DUNBAR -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 90 (11 June 2020)

1. The facts of the offending are undisputed.
2. On 24 March 2017, the appellant was staying at the Dunsborough Inn, a motel or backpackers hostel.[4] At approximately 9.00 pm, the appellant was seated at a picnic‑style table in the courtyard of the motel with Mr Farrell and two female backpackers.
3. The appellant made advances towards one of the backpackers which were rebuffed by her.[5] Mr Farrell intervened and explained to the appellant why the woman to whom he had been speaking was not interested in him.[6] At this point, the appellant left the courtyard. He returned about five to 10 minutes later carrying a concealed knife.[7]
4. The offending which is detailed below was captured on the motel's closed‑circuit television system. The footage, which we have viewed, formed part of the prosecution brief. The sentencing judge's description of it in his sentencing remarks is fair and accurate.[8]
5. Upon the appellant's return, he spoke briefly to the group which included Mr Farrell. The appellant then positioned himself behind Mr Farrell, who was unaware of his presence. Without warning, the appellant embarked on a frenzied attack on Mr Farrell, stabbing him with the knife a number of times to his neck and back in a matter of seconds, inflicting serious and life‑threatening injuries upon him.[9]
6. The force of the appellant's blows caused the blade of the knife to snap off and become lodged in the hood of Mr Farrell's jacket.[10] The appellant continued to strike Mr Farrell with the knife handle. The attack caused Mr Farrell to bleed profusely from the injuries to his neck. Fortunately, he received first aid at the scene and was swiftly hospitalised.[11]
7. Shortly after the attack, the appellant told the manager of the motel, 'I stabbed him and I hope he dies'.[12] The appellant fled the motel and ended up at a nearby Shell service station.[13]
8. There, the appellant, without permission, got into the back seat of a vehicle which was parked near a petrol bowser.[14] The victim of count 2, Mr Gibbons, was sitting in the front passenger seat of the vehicle. The appellant said to Mr Gibbons, 'Let me in the fucking car. I just stabbed someone. You don't have an option. I will stab you too'.[15] The appellant got out of the vehicle as its owner, Jack Herbert, approached.[16] The appellant asked Mr Herbert for a lift to Busselton. The appellant then moved in front of Mr Gibbons, who remained seated in the vehicle and, without warning or provocation, punched him once to the face.[17]
9. The appellant then fled the service station and was arrested by police a short distance away. Upon his arrest, the appellant said to one of the officers:[18]

Is [Mr Farrell] dead yet? Yeah. That's why I put a fucking hole in his head. He took my girl. That's why I stabbed him in the neck.

I hope [Mr Farrell] dies so I can go to prison for life. Is he dead yet? I hope so. I showed that girl fear by stabbing the fisherman in the neck. That will fucking show her. Take me to gaol. I'm a monster and a freak and deserve to be there. Please tell me he is dead so I can go to sleep. I wanted to kill him, but my plans failed. The knife broke. I wanted to kill him, then slice her up, then pull a knife on you guys and get shot.

1. The doctor who examined Mr Farrell at the Busselton Health Campus observed two lacerations to his neck and one to his back. The lacerations to his neck cut through his trachea and larynx.[20] His airway was secured by endotracheal intubation. Mr Farrell was transferred by helicopter to Royal Perth Hospital, where he underwent surgery to repair the damage to his neck. Mr Farrell's neck injuries and their possible consequences were described in the statement of Dr Aaron Esmaili, dated 31 August 2017, in the following terms:[21]

Intraoperative examination of the patient revealed a stab wound with entry and exit points on the lateral sides of the neck on each site. The stab wound went through the sternocleidosmastoid muscle (major neck muscle that exists on each side of the neck), strap muscles (muscles which exist on the front of the neck), upper part of the thyroid gland and through the front part of the voice box cartilage on both sides. There were mirror image injuries on both sides of the neck giving the impression of a through and through stabbing.

The above injuries resulted in a near complete crico‑tracheal separation meaning that the wind pipe was almost separated from the cartilage which it is attached to in the neck.

