Criminal law - Appeal against sentence - Manslaughter - Express error of law - Sentencing judge took into account erroneous maximum penalty

Sentencing Act 1995 (WA), s 9AA

Appellant resentenced to 8 years' imprisonment with eligibility for parole commencing on 29 January 2012

Dodd v The State of Western Australia [2013] WASCA 80

Heaton v The State of Western Australia [2013] WASCA 207

Hishmeh v The State of Western Australia [2012] WASCA 183

McNamara v The State of Western Australia [2013] WASCA 63

The State of Western Australia v Auckram [2013] WASCA 256

The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137

Wilson v The State of Western Australia [2010] WASCA 82

2 MAZZA JA: This is an appeal against sentence.

3 On 29 January 2012, the appellant stabbed his friend and neighbour, Adam Matthew Summersby, several times, causing his death. Originally, the appellant was charged with Mr Summersby's murder. However, after negotiations, the State agreed to charge the appellant with manslaughter contrary to s 280 of the Criminal Code (WA). The appellant pleaded guilty to this offence on 5 November 2012.

4 There was a dispute about the circumstances in which the stabbing occurred. On 6 November 2012, a trial of issues took place. The learned sentencing judge reserved his decision. On 29 January 2013, his Honour made findings in respect of the trial of issues and sentenced the appellant to 10 years' imprisonment with eligibility for parole, backdated to commence on 29 January 2012. His Honour did so on the basis that the maximum penalty for manslaughter was life imprisonment. In fact, the maximum penalty was, at the time the offence was committed, 20 years' imprisonment.

5 Originally, the sole ground of appeal was that the sentence was manifestly excessive. After this court alerted the parties to the fact that his Honour had taken into account an erroneous maximum penalty, the appellant, with the consent of the respondent, was permitted to add a ground of appeal alleging that his Honour had made an express error of law.

7 The appellant, Mr Summersby and their respective families were neighbours in the suburb of Maddington. The families mixed socially and the appellant regarded Mr Summersby as one of his best friends.

8 In the late morning of 28 January 2012, the appellant visited Mr Summersby at his home. There the two men commenced drinking. In the course of the afternoon, the appellant and Mr Summersby undertook some work at the appellant's home. Throughout the afternoon and later, substantial quantities of alcohol and some cannabis were consumed by the two men. In the evening, the appellant, Mr Summersby and their families had a barbecue together.

9 Sometime late on 28 January 2012 or perhaps in the early hours of the 29th, an argument developed between Mr Summersby and his partner, Ms Williams. Ms Williams returned home, followed by the appellant and Mr Summersby. There was a confrontation between the two men concerning the way Mr Summersby was verbally abusing Ms Williams. During the course of the confrontation, the victim threw a chair at the appellant.

10 The trial of issues concerned what happened next. It is unnecessary to canvass the detail of the evidence in that proceeding. It is sufficient to say that his Honour, in substance, accepted the appellant's version of events. After Mr Summersby threw the chair at the appellant, an argument developed between the two men, who were then standing face to face in the kitchen. At this point, some pushing and shoving may have occurred. Mr Summersby grabbed a knife and came at the appellant with the knife in his hand. His Honour described Mr Summersby as being aggressive and drunk and said that he posed an obvious threat to the appellant. The appellant and Mr Summersby struggled over the knife. Eventually, the appellant turned the knife back onto the victim and it penetrated his abdomen in the area of his lower stomach. His Honour considered that the appellant was not criminally responsible for this wound. The appellant immediately grasped the knife from the victim and stabbed him another three times. The first of those subsequent wounds penetrated the ventricle of the heart and was fatal by itself. The next two penetrated the victim's chest. The forensic pathologist who conducted the post mortem identified all four wounds as being the combined cause of death. His Honour described the three wounds the appellant inflicted after obtaining the knife as being committed 'perhaps in a frenzy of anger or incoherence or lack of control'.

