Sentencing Act 1995 (WA), s 8(2), s 32, s 93(1)

Sentencing Legislation Amendment and Repeal Act 2003 (WA), cl 2(1) Sch 1

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

R v Pesnak [2000] QCA 245; (2000) 112 A Crim R 410

R v Pop [2000] WASCA 283; (2000) 116 A Crim R 398

R v Ray [2001] NSWSC 1145

R v Stott & Embden; Sentencing Remarks of Justice Helman, SCt Qld; 19 December 2000

Veen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Wong v The Queen [2001] HCA 64; (2001) 185 ALR 233

1 MURRAY ACJ: On 12 March 2003, the applicant was sentenced in the District Court after pleading guilty to the offence of manslaughter. His sentence was backdated to 8 August 2002, upon which date he had been taken into custody, and a parole eligibility order was made.

2 He now seeks leave to appeal against the severity of that sentence upon the grounds that:

"1. The sentencing Judge erred in law in failing to give an appropriate discount for the applicant's fast track plea of guilty.

2. The sentencing Judge erred in law in placing undue weight on the applicant's conduct after the act which caused the death of [the deceased].

3. The sentence imposed was manifestly excessive and beyond the bounds of a proper discretionary judgment in all the circumstances including:

3.1 the place which the criminal conduct in question occupies in the scale of seriousness of manslaughter offences

3.2 the applicant's personal circumstances

3.3 the circumstances of the offence."

3 The facts of the case, as the sentencing Judge put it, reveal "the enormously sad and tragic effects of the misuse of drugs of addiction." On 16 May 1999, the woman who was later killed by the applicant met him at a nightclub in Northbridge. The two were known to each other. She was a drug user, as was he himself. The sentencing Judge described him as an active street drug dealer in speed and ecstasy. He had previously supplied drugs to the deceased.

4 He introduced her to two friends, one of whom was the woman with whom he was then living. When the nightclub closed at 1 am on 17 May 1999, the four people drove back to the applicant's home. There they used illicit drugs. The drugs consumed by the deceased brought her to the state where, wanting to inject more of a prohibited drug, in the presence of the applicant, she found herself unable to do so because of the deleterious effect that the drug she had used had had upon her. She asked the applicant if he would assist her by injecting the drug into her arm. He did so.

5 Later, the applicant came out of the room where he and the deceased had been and told the other two people that she had gone to sleep. On the following morning as he left the house, the applicant told one of the other persons there that he was taking the deceased home. The witness did not see the deceased at that stage, but it is evident that the applicant carried her to his car. There is no independent verification as to when she died, but it is accepted that she did die as a result of an overdose of the drug she had consumed, ultimately with the assistance of the applicant. He maintains that it was his intention to drop her off at a nearby busport so that she could make her way home. He says, however, that he discovered she was dead when he got to that destination.

6 He then panicked and finally decided to dispose of the body. He drove to Karragullen, left the deceased under a tree in the bush and separately disposed of her belongings in various places. Her remains were undiscovered until a bushwalker came upon them over 3 years later, on 5 August 2002.

7 Following the disappearance of the deceased, during the resulting police inquiries the applicant was interviewed on no less than five occasions in June and September 1999. Throughout this process he maintained that he knew nothing of the deceased's disappearance, that he had driven her to the busport and left her there, alive. However, as a result of those interviews and other inquiries, the applicant was charged with no less than 15 offences of fraud, eight burglaries, an offence of possession of methylamphetamine with intent to sell or supply, and an offence of possession of MDMA with intent to sell or supply. These were offences unrelated to the manslaughter which were, however, committed between 9 May and 3 June 1999. He pleaded guilty in the District Court by the process of expedited committal known as the fast-track. In addition, he was to be dealt with for offences of possession of cannabis, another prohibited drug, and possession of a smoking implement, brought before the Court by a notice under s 32 of the Sentencing Act 1995 (WA).

8 To that point, the applicant had virtually no criminal history. On 3 November 1999 he was sentenced to an aggregate term of 21/2 years imprisonment with parole eligibility. He was released on parole in April 2000 subject to a condition for urinalysis testing. He successfully completed his parole in February 2001. There appears to have been one lapse only, which resulted in a conviction for possession of MDMA in the Perth Court of Petty Sessions on 20 July 2000, for which he was fined $200. Apart from the conviction of manslaughter in 2003, there have been no further convictions.

