Criminal law - Appeal against sentence - Manslaughter - Plea of guilty - Cooperation with law enforcement authorities - Undertaking to give evidence as a State witness at the trial of the co-accused - Sentence of 7 years 4 months' imprisonment - Manifest excess

Sentencing decision of the sentencing judge set aside

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

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

Brewerton v The State of Western Australia [2017] WASCA 191

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

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

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

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

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

Jrood v The State of Western Australia [2016] WASCA 73

LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1

Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99

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

MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149

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

Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81

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; (2014) 240 A Crim R 384

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

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

TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266

Wicks v The Queen (1989) 3 WAR 372

1. This is an appeal against sentence.
2. Johnathan Pihema and Christopher Moir were charged that on or about 26 April 2015, at Clarkson, they murdered Jason Edge, contrary to s 279 of the Criminal Code (WA) (the Code).
3. Matthew Howarth was charged that between 25 April 2015 and 26 May 2015, at Clarkson and elsewhere, he was an accessory after the fact to Mr Edge's murder.
4. On 29 October 2015, the appellant was charged with being an accessory after the fact to Mr Edge's murder. Later, the State presented an indictment dated 6 October 2016 which charged the appellant with Mr Edge's murder.
5. On 23 February 2017, the appellant pleaded guilty to the alternative charge of manslaughter, contrary to s 280 of the Code. The State accepted that plea in satisfaction of the indictment.
6. On 5 April 2017, Fiannaca J sentenced the appellant to 7 years 4 months' imprisonment.
7. On 26 June 2017, after a trial in the Supreme Court before Jenkins J and a jury, Mr Pihema was convicted of murder, Mr Moir was convicted of manslaughter and Mr Howarth was convicted of being an accessory after the fact to murder.
8. The appellant has appealed against sentence on the ground that the sentence of 7 years 4 months' imprisonment was manifestly excessive. On 18 August 2017, Mazza JA granted leave to appeal on that ground. Originally, the appellant relied on another ground of appeal, but later that other ground was abandoned.
9. We would allow the appeal. Our reasons are as follows.

The facts and circumstances of the offending

1. The facts and circumstances of the offending were, in summary, as follows:

(a) The appellant knew Mr Edge. She was a friend of Mr Pihema and Mr Howarth and was in a personal relationship with Mr Moir.

(b) The appellant became aware that Mr Pihema wanted to confront Mr Edge in connection with an alleged drug-related debt.

(c) The appellant arranged for Mr Pihema to confront Mr Edge at a house in Clarkson where Mr Moir lived. The appellant assisted Mr Edge in travelling to Mr Moir's house. She collected Mr Edge from the Clarkson train station and drove him to the house. The appellant owned the car she drove, but it was registered in another person's name.

(d) The appellant persuaded Mr Edge to enter Mr Moir's house on a false pretext relating to drugs. She did not tell him that Mr Pihema was in the house.

(e) The appellant knew it was likely that the confrontation between Mr Pihema and Mr Edge would involve Mr Edge being assaulted. After the appellant and Mr Edge entered Mr Moir's house, Mr Pihema approached Mr Edge with a shotgun.

(f) The appellant, upon observing the shotgun, fled from Mr Moir's house.

(g) After the appellant fled, Mr Pihema and Mr Moir bashed Mr Edge to death in a bedroom of the house.

(h) After Mr Edge died, his body was dragged through the house and placed in a shed in the rear garden. The house was cleaned by Mr Moir and others.

(i) After the appellant fled, she went to her place of residence, namely Shane Lee's house. Later that night, Mr Pihema and Mr Howarth went to Mr Lee's house. They told the appellant that Mr Edge was dead. The appellant was present when Mr Pihema and Mr Howarth burned clothing and rings belonging to Mr Edge.

(j) The next morning, the appellant noticed that her car was missing. Mr Pihema told the appellant that her car had been destroyed because Mr Edge had been inside it. The appellant informed the registered owner of the car that the car had been stolen. She asked him to make a report to the police about the theft.

