COVENEY -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 20 (19 February 2026)

1. As many of those referred to are juveniles, and because there was an allegation of sexual assault (albeit said to be false), we will use pseudonyms to refer to them.
2. On the evening of 8 April 2023, a group of friends met at the house of Caroline for drinks.[3] Present were Caroline, who was aged 17, her boyfriend, Brett, who was aged 18, her cousin, Curt, who was aged 16, a male friend of Brett's, Thomas, and a female friend of Caroline's, Amelia. Curt was one of the only ones who wasn't drinking.[4]
3. Caroline went to bed at around 1.00 am, having drunk too much alcohol.[5] The rest of the group remained in the lounge room. Amelia began to assertively flirt with Brett. Brett declined these advances and asked Amelia to leave the house. Curt, Caroline and Brett heard Amelia speaking on a mobile telephone to someone saying, 'They're trying to rape me'.[6]
4. Later that day (that is, 9 April 2023), Curt, who had stayed overnight, was at the house alone. Caroline and Brett were together at another house.[7] At around 7.00 pm, Curt was sitting on the couch watching a movie. He heard the flyscreen front door open and turned to face the door. There were three men standing inside the front door holding weapons. Those weapons were a wooden stick, a meat tenderiser and a rubber mallet.[8] Each of the men was wearing a balaclava and a hoodie.
5. One of the men kicked Curt in the head, before all three began hitting him with the weapons that they were holding. Whilst they were hitting Curt, they were calling him a rapist and a 'paedo'. As this was occurring, one of the men called the man who had kicked Curt in the head by the name 'Jaydon' (the first name of the appellant).
6. The three men demanded that Curt message Caroline, to ask her to return to the house. The man who had been referred to as Jaydon then took a knife from the kitchen, held it up and said, 'You're lucky I don't kill you'.[9] After Curt had sent the message, the three men waited for Caroline to return to the house. Two of the men searched through the house and collected a PlayStation, a motorbike helmet, an electric scooter and a remote control, and placed them near the front door. The third man stayed with Curt.
7. When Caroline and Brett returned to the house, the three men hid. As Caroline entered the house, she was pushed aside and the three men began hitting Brett and yelling, 'You shouldn't have raped her'.[10] During the assault, Brett pulled the balaclava from the man who was the primary assailant. That person was holding the rubber mallet and the knife from the kitchen. Caroline, who was nearby, recognised the man to be the appellant, who she understood to be the ex‑boyfriend of Amelia.[11] Caroline had previously been shown a photograph of the appellant when she was at TAFE with Amelia.
8. Brett made his way to the laundry in an attempt to avoid the assault upon him.[12] The appellant then kicked down the laundry door and he and the other two men continued yelling at Brett. The three men then fled the house, dropping their weapons on the way out. Brett immediately called the police, who attended shortly afterwards. Curt estimated that the whole incident lasted about 25 minutes.[13]
9. On 10 April 2023, police attended at a house in Safety Bay and arrested the appellant.[14] They requested that the appellant hand over his mobile telephone. He ran from the police and smashed his telephone. The telephone was recovered and analysed. The appellant was then charged and bail was refused by police. Call charge records were obtained, which showed the phone moving to the suburb where the offence occurred on 9 April 2023.
10. Curt and Brett suffered scratches and abrasions;[15] in the case of Curt, to his face and legs; in the case of Brett, to his arms, shoulders and head. Whilst no doubt painful, photographs indicated that these were relatively minor injuries. Curt said in a statement that the kick to his head was not hard, though it 'shook [him] up'.[16] At the time of providing his statement to police, Curt said that he was feeling 'severe pain' in his knee.[17] An ambulance was called and he was assessed. There is not, however, any indication of any more serious injuries than shown in the photographs.
11. The appellant was remanded in custody for a total of 299 days between 10 April 2023 to 20 June 2023 and from 11 June 2024 to 24 January 2025.[18] The backdating date to account for this time in custody was 31 March 2024.
12. The appellant entered pleas of guilty on 8 August 2024, approximately six weeks before his trial was due to commence.

1. The appellant was born on 20 January 2005. Accordingly, he was 18 years old at the time of the offences, which occurred less than three months after his 18th birthday. He was born in Queensland and is the second youngest of five siblings.[19] His parents remain together.[20]
2. The appellant reported witnessing anger‑related behaviour by his father when he was a child. He witnessed one incident of physical violence towards his mother.[21] He otherwise denied any abuse, neglect or trauma in his childhood. However, he self‑described as a particularly naughty child, who was subjected to frequent corporal punishment by his father, which the appellant considered was deserved.[22]
3. The appellant experienced significant difficulties at school. He reported that throughout primary and high school he was an angry child who frequently engaged in fights with peers.[23] However, he prided himself on not engaging in bullying and said that he was protective of physically less able students. In addition to behavioural issues at school, the appellant had academic problems related to concentration and focussing on his schoolwork. This resulted in him often getting into trouble with his teachers. He was expelled from three different high schools and left school midway through Year 9.
4. The appellant was diagnosed with ADHD in primary school and was prescribed various medications to manage the condition. His mother reported that the medications negatively affected the appellant's energy and behaviour, leading to discontinuation of the medication.[24] Subsequently, following consultation with a paediatrician in Queensland, the appellant was prescribed an antipsychotic medication aimed at reducing anxiety. The appellant's mental health was more fully addressed in reports from a psychologist and a psychiatrist, which will be dealt with later.
5. The appellant reported that he commenced consuming alcohol in his early teens with this becoming problematic by age 16.[25] He has used cannabis and methylamphetamine experimentally, but at the time of sentencing, denied that he was continuing to use those drugs or any other illicit substances.
6. When the appellant was aged 16 years old, the family moved to Western Australia. The appellant worked in a fast‑food restaurant but was dismissed after assaulting two co‑workers.[26] This resulted in him facing the Children's Court for these and other offences in 2022. More recently, the appellant has worked in a carpentry position for a few months and then at a meatworks. He reported that he was made redundant from the first job and dismissed from the second. At the time of sentencing, there was some prospect that the appellant could be employed by his brother‑in‑law in a fly‑in/fly‑out position.
7. The appellant has had one significant intimate relationship with the young woman referred to in the facts as Amelia. He reported quickly falling in love with her, although he believed that she did not have the same level of commitment.[27] He described their relationship as being on‑off, with the appellant making repeated efforts to re‑engage with Amelia. The relationship ultimately ended following the appellant's remand in custody in June 2024.
8. The appellant has the strong support of his parents, siblings and other extended family members. He has also more recently developed a much stronger relationship with his father.[28] However, he has few pro‑social friendships.
9. A character reference from the appellant's mother stated that the appellant had suffered from high anxiety as a child and had always struggled with controlling his emotions.[29] She said that the appellant had not found his time in prison on remand easy. His property had been stolen, and he had been subjected to bullying. The appellant's mother said that at the time of the offences the appellant was in a 'bad place with his first love' and was not taking his medication. His mother said that since being remanded in prison, the appellant had sought help and was now back on medication, which had made a positive improvement to his mental health.
10. A character reference from the appellant's sister and brother‑in‑law confirmed that at the time the offences were committed, the appellant was in the midst of a relationship breakdown and was off his medication.[30] They state that upon release, the appellant has an opportunity to work with his brother‑in‑law in Port Hedland in a role that would provide him with financial stability and develop his skills in a structured environment with routine and discipline.
11. A further reference from Mr Tye Warry, a close friend of the appellant, states that the appellant was supportive of Mr Warry through health issues.[31] Mr Warry states that he has spoken to the appellant in prison and has noticed a positive change since the appellant has recommenced medication, seen a counsellor, and undertaken education.
12. Unsurprisingly, given his youth, the appellant did not have an adult criminal record. He did, however, have a juvenile criminal record. On 5 January 2023, he was sentenced in the Children's Court for a number of offences that were almost all committed in July 2022.[32] Those offences included aggravated burglary, common assault, criminal damage, disorderly behaviour and stealing. For these offences the appellant was sentenced to concurrent youth community based orders of 3 months. He was convicted in July 2021 of two offences of driving without authority, for which he was sentenced to a juvenile good behaviour bond. The appellant had never received a custodial sentence prior to the present matter.
13. In the course of sentencing submissions, the prosecutor informed the sentencing judge that the appellant had reoffended whilst on bail for these offences:[33]

