Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Manslaughter - Appeal against sentence - Whether minimal risk of reoffending taken into account as a mitigating factor - Whether the sentence manifestly excessive

Sentencing Act 1995 (WA)

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

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

Colledge v The Queen [2007] WASCA 211

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

Harvey v The State of Western Australia [2015] WASCA 250

Marshall v The State of Western Australia [2015] WASCA 156

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

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

Stagno v The State of Western Australia [2015] WASCA 115

The State of Western Australia v Auckram [2013] WASCA 256

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

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

The State of Western Australia v Munda [2012] WASCA 164

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

1 McLURE P: This is an appeal against sentence. On 21 May 2015 the appellant was convicted after trial of the manslaughter of Thomas Jay Keaney, contrary to s 280 of the Criminal Code (WA). The offence was committed in the early hours of 17 December 2013.

2 On 20 July 2015, Simmonds J sentenced the appellant to 9 years imprisonment with eligibility for parole. The appellant relies on two grounds of appeal. He contends the sentencing judge erred in law in:

1. failing to take into account the appellant's minimal risk of reoffending as a mitigating factor;
2. imposing a sentence that is manifestly excessive.

3 The sentencing judge found the facts of the offending to be as follows. The appellant and the deceased, who were not known to each other, had been out in Northbridge with their respective friends on the evening of 16 December 2013, going into the early hours of the following morning. Shortly after 1.00 am on 17 December 2013 the appellant and his group went to Euro Kebabs on Aberdeen Street, Northbridge. The appellant had been drinking alcohol that evening but had switched to water some time earlier, as he did not want to become too intoxicated. The deceased and his group were already at Euro Kebabs. The deceased was significantly intoxicated. His blood alcohol level when taken to hospital following the offence was measured at 0.17.

4 In addition to the appellant and his group and the deceased and his group, there was a third group of people outside Euro Kebabs who had been on a pub crawl. The sentencing judge describes the scene as chaotic.

5 An argument developed between members of the appellant's group and members of the deceased's group which involved heated exchanges of words and some pushing. The appellant witnessed the escalation of the argument but was not involved in it until the moment he struck the deceased.

6 At the time the appellant struck him, the deceased was with a female who was involved in an angry exchange with another member of the appellant's group. The deceased was standing behind the female. The appellant reached over the female's right shoulder and struck the deceased with one blow to his head, which resulted in the deceased falling to the ground and striking his head on the pavement.

7 The appellant walked away and crossed the road while the deceased lay in a non-responsive state on the ground. Not long afterwards, the deceased began to show signs of responsiveness and the appellant left the scene in his car.

8 The deceased was taken to Royal Perth Hospital in an ambulance. On admission he was responsive to a degree and initially showed progressive improvement. However on 24 December 2013 he deteriorated and died on 27 December 2013.

9 On 27 December 2013, police arrested the appellant and conducted an electronically recorded interview. In the interview the appellant admitted that he pushed the deceased with an open hand, rather than punching him, and said he had done so as an 'instant reaction' because he believed the deceased was about to reach into the female's handbag and take out a weapon, and thus feared for his safety. The appellant relied on self-defence and accident at his trial. The jury must have rejected the appellant's claim that he acted in self-defence and concluded that the deceased's death was a reasonably foreseeable consequence of the appellant's assault.

10 The sentencing judge (who was of course the trial judge) made the following findings. The appellant's assault on the deceased was unprovoked, unexpected, sudden and forceful, albeit involving a single blow only [24].

11 As a consequence in significant part of the nature of the appellant's offending, but also to some extent as a result of the deceased's intoxication, the deceased was a vulnerable victim. The nature of the assault meant the deceased could not use his alcohol related diminished capacity to protect himself against the effect of the assault.

12 The appellant's offending was impulsive and spur of the moment. He was not aware, and did not seek to take advantage, of the deceased's alcohol related diminished capacity to protect himself.

13 The appellant took no steps to assist the deceased when it became apparent to the appellant that the deceased had suffered a serious fall. However, the sentencing judge accepted that conditions at the time were chaotic and that imposed sharp limitations on what the appellant could have done.

