COSTAR -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 187 (15 December 2025)

1. The appellant pleaded guilty to counts 1, 2 and 4 on a four‑count indictment. Count 3 was an alternative to count 2. The appellant entered the pleas on the day his trial was due to commence.
2. Count 1 alleged that the appellant, while in Ms Smith's home without her consent, unlawfully assaulted her, in five circumstances of aggravation.[1] The circumstances of aggravation were first that the appellant was armed with a Stanley knife and a metal wall bracket, second that he did bodily harm to Ms Smith, third that he did bodily harm to Liam, fourth that immediately before the commission of the offence the appellant knew or ought to have known that there was another person in the place, and fifth that the place was ordinarily used for human habitation.
3. Count 2 alleged that the appellant, with intent to harm, unlawfully did an act which endangered or was likely to endanger the life, health or safety of Ms Smith.[2]
4. Count 4 alleged that the appellant unlawfully assaulted Liam and thereby did him bodily harm.[3]
5. The facts were as follows.
6. The appellant and Ms Smith had been in a de facto relationship for about four years and had two children together. Their relationship ended in 2020 or 2021. In August 2021, Ms Smith obtained an order restraining the appellant from, relevantly, removing the children from her care, from school, or from day‑care. We will refer to the children as 'Amanda' and 'Belinda' to protect their identities.
7. On the day of the offending, 4 November 2021, Amanda was four and a half years old, and Belinda was two years and four months old. Ms Smith was 22 weeks pregnant to her new partner.
8. At around lunchtime, the appellant went to Amanda's school wanting to take her from school. The school called the police. The appellant stayed with Amanda until the police and Ms Smith arrived, at which time Amanda was put into Ms Smith's care.
9. Later that day, Ms Smith was at home with her two children, together with Liam, and Liam's 17‑year-old partner. We will refer to Liam's partner as 'Kate'. Ms Smith had not been in that house for very long, and the appellant was not supposed to know where she was living. He was not welcome there, nor had he been there before.[4]
10. Ms Smith and Liam heard a banging at the front door and went to the door. Liam opened the wooden front door. There was also a flyscreen security door, which was locked. The appellant shoved a metal bracket through the flyscreen door near the door handle. The wall bracket was approximately 15 cm long with a sharp metal edge. He was also armed with a Stanley knife. The appellant screamed out his children's names and said, 'Open the door, cunt,' as he attempted to open the locked flyscreen door.
11. Ms Smith said she was calling the police. Liam shut the wooden door and locked it while Ms Smith screamed at the appellant to leave. Ms Smith then rang 000. The call was recorded.
12. The appellant pulled an air conditioning unit off the front of the house and used it to smash the window to Ms Smith's bedroom. He then climbed into the house through the smashed window.
13. Ms Smith, in the hallway, pulled the door between her bedroom and the hallway closed. She and her brother tried to hold the door shut, to stop the appellant getting further into the house. However, the appellant overcame their combined efforts, and forced the door open.
14. Ms Smith backed down the hallway. The appellant followed her, holding the metal wall bracket and Stanley knife. A scuffle broke out in the hallway and continued into the kitchen.
15. The appellant grabbed Ms Smith's shoulder, pushed her to the ground, and then punched and kicked her. He got on top of her and used the wall bracket to stab her, which he did approximately five times. Luckily, the clothing that Ms Smith was wearing protected her from receiving serious injuries.
16. Liam tried to help Ms Smith. The appellant stabbed Liam in the lower left front rib area with the Stanley knife. Likewise, Liam's clothing protected him from being seriously injured.
17. Liam swung at the appellant's face with clenched fists, then forced the appellant to the ground, and held him down with his forearm over the appellant's neck. Around this time, Ms Smith managed to free herself from under the appellant. The appellant kicked Ms Smith's face. Ms Smith bit the appellant's toe. The appellant then kicked Ms Smith's stomach. As noted earlier, she was 22 weeks' pregnant at the time.
18. The appellant got back up, and both the appellant and Liam swung at each other. The appellant was still holding the knife at this point, while Liam was unarmed. Liam noticed he was bleeding. He went into the kitchen and got a knife. The appellant followed Liam into the kitchen. The appellant and Liam grabbed at each other's shirts and attempted to stab one another. The appellant slammed Liam's hand, causing him to drop the knife he was holding. The appellant tried to pick the knife up, so Liam forced him to the ground.
19. Liam started swinging at the appellant. Ms Smith tried to remove the knife from the appellant's hand and to separate him from Liam. At some point while they wrestled in the kitchen, the appellant bit Liam's right forearm.
20. Ms Smith saw that the appellant had a steak knife in his hand. Believing the appellant was going to kill Liam, Ms Smith grabbed a steak knife from the knife block and stabbed the appellant's thigh. She then dropped the knife. The appellant ran towards the front of the house, shouting, 'You're dead. You're dead,' before leaving the house.
21. Ms Smith then went to check on her children. At some point during the event, Kate had taken them into the bathroom and locked the door.
22. The incident lasted approximately 10 minutes. Parts of what occurred can be heard on the recording of the 000 call. The recording is harrowing.
23. As a result of the altercation, Ms Smith suffered a laceration on her left little finger and a bleeding digital artery, and multiple areas of bruising and tenderness, including to her abdomen, spine and jaw. She underwent surgery to repair her finger, but has still been left with a permanent injury. Fortunately, her baby was born healthy.
24. Liam's injuries included lacerations to an ear, a thumb, fingers, and the back of his head. He also suffered a bite to his arm and various abrasions and superficial lacerations to other areas of his body.
25. The appellant also sustained injuries, including numerous stab wounds.

1. The appellant's criminal history included three offences against Ms Smith.
2. The first two were committed in May 2017. He stole Ms Smith's mobile phone on 27 May 2017 and, the next day, kicked Ms Smith's car. He was convicted of stealing and criminal damage, and fined $1,000. He committed these offences when he was on bail for an aggravated unlawful wounding he committed on his mother on 15 April 2017.
3. The third offence against Ms Smith was an aggravated assault causing bodily harm on 14 September 2018. He was put on an intensive supervision order for 9 months for this offence.
4. In addition, the appellant's record contains numerous offences which, on their face, suggest a persistent disregard for the law. These include breaches of bail undertakings, protective bail conditions, and community orders. He has also been convicted of giving false details to the police, and failing to comply with police requirements.