In addition to this, [the appellant] was released on bail for the current offending in June 2024 and he did reoffend and was then remanded in custody, and that was further violent offending, and the State would say that this does demonstrate that there is an increased risk of reoffending and a heightened need to protect the community and also, to some extent, does speak to his capacity to comply with any orders.

1. The reoffending referred to appears to be a charge of assault occasioning bodily harm that was then pending in the Magistrates Court in relation to an assault that occurred after the present matters. At the time of sentencing the appellant had pleaded guilty to that charge but had not been sentenced for it.[34]

1. A psychologist prepared a report for the court and undertook a personality and diagnostic assessment. The appellant's results indicated significant psychological distress, with moderate levels of anxiety and depression, along with maladaptive coping mechanisms, including alcohol dependence.[35] The psychologist stated that these factors were likely to have exacerbated difficulties in managing emotions and maintaining focus, contributing to problems in both personal and occupational functioning. The appellant's results also revealed a complex interaction of emotional instability, interpersonal dependency and impulsivity, further complicating his ability to effectively manage relationships and life stressors.
2. The psychologist stated that the appellant's personality profile revealed what appeared to be conflicting interpersonal needs for closeness and autonomy.[36] His test results suggested a strong reliance on others for emotional validation, which may result in difficulties asserting his needs or establishing boundaries. Other results indicated frustration or resentment, often leading to tension in relationships and feelings of being misunderstood. These traits were likely to contribute to cycles of interpersonal conflict and emotional reliance, particularly under stress.
3. The psychologist said that the results suggested that the appellant would experience ongoing problems with emotional regulation and impulsivity.[37] Some of the testing scores suggested rapid mood swings, difficulty managing feelings of rejection and a fragile sense of self, often manifesting in unstable relationships and impulsive behaviours. There was additionally a propensity for risky behaviours and disregard for social norms, particularly when the appellant perceives himself to be unfairly treated. These characteristics collectively suggested a pattern of emotional and behavioural dysregulation that undermines the appellant's ability to cope with stress and maintain healthy interpersonal relationships.
4. Testing conducted by the psychologist indicated severe ADHD symptoms with scores far exceeding the clinical cut‑off, placing him in the 99.8th percentile for inattentiveness and hyperactivity compared to other adults.[38] The psychologist said that this suggests substantial difficulties with attention and executive functioning, resulting in pronounced functional impairment. Further results indicated frequent ADHD symptoms, reflecting significant problems with impulsivity and emotional dysregulation. These difficulties were likely to manifest as reactive impulsive behaviours and struggles to regulate emotional responses, contributing to substantial disruption across multiple areas of daily life.
5. Another test administered by the psychologist was designed to measure the appellant's executive functioning skills. His results indicated a high level of difficulty with executive functioning, with his total score at the 99.92nd percentile compared to other adults.[39] This suggests substantial impairments in multiple areas of executive functioning, significantly impacting his ability to manage daily tasks and responsibilities.
6. The psychologist said that the appellant is likely to experience many problems with planning, time management and organisation.[40] He struggles to create and manage plans effectively, which likely results in inefficiencies and difficulties in achieving goals in both academic and work contexts. Additionally, moderate difficulties with time management and organisation suggest occasional issues with estimating time and adhering to deadlines or attending appointments on time.
7. The psychologist said that in addition, and particularly pertinent, was that the appellant exhibited significant impairment in the areas of behavioural and emotional regulation.[41] Emotional regulation difficulties manifest as problems concerning his ability to manage emotions constructively, which is likely to lead to emotional outbursts or an inability to maintain focus during tasks. The appellant was likely to have substantial problems with impulsivity, such as acting without considering consequences or managing behaviour in a controlled manner. These impairments would considerably exacerbate difficulties in both intimate relationships and personal interactions.
8. The psychologist noted that the appellant was clear in his admission of guilt and expressed what appeared to be an appropriate level of remorse, along with a basic, albeit rudimentary, understanding of the impact of his actions on the victims.[42]
9. The psychologist concluded that the appellant's violent offending appeared to have been 'substantially influenced by numerous factors, including his early developmental experiences, personality structure, and maladaptive coping mechanisms'.[43] The appellant's childhood exposure to the anger‑related behaviour of his father likely normalised aggression as a method of managing conflict or expressing frustration. In addition, the appellant reported experiences of frequent corporal punishment. This suggested that there was an environment of punitive discipline, which may have contributed to 'internalised anger and impulsive tendencies, underpinning his future responses to interpersonal problems'.
10. Impairments in planning, impulse control and emotional regulation were likely to have reduced the appellant's ability to pause and consider consequences, further exacerbating reactive and impulsive behaviours.[44] His antisocial tendencies suggest a disregard for social norms, while passive‑aggressive traits reflect a propensity for indirect expressions of resentment. This combination likely resulted in reactive behaviours, especially if the appellant perceived injustice. He has a heightened sensitivity to perceived wrongs, coupled with executive dysfunction, and this increases the likelihood of impulsive and aggressive responses during conflict.
11. In addition, the appellant has a maladaptive coping mechanism and alcohol dependence, which further impair his judgement, weakening his ability to regulate emotions effectively.[45] These influences, shaped by early exposure to aggression, compounded by personality traits prone to emotional dysregulation, ADHD‑related executive functioning deficits, and exacerbated by substance misuse, would significantly elevate the risk of violent offending, particularly in situations of emotional provocation or interpersonal conflict. For these reasons, the psychologist was of the opinion that the appellant was in the high‑risk category for future violent offending.[46] The appellant seemed motivated to make changes but was unsure as to how to proceed.[47] His focus is on external sources of change, such as obtaining employment, receiving the support from his family or avoiding alcohol, rather than exploring more stable internalised sources of personal growth and self‑regulation.
12. The psychologist stated that the appellant would benefit from placement on one or more treatment programs targeting both violence and substance abuse. Such programs could provide him with practical strategies and insights to address his behaviours.[48] Further, he would benefit from engagement with a psychologist upon his release, providing him with an opportunity to understand the deeper emotional and psychological factors contributing to his behavioural and emotional dysregulation. Consultation with a psychiatrist was also strongly advised to gain a more definitive understanding of his mental health, particularly regarding ADHD and its impact on his behaviour.

