guilty is to the 'head sentence', as defined in s 9AA(1). The head sentence, as defined, must be discounted for the plea before any other discount is allowed for any other mitigating factor.

107 If the 'head sentence' for an offence is or includes a 'fixed term' (as defined in s 85(1) of the Sentencing Act), any discount under s 9AA for a plea of guilty must not exceed 25%. Further, a discount of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at 'the first reasonable opportunity'.

108 The purpose of allowing a discount under s 9AA is 'to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea': s 9AA(2).

109 Section 9AA does not prevent a sentencing judge from reducing the 'head sentence', as defined, for any offence because of any mitigating factor other than a plea of guilty: s 9AA(6).

110 The apparent purpose or object underlying the repeal of s 8(2) of the Sentencing Act and the introduction of s 9AA was:

(a) to impose a maximum limit on the discount available for a plea of guilty, namely 25% of the head sentence;

(b) to ensure the maximum discount of 25% may only be given where an offender pleads guilty, or indicates that he or she will plead guilty, at the first reasonable opportunity;

(c) to confine the availability of the discount under s 9AA for a plea of guilty to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea'; and

(d) to increase the transparency of the sentencing process by requiring the sentencing judge to state in open court the fact and the extent of any discount under s 9AA for a plea of guilty.

111 Section 9AA(2) exhaustively states the factors or criteria which may be taken into account in determining whether a discount should be given under s 9AA for a guilty plea and, if so, the extent of the discount. See Beins v The State of Western Australia [No 2] [2014] WASCA 54 [54] (McLure P, Mazza JA agreeing); Abraham v The State of Western Australia [2014] WASCA 151 [51] (Buss JA, McLure P agreeing).

112 Section 9AA(2), in confining the availability of the discount under s 9AA for a guilty plea to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea', enunciates factors or criteria that emanate from the fact of the guilty plea. Subjective factors or criteria relating to the offender are not relevant in determining any discount to be given under s 9AA. See Abraham [52].

113 However, subjective matters relating to the offender remain relevant in considering whether the seriousness of the offence has been mitigated by, for example, any genuine remorse, contrition, acceptance of responsibility and willingness to facilitate the course of justice. Section 9AA(6) states that s 9AA does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty. Parliament has not imposed a maximum limit on the discount available for mitigating factors, subjective to the offender, of the kind I have identified. See Abraham [53].

114 In Abraham, this court considered and rejected a submission that if an accused pleads guilty at the first reasonable opportunity the sentencing judge must allow the maximum discount of 25% under s 9AA. I said:

The nature, character and extent of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea', within s 9AA(2), may differ as between particular cases where the offender has entered a plea at the first reasonable opportunity. The sentencing judge retains a discretion in deciding upon the discount to be given in each case [62].

See also Thomas v The State of Western Australia [2014] WASCA 202 [17] - [18] (McLure P, Mazza JA agreeing).

115 The determination of whether it would have been reasonable, for the purposes of s 9AA, for an accused to have pleaded guilty earlier than he or she did requires an objective assessment of the relevant facts and circumstances of the particular case. See Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 [52] - [53], [67] - [69] (McLure P, Mazza JA & Hall J agreeing).

116 In the present case, the mitigating factors which the sentencing judge expressly took into account included the appellant's plea of guilty. His Honour said:

Your plea of guilty. Initially you were charged with murder and the matter was listed for trial. On 21 January 2014, shortly before your trial, you offered to plead guilty to the alternative offence of manslaughter. This was accepted by the State. I discount the sentence by 15% for the benefits to the State and the witnesses by your plea of guilty [48].

117 In my opinion, the sentencing judge did not err as alleged in the second ground of appeal. That is, his Honour did not err by failing to find that the appellant's plea of guilty was entered at the first reasonable opportunity for the purposes of s 9AA of the Sentencing Act.