Psychiatric report available to the sentencing judge

1. Dr Marshall Watson, forensic psychiatrist, prepared a report for the purposes of sentencing the appellant for these offences.
2. The appellant told Dr Watson that he was first diagnosed with a major mental illness when he was 20 years old.[5] He said he been admitted to Graylands Hospital on six occasions. He said that the admissions occurred in the context of not taking his medication, feeling paranoid that his partner was being unfaithful, and feeling depressed. He told Dr Watson that he had been put on depot medication, but that this had ceased as he was apparently doing well.[6]
3. Early in the report, Dr Watson said the appellant told him that, at the time of the offending, he was missing his children and did not feel as though his behaviour was out of character.[7]
4. Later in the report, Dr Watson set out in detail the appellant's account of the offending:
   1. Mr Costar's account of the index offence was that he and his partner had separated in April of 2021 after he was unfaithful and he stated she was resentful regarding this. He stated that this was just prior to his eldest's birthday. He stated that she then started becoming distant, would not let him stay at her home even though they had been separated and he stated he was concerned that she was seeing other people and did not want him to know where she was living. He stated 'I was needy and super in love with her'.
   2. He stated between April and November 2021 he was depressed, not seeing his children and as a result was not going to work, he was not able to pay bills, and he was getting the police to do welfare checks on his ex‑partner. He stated that she made contact more difficult. He stated that one day he 'just turned up at his daughter's primary school', surprised her while she was in class, sat with her at lunch time with her on his lap, the police were called who arrived, removed his daughter and he has not seen them since this time.
   3. He stated that after this he went to the house to see his children, his ex‑partner would not let him in then it was his ex and her brother that assaulted him. He stated that he broke in and smashed the window at the front of the house and alleged that his ex‑partner's brother stabbed him in the back about 15 times.
   4. He disputed the Statement of Material Facts when presented to him and minimised his ex‑partner's injuries and his actions at the time. He stated that he was blacking out from a loss of blood.
5. Dr Watson set out information he had received from collateral sources, including medical records from the Department of Justice.[8] He reported:
   1. In November of 2021 he was seen by Dr Edward Petch, Psychiatrist. Mr Costar has a history of schizophrenia with numerous relapses since, substance misuse but he stated that he had small amounts of alcohol. It was noted that he presented with auditory hallucinations when psychotic. The psychotic beliefs relate to his daughter and the meaning of her crying and meaning she is in danger from her mother so he had to rescue her. He stated that this is what he did, was to break in and assault the family members with a knife. He stated he knew where the family was despite him not supposed to and there being VROs against him. He did not want medication at the time.
6. Dr Watson concluded:
   1. On the balance of probabilities based on my review of medical records upon his arrival into custody, it appears that Mr Costar was mentally unwell, i.e. psychotic, at the time of the offences. This is noted in Dr Petch's assessment on 11th November 2021. At the time there was an escalation of auditory hallucinations with paranoid beliefs regarding his daughter and believed that she was in danger.

1. On the balance of probability, it appears that Mr Costar's offending occurred in the context of a relapse of psychotic symptoms, that is auditory hallucinations and paranoid ideation believing that his daughter was in danger and which he acted upon.
2. Dr Watson said that the most likely scenario in which Mr Costar would re‑offend would occur in the context of non‑compliance with medication and relapse of psychotic features.[9]

1. The learned sentencing judge applied a 4% discount under s 9AA of the Sentencing Act 1995 (WA) for the appellant's pleas of guilty.
2. The appellant was sentenced to 10 years 6 months' immediate imprisonment on count 1, 6 years' immediate imprisonment on count 2, concurrent with count 1, and 3 years' immediate imprisonment on count 4, concurrent with count 1. The total effective sentence of 10 years 6 months' imprisonment was backdated to 7 November 2021, to take account of time spent in custody on remand.
3. The learned sentencing judge also made violence restraining orders protecting Ms Smith and Liam.[10]

1. After describing the facts of the offences, the learned sentencing judge referred to the appellant's prior offences against Ms Smith. Her Honour briefly noted the facts of the offending in May 2017. Her Honour set out in detail the facts of the aggravated assault occasioning bodily harm in 2018.[11] As will be seen when dealing with ground 4, her Honour had been provided with a statement of facts for that offence which did not reflect the basis upon which the appellant had been sentenced.
2. The learned sentencing judge noted the vulnerability of the victims. Her Honour noted that the offending took place in Ms Smith's home and would have adversely affected all those present in the home at that time, including the two young children. Her Honour noted that Ms Smith was made more vulnerable because of her concern to protect her children, and the fact that she was pregnant. Her Honour noted that Liam was only 16 years old, and was put in the position of having to defend his sister.
3. The learned sentencing judge noted the profound impact of the offending upon Ms Smith and her family. Despite surgeries, Ms Smith's finger remained permanently injured. Her home no longer felt like a safe space. The offending caused a significant financial impact, including Ms Smith's inability to continue her casual employment due to her finger injury, the clean‑up of the house (and hotel bills while that was occurring), and medical bills. Ms Smith had also suffered from the impact the offending had on her family. Amanda changed from a happy, funny, bubbly child to a child who was fearful and sad. She suffered nightmares and her mental health had declined. Liam continued to bear the physical scars from the offending and had struggled with what the appellant had done. He became highly alert to any noise or sound.
4. The learned sentencing judge took into account that the appellant was 24 years old at the time of the offending.
5. Her Honour noted that, as a child, the appellant was exposed to domestic violence perpetrated by his stepfather against his mother. He left school in year 10 and worked in bricklaying, plastering and fixing roofs into his 20s.[12]
6. The learned sentencing judge noted that the appellant had been diagnosed with, among other things, schizophrenia. Her Honour summarised the appellant's history of mental illness and treatment, based on the incomplete information that had been presented to the court.
7. Her Honour accepted that the appellant was mentally unwell at the time of his offending, experiencing an escalation of auditory hallucinations and paranoid beliefs about his daughter, and that he believed his daughter was in danger.[13] However, her Honour said (based on the incomplete material before the court) that the appellant knew that he needed to take his medication but had made a choice not to take it.[14]
8. The learned sentencing judge noted the appellant's history of offending, finding that he was not a person of good character, but was a person with little regard for the law or the safety of others.[15] Her Honour described the appellant's willingness to ignore court orders put in place to protect others as a serious aggravating factor.[16]
9. The learned sentencing judge set out the history of the proceedings leading up to the appellant's pleas of guilty. Her Honour noted that the pleas were entered on the first morning of the trial, but that the appellant had indicated that he would plead guilty on the Friday afternoon before the trial was set to commence. By that time, the State had prepared the matter for trial, other than meeting with the victims to prepare them for trial. Her Honour noted that the pleas of guilty saved the witnesses from being called to give evidence at trial, and had saved the costs of running a trial. Her Honour concluded that the pleas were 'late', but did have significant utility in the circumstances. Her Honour said she would reduce the sentence she would otherwise have imposed by 4% for the pleas of guilty.
10. Her Honour said that the appellant was not remorseful, even after his mental illness had been treated.[17]
11. The learned sentencing judge took into account material that showed that the appellant had completed several courses while on remand, and said that was to his credit.
12. Her Honour said that the appellant was a danger to the community because, when he was not medicated, his mental illness caused his behaviour to be unpredictable.
13. The learned sentencing judge further found that the appellant was a danger to Ms Smith, whether he was medicated or not. This finding was based on her Honour's view that the appellant had entrenched views about the use of violence in a domestic setting. Her Honour said that, unless and until the appellant made a commitment to addressing his issues of violence in a relationship, he would remain a high risk of re‑offending violently against Ms Smith. This finding appears to have been based on the appellant's lack of remorse and insight into the offending, and the appellant's history of offending against Ms Smith.[18]
14. The learned sentencing judge highlighted the following features of the offending.
15. First, the offending was premeditated and planned. The appellant went to the house armed with the bracket and the Stanley knife.
16. Second, the offending was persistent. When the appellant could not get into the house through the front door, he used the air conditioning unit to smash a window. Inside the house, the offending was prolonged.
17. Third, the appellant used the weapons to cause injuries to Ms Smith and Liam.
18. Fourth, the violence was serious.
19. Fifth, (and a pleaded aggravating feature of count 1), the offending was committed in Ms Smith's home, where the victims were entitled to feel safe.
20. Sixth, the offending had a significant impact on the victims.
21. Seventh, the learned sentencing judge acknowledged that the appellant was probably psychotic at the time of his offending. However, her Honour said (based on the incomplete material before the court) that, as the appellant had chosen not to take his medication, he had contributed to the decline in his mental health.
22. Eighth, the appellant's injuries had been caused because the victims were fighting for their lives.

