//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2014] WASCA 74
Court of Appeal (WA)
2014-04-10
Pullin JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : THE STATE OF WESTERN AUSTRALIA -v- CAMUS [2014] WASCA 74
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Citation : THE STATE OF WESTERN AUSTRALIA v CAMUS [2013] WASCSR 97
Criminal law - State appeal against sentence - Respondent charged with murder and convicted after trial of manslaughter - Sentence of 4 years 6 months' immediate imprisonment - Manifest inadequacy
Armstrong v The State of Western Australia [2013] WASCA 290
Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323
Bell v The State of Western Australia [2003] WASCA 216
Colledge v The State of Western Australia [2007] WASCA 211
Dodd v The State of Western Australia [2013] WASCA 80
Haworth v The Queen [2000] WASCA 175
Heaton v The State of Western Australia [2013] WASCA 207
Hishmeh v The State of Western Australia [2012] WASCA 183
Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Luff v The State of Western Australia [2008] WASCA 89
Macaree v The State of Western Australia [2011] WASCA 207
McNamara v The State of Western Australia [2013] WASCA 63
Nguyen v The Queen [2001] WASCA 176
Petrelis v The State of Western Australia [2012] WASCA 235
Pryor v The Queen (Unreported, WASCA, Library No 950676, 12 December 1995)
R v Churchill [2000] WASCA 230
R v Gordon [2000] WASCA 401
R v McDonald [2000] WASCA 336
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
The State of Western Australia v Camus [2013] WASCR 97
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
The State of Western Australia v Walley [2008] WASCA 12
Wicks v The Queen (1989) 3 WAR 372
1 PULLIN JA: This is a State appeal against sentence. The appellant was sentenced on 29 May 2013 to 4 years and 6 months' imprisonment for the offence of manslaughter of Kristopher Eric Dixon ('Mr Dixon') on 25 December 2011 at Broome after a trial before the Chief Justice and a jury.
2 Sentences for manslaughter can vary widely. In serious cases, the culpability of the offender may be measured in the context of a long period of violence by an offender of bad antecedents towards the passive victim of the violence and such an offence will attract a substantial sentence. See, for example, The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137.
3 This case involved a few seconds of culpable conduct by a youthful offender of good antecedents. These few seconds resulted in the death of a victim who had, just before the offence, engaged in an extended bout of violent conduct involving assaults on four other people, including a serious assault on one of the respondent's friends, and then engaged in threatening and menacing conduct towards the respondent moments before the offence occurred.
4 The background and circumstances were as follows.
5 The appellant was 22 years old at the time of the offence. He grew up in a small village in France near Nantes and qualified as an accountant. He has no prior criminal record. He came to Australia to learn English and to travel (sentencing ts 1699).
6 On 24 December 2011, the respondent found himself living in a flat in Broome with two young friends who were also French nationals, Mr Simon Diguet and Mr Yoann Pineau. On that day, they were at the flat celebrating the holiday season. They were drinking alcohol during the day and evening. Early in the hours of Christmas morning, the three young men travelled by taxi intending to go into the Bungalow Bar. However, due to the level of their intoxication they were refused entry. The Chief Justice did not find that they were behaving aggressively or otherwise causing trouble.
7 At the same time also in Broome was Mr Dixon. He was visiting Broome with his girlfriend, Ms Teagane Ramirez, and his cousin, Ms Samantha Thurlow. He had also been drinking heavily at his house and then in the Oasis Bar and the Bungalow Bar. Mr Dixon became involved in an altercation within the Bungalow Bar. During that altercation, he assaulted a Mr Reuben. He was then ejected from the Bungalow Bar. He had to be physically removed by bouncers (appeal ts 13 - 14). This incident was recorded on CCTV, which shows Mr Dixon struggling violently before he was thrown out. Outside the Bungalow Bar, he took off his shirt and shaped up in aggressive fashion. The two girls with him tried to lead him away.
8 Soon after, the respondent's friend, Mr Diguet, had the misfortune to pass Mr Dixon. Mr Dixon assaulted him for no apparent reason and then walked on prompted by Ms Ramirez. Ms Thurlow remained at the scene and was involved in an oral remonstration with Mr Diguet and Mr Pineau. The respondent was not involved.
9 Mr Dixon witnessed the interaction between Ms Thurlow and the other two and ran back along the boardwalk. He assaulted Mr Diguet again. He also assaulted Mr Pineau. Both fell to the ground. Mr Pineau was knocked unconscious by the blow. The assault by Mr Dixon on Mr Pineau caused serious injury. Just how serious, should not be overlooked. The injuries included, a trifocal fracture of Mr Pineau's mandible with a right capital fracture; a left subcondylar fracture with anterior dislocation of the condyle associated with a fracture between T3L and T4L; a slightly displaced fracture of the nasal bones with impact to the left awning causing respiratory discomfort; a fracture of the right maxillo zygomatic arch; a deep wound below the chin; a fracture of two teeth and mobility of a third tooth. The trauma was subsequently assessed by a doctor as requiring surgical treatment under general anaesthesia.
10 In short, in the presence of the respondent, the victim committed an assault on Mr Diguet and then assaulted Mr Pineau causing grievous injury. The respondent, having witnessed the assault on his two friends, jumped over the balustrade of the boardwalk and, probably due to his intoxication, fell to the ground next to Mr Diguet. Mr Dixon, Ms Ramirez and Ms Thurlow walked away towards the Roebuck Bay Hotel.
11 The respondent and Mr Diguet got up and moved off in the general direction that Mr Dixon had taken. Mr Pineau was still lying on the ground unconscious. At the end of the boardwalk, the respondent and Mr Diguet veered right into an area of inset which lay between the Bungalow Bar and the hotel and where a closed gate which allowed trucks into the Roebuck Bay Hotel was located. Their movements towards the inset were captured by CCTV footage. As they veered right, they moved out of the line of sight of the CCTV, although some of the incident was captured, with not much clarity, on video footage on a mobile telephone operated by an independent witness. Mr Dixon is then seen to wrap his shirt around his fist and then move quickly into the inset area.
12 It is appropriate to mention that, at this moment, the respondent had a knife in his possession. It was not his knife. It had been given to Mr Diguet earlier in the evening by Mr Pineau as a Christmas gift. The respondent found himself in possession of the knife in uncertain circumstances. The Chief Justice said that may have happened because for some reason Mr Diguet had lost his trousers earlier in the evening. That Mr Diguet had lost his trousers is recorded on the CCTV footage. He is seen roaming about in his underpants.
13 In any event, the Chief Justice, in effect, found that the respondent did not go into town with the intention of using the knife as a weapon, but that for 'some reason or another, [he] found [himself] in possession of it': The State of Western Australia v Camus [2013] WASCR 97 [5].
14 The Chief Justice then said that at about the time when the respondent and Mr Diguet went to the end of the boardwalk and veered right, that:
It seems from the CCTV footage that as you did so, you may well have reached for the knife in your back pocket. I make that finding because the events that took place near the gateway took place extremely quickly, and the critical events cannot have occupied more than three and a half seconds. It seems unlikely that there would have been time to retrieve the knife from the back pocket, unlock the blade and use it within that time span.
...
At all events, after you moved to the area near the gateway, it is clear that Mr Dixon moved into that area quickly and in a threatening and menacing manner. He may well have assaulted or at least tried to assault you. That was the point at which you stabbed him three times [6] - [7].