118 On an objective assessment of the relevant facts and circumstances of the present case (notably, the facts and circumstances which culminated in the appellant entering a plea of guilty to the offence of manslaughter on 17 February 2014), it is not reasonably arguable that the appellant pleaded guilty, or indicated that he would plead guilty, 'at the first reasonable opportunity', within s 9AA. The appellant has not given any reasonable explanation for his failure to enter, or indicate that he would enter, a plea of guilty to the lesser offence of manslaughter earlier in the primary proceedings or his failure to make an offer to plead guilty to manslaughter at an earlier stage. As to the relevance of an offer to plead guilty, see The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397 [95] - [104] (Buss JA).

119 In any event, on the facts and circumstances of the present case, his Honour was not bound to allow the maximum discount of 25%. His Honour's allowance of a 15% discount was within the range open on a proper exercise of his discretion.

121 Since the commencement of the Manslaughter Legislation Amendment Act 2011 (WA) on 17 March 2012, the maximum penalty for manslaughter has been life imprisonment. Previously, the maximum penalty was 20 years' imprisonment.

122 The maximum penalty fixed by Parliament for an offence demonstrates Parliament's view of its gravity. This view must be taken into account in determining, in a particular case, the appropriate sentence.

123 If Parliament, by a legislative amendment, increases the maximum penalty for an offence, Parliament's new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes. See R v Lawrence (1980) 32 ALR 72, 110 (Moffitt P); Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89 [35] (Anderson J, Pidgeon & Steytler JJ agreeing); Fisher v The Queen [1999] WASCA 122 [14] (Malcolm CJ, Ipp & Owen JJ agreeing); Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 [7] (Malcolm CJ); Nguyen v The State of Western Australia [2007] WASCA 114 [13] (Steytler P, McLure JA & Miller AJA agreeing).

124 An increase in the maximum penalty is an indication that sentences for the offence in question should be increased. See Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).

125 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 (1989) 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).

126 In recent years, sentences for manslaughter (when the maximum penalty was 20 years' imprisonment) have, in general, tended to increase. See The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137; Hishmeh v The State of Western Australia [2012] WASCA 183; McNamara v The State of Western Australia [2013] WASCA 63; Dodd v The State of Western Australia [2013] WASCA 80; Heaton v The State of Western Australia [2013] WASCA 207; (2013) 234 A Crim R 409.

127 In the present case, the applicable maximum penalty was life imprisonment.

128 It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances and antecedents of the offender.

129 I have considered a number of cases with at least some features comparable to the appellant's offending. See, in particular, Auckram; Armstrong v The State of Western Australia [2013] WASCA 290; The State of Western Australia v Camus [2014] WASCA 74; and the cases referred to in those decisions. I have also considered other cases cited by counsel for the appellant.

130 It is unnecessary to reproduce the relevant facts and circumstances or sentences imposed in all of the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features. I will, however, comment on Auckram, Armstrong and Camus.

131 In Auckram, the offender was charged with murder but convicted, after a trial, of manslaughter. A State appeal against sentence was allowed and the offender was resentenced to 6 years' imprisonment. The applicable maximum penalty was life imprisonment. The offender had offered to plead guilty prior to trial. The offer was refused. The offender killed his stepson. He shot him with a rifle four times at close range. The trial judge found that the offender intended to kill the victim and that the jury's verdict of manslaughter was explicable on the basis of excessive use of force in self-defence. The offender was aged 52 at the time of the offending and was 53 when sentenced. He had a serious health condition at the time of sentencing. He suffered from tonsillar carcinoma. His medical condition was likely to make imprisonment more arduous and there was a real risk he might die in custody. The offender had no prior criminal record and no substance abuse problems. He was at a very low risk of reoffending. The offender was deeply and genuinely remorseful and accepted responsibility for the offending. After committing the offence he suffered post-traumatic stress disorder. The offender had a history of stable employment and a good marriage. Apart from the offending, he was a person of good character. Auckram, like the present case, was a serious case of manslaughter involving excessive use of force in self-defence. The weight of the mitigating factors in Auckram was, in aggregate, heavier than the weight of the mitigating factors, in aggregate, in the present case.