1. The psychiatrist stated that the appellant had reported a complex psychiatric history with various diagnoses, including ASD, anxiety and ADHD.[49] He was diagnosed with ASD in early childhood, and he struggles with anxiety, which began between the ages of 13 and 14 following a traumatic home invasion, during which his family's dog was killed. This incident had a profound psychological impact, marking the onset of pervasive anxiety that persists into adulthood, particularly in unfamiliar environments and through excessive overthinking.
2. During adolescence, the appellant was prescribed an antipsychotic from the ages of 14 to 16 by a psychiatrist in Queensland.[50] This was to manage his anxiety and behavioural difficulties. He was also prescribed medication for ADHD during childhood but discontinued it due to significant side‑effects, including weight loss and a sense of emotional numbness. More recently he has commenced on mood stabilisers to address anger management and anxiety.
3. The appellant provided a detailed explanation for the offences to the psychiatrist. The appellant said that he had received a telephone call from his girlfriend, who was at a friend's house.[51] She called him in distress, screaming that individuals at the house were attempting to rape her. She alleged that the men had tried to drag her into a basement and showed him marks as evidence of the assault. The appellant said that in response, he consumed alcohol and became highly agitated and decided to confront the alleged perpetrators. He went to the house with friends, where he assaulted a person by kicking him and subsequently took hold of a kitchen knife to escalate the confrontation. He also assaulted a second man who he believed was implicated in the assault of his girlfriend.[52] He attributed his behaviour to perceived threats to his girlfriend's safety.[53]
4. The psychiatrist reported that the appellant's case reflected a complex interplay of neurodevelopmental vulnerabilities, trauma and psychosocial stressors.[54] Included amongst these factors were the diagnosed ASD and ADHD. The appellant also had ongoing difficulties with emotional regulation, social functioning and academic performance, significant trauma in his formative years, and family dynamics, including frequent disciplinary measures and an often‑absent father.[55]
5. The psychiatrist said that despite these challenges, there are several factors that support recovery and rehabilitation.[56] The appellant's family, particularly his mother, is actively involved in his care and has expressed a willingness to assist with emotional support and reintegration plans. The appellant has demonstrated insight into his behavioural issues and expressed motivation to seek counselling and professional help. His plans to pursue employment in the mining industry provide a goal‑orientated framework that could offer stability and structure.
6. The psychiatrist said that whilst there does not seem to be a direct causal link between the appellant's psychiatric diagnoses and his offending behaviour, indirect connections are present.[57] The appellant's ability to regulate emotions and impulsivity, and respond appropriately to stressors are significantly impaired. His ASD may have driven the appellant's overreaction to scenarios involving his girlfriend.[58] Similarly, his ADHD may have exacerbated his impulsivity, leading to reactive and poorly considered decisions during times of emotional escalation.
7. As regards future risk, the psychiatrist said that the appellant's ability to secure stable employment, reintegrate into the community and avoid high‑risk situations will be critical.[59] Although family support is present, professional interventions will be necessary to address the appellant's emotional and behavioural challenges. A comprehensive approach, including anger management, trauma‑informed care, and substance use education, would be vital in mitigating these risks and reducing the likelihood of reoffending.

1. The sentencing judge accepted that the offences were motivated by the appellant's belief that there had been a sexual assault or attempted sexual assault on his girlfriend. However, his Honour said that this only explained the offences and did not mitigate them.[60] Indeed, his Honour said that it made the offending more serious as it showed that it was premeditated and was an attempt by the appellant to take the law into his own hands.
2. The sentencing judge also accepted that the appellant was under the influence of alcohol at the time of the offences but said that that did not in any way excuse the offending.
3. A number of aggravating factors were identified,[61] including that the offending was premeditated, that the appellant and the other two men attended the property with weapons and were wearing balaclavas and hoodies to conceal their identity, and that the offending involved a form of vigilante justice.
4. The sentencing judge said that by taking weapons to the house and the appellant's actions on arrival, it was clear that the appellant intended to inflict harm upon those who were there.[62] His Honour found that the appellant was the primary person organising and carrying out the offending. The offending was persistent in that the appellant and his co‑offenders waited for Brett to return to the house and maintained their verbal abuse, despite his attempts to run and hide.[63] His Honour accepted that the appellant voluntarily left the house with his co‑offenders but said that that was of little significance given the nature and extent of the offending that had already occurred.
5. The sentencing judge noted that the victims were very young, being 16 and 18 years of age, and were in a residential house, where they were entitled to feel safe.[64] Although there were no victim impact statements, his Honour was prepared to infer that the offending would have been traumatic and terrifying for the victims.
6. The sentencing judge noted that the most important sentencing factors were general deterrence and personal deterrence.[65] His Honour referred to the appellant's age and summarised the psychologist's report and the psychiatrist's report.
7. The sentencing judge then turned to the appellant's prior conduct and its relevance to the question of personal deterrence. Part of what was said in this regard is relevant to ground 1. His Honour said:[66]

I turn now to your criminal record. It is clear, as your counsel have said, that this is the first time you've appeared in an adult court for offending. All of your previous offending from July 2022 back to June 2021 were offences dealt with in the Children's Court. They include offences of aggravated burglary and assault, damage to property, stealing and driving offences.