15 The reference to 3 1/2 seconds is a reference to the time measured from the mobile phone footage, being the time when the respondent and Mr Dixon were in the inset area together before Mr Dixon re-emerged. The time between when the respondent was seen reaching for his back pocket and when he disappeared into the inset area, was also measured in seconds. The assumption of both counsel is that, when the respondent was reaching for his back pocket, he was reaching for the folded knife (appeal ts 34). The reference to Mr Dixon's threatening and menacing manner must be considered in light of the fact that he had just, moments before, approached Mr Pineau in similar fashion and inflicted on him grievous injury.
16 Mr Dixon received one stab wound above the nipple on the left chest. This penetrated approximately 10 cms, puncturing the ventricle chamber of the heart and the lungs. The Chief Justice accepted evidence that only a mild amount of force would have been required to make the wound having regard to the fact that the knife used was sharp and pointed: Camus [8]. Another stab wound was administered under the right armpit of Mr Dixon, and another was administered to the right abdomen. Neither of the latter two wounds appeared to have caused serious injury. Death was the inevitable consequence of the wound to the heart and lungs and would have occurred in a very short period. The Chief Justice said:
These events all happened very quickly, something in the order of three and half seconds for the critical events [9].
17 Mr Dixon then walked away from the area where the stabbing occurred. He was then set upon by others. Counsel for the State informed the court that these others were associated with Mr Reuben, who was the person assaulted by Mr Dixon in the Bungalow Bar (appeal ts 14). This group set to in a violent assault upon Mr Dixon, apparently not realising that he was fatally wounded. They punched and kicked him while he was on the ground.
18 The respondent then walked back towards where Mr Pineau was lying on the ground, but then he turned and walked away along the boardwalk and was later seen on other CCTV footage running away from the scene.
19 The respondent was found the next morning at about 5.30 am by an ambulance worker. He was asleep on a driveway near the hospital. He was missing his trousers and although they were only about one metre away from where he was sleeping, he did not find them before he got up and walked home, even though they had $150 and perhaps his camera in them: Camus [10].
20 From this and from other evidence, the Chief Justice said that he formed the view that the respondent was very intoxicated that evening and had no memory of the events of the evening because of his intoxication: Camus [11]. That was relevant to the assessment of the extent of the respondent's cooperation with the police. He made no attempt to leave Broome and went to work as normal on 27 December 2011. He had made no attempt to cover his tracks and he was as cooperative as could be with the police when they interviewed him on the evening of 27 December 2011 and in the hours of the morning of 28 December 2011, and again on 2 January 2012. The extent of his cooperation was inevitably limited by the lack of his recollection of the events of the evening: Camus [12].
21 Both counsel accepted that the evidence at trial about what happened in the inset area was entirely unreliable. The Chief Justice was not able to make any findings about what occurred there, other than that the stabbing occurred in the area in circumstances where Mr Dixon had moved into the area quickly and in a threatening and menacing manner.
22 The Chief Justice said that there were two alternative pathways open to the jury to arrive at a verdict of manslaughter. One was unlawful killing without either of the intentions that are capable of comprising an element of the offence of murder due to intoxication, and the other pathway was the excessive use of force in self-defence. The Chief Justice said that the most likely path adopted by the jury was the lack of intent: Camus [13]. His Honour said that it was not necessary for him to make a finding between the two pathways because it did not appear to him that such a finding would materially alter his assessment of culpability. As mentioned, the Chief Justice found that the respondent was 'very intoxicated': Camus [14].
23 His Honour found that there was no planning or premeditation: Camus [15]. His Honour said that mitigating circumstances included the fact that the respondent was 'plainly in a threatening situation in the gateway' at the time the knife was used: Camus [17]. This is consistent with his Honour's view that the jury might have reasoned that the respondent had to act in self-defence against an assault by Mr Dixon, but in doing so exceeded reasonable force in so acting. The respondent's youth was also recorded as a mitigating factor along with the fact that he had no prior record and his Honour found that he was a person of good character, which had been attested to by a number of witnesses. The Chief Justice noted that there was no evidence of remorse on the part of the respondent, but that had to be assessed in the context that the respondent had no recollection of what had actually happened that night. His Honour correctly observed that intoxication was not a point of mitigation because it was self-induced: Camus [17].
24 His Honour also noted that the respondent spoke limited English and that as a consequence, custody would be more onerous upon him than it would be upon a native resident of Australia, aggravated by the fact that geography would necessary limit the visits he would be like to receive from family members. As a result, the Chief Justice accepted that the time the respondent served would be harder than would be the case if served by an English-speaking Australian resident. The Chief Justice noted that the respondent had good prospects of rehabilitation and said that the sentence would be imposed on the basis that it was inevitable that the respondent would be returned to France following completion of the sentence: Camus [22].
25 His Honour correctly observed that facts and circumstances giving rise to the offence of manslaughter can vary widely and that there is no tariff or generally accepted range established by previous cases, almost all of which depend entirely upon the particular facts and circumstances of the case. His Honour took into account the fact that cases indicated that sentences for manslaughter had been trending upwards over the last decade, consistent with community expectations relating to the sanctity and value of human life: Camus [24].
26 His Honour ruled out a suspended sentence on the basis of the need for general deterrence. His Honour took into account 15 victim impact statements from members of the family of Mr Dixon. The respondent was then sentenced to 4 years six months' imprisonment, backdated to 27 December 2011, and was made eligible for parole: Camus [31].
27 The single ground of appeal is that the sentencing judge erred in law by imposing a sentence that was manifestly inadequate. Leave to appeal was granted by Mazza JA on 23 August 2013.
28 The general principles governing this type of appeal have been frequently stated. However, for the sake of completeness, I will repeat them.
29 A ground of appeal alleging that a sentence is manifestly inadequate is an assertion of implied error. In determining whether a sentence is manifestly inadequate, it is necessary to examine it by taking into account the maximum sentence prescribed for the offence, the standards of sentencing which are customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness for offences of that kind and the personal circumstances of the offender.
30 The maximum penalty for manslaughter as it stood at the time the offence was committed was 20 years' imprisonment. When considering the standards of sentencing customarily observed in relation to manslaughter it is necessary to have regard to any detectible range of comparable cases. However, each case will turn on its own facts and circumstances. The range of sentences revealed by examining comparable cases can provide only general guidance. A sentencing range is one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate or manifestly excessive. The mere fact that a sentence is outside the range of other sentences imposed for a similar offence does not necessarily establish that there was an error in the exercise of a sentencing discretion in the particular case.
31 The State's submissions, after referring to the circumstances and the findings of the trial judge, then, under a heading 'Customary Standards of Sentencing', refer to a number of other cases where sentences have been imposed for manslaughter. The State submits that 'uniformity of sentencing is a factor of great importance in maintaining confidence in the administration of justice' and that 'inadequate sentences, as much as excessive sentences, are likely to undermine public confidence in the ability of the courts to undertake their role in deterring the commission of crimes'. However, having made that submission, the State acknowledges, as it must, that the sentences imposed in other manslaughter cases do not necessarily establish the range governing the exercise of a sound sentencing discretion. Even where some kind of 'tariff' can be detected, comparable cases are a guide and their limits are flexible not rigid: Petrelis v The State of Western Australia [2012] WASCA 235 [63]. Although sentences for manslaughter must reflect the value which Parliament has placed upon human life, it is well recognised that there can be no sentencing tariff for manslaughter because of the great variation in the facts and circumstances of such offending: The State of Western Australia v Walley [2008] WASCA 12 [32]. Each case must be decided on its own facts: Wicks v The Queen (1989) 3 WAR 372, 379 - 380; Colledge v The State of Western Australia [2007] WASCA 211 [17]; Dodd v The State of Western Australia [2013] WASCA 80 [31]. The great variation and the reason for the variation in sentences for manslaughter was commented on by Wheeler JA in Colledge at [18]. In Munda, Buss JA reviewed a significant number of manslaughter cases which amply demonstrate the considerable variation in circumstances and sentences which are imposed in manslaughter cases.
