Court of Appeal (WA)|2012-09-20|Before: Martin CJ

HISHMEH -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 183 (20 September 2012)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HISHMEH -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 183

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : THE STATE OF WESTERN AUSTRALIA v HISHMEH

Criminal law - Sentencing - Manslaughter - Joint criminal enterprise - Common intention to prosecute unlawful purpose, stealing property, in the course of which the appellant's co-offender murdered victim - Plea of guilty prior to retrial - Argued sentence manifestly excessive and insufficient discount for plea of guilty and antecedents - 8 years 6 months sentence not manifestly excessive

Criminal law - Sentencing - Aggravated burglary and manslaughter - Allegation of double punishment for common element contrary to Pearce v The Queen [1998] HCA 57 - No common element - Different gist or gravamen of criminal behaviour

Brand v The State of Western Australia [2011] WASCA 269

Brown v The State of Western Australia [2011] WASCA 111; (2011) 207 A Crim R 533

Carroll v The Queen [2009] HCA 13; (2009) 254 ALR 379

Chan v The Queen (1989) 38 A Crim R 337

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Gallop v The State of Western Australia [2007] WASCA 243

H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151

Haworth v The Queen [2000] WASCA 175

House v The Queen [1936] HCA 40; (1936) 55 CLR 499

Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346

Little v The Queen [2001] WASCA 87

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

Luff v The State of Western Australia [2008] WASCA 89

McDougall v The State of Western Australia [2009] WASCA 232

Nguyen v The Queen [2001] WASCA 176

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48

Pollock v The State of Western Australia [2011] WASCA 133

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Royer v Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319

Scolaro v Shephard (No 2) [2010] WASC 271

Stapleton v The Queen [2004] WASCA 130

The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414

The State of Western Australia v Butler [2009] WASCA 110

The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 192 A Crim R 399

Vagh v The State of Western Australia [2007] WASCA 17

Wicks v The Queen (1989) 3 WAR 372; (1989) 44 A Crim R 14

1 Mr Samir Hishmeh appeals against sentences imposed following his conviction after trial on one count of aggravated burglary and two counts of unlawful detention, and his conviction for manslaughter following his plea of guilty to that charge. The offences were all committed during a single course of conduct and all sentences imposed were directed to be served concurrently. The effective head sentence therefore became the longest sentence imposed which was a period of imprisonment of 8 years and 6 months imposed for the offence of manslaughter. Mr Hishmeh was made eligible for parole. For the reasons which follow, Mr Hishmeh has failed to make out any error of fact or law by the sentencing judge, or to establish that the sentence imposed for the offence of manslaughter was manifestly excessive. His appeal should be dismissed.

2 The circumstances giving rise to Mr Hishmeh's convictions, and the facts found for the purposes of sentence, including the facts found with respect to Mr Hishmeh's previous character and antecedents may be taken from the reasons given by the judge at the time of sentence. There is no challenge to those findings. Although one ground (ground 1) could be read as a challenge to a factual finding, no submissions to that effect have been advanced on behalf of Mr Hishmeh.

The charges brought and the convictions entered

3 Mr Hishmeh was jointly charged with another, Mr Rohan Tait Johnston on an indictment alleging five offences. Each of Mr Hishmeh and Mr Johnston were charged with each offence on the indictment. Count 1 alleged that each committed the offence of deprivation of liberty while in the house of Ms Christine Van Dongen without her consent in circumstances of aggravation (aggravated burglary). Counts 2 and 3 alleged the unlawful detention of Ms Van Dongen and Mr Bradley Deliu respectively. Count 4 alleged that each of Mr Hishmeh and Mr Johnston had threatened to unlawfully injure one of the two people detained. Count 5 alleged that each had murdered Ms Van Dongen.

4 Prior to the commencement of the trial, Mr Johnston entered pleas of guilty on counts 1, 2 and 3. After trial, Mr Hishmeh was convicted on those counts. Each of Mr Hishmeh and Mr Johnston were acquitted on count 4 by verdict of the jury. The jury convicted Mr Johnston of murder, but was unable to agree on their verdict in respect of the charge of murder brought against Mr Hishmeh.

5 Following the jury's failure to agree on the charge of murder brought against Mr Hishmeh, negotiations took place between representatives of Mr Hishmeh and the State. In the course of those negotiations, the State indicated a preparedness to accept a plea of guilty to the lesser charge of manslaughter in full satisfaction of the murder charge and Mr Hishmeh entered a plea accordingly.

6 On 3 January 2010, Mr Hishmeh, Mr Johnston and Mr Andrew Shafto met with a view to travelling to a house at Mount Nasura known to be owned and occupied by Ms Van Dongen. The purpose of the visit was to steal from her what was believed to be a large quantity of money and/or drugs located or hidden in her house, it being known to Mr Shafto that Ms Van Dongen had been in the business of dealing in illicit drugs and selling them from her house. Mr Shafto was jointly charged with Mr Hishmeh and Mr Johnston in relation to counts 1 - 3 on the indictment, and had pleaded guilty to those counts prior to the trial of Mr Hishmeh and Mr Johnston. He took no part in that trial.

7 Messrs Hishmeh, Johnston and Shafto travelled to Mount Nasura by car, stopping near Ms Van Dongen's house. Mr Shafto entered the house alone, in order to carry out a reconnaissance. He knew Ms Van Dongen. He returned to the car and reported to Mr Hishmeh and Mr Johnston that Ms Van Dongen was at home and was negotiating the sale of drugs to 'a fat guy' (Mr Deliu) who was also in the house.

8 Mr Hishmeh and Mr Johnston then entered the house. Despite Mr Hishmeh's denials both at trial and in submissions at the time of sentence, the trial judge found that when he entered the premises, he did so with a view to assist Mr Shafto and Mr Johnston stealing what was believed to be a large quantity of drugs and money, and was prepared to use such force as was necessary to accomplish that purpose. The submission advanced on his behalf was to the effect that he had no prior knowledge or expectation that Mr Johnston or Mr Shafto intended to steal from Ms Van Dongen or that there was expected to be a large amount of money and drugs in her house. In rejecting that submission the trial judge found:

I am satisfied that the evidence at the trial established beyond reasonable doubt the contrary and that you were aware that the intention of Shafto and of Johnson [sic] was to rob Ms van Dongen of valuable property at her home and that you were being asked to accompany Johnson [sic] in order to threaten Ms van Dongen and any other person who might be encountered in the process to part with the property which was being sought and to use such force as may be necessary to achieve that purpose [16].