14 The sentencing judge characterised the offence as 'a serious example of offending of a very serious kind' [31].

15 The appellant was aged 22 at the time of the offence. The sentencing judge accepted that the appellant was remorseful, had empathy for the family of the deceased and accepted some responsibility for his offending [33]. He was educated to year 12 and had commenced but did not complete university studies. He left university to undertake training in security and worked in that industry. The sentencing judge accepted that the appellant had a considerable work ethic, was in good physical and mental health and there were no indications he had used illicit substances. The appellant had no prior criminal record and the references before the sentencing judge confirmed that he was of prior good character.

16 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. Ground 1 is a claim of express error and ground 2 is a claim of implied error.

17 The appellant claims the sentencing judge erred in failing to treat 'the lack of significance of personal deterrence' as a mitigating factor.

18 Mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished: Sentencing Act 1995 (WA), s 8(1).

19 Section 8(4) of the Sentencing Act provides that if because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.

20 In order to understand the parties' submissions, it is necessary to refer to extracts from the sentencing judge's reasons. The sentencing judge expressly identified all relevant aggravating factors. After finding that the appellant had no prior criminal record and, having regard to his positive references, was a person of prior good character, the sentencing judge continued:

The author of the pre-sentence report assesses you as having minimal risk factors. The author does indicate there might be a benefit from your undertaking in [sic] a cognitive skills programme, although the author goes on to indicate that the enormity of the outcome of your current offending behaviour was likely to be a lasting lesson in its own right, one that you would be unlikely to forget or repeat [41].

21 The sentencing judge then addresses the requirements of s 8 of the Sentencing Act. He said:

Overall, I must identify, as required by the sentencing legislation, the mitigating factors for this offending being factors which go to reduce your criminal culpability or the extent to which you should be punished. Those mitigating factors are as follows. First, there is your relative youth. Second, there are the matters of remorse, victim empathy and acceptance of responsibility to which I have referred. Third, there is your prior good character [43].

22 In the paragraph just quoted, the sentencing judge makes no express reference to the appellant's minimal risk of reoffending as a mitigating factor.

23 Under the heading 'General sentencing considerations', the sentencing judge identifies the purposes or objectives of sentencing in which he includes a reference to protection of the community [46]. After referring to relevant case law, the sentencing judge continued:

I have noted what both counsel acknowledged before me and to which I have already referred, namely the importance in the sentencing in this case of the issue of general deterrence, and the lack of significance of the issue of personal deterrence for you given the impact of that offending on you. This has the effect of reducing or qualifying the mitigation you would otherwise have received absent the importance of general deterrence in this case [52].

24 The meaning of par 52, particularly the last sentence, was the focus of submissions from the parties. The sentencing judge announced the sentence in the following terms:

Taking account of all the matters I have referred to, but particularly the aggravating and mitigating factors to which I have referred, the sentence of imprisonment at which I have arrived for the offence of manslaughter is 9 years [59].

25 It is conceded by both parties that the sentencing judge accepted that the appellant was at minimal risk of reoffending and that finding was a mitigating factor (it decreases the extent to which the appellant should be punished). The real issue is whether the sentencing judge took this mitigating factor into account in the sentencing process, in the sense of according it some weight.

26 Its absence from the list of mitigating factors in par 43 supports an inference that it was not taken into account. That inference is more compelling in the context of the sentencing judge's express acknowledgement of the obligation in s 8(4) of the Sentencing Act, followed immediately by a list of what he regarded as the mitigating factors.

27 There is additional support for that inference in par 52, which focuses on the sentencing objectives of general and personal deterrence. The sentencing judge's reference to the 'lack of significance of the issue of personal deterrence' has two aspects. First, it is an acknowledgement that the appellant was at minimal risk of offending which obviated the need for the sentence to personally deter the appellant. Second, it is a statement that personal deterrence is therefore not significant and can be put to one side, leaving only the need for general deterrence. In this way, the appellant's minimal risk of reoffending is not a mitigating factor; it just avoids what would otherwise result in an increased sentence.

28 The final sentence of par 52 also raises concerns. It says in effect that the need for general deterrence reduces or qualifies the mitigating factors. That is wrong in principle. As part of the process of intuitive synthesis, all relevant sentencing considerations, including all mitigating factors, must be taken into account in sentencing. Absent a relevant statutory provision (such as s 9AA of the Sentencing Act) the weight to be accorded to the relevant sentencing considerations is assessed by reference to the recognised sentencing objectives and principles. That remains the case even for the limited classes of offence (such as drug dealing and child sexual offences) where general deterrence is the primary sentencing objective. In such cases, mitigating factors personal to an offender have a greater impact on the length of the term of imprisonment than on the type of sentence imposed: The State of Western Australia v Johnson [2010] WASCA 187 [21].