32 If this court is to conclude that the sentence is manifestly inadequate, it has to be shown that some 'substantial' wrong has occurred in fixing the sentence. What has to be shown is that the sentence is 'so wrong' that there must have been some misapplication of principle in fixing it: Barbaro v The Queen [2014] HCA 2 [27]. What an appellate court must always avoid is to allow an appeal and resentence in circumstances which amount to no more that the appellate court imposing the sentence it would have imposed if it had been the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
33 It was suggested during the hearing of this appeal that two cases, namely Armstrong v The State of Western Australia [2013] WASCA 290 and The State of Western Australia v Auckram [2013] WASCA 256, indicated that the sentencing judge's discretion had miscarried, meaning that a 'substantial' wrong had occurred in fixing the sentence. Armstrong was not relied on by the State until a member of the court referred to it. Armstrong was a case where an error had been made by the sentencing judge by having regard to the wrong maximum sentence, which led the Court of Appeal into the position of having to sentence appropriately having regard to the correct maximum sentence. A sentence of 8 years' imprisonment was imposed by the Court of Appeal.
34 Armstrong was a case of stabbing in circumstances where the appellant and the victim had become involved in an argument which resulted in escalating violence between them. A chair was thrown; an argument developed; the appellant and the victim may have pushed and shoved; the victim then came at the appellant with a knife in his hand. The victim posed a threat to the appellant. They struggled over the knife. The appellant turned the knife back onto the victim and it penetrated his lower stomach. The sentencing judge accepted that the appellant was not criminally responsible for the first wound. However, the appellant then took the knife and stabbed the victim another three times. The wounds were inflicted 'perhaps in a frenzy of anger or incoherence or lack of control': Armstrong [10].
35 Senior counsel acting on behalf of the appellant in Armstrong conceded that the offending was at the high end of the scale of seriousness of the offence of manslaughter. Although the Court of Appeal said that the appellant was 'otherwise of good character' (Armstrong [30]), he had in fact been convicted about three years before the offence in Armstrong of the offence of assault occasioning bodily harm. The appellant pleaded guilty to the manslaughter charge: Armstrong [3]. The finding that the appellant participated in an escalating violent argument and then engaged in a frenzy of anger and had previously been convicted of a crime of violence only three years before, distinguish that case from this.
36 Auckram was also relied on by the appellant. The respondent to that State appeal was aged 52 years at the time of the offence. The victim, who was the respondent's step-son, was 41 years of age. The victim had, before the offence, threatened harm, including to kill the respondent and Mrs Auckram (the victim's mother and the respondent's wife). An argument developed between the victim and the respondent, who was keen to set some ground rules for the victim living in the respondent's home. The victim threatened that he would 'slaughter the lot of you', but he had no weapon. The respondent then left the lounge area and went to his bedroom where he kept a hunting rifle and ammunition. The respondent, armed with the rifle, went to look for the victim. He found the victim with a coffee mug in his hand, which the respondent thought might be a weapon of some kind. The respondent then fired shots at the victim; four bullets were fired within a very short period. The respondent did not attempt any first aid or other measures suggested by the police operator when he telephoned 000: Auckram [21] - [31]. The Court of Appeal allowed the State to appeal against the sentence and imposed a term of 6 years' imprisonment. Various mitigating factors were taken into account, including an offer to plead guilty (which was of limited weight for reasons explained in the judgment). Remorse was shown by the appellant and he was ill in a way that made imprisonment more arduous for him than would be usual: Auckram [153], [158] - [159].
37 Neither Armstrong nor Auckram provides any substantial guidance to the outcome in this case.
38 To show the significant differences in outcome which arise in manslaughter cases, the case of Walley may also be referred to. In that case, the victim and the offender were, as is not uncommon in manslaughter cases, both affected by alcohol. The offender made a determined effort to use a knife against the victim. When she first obtained knives, they were taken from her. She went inside and obtained another knife and then stabbed the victim causing his death. Following a successful appeal by the State, a sentence of 3 years' imprisonment was imposed: Walley [35]. In Walley, the offender pleaded guilty, suggesting that a sentence after trial would have been about 4 years and 3 months' imprisonment, plus an adjustment above that because the concept of 'double jeopardy' in State appeals applied at that time.
39 The determination of the offender in Walley to use the knife is to be contrasted with the brief interlude in this case where the knife was used. In this case, the offender was of good character without any offence having been committed in the past. Youth was of considerable significance in this case and made it open to the sentencing judge to impose the sentence he did.
40 The State acknowledges this and mentions by way of example Munda where McLure P (Mazza JA agreeing) observed that sentences of immediate imprisonment for manslaughter in cases where the 20 year maximum penalty applied and following a plea of guilty, ranged between 2 years 4 months' and 12 years' imprisonment: Munda [61]. Assuming those sentences attracted an average discount of 25% for a plea of guilty, that range suggests a range of about 3 years 2 months' to 16 years' imprisonment for sentences after trial.
41 The State also prepared and included in the appeal book a chart of other cases involving manslaughter, along with a summary of the circumstances and the sentence imposed in each case. Those cases were: Dodd; McNamara v The State of Western Australia [2013] WASCA 63; Hishmeh v The State of Western Australia [2012] WASCA 183; Munda; Macaree v The State of Western Australia [2011] WASCA 207; Luff v The State of Western Australia [2008] WASCA 89; Walley; Colledge; Bell v The State of Western Australia [2003] WASCA 216; Nguyen v The Queen [2001] WASCA 176; R v Gordon [2000] WASCA 401; R v McDonald [2000] WASCA 336; R v Churchill [2000] WASCA 230; Haworth v The Queen [2000] WASCA 175; Pryor v The Queen (Unreported, WASCA, Library No 950676, 12 December 1995). However, the State only specifically referred to Macaree and Walley in its written submissions, probably because the circumstances of the offending in the other cases were significantly more serious than the respondent's offending behaviour in this case. Macaree involved an entirely different set of facts and involved a 'high degree of criminality': Macaree [146]. The different circumstances in Macaree demonstrate why the use of other cases to discern a sound discretionary range for sentences for the offence of manslaughter in a particular case is fraught with difficulty.
42 The State submits that Walley should not be regarded as a guide because of the principle of double jeopardy which applied at that time. That is so, but even allowing an increase in sentence that would have occurred if the double jeopardy principle had not applied, it still does not suggest that the sentence in this case was 'so wrong' that there must have been some misapplication of principle in fixing the sentence. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected: Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 [26].
43 It is true that this court has said that over the last decade or so that penalties imposed for the offence of manslaughter have tended to increase: Hishmeh [70] (Martin CJ, Buss and Mazza JJA agreeing), but it is impossible to suggest by reference to any of the authorities referred to that there is some range of comparable sentences for manslaughter into which this offence must fall. Reference to the cases of Armstrong and Auckram does not establish a range of sentences which dictate the outcome in this case. Nor does the fact that Armstrong involved manslaughter with a knife.