9 Mr Johnston entered the house first, ahead of Mr Hishmeh. Ms Van Dongen and Mr Deliu were sitting at a table in the dining room a short distance from the front door. When Ms Van Dongen challenged their unexpected entry, Mr Johnston moved quickly towards her and punched her forcefully in the face and head, causing her to overbalance and fall to the ground. Mr Hishmeh followed Mr Johnston and menaced Mr Deliu, forcing him to get on all fours under the dining table and stay there.

10 The precise sequence of events thereafter was the subject of conflicting evidence at trial but it is clear that Mr Johnston continued to rain blows on Ms Van Dongen before tying her wrists behind her back with plastic cable ties. She was then punched heavily on a number of occasions, struck with a hammer in the vicinity of the arm, knee and thigh and an attempt was made to strangle her. Her head was also forced violently through the glass window of a cabinet which caused her to suffer severe lacerations to the face and neck. The injuries which she sustained during the attack led to her death.

11 Mr Johnston ransacked the house looking for money and drugs. When he failed to find either, he and Mr Hishmeh left the house and made their escape.

12 In his evidence at trial, Mr Hishmeh denied striking or applying any form of force to Ms Van Dongen. The judge was not prepared to find otherwise for the purposes of sentence, reasoning that if the jury had concluded beyond reasonable doubt that Mr Hishmeh had inflicted any of the assaults upon Ms Van Dongen, Mr Hishmeh would very likely have been convicted of murder, as a result of which it was not open to him to find otherwise. There may be reason to doubt that process of reasoning given that the jury returned no verdict on the count of murder brought against Mr Hishmeh because they were unable to agree, but for the purposes of the appeal the State does not contend that the sentences imposed by the trial judge should be upheld for reasons other than those which he enunciated.

13 Accordingly, the judge sentenced on the basis that Mr Hishmeh did not personally strike or assault Ms Van Dongen in any way, but was nevertheless criminally responsible for her death, because her murder by Mr Johnston was a probable consequence of the prosecution of the common unlawful purpose upon which Mr Hishmeh and Mr Johnston were jointly engaged, with the result that Mr Hishmeh was liable for her death pursuant to s 8 of the Criminal Code (WA). The judge enunciated the manner in which that section applied in the following passage in his reasons:

The verdicts of the jury and the findings which I have already recorded show that you, Hishmeh, and Johnson [sic] formed a common intention to prosecute an unlawful purpose in conjunction with one another. The purpose was to steal property, namely money and drugs, from Ms van Dongen and to use such force as may be necessary to accomplish that purpose. As already noted, I am satisfied that that common intention was formed in a general way before either of you entered the house. The initial reconnaissance by Shafto and his reporting to you in the car that the coast was clear, except for 'the fat guy', is another indication of this and the events as they unfolded after you both entered the house plainly show that a robbery was being attempted. You assisted in this, and in the unlawful deprivation of liberty of Ms van Dongen and Mr Deliu. It was in the course of the prosecution of that purpose that Ms van Dongen was murdered by Johnson [sic] [33].

14 The judge went on to observe that Mr Hishmeh's conviction of manslaughter was inconsistent with any intention on his part to either kill her or to cause her bodily injury of such a nature as to endanger or be likely to endanger life, as the existence of either of those intentions would have resulted in a conviction for murder. Accordingly, the judge proceeded to sentence on the basis that while the unlawful killing of Ms Van Dongen was a probable consequence of the prosecution of the joint unlawful purpose, it was not Mr Hishmeh's subjective intention to either kill her, or to cause her bodily injury of such a nature as to endanger or be likely to endanger her life.

15 Mr Hishmeh is the fourth of seven children born to parents who migrated to Australia from Lebanon. Mr Hishmeh left home at the age of 19 following a dispute with his parents over his choice of girlfriend, and later met and married his wife, with whom he has had two children, aged six years and 18 months respectively at the time of sentence. Mr Hishmeh met his wife in Port Hedland, where he had quickly developed a substantial and successful business. A number of references were produced at the time of sentence to establish the proposition that Mr Hishmeh was a hard-working and devoted family man. Understandably, the trial judge found it difficult to reconcile that picture of Mr Hishmeh with his conduct at the time of the attack upon Ms Van Dongen.

16 Mr Hishmeh was 29 years old at the time of the offences, and 31 at the time of sentence. His prior criminal record was limited to two convictions in 2006 for contravention of the Misuse of Drugs Act 1981 (WA), for which fines of $750 and $200 were imposed.

17 A psychiatric report and a pre-sentence report were tendered in evidence. In each, the authors recounted Mr Hishmeh's assertion that he was unaware of Mr Johnston's intention to attack and steal from Ms Van Dongen at the time he accompanied him to her house. In rejecting that version of events, the sentencing judge observed:

Again, however, I do not accept this degree of dissociation asserted by you from your involvement or complicity in these crimes. I am satisfied that you were aware that Johnson [sic] and Shafto had planned to enter the premises at Mount Nasura without the owner's consent in order to steal money or drugs from her and that intimidation and force would be used if necessary to secure those ends. The verdict of the jury that you are guilty of what is also termed 'aggravated burglary' on the first count in the indictment shows that this intent was carried into effect [50].

The last sentence in this passage is the source of the assertions made in support of ground 1 of the appeal.

18 In relation to the plea of guilty to the charge of manslaughter, the trial judge observed:

Mitigating factors are those which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. A plea of guilty by an offender is expressly identified as constituting a mitigating factor by s 8(2) and the earlier in proceedings that it is made, or an indication is given that it will be made, the greater the mitigation. You have pleaded guilty to the charge of manslaughter but only after the trial of the other charges against you resulting in three of the four convictions for which you are now being sentenced.

Johnson [sic], of course, had pleaded guilty to the first three offences charged against him in the indictment, namely the commission of an offence in a dwelling in circumstances of aggravation and the two charges of unlawful detention. It was submitted by your counsel at the original trial there was a good, compelling basis justifying your pleas of not guilty to these charges and that it was to ensure that the evidence of the entire episode emerged in order to reveal, so it was submitted, that your role was quite different from, and subsidiary to, that of Johnson [sic] and hence less culpable. I must say, however, that in relation to the convictions for the first three charges on the indictment I do not entirely accept that submission. Johnson [sic] played the dominant role but I consider that your role was only slightly less culpable than that of Johnson [sic] in relation to those three offences.