9 I have mentioned the discovery of the deceased's remains on 5 August 2002. The news of this event was televised. When the applicant saw the news, he fled to Victoria. He was arrested there on 8 August 2002 and we were told that he confessed his implication in the death of the deceased to Victorian police. He was extradited to WA and repeated his confession to police here, taking them to the place in Karragullen where he had left the body of the deceased, and to other places where he had left her property.

10 The applicant was originally charged with the murder of the deceased, but a complaint of manslaughter was subsequently substituted for that complaint. The applicant immediately pleaded guilty in the Court of Petty Sessions and thereafter participated in the process of expedited committal. Before the sentencing Judge, both counsel agreed that this was to be treated as a plea of guilty made at the earliest opportunity, albeit delayed by some years as a result of the applicant's subterfuge and untruthful denials to the police of any implication in the death of the deceased.

11 When the matter came before the sentencing court, the Judge received victim impact statements by the mother and father of the deceased, and by the father of the deceased's son, who was 3 when his mother died. They are eloquent documents which speak forcefully of the great distress of the family of the deceased, not only resulting from her death, but also consequent upon the inhumanity of the actions of the applicant in his untruthful denial of his implication in the death of the deceased and in failing, even anonymously, for over 3 years to reveal the whereabouts of her remains. They are heartbreaking documents, particularly that describing the severe emotional trauma suffered by the son of the deceased.

12 So far as the applicant is concerned, the Court had before it a pre-sentence report and psychologist's report. The applicant was 21 when he committed the offence and 25 when he came to be sentenced. It appears he had a dreadful childhood. He was sexually abused by his father for about 6 years, between the ages of 7 and 13. Ultimately, his father was dealt with for these offences and sentenced to 9 years imprisonment. The offences were brought to an end when the applicant ran away from home at the age of 13, living for some 5 years in various youth hostels and similar accommodation until, at the age of 18, he was able to obtain his own accommodation.

13 In 1999, his sister committed suicide after a period in Graylands Hospital, receiving treatment for depression. The applicant's mother committed suicide about 6 months later. The applicant himself was diagnosed in 1999 as suffering from clinical depression. He had received medication in 2000 for this condition, but had found it to be unsatisfactory. He had undertaken some counselling, but the opinion of those who reported upon him was that further treatment of this kind would be beneficial. The psychologist reported, in January 2003, that the applicant had been drug-free for about 18 months (I have noted his conviction for the possession of MDMA on 20 July 2000).

14 The applicant had left school during year 10 because he could not continue his education while living in youth hostels. Nonetheless, he was later able to study to become a chef, when he commenced work as a kitchen hand. He qualified for this occupation in 1996 and it has been his employment since. He has had three relationships which have failed, the last being terminated, he said, shortly after his arrest for the offence of manslaughter.

15 The applicant said that he could not understand why he acted as he did in covering up the death and failing to reveal the whereabouts of the deceased. He expressed his remorse for his behaviour. He said that when questioning him the police beat him, as his father had often done to ensure that he did not reveal the sexual abuse he was receiving. He said the behaviour of the police when questioning him led him to think that if he admitted his actions concerning the death of the deceased he would be imprisoned for 25 years for wilful murder.

16 His Honour the sentencing Judge said he regarded the case as being "unusually difficult" from a sentencing perspective. His Honour considered that it was proper to have regard, not only to the act of injection which caused the death and the immediate disposition of the body, but also to the planning involved in disposing of the property of the deceased in different places, with the intention, if they were discovered, "to blur the trail". His Honour also had regard to the inaction of the applicant in failing to reveal where he had left the body of the deceased, indicating to his Honour "a total lack of remorse or empathy."

17 It is clear that in passing sentence his Honour considered all the matters to which I have thus far referred. His Honour said:

"Looking at the matter overall, on the one hand the circumstances of death and disposal and on the other hand the 3 years of silence, looking at the nature, personality and antecedents of the offender, looking at the culpability of the offender ameliorated, in my view, slightly only but ameliorated, in his co-operation with the authorities following his arrest in Melbourne I am of the view that the appropriate sentence is that of 10 years imprisonment which shall date from the 8th day of August 2002 and the offender will be eligible for parole."

18 I turn to the first ground of the application. I do not for a minute accept the submission that the sentencing Judge overlooked the circumstances in which the plea was made. Indeed, his remarks which I have quoted suggest the contrary. It seems to me that his Honour determined that the plea was of little worth in mitigation, having regard to the delay in the proceedings caused by the applicant's failure to immediately admit his role in the death of the deceased and his silence thereafter until the remains were discovered. Also, his Honour did refer to the applicant's co-operation with the authorities following his arrest in Melbourne.