The major arteries and veins in the neck were not damaged.

The above injuries were of such a nature as to endanger or be likely to endanger life. Without medical treatment his life could have been endangered by airway compromise.

The injuries were of such a nature as to cause or be likely to cause permanent injury to health. Without medical treatment, the likely permanent injuries include long‑term voice change, breathing issues and swallowing issues.

1. The sentencing judge read aloud virtually all of Mr Farrell's victim impact statement as part of his sentencing remarks. When Mr Farrell woke from a coma in the intensive care unit at Royal Perth Hospital, he was unable to talk, walk, eat or move.[22] He could hardly breathe. He spent many weeks in Royal Perth Hospital. His facial features have been permanently altered. He suffers on a daily basis from pain, voice impairment, body movement, a lack of balance and other problems which cause him significant embarrassment. Mr Farrell also described the adverse emotional and mental effects the attack has had upon him and those around him. As a consequence of hospitalisation, the appellant was unable to attend the funeral of his father, who had passed away a few days before the offence.[23] Mr Farrell stated that the attack 'has affected every aspect of [his] life'.[24]
2. Mr Gibbons' injuries required medical attention. He suffered bleeding from his nose, bruising to his left eye, a small cut to his tongue and inside his lip, and soreness to his neck and jaw.[25]

1. The sentencing judge had regard to a pre‑sentence report, a psychological report by Ms Jane Sampson, dated 21 August 2017, and a psychiatric report by Dr Siva Bala, dated 26 October 2017. We will refer to the reports of Ms Sampson and Dr Bala below. The sentencing judge also had regard to the appellant's criminal records in Western Australia, New South Wales and Queensland, as well as the transcript of sentencing proceedings in the Queensland District Court on 14 October 2011 before his Honour Richards DCJ. The sentencing judge referred extensively to this material in his sentencing remarks.
2. The appellant was 37 years old when he committed the present offences. He was born in New South Wales and experienced a highly dysfunctional upbringing. His parents separated when he was young, after which he lived with his father and saw his mother only occasionally. His only real source of emotional support was his paternal grandmother who died when the appellant was 15. Throughout his childhood, the appellant suffered from, and witnessed, various kinds of abuse. The sentencing judge said that the appellant grew up in circumstances of 'very significant domestic violence'.[26] The appellant's father would often move, with the consequence that the appellant frequently changed schools. The appellant struggled socially and academically.[27]
3. The appellant left school at the age of 16,[28] at which point he started using illicit substances and socialising with marginalised and dysfunctional peers.[29] He began using amphetamines at this time and continues to do so when in the community. According to Ms Sampson, amphetamines became the appellant's 'drug of choice'.[30]
4. The appellant has an extensive criminal history. Since 1998, he has committed numerous serious offences, many of which involve violence.[31] The appellant has spent lengthy periods of his adult life in prison and is effectively institutionalised.[32] The sentencing judge observed, correctly, that the offences before him represented:[33]

... a continuation of [the appellant's] problems and repetition of very serious violence. You have continued to offend despite several significant gaol sentences.

1. On 14 October 2011, his Honour Richards DCJ in the Queensland District Court at Ipswich sentenced the appellant to 3 years' imprisonment for an offence of grievous bodily harm to which the appellant had pleaded guilty. The sentencing remarks in that case indicate that the assault took place in the context of a dispute between the appellant and the victim's girlfriend.[34] The appellant punched the victim once to the head, causing the victim to fall and hit his head on the ground. The attack left the victim with permanent injuries which require him to be in full‑time care.
2. After the appellant was released from the term of imprisonment imposed by the Queensland District Court, he travelled to New South Wales and, from there, to Busselton in Western Australia.[35] The appellant was admitted to the intensive care unit at Bunbury Hospital for three days on 20 March 2017, following an overdose of diazepam and quetiapine,[36] which had previously been prescribed to him. After being discharged, he consumed the drugs that he had been prescribed and took amphetamines. He was under the influence of these drugs on the day of the offending.