44 The sentence in Walley (even assuming it would have been higher if double jeopardy did not apply) would suggest that the sentence in this case was entirely appropriate because in Walley the offender's attempt to use the knife was deliberate and persistent. The offender had obtained three knives, had them taken from her and, despite that intervention, obtained another knife and used it to kill the victim.
45 To draw all this together, the sentence imposed by the Chief Justice in this case was entirely appropriate, did not manifest error and did not involve the imposition of a sentence that was 'so wrong' that there must have been some misapplication of principle.
46 There are 13 reasons for that conclusion. They are as follows. First, the respondent was confronted with the victim acting in a threatening and aggressive manner. Second, the respondent was youthful. Third, the respondent had no previous record. Fourth, he was of good character. Fifth, he had not armed himself with the knife intending it to be used as a weapon, but had ended up with the knife in his possession by chance. Sixth, the use of the knife was not premeditated. Seventh, there was no evidence referred to which suggested that the respondent had earlier displayed any antagonism towards the victim. Eighth, the respondent's culpable conduct lasted only a few seconds. Ninth, the Chief Justice's findings left open the possibility that the respondent had acted in self-defence, but in the heat of the moment exceeded what was reasonable force to repel the victim's aggression. Tenth, imprisonment for this offender would be much more difficult because of his limited grasp of the English language and because of his isolation from family and friends who might not be able to visit him in prison. Eleventh, the respondent did not engage in a frenzied attack on the victim as the offender did in Armstrong. Instead, only mild force was employed to inflict the single wound which caused death. Twelfth, the Chief Justice found that there were good prospects of rehabilitation. Thirteenth, there is no range of
comparable cases which demand a higher sentence in order to achieve uniformity in sentencing.
47 In those circumstances, for the State to assert that the sentence was manifestly inadequate and to urge the court to consequently impose a different sentence was to urge the court to do what the High Court in Lowndes said was impermissible; that is, to impose a sentence which this court would have imposed if it had been sentencing at first instance.
48 The Chief Justice did not err and the appeal should be dismissed.
49 BUSS JA: This is a State appeal against sentence.
50 The respondent was charged with one count in an indictment which alleged that on 25 December 2011, at Broome, he murdered Kristopher Eric Dixon, contrary to s 279 of the Criminal Code (WA) (the Code).
51 After a trial in the Supreme Court before Martin CJ and a jury, the respondent was acquitted of murder and convicted of the alternative offence of manslaughter, contrary to s 280 of the Code.
52 On 29 May 2013, the trial judge sentenced the respondent to 4 years 6 months' immediate imprisonment. The sentence was backdated to 27 December 2011, when the respondent was taken into custody for the offence. A parole eligibility order was made.
53 I have read the proposed reasons of Pullin JA. I have a different view of the case. I would allow the appeal, set aside the trial judge's sentencing decision and resentence the respondent.
An overview of the facts and circumstances of the offending
54 At the time of the offence the respondent, who is a French national, was living in Broome with two other French nationals, Simon Diguet and Yoann Pineau.
55 On 24 December 2011, the respondent, Mr Diguet and Mr Pineau were celebrating Christmas eve at their home. They were drinking heavily.
56 In the early hours of 25 December 2011, the respondent, Mr Diguet and Mr Pineau travelled by taxi to the Bungalow Bar. They were twice refused entry because of their intoxication. After being refused entry to
the Bungalow Bar, the respondent attempted unsuccessfully to climb a gate nearby. He tore his jeans in the course of the attempt. The respondent, Mr Diguet and Mr Pineau then gathered in the vicinity of the boardwalk on Dampier Terrace, near the Oasis Bar.
57 On 24 December 2011, the victim was visiting Broome with his girlfriend, Teagan Ramirez, and her cousin, Samantha Thurlow. During the evening they drank at home. Later, they continued drinking at the Oasis Bar and the Bungalow Bar.
58 In the early hours of 25 December 2011, the victim was involved in a fight at the Bungalow Bar. He struck another patron and a crowd control officer (appeal ts 13 - 14). Security staff ejected the victim. The victim was angry. He removed his shirt and argued with the security staff. Ms Ramirez and Ms Thurlow managed to persuade him to leave the vicinity of the Bungalow Bar and move towards the Oasis Bar. The victim remained barechested thereafter.
59 The respondent's group and the victim's group came into contact on the boardwalk near the Pearler's Bar. The victim struck Mr Diguet. The victim, at the insistence of Ms Ramirez, then left the area. Ms Thurlow remained at the scene. Ms Thurlow, Mr Diguet and Mr Pineau remonstrated with each other. At this stage Mr Diguet was wearing underpants and no trousers. Part of the altercation between Ms Thurlow, Mr Diguet and Mr Pineau was captured on CCTV footage.
60 The victim saw the altercation and ran along the boardwalk to the group. He viciously assaulted both Mr Diguet and Mr Pineau, knocking them to the ground. Mr Pineau was seriously injured. The respondent, who was nearby, jumped over the balustrade of the boardwalk and fell to the ground next to Mr Diguet. Meanwhile, the victim, together with Ms Ramirez and Ms Thurlow, walked away from the respondent, Mr Diguet and Mr Pineau, along the boardwalk and towards the Roebuck Bay Hotel.
61 The respondent and Mr Diguet got up and walked along the boardwalk. They followed the path taken by the victim, Ms Ramirez and Ms Thurlow. The respondent and Mr Diguet left Mr Pineau unconscious on the ground. The movement of the victim, Ms Ramirez and Ms Thurlow and, shortly after, the movement of the respondent and Mr Diguet, along the boardwalk was captured on CCTV footage.
62 As the respondent and Mr Diguet followed the path taken by the victim, Ms Ramirez and Ms Thurlow, Mr Diguet had nothing in his hands. However, the respondent had a knife. The CCTV footage indicates that the respondent removed the knife from his back pocket as he commenced walking along the boardwalk in the direction taken by the victim, Ms Ramirez and Ms Thurlow. The knife was new. It had been given by Mr Pineau to Mr Diguet earlier in the evening as a Christmas gift. The knife was foldable with one blade that fitted inside the handle. The length of the blade was 9 ½ cm. Two hands were required to open the blade when it was folded (appeal ts 3 - 4).
63 At the end of the boardwalk, the respondent turned right into a recessed area near a closed gate (referred to during the trial as the gateway) adjacent to the Roebuck Bay Hotel. The gateway was not covered by the CCTV camera. Mr Diguet stopped at the end of the boardwalk. The victim then moved quickly into the gateway. Mr Diguet followed him.
64 During an interval of about 3 ½ seconds, while the victim, the respondent and Mr Diguet were in the gateway, the respondent stabbed the victim three times in the upper torso. The victim's entry into and exit from the gateway was captured on mobile telephone camera footage, but the stabbing and any other interaction between the victim and the respondent in the gateway was not recorded.
65 One stab wound was made above the nipple on the left side of the victim's chest. It penetrated to a depth of about 10 cm. The ventricle chamber of the heart and the lungs was punctured. Death within a very short period was the inevitable consequence of this wound. Another stab wound was made under the victim's right armpit. The third stab wound was made to the victim's upper abdomen. Neither of these other wounds was serious.