To some extent, they indicate a pattern of offending in relation to assault, burglary and other offences of that type. But because they are Children's Court offences, I only take them into account in a general way, being relevant to your background and character. The record, though, and what has been said by the psychiatrist and the psychologist in their reports, does show that you remain a risk to the community at the present.

I also take into account the fact as reported to me by the prosecutor that at one stage, you were on bail for these offences and then were remanded in custody after allegations of additional offences being committed. That has also ramifications, in my opinion, with respect to the extent to which personal deterrence is a relevant factor to you, and also to some extent, has an impact upon your progress in rehabilitation, although I'll refer to rehabilitation more specifically later.

But as I have said, your prior criminal record does indicate I need to place weight on the aim of personal deterrence. I make it clear, though, that your prior record does not aggravate the seriousness of your offending, but it demonstrates that you are not entitled to come before the court as a person of good character, or leniency on the ground that committing an offence was an uncharacteristic aberration for you. (emphasis added)

1. The sentencing judge accepted that the appellant had entered pleas of guilty on 8 August 2024. That was at a stage when the trial was due to commence on 24 September 2024, about six weeks away. In these circumstances, the plea could not be described as being early.[67] However, his Honour considered that there was some value in the plea in that a trial was not necessary and the victims were not required to come to court and give evidence. The plea also reflected some measure of remorse and understanding of what the appellant had done, and his desire to do something about his behaviour. His Honour allowed a discount under s 9AA of the Sentencing Act 1995 (WA) of 8%.
2. As to the appellant's youth, his Honour said:[68]

Your youth, as I've said, is a mitigating factor, but I must take into account also and balance that with the very serious nature of the offences that you have committed. Ordinarily, an offender's youth is a significant mitigating factor. That is because it's in the interests of the community to try and rehabilitate a young offender, and a young offender may be impressionable, impulsive, and less aware of the seriousness of conduct and particular offending than an older person, and that seems to apply to you.

And also, a lengthy period of imprisonment will ordinarily be a heavier burden on a young adult, but as I've said, your youth must be weighed against the facts and circumstances of the offences that you have committed. The Court of Appeal has said that a substantial sentence of imprisonment may be required in an appropriate case, despite somebody's youth to properly reflect the need to protect the public and the need for personal and general deterrence, and the offences that you have committed fall into that category.

1. The sentencing judge accepted that the appellant was remorseful and had a desire to do something about his behavioural issues.[69] His Honour accepted that the appellant had the support of his family and that this was an important protective factor. He also noted the appellant's aim of getting employment in the mining sector as a fly‑in/fly‑out employee.[70] Whilst his Honour took the appellant's rehabilitation plans into account, he recognised that the appellant had much work to do to rehabilitate himself.
2. As to the relevance of the appellant's mental health, the sentencing judge said:[71]

It is important for sentencing you, though, that Dr Calvin does not see a direct causal link between your mental health problems and your offending, but he does say there are indirect links. If there was a direct causal link between your mental health problems and your offending, then the mental health problems would be more mitigatory, but I do think that the offending committed by you has some lesser seriousness than for someone who did not have the mental health problems that you have.

But that is to a lesser degree than if an offender had more serious mental health problems that directly caused the offending in question. Your mental health problems and their relationship to the offending do not reach the stage that you do not have significant moral culpability for your offending, and nor do they make you an inappropriate person to sentence with the aims of general deterrence and personal deterrence.

However, your mental health issues are also relevant to understanding your background and prospects of rehabilitation. I also need to take into account that your mental health issues, although taken into account in the way in which I've suggested, also need to be taken into account as to whether you are going to be a problem when you are released to the community and, again, the issue of personal deterrence that I have mentioned.

But as a factor of mitigation, I've taken your mental health problems into account in the way that I have said. The finding that I make that you do not have a significant reduction in moral culpability for your actions is supported by the fact that you made a choice to go to the house and disguise yourself and take weapons and go with others and assault the victims, as I've mentioned. So, there was premeditation involved. It was not an instant or immediate reaction to a stressful circumstance.

The offending was serious, and as I've said, your mental health challenges are not directly causal. I need to consider whether imprisonment will be more onerous for you than other prisoners. As I've referred to and was referred to by your counsel, you are able to take the medication which is described as antipsychotic medication and which will have an effect and has had an effect on calming you. Mr [Warry], for example, has noticed that positive effect upon you for your time in prison.

But your counsel also says that you will not be able to obtain medication whilst you are in prison for your ADHD mental health problem because of the nature of the drugs that would be required to assist you with that problem, and because of that, I'm prepared to take into account that your time in custody will be more difficult for you to suffer than somebody without that mental health problem.

1. The sentencing judge concluded that the only appropriate sentences were ones of immediate imprisonment. His Honour said that the appropriate sentence on count 1 was 5 years' imprisonment and that the appropriate sentence on count 3 was 2 years' imprisonment.[72] His Honour considered that the total effective sentence should be 6 years' imprisonment, and thus reduced the sentence on count 3 to 12 months' imprisonment and made that sentence cumulative on the sentence imposed on count 1. No penalty was imposed in respect of count 2 as that offence was the grounding offence in respect of count 1. An order was made that the appellant be eligible for parole. The sentence was backdated to take into account time spent in custody on remand.

1. The sentencing judge erred in determining that allegations the appellant had committed additional offences whilst on bail for the index offences was a relevant consideration with respect to the weight to be given to personal deterrence as a purpose of sentencing. 2. The individual sentence imposed on count 1 is manifestly excessive having regard to:

(a) The appellant's youth; and
>
> (b) The appellant's complex mental health problems.