1. The expert opinions of Ms Sampson and Dr Bala, which we summarise below, were not challenged either before the sentencing judge or this court.

1. Ms Sampson detailed the appellant's social and developmental history. She described the appellant as having 'a significantly dysfunctional family background'.[37] In her opinion, the appellant 'is a socially isolated and threat‑sensitive man, who tends to respond aggressively to perceived threat'.[38] Ms Sampson observed that the appellant's ability to function in the community, already compromised by his background, has been further compromised by the fact that he has spent most of his adult life in gaol. Moreover, the appellant has 'very poor mental health, emotional regulation and stress resilience skills'.[39]
2. In her opinion, the appellant's offending occurred at a point when his mental health had deteriorated and he had become suicidal. According to Ms Sampson, the appellant:[40]

... appears to have developed a paranoid perspective towards the victim, and may have felt marginalised in the group, leading to a threat to his ego [which in turn] has led to his major life‑threatening attack on the victim.

1. Ms Sampson identified 14 factors which appear to have driven the appellant's offending behaviour, including his:[41]

(i) dysfunctional childhood involving severe victimisation and lack of emotional nurturance;

(iv) paranoid and threat‑sensitive thinking styles;

(v) poor judgment and poor consequential thinking skills;

(vii) disinhibition and intoxication as a result of substance use; and

(viii) deteriorating mental health and 'suicidality'.

1. Ms Sampson assessed the appellant as having 'a very high likelihood' of offending in the future in a similar way.[42]
2. Ms Sampson concluded her report by observing that the appellant is 'an institutionalised individual' who will need to be carefully assessed and supervised when he is released from prison. In Ms Sampson's opinion, the appellant requires:[43]

... assertive psychiatric treatment in addition to a substance abuse program, and cognitive behavioural intervention to address his propensity for violence and his poor emotional regulation and coping skills.

1. Dr Bala was provided with medical information obtained from New South Wales, Queensland, Bunbury Hospital and Hakea Prison.[44] From this material, Dr Bala noted a consistent diagnosis of severe antisocial personality disorder. As a result, the appellant is 'easily angered, becomes irritable and aggressive, fluctuates in his cooperation, can be verbally threatening and acts out when his needs are not immediately met'.[45]
2. Dr Bala noted that there was a difference of psychiatric opinion between those who had treated the appellant at Bunbury and Hakea Prisons as to whether he suffers from a mental illness. In New South Wales and Queensland, the appellant was diagnosed with schizoaffective disorder and antisocial personality disorder.[46]
3. The appellant informed Dr Bala that he is well when he takes psychotropic medications as prescribed, but, usually within six weeks of being released from a custodial environment, he ceases the medication, leading to a deterioration in his mental health which in turn causes him to reoffend, usually in the context of illicit substance use.[47]
4. Dr Bala's principal diagnosis of the appellant was substance use disorder, particularly in relation to alcohol, cannabis and amphetamines, with secondary diagnoses of severe personality disorder and schizoaffective disorder.[48]
5. Dr Bala noted the persisting effects of the appellant's highly dysfunctional childhood. He said that the link between a traumatic childhood and future psychosocial problems is so well‑documented 'that it is practically an axiom of contemporary psychiatric knowledge'.[49] Dr Bala continued:[50]

Adverse childhood experiences including family violence are known to be highly co‑occurring and strongly associated with the onset of psychiatric disorders.