Ground 5: the finding that the appellant chose not to take his medication

1. It is convenient to begin with ground 5.
2. By ground 5, the appellant alleges that the learned sentencing judge erred in fact, alternatively a miscarriage of justice arose, because her Honour made a repeated finding that the appellant made a conscious choice not to take his medication when this information was not correct.
3. In short, the appellant alleges that the learned sentencing judge was wrong to find that the appellant made a conscious choice not to take his medication.
4. The appellant seeks leave to adduce the following additional evidence in support of this ground:
   1. a Graylands Hospital Discharge Summary of his interactions with the State Forensic Mental Health Services during 2021;[19]
   2. an affidavit from the legal practitioner who represented the appellant in the sentencing proceedings; and
   3. Dr Wojnarowska's report, which included information obtained from 'PSOLIS Mental Health Data Base'.
5. The Graylands Hospital Discharge Summary and Dr Wojnarowska's report provide much more information about the appellant's interactions with mental health services than the material that was before the learned sentencing judge. The material shows that:
   1. the appellant had contacted mental health services asking for medication to treat his mental illness on 22 June 2021, 9 August 2021 and 4 October 2021;
   2. in June 2021, the appellant reported he was feeling paranoid;
   3. in August and October, police reported that the appellant had been behaving oddly.
   4. On 11 October 2021, three weeks before the offending, the 'Medical Co‑Response' reported that the appellant's symptoms of schizophrenia were becoming more apparent.
6. Dr Wojnarowska is a very experienced forensic consultant psychiatrist. She reviewed the mental health records and interviewed the appellant. She noted that non‑compliance with medication was the most important factor in the appellant's fluctuating mental state and frequent hospital admissions.[20]
7. Dr Wojnarowska's summary and opinion was as follows:
   1. The conflict with his ex partner and difficulties with access to see his children as reported by Mr Costar appears to be a significant factor in his deterioration in mental state and index offending. In addition, Mr Costar was not on psychotropic treatment at the time of committing the offences with depot antipsychotic treatment showing some improvement in his mental state and a reduction in aggressive behaviours historically. ...
   2. Given the length of sentence, it would be difficult to predict what his level of compliance with mental health treatment would be after release. He does not have antisocial personality disorder and very likely his violence is related to untreated mental illness.
   3. Perpetuating factors include Mr Costar's ongoing psychiatric symptoms which at present are treated. The most significant symptoms are Mr Costar's paranoia and persecutory delusions which are a significant contributing factor for his violent behaviour.
   4. Protective factors include that Mr Costar is willing to engage in assessment with his treating psychiatrist and has been largely compliant with medication since his return to prison from hospital. He has insight into the deterioration in his mental state prior to the index offence and understands that medications are helpful in treating his symptoms. He has historically attempted to seek help in the community when feeling his mental health is deteriorating.
   5. Mr Costar has multiple static and dynamic risk factors associated with an increased risk of violence. In consideration of risk, all factors of risk in the past are amenable to change. Factors include a history of previous violence, violent attitudes, other antisocial behaviour, problems with relationships, problems with employment, substance use, psychiatric illness, history of traumatic experiences and failure of previous treatment or supervision response. For the most part these factors are present only when Mr Costar is unwell. However, as noted these are dynamic factors with the likelihood of change. Given Mr Costar's current long sentence, a more robust and th[o]rough risk assessment should be completed in the event he is facing sentencing or release to the community.
   6. ... In Mr Costar's case the most likely scenario of future violence would be the repeat of a violent incident in the form of an assault on either his ex‑partner, family member or random member of the community whom Mr Costar believes wishes to harm him. Of concern, Mr Costar could potentially act in what he believes to be an altruistic manner to protect his children, this could mean significant risk to his ex‑partner and potentially to his children. His violence is most likely to occur in the context of a relapse of his psychotic symptoms.
   7. In my opinion, Mr Costar should have been treated in the community on depot medication subject to a CTO. What is known from research, is that 30% of people on oral medications are non compliant, in particular homeless people or those facing accommodation instability. It is at the discretion of the mental health service and treating psychiatrist if a depot medication should be introduced.
   8. The question remains, did Mr Costar have capacity to decline depot medication whilst in the community. In my opinion he most likely did not given how he presented at the time he contacted mental health services. However this should have been determined by the treating psychiatrist and mental health team in the community that were providing follow‑up at the time.
8. As the above extract shows, Dr Wojnarowska's opinion was that the appellant probably did not have the capacity to decline depot medication in the period leading up to the offending.
9. The affidavit from the appellant's counsel in the sentencing proceedings (not counsel in the appeal) explains why she had made a particular concession in the plea in mitigation. During the plea, defence counsel said that the appellant exercised his choice 'not to continue with the depot injections' because he 'found it too difficult', and that it was 'not an excuse in any way, shape or form'.[21] In her affidavit, defence counsel said she had sought to obtain information about the appellant's engagement with mental health services. Defence counsel understood that the relevant service was the Mirrabooka Mental Health Service. When defence counsel contacted that service, she was told that the appellant had not been actively involved with the service since 2019. The appellant told defence counsel that his recollection was to the contrary, but accepted that what she had been told was true.
10. The summary of the mental health records set out in Dr Wojnarowska's report shows that the information given to defence counsel by the Mirrabooka Mental Health Service was incorrect. Had defence counsel been given the correct information, the concession would not have been made.
11. Further, had the additional evidence been before the learned sentencing judge, her Honour would not have found that the appellant had made a conscious choice not to take his medication. It is also likely that her Honour would have found that the appellant's moral culpability for the offending was reduced due to his mental illness.
12. We do not accept the allegation in ground 5 that the learned sentencing judge erred in finding that the appellant made a conscious choice not to take his medication. On the information before her Honour and defence counsel's concession, that conclusion was justified. However, we are satisfied that a miscarriage of justice arose from the absence of the additional material in the sentencing proceedings. Further, we consider that, when account is taken of that material, a different sentence should have been imposed. For those reasons, we would allow the applications to adduce this additional material into evidence,[22] and would uphold ground 5. The appellant must be resentenced.