1. The total effective sentence is disproportionate to the criminal conduct when viewed as a whole.

1. The appellant acknowledges that subsequent unrelated offending may be relevant to the risk of reoffending, the prospects of rehabilitation and the capacity to comply with court orders. Used in this way the effect is said to be to reduce mitigation that might otherwise have been available. However, the appellant submits that such other offending should not be used to justify an increased need for personal deterrence or protection of the community. The appellant says that used in this way the effect would be to increase the sentence.[73] This would risk double punishment for the other offending conduct.
2. The respondent submits that the concepts of risk of reoffending, prospects of rehabilitation, protection of the community and personal deterrence are so interconnected that to attempt to separate them in the manner proposed by the appellant is entirely artificial.[74] The respondent says that considering subsequent offending when assessing the need for personal deterrence is no more 'double counting' than considering past offending for the same purpose. The respondent refers to cases in which the Victorian Court of Appeal has said that a sentencing judge is entitled to take subsequent offending of a relevant nature into account when considering the need for personal deterrence.

1. One of the factors relevant to sentencing is whether the offender has been of prior good character. Previous good character may be a mitigating factor that justifies a lesser penalty. However, evidence of bad character, such a criminal record, does not aggravate an offence.[75] This is because to increase a sentence merely due to prior offending would be to punish an offender again for offences that have previously been dealt with. This does not mean that past bad character is irrelevant in assessing the need for personal deterrence. The fact that bad character evidence may indicate a greater need for personal deterrence is not to punish the offender again for their past conduct. Rather, it is to make an assessment of the degree to which personal deterrence needs to be incorporated into the sentence.
2. The relevant point at which to make an assessment of an offender's character is when he or she comes to be sentenced. That will include matters, both positive and negative, that have occurred between the time the offence was committed and the time of sentence. In forming a judgment as to matters such as the offender's risk of reoffending, prospects of rehabilitation, and need for personal deterrence, all of the offender's history up to the point of sentencing will usually be relevant. It would be quite artificial and unrealistic to ignore offences committed after the offence being dealt with. Of course, if the offender had been charged with subsequent offences but not yet convicted, the offender would be entitled to the presumption of innocence in respect of those pending charges and no adverse conclusion could be drawn.
3. In this case, the appellant had been charged with committing an offence whilst on bail for the present offences. It was accepted by counsel for the appellant that he had pleaded guilty to that subsequent offence.[76] The offence was of a similar nature to the present offences in that it involved an assault in company. In those circumstances, that conviction formed a relevant component of the appellant's character at the time of sentencing.
4. The approach to the use of subsequent offences in sentencing was explained by King CJ in R v McInerney:[77]

In my opinion the true rule is that a sentencing court may take into account in an appropriate way and for appropriate purposes, offences committed by an offender whether such offences were committed before or after the commission of the offence for which sentence is being passed and whether the convictions for such offences occurred before or after the commission of the offence for which sentence is being passed.

...

I conclude with some observations as to the way in which and the purposes for which subsequent offences may be taken into account. The cardinal rule is that while good character may operate to reduce the sentence which the facts of the crime would otherwise attract, bad character cannot increase it. A person is not to be punished, or punished again, for crimes other than the crime for which sentence is being passed. Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways. They may diminish or abrogate any leniency by reason of good character. They may, moreover, lead to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence; the prisoner's record may indicate that greater punishment is needed to protect the public by deterring him from further crime. Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases. The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending. He must be sentenced against the background of his record: Director of Public Prosecutions v. Ottewell. The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence. In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies.

Where the other offences have been committed after the immediate offence, they are relevant only in special circumstances. The offender has not committed the immediate offence with his character already affected by the offences nor after the experience of conviction. In circumstances, however, in which the offender might otherwise have been given credit for having lived a law‑abiding life in the period between crime and sentence, it is relevant that he has not so lived but has committed an offence or offences in that period. In some circumstances, the nature of the subsequent offences may be such as to suggest that a greater degree of personal deterrence than would otherwise have been contemplated, is required. It seems to me that the circumstances in which offences subsequent to the commission of the offence for which sentence is being passed, are relevant to the sentence, are more restricted than those in which prior offences are relevant. (footnote omitted)

1. The issue has also arisen for consideration in the Victorian Court of Appeal. In Bellizia v The Queen,[78] Santamaria JA (with whom Whelan JA agreed) said that where further offending is conceded, it may be used by a judge to negate or reduce an inference of prior good character. His Honour said that the relevance of such offending is not confined to assessing the prospects of rehabilitation; it may also be relevant to matters such as remorse and personal deterrence. His Honour said that when assessing the extent to which personal deterrence should inform the amount of punishment, it may be quite unrealistic for the judge to ignore subsequent matters.
2. In Abo El Atta v The State of Western Australia,[79] this court acknowledged that offences committed after the offence for which the offender is being sentenced can be relevant in making an assessment of the risk of future offending and the prospects of rehabilitation. Though personal deterrence was not specifically referred to, it is implicit in the reference to the risk of future offending. However, it was said that the utility of subsequent offences for these purposes usually depends on their similarity to the instant offence.
3. We agree, respectfully, with what was said by King CJ in McInerney. Offending that occurred before sentencing, whether before or after the instant offence, can be taken into account in appropriate circumstances. In the present case, the nature of the subsequent offending was sufficiently similar to the offences being dealt with as to suggest the need for a greater degree of personal deterrence. This process does not involve any degree of double punishment.
4. For these reasons, the learned sentencing judge was not in error to take the subsequent offence into account in assessing the need for personal deterrence (and the prospects of rehabilitation).
5. Ground 1 has no reasonable prospects of success and leave in respect of it should be refused.