The conclusion of the trial and the fact that the DPP has accepted your plea of guilty to the lesser crime of manslaughter does mean, however, that you were successful in pleading not guilty to the charge of murder and in defending yourself at that trial. There is nothing to suggest that the DPP would have accepted a plea by you to manslaughter earlier than he did. Accordingly, your plea of guilty to this crime entered shortly after the order that you be remanded for retrial on the charge of murder, does, in my view, come within s 8(2) of the Sentencing Act and entitles you to a reduction in the sentence for which you would otherwise be liable for the crime of manslaughter. Nor is it insignificant that your plea has avoided the need for a retrial and the expense and effort by the State and the inconvenience to the many witnesses that that would have involved. You are, accordingly, entitled to some credit because of that plea in relation to the sentence to be imposed for that offence but, as already indicated, not in respect of the other offences of which you have been convicted [42] - [44].

19 Although it is clear from this passage that the judge proceeded to sentence Mr Hishmeh for the offence of manslaughter on the basis that he was entitled to a reduction in sentence because of his plea of guilty, it is not clear whether or not the judge was proceeding on the basis that the plea had been entered at the earliest reasonable opportunity. It will be necessary to return to this issue.

20 By the time of passing sentence on Mr Hishmeh, the judge had already sentenced Mr Johnston. In that context he noted that in relation to the first three counts, the sentences imposed on Mr Johnston reflected discounts for his plea of guilty to those counts. However, the trial judge considered that because of the lesser role of Mr Hishmeh in planning and carrying out those offences, he should receive the same sentences as those imposed on Mr Johnston notwithstanding that Mr Hishmeh had pleaded not guilty to those charges. Accordingly, Mr Hishmeh was sentenced to 5 years imprisonment in respect of count 1, 4 years imprisonment in respect of count 2, and 3 years imprisonment in respect of count 3.

21 The judge referred to a number of cases in which sentences had been imposed for manslaughter, and the varying forms of culpability that could give rise to conviction for that offence. In that context, the judge identified Mr Hishmeh's culpability in the following terms:

[I]t is evident that a major factor in your criminal culpability is your readiness to participate in the burglary or attempted robbery, including your readiness to countenance the use of such force as might prove to be necessary to accomplish the intended purpose and your presence and participation in the attempted robbery notwithstanding that it developed in an unexpected way. It is your willingness to participate in a robbery and your preparedness to countenance the use of violence to accomplish that purpose while rendering assistance to the co-offender which provides the essence of your culpability [65].

22 This passage is the source of the assertions made in support of ground 2 of the appeal.

23 The trial judge expressed the view that an appropriate starting point for the sentence to be imposed was 11 years imprisonment, but that the sentence should be discounted by 2 years and 6 months by reason of the plea of guilty, Mr Hishmeh's good antecedents, and his genuine remorse. In the result, a sentence of imprisonment of 8 years and 6 months was imposed.

24 As I have noted, because all offences were committed in the course of a single sequence of conduct, all sentences were directed to be served concurrently, with the result that the total effective sentence was 8 years and 6 months imprisonment. Mr Hishmeh was made eligible for parole in respect of all sentences imposed. The sentences were backdated so as to take effect from the date of Mr Hishmeh's arrest in January 2010.

25 Leave to appeal has been granted in respect of ground 1 which asserts that the judge erred in law by:

Finding that the appellant was aware that Johnston and Shafto (co-offenders) had planned to steal money or drugs from the owner of the premises and that intimidation or force would be used and that the verdict of guilty in relation to charge 1 (aggravated burglary) "shows that this intent was carried into effect".

26 The ground is ambiguously expressed. It could be read as containing two limbs - the first being an error of fact in relation to Mr Hishmeh's state of mind with respect to the intention of his co-offenders, and the second being an error of law in relation to the inference he drew from the jury's verdict of guilt on the charge of aggravated burglary. However, the written and oral submissions advanced in support of the ground are confined only to what I have characterised as the second limb. No submissions were advanced, either in writing or orally, to the effect that the evidence was not capable of sustaining the judge's finding that Mr Hishmeh was aware that his co-offenders intended to steal money or drugs from Ms Van Dongen by the use of intimidation or force. I will therefore proceed on the basis that ground 1 is intended to be confined to an alleged error in the process of reasoning in relation to the inference properly drawn from the jury's conviction of Mr Hishmeh for the offence of aggravated burglary.

27 The basic proposition advanced in support of ground 1 is the assertion that the trial judge erred by proceeding on the false basis that Mr Hishmeh had been convicted of burglary contrary to s 401(1) of the Criminal Code (entering the place of another without consent with intent to commit an offence in that place), whereas in fact Mr Hishmeh was convicted of an offence contrary to s 401(2) (committing an offence while in the place of another without that other's consent). The distinction between the two subsections relied upon in support of the ground is that the offence created by subsection (1) requires a specific intent, whereas the offence created by subsection (2) does not. This is said to support the proposition that the trial judge erred by relying upon the jury's verdict of guilty on the charges of aggravated burglary in count 1 to conclude that Mr Hishmeh had a particular intent.

28 The flaw in this submission is that it misreads the passage in the reasons of the trial judge in which he referred to Mr Hishmeh's conviction for aggravated burglary. I have set the passage out above at [17]. The judge did not rely upon the conviction to establish Mr Hishmeh's intention at the time he entered the house. He made his finding on that topic by reference to the evidence and, as I have noted, it is not submitted that the evidence was insufficient to sustain that finding. The trial judge used Mr Hishmeh's conviction for aggravated burglary to show 'that this intent was carried into effect' (reasons at [50]). Mr Hishmeh was convicted by the jury of depriving Ms Van Dongen of her liberty while he was in her house without her consent. This conviction is quite capable of sustaining an inference that the jury was satisfied that Mr Hishmeh had in fact used intimidation and such force as was necessary to enable his co-offender to steal any money or drugs in the possession of Ms Van Dongen, thereby carrying into effect the intention which the trial judge found he was aware that Mr Johnston and Mr Shafto had at the time they went to Ms Van Dongen's house.