19 The law in relation to pleas of guilty is clear. Section 8(2) of the Sentencing Act provides that a plea of guilty is a mitigating factor and the earlier in proceedings that it is made or indication is given that it will be made, the greater is the mitigation. The parties were in this case of the same view about that. The plea was made at the earliest opportunity the applicant had to plead guilty to manslaughter in circumstances where that plea was accepted by the Crown.

20 In Cameron v The Queen (2002) 209 CLR 339, the High Court made it clear that under this provision the extent of the mitigation attaching to a plea of guilty was a matter for the discretionary judgment of the sentencing judge, having regard to what may be described as a proper evaluation of the worth of the plea. There is to be consideration of the extent to which the plea is indicative of the offender's remorse for the commission of the offence, his acceptance of responsibility for it and his willingness to facilitate the course of justice. Having regard to these matters, in my opinion there was nothing to detract from the mitigatory power of the plea of guilty in this case.

21 There is no suggestion that the discovery of the remains of the deceased did more than confirm the fact of her death and that it had happened a considerable time before the remains were found. That she died of a drug overdose administered without intention to cause her death and at her request was dependent upon the confession of the applicant. Although he had lacked the strength of mind to make that admission at an early stage and he did not do so until the deceased was discovered, thereafter his aid to the process of investigation, his contrition and his participation in the criminal process by the acceptance of responsibility for the offence appears to have been complete. In my view, these matters were separate from the relevance of the earlier false denials and the silence of the applicant. In my opinion, the sentencing Judge erred by taking the view that these matters ameliorated the applicant's culpability only slightly.

22 In my opinion, there was no reason to suppose that the applicant's co-operation with the authorities upon his arrest and his early plea did not merit a discount of the order of 25 - 35 per cent in the ordinary way: Miles v The Queen (1997) 17 WAR 518, 521.

23 As to the second ground, there is a valuable discussion of the general relevance for sentencing purposes of post-offence conduct, such as in this case - the disposal of the body of the deceased, the scattering of her possessions so as to increase the chance that the applicant would avoid detection, lying to the police about his complicity in her death and maintaining his silence thereafter, in DPP v England [1999] VSCA 95; [1999] 2 VR 258 by the Court of Appeal of Victoria. Brooking JA, in a judgment with which Batt and Chernov JJA agreed, after discussing relevant authorities, at 267-8 [35] said, as to what might properly be regarded as aggravating circumstances:

"What should be regarded as the circumstances of an offence is best left to the good sense of sentencing judges, without any attempt to lay down principles or rules, which are all too common in the criminal law nowadays and which are particularly to be avoided in a matter of this kind. I have no doubt that in this case the Judge was wrong in failing to characterise as a circumstance of the crime the facts that the murderer had capped the homicide with a sexual assault upon a body from which life had just then departed and then burnt what he had just defiled."

24 As to the further submission that it would be wrong to regard the defilement and the burning of the body as aggravating circumstances, if regard was also had to them as tending to negative remorse, his Honour said, at 268 [37]:

"If conduct, notwithstanding that technically it follows the crime, is so connected with it as properly to be viewed as one of its circumstances, that conduct, if it aggravates the crime, must be placed in the scales. If remorse also falls for consideration, there is no element of 'double counting' if the same conduct is treated as relevant in considering whether, on the whole of the material, the offender has established the fact of remorse."

25 I would respectfully concur in those views and it follows, in my opinion, that the sentencing Judge in this case was right to have regard to the matters I have mentioned, both as adding an aggravating dimension to the quality of the act of killing the deceased which constituted the crime of manslaughter and as indicating, as his Honour said, a lack of remorse for the killing and empathy for the victim's family. As such, the matters to which I have referred, whilst they do not detract from the mitigation ultimately available to the applicant, do significantly increase the seriousness of the offence.

26 It was necessary however, in determining the proportionate sentence to be passed, to have regard to the nature of the offence and to consider the circumstances of this killing. The applicant was to be dealt with for a killing caused by him without intention on his part, but by his deliberate act in injecting into the deceased what proved to be an overdose of a prohibited drug. It was not a question of negligence. He was responsible for his willed act which directly caused the death of the deceased even though the act was performed with her concurrence and at her request.