1. As we would allow the appeal and resentence the appellant, it is unnecessary to consider several of the remaining grounds. These are grounds 6, 7 and 8. For that reason, we would refuse leave to appeal on those grounds.
2. Grounds 1 to 4 are of relevance to the resentencing of the appellant, so we will deal with them.

Ground 1: was the discount applied to total effective sentence?

1. Ground 1 alleges that the learned sentencing judge erred in law by deducting the 4% discount allowed for the pleas of guilty under s 9AA from the total effective sentence her Honour would otherwise have imposed, instead of from each individual sentence her Honour would otherwise have imposed.
2. It was common ground that, if her Honour did apply the discount to the total effective sentence rather than each individual sentence, this would have been an error.[23]
3. The learned sentencing judge set out the history of the proceedings, and the time at which the appellant pleaded guilty. She noted that, while the pleas were entered late, they were of significant utility. Her Honour said:[24]

Accordingly, I will reduce the sentence I would otherwise have imposed on you. The law requires me to inform you of what that reduction will be, so I advise that I will reduce the sentence I would otherwise have imposed by four per cent.

1. The appellant submits that the references to 'sentence' in the singular shows that her Honour deducted the discount from the single total effective sentence rather than the three individual sentences imposed for each offence.
2. In our view, the appellant places more weight on the learned sentencing judge's use of the singular than it can bear. Read in the context of the sentencing remarks as a whole, we would not infer that her Honour made the alleged error.
3. The appellant further submits that, while the pleas were entered at the same time, the charges were laid at different times. The appellant submits that, for this reason, the learned sentencing judge should have separately considered the appropriate discount to be given for each plea. The appellant notes that the aggravated burglary charge was laid just over two years before the guilty plea, whereas the other two charges were laid only five months before the guilty pleas were entered.
4. In our view, the difference is not material.
5. The appropriate discount to be given for a plea of guilty will depend upon numerous factors, including the extent to which the plea is of benefit to the State and to any victim. A plea of guilty may also be an indication of remorse. For that reason, as reflected in s 9AA(3) of the Sentencing Act, the earlier in the proceedings a plea is made, the greater the reduction in the sentence may be.
6. The appellant communicated that he would plead guilty to all three offences the Friday afternoon before the trial was to begin. The benefit to the State and to the victims was the same for all three pleas.
7. Although the delay between the charges and the pleas was shorter in relation to counts 2 and 4, it was still five months, during which time the scheduled trial grew ever closer Plainly, none of the pleas were made at the first reasonable opportunity after the charge had been laid. Indeed, given the pending trial, none were made within any reasonable period after the charge was laid. The learned sentencing judge correctly described all three pleas as 'late'.[25]
8. In our view, there is no principled basis upon which different discounts should have been given.
9. We would refuse leave to appeal on ground 1.

1. Ground 2 alleges that a miscarriage of justice arose because the sentencing judge was unaware of a negotiation letter sent on behalf of the appellant (by previous counsel, who was not counsel at sentencing or on appeal) at an early opportunity which was relevant to sentence and to the discount under s 9AA.
2. The appellant seeks leave to adduce the letter into evidence.[26] The letter was dated 18 February 2022. At that time, the appellant faced five charges:
   1. Aggravated home burglary and commit an offence.
   2. Aggravated assault occasioning bodily harm to Ms Smith.
   3. Caused grievous bodily harm to Ms Smith in the course of an aggravated home burglary.
   4. Aggravated wounding of Liam.
   5. Aggravated wounding of Ms Smith.
3. The letter said:[27]

... I am instructed to make this early plea of guilty offer to you on the basis of my client's instructions that he is guilty of certain of the aggravated burglary.

However Mr Costar intends to defend all of the other offences and maintains that he is not guilty of the other offences. ...

In summary, Mr Costar admits the aggravated home burglary and commit an offence. He broke into the property armed with a metal bracket which he intended to use to unlawfully access [the property] in order to see his children. He did not enter the property with the intent of harming any person. Mr Costar's overriding intention was simply to see his children by unlawfully entering the property.

On this basis Mr Costar is prepared to plead guilty to the aggravated home burglary charge. The matter could be resolved if he were to enter a plea of guilty to this charge on the proviso that all other charges are withdrawn by Police

Mr Costar intends to defend the balance of the charges on the basis that he was attacked with steak knives by both [Liam] and [Ms Smith]. [Ms Smith] inflicted most of the serious stab wounds to Mr Costar, in what he describes as a frenzied attack on him by both of them wielding and stabbing him with steak knives. He said he had no weapon at the time and most certainly no 'Stanley knife' as he had dropped the metal bracket before the fracas.

...

Costar is prepared to plead guilty to aggravated burglary on the basis that his intention was not to cause harm, but to see his children, in circumstances where he was not permitted to do so. He also will plead guilty to carrying the metal bracket in ... order to gain entry to the house, which of course is a burglary.

The [point] to be made is that he did not intend to cause harm to any persons. His intention was to gain entry to the house to see his children and he was prepared and did use force to gain such entry[.]