29 It is well established that sentencing remarks must be looked at as a whole, and that any particular portion of the remarks must be read in context: Brand v The State of Western Australia [2011] WASCA 269; Pollock v The State of Western Australia [2011] WASCA 133, [58]. It is clear from the portion of the judge's reasons which I have set out at [8] that the trial judge was satisfied beyond reasonable doubt that Mr Hishmeh was aware that the intention of Mr Shafto and Mr Johnston was to rob Ms Van Dongen and that he was being asked to accompany them in order to use such force as may be necessary to achieve that purpose on the basis of the evidence led at trial, and not upon the basis of any inference drawn from the verdict of the jury. The evidence sustaining that conclusion was set out by the trial judge in that portion of his reasons. It included the fact that Mr Hishmeh stood guard over Mr Deliu while Mr Johnston forcibly assaulted Ms Van Dongen and ransacked her house, without expressing any dissent from that course and not leaving until Mr Johnston left.

30 Further, the process of reasoning underscoring the passage to which objection is taken is more fully elaborated in another portion of the reasons in the following terms:

The verdicts of the jury that you were guilty of the charges of committing an offence in a dwelling in circumstances of aggravation and of unlawfully detaining both Ms van Dongen and Mr Deliu demonstrate that the jury was satisfied beyond reasonable doubt that you committed those crimes within the house. There was only one purpose to be advanced by the commission of those crimes, namely to overcome any resistance offered by Ms van Dongen and/or Mr Deliu in order to accomplish the robbery which was being attempted [18].

31 There is nothing illogical or improper in that process of reasoning, which is essentially to the effect that the jury's verdicts show that the jury was satisfied that the common unlawful purpose of using intimidation or force to commit a robbery was carried into effect by the facts which gave rise to the conviction for aggravated burglary.

32 It is also to be remembered that Mr Hishmeh pleaded guilty to manslaughter on the basis that he was a participant in a joint enterprise which carried with it the probable consequence of the death of Ms Van Dongen. Counsel for Mr Hishmeh on the appeal did not dispute the proposition that Mr Hishmeh's plea of guilty is to be construed in that way. It is difficult, if not impossible, to reconcile that plea with any proposition to the effect that Mr Hishmeh was not a party to the joint enterprise which involved using such force as was necessary to steal property or drugs from Ms Van Dongen, or that he did not assist carrying that enterprise into effect.

34 The question of whether leave to appeal should be granted in respect of ground 2 was referred to the hearing of the appeal. The ground alleges that the judge erred in law by:

Doubly punishing the appellant for the crime of manslaughter due to his involvement in the aggravated burglary by regarding the involvement as "a major factor" in his "criminal culpability" for the crime of manslaughter.

35 The ground relies upon the observation made by the trial judge which I have set out above [21]. On behalf of Mr Hishmeh it is submitted that by referring to his readiness to participate in the burglary or attempted robbery as a major factor in his culpability for the crime of manslaughter, the judge has doubly punished Mr Hishmeh for acts which comprise common elements of the offence of aggravated burglary and of manslaughter, contrary to the principle enunciated by the plurality in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, [40] (Mc Hugh, Hayne and Callinan JJ):

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

See also Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346, [27], [34] (Gummow, Callinan & Heydon JJ, Gleeson CJ agreeing), [38] (Kirby J).

36 In Pearce, a single act, the act of inflicting grievous bodily harm on the victim was an element of each of two of the offences of which the accused was convicted and punished, and the accused was sentenced to identical terms of imprisonment to be served concurrently. The court inferred that the sentence on each of those counts contained a portion which was to punish the appellant for inflicting grievous bodily harm on the victim, thereby doubly punishing him for the one act.

37 Reliance upon the principle in Pearce in the circumstances of this case is misconceived. There is no element of the conduct of Mr Hishmeh which is common to both the offence of aggravated burglary and the offence of manslaughter. If, instead of using the language of Pearce, one posits the test in terms of whether the 'gist or gravamen of the criminal behaviour' was the same in the two offences (see R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371 [113] (Spigelman CJ, Simpson J & Blanch AJ agreeing)), the result is the same. The act which resulted in Mr Hishmeh's conviction on count 1 of the indictment was his conduct which had the effect of depriving Ms Van Dongen of her liberty when he was in her house without her consent. On the analysis of the effect of the plea of guilty to manslaughter adopted by the trial judge and which is not challenged, the conduct of Mr Hishmeh which resulted in his conviction for that offence was his participation in an unlawful enterprise of which the unlawful killing of Ms Van Dongen was a probable consequence. The acts or conduct giving rise to the two offences are quite different as is the gist or gravamen of the criminal behaviour. The passage in the reasons of the judge to which objection is taken, read in context, does nothing more than elaborate upon the assessment of Mr Hishmeh's conduct, as a member of an unlawful enterprise undertaken with his co-offenders, in which the use of such force as was necessary to achieve the purpose of the enterprise was countenanced by its participants, including Mr Hishmeh. This does not involve any duplication of the penalty imposed upon Mr Hishmeh for unlawfully depriving Ms Van Dongen of her liberty whilst in her house without her consent.

38 Leave to appeal with respect to ground 2 should be refused.

39 It is convenient to consider grounds 3 and 4 together, as they are necessarily related, and each concern the sentence imposed for the offence of manslaughter. Ground 3 alleges that the judge erred by imposing a manifestly excessive sentence. Particulars given in support of the ground assert that the starting point of 11 years imprisonment was too high having regard to the finding that Mr Hishmeh did not apply any physical force to Ms Van Dongen, and the finding that the degree of violence and force actually employed by Mr Johnston was greater than expected or anticipated by Mr Hishmeh, and refer also to Mr Hishmeh's genuine remorse and contrition, his good antecedents and character, his early plea of guilty and excellent prospects of rehabilitation.

40 Ground 4 asserts that the judge erred by failing to provide a greater discount from the starting point of 11 years, having regard to the early plea of guilty and the other mitigating factors identified in ground 3.

41 Leave to appeal has been granted in respect of ground 3. The question of whether leave to appeal should be granted in respect of ground 4 was referred to the court hearing the appeal.

42 Ground 3 alleges an implied or inferred error. Ground 4 alleges an express error. However, the two grounds are, as I have mentioned, necessarily related and, for that reason, leave to appeal should be granted on ground 4.