27 The offence of unlawful killing known as manslaughter is punishable by up to 20 years imprisonment. Speaking generally, in my opinion those cases often described as motor vehicle manslaughter, where the killing is prevented from being an accidental death by the gross negligence of the offender, may be put to one side and will often, although not necessarily, be found to fall within a less culpable class of manslaughter.

28 On the other hand, those cases where the killing is by an offender who intends to cause death or grievous bodily harm, but who was provoked to do so, will again form a separate category of case which may well, having regard to the circumstances, attract a more severe punishment than other cases of unlawful killing. These matters were discussed by this Court in Wicks v The Queen (1989) 3 WAR 372, although there, as in many cases, the point was made that it is very difficult to discern a tariff in cases of manslaughter because of the great variety of circumstances relevant in such cases for sentencing purposes. In Wicks, at 381, Malcolm CJ mentioned two earlier cases which were apparently killings under provocation. His Honour said:

"In one sense, therefore, because the killing in each case involved an intention to kill or cause grievous bodily harm, there was a greater degree of culpability than in a case of unintentional killing or a killing as a result of negligence or inadvertence. In my opinion, this factor was at least counterbalanced, if not displaced by the emotional stress and provocation involved in those cases."

29 Wicks was a case where the deceased was killed by acts of very considerable violence. He was beaten repeatedly with a rock or brick. The offender then left him, found a knife in a nearby car, returned to where the deceased was lying, stabbed him twice in the chest and cut his throat. Consistently with the verdict of the jury, it was to be regarded as a case in which the offender had not formed an intention to kill or do grievous bodily harm as a result of his severe intoxication. The primary consideration marking the seriousness of the offence was, however, considered to be that the acts of the offender, although not intended to cause death or grievous bodily harm were, despite the offender's intoxication, deliberately performed. In other words, it was the degree of the violence and the nature of the acts which caused death which were considered to be the primary circumstances justifying the sentence of 131/2 years imposed and upheld by the Court of Criminal Appeal.

30 In R v Mordecai (1985) 18 A Crim R 149, the offender was a commodity broker who had suffered a substantial loss when a firm of which the deceased was a partner used his money to trade on the stock market. The applicant killed the deceased by stabbing him in the back six times with a knife. The case was dealt with upon the basis that the verdict may well have been explicable upon the ground of provocation. This Court allowed an appeal against sentence, reducing the penalty from 15 years imprisonment to a sentence of 10 years imprisonment. Under the sentencing regime then applicable, a minimum term, effectively of 5 years imprisonment, was fixed. It is clear from the judgments delivered that their Honours regarded this manslaughter as one of the utmost seriousness, but the Court also made the point to which I have referred, that there can be no tariff for manslaughter offences or any particular category of manslaughter offence. The Court must react to the particular facts and circumstances of each case.

31 No precedents of sentencing in this type of case were cited to us, nor were any similar cases from other jurisdictions cited, where a sentence of 10 years imprisonment had been imposed in circumstances similar to these. Perhaps the most useful of the cases to which we were referred was an unreported decision of the Court of Appeal of Queensland: Hile v The Queen [1999] QCA 17. The case was one where the offender, at the insistence of the deceased, injected her with concentrated heroin. The injection proved to be an overdose and the deceased soon exhibited signs of severe physical distress. The applicant used resuscitation procedures upon the deceased while an ambulance was called, but she later died in hospital. Initially, the applicant denied any involvement in the death, but he was shown a statement made by another witness, admitted his involvement and pleaded guilty. He was sentenced to 6 years imprisonment and that was upheld on appeal. The case would seem to me to be rather less serious than this.

32 However, when regard is had to all the material circumstances, it does seem to me that in this case the sentence of 10 years imprisonment was so clearly too severe that the exercise of discretion must be regarded as having miscarried. I have regard particularly to the following matters. The administration of the drug by which the deceased was killed was performed by the applicant at her request and without any indication that her death would be the result.

33 In that sense this was not a violent killing, but it was made more serious by the applicant's inexcusable conduct in disposing of the body and the deceased's personal possessions in such a way as to conceal the fact of her death. Those aggravating circumstances were compounded by the applicant's untruthful denials of complicity in the death when he was interviewed by the police and his failure to reveal what he knew for years afterwards. There is no excuse for that behaviour, but one can understand his fear of the consequences of his implication in the death.