1. Grounds 2 and 3 allege implied errors. The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that the total effective sentence infringes the first limb of the totality principle, are well established. Those principles were summarised in Kabambi v The State of Western Australia:[80]

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

1. There is no established sentencing range for offences of aggravated home burglary. Offences of that nature can vary significantly in their seriousness. It is, however, well‑recognised that factors such as planning, the use of actual violence, the use of disguises or face‑covering, and vigilantism, are factors that will increase the seriousness of the offence. General and personal deterrence are the primary factors in sentencing for aggravated home burglary. There have been a number of cases in more recent years referring to the need to firm up sentences for home burglary.[81]
2. Ordinarily, an offender's youth is a significant mitigating factor. It can have an effect both in the choice of sentencing disposition and in the length of any sentence of imprisonment. The effect of youth, subject to other sentencing factors, is usually to reduce the sentence that might otherwise have been appropriate. There are a number of reasons underpinning that principle, which were referred to by this court in Miorada v The State of Western Australia, including:[82]
   1. A very young adult may be impressionable, impulsive and less cognisant of the seriousness of particular offending than an older person. Youthful offenders are often less able to exercise mature reflection and proper judgment, and this is relevant in assessing their level of moral culpability.
   2. Youthful offenders are often more capable of rehabilitation. It is more likely that behavioural issues and causative factors that have contributed to offending can be successfully addressed in a young offender than in an older offender who may have become more entrenched in their habits. Thus, concerted efforts to achieve the rehabilitation of a young offender will often be in the interests of the offender and the community generally.
   3. The potential consequences of imprisonment on a youthful offender may be greater and there is a risk that imprisonment will corrupt rather than rehabilitate a young person. This risk is particularly relevant in the case of an offender who has never previously been imprisoned.
   4. Because young offenders are often impulsive and lack judgment, they may not be suitable vehicles for general deterrence. That is, general deterrence assumes a level of rationality that may not be a feature of a young offender's conduct. This may make it inappropriate to impose a sentence on a young person that incorporates an exemplary component.

To that list might also be added that a lengthy term of imprisonment will usually be a heavier burden on a very young adult. Notwithstanding these considerations, a sentence of immediate imprisonment may be required for a youthful offender in order to properly reflect the objective seriousness of the offending.

1. This court has commented on the relevance of an offender's mental health in sentencing on many occasions. In Krijestorac v The State of Western Australia,[83] Wheeler JA referred to the Victorian cases of R v Verdins[84] and R v Tsiaris,[85] and accepted that the principles set out in those cases applied in this State. In essence, a mental or psychological condition falling short of insanity may be relevant in a number of ways:[86]
   1. It may reduce the offender's moral culpability for the offence, as distinct from their legal responsibility. The effect is that denunciation is less likely to be a relevant sentencing objective.
   2. It may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
   3. A person suffering from a serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence.
   4. Personal deterrence may be more difficult to achieve and is often not worth pursuing as such.
   5. A sentence may weigh more heavily on an offender with a mental health condition than on a person in normal health.
2. In Verdins, it was made clear that the principles referred to are not confined to 'serious psychiatric illness', but are applicable in any case where the offender is shown to have been suffering from a mental disorder, abnormality or impairment of mental function, whether or not the condition can be labelled a serious mental illness.[87] That position has also been taken by this court.[88] Further, in Verdins, the court listed the various ways in which impaired mental functioning at the time of the offending may reduce moral culpability. It may do so if it had the effect of:[89]
   1. impairing the offender's ability to exercise appropriate judgment;
   2. impairing the offender's ability to make calm and rational choices, or to think clearly;
   3. making the offender disinhibited;
   4. impairing the offender's ability to appreciate the wrongfulness of the conduct;
   5. obscuring the intent to commit the offence; or
   6. contributing causally to the commission of the offence.
3. In Kelly v The State of Western Australia [2024] WASCA 116, Buss P (with whom Mazza JA and Hall JA agreed on this point) said that points 1 to 5 should be understood as examples of the way in which a mental condition may contribute causally to the commission of an offence.[90]
4. Whilst a mental impairment may reduce the need for general deterrence, it may increase the need for personal deterrence or protection of the community. This is because the impairment may increase the risk of reoffending. Whether that is so may well depend on whether the condition is capable of treatment.[91]

1. The appellant accepts that this was a serious example of a home burglary. However, having regard to the appellant's youth and mental health, the sentence of 5 years' imprisonment on count 1, and the total effective sentence of 6 years' imprisonment, were plainly unreasonable or unjust.
2. The appellant submits that it has long been recognised that youth is one of the most important mitigating factors and that rehabilitation is usually the dominant consideration in the sentencing of young offenders.[92] Where a young offender is sentenced to imprisonment, the sentence will normally be shorter than would be imposed on a person of mature years for the same offence. A lengthy term of imprisonment will usually be a heavier burden on a very young adult.
3. The appellant submits that his conduct bore many of the hallmarks typical of a young offender, such as recklessness, lack of consequential thinking, poor emotional regulation and an overreaction to a perceived injustice.[93] His prior record as a juvenile was relatively minor and he had never before been sentenced to imprisonment. There was nothing in that record that justified a conclusion that there was increased need for personal deterrence.
4. The appellant also submits that his mental health went some way to explaining his conduct and justified a moderation of the need for general and personal deterrence. Although there did not seem to be a direct causal link between his psychiatric diagnoses and his offending behaviour, indirect connections were present. Those indirect connections included the impact of the appellant's mental health challenges on his ability to regulate emotions, manage impulsivity and respond appropriately to stressors, which was significantly impaired.[94] Further, the appellant's ASD likely drove his overreaction in scenarios involving his girlfriend, and his ADHD likely exacerbated his impulsivity, leading to reactive and poorly considered decisions during moments of emotional escalation.
5. The appellant relies on the following broadly comparable cases:[95] Miller v The State of Western Australia;[96] Hewins v The State of Western Australia;[97] Panicciari v The State of Western Australia;[98] Knight v The State of Western Australia;[99] Kelly v The State of Western Australia [2020] WASCA 29;[100] McIntyre v The State of Western Australia;[101] and Gowan v The State of Western Australia.[102] The appellant points to the fact that the sentence imposed on him for the aggravated burglary offence was higher than all but one of these cases (Hewins) and that in that case, whilst youth was a factor, there was nothing to indicate any mental health issues.[103]
6. As to ground 3, the appellant does not suggest that the sentence imposed on count 3 was manifestly excessive. Rather, the essence of the appellant's argument is that the seriousness of that offence was such as to not justify an increase of 12 months' imprisonment to the total effective sentence.[104] The appellant accepts that this ground is dependent on the outcome of ground 2.
7. The respondent acknowledges that the appellant was only just 18 at the time he committed these offences but submits that the offences he committed - a premeditated, armed violent home invasion and assaults on two victims occasioning bodily harm - were so serious as to fall into that category of offences in which a 'substantial custodial sentence may be required ... despite the offender's youth, in order properly to reflect the need to protect the public or a section of it, and the need for personal and general deterrence'.[105]
8. As regards the appellant's mental health, the respondent notes that the psychiatrist did not consider that the appellant's diagnosed conditions were directly causative of the offending, that the offending was not truly impulsive as it occurred several hours after his girlfriend's telephone call, that alcohol played a significant part in the appellant's conduct, and that the appellant was assessed by the psychologist as being at high‑risk of further violent offending.[106]
9. The respondent submits that the comparable cases referred to by the appellant do not assist him. The respondent notes the higher sentence imposed in Hewins, and that leave to appeal was refused in Hewins, Miller, Panicciari, Kelly v The State of Western Australia [2020] WASCA 29 and Knight, and thus the sentences imposed in those cases were considered to be not even reasonably arguably excessive.[107]