1. In Dr Bala's opinion, the appellant's traumatic childhood experiences have altered his personality such that he suffers from borderline personality disorder and antisocial personality disorder. The former describes a personality marked by impulsivity, issues around self‑identity, an inability to manage without the assistance of others, substance abuse, recklessness and chronic suicidal tendencies. The latter describes a pattern of disregard for and violation of the rights of others, commencing in adolescence and continuing into adulthood.[51]
2. Dr Bala observed that the appellant's abuse of alcohol and illicit substances, namely amphetamines and cannabis, began in his adolescence and has continued into adulthood. The appellant continues to abuse substances and alcohol in spite of the adverse effects that they cause to his social and physical wellbeing and his mental health.[52] In Dr Bala's opinion, the appellant is unable to stop substance abuse. He consumes substances 'in an out‑of‑control fashion' and is ambivalent about change.
3. Dr Bala expressed his opinion as to the nexus between the appellant's mental state and his offending in the following terms:[53]

[The appellant] was affected by amphetamines and may have been psychotic at the time of the offending. Based on his self‑report, he was experiencing visual and auditory hallucinations and believed that he would be killed by associates of [Mr Farrell]. This may be a mitigating factor in terms of his offence. However, I note inconsistencies between what [the appellant] has told me and the Psychologist and it is possible that [the appellant] is externalising responsibility for his behaviour. His habitual ways of coping given his underlying personality disorder marked by impulsivity and aggression in the context of voluntary alcohol and drug intoxication were also a significant factor in his offending. Hence, [a] combination of his personality dysfunction, substance use and possible psychotic symptoms were in play at the time of the offending.

[The appellant's] substance use has been chronic and unremitting in the community for many years. He has, no doubt, been advised to deal with substance use in the past and is intellectually capable of recognising the need to stay on his medication and to stay off illicit substances. However, he chooses to voluntarily stop treatment and engage in substance use, as he did in the months preceding the current offending. Even when offered help, such as mood stabiliser medication prior to the offending, he has overused medication and taken overdose of the medication, which is again a reflection his underlying severe personality dysfunction. Hence, even though [the appellant] may have been mentally unwell at the time of the offending, he had the capacity to know over the years that he may have a mental disorder that requires treatment and is competent to make a decision to continue with treatment and stop taking illicit substances if he chose to. On this occasion, as on previous occasions, he chose to not do so and the inevitable consequence of his substance use and not taking prescribed medication culminated in the offending behaviour.

In a sober state, [the appellant] is able to appreciate the wrongfulness of his actions, the need to make better decisions and the need to address risk factors in order to prevent engaging in the same behaviour in the future.

1. In Dr Bala's opinion, the appellant poses 'an extremely high risk of future offending in the community'. He elaborated on this opinion as follows:[54]

[The appellant] has been exposed to violence from a young age and has modelled his life around using aggression as a way of dominating others, dealing with frustration and having his needs met. He has problems with other antisocial behaviours including recurrent dishonesty offences. He has not been able to maintain stable intimate relationships or stable employment. He has problems with substance use in the community, particularly amphetamines, and has a diagnosis of schizoaffective disorder which may give rise to excited, disinhibited and reckless behaviour. All of these facts, in conjunction with his severe personality disorder, which is known to elevate the risk of violence, traumatic childhood, problems with violent attitudes, disengagement with treatment or supervision in the community, tendency to externalise blame and responsibility and a history of offending from a young age all point to an extremely high risk of future offending in the community. Offending is likely to occur when he is using substances, is experiencing social dysfunction and not taking mood‑stabilising medications. Given his personality style, he is likely to end up in the situation once again when released in the community unless he develops genuine insight into his problems and is committed to changing his behaviour.