43 As to ground 4, even if the appellate court was to conclude that the reasoning enunciated by the trial judge, which involved a starting point discounted for mitigating factors, involved an error in the amount of the discount, the appellate court would not intervene unless it is demonstrated that the sentence imposed by the judge at the conclusion of that process was excessive and that a different sentence should be imposed - see Criminal Appeals Act 2004 (WA), s 31(4)(a); see also The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 192 A Crim R 399.

44 As to ground 3, a ground of appeal alleging that a sentence is manifestly excessive asserts the existence of an implicit error: Vagh v The State of Western Australia [2007] WASCA 17, [47]; Royer v Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319, [126] (Buss JA); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, [6] (Gleeson CJ, Hayne J); Carroll v The Queen [2009] HCA 13; (2009) 254 ALR 379, [7] -[8] (Gummow, Hayne, Crennan, Kiefel & Bell JJ). A claim of manifest excess depends on establishing an implied error in the type or length of the sentence imposed; that a sentence of the nature or length imposed could not have been reached in the exercise of proper sentencing discretion.

45 The discretion that the law invests in sentencing judges is of vital importance in the administration of justice: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Scolaro v Shephard (No 2) [2010] WASC 271. Thus, an appellate court may not substitute its own opinion for that of the sentencing judge merely because it considers that it would have imposed a different sentence. Rather, it must be established that there has been an error in exercise of the sentencing discretion (House v The Queen [1936] HCA 40; (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ)) and an alleged failure by a sentencing judge to give adequate weight to a relevant sentencing consideration will only constitute an appealable error if it amounts to a failure to exercise the discretion conferred on the judge: Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614; Dinsdale v The Queen, 330; Vagh v The State of Western Australia, [47] (Roberts-Smith JA, Pullin JA agreeing), [76] (McLure JA).

46 To determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); McDougall v The State of Western Australia [2009] WASCA 232, [12] - [13] (McLure P, Owen & Wheeler JJA agreeing).

47 Turning to the circumstances of this case, it is appropriate to commence by considering the question of whether Mr Hishmeh should have been sentenced by the trial judge on the basis that he had entered a plea of guilty to manslaughter at the earliest reasonable opportunity. As I have noted, the basis upon which the trial judge assessed the discount to be given for the plea is not pellucidly clear.

48 The State submits that the judge did not sentence on the basis that Mr Hishmeh had entered a plea at the earliest reasonable opportunity and that he was correct to do so, because Mr Hishmeh had contested all the charges brought against him including the charge of murder. It was submitted by the State that as Mr Hishmeh did not enter a plea of guilty to manslaughter in answer to the charge of murder, but only indicated a willingness to enter such a plea following his conviction on counts 1 - 3 and the jury's failure to return a verdict on the count of manslaughter, he should not be taken to have entered a plea at the earliest reasonable opportunity. However, counsel for the State accepted that if a plea of manslaughter had been entered by Mr Hishmeh prior to his trial for murder, it would not have been accepted by the State in full and final satisfaction of the count of murder.

49 There is force in this submission. It is always open to an accused person to offer a plea of guilty to any lesser offence of which he or she could be convicted on the charge brought. Manslaughter is, of course, an alternative offence of which a person can be convicted on a charge of murder. Accordingly, it would have been open to Mr Hishmeh to enter pleas of guilty to counts 1 to 3 (as Mr Johnston did) and to offer a plea of guilty to manslaughter on the same basis as the plea ultimately entered - namely, that he was a party to a joint unlawful enterprise of which the death of Ms Van Dongen was a probable consequence. A plea of guilty to manslaughter on this basis could have been offered by Mr Hishmeh at the time of his arraignment before the jury. It would not have been entered, as the State would not have accepted the plea in satisfaction of the charge of murder. However, the opportunity was there.

50 Mr Hishmeh did not take this course. He contested all charges against him. He gave evidence to the effect that he was unaware of the intention of his co-offenders at the time he entered the house, and that the events which occurred after he entered the house came as a complete surprise to him. The jury's verdict of guilty on counts 1 to 3 necessarily implies a rejection of at least part of that evidence. Further, the trial judge found, as a fact, that Mr Hishmeh was aware of the intention of his co-offenders at the time he entered the house, contrary to the evidence which he gave at trial. It is also difficult to construe Mr Hishmeh's plea of guilty to manslaughter as anything other than a belated admission that he was aware of the intention of his co-offenders at the time he entered the house, and was a party to their joint unlawful enterprise.

51 It follows that Mr Hishmeh has not adopted a consistent position in relation to the events which gave rise to his convictions. He attempted to persuade the jury that the State had not proved his guilt beyond reasonable doubt on any of the charges. That attempt failed, after which he entered a plea of guilty to a lesser charge.

52 Counsel for Mr Hishmeh relied upon an observation made by Miller JA (Steytler P & McLure JA agreeing) in Luff v The State of Western Australia [2008] WASCA 89, [25]. In that case, the Court of Appeal accepted that the entry of a plea of guilty to manslaughter two weeks prior to trial should be regarded as having been made at the first reasonable opportunity because that was the first point in time at which the prosecution had indicated that it would accept such a plea in satisfaction of the indictment for murder. However, that case should not be viewed as establishing, as a general proposition, that in a circumstance in which a plea of guilty is ultimately entered to a lesser charge than that originally brought, the earliest reasonable opportunity to enter such a plea only arises if and when the prosecution indicate that the plea is likely to be accepted.

53 The observations of the court in Luff must be placed in their factual context in which the sentencing judge observed that significant admissions were made to the police soon after the events in question, and the subsequent actions and statements of the offender indicated that he was 'extremely remorseful' and that he accepted full responsibility for his actions.

54 In Luff, Miller JA cited two authorities in support of the proposition that the plea in that case should be regarded as having been made at the earliest reasonable opportunity. The first authority cited was the following passage from the judgment of Ipp J in Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465:

Where the prosecution has charged an offender with several counts and after a process of negotiation the offender pleads guilty to only some of them and the prosecution withdraws the others, all the relevant circumstances have to be examined with care in order to establish the credit to which the offender is entitled. It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted. Regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him. During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt on other counts with which he is charged to persist in a not guilty plea to all counts. In such circumstances it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity [10].