1. The letter said that the appellant would defend each of the other charges. The letter then set out the appellant's version of events. The appellant asserted that he dropped the metal bracket at the entry to the bedroom doorway and did not use it at all. The appellant denied even having the Stanley knife. The appellant denied pushing Ms Smith to the ground. He asserted that he kicked her only once, and only in self‑defence. The appellant denied having any weapon at any time. He admitted biting Ms Smith, but again asserted this was only in self‑defence.
2. In his written submission in the appeal, the appellant said that '[i]f the [letter] is viewed as a conditional offer, it was conditional on other related charges being withdrawn, which were actually withdrawn'.[28]
3. The letter was, plainly, a conditional offer. However, it was an offer to plead to nothing more than unlawfully entering the property, while carrying a metal bracket for the purpose of using it to enter the property, and with the intention of seeing his children. It expressly denied he was armed with a knife. It implicitly denied that he was armed with the metal bracket with the intention of using it as a weapon. The letter expressly denied that he used any weapon to cause injury to Ms Smith or Liam. It denies that he pushed Ms Smith to the ground. The only force he admitted using was asserted to have been in self‑defence.
4. The asserted factual scenario could not have constituted a burglary. It did not admit the appellant had the intention of committing an offence when he entered the property, or that he committed an offence once inside. During the hearing of the appeal, the appellant conceded that the asserted factual scenario denied that the appellant entered the property with an intention of committing an offence. However, the appellant argued that it could be construed as an offer to plead to a burglary on the basis that, once inside the house, he committed an offence, namely, that he was armed in a way that may cause fear, an offence contrary to s 68 of the Criminal Code.[29] We doubt this. The letter asserted that the appellant was carrying the bracket solely to gain entry into the house, and denied he had the knife.[30] In our view, the letter was, at most, an offer to plead guilty to trespass (contrary to s 70A of the Criminal Code).
5. It is true that, as the appellant asserts, the letter was conditional on other related charges being withdrawn, and those other charges were actually withdrawn. However, the withdrawn charges were replaced with charges that arose out of the same conduct and again alleged offences of violence towards Ms Smith and Liam. The appellant did not admit acting violently towards either Ms Smith or Liam (other than in self‑defence) until the Friday before the trial was listed to commence.
6. In our view, the letter was not mitigating in any way. The very limited admissions did not begin to reflect the criminality of the offending. We do not accept that, if the learned sentencing judge had been aware of the letter, it could have made any difference to her Honour's assessment of the appropriate discount to be given for the pleas of guilty.
7. We are not satisfied that a miscarriage of justice arose from the absence of the letter in the sentencing proceedings. Nor are we satisfied that, when account is taken of the letter, a different sentence should have been imposed. For those reasons, we would dismiss the application to adduce the letter into evidence[31] and would refuse leave to appeal on ground 2.

1. Ground 3 alleges that the discount of 4% was manifestly inadequate in the circumstances.
2. In asserting that the discount in relation to the first offence was manifestly inadequate in the circumstances, the appellant relies in particular on the letter of offer the subject of ground 2. We have already explained why we do not accept that the offer was mitigating.
3. In asserting that the discount for the other two counts was manifestly inadequate in the circumstances, the appellant relies in particular on the fact that the charges of those counts were laid 'only' five months before the pleas of guilty were entered. We have already explained why we do not accept that the fact that those charges were laid more recently increases the mitigating effect of the pleas to those charges.
4. The State submits that the discount of 4% is commensurate with the lateness of the plea and consistent with discounts given in other cases where offenders pleaded guilty at a similar stage of the proceedings. In support of this submission, the State refers to Lee v The State of Western Australia,[32] Hishmeh v The State of Western Australia,[33] Wilson v The State of Western Australia,[34] Bhangu v The State of Western Australia,[35] Amedi v The State of Western Australia,[36] LTT v The State of Western Australia,[37] and The State of Western Australia v Winch.[38]
5. We do not accept that the discount of 4% was manifestly inadequate in relation to any of the offences.
   1. All the charges had been laid five months or more before the pleas were entered. The pleas were not foreshadowed until the Friday afternoon before the trial.
   2. A five‑month delay is well beyond what might be a reasonable time within which to get advice in such a matter, when the trial was drawing closer by the day.
   3. The lateness of the plea meant that the State was required to almost entirely complete its preparation for the trial.
   4. The lateness of the plea also meant that the victims did not find out that they would not be required to give evidence until the Friday before the trial was due to commence.
   5. The offer in the letter was an offer to plead to conduct which did not approach the criminality of the offences for which the appellant was sentenced, and which asserted a factual scenario in which Ms Smith and Liam were the attackers and the appellant was the victim.
6. We would refuse leave to appeal on ground 3.

1. Ground 4 alleges that the learned sentencing judge erred in fact, alternatively a miscarriage of justice arose, because her Honour took into account the wrong facts relating to a prior domestic assault that impacted on the sentencing in a material way.
2. The prior domestic assault the subject of this ground was the aggravated assault causing bodily harm the appellant committed against Ms Smith on 14 September 2018. We will refer to this offence as the '2018 assault'.
3. In her sentencing remarks, the learned sentencing judge accurately read out the statement of material facts for the 2018 assault.[39] This had been provided to her Honour by the State prosecutor (not counsel in the appeal).[40]
4. The appellant seeks to adduce into evidence in the appeal the transcript of the sentencing proceedings in the Magistrates Court for the 2018 assault.[41] It shows that the appellant was in fact sentenced on a different, and much less serious, factual basis.[42] Regrettably, no one (including the appellant's then counsel) drew this to her Honour's attention.
5. The difference was significant. The statement of facts alleged, among other things, that the appellant had driven a car at Ms Smith, causing her to back away. It alleged he had then reversed the car, and driven it at Ms Smith again, hitting her leg. However, he was sentenced on the basis that he had not deliberately driven into her, but rather that he had not given proper thought to his manner of driving, and the chance of causing bodily harm from his manner of driving was foreseeable.[43]
6. The State contends that 'any error' cannot have had an impact on the sentencing. It submits that the 2018 assault was relevant because it was committed against the same victim and the intensive supervision order that he was placed on for that offence had not achieved its rehabilitative purpose. It submits that repeat offending against the same victim was relevant to the need for specific deterrence and the protection of the community.
7. We do not accept that the error could not have had an impact on the sentencing. The learned sentencing judge mistakenly believed, from the material provided to her by the State, that the appellant had previously deliberately driven a car at Ms Smith, causing her an injury. We would infer that this belief contributed to her Honour's emphatic conclusions as to the appellant's likelihood of re‑offending. Her Honour said:[44]

There's also a problem with your attitude to offending [more] broadly and your suspected use of illicit substances.

...

Yes, Mr Costar, I am absolutely calling you out on your disgusting attitude towards domestic violence and the danger you present in that setting.

...