34 Further, his behaviour was explicable to a degree, as a consequence of his appalling childhood and the psychological damage which resulted. In part, at least, that helps to explain, although again not to excuse, his lack of remorse during that period and his lack of empathy for the family of the deceased, whose suffering must have been within his contemplation.

35 Nonetheless, there is some value in the applicant. He seems unaided to have been able to take substantial steps to deal with his own drug habit and he has not seriously fallen foul of the criminal law since his release

from prison in April 2000. In addition, he has available to him the mitigation that when the matter did come to light he co-operated fully with the investigating authorities and pleaded at what was accepted on both sides to be the earliest opportunity, thereby demonstrating his contrition at the time he came to be sentenced and his effective co-operation in the processes of the courts.

36 I would grant leave to appeal and allow the appeal. I would quash the sentence of 10 years imprisonment. In my view, the appropriately proportionate term under the statutory sentencing regime applicable in March 2003 would have been a sentence of 71/2 years imprisonment.

37 There is a further matter with which these reasons must deal. Relevant provisions of the Sentencing Legislation Amendment and Repeal Act 2003 were proclaimed to come into operation as from 31 August 2003: Government Gazette, 29 August 2003, p 3833. The Act makes amendments to various provisions of the Sentencing Act 1995 and in particular to s 93(1) of the Act, the provision which deals with when a prisoner serving a parole term will become eligible to be released on parole. The term I would impose would, of course, be a parole term because I would not propose to interfere with the parole eligibility order. Under the new s 93(1)(b), in relation to a term of 71/2 years imprisonment, eligibility for parole occurs when the offender has served 2 years less than the term imposed, ie, after 51/2 years. Formerly, under s 93(1)(b), eligibility for parole would occur when the offender had served 2 years less than two thirds of the term, ie, after serving 3 years of the term I would impose.

38 In such a case, under cl 2(1) of Sch 1 to the Sentencing Legislation Amendment and Repeal Act 2003, the transitional provisions, the fixed term to which the applicant may be sentenced with a parole eligibility order must be "two thirds of the fixed term that it [the court] would have imposed had the old provisions been in operation at the time of sentencing." Applying that provision would result in this Court being required to impose a sentence of 5 years imprisonment, rather than 71/2 years imprisonment, and under the new provisions of the Sentencing Act, s 93(1)(b), the offender would, as previously, become eligible for parole after serving 3 years of that 5-year term, which should, of course, commence when originally ordered, on 8 August 2002.

39 MCKECHNIE J: On 12 March 2003 the applicant was sentenced by the Chief Judge in the District Court to a term of 10 years imprisonment for the crime of manslaughter. A parole eligibility order was made.

41 The facts and the grounds of appeal are set out by Murray ACJ.

42 The Judge commented that this was an unusually difficult case to deal with from a sentencing perspective. He viewed the conduct in two distinct areas:

"I find that his conduct can be reviewed in two separate areas; firstly his part in the act of injection which caused the death followed by the immediate disposal of the body in a place where he hoped it would never be found. Those two actions are necessarily to be viewed together, in my view, and they constitute an offence of great gravity as well as heartlessness. I note his actions of disposing of the backpack and red jumper in different places as indicating clearly a degree of careful planning intending to blur the trail. So that stands there, to one side as it were.

However, there is a second issue. The fact that he therefore did nothing toward alleviating what must have been clear to him would have been the continuing distress of the family of the missing girl indicates a total lack of remorse or empathy. I point to the 1999 videos with the police whereas I have said earlier there was a very constant maintenance of the untrue story that he was telling at the time.

Remorse and concern would have been shown had the offender acted differently on the morning that the girl died rather than the way he did. ..."

43 In the circumstances, the Judge did not consider the sentence was amenable to the two-tier sentencing process.

44 It is against this background that the grounds of appeal now fall to be considered.

Ground 1: no appropriate discount for fast-track plea

45 The essence of the applicant's submission is that the failure to mention the fast-track plea reveals the error made by the Court. The applicant argues that to be given credit for a fast-track plea the staring point must have been in the vicinity of 13 to 15 years which would put the case very high on the scale of criminality for manslaughter. It is argued that this offence was at the lower end of the scale of criminal culpability and that the Judge erred in that he considered a starting point to be at the very high end of the scale.