66 After being stabbed, the victim left the gateway. He was then set upon and assaulted by a group of people unconnected with the respondent and his friends. The group was associated with the patron who had been struck by the victim at the Bungalow Bar earlier that night. Their attack did not accelerate the victim's death. He had already been fatally wounded by the respondent.
67 The respondent departed the scene with haste while the victim was being attacked by the other group. He left without attempting to assist Mr Pineau or speak to Mr Diguet. The respondent's rapid departure was captured on CCTV footage.
68 At about 5.30 am on 25 December 2011, an ambulance worker found the respondent asleep on a driveway near the Broome Hospital. The respondent's trousers were missing. He did not endeavour to find them. He simply got up and walked home. The respondent attended work, as normal, two days later. He was then interviewed by police.
69 The respondent elected not to give evidence on oath or affirmation at the trial.
70 The trial judge made findings and comments in his sentencing remarks as follows:
(a) After the victim seriously assaulted Mr Diguet and Mr Pineau:
[The respondent] and Mr Diguet then followed [the victim], and it seems clear that [the respondent] had a knife at that point because the jury's verdict is only consistent with a knife being used in the area of the gateway' [4].
(b) The respondent may well have acquired the knife 'because, for some reason, Mr Diguet had lost his trousers earlier in the evening', and 'it may well be that the knife was in those trousers, it having been a gift to Mr Diguet from Mr Pineau' [5].
(c) His Honour did not accept that the respondent 'went into town that evening with the intention of using the knife as a weapon', but his Honour said that 'for some reason or another, [the respondent] found [himself] in possession of it' [5].
(d) As the respondent and Mr Diguet followed the victim, '[i]t seems from the CCTV footage that ... you may well have reached for the knife in your back pocket' [6]. His Honour said he '[made] that finding because the events that took place near the gateway took place extremely quickly, and the critical events cannot have occupied more than 3 ½ seconds. It seems unlikely that there would have been time to retrieve the knife from the back pocket, unlock the blade and use it within that time span' [6].
(e) After the respondent moved to the area near the gateway, 'it is clear that [the victim] moved into that area quickly and in a threatening and menacing manner. He may well have assaulted or at least tried to assault you. That was the point at which you stabbed him three times' [7].
(f) Only a mild amount of force would have been required to make the fatal wound, 'having regard to the fact that the knife that was used was sharp and pointed' [8].
(g) The 'critical events' happened 'in the order of 3 ½ seconds' and the 'material events probably happened in a matter of ... a few minutes only' [9].
(h) The respondent was 'very intoxicated that evening' and had 'no memory of the events of the evening' [11].
(i) The respondent was 'reasonably cooperative' during interviews with police on 27 and 28 December 2011 and again on 2 January 2012. The extent of his cooperation was 'inevitably limited by [his] lack of recollection of the events'. However, it was not suggested that the respondent had formally offered to resolve the charge of murder by entering a plea of guilty to manslaughter [11] - [12].
(j) The jury arrived at the verdict of manslaughter by one of two alternative pathways. One was 'unlawful killing without either of the intentions that are capable of comprising an element of the offence of murder due to [the respondent's] intoxication'. His Honour said that alternative 'seems to be the most likely pathway adopted by the jury, having regard to the evidence and to the questions ... they posed during ... their deliberations'. The other alternative was that 'the excessive use of force in self-defence could not be excluded on the evidence' [13].
(k) His Honour said it was unnecessary for him to make a finding as between the two alternative pathways because 'such a finding would [not] materially alter [his] assessment of [the respondent's] culpability' [14].
(l) His Honour rejected the proposition that there was any 'planning or premeditation' in the respondent's stabbing of the victim. His Honour made this assessment of the situation in which the respondent found himself, and his response to it:
You found yourself near the gateway in a threatening situation at a time when you had a knife and you used that knife, resulting in the death of Mr Dixon. You found yourself in that situation because you reacted badly to the assaults upon Mr Diguet and Mr Pineau. Instead of staying with your injured friend, Mr Pineau, you followed the source of danger with tragic consequences [15].
(m) His Honour said the aggravating circumstances were that '[the respondent] used a lethal weapon at a time when the victim ... was unarmed'; the respondent had 'no reason to suppose' that the victim was armed; and the respondent stabbed the victim three times in the torso which was, on any view, 'a significant level of violence' [16].
(n) His Honour said the mitigating circumstances included the fact that the respondent was 'plainly in a threatening situation in the gateway' when he used the knife; the respondent's youth (he was 22 at the time of the offending and 24 when sentenced); and the absence of any prior criminal record [17].
(o) There was no evidence of any remorse on the respondent's part but, in his Honour's view, that had to be assessed in the context of the respondent's absence of recollection of the events on the night in question [17].
(p) The victim's immediate and large extended family were devastated by his loss [18] - [20].
(q) The respondent's conduct on the evening in question 'seems to be completely out of character, no doubt as a consequence of your excessive intoxication that evening and the threatening circumstances in which you found yourself' [21]. His Honour added:
I accept that you will receive the support of your family and friends upon your return to France and have no reason to suppose that you are likely to reoffend unless and hopefully not but perhaps, circumstances of the kind in which you found yourself re-emerge [21].
(r) The respondent speaks limited English and his family resides in France. The respondent had been held in custody since 27 December 2011. His imprisonment had been and would be more onerous than for an English speaking Australian resident [22].
(s) The respondent had good prospects of rehabilitation [22].
71 His Honour initially said that the respondent's 'intoxication was self-induced, and as a result, its mitigatory effect is limited' [14]. A little later, his Honour said '[i]ntoxication is not mitigatory in this context because it was self-induced' [17].
The CCTV footage and the mobile telephone camera footage
72 At the hearing of the appeal, counsel for the respondent and counsel for the State made extensive reference to and relied on various parts of the CCTV footage and the mobile telephone camera footage (appeal ts 4 - 17, 19, 28, 30, 32 - 43, 53 - 54). I have watched the footage on several occasions. A number of specific and detailed observations, consistent with the trial judge's findings of fact, may be made about the events depicted in the images:
(a) After the victim assaulted Mr Diguet on the first occasion, the victim walked along the boardwalk towards the Roebuck Bay Hotel. The victim stopped about 30 m from the point where he had assaulted Mr Diguet.
(b) An interval of about 1 minute 5 seconds passed between the victim walking away from the point where he assaulted Mr Diguet on the first occasion and the victim returning to that point and attacking both Mr Diguet and Mr Pineau.
(c) About 20 seconds after his return, during which period he attacked both Mr Diguet and Mr Pineau, the victim again walked along the boardwalk towards the Roebuck Bay Hotel. He again stopped about 30 m from the point where he had attacked both Mr Diguet and Mr Pineau.
(d) About 13 seconds after the victim commenced leaving the point where he had attacked both Mr Diguet and Mr Pineau, the respondent and Mr Diguet commenced following the victim. At this stage the respondent took the knife from his back pocket. The respondent and Mr Diguet walked towards the victim.
(e) Despite their intoxication, the respondent and Mr Diguet walked in approximately a straight line towards the gateway.
(f) The distance from the point where the respondent and Mr Diguet commenced walking along the boardwalk to the gateway is about 20 m.
(g) The respondent walked the distance of about 20 m along the boardwalk to the gateway in about 11 seconds.
(h) On arrival at the gateway, the respondent turned right from the end of the boardwalk and moved into the adjacent gateway. Mr Diguet stopped at the end of the boardwalk. The victim strode into the gateway about 4 seconds after the respondent turned into it. Mr Diguet entered the gateway about 1 second after the victim.