Until you are fully rehabilitated, you should come with a warning sign to any woman who may think about being in a domestic relationship with you, and it should read 'Danger: domestic violent offender. Run away now'.

1. In our view, the State's contention that the error could not have affected the outcome is unsustainable.
2. While reiterating that the error was caused by the material provided to her Honour by the State, we are satisfied that a miscarriage of justice arose from the absence of that material in the sentencing proceedings. Further, we consider that, when account is taken of that material, a different sentence should have been imposed. For those reasons, we would allow the application to adduce the Magistrates Court transcript into evidence,[45] and would uphold ground 4.

1. The application for leave to appeal was filed out of time. The delay was relatively short and has been explained, at least in part. The State does not oppose an extension of time being granted.
2. As there is merit in two of the grounds of appeal, we would grant the extension of time.

1. For these reasons, we would grant an extension of time within which to appeal, refuse leave to appeal on grounds 1, 2, 3, 6, 7 and 8, give leave to appeal on ground 4 and 5, and would allow the appeal.

1. The court has all the material it needs to resentence the appellant.
2. The maximum penalty for count 1, the aggravated home burglary, is 20 years' imprisonment. For count 2, unlawfully doing an act with intent to harm, the statutory maximum penalty is 20 years' imprisonment. For count 4, assault occasioning bodily harm, the maximum penalty is 5 years' imprisonment.
3. The offending was very serious. The appellant smashed his way into the victims' home. He was armed with a metal bracket and a Stanley knife. He attacked the pregnant Ms Smith. When her 16‑year‑old brother tried to help her, the appellant attacked him too. While this was happening, the two young girls were in the locked bathroom with Kate. It took the heroic efforts of Ms Smith and Liam to make the appellant stop.
4. The events lasted about 10 minutes. Ms Smith and Liam were terrified and in fear of their lives. The impacts on all the occupants of the house were significant and enduring.
5. The appellant is not entitled to any mitigation on account of good character. Nor was he remorseful, even after his mental illness had been treated.
6. The appellant's pleas of guilty are mitigating. They were of benefit to the State and the victims, primarily because the victims did not have to give evidence. However, they were foreshadowed, and entered, very late. We would discount each sentence by 5%, under s 9AA of the Sentencing Act.
7. The appellant was remanded in custody in Hakea prison for approximately 3 years. We take into account that, at times, prisoners in Hakea were kept in lockdown up to 22 hours a day.
8. The appellant's mother and grandmother remain supportive of him. His mother understands that the appellant needs help to remain compliant with his medication. This support is a protective factor, relevant to the appellant's risk of re‑offending.
9. The primary mitigating factor is the appellant's mental illness.
10. The appellant concedes that mental health may be a double‑edged sword. On the one hand, it may indicate that a lower sentence should be imposed because, for example, the offender's moral culpability was reduced. On the other hand, it may indicate that there is an increased risk that the offender will offend again, and that greater weight should be given to the need to protect the community from that risk.[46]
11. We accept Dr Wojnarowska's opinion that the appellant's mental illness was causally connected to the offending. We further accept that the appellant did not have a meaningful capacity to refuse medication. In our view, this substantially reduces his moral culpability for the offending. We also consider that the appellant's mental health issues will mean that personal deterrence will be less effective, and his suitability as a vehicle for general deterrence is reduced. For these reasons, we would moderate the weight we would give to personal and general deterrence as sentencing considerations.
12. That said, we would still give some weight to personal and general deterrence. Dr Wojnarowska noted that non‑compliance with medication was the most important factor in the appellant's fluctuating mental state and frequent hospital admissions. She noted that his history showed that, when the appellant was treated with depot antipsychotic treatment, there was some improvement in his mental state and a reduction in aggressive behaviours.
13. We accept that it is difficult for a person suffering from schizophrenia to remain compliant with medication, particularly when life events are stressful. However, it is important that, when the appellant is medicated and mentally well, he is motivated to continue to comply with his medication regime. For these reasons, while we would moderate the weight to be given to specific deterrence because of his mental illness, it is still of significant weight in this case. For similar reasons, while we would moderate the weight to be given to general deterrence, it is still of weight in this case.
14. Further, the appellant poses a significant risk to the community. He has an established history of becoming non‑compliant with his medication. Once he is released into the community, and even with the support of his family, the protection of the community will largely depend upon the ability of mental health services to ensure that he remains medicated. On the information before the court, it would seem that this could only be achieved if the appellant is required to accept depot medication indefinitely, and, if he fails to present himself for the medication to be given, prompt action is taken to ensure that the medication is given before his mental health deteriorates. Having regard to the history of the appellant's treatment, we are not confident that that will occur. In our view, the appellant's mental illness increases the significance of community protection as a sentencing consideration.
15. In addition, we consider that the appellant poses a risk even when medicated. Dr Wojnarowska said that, if the appellant did violently re‑offend, his violence was most likely to occur in the context of a relapse of his psychotic symptoms. Dr Wojnarowska also said that most of the risk factors are present only when the appellant is unwell. However, this leaves open the possibility that the appellant may re‑offend violently even when well. Having regard to the appellant's lack of remorse for this offending even after he became mentally well, we consider the risk to be real.
16. We have had regard to the cases said to be comparable by the parties in their submissions on grounds 7 and 8 of the appeal.
17. There is no established range for home burglaries given the wide range of circumstances in which such offences can be committed and the varying personal circumstances of those who commit them. However, home burglaries are serious offences that are prevalent and should ordinarily result in terms of imprisonment. This court has observed that there has long been a recognition that sentences for home burglary need to be firmed up. The necessity for the firming up of sentences for aggravated home burglary offences has been repeatedly emphasised since 2020. That necessity should be reflected in an increase in sentences over time.[47]
18. In support of ground 7 of the appeal (that the sentence on count 1 for the aggravated burglary offence, being 10 years 6 months' imprisonment, was manifestly excessive), the appellant relies on The State of Western Australia v Tawhitapou,[48] Jones v The State of Western Australia,[49] The State of Western Australia v Billett, The State of Western Australia v Krakouer,[50] Puntigam v The State of Western Australia,[51] Hewins v The State of Western Australia,[52] and Luckman v The State of Western Australia.[53] The State referred to SYO v The State of Western Australia.[54]
19. In support of ground 8 of the appeal (that the sentence on count 2 for doing an act, with intent to harm, which endangered or was likely to endanger the life, health or safety of a person, being 6 years' imprisonment, was manifestly excessive), the appellant relies on The State of Western Australia v Tulloch,[55] Gomboc v The State of Western Australia[56] and Hayward v The State of Western Australia.[57]
20. Even when this court 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.[58]
21. Further, the facts and the aggravating and mitigating factors are, unsurprisingly, different in each case cited by the parties, and different to the facts and the aggravating and mitigating factors in this case.
22. In this case, the offence the subject of count 2 overlapped with the second circumstance of aggravation in count 1. Further, the offence the subject of count 4 overlapped with the third circumstance of aggravation in count 1. Accordingly, in sentencing the appellant, the court must ensure that he is not punished twice for the same conduct. Recognising this, the learned sentencing judge ordered that the sentences imposed on counts 2 and 4 be served concurrently with the sentence imposed on count 1. We respectfully propose to adopt the same approach.
23. For that reason, consideration of sentences imposed for an aggravated home burglary (as cited by the parties in relation to ground 7) and sentences imposed for doing an act, with intent to harm, which endangered or was likely to endanger the life, health or safety of a person (as cited by the parties in relation to ground 8) are of limited value.
24. Nevertheless, we have considered the other cases to ensure that the sentences we would impose are broadly consistent with the sentences imposed in those cases. Unsurprisingly, no clear pattern emerges.
25. In Tawhitapou, the offender was resentenced after a successful State appeal. He was sentenced to 4 years 10 months' imprisonment for a serious home invasion, during which the offender and a co‑offender stole money with violence and while armed with a knife. These sentences formed part of a total effective sentence of 7 years' imprisonment for these offences and others.