46 There are, I think, two answers to this submission.

47 The first is that whether or not the Judge erred in failing to allow an appropriate discount for the fast-track plea the sentence under review is that of 10 years, not 13 to 15 years: see Grimwood v The Queen [2002] WASCA 135 per Murray J at [17] and [20]: R v Wright [2003] WASCA 56 per Miller J at [34]. The correct question is not whether 13 to 15 years is within the proper range but whether 10 years is within the proper range. This has particular significance in this case because the Judge expressly declined to sentence on the so-called two-tier basis but imposed a sentence having regard to all of the circumstances before him. He had the benefit of submissions by counsel and both counsel had adverted to the fast-track nature of the plea.

48 There is another reason why I do not consider this ground is made out when considered in isolation.

49 In Radebe v The Queen [2001] WASCA 254; (2001) 122 A Crim R 559 at [28]:

"... it is likely to be an unusual case where a sentence for a fast-track plea of guilty will not be reduced by at least 25 per cent following the plea of guilty."

50 That statement does not and was not intended to produce an inflexible rule to that effect.

51 I consider the Judge regarded the ameliorating effect of the early plea of guilty as substantially offset by the lengthy delay and the lies which had preceded it. In this respect I differ from Murray ACJ.

52 I do not consider that appellable error can be identified in any failure to give due regard to the time at which the plea of guilty was made.

Grounds 2 and 3: manifestly excessive sentence

53 To a considerable extent, these grounds overlap.

54 The applicant, through counsel, accepts that his actions in disposal of the body were capable of being regarded as aggravating factors under the Sentencing Act 1995, s 8. However, it is submitted that the resulting sentence reflects, to a great degree, a reliance on these aggravating features.

55 It is not possible to know to what extent the Judge regarded this factor in determining the final sentence, so it is necessary to consider whether the sentence is manifestly excessive. The maximum penalty prescribed for manslaughter is imprisonment for 20 years. In 1985 there was no discernable tariff for manslaughter: Mordecai (1985) 18 A Crim R 149 at 167. That remains the position in 2003. I agree with Murray ACJ that motor vehicle manslaughter cases may be put to one side. They constitute a generic category.

56 The respondent has made reference in its submissions to various sentences imposed for similar crimes in other jurisdictions. Although I appreciate the intended assistance, I do not find much help from a comparison because the crime of manslaughter can be committed in so many different circumstances.

57 The applicant argues that the actions which caused the death of Ms Wilby were done at her request and no violence was perpetrated by him against her. He did not foresee her death, although it is accepted that a reasonable person would have foreseen the death. She died of a drug overdose. As the Judge noted:

"... it is clear that the accused knew what he was doing, that he was assisting in the injection of a dangerous substance of some sort into the deceased's arm."

58 The applicant accepted the Crown's statement of facts which included the following:

"It was clear at that stage, must have been clear at least to the offender, that by that stage Wilby had already taken drugs ..."

The stage referred to is the time the assistance was given.

59 It may be accepted that the applicant's antecedents disclose a difficult childhood of abuse and that this is a matter of considerable mitigation.

60 Other factors are relevant, including the issue of general deterrence. Little might be done to prevent a person injecting themselves with dangerous substances. However, a stand must be taken to deter others from assisting with an injection in circumstances where the assistance is required because the already intoxicated state prevents the person

injecting themselves. In this condition the person being assisted has lost the ability to make rational choices.

61 Furthermore, the deliberate and, for a considerable time, successful attempts to conceal the crime are circumstances which require punishment.

62 This was a difficult sentencing exercise. The applicant's behaviour following the death was reprehensible and caused great anguish to the relatives and friends of the deceased for more than three years.

63 This aggravating circumstance, however, cannot overwhelm the other objective features of the crime which, though serious, are not extreme.

64 The Judge did not mention the early plea of guilty, although I do not accept that he overlooked its significance. I do consider though the resulting sentence falls into appellable error in two respects. It pays too much regard to the aggravating circumstances and too little regard to the matters of mitigation, including the applicant's background. In the result, the sentence is manifestly excessive.

65 I would grant leave and allow the appeal. The provisions of the Sentencing Legislation Amendment and Repeal Act 2003 now apply and compel a sentence which would not increase time spent in custody if the applicant had been sentenced to imprisonment prior to 1 September 2003.

66 I would re-sentence the applicant to a term of 5 years imprisonment with a parole eligibility order in the manner set out by Murray ACJ.

67 HASLUCK J: I agree with the reasons for judgment and conclusion of Murray ACJ. There is nothing I wish to add.