(i) The victim left the gateway about 3 ½ seconds after entering it. The respondent left a short time later.
(j) The respondent walked a few steps back along the boardwalk. He then turned and ran in the opposite direction, past the gateway and away from the place where the victim was being set upon by the unrelated group.
(k) The victim was barechested for the whole of the period. He used a T-shirt he was carrying to wipe perspiration from his face and neck. He held the T-shirt and wrapped it around his right hand while he was using that hand to attack both Mr Diguet and Mr Pineau. At other times he merely held the T-shirt without it being wrapped around either hand. How the victim was holding the T-shirt when he entered the gateway cannot be discerned from the CCTV footage or the mobile telephone camera footage.
73 The sole ground of appeal alleges that the trial judge erred in law by imposing a sentence that was manifestly inadequate.
74 On 23 August 2013, Mazza JA granted leave to appeal on that ground.
75 It is necessary, in determining whether a sentence is manifestly inadequate, 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.
76 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.
77 A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. 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.
78 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.
79 All of the propositions I have stated are well-established by the case law.
80 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 [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
81 Recently, in Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323, 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)
82 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. The maximum penalty in the present case is 20 years' imprisonment.
83 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).
84 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].
85 So, manslaughter is, of its nature, an offence where the facts and circumstances of each case will usually differ significantly. See The State of Western Australia v Walley [2008] WASCA 12 [32] (Wheeler & Miller JJA). In Walley, Wheeler and Miller JJA pointed out that comparisons with sentences imposed at trial, and even in the case of R v Churchill [2000] WASCA 230 (after appeal), are seldom helpful in manslaughter cases [32].
86 Sentences for manslaughter should, however, reflect the value which Parliament has placed on human life. See Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81 [54] (Miller JA, Owen & Wheeler JJA agreeing); Walley [32].
87 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; The State of Western Australia v Auckram [2013] WASCA 256; Armstrong v The State of Western Australia [2013] WASCA 290.
88 By the Criminal Law and Evidence Amendment Act 2008 (WA), Parliament repealed s 41(4), as originally enacted, of the Criminal Appeals Act 2004 (WA) and inserted a new s 41(4). The new s 41(4)(b) abrogated the common law concept of double jeopardy which had previously applied to State (or Crown) appeals against sentence. The new s 41(4) commenced on 27 April 2008. See Munda [241], [253] (Buss JA).
89 In my opinion, the decisions of this court and the Court of Criminal Appeal, before the firming up of sentences for manslaughter, are of lesser utility for comparative purposes. This applies with greater force to decisions on State (or Crown) appeals before the abolition of the common law concept of double jeopardy. In Munda [109] - [122], [138] - [141], I examined several appellate decisions (notably, R v Gordon [2000] WASCA 401, Walley and Luff v The State of Western Australia [2008] WASCA 89) where sentences for manslaughter were reviewed or imposed before the firming up of sentences.
90 I have read and considered numerous prior cases involving sentencing for manslaughter including Churchill, Gordon, Colledge, Taylor, Walley, Macaree v The State of Western Australia [2011] WASCA 207, Munda, Hishmeh, McNamara, Dodd, Heaton, Auckram, Armstrong and the decisions referred to in those cases. It is unnecessary to reproduce the facts and circumstances of or the sentencing outcomes in all the prior cases. My examination of the cases confirms that diverse sentences have been imposed for manslaughter and the sentencing range reflects the diversity of the facts and circumstances in which the offence is committed. I will, however, refer in some detail to Macaree and Armstrong.
91 In Macaree, the appellant was convicted after a trial before a judge and jury of the alternative offence of manslaughter. The trial judge imposed a sentence of 6 years' imprisonment and made a parole eligibility order. This court dismissed the appellant's appeal against sentence.
92 On appeal, the facts were summarised in the joint reasons of Martin CJ, Pullin JA and Mazza J as follows:
On 13 February 2009, the appellant, Steven Bruce, and Mr Bruce's girlfriend of approximately 11 years were at licensed premises together. Mr Bruce left those premises after an argument with his girlfriend. The appellant and Mr Bruce's girlfriend stayed on and continued to drink. Later that night, the appellant went back to his home with Mr Bruce's girlfriend and had what was described at the trial as a 'one-night stand'.
The next day, Mr Bruce learnt what had occurred and became upset and angry with both his girlfriend and the appellant. Mr Bruce sent some abusive and threatening SMS messages to the appellant and spoke to him on the telephone. Over the following days, Mr Bruce's anger lingered.
On 19 February 2009, Mr Bruce decided that he was going to confront the appellant at the appellant's house. That evening Mr Bruce met with Mr Halstead and told him what had happened between the appellant and his (Mr Bruce's) girlfriend. Mr Halstead offered to drive Mr Bruce to the appellant's house.
Mr Bruce and Mr Halstead drove to the appellant's house. Neither man was armed. Mr Bruce walked by himself from the car, through a carport, to the side door of the appellant's house. Mr Halstead remained outside. Mr Bruce yelled out for the appellant and banged hard on the door. Mr Bruce then entered the house a short distance and was met by the appellant's brother, Campbell Macaree. Angry words were exchanged between the two men. Mr Bruce demanded to see the appellant. Campbell Macaree responded to the effect that the appellant was not home and he told Mr Bruce to go. In fact, the appellant was at home and was in his bedroom. He heard the yelling and recognised the voice of Mr Bruce.
The appellant had two crossbows. He was experienced in their handling and operation. He picked up one of the crossbows and loaded it with a broad head or hunting bolt. The crossbow he used was a Horton brand. It is described in the manufacturer's operations manual as being 'a very powerful weapon and can be dangerous and deadly if mishandled': Ex P 39, p 3. A State witness, Christopher Dabovich, an expert in crossbows and their use, testified that a broad head was '[d]esigned for hunting to administer shock and blood loss' in order to kill: ts 681.
After the appellant loaded the crossbow with the broad head bolt, he cocked the bow by drawing back the crossbow string until it locked into place. The crossbow had a functioning safety lever which normally moved to 'safe' automatically when the crossbow was cocked. In order to fire the weapon, the safety lever had to be pushed forward to the 'fire' position. The appellant left his bedroom and confronted Mr Bruce with the crossbow. Mr Bruce immediately fled the house and ran down the driveway and onto the street. Any threat that Mr Bruce had posed to the appellant had, by then, dissipated.
At this point, Mr Halstead was standing in the driveway close to the appellant's vehicle. He was not doing or saying anything of an aggressive or threatening nature. The appellant told Mr Halstead to leave. The appellant then shoved Mr Halstead with the crossbow. The appellant pushed Mr Halstead around and then shoved the crossbow into Mr Halstead's back, causing him to stagger. Either as the appellant shoved Mr Halstead, or immediately after, the bolt was fired. The bolt went through the centre of Mr Halstead's chest, killing him within minutes [6] - [12].
93 Their Honours said the appellant's introduction of the crossbow into a volatile situation, and his handling of the crossbow in the manner he did, with no thought as to Mr Halstead's safety, reflected 'a high degree of criminality' [146]. That was so, 'notwithstanding that the appellant acted on the spur of the moment without any intention to kill or harm Mr Halstead' [146]. The potential for harm was obvious. The 'criminality' referred to was criminal negligence. Their Honours added:
Courts must do what they can, in the interests of public protection, to prevent this kind of behaviour. General deterrence must be given substantial weight in this case [146].