(k) The following day, Mr Pihema and Mr Moir removed Mr Edge's body from the shed in the rear garden. Mr Pihema and Mr Howarth, with the probable assistance of another person and the use of a dinghy, disposed of the body in the ocean. Mr Edge's body has never been recovered.

The appellant's personal circumstances, the basis of her criminal culpability and the sentencing judge's sentencing remarks

1. The appellant was born on 28 April 1978. She was aged 36 at the time of the offending and was 38 when sentenced. When the offending occurred she was single and unemployed. She has a son who was aged 12 at the time of the sentencing.
2. The appellant told the author of a pre-sentence report that her upbringing was positive. She had a good relationship with her family until she was charged with the offence in question.
3. The appellant completed year 12 at school. Subsequently, she obtained a number of tertiary certificates.
4. Although she was unemployed when she committed the offence in question, the appellant had worked previously for accounting and business enterprises. She had a stable work history in those areas until 2010. She then worked as a personal trainer and gymnasium instructor. Her work history in those areas was sporadic.
5. The appellant had a prior criminal record, but she had not previously been sentenced to a term of imprisonment. Her prior criminal record included convictions for stealing (multiple offences), fraud, receiving (multiple offences), possession of stolen or unlawfully obtained property (multiple offences), unlawful assault occasioning bodily harm in circumstances of aggravation, wilfully misleading police, disorderly behaviour in public, possession of prohibited drugs and drug paraphernalia (multiple offences), reckless driving and numerous other traffic offences. The unlawful assault was committed in 2010 and attracted a fine of $1,000.
6. The appellant has a history of substance abuse in relation to methamphetamine and other drugs. Her illicit drug abuse appears to be related to a number of tragic events in her life; in particular, the death of her boyfriend when the appellant was aged 21 and the stillbirth of her second child. At the time of the current offending, the appellant was using 1 g of methamphetamine per day at a cost of about $400 per day.
7. The sentencing judge found that, while the appellant's 'initial descent into drug addiction was associated with trauma in [her] life', there were periods when she was able to abstain, and her use of illicit drugs at the time of the offending appears to have been a 'lifestyle choice' [34].
8. The author of the pre-sentence report identified a number of factors which put the appellant at risk of future offending. Those factors included negative peer association, illicit substance misuse, poor decision-making due to illicit substances and poor coping skills. The author was of the view that if the appellant did not improve her coping skills, she would be at a high risk of relapsing into the use of methamphetamine and re-offending.
9. The basis of the appellant's criminal liability was as follows:

(a) The appellant brought Mr Edge to Mr Moir's house.

(b) At all material times, the appellant knew that Mr Pihema intended to confront Mr Edge about an alleged drug-related debt.

(c) At all material times the appellant knew that the confrontation would involve Mr Edge being assaulted. Also, at all material times, she knew that the assault would involve a significant level of violence. The appellant accepted at the sentencing hearing that Mr Edge's death was a foreseeable consequence of the kind of assault she had in contemplation.

(d) After she became aware that her co-offenders had killed Mr Edge, the appellant sought to conceal the crime by falsely informing the registered owner of her car that the car had been stolen and requesting him to make a report about the car to the police.

1. His Honour sentenced the appellant on the basis that Mr Edge's death was a foreseeable consequence of the kind of assault she had in contemplation.
2. The sentencing judge found that the appellant played a critical role in the offending. His Honour noted that had it not been for the appellant tricking Mr Edge into going to Mr Moir's house, and then delivering him there, the offence would not have been committed in the circumstances in which it happened.
3. His Honour observed that there were a number of aggravating factors in the appellant's offending. In particular:

(a) The assault on Mr Edge was planned and the appellant was responsible for coordinating the arrangements which enabled it to take place.

(b) The confrontation concerned an illicit drug debt.

(c) The appellant used deception to induce Mr Edge to go to Mr Moir's house. She acted in the knowledge that Mr Edge would not go to Mr Moir's house if he knew that Mr Pihema would be present.