132 In Armstrong, the offender was convicted, on his plea of guilty, of manslaughter. His appeal against sentence was allowed and he was resentenced to 8 years' imprisonment. The applicable maximum penalty was 20 years' imprisonment. The offender and the victim were friends and neighbours. The offender caused the victim's death by stabbing him several times with a knife. On the day in question the offender and the victim had been drinking alcohol together. In the evening the two men and their families had a barbecue together. Later, an argument developed between the victim and his partner. The partner returned to her home, followed by the offender and the victim. There was a confrontation between the men about the manner in which the victim was verbally abusing his partner. During the confrontation the victim threw a chair at the offender. An argument developed between them. There was some pushing and shoving. The victim grabbed a knife and came at the offender with the knife in his hand. The victim was drunk and aggressive and posed an obvious threat to the offender. The men struggled over the knife. Eventually, the offender turned the knife onto the victim. The knife penetrated the victim's abdomen. The sentencing judge found that the offender was not criminally responsible for this wound. However, the offender took the knife from the victim and stabbed him another three times. The first of the subsequent wounds was, of itself, fatal. The sentencing judge found that the three additional wounds were inflicted by the offender 'perhaps in a frenzy of anger or incoherence or lack of control'. The offender was aged 28 when sentenced. There were a number of mitigating factors. The victim initiated the violence by grabbing the knife and attacking the offender with it. The offender was threatened and angered by this conduct. The offender entered an early plea of guilty and was allowed a 25% discount under s 9AA of the Sentencing Act. Apart from the offending in question and a 'short, relatively minor criminal history', the offender was 'a man of otherwise good character'. He was genuinely remorseful for and distressed by what he had done. He was at a low risk of reoffending in a violent way. His prospects of rehabilitation were good. There is little to distinguish the seriousness of the offending conduct in Armstrong from the seriousness of the offending conduct in the present case. The weight of the mitigating factors in Armstrong was, in aggregate, broadly comparable with the weight of the mitigating factors, in aggregate, in the present case. However, the applicable maximum penalty in Armstrong was 20 years' imprisonment whereas the applicable maximum in the present case was life imprisonment.

133 In Camus, the offender was charged with murder but convicted, after a trial, of manslaughter. A State appeal against sentence was allowed and the offender was resentenced to 6 years 6 months' imprisonment. The applicable maximum penalty was 20 years' imprisonment. The offender stabbed the victim three times in the upper torso with a knife. Prior to the killing the victim had viciously, and without provocation, assaulted two of the offender's friends. One of them was seriously injured. The offender and the friend who was not seriously injured followed the path taken by the victim and his associates after the victim had assaulted the offender's friends. At that stage the offender had a knife which he had removed from his back pocket. After he stabbed the victim, the offender departed the scene with haste and did not attempt to procure any assistance for the victim. There were numerous mitigating factors. The offender was youthful for sentencing purposes: he was aged 22 at the time of the offending and was 24 when sentenced. He did not have a prior criminal record. The offending was completely out of character. The offender was at a low risk of violent reoffending and had good prospects of rehabilitation. His use of the knife was not planned or premeditated. The offender was in a threatening situation, as a result of the victim's behaviour, when he stabbed the victim. The offender was a French national and spoke limited English and, as a consequence, imprisonment had been and would be more onerous than for an English speaking Australian resident. The weight of the mitigating factors in Camus was, in aggregate, broadly comparable with the weight of the mitigating factors, in aggregate, in the present case. However, the applicable maximum penalty in Camus was 20 years' imprisonment whereas the applicable maximum in the present case was life imprisonment.

134 The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. 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.

Abraham v The State of Western Australia

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Judgment (241 paragraphs)

MARSHALL -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 156 (10 August 2015)

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Cases Cited (13)