1. Apart from the error alleged in ground 2 (the basis for which will be explained later in these reasons), the appellant does not allege any express error of fact or legal principle in the sentencing remarks.
2. The sentencing judge described the attack on Mr Farrell as 'completely unprovoked',[55] 'premeditated, even if only of a comparatively short duration',[56] and 'extraordinarily disproportionate'.[57] His Honour said that although he appreciated the nature of the charge, he was satisfied beyond reasonable doubt that the appellant intended to cause life‑threatening harm to Mr Farrell.[58] His Honour found that the appellant's post‑offence conduct revealed no concern for Mr Farrell. Indeed, his Honour observed that the appellant revelled in what he had done.[59] His Honour found that the appellant was not remorseful for his actions and had very limited insight into his offending.[60] He described the appellant as 'a very dangerous man'.[61]
3. His Honour dealt with the reports of Ms Sampson and Dr Bala in detail. He noted that the appellant has a history of severe personality disorder marked by borderline and antisocial features, substance use disorder and a previous diagnosis of schizoaffective disorder.[62]
4. His Honour accepted that at the time of the offending the appellant may have been psychotic. His Honour also accepted Dr Bala's opinion that a combination of the appellant's personality disorder, illicit substance use and possible psychotic symptoms were evident at the time of the offending.[63] As to the appellant's substance abuse, his Honour found, consistently with Dr Bala's observations, that the appellant is capable of understanding the need to maintain his prescribed medication and to stay off illicit substances. However, prior to the present offending, he voluntarily stopped treatment, including mood‑stabilising medication, and engaged in further illicit substance abuse.[64] His Honour found that, although the appellant was mentally unwell at the time of the offending, he had the capacity to know that he suffered from a mental disorder which required treatment and that he was competent to make a decision to continue with treatment and stop taking illicit substances. Having regard to the appellant's pre‑offence conduct, his Honour agreed with Dr Bala's opinion that he posed an extremely high risk of future offending, describing the appellant as 'a very dangerous man'.[65]
5. His Honour found that the appellant was not remorseful and had very limited insight.[66]
6. His Honour found that the degree to which the appellant was a proper vehicle for general deterrence was somewhat, but not wholly, moderated by reason of his mental illness.[67]
7. The mitigating factors identified by the sentencing judge were the appellant's mental illness and his early pleas of guilty. Pursuant to s 9AA of the Sentencing Act 1995 (WA), his Honour discounted the appellant's sentence by 20% for the guilty pleas.[68]
8. His Honour said that the appellant's offending, although 'exceptionally serious', was not so grave as to warrant the maximum penalty.[69]
9. His Honour analysed, in some detail, a number of sentencing decisions of this court in respect of serious cases contrary to s 294 of the Code,[70] including Black v The State of Western Australia [No 2];[71] Oxenham v The State of Western Australia;[72] Eriha v The State of Western Australia;[73] Dimitrovska v The State of Western Australia[74] and Zhang v The State of Western Australia.[75] This analysis led to the following conclusion:[76]

Taking Zhang into account, the upper boundary of the range of sentences customarily imposed in serious cases of offences contrary to section 294 of the Criminal Code and which do not warrant the maximum penalty is eight and a half years after trial and, therefore, about six years and four months with a 25 per cent reduction for a guilty plea. In the rare worst case category, properly understood, sentences approaching 15 years, if there was a 25 per cent reduction for a guilty plea, would be justified.

In my view, a sentence of between 12 to 15 years approaches 15 years. Less than 12 years does not. Whilst the sentence that I must impose on you has to be for a fixed term proportional to the offending and to your personal circumstances, community protection must be an important consideration in sentencing you.

...

Applying the restatement of fundamental sentencing principles by the High Court, notwithstanding the hesitation that a judge at first instance should - and in my case does - feel at imposing a sentence substantially above the customary range, in my view, the appropriate sentence on count 1 does fall between the two yardsticks I have referred to of six years, four months on the one hand and 12 years and more on the other.

1. It is convenient to deal with ground 2 before ground 1.

1. Ground 2 is in the following terms:[77]

The learned sentencing judge erred by taking into account an irrelevant consideration, namely that the appellant should have been charged with attempted murder.

1. In his oral submissions, counsel for the appellant did not pursue the pleaded irrelevant consideration. He described the central argument in support of ground 2 in the following way:[78]

The nub of the contention is that the judge clearly formed a view that the evidence proved beyond reasonable doubt that the appellant acted with an intent to kill and that that was provable. And that the only reason that he didn't fall to be sentenced on the more serious charge was because of the form of the indictment. The conclusion that I would invite the court to reach, having regard to the sentencing remarks in total, is that it could not be concluded - it could not be concluded - that the sentencing judge did not have regard to that aggravating feature when imposing the sentence that he imposed.