(d) When Mr Edge was attacked, the appellant fled and did nothing to obtain assistance for him, even though she had seen Mr Pihema approach him with a firearm. His Honour accepted, however, that the appellant did not have prior knowledge that Mr Pihema would have a firearm. The appellant told the author of the pre-sentence report that she feared for her safety. His Honour was of the view that her fear demonstrated the appellant's appreciation that Mr Edge was in significant danger. She had placed him in that situation.

(e) The assault which resulted in Mr Edge's death was prolonged and brutal. His Honour was of the view that 'once [the appellant] delivered [Mr Edge] up to the others, aware of the real chance that he would be subjected to significant violence, and then abandoned him in circumstances in which [the appellant] fled out of fear, [she] must accept moral as well as legal responsibility for the violence that was, in fact, inflicted' [57]. His Honour added:

I note also that, according to the statement that you have provided to the police (Prosecution Brief, page 1387), when Pihema spoke to you about Mr Edge owing him money, he referred to Mr Edge as a 'piece of shit', a 'cunt' and a 'dog'. The nature of the language would have been a clear indication of the depth of his hostility towards Mr Edge and the likely degree of violence that would be inflicted [57].

(f) After the offence was committed, the appellant arranged for the registered owner of her car to report it to the police as stolen. Her conduct was designed to conceal responsibility for the offence.

(g) Mr Edge's body was hidden in the shed and then disposed of in the ocean. It has never been recovered. The treatment of his body was callous. His Honour accepted that the appellant did not have any role in the disposal of Mr Edge's body and she does not know where it is located. However, although the appellant's culpability in relation to that factor was not as great as those who were physically involved, she could not merely 'wash [her] hands of it' because it was a consequence of events she had 'put in motion' and she was 'subsequently complicit in concealing the crime' [59].

1. The sentencing judge referred to a victim impact statement from Mr Edge's parents. Mr Edge was aged 29 when he was killed. He was their only child. Mr Edge's parents and other members of his family have suffered a terrible loss. They cannot give Mr Edge the funeral he deserves. Mr Edge's parents continue to experience an overwhelming struggle in dealing with the circumstances and impact of his death.
2. His Honour noted a number of mitigating factors. In particular:

(a) The appellant had pleaded guilty. The plea was entered at an early stage, but not at the first reasonable opportunity. The State's case against her was 'relatively strong' [71]. His Honour afforded the appellant a discount of 15% pursuant to s 9AA of the Sentencing Act 1995 (WA).

(b) The appellant had cooperated with the police and was prepared to give evidence as a State witness at the trial of her co-offenders. Initially, the appellant was 'not very forthcoming', but eventually she made admissions implicating herself in Mr Edge's unlawful killing. Significant cooperation had occurred more recently. On 3 March 2017, the appellant provided the police with a detailed witness statement as to her involvement in the offending and the involvement of her co-offenders. The State intended to call her as a witness at the trial of her co-offenders. His Honour made these findings:

A reduction may be made for both past and future cooperation. In this case, ... the real value of the statement you have given is in indicating the evidence you will give at any future trial. That is why ... it is inextricably linked to your promise of future cooperation.

...

The evidence you are prepared to give will significantly strengthen the prosecution case against your co-accused. That is acknowledged by the State. In particular, it will provide identification of Pihema as the person who was seen by you and other witnesses to be wielding a firearm. The evidence of some of those witnesses would support the conclusion that the person with the firearm was one of the persons who later inflicted the brutal assault on Mr Edge. Although those other witnesses have given a description of that person that may be regarded as consistent with Pihema, they have not identified him.

Secondly, your evidence would establish a motive for Pihema to have killed Mr Edge.

I also accept that by giving evidence you are potentially putting yourself at risk of retribution [79], [81] - [83].

(c) The appellant had accepted responsibility for her offending. She had expressed remorse and empathy. While in prison on remand, the appellant had taken some positive steps towards her rehabilitation. In particular, she had completed several courses, including programmes directed at finding alternatives to violence, a drug and alcohol programme and educational programmes directed at better health. After participating in an alternatives to violence programme, the appellant was asked to be a facilitator and now assists the instructor in teaching that class. She has been given positions of trust in prison. The appellant has demonstrated a willingness and capacity to assist other inmates within the prison, especially those with limited literary skills. She also conducts a fitness class.