1. The sentence of 5 years' imprisonment on count 1 and the total effective sentence of 6 years' imprisonment, whilst not unprecedented, are high having regard to the comparable cases. But this case does not ultimately turn on those cases. The issue here is not whether the sentences imposed are a just reflection of the offending conduct seen in isolation, but whether they are appropriate when regard is had to the youth and mental conditions of the appellant.
2. The offending was clearly serious, involving as it did a home invasion in company and an assault on two occupants with the use of weapons. However, some other factors that might be thought to be aggravating take on a different complexion when seen in the light of the appellant's youth and mental impairments.
3. That the offence was planned by the appellant must take into account that he was told earlier that same day by his girlfriend that she had been sexually assaulted. This was not a careful, detailed or cold‑blooded plan. It was the action of a very young man whose impulsiveness, lack of emotional regulation and poor judgment were compounded by his mental conditions.
4. To say that this was an example of vigilantism may be true at one level, but the appellant's actions cannot be equated with a revenge attack by a mature adult who has made a rational decision to take the law into his own hands. There was no dispute that the appellant's girlfriend had told him that she had been sexually assaulted and that he honestly believed what he was told. Whilst this provides no excuse for his conduct, it does explain his anger and motivation. It also places this case into a quite different category of offending to other cases that have been described as vigilante attacks.
5. The appellant, at nearly 18 years and 3 months of age at the time of the offending, was a very young adult. His actions suggested that he experienced all of the characteristics of the very young - he was impressionable, easily influenced, lacked judgment, and had poor emotional regulation. The appellant's mental conditions only served to magnify these deficiencies.
6. Whilst the appellant's ADHD, ASD and maladaptive coping mechanisms were not directly causative of the offending, both the psychologist and the psychiatrist said that they had contributed by making the appellant more impulsive and less able to exercise appropriate judgment. Taken together, the appellant's youth and mental conditions reduced his moral culpability and the need for general deterrence. The likely impact of imprisonment on a very young offender also justified a moderation in the sentence imposed. At the time of sentence, there was information to the effect that the appellant had been bullied whilst on remand and had found his time in custody difficult.
7. The psychologist made an assessment that the appellant was at high risk of violent reoffending, but that assessment was based on factors which were amenable to treatment. The appellant's prospects of rehabilitation were good. On remand he had commenced medication which had had a positive effect on his thinking and behaviour. He has a pro‑social, supportive family and prospects of employment on release. His youth strongly favours a sentence that is focussed on supporting his rehabilitation.
8. Nothing would be served by analysing the facts of the comparable cases referred to by the appellant. Although his sentence is higher than that imposed in most of the cases, in many of them leave to appeal was refused. The refusal of leave means that it was not reasonably arguable that the sentences in those cases were manifestly excessive. Such cases cannot, therefore, provide any guide to the appropriate range of sentences for this type of offending. Equally importantly, none of the suggested comparable cases involve an offender as young as the appellant and with his complex mental health issues.
9. In our view, the sentence of 5 years' imprisonment imposed on count 1 was manifestly excessive. Having regard to the appellant's youth and mental impairments at the time of the offending, that sentence was unreasonable or plainly unjust. Whilst additional punishment for count 3 was appropriate, the effect of the manifestly excessive sentence on count 1 is to make the total effective sentence disproportionate to the overall criminality of the appellant's offending.
10. For these reasons, we would grant leave with respect to grounds 2 and 3, allow the appeal, set aside the sentences and resentence the appellant.

1. This court has all the information necessary to resentence the appellant. The facts of the offending and the personal circumstances of the appellant have been referred to earlier in these reasons. The appellant and the respondent both filed affidavits regarding matters that had occurred since the original sentencing.
2. The aggravated burglary offence is a serious offence of its type, involving as it does the entry of three masked and armed men into a residential house and the assaulting of two young victims. On the other hand, the injuries were minor and the appellant acted in the honest belief that one of the assault victims had sexually assaulted his girlfriend earlier that day.
3. The offending was plainly deserving of a sentence of immediate imprisonment. Further, the total sentence should properly reflect the fact that there were two assault victims.
4. The appellant pleaded guilty, though at a relatively late stage. We would allow the same discount for those pleas as the sentencing judge, namely 8%. The appellant is also remorseful and has good prospects of rehabilitation.
5. The appellant's youth and mental impairments are important mitigating factors and reduce his moral culpability and the need for general deterrence. These factors justify a moderation of the sentences that would otherwise be appropriate. Personal deterrence is a relevant consideration, taking into account both the appellant's past offending as a juvenile and his subsequent assault conviction. However, personal deterrence is adequately addressed by the sentence that is referred to below.
6. The appellant filed an affidavit sworn by his mother setting out relevant events since the time of sentencing.[108] Prior to sentencing, the appellant was in custody on remand at Hakea prison. After sentencing, he was transferred to Casuarina prison and then, a few months later, to Albany prison.[109] He felt bullied and intimidated by other prisoners at Casuarina and had property stolen. Whilst at Albany, the appellant completed a Certificate II in Health and Safety as well as a first aid course. He also commenced a business course and was on the wait list for an anger management course.
7. Whilst at Albany prison, the appellant was able to see a psychologist and was prescribed medication. His mother reports that the appellant felt that it helped him to have someone to talk to about his feelings.[110] She also noticed a dramatic improvement in his well‑being after commencing the medication.
8. Despite the positive changes that occurred in Albany, the appellant continued to experience bullying and intimidation from other prisoners. He was the victim of an attack by other inmates, and this resulted in him being placed into protection for three weeks, after which he was returned to Hakea prison.[111] The assault aggravated a pre‑existing injury and necessitated surgery. The appellant reports still feeling numbness and pain in his jaw as a result of the attack.
9. Although conditions at Hakea are not optimal, the appellant's mother states that he is now handling prison better and continues to take his medication.[112]
10. The appellant has the support of his family, and his goals on release are to obtain his driver's licence and secure work on a mine site.[113] He is no longer in a relationship with Amelia and has ceased all contact with her.
11. The respondent filed an affidavit sworn by Mr Scutt, counsel for the respondent on this appeal.[114] Mr Scutt notes that some of what the appellant's mother says in her affidavit is hearsay, but no objection is made to the receipt of that evidence, and the respondent does not seek to challenge, or adduce evidence in rebuttal to that evidence.[115] Mr Scutt notes that the appellant was in custody for two periods prior to sentencing and that no reference is made in his mother's affidavit to the earlier of those periods. Mr Scutt suggests that the fact that the appellant had experienced two to three months in prison after his initial arrest is relevant in considering the relevance of his youth and prospects of rehabilitation.[116] Mr Scutt also notes that the appellant's experiences in prison are not uncommon. Mr Scutt also provides the transcript of the Magistrates Court sentencing for the subsequent assault offence.[117]
12. The additional information confirms that the appellant has had a difficult time in prison due to his youth. That experience and the significance of his youth and mental conditions are not diminished by the fact that he spent two separate periods in custody on remand.
13. In our view, the appropriate sentence on count 1 is 3 years' immediate imprisonment and the appropriate total effective sentence is 4 years' immediate imprisonment. We would achieve that total by imposing a cumulative sentence of 12 months' immediate imprisonment on count 3. The appellant should be eligible for parole.
14. As noted earlier, the appellant subsequently committed an offence of assault occasioning bodily harm. He was sentenced in the Magistrates Court to 12 months' immediate imprisonment for that offence, cumulative on the existing sentence.[118] That sentence was reduced from 18 months' imprisonment for totality reasons and 'issues personal' to the appellant. As that sentence took into account the sentences that are the subject of this appeal, it is open to this court to also vary that sentence if it considers it appropriate to do so. In our view, there is no need to do so. The sentence imposed in the Magistrates Court remains appropriate notwithstanding the resentencing on the offences the subject of this appeal.
15. For the avoidance of doubt, that means that the total effective sentence on the charges the subject of this appeal will be 4 years' immediate imprisonment. The aggregate total when the Magistrates Court sentence is added will be 5 years' imprisonment.