1. For the reasons set out below, this contention cannot be accepted.
2. As pleaded in the indictment, count 1 alleged that the appellant, 'with intent to maim, disfigure, disable or do some grievous bodily harm to [Mr Farrell], unlawfully did grievous bodily harm to [Mr Farrell]'.[79]
3. The wording of the charge largely reflects the statutory language of s 294(1)(a) of the Code, which reads:

(1) Any person who, with intent to maim, disfigure, or disable any person, or to do some grievous bodily harm to any person, or to resist or prevent the lawful arrest or detention of any person -

(a) unlawfully wounds or does any grievous bodily harm to any person by any means whatever[.]

1. An intent to kill is not an element of an offence under s 294(1)(a) of the Code. However, it is an element of the crime of attempted murder contrary to s 283(1) of the Code.
2. In his sentencing remarks, his Honour observed that the Director of Public Prosecutions had chosen to charge the appellant with the s 294(1)(a) offence of grievous bodily harm, rather than with attempted murder.
3. Counsel for the appellant pointed to three instances in the sentencing transcript where the sentencing judge raised the nature of the charge.
4. First, shortly after the appellant was arraigned and entered his pleas of guilty, but before the prosecutor read the statement of material facts, his Honour questioned 'the format of the indictment'.[80] His Honour said:[81]

I was provided with some material in respect of the decision of the Director of Public Prosecutions as to the form of the indictment. I looked at it not in any great detail because of the nature of the document, but what I gleaned from it was that the view taken by the Director was that it was inappropriate at this late stage to contemplate substituting the - or add in an additional count or upgrading the count, I suppose, is the best way of describing in respect of count 1 from grievous bodily harm with intent as it is to attempted murder given, of course, that [the appellant] had entered a guilty plea on the fast‑track to that offence.

1. Second, in the course of his sentencing remarks, his Honour said:[82]

The formidable nature of the weapon that you used can readily be seen from the photographs in the brief. It is impossible to imagine how a grievous bodily harm with intent could be any closer to an attempted murder without being an attempted murder. It is perplexing that you were not charged with attempted murder. I understand why it was that the Director formed the view that, in light of your fast‑track guilty pleas, it was inappropriate two weeks before sentence to upgrade the charges, although it doesn't seem entirely clear why it was that, assuming that the Director of Public Prosecutions had some involvement following the charging, that at some point in time prior to June, when you entered your guilty plea to this offence, someone didn't make the obvious observation or come to the obvious conclusion that your conduct - your provable conducted warranted your being indicted with attempted murder.

Nonetheless, you were not, and it is grievous bodily harm with intent that it is that I am to sentence you. (emphasis added)

1. Third, towards the end of the sentencing remarks, his Honour said, after dealing with a number of comparable cases relevant to count 1:[83]

I have not considered sentences customarily imposed for attempted murder because this is not a case of attempted murder by virtue of this indictment.

1. Counsel for the appellant submitted that this court should infer from the three statements set out above that his Honour impermissibly took the finding that the appellant intended to kill Mr Farrell into account as an aggravating factor.[84]

1. Two overlapping sentencing principles are relevant to ground 2. First, no offender should be punished for an offence for which he or she has not been convicted: R v De Simoni.[85] Second, it is an error for an offender to be sentenced on a basis inconsistent with the elements of the offence for which he or she has been convicted: SV v The State of Western Australia.[86] If the sentencing judge had sentenced the appellant as if he had been convicted of attempted murder, or for the offence for which he was charged but on the basis that he had intended to kill Mr Farrell, his Honour would have fallen into error. However, his Honour did not proceed down either of these erroneous paths.
2. Whilst his Honour commented that he found it 'perplexing' that the appellant had not been charged with attempted murder, the statements that he made in his sentencing remarks, quoted in [59] and [60] of these reasons, make it plain that he did not sentence the appellant for the crime of attempted murder. To these statements may be added a further statement made by his Honour when dealing with the nature of the acts which caused the grievous bodily harm to Mr Farrell, that the appellant's conduct was 'as close to attempted murder as it is possible to get for an [87]fence of this type'.87
3. The submission that the sentencing judge sentenced the appellant on the basis that he intended to kill Mr Farrell cannot be sustained. His Honour made no statement to this effect. Rather, his Honour expressly stated that the appellant was to be sentenced on the basis that he intended to cause life‑threatening harm to Mr Farrell. His Honour said:[88]