11 Senior counsel then acting on behalf of the appellant conceded, in his written sentencing submissions, that the offending was 'at the high end of the scale of seriousness of the offence of manslaughter' (AB 172).

12 At the time he was sentenced, the appellant was 28 years of age. He had a short, relatively minor criminal history. The only offence involving violence occurred in 2010 when he was convicted of assault occasioning bodily harm. That assault was committed on the driver of a motor vehicle that had run over the appellant's cat.

13 The appellant encountered some difficulties in his childhood, witnessing episodes of domestic violence by his father towards his mother. He left school in year 11 and has worked in various positions, most recently as a welding supervisor. The appellant is married and has three young children under the age of 10 years. He has a history of problematic alcohol and cannabis use.

14 According to the author of the court-ordered psychological report, the appellant has no indications of serious mental illness and is thought to be a low risk of violent reoffending. A character reference tendered on the appellant's behalf spoke favourably of him.

15 It was accepted that the appellant was genuinely remorseful and distressed by what he had done. There was evidence that he was experiencing symptoms of trauma as a result of the offence.

16 The victim impact statements that were tendered on behalf of Mr Summersby's partner, child and mother show the profound loss and adverse impact that his death has had on them.

17 His Honour expressly referred to the principles of sentencing set out in the Sentencing Act 1995 (WA). He referred to the principle that a sentence imposed on an offender must be commensurate with the seriousness of the offence. In determining the seriousness of the offence, his Honour referred to, amongst other things, the statutory penalty for the offence, which he (and indeed both prosecuting and defence counsel) took to be life imprisonment.

18 He encapsulated the appellant's criminal culpability for the offence in this way:

If you had been attacked, as I accept you were, once you had disarmed the deceased the sensible thing, in fact, the only reasonable thing to do, would have been to break off the fight, throw the weapon out of reach or even move out of sight and call the police. You did not do that, you proceeded to inflict the further wounds and that, to my way of thinking, shows severe criminal conduct notwithstanding that it is not alleged that there was any intention to kill. It is on that basis that I proceed to deal with the sentencing (AB 53).

19 The main mitigating factors his Honour took into account were the appellant's plea of guilty, which he had foreshadowed at an early stage in the proceedings, and his remorse (AB 57).

20 His Honour said that his starting point in imposing sentence was 13 years' imprisonment which, he said, reflected the serious nature of the case. His Honour reduced that sentence by 3 years, by reason of the mitigating factors he identified, to arrive at a sentence of 10 years' imprisonment (AB 57).

21 I observe that s 9AA of the Sentencing Act commenced operation on 20 December 2012, while the sentencing was reserved. In very broad terms, s 9AA of the Sentencing Act permits a sentencer, by reason of a plea of guilty, to reduce the sentence by a maximum of 25%. The maximum discount of 25% can only be given if an offender pleads guilty, or indicates that he or she would plead guilty, at the first reasonable opportunity. The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be. His Honour did not refer to s 9AA in his sentencing remarks, but, as his Honour specified the discount he gave for mitigating factors, including the plea of guilty, and having regard to the amount of that discount, it may be inferred that it would have been in accordance with s 9AA. The question of the applicability of s 9AA was raised in oral argument in this appeal. The appellant's counsel said that he did not wish to make anything of it (appeal ts 10).

22 The general principles upon which this appeal must be decided are well known. They were accurately expressed McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]:

The relevant principles on which an appellate court operates are dictated by the Criminal Appeals Act 2004 (WA) and by previous decisions of the High Court and of this court that we are bound to follow or that represent persuasive authority. Those principles include the following.

1. The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2. It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.
3. Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).
4. An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act s 27(1) and (2).
5. To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] - [61], especially [56].

23 I respectfully adopt this statement of principles.

24 It was conceded by the respondent that his Honour had made an express error of law in applying the incorrect maximum penalty for the offence of manslaughter. Mr Watters, on behalf of the appellant, submitted that this error enlivened this court's power to resentence the appellant. Mr Watters submitted that this court should impose a term of less than 10 years' imprisonment.