94 The appellant in Macaree was aged 28 at the time of sentencing. Written references spoke highly of him. This court was satisfied that the appellant's offending was out of character.
95 Although the appellant in Macaree did not have the mitigation that a plea of guilty would have brought, he made concessions during the trial and never denied having shot Mr Halstead with the crossbow. Although he did not accept personal responsibility for his conduct at the trial, the appellant did express remorse to the Community Corrections Officer who presented an oral pre-sentence report to the trial judge. The victim impact statements from members of Mr Halstead's family set out the terrible consequences which Mr Halstead's death had occasioned.
96 Martin CJ, Pullin JA and Mazza J said Macaree was 'a very serious example of manslaughter' [151]. The sentence of 6 years' imprisonment was 'entirely appropriate, even on the basis that the appellant did not pull the trigger by a willed act' [151]. It was important 'not to lose sight of the unnecessary loss of life which resulted from the appellant's actions' [150].
97 In Armstrong, the appellant was convicted, on his early plea of guilty, of one count of manslaughter. The appellant stabbed his friend and neighbour, Adam Summersby, several times, causing his death. There was a dispute as to the circumstances in which the stabbing occurred. The sentencing judge conducted a trial of issues.
98 On appeal, the facts as found by the sentencing judge were summarised in the reasons of Mazza JA:
The appellant, Mr Summersby and their respective families were neighbours in the suburb of Maddington. The families mixed socially and the appellant regarded Mr Summersby as one of his best friends.
In the late morning of 28 January 2012, the appellant visited Mr Summersby at his home. There the two men commenced drinking. In the course of the afternoon, the appellant and Mr Summersby undertook some work at the appellant's home. Throughout the afternoon and later, substantial quantities of alcohol and some cannabis were consumed by the two men. In the evening, the appellant, Mr Summersby and their families had a barbecue together.
Sometime late on 28 January 2012 or perhaps in the early hours of the 29th, an argument developed between Mr Summersby and his partner, Ms Williams. Ms Williams returned home, followed by the appellant and Mr Summersby. There was a confrontation between the two men concerning the way Mr Summersby was verbally abusing Ms Williams. During the course of the confrontation, the victim threw a chair at the appellant.
... After Mr Summersby threw the chair at the appellant, an argument developed between the two men, who were then standing face to face in the kitchen. At this point, some pushing and shoving may have occurred. Mr Summersby grabbed a knife and came at the appellant with the knife in his hand. His Honour described Mr Summersby as being aggressive and drunk and said that he posed an obvious threat to the appellant. The appellant and Mr Summersby struggled over the knife. Eventually, the appellant turned the knife back onto the victim and it penetrated his abdomen in the area of his lower stomach. His Honour considered that the appellant was not criminally responsible for this wound. The appellant immediately grasped the knife from the victim and stabbed him another three times. The first of those subsequent wounds penetrated the ventricle of the heart and was fatal by itself. The next two penetrated the victim's chest. The forensic pathologist who conducted the post mortem identified all four wounds as being the combined cause of death. His Honour described the three wounds the appellant inflicted after obtaining the knife as being committed 'perhaps in a frenzy of anger or incoherence or lack of control' [7] - [10].
99 At the time of sentencing the appellant in Armstrong was aged 28. He had a short, relatively minor criminal history. The appellant's only offence involving violence occurred in 2010. He was convicted of assault occasioning bodily harm. The assault was committed on the driver of a motor vehicle that had run over the appellant's cat. The appellant had some difficulties in his childhood, witnessing episodes of domestic violence by his father towards his mother. He left school in year 11 and thereafter worked in various occupations. The appellant was married with three young children. He had a history of problematic alcohol and cannabis use. The author of a court-ordered psychological report said the appellant had no indications of serious mental illness. He was at a low risk of violent reoffending. A character reference spoke well of the appellant. It was accepted that he was genuinely remorseful and distressed by what he had done. There was evidence that he was suffering symptoms of trauma as a result of the offence.
100 The sentencing judge imposed a sentence of 10 years' imprisonment with eligibility for parole. This court allowed the appeal on the ground that his Honour had made an express error of law by applying the incorrect maximum penalty for the offence. His Honour had sentenced the appellant on the basis that the applicable maximum was life imprisonment and not 20 years' imprisonment.
101 This court substituted a sentence of 8 years' imprisonment. Mazza JA (Newnes JA & Hall J agreeing) said:
The offence was, without question, serious. The appellant used a knife to inflict multiple stab wounds to vulnerable parts of the victim's body. The wounds he inflicted were very likely to, as indeed they did, cause the victim's death. Any sentence must reflect the value which society places upon human life. The impact of Mr Summersby's death upon those close to him has been profound.
There are a number of mitigatory circumstances in this case. It must be acknowledged that the victim was the one who initiated the violence by picking up the knife and attacking the appellant with it. The appellant was threatened and angered by this conduct. As his Honour found, the appellant is not criminally responsible for the first stab wound that was inflicted on the victim. At that point he was clearly acting in self-defence. However, after that wound was inflicted, the appellant disarmed the victim and took possession of the knife. By then, even making due allowance for the appellant's heightened emotions, the only reasonable course of action would have been to throw the knife out of harm's way and/or retreat. Instead, the appellant became the attacker and stabbed the victim to death.
It is in the appellant's favour that he pleaded guilty at an early stage and that he is genuinely remorseful for what he has done. Pursuant to s 9AA of the Sentencing Act, the plea of guilty warranted a 25% reduction. The appellant is a man of otherwise good character who is at a low risk of reoffending in a violent way in the future. His prospects for rehabilitation are good. Although general deterrence is an important factor in this case, personal deterrence is of less weight [28] - [30].
102 In the present case, the respondent's offending was very serious. In particular:
(a) About 13 seconds after the victim commenced leaving the point where he had attacked both Mr Diguet and Mr Pineau, the respondent and Mr Diguet commenced following him.
(b) When the respondent and Mr Diguet commenced following him, the victim was about 30 m away. The respondent and Mr Diguet walked towards the victim.
(c) When the respondent and Mr Diguet commenced following the victim, the respondent removed the knife from his back pocket. Senior counsel for the respondent accepted (properly in my opinion) that the trial judge made a finding that the respondent produced the knife from his back pocket at that time (appeal ts 34).
(d) Senior counsel for the respondent conceded (properly in my opinion) that he could not suggest there was a reasonable possibility that the knife had already been unfolded when it was in the respondent's back pocket (appeal ts 34).
(e) The respondent walked a distance of about 20 m along the boardwalk to the gateway in about 11 seconds. The respondent turned right from the end of the boardwalk and moved into the adjacent gateway. Mr Diguet stopped at the end of the boardwalk. The victim strode into the gateway about 4 seconds after the respondent turned into it. Mr Diguet entered the gateway about 1 second after the victim.
(f) The victim left the gateway about 3 ½ seconds after entering it. During this period of about 3 ½ seconds the respondent stabbed the victim three times in the upper torso. The knife was foldable with one blade that fitted inside the handle. Two hands were required to open the blade when it was folded. It is unclear when the respondent unfolded the knife. However, the time required for the respondent to inflict the three stab wounds would have occupied most of the 3 ½ second period.