29 I am persuaded that the trial judge erred in failing to take into account the appellant's minimal risk of reoffending. Accordingly, I would uphold ground 1. As this court's discretion to intervene is enlivened, it is not necessary to determine ground 2. However, I will address it for the sake of completeness.

30 To succeed on a claim of manifest excess, the appellant must demonstrate that the sentence is unreasonable or plainly unjust. In making that assessment, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.

31 The maximum penalty for the offence committed by the appellant is life imprisonment. Before the Manslaughter Legislation Amendment Act 2011 (WA), which commenced on 17 March 2012, the maximum penalty was 20 years imprisonment. The effect of the increase in the maximum penalty was canvassed by this court in The State of Western Australia v Auckram [2013] WASCA 256 [120] - [127]. An increase in the maximum penalty is an indication that sentences for the offence in question should be increased: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31].

32 The standards of sentencing customarily observed provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors.

33 It is clear from the maximum penalty that manslaughter is a serious offence. However, there is a great variation of circumstances in which that crime may be committed and thus significant differences in the degree of culpability of the offender. As Wheeler J noted in Colledge v The Queen [2007] WASCA 211 in the context of the law of homicide as then in force:

A person convicted of manslaughter may have had an intent to kill or do grievous bodily harm, but have formed it in circumstances where there was provocation; or may be acting in self-defence, although excessively; may have been so affected by substances of one kind or another as to be incapable of forming any clear intention; may suffer from a mental illness falling short of insanity; or may have been culpably negligent in the management of either a motor vehicle or some other thing. That list is by no means exhaustive, but one can see why there is much variation in sentencing [18].

34 The appellant was convicted of the offence because the deceased's death was a reasonably foreseeable consequence of the appellant's assault. The appellant's offending was impulsive not premeditated, was momentary in that it involved a single blow and the appellant did not know of the deceased's diminished capacity to protect himself. On my review of the cases, it cannot be said that the circumstances of the appellant's offending are at the high end of the scale of seriousness of the offence. The point can be underscored by comparing the circumstances of the offending in this case with the significantly more serious circumstances in The State of Western Australia v Munda [2012] WASCA 164, Stagno v The State of Western Australia [2015] WASCA 115, McNamara v The State of Western Australia [2013] WASCA 63,

Dodd v The State of Western Australia [2013] WASCA 80, Harvey v The State of Western Australia [2015] WASCA 250 and Beard v The State of Western Australia [2015] WASCA 74. Of these cases, only the offending in Beard and Harvey occurred after the maximum penalty for manslaughter was increased to life imprisonment.

35 Other cases in which the maximum penalty of life imprisonment applied are Auckram; Thomas v The State of Western Australia [2014] WASCA 202 and Marshall v The State of Western Australia [2015] WASCA 156. These cases, together with Armstrong v The State of Western Australia [2013] WASCA 290 and The State of Western Australia v Camus [2014] WASCA 74 are more closely comparable with the circumstances of this case. What the analysis reveals is that the sentence of 9 years imprisonment for the offence committed by the appellant is higher than the sentences imposed in the most closely comparable cases. That of course does not establish manifest excess, particularly in circumstances where there has been a firming up of sentences. In view of my conclusion on ground 1, it is sufficient for present purposes to accept that the sentence is severe.

36 I would allow the appeal and set aside the sentence imposed by the sentencing judge. This court has the material required to resentence the appellant. It is unnecessary to repeat the circumstances of the offending and all the relevant sentencing considerations. I have reduced the sentence I would otherwise have imposed for the appellant's youth, prior good character, remorse, victim empathy, acceptance of responsibility and minimal risk of reoffending. Whilst there are many mitigating factors, although not a plea of guilty, it is the case that sentences for manslaughter must reflect the value that Parliament has placed on human life. In the circumstances, I would impose a sentence of 7 years imprisonment backdated to 2 May 2015. The appellant will remain eligible for parole.