1. The sentencing judge said that, but for the appellant's undertaking to give truthful evidence in any trial of her co-offenders, he would have imposed a sentence of 9 years 8 months' imprisonment. He had arrived at the term of 9 years 8 months after applying a 15% discount, pursuant to s 9AA of the Sentencing Act, and a further discount for other mitigating factors than the appellant's undertaking. His Honour decided that the appropriate reduction for the undertaking was 2 years 4 months. He therefore imposed a sentence of 7 years 4 months' imprisonment. His Honour backdated the sentence to 29 October 2015, when the appellant went into custody, and made a parole eligibility order.

1. Counsel for the State submitted that no previous case was truly comparable with the present case. It was therefore necessary, in counsel's submission, to have regard to general principles.
2. Counsel noted that the appellant did not challenge any of the sentencing judge's findings of fact and did not assert that his Honour took into account irrelevant considerations or failed to have regard to mandatory relevant considerations.
3. It was submitted on behalf of the State that the level of criminality involved in the appellant's offending placed her offence towards the upper end of the scale of seriousness for offences of this kind. The appellant did not have the benefit of youth or good character. The discounts afforded by his Honour for the guilty plea and the appellant's undertaking were not challenged.
4. Counsel argued that having regard to the maximum penalty for manslaughter, the significant role played by the appellant in the offending, the sentencing principles relevant to the offence of manslaughter, and the appellant's personal circumstances, it had not been demonstrated that the sentence of 7 years 4 months' imprisonment was unreasonable or plainly unjust.

1. 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.
2. The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
3. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
4. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
5. The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[1]
6. In Barbaro v The Queen,[2] French CJ, Hayne, Kiefel and Bell JJ said in relation to the notion of an 'available range' of sentences and the notions of 'manifest excess' and 'manifest inadequacy':

Reference to an 'available range' of sentences derives from the well-known principles in House v R ((1936) 55 CLR 499; [1936] HCA 40 (House)). The residuary category of error in discretionary judgment identified (House at 505) in House is where the result embodied in the court's order 'is unreasonable or plainly unjust' and the appellate court infers 'that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance'. In the field of sentencing appeals, this kind of error is usually referred to as 'manifest excess' or 'manifest inadequacy'. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.

The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some 'substantial wrong has in fact occurred' (House at 505) in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.

Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an 'available range' of sentences, stating the bounds of an 'available range' of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the resentencing court to determine the bounds of the range within which the sentence should fall [26] - [28]. (original emphasis)

1. The principles to be applied in determining the nature, extent and value of an offender's past and promised future cooperation with law enforcement agencies, and the appropriate level of any discount on his or her sentence, were examined by this court in MXP v The State of Western Australia.[3] The rationale for allowing a sentencing discount for cooperation with law enforcement agencies is the demonstration of genuine remorse and apparent rehabilitation and, also, the public interest in the detection and successful prosecution of crime. See TXT v The State of Western Australia.[4]
2. In the present case, no complaint was made either by counsel for the appellant or by counsel for the State in relation to the 15% discount afforded by the sentencing judge pursuant to s 9AA of the Sentencing Act or the discount of 2 years 4 months for the appellant's cooperation. We are satisfied that in all the circumstances those discounts were appropriate.
3. Also, in the present case, no complaint was made either by counsel for the appellant or by counsel for the State in relation to the apparently modest discount afforded by his Honour for other mitigating factors. We are satisfied that in all the circumstances a modest discount for other mitigating factors was appropriate.
4. 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.
5. 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;[5] Colledge v The State of Western Australia;[6] The State of Western Australia v Walley.[7]
6. The great variation in these circumstances explains the difficulty in discerning sentencing patterns for manslaughter. As Wheeler JA noted in Colledge:

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

1. Sentences for manslaughter should, however, reflect the value which Parliament has placed on human life. See Taylor v The State of Western Australia;[8] Walley [32].
2. The maximum penalty for the offence committed by the appellant is life imprisonment. The effect of the increase in the maximum penalty from 20 years' imprisonment to life imprisonment was examined in The State of Western Australia v Auckram.[9] An increase in the maximum penalty for an offence is an indication that sentences for the relevant offence should be increased. However, as noted in Marshall v The State of Western Australia,[10] the sentences customarily imposed for the offence of manslaughter had in fact increased before the increase in the maximum penalty pursuant to the amending legislation.
3. We have considered numerous prior cases of offending against s 280 of the Code when the maximum penalty was 20 years' imprisonment. See, in particular, The State of Western Australia v Munda;[11] Hishmeh v The State of Western Australia;[12] McNamara v The State of Western Australia;[13] Dodd v The State of Western Australia;[14] Heaton v The State of Western Australia;[15] Armstrong v The State of Western Australia;[16] The State of Western Australia v Camus;[17] Stagno v The State of Western Australia;[18] and Harvey v The State of Western Australia.[19]
4. We have also considered numerous prior cases of offending against s 280 of the Code since the maximum penalty was increased to life imprisonment. See, in particular, Auckram; Beard v The State of Western Australia;[20] Marshall; Jrood v The State of Western Australia;[21] LCM v The State of Western Australia;[22] Liyanage v The State of Western Australia;[23] and Brewerton v The State of Western Australia.[24]
5. It is unnecessary to reproduce the facts and circumstances of the prior cases we have considered or the sentencing outcomes. There are some comparable features between some of the prior cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
6. We are satisfied, after taking into account the differences in the facts and circumstances of the prior cases and the sentencing variables in those cases and the fact that there is no single correct sentence, that the term of 9 years 8 months arrived at by the sentencing judge in the present case, after applying a 15% discount for the guilty plea and a further discount for other mitigating factors than the appellant's undertaking to give truthful evidence in any trial of her co-offenders, was not broadly consistent with the sentencing pattern revealed by the prior cases.
7. The appellant knew that the confrontation between Mr Pihema and Mr Edge would involve an assault upon Mr Edge with a significant level of violence. See [8] of the sentencing judge's reasons. The appellant accepted that death was a reasonably foreseeable consequence of the kind of assault which the appellant had in contemplation. See [49] of his Honour's reasons. However, there was no finding that the appellant subjectively foresaw that the assault would be of such a nature as might result in death.
8. The appellant was not aware, when she collected Mr Edge from the Clarkson train station and drove him to Mr Moir's house, that Mr Pihema would have a firearm. See [56] of his Honour's reasons. There was no evidence that the firearm was used in the assault on Mr Edge. See [56] of his Honour's reasons. His Honour found that when the appellant entered Mr Moir's house and saw Mr Pihema approaching Mr Edge with a shotgun, she then appreciated that Mr Edge was in significant danger. See [56] of his Honour's reasons. His Honour found that the appellant's failure to assist Mr Edge when she left Mr Moir's house, for example by contacting the police, increased the seriousness of the appellant's offending. See [56] of his Honour's reasons. However, the extent to which the appellant's failure to assist Mr Edge, by contacting the police, increased the seriousness of her offending must be evaluated in the whole of the context, including that the appellant feared for her own safety when Mr Pihema produced the shotgun. The appellant's appreciation, when Mr Pihema produced the shotgun, that Mr Edge was in significant danger is not inconsistent with the appellant fearing for her own safety. If the appellant had not merely fled, but had fled and contacted the police and told them what was happening at Mr Moir's house, that action would have been a significant mitigating feature. However, in our opinion, the appellant's failure to contact the police did not, in all of the circumstances, significantly increase the seriousness of her offending.
9. Although the appellant's participation in the offending involved serious criminality, her culpability in relation to events after she had deceived Mr Edge and lured him to Mr Moir's house was limited. In particular, the appellant did not remain at the house and take part in or witness the assault on Mr Edge; she did not have any involvement in moving or disposing of Mr Edge's body; she did not participate in cleaning the house after the assault; and she did not suggest that the car used to transport Mr Edge be damaged or destroyed. The appellant did, however, lie to the registered owner of the car about what had happened to the car and she did induce the owner to make a false report to the police about the car.
10. The degree of seriousness of the appellant's offending did not, in our view, place her offence towards the upper end of the scale of seriousness of offences of this kind.
11. In our opinion, the sentence of 7 years 4 months' imprisonment was manifestly excessive. That is, when the sentence is viewed from the perspective of the maximum penalty (life imprisonment), and after taking into account all relevant facts and circumstances and all relevant sentencing factors, including:

(c) the general pattern of sentencing for manslaughter;

(d) the place which the appellant's criminal conduct occupies on the scale of seriousness of offences of this kind;

(e) the importance of appropriate punishment and personal and general deterrence as sentencing considerations;

(f) the appellant's plea of guilty, her undertaking to give truthful evidence in any trial of her co-offenders and the other mitigating factors mentioned by his Honour;

the sentence of 7 years 4 months' imprisonment was unreasonable or plainly unjust.

1. We would imply or infer error from the sentencing outcome.
2. The ground of appeal has been made out.

The result of the appeal and the resentencing of the appellant

1. We would allow the appeal.
2. This court has the material necessary to resentence the appellant.
3. As we have mentioned, the maximum penalty for manslaughter is life imprisonment.
4. Pursuant to s 9AA of the Sentencing Act, we would reduce the head sentence (as defined in s 9AA(1)) that we would otherwise have imposed by 15% on account of the appellant's plea of guilty. This recognises the benefits to the State, and to the witnesses to the offence, resulting from the plea.
5. Next, we would reduce the sentence we would otherwise have imposed because of:

(a) the other mitigating factors referred to by his Honour, apart from the appellant's undertaking to cooperate with the law enforcement authorities by giving truthful evidence in any trial of her co-offenders; and

(b) the personal difficulties, referred to by counsel for the appellant in his submissions, being experienced by the appellant as a result of her incarceration at a prison in regional Western Australia (for reasons not attributable to her conduct) that is remote from her family and friends.

1. The appellant did in fact give evidence as a State witness, in accordance with her undertaking, at the trial of her co-offenders. Counsel for the State did not suggest that her evidence was other than truthful. We would allow a discount of 2 years 4 months, on the sentence we would otherwise have imposed, for the appellant's cooperation.
2. After taking into account the maximum penalty for manslaughter; the facts and circumstances of the appellant's offending; the general pattern of sentencing for manslaughter; the place which the appellant's criminal conduct occupies on the scale of seriousness of offences of this kind; the appellant's personal circumstances; and all other relevant sentencing considerations, we would impose a sentence of 5 years 8 months' imprisonment.
3. The new sentence of 5 years 8 months' imprisonment is to be taken to have taken effect on 29 October 2015. The appellant remains eligible for parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).

[2] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58.

[3] MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149.

[4] TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266 [28] (Buss JA; Mazza JA agreeing).

[5] Wicks v The Queen (1989) 3 WAR 372, 379 - 380 (Malcolm CJ).

[6] Colledge v The State of Western Australia [2007] WASCA 211 [17] (Wheeler JA; Owen and Miller JJA agreeing).

[7] The State of Western Australia v Walley [2008] WASCA 12 [32] (Wheeler & Miller JJA).

[8] Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81 [54] (Miller JA; Owen & Wheeler JJA agreeing).

[9] The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397 [120] - [127] (Buss JA).

[10] Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99 [49] (Martin CJ; Hall J agreeing), [126] (Buss JA).

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

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

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

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

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

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

[17] The State of Western Australia v Camus [2014] WASCA 74; (2014) 240 A Crim R 384.

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

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

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

[21] Jrood v The State of Western Australia [2016] WASCA 73.

[22] LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1.

[23] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359.

[24] Brewerton v The State of Western Australia [2017] WASCA 191.