1. The appeal should be allowed and the appellant resentenced to a total effective sentence of 4 years' immediate imprisonment.

1. The following orders should be made:
   1. An extension of time to appeal is granted.
   2. Leave to appeal on ground 1 is refused.
   3. Leave to appeal on grounds 2 and 3 is granted.
   4. The appeal is allowed.
   5. The sentences imposed on counts 1 and 3 are set aside and in lieu thereof the appellant is sentenced to 3 years' imprisonment on count 1 and 12 months' imprisonment on count 3. The sentence on count 3 is to be served cumulatively to that on count 1. Accordingly, the total effective sentence is 4 years' immediate imprisonment.
   6. The appellant is eligible for parole.
   7. The sentence is backdated to commence on 31 March 2024.

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

[1] Sentencing Act 1995 (WA), s 11.

[19] Psychiatric report of Dr Sam Calvin, dated 26 November 2024, par 9 (Psychiatric report).

[20] Psychological report of Steve Jobson, dated 20 November 2024, par 2 (Psychological report).

[34] Affidavit of Kathleen Alice Coveney sworn 21 January 2026, Annexure 'A' (Prosecution Notice RO 4732 of 2024).

[75] Sentencing Act, s 7(2)(b).

[77] R v McInerney (1986) 42 SASR 111, 112 - 113 (King CJ).

[78] Bellizia v The Queen [2016] VSCA 21 [77] ‑ [78] (Santamaria JA, Whelan JA agreeing).

[79] Abo El Atta v The State of Western Australia [2025] WASCA 179 [21] (Hall JA & Doyle AJA).

[80] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[81] See, for example, Serukai v The State of Western Australia [2020] WASCA 159 [43] ‑ [44].

[82] Miorada v The State of Western Australia [2022] WASCA 143 [33].

[83] Krijestorac v The State of Western Australia [2010] WASCA 35 [17] ‑ [19] (Wheeler JA, Owen & Newnes JJA agreeing).

[84] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[85] R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398.

[86] Krijestorac [17] (Wheeler JA, Owen & Newnes JJA agreeing), citing Verdins [1] and Tsiaris (400).

[88] Kelly v The State of Western Australia [2024] WASCA 116 [234] (Buss P, Mazza & Hall JJA agreeing).

[90] Kelly v The State of Western Australia [2024] WASCA 116 [234] (Buss P, Mazza & Hall JJA agreeing).

[91] Kelly v The State of Western Australia [2024] WASCA 116 [365] (Mazza & Hall JJA).

[96] Miller v The State of Western Australia [2022] WASCA 50.

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

[98] Panicciari v The State of Western Australia [2020] WASCA 154.

[99] Knight v The State of Western Australia [2014] WASCA 217.

[100] Kelly v The State of Western Australia [2020] WASCA 29.

[101] McIntyre v The State of Western Australia [2016] WASCA 150.

[102] Gowan v The State of Western Australia [2016] WASCA 98.

[107] WAB 35 - 39 [39] - [44], [47].

[108] Affidavit of Kathleen Alice Coveney sworn 21 January 2026.

[109] Affidavit of Kathleen Alice Coveney sworn 21 January 2026, pars 5 ‑ 8.

[110] Affidavit of Kathleen Alice Coveney sworn 21 January 2026, par 9.

[111] Affidavit of Kathleen Alice Coveney sworn 21 January 2026, pars 10 ‑ 11.

[112] Affidavit of Kathleen Alice Coveney sworn 21 January 2026, par 15.

[113] Affidavit of Kathleen Alice Coveney sworn 21 January 2026, pars 16 ‑ 20.

[114] Affidavit of Thomas Benjamin Laird Scutt sworn 29 January 2026.

[115] Affidavit of Thomas Benjamin Laird Scutt sworn 29 January 2026, par 2.

[116] Affidavit of Thomas Benjamin Laird Scutt sworn 29 January 2026, pars 4 - 8.

[117] Affidavit of Thomas Benjamin Laird Scutt sworn 29 January 2026, Annexure 'A' (Transcript of proceedings in RO 4732 of 2024, 19 February 2025).

[118] Affidavit of Kathleen Alice Coveney sworn 21 January 2026, Annexure 'C' (Sentencing remarks for RO 4732 of 2024, 19 February 2025).