(g) The fatal wound on the left side of the victim's chest penetrated to a depth of about 10 cm. The length of the blade was 9 ½ cm. Although only a mild amount of force would have been required to make the fatal wound, this was because the knife was new and its blade was sharp and pointed.
(h) The respondent knew that the victim had been violent towards Mr Diguet and Mr Pineau a few minutes before the respondent and Mr Diguet commenced following the victim. The victim had approached Mr Diguet and Mr Pineau aggressively, had viciously assaulted them and had seriously injured Mr Pineau.
(i) It was unnecessary for the respondent and Mr Diguet to follow the victim. They chose not to remain with and give assistance to their seriously injured friend, Mr Pineau. The respondent reacted badly to the victim's attack upon Mr Diguet and Mr Pineau. If the respondent and Mr Diguet had wanted to leave the scene, avoid the victim and go elsewhere, alternative routes were available.
(j) The respondent did not have any reason to suppose that the victim was armed with a weapon. The victim was not in fact armed.
(k) After he stabbed the victim, and the victim had left the gateway and been set upon by the unrelated group, the respondent ran from the scene and did not attempt to procure any assistance for the victim.
103 There were, of course, a number of mitigating factors including:
(a) The respondent was youthful for sentencing purposes. He was aged 22 at the time of the offending and was 24 when sentenced.
(b) The respondent did not have a prior criminal record. He was otherwise of good character. The offending was completely out of character.
(c) The respondent had good prospects of rehabilitation. He was at a low risk of violent reoffending.
(d) The respondent's use of the knife was not planned or premeditated.
(e) The victim entered the gateway quickly, and in a threatening and menacing manner, about 4 seconds after the respondent went into it. The respondent found himself in a threatening situation.
(f) The respondent speaks limited English and his family resides in France. His imprisonment has been and will be more onerous than for an English speaking Australian resident.
(g) The respondent was reasonably cooperative with the police in the context of his absence of memory of the events in question because of his intoxication.
104 The respondent did not have the mitigation that a plea of guilty would have brought. He did not offer to resolve the charge against him by a plea of guilty to manslaughter. He did not evince any remorse or contrition. Although the respondent did not have any memory of the relevant events, he accepted that he had in fact killed the victim. His defence at the trial was self-defence. Alternatively, it was argued that he lacked either of the intentions required for the offence of murder due to his intoxication. So, there was an absence of remorse or contrition despite the respondent's acknowledgement that he had stabbed the victim and caused his death.
105 The trial judge found that the respondent was very intoxicated when the events in question occurred [11]. However, it is well-established that where an offender has psychological, cognitive or emotional difficulties (including a loss of control, a loss of the capacity for sensible decision-making and a loss of the ability to appreciate consequences), and those difficulties have been self-induced by the consumption of alcohol or illicit drugs, his or her condition is not a mitigating factor for sentencing purposes. The offender is morally responsible for his or her condition.
106 In the present case, the primary sentencing considerations were appropriate punishment and general deterrence. Personal deterrence was less important in view of the respondent's good prospects of rehabilitation, but it remained a relevant consideration. The respondent's favourable personal circumstances and antecedents, and the other mitigating factors, had to be brought to account in evaluating the appropriate sentencing disposition.
107 In my opinion, the sentence of 4 years 6 months' immediate imprisonment was not commensurate with the seriousness of the offence. When the sentence is evaluated in the context of all relevant facts and circumstances, and all relevant sentencing factors, it is apparent that the sentence did not properly reflect the respondent's culpability in:
(b) deliberately arming himself by removing the knife from his back pocket when he commenced following the victim;
(c) deliberately arming himself with the knife at that time despite having no reason to believe that the victim was armed;
(d) inflicting three separate stab wounds with the knife to vulnerable parts of the unarmed victim's body during the interaction in the gateway, which interaction lasted in total only about 3 ½ seconds; and
(e) running from the scene without attempting to procure any assistance for the victim.
108 Further, the sentence did not properly recognise the importance of generally deterring the use of weapons within the community to cause life-threatening injury or the value which Parliament has placed on human life.
109 I am satisfied, after considering all relevant facts and circumstances and all relevant sentencing factors, that the length of the sentence of 4 years 6 months' immediate imprisonment was unreasonable or plainly unjust. That is the only conclusion reasonably open when the sentence is viewed from the perspective of the maximum penalty (20 years' imprisonment), the seriousness of the respondent's offending, the significance of appropriate punishment and general deterrence as sentencing factors, and after taking into account the general standards of sentencing applicable to the offence, the respondent's favourable personal circumstances and antecedents and the other mitigating factors. The sentence was not merely lenient. It was substantially outside the sentencing range open to the trial judge on a proper exercise of his discretion. Error by his Honour in the exercise of the discretion should be inferred.
The result of the appeal and the resentencing of the respondent
112 Senior counsel for the respondent conceded (properly in my opinion) that the discretion under s 31(4) of the Criminal Appeals Act does not arise (appeal ts 51). There is no basis, in my opinion, for invoking the discretion. The trial judge imposed a sentence that was substantially less than the sentence open on a proper exercise of the sentencing discretion. Appealable error has been very clearly established. This court's intervention is necessary to ensure the preservation of proper sentencing standards for the serious offence of manslaughter.
113 The sentence imposed by his Honour should be set aside. This court has the material necessary to resentence the respondent.
114 At the hearing of the appeal, senior counsel for the respondent made the following submissions in the event the appeal was allowed and this court resentenced the respondent:
(a) Since 15 August 2013, the respondent has been held at Albany Prison.
(b) The respondent has been held in the protection unit at the prison with 11 other prisoners, all of whom are child sex offenders.
(c) While the respondent has been held in custody he has received death threats.
(d) The respondent has not been eligible to undertake any programmes at Albany Prison because he has been held in the protection unit.
(e) The respondent is able to work in the protection unit but he has only limited access to recreation. The mainstream prison population has recreation for 1 or 2 hours a day whereas the respondent has only half an hour a week.
(f) The respondent has received some visits from relatives, but visits are limited because they ordinarily reside in France. He is able to interact with members of his family by telephone and on Skype. Telephone contact is expensive.
(g) The mitigating factors referred to by the trial judge have not changed since the original sentencing (appeal ts 51 - 52).
115 After taking into account the maximum penalty (20 years' imprisonment), the facts and circumstances of the offence and all other relevant sentencing factors (including all mitigating factors), I would impose a sentence of 6 years 6 months' imprisonment. I have reduced the sentence I would otherwise have imposed to reflect the mitigating factors. The new sentence of 6 years 6 months' imprisonment should be taken to have taken effect on 27 December 2011, when the respondent was taken into custody. He should remain eligible for parole. The respondent will be eligible to be considered for release on parole when he has served 4 years 6 months calculated from 27 December 2011.
116 MAZZA JA: I agree with Buss JA, for the reasons that he gives, that this State appeal must be allowed, the sentence at first instance set aside and the respondent resentenced to 6 years 6 months' imprisonment with eligibility for parole backdated to commence on 27 December 2011.
117 I, too, have watched, on multiple occasions, the CCTV and mobile telephone footage. I agree with Buss JA's observations in respect of that material as set out at [72] of his reasons.
Citation : THE STATE OF WESTERN AUSTRALIA
CAMUS [2013] WASCSR 97
(2014) 305 ALR 323
(2004) 205 ALR 346
(1999) 195 CLR 665
(2012) 43 WAR 137
(1989) 3 WAR 372
(1936) 55 CLR 499