26. In Jones, the offender appealed against a sentence of 7 years 7 months' imprisonment for an aggravated home burglary, in which the offender and co‑offenders committed an assault in several circumstances of aggravation, including that they were armed with a bat and metal bar and did bodily harm to an occupant. The court said that the sentence was 'towards the upper end of the range of sentences open to the trial judge', but held that it was not manifestly excessive.[59] The court did uphold a further ground of appeal that alleged that the total effective sentence of 8 years 9 months' imprisonment should not have been made cumulative on a term of 5 years' imprisonment the offender had been serving, for reasons of totality.
27. In the course of its reasons in Jones, the court said that, after taking into account the similarities and the differences between the facts and circumstances of the offending and the personal circumstances and antecedents of the offenders, that the sentence for the aggravated home burglary was broadly consistent with the sentence imposed by this court in other cases, including two of the cases cited by the appellant in this case, namely Krakouer and Billett.[60]
28. In Hewins, the offender alleged that a sentence of 5 years 2 months' imprisonment (reduced from 5 years 6 months for totality) imposed for an aggravated home burglary was manifestly excessive. He also alleged that a total effective sentence for this and other offences of 8 years 2 months' imprisonment was manifestly excessive. Leave to appeal was refused. As leave to appeal was refused, the sentence imposed does not provide any marker as to the upper limits of the proper exercise of discretion.[61]
29. In Luckman, the offender was sentenced in relation to two offences. The first offence was an aggravated home burglary (count 1), with the second circumstance of aggravation being that he did bodily harm to an occupant during the offence. The second offence was an offence of grievous bodily harm (a statutory alternative to count 2), which was based on the same conduct that caused the bodily harm the subject of the second circumstance of aggravation in count 1. Because the offence of grievous bodily harm was committed during an aggravated home burglary, the offender was liable to a mandatory minimum penalty of 7 years 6 months' imprisonment.[62] The offender was sentenced to 1 year 6 months' imprisonment (reduced from 3 years for totality) for the aggravated home burglary and the statutory minimum for the grievous bodily harm, to be served cumulatively.
30. The total effective sentence was therefore 9 years' imprisonment. The offender relevantly alleged that the total effective sentence was manifestly excessive because it breached the common law principle against double punishment.[63]
31. The court said that there was a very substantial, if not complete, factual overlap between the two offences.[64] It said that count 1 involved no additional criminality to that already reflected in the sentence for the grievous bodily harm such as might have justified any accumulation of the sentences. It therefore allowed the appeal and resentenced the offender. It imposed a sentence of 5 years' imprisonment for count 1, and ordered that it be served concurrently with the sentence for count 2. The court observed that it might be thought that a sentence 'somewhat greater' than the sentence of 7 years 6 months' imprisonment that had been imposed for the offence of grievous bodily harm was justified. However, as the State had accepted that that sentence was not inadequate, the court imposed the same sentence for the grievous bodily harm as had been imposed by the primary judge.
32. In SYO, the court noted the importance of general deterrence in sentencing for offences involving the use of violence by men on women with whom they are, or have been, in domestic relationships.[65] Of the cases cited by the parties in relation to count 1, SYO was the only case in which there had been a domestic relationship between the offender and one of the victims.
33. In SYO, the offender forced open a rear door of the house of his former partner (DB) and went inside. It was approximately 2.30 am, and DB was asleep in a bedroom with a 17‑year‑old male (PC). The offender hit PC several times with a metal bar approximately 30 cm in length. The offender told DB to remove her pants, and told her that he wanted to inspect her vagina to see whether she had had sexual intercourse with PC, and said that he himself was going to have sex with her. When DB refused to take off her pants, the offender slapped her twice, and threatened her with the metal bar. Fearing for her safety, DB then pulled down her pants as she had been instructed. The appellant then looked at DB's vagina and, using one of his hands, touched her vagina, moving her labia majora for a short time before removing his hand. The appellant did not penetrate the victim's vagina. The offender again accused DB of having had sex with PC and raised the metal bar as if to hit her with it. When DB shouted that she had not had sex with PC, the offender again touched her labia majora with his hand for a short period of time. PC then distracted the offender by talking to him, which gave DB the opportunity to pull her pants up.
34. While the appellant was at DB's address, he demanded she give him her mobile phone so that he could inspect it for messages. When the appellant eventually left her home, he took that phone with him.
35. The offender was arrested and later interviewed by police. He made some admissions in relation to the offending.
36. PC was hospitalised, suffering from a 4 cm laceration on his forehead above his right eye and a 5 cm laceration to the top of his head. He also sustained bruising to his torso, arms, and legs.
37. The offender was sentenced for aggravated home burglary (count 1), doing an act with intent to harm as a result of which the life, health or safety of a person was or was likely to be endangered (count 2), making a threat with intent to compel the doing of an act (count 3), aggravated indecent assault (count 4), and stealing (count 5).
38. In sentencing, the sentencing judge took into account several mitigating factors.[66]
    1. The appellant's pleas of guilty. The appellant was afforded discounts of 25% from the sentences that would otherwise have been imposed for counts 1, 2 and 3, and a 10% discount for count 4, for his pleas of guilty.
    2. The appellant had taken steps towards rehabilitation and towards addressing the issues that lead to him offending, including his drug use.
    3. The appellant was genuinely remorseful, and he had developed insight into his offending behaviour.
    4. The appellant had been largely able to overcome his deprived childhood and had become a useful member of society.
    5. The appellant had been able to lead a generally prosocial lifestyle for long periods of time.
    6. The delay in proceeding to sentence would have been stressful for the appellant and, to some extent, created uncertainty in what the future held for him.
39. In fixing the sentence imposed for count 4, the sentencing judge was required by s 324(3) of the Code to impose a mandatory minimum term of at least 5 years 3 months' imprisonment. The sentencing judge imposed a term of 5 years 6 months' imprisonment.
40. The sentencing judge reduced the sentence imposed for count 2 from 4 years 6 months' imprisonment to 3 years 6 months' imprisonment for totality reasons, and ordered that sentence to be served cumulatively on the sentence imposed for count 4. The sentences on counts 1 (3 years 6 months' imprisonment) and 3 (10 months' imprisonment) were ordered to be served concurrently. No penalty was imposed for count 5. The result was a total effective sentence of 9 years' imprisonment.
41. SYO appealed on three grounds. Two alleged errors of fact, and the third alleged that the total effective sentence was manifestly excessive. Leave to appeal on ground 3 was refused.[67] That is, the court found that it was not even reasonably arguable that the sentence was excessive.
42. Plainly, there are significant differences between SYO's offending and the appellant's offending.
43. In particular, SYO's offending included an aggravated indecent assault which attracted a mandatory minimum penalty, and which was humiliating and demeaning. In this case, there was no indecent assault and no mandatory minimum penalty for any of the offences. However, in this case, the appellant physically attacked and injured both his ex‑partner and Liam. In addition, there were two other children in the house at the time.
44. There are also obvious and significant differences between the mitigating factors available to SYO compared to the appellant.
45. As we have indicated, in this case, the sentence for count 1 will reflect the aggravated burglary offence and all of the circumstances of aggravation, and the sentences on the other two counts will be made concurrent to avoid doubly punishing the appellant. In SYO, this court held that it was not even reasonably arguable that the total effective sentence of 9 years' imprisonment was excessive. However, because of the differences between SYO and this case (and in particular the mandatory minimum penalty in SYO), and the moderated effect of general deterrence in this case, we do not consider that consistency requires that the appellant be sentenced to at least 9 years' imprisonment on count 1.
46. The appellant accepts that the seriousness of the offending requires a term of immediate imprisonment. We consider that the appropriate sentences are:
    1. count 1: 8 years 6 months' imprisonment;
    2. count 2: 4 years 4 months' imprisonment;
    3. count 4: 2 years 7 months' imprisonment.
47. The sentences for counts 2 and 4 should be served concurrently with the sentence for count 1.
48. The appellant has been in custody since 7 November 2021, and the sentence should be backdated to that date.