25 Mr Scholz, on behalf of the respondent, submitted that, despite the error, this court should not impose a different sentence and the appeal should be dismissed.

26 The respondent's concession was correctly made and should be accepted.

27 The maximum penalty for manslaughter increased from 20 years' imprisonment to life imprisonment as a result of the operation of the Manslaughter Legislation Amendment Act 2011 (WA) (the Act), which was proclaimed in the Government Gazette of 16 March 2012 to commence on 17 March 2012. Nothing in the Act indicates that the increase was intended to operate retrospectively. As the offence in this case was committed on 29 January 2012, it predated the increase in the maximum penalty. Accordingly, the appellant was subject to the significantly lower maximum penalty of 20 years' imprisonment. There was an error of law relating to a matter that was clearly relevant to the exercise of the sentencing discretion, having regard to the sentencing remarks. Accordingly, this court's power to intervene is enlivened. However, the appeal will only be allowed if this court decides, upon exercising the sentencing discretion afresh, that a different sentence should be imposed.

28 Plainly, the appellant must be resentenced on the basis that the maximum penalty is 20 years' imprisonment and not life imprisonment. The offence was, without question, serious. The appellant used a knife to inflict multiple stab wounds to vulnerable parts of the victim's body. The wounds he inflicted were very likely to, as indeed they did, cause the victim's death. Any sentence must reflect the value which society places upon human life. The impact of Mr Summersby's death upon those close to him has been profound.

29 There are a number of mitigatory circumstances in this case. It must be acknowledged that the victim was the one who initiated the violence by picking up the knife and attacking the appellant with it. The appellant was threatened and angered by this conduct. As his Honour found, the appellant is not criminally responsible for the first stab wound that was inflicted on the victim. At that point he was clearly acting in self-defence. However, after that wound was inflicted, the appellant disarmed the victim and took possession of the knife. By then, even making due allowance for the appellant's heightened emotions, the only reasonable course of action would have been to throw the knife out of harm's way and/or retreat. Instead, the appellant became the attacker and stabbed the victim to death.

30 It is in the appellant's favour that he pleaded guilty at an early stage and that he is genuinely remorseful for what he has done. Pursuant to s 9AA of the Sentencing Act, the plea of guilty warranted a 25% reduction. The appellant is a man of otherwise good character who is at a low risk of reoffending in a violent way in the future. His prospects for rehabilitation are good. Although general deterrence is an important factor in this case, personal deterrence is of less weight.

31 There is no sentencing tariff for manslaughter because of the great variation that is possible in the circumstances of the offending and offenders. An examination of the sentencing decisions of this court and

its predecessor, the Court of Criminal Appeal, reflects this. In recent years, sentences for manslaughter, where the 20 year maximum applied, have tended to increase: see The State of Western Australia v Auckram [2013] WASCA 256 [127] (Buss JA).

32 I have had regard to a number of other recent decisions of this court with respect to sentences for manslaughter, including: McNamara v The State of Western Australia [2013] WASCA 63; Dodd v The State of Western Australia [2013] WASCA 80; Heaton v The State of Western Australia [2013] WASCA 207; The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137; Hishmeh v The State of Western Australia [2012] WASCA 183.

33 Bearing in mind all of the relevant circumstances of the case and that the appellant was subject to the lower maximum penalty of 20 years' imprisonment, I am of the view that the appropriate sentence, having regard to the seriousness of the offence, was 8 years' imprisonment.

34 Express error has been made out. I would impose a different sentence to that imposed by the learned sentencing judge. Accordingly, the appeal should be allowed. In these circumstances, it is unnecessary to decide the original ground which alleged implied error.

1. The appeal is allowed.
2. The sentence imposed by EM Heenan J is set aside.
3. The appellant is sentenced to 8 years' imprisonment with eligibility for parole to commence on 29 January 2012.