55 This passage stands for the proposition that 'all the relevant circumstances have to be examined with care in order to establish the credit to which the offender is entitled'. Accordingly, in the present case, the fact that the State would not have accepted an earlier plea of guilty to manslaughter is not of itself determinative of the question of whether the plea ultimately entered should be regarded as having been entered at the earliest reasonable opportunity. Relevant also are the facts that Mr Hishmeh contested his guilt on the other counts brought against him, on three of which he was convicted, and gave a version of the facts in evidence which must be taken to have been rejected by the jury in relation to the counts on which it convicted him, and by the trial judge in relation to the charge of manslaughter.

56 The second passage cited by Miller JA in Luff is a passage from the judgment of Steytler P in Gallop v The State of Western Australia [2007] WASCA 243, [12] - [13]. In that case, a plea of guilty to unlawful and indecent assault was not entered until negotiations had taken place which saw the State agree to discontinue a charge of burglary. Steytler P rejected the proposition that the plea should be taken to have been entered at the earliest reasonable opportunity because it was the outcome of negotiation between the State and the accused, given that there was no apparent link between the burglary charge and the charge of indecent assault.

57 Neither of the authorities cited by Miller JA support a general proposition to the effect that the time at which the prosecution indicate a plea of guilty will be accepted in satisfaction of a more serious offence is, of itself, determinative of the question of whether the plea was entered at the earliest reasonable opportunity, although for the reasons given by Ipp J in Atholwood, it may well be relevant to that question. Rather, regard must be had to all relevant circumstances. When, in this case, all relevant circumstances are taken into account, while Mr Hishmeh is, of course, entitled to a discount by reason of his plea of guilty to the charge of manslaughter, the discount should not be assessed on the basis that the plea was entered at the earliest reasonable opportunity.

58 Section 6 of the Sentencing Act 1995 (WA) (Sentencing Act) requires the court to impose a sentence which is commensurate with the seriousness of the offence. The same section requires the court to assess the seriousness of the offence by taking into account:

(a) the statutory penalty for the offence; and

(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and

(c) any aggravating factors; and

(d) any mitigating factors.

59 The maximum penalty for the offence of manslaughter at the time Mr Hishmeh committed that offence was 20 years imprisonment. The maximum of 20 years imprisonment applied at all relevant times during the changes in sentencing regime which have occurred in Western Australia over the last 20 years or so. So, during the sentencing regime which applied prior to the introduction of the transitional provisions in 2003, the maximum period effectively served by any offender imprisoned for manslaughter would, generally speaking, be reduced by one-third of the sentence imposed through the process of remission. Subsequent to the introduction of the transitional provisions in 2003, and prior to their repeal in January 2009, the court was required to reduce any sentence imposed by one-third, with the result that the court could not lawfully impose a sentence greater than 13 years and 4 months. Although the court is not thus constrained subsequent to the repeal of the transitional provisions, the sentences customarily handed down by the court prior to the introduction and thereafter prior to the repeal of those provisions continue to provide guidance to the court as to the sentences properly imposed (see The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, [7], [24], [42] - [44] (Wheeler & Pullin JJA, Owen JA agreeing)).

60 I have set out the circumstances in which Mr Hishmeh committed the offence of manslaughter. I have also set out the observations made by the judge at the time of sentence in relation to the culpability of Mr Hishmeh (at [13], [17]). It will be clear from the views I have expressed in relation to ground 2 of the appeal that I consider that assessment to be accurate. Mr Hishmeh knew or ought to have known that a robbery from a known drug-dealer was a dangerous and criminal enterprise. Even if it is assumed that Mr Hishmeh only entered Ms Van Dongen's premises with an intention to intimidate her, and to use only the force necessary to execute the robbery, his unlawful conduct alongside that of Mr Johnston resulted in her death. By offering his co-offenders assistance in the execution of the robbery, and in particular by preventing Mr Deliu from going to Ms Van Dongen's aid, Mr Hishmeh was a key player in the course of events which brought about the loss of Ms Van Dongen's life.

61 Section 6 of the Sentencing Act requires account to be taken of the vulnerability of any victim of the offence. Ms Van Dongen was unarmed and extremely vulnerable, even more so once she had been tied up and restrained by the cable ties. Whilst the sentencing judge observed that the degree of violence and force actually employed by Mr Johnston was likely greater than that anticipated by Mr Hishmeh, and this was not disputed by the State on appeal, Mr Hishmeh did not intervene at any point during the attempted robbery as Mr Johnston tied up Ms Van Dongen and inflicted several severe injuries upon her; injuries which caused her death. Further, by his intimidation of Mr Deliu, Mr Hishmeh prevented the only other person present at the premises from intervening to protect Ms Van Dongen. Ms Van Dongen's death was caused by a sudden and violent attack, and she was a person who had done nothing to provoke the violence inflicted upon her.

62 The sentences imposed by the court for manslaughter reflect the value which our society properly places upon the preservation of human life. In this case, a vulnerable and defenceless woman lost her life as a consequence of a violent assault perpetrated during a serious criminal enterprise in which Mr Hishmeh was an active participant. Mr Hishmeh's offence must be regarded as being within the upper end of the range of seriousness relating to offences of manslaughter.

63 On behalf of Mr Hishmeh, reliance is placed on the fact that he was not found to have struck or personally directed any violence towards Ms Van Dongen, and that the degree of violence actually employed by Mr Johnston was greater than expected by Mr Hishmeh. However, the force of this submission is diminished by the observation, accurately made by the sentencing judge, to the effect that if Mr Hishmeh had been found to have wrought any significant violence upon Ms Van Dongen himself, or to have subjectively intended that she be subjected to a degree of violence that was likely to cause her death or injuries that endangered or were likely to endanger her life, he would have been guilty of murder. The fact that elements which, if present, would likely have resulted in conviction of a more serious offence were not in fact present is of little assistance in determining the appropriate point within the range of sentences available for the offence of which Mr Hishmeh was convicted.

64 Aside from the matters found by the trial judge with respect to the circumstances of the offence, the vulnerability of the victim, and the effect which the offence had upon the victim and her family, the trial judge did not find, nor does the State submit that there were any aggravating factors to be taken into account.

65 The sentencing judge was satisfied that Mr Hishmeh had displayed genuine remorse and took that into account. He also took into account Mr Hishmeh's good antecedents, the lack of any significant prior criminal record, the character references that had been provided on Mr Hishmeh's behalf, and his plea of guilty.