1. For these reasons, we would make the following orders:
   1. An extension of time within which to appeal is granted.
   2. In relation to the application for leave to adduce additional evidence filed on 1 May 2025, leave is refused in relation to annexure A in the affidavit of Sarah Helen King affirmed on 1 May 2025 (the negotiation letter) but otherwise granted.
   3. The applications for leave to adduce additional evidence filed on 28 and 31 October 2025 are granted.
   4. Leave to appeal on grounds 1, 2, 3, 6, 7 and 8 is refused.
   5. Leave to appeal on grounds 4 and 5 is granted.
   6. The appeal is allowed.
   7. The sentences imposed by the District Court of Western Australia on IND 650 of 2023 are set aside.
   8. The appellant is resentenced to individual sentences of immediate imprisonment on the counts in District Court indictment IND 650 of 2023 as follows:
      1. count 1: 8 years 6 months' imprisonment;
      2. count 2: 4 years 4 months' imprisonment; and
      3. count 4: 2 years 7 months' imprisonment.
   9. The new sentences for counts 2 and 4 are to be served concurrently with the new sentence for count 1.
   10. The new total effective sentence is therefore 8 years 6 months' imprisonment.
   11. The appellant is eligible for parole.
   12. The new total effective sentence is backdated to 7 November 2021.
   13. The violence restraining orders made by the sentencing judge on 12 September 2024 are not disturbed.

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

[1] Contrary to s 401(2) and s 401(2)(a) of the Criminal Code (WA).

[2] Contrary to s 304(2)(b) of the Criminal Code.

[3] Contrary to s 317(1)(a) of the Criminal Code.

[4] WAB 73 (and these facts were not amended in the hearing on 12 September 2024).

[5] Psychiatric report dated 28 April 2024 [13].

[6] Psychiatric report [1], [12] ‑ [13].

[8] See 'Information Accessed' on page 2 of the report.

[22] See Wellstead v The State of Western Australia [2019] WASCA 130 [78] ‑ [99].

[23] BSA v The State of Western Australia [2025] WASCA 31 [37].

[28] WAB 14 [30] (appellant's submissions).

[30] See Robinson v The Queen (unreported, WASCA, Library No 980587, 9 October 1998) 13.

[32] Lee v The State of Western Australia [2025] WASCA 32.

[33] Hishmeh v The State of Western Australia [2025] WASCA 14.

[34] Wilson v The State of Western Australia [2025] WASCA 8.

[35] Bhangu v The State of Western Australia [2024] WASCA 57.

[36] Amedi v The State of Western Australia [2022] WASCA 172.

[37] LTT v The State of Western Australia [2025] WASCA 19.

[38] The State of Western Australia v Winch [2024] WASCA 79.

[46] See Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 472, 476 - 477; SKL v The State of Western Australia [2024] WASCA 32 [24] ‑ [29]; Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [45].

[47] The State of Western Australia v Billett [2022] WASCA 158 [54].

[48] The State of Western Australia v Tawhitapou [2024] WASCA 25.

[49] Jones v The State of Western Australia [2024] WASCA 115.

[50] The State of Western Australia v Krakouer [2022] WASCA 118.

[51] Puntigam v The State of Western Australia [2023] WASCA 46; (2023) 60 WAR 26.

[52] Hewins v The State of Western Australia [2023] WASCA 2.

[53] Luckman v The State of Western Australia [2024] WASCA 140.

[54] SYO v The State of Western Australia [2024] WASCA 31.

[55] The State of Western Australia v Tulloch [2025] WASCA 17.

[56] Gomboc v The State of Western Australia [2023] WASCA 115.

[57] Hayward v The State of Western Australia [2020] WASCA 57.

[58] Hodges v The State of Western Australia [2025] WASCA 136 [74] point 6 and point 8.

[61] GUE v The State of Western Australia [2022] WASCA 121 [59].