66 On the subject of prospects for rehabilitation, the judge referred to a psychiatric report which had been obtained on Mr Hishmeh's behalf. The trial judge noted that the author of that report had formed the view that Mr Hishmeh was at a low risk of future violence, and that this view accorded with the beliefs and opinions of the members of Mr Hishmeh's extended family who have provided references as to his character.

67 However, the trial judge went on to observe that in Mr Hishmeh's explanation to the police, his evidence at trial, and in the accounts given to the authors of the pre-sentence report and psychiatric report he had unduly minimised his role in the commission of the offences. Obviously that observation casts doubt upon the validity of the opinions expressed in relation to Mr Hishmeh's prospects of rehabilitation. In the result, the trial judge did not express a clear conclusion in relation to those prospects. It is not clear that it was necessary for him to do so in all the circumstances of the case, given that personal deterrence was not suggested by the trial judge to be a significant consideration, nor has the State submitted to this court that it should be regarded as a significant consideration.

68 On behalf of Mr Hishmeh, it is submitted that the judge erred by giving insufficient weight to these mitigating factors. While I will return to that submission in due course, for the reasons I have already given, the essential question is whether, having regard to all matters properly taken into account, it can be concluded that the sentence imposed by the judge was manifestly excessive.

69 It is trite to observe that there is no tariff or well-defined range of sentences imposed for manslaughter because of the great variation of circumstances in which the crime may be committed, including significant differences in the degree of culpability of the offender - see The State of Western Australia v Butler [2009] WASCA 110, [7]; Brown v The State of Western Australia [2011] WASCA 111; (2011) 207 A Crim R 533, [98]; Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48, [79]. It follows that sentences imposed in other cases can, at their highest, provide only general guidance and a source of comparison for the exercise of the judicial discretion (see Brown, [6]).

70 The written submissions of the State annexed a table of penalties imposed in some manslaughter cases over the last 15 years or so. I do not understand the table to be exhaustive. It illustrates the variability of the circumstances in which the offence can be committed and in the circumstances of offenders convicted of the offence. The table suggests, and experience in this court reinforces the view that over the last 10 years or so penalties imposed for the offence of manslaughter have tended to increase. That tendency is consistent with the value which is placed upon the sanctity of human life in our society.

71 Wicks v The Queen (1989) 3 WAR 372; (1989) 44 A Crim R 147 was decided more than 20 years ago. All members of the court took the view that the circumstances of the offence placed the case in the upper end of the range of seriousness for offences of manslaughter (see Wicks, 379 (Malcolm CJ); 390 (Wallace J); 393 (Brinsden J)). Briefly put, the offence involved a vicious assault, including the use of a large piece of concrete and the cutting of the victim's throat by an offender who was significantly affected by alcohol. The offender was charged with wilful murder, but after trial by jury was convicted of manslaughter. He was sentenced to 13 years and 6 months imprisonment which after taking account of time served in custody was equivalent to a sentence of 15 years imprisonment. As this sentence was imposed at a time when remission of sentence was virtually automatic, the practical effect of the sentence was that the maximum period likely to be served in prison was 10 years.

72 On behalf of the appellant in that case, it was submitted that even the worst cases of manslaughter should not attract a sentence greater than 10 to 12 years imprisonment. Understandably, that submission was roundly rejected by all members of the court, given that the maximum penalty for manslaughter was 20 years imprisonment (see Wicks, 378 (Malcolm CJ); 390 (Wallace J); 394 (Brinsden J)). The appeal against sentence was dismissed, and the sentence, which was effectively 15 years imprisonment, was affirmed.

73 The culpability of the offender in Wicks was greater than that of Mr Hishmeh, and, of course, there was no question of a discount for a plea of guilty in Wicks. However, the effective sentence in Wicks was greater than the sentence imposed upon Mr Hishmeh.

74 During oral argument on behalf of Mr Hishmeh, reference was made to two cases said to be comparable - namely, Haworth v The Queen [2000] WASCA 175 and Nguyen v The Queen [2001] WASCA 176.

75 In Haworth, the sentence imposed was 8 years imprisonment. As the sentence was imposed prior to the operation of the transitional provisions, the practical effect of the sentence, after remission, was a penalty of 5 years and 4 months imprisonment. Like Mr Hishmeh, the offender was convicted of manslaughter as a consequence of events which occurred in the prosecution of a common unlawful purpose. The circumstances of the offence were as follows.

76 The victim had heard a banging outside of his home, and went to the street armed with a cricket bat. He saw Mr Haworth with his girlfriend, and swung at him with the bat, injuring Mr Haworth on the elbow. Mr Haworth threatened to return and kill the victim, and left for a nearby unit. His co-offender was present at the unit. They set off to find the victim, with his co-offender wielding a knife whilst Mr Haworth took a brick from outside the building. The victim was still outside his home with the cricket bat. A confrontation occurred, whereby Mr Haworth threw the brick at the victim but missed him. The co-offender then stabbed the victim in the chest and the victim died shortly afterwards.

77 Like Mr Hishmeh, Mr Haworth had been tried jointly with another person on the charge of murder. His co-accused was found guilty of murder, and the jury found Mr Haworth guilty of manslaughter. Whilst Mr Haworth was convicted after trial, and therefore could not receive any discount in his sentence for a plea of guilty, he had surrendered himself to the police four days after the attack and admitted to his involvement in the incident, and cooperated with prosecution in shortening the trial, which operated to his credit. Mr Haworth was 19 years old at the time of sentencing and had no prior convictions. He was from a deprived and unhappy family background, and received a very favourable report from his prison support officer [13].

78 The sentencing judge held that the jury had found that Mr Haworth was less culpable than his co-offender in the matter, and that he may have only intended to frighten the victim. However, his Honour said:

The fact that the applicant may only have intended to frighten [the victim] for hitting him with a cricket bat is not the end of the matter. The most serious aspect is that the offenders' unlawful conduct resulted in a person's death. The applicant should have known that it was a very dangerous and criminal enterprise to approach Mr Byrne with his co-offender in the manner in which they did [20].

79 The application for leave to appeal was refused, as the sentence was held to not fall outside the permissible range because '[t]he offence was extremely serious as it caused the death of a 36 year old man after he had been confronted by two persons who were carrying weapons' [26].

80 In Nguyen, the total effective term imposed following conviction for aggravated burglary, manslaughter and assault occasioning bodily harm was 12 years imprisonment. As the sentence was imposed prior to the transitional provisions, following remission the effective term was 8 years imprisonment.

81 The applicant was one of 12 persons charged with various offences arising from a home invasion that resulted in the death of one of the home-owners. A group of 11 men went to a duplex with the intention of violently attacking those whom they might find there, with the deceased victim being the primary target. The victim was the estranged de facto husband of the 12th accused, who was not present at the home invasion. The victim was attacked in the house, and received a number of stab wounds from which he died as he fled the house trying to escape. He suffered a further attack in the yard outside. Of those convicted by the jury, the applicant was the only person convicted of manslaughter. Nevertheless, Murray J (Malcolm CJ and Owen J agreeing) held that:

The applicant was without doubt centrally involved in the course of events which brought about the loss of life. His culpability was somewhat reduced by the fact that he did not himself strike any blows to the deceased, let alone any fatal blow. But nonetheless his central involvement in the implementation of the plan to seriously assault [the victim] in my opinion establishes his culpability at a substantial level [63]

82 His application for leave to appeal against the sentence was dismissed.

83 None of Wicks, Haworth or Nguyen involved a plea of guilty. However, when the different circumstances of each case are considered, they do not establish that a sentence of 8 years and 6 months after a plea of guilty (in the circumstances I have described), was outside the range of sentences imposed in comparable cases. It is to be remembered that none of these cases are directly comparable with Mr Hishmeh's case, and that other cases at best provide guidance for the exercise of the judge's discretion and cannot be regarded as establishing a fixed or invariable tariff for an offence of a particular kind.

84 General deterrence is an important factor in sentencing for the manslaughter committed by Mr Hishmeh. Mr Hishmeh was aware that his co-offenders had planned to steal money or drugs from Ms Van Dongen and that intimidation or force would be used. Mr Hishmeh actually used intimidation and such force as was necessary to enable Mr Johnston to steal any money or drugs which might have been at Ms Van Dongen's house. Condign punishment is necessary and appropriate in sentencing for an unlawful killing committed in these circumstances, including an unlawful killing that was a probable consequence of the prosecution of a joint unlawful purpose.

85 Mr Hishmeh's offence was properly regarded by the judge as an offence within the upper range of seriousness of the conduct that might constitute the offence of manslaughter. The sentence imposed was less than half the statutory maximum. The starting point adopted by the sentencing judge was a little over half the statutory maximum, and was less than the effective maximum under the operation of the transitional provisions (13 years and 4 months). Notwithstanding the mitigating circumstances, and in particular the plea of guilty to which I will shortly refer, the importance of general deterrence as a sentencing factor, the seriousness of the offence (including the circumstances of its commission) and the vulnerability of the victim are such that it cannot be said that the sentence imposed was outside the range of a sound discretionary judgment. The sentence was not unreasonable or plainly unjust.

86 Finally, it is appropriate to consider the submissions advanced in support of ground 4 to the effect that the discount given for the plea of guilty and other mitigating circumstances was inadequate. The discount given for the plea of guilty and other mitigating circumstances found by the judge was 2 years and 6 months, which represented a discount of 23% from the starting point of 11 years. The essence of the argument advanced on behalf of Mr Hishmeh was to the effect that the judge failed to give adequate weight to the plea of guilty and other mitigating circumstances, with the result that the discount given was inadequate.

87 As was noted by Steytler P (with whom McLure JA, as her Honour then was, agreed) in The State of Western Australia v Gibbs:

[I]t is very difficult to make out a ground that contends that a sentencing judge placed undue weight on, or failed adequately to take account of, individual considerations. Sentencing is a discretionary exercise and a failure of that kind will not give rise to an express appealable error unless it was so significant as to lead to the conclusion that the sentencing judge failed to exercise the discretion entrusted to the court: Dinsdale v The Queen [2000] HCA 54 ; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ); Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ); Vagh v The State of Western Australia [2007] WASCA 17 [47] (Roberts-Smith JA), [76] (McLure JA); Scook v The Queen [2008] WASCA 114 [15] (McLure JA); Ponnusamy v The State of Western Australia [2008] WASCA 224

[22] (Wheeler JA, McLure JA concurring**); Speering v The State of Western Australia** [2008] WASCA 266 [52].

88 It is well established that ordinarily, fast-track pleas of guilty attract a reduction in sentence of somewhere between 20% and 35%, depending on the circumstances: see Moody v French [2008] WASCA 67; (2008) 36 WAR 393, [37]; H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151, [9]; Little v The Queen [2001] WASCA 87, [13]; Stapleton v The Queen [2004] WASCA 130, [33]. The amount of the reduction is, however, clearly discretionary and sentencing judges 'must be accorded a wide measure of latitude which will be respected by appellate courts': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 336 (Kirby J); Lowndes v The Queen, [15]; Moody v French, [37].

89 Mr Hishmeh's plea of guilty to manslaughter was not a fast-track plea. A discount of 23% was well within the appropriate range in the circumstances, and could not be said to constitute a failure by the sentencing judge to exercise the discretion entrusted to the court. Moreover, and importantly, the sentence of 8 years and 6 months imposed for manslaughter was within the bounds of a reasonable exercise of judicial discretion in the circumstances, taking into account the appellant's early plea of guilty and all other mitigating factors.

90 For these reasons I would grant leave to appeal in respect of ground 4, but would dismiss each of grounds 3 and 4.

91 Leave to appeal in respect of ground 2 should be refused. Leave to appeal in respect of ground 4 should be allowed. Grounds 1, 3 and 4 should be dismissed, with the result that the appeal generally should be dismissed.

Citation : THE STATE OF WESTERN AUSTRALIA v HISHMEH

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Judgment (149 paragraphs)

HISHMEH -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 183 (20 September 2012)

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Legislation Cited (2)

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**Citation :** THE STATE OF WESTERN AUSTRALIA v HISHMEH

At a glance

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Judgment (149 paragraphs)

HISHMEH -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 183 (20 September 2012)

Parties

Legislation Cited (2)

Cases Cited (12)

Citation : THE STATE OF WESTERN AUSTRALIA v HISHMEH