What you did was premeditated, even if only of a comparatively short duration. Your conduct was extraordinarily disproportionate. You used a lethal weapon. I very much appreciate the nature of this charge, but I sentence you on the basis that I am satisfied beyond reasonable doubt that there was an intention to cause life‑threatening harm given the degree of force, the location of the number of stabs and the fact that you continued to bash away at Mr Farrell's neck with the handle, even after the blade had snapped off.

1. It is crystal clear from this paragraph of his Honour's sentencing remarks that the appellant was sentenced consistently with the elements of the offence in the indictment, in particular, that the appellant intended to cause life‑threatening harm. He was not sentenced on the basis that he intended to kill Mr Farrell. On a fair reading of the sentencing remarks as a whole, it appears that his Honour understood that the appellant was to be sentenced for an offence contrary to s 294(1)(a) of the Code on the basis that the appellant intended to inflict grievous bodily harm, notwithstanding that, on the undisputed statement of material facts, he may well have been charged with the more serious offence of attempted murder.
2. Although we would grant leave to appeal on ground 2, the ground has not been made out.

1. Ground 1 is in the following terms:[89]

The learned sentencing judge erred in law by imposing a sentence that was manifestly excessive on count 1 having regard to the circumstances of the offence, the appellant's personal circumstances and an assessment of comparable cases.

1. In support of ground 1, counsel for the appellant submitted that, as serious as the factual circumstances of the offence were, they were mitigated by the following matters:[90]

(1) the attack on Mr Farrell was not prolonged or sustained;

(4) the victim was not left with catastrophic long‑term physical injuries, albeit that some of the physical consequences would be long‑lasting, and the victim has significant ongoing psychological trauma.

1. Counsel for the appellant submitted that the outcomes in a number of cases said to be comparable to the present case, namely The State of Western Australia v Darroch;[91] The State of Western Australia v Naumoski;[92] Oxenham; Dimitrovska; Zhang; and Eriha pointed to the sentence on count 1 being manifestly excessive.
2. Counsel for the appellant also emphasised the mitigating effect of the appellant's dysfunctional upbringing and mental impairment.[93] He submitted that:

(1) The effect of the disadvantage arising from his dysfunctional background has not diminished over time. To the contrary, that disadvantage has had profound and lasting consequences.[94]

(2) Because of the connection between that disadvantage and the appellant's offending, it is relevant to an assessment of his moral culpability. Counsel acknowledged that it also bore on the need for community protection.[95]

(3) In the lead-up to the commission of this offence, the appellant was without any community support or other assistance and was depressed and, at times, suicidal. While acknowledging that he failed to take steps available to him such as engaging in treatment, that failure should be understood in the context of a man without coping skills. Dr Bala's unchallenged conclusions, set out at [38] above, should be weighed in [96]is light.96

1. The principles applicable to appeals against sentence on grounds alleging manifest excess are well‑established. They have been described in many cases.[97] For present purposes, it is sufficient to make the following points:

(1) Sentencing is a discretionary exercise. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. Express error, as alleged in ground 2, involves acting on a wrong principle, for example, by mistaking the law or facts or taking into account an irrelevant matter. Implied error, as alleged in ground 1, arises where the end result is so unreasonable or plainly 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 the sentencing discretion differently.

(2) In order to determine whether a sentence is manifestly excessive, the sentence must be viewed in the context of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that type and the offender's personal circumstances.

(3) While is it necessary to have regard to a range of comparable cases, where such a range can be discerned, it must always be borne in mind that the administration of the criminal law involves individualised justice: Elias v The Queen.[98] Thus, each case must be determined upon its own individual facts and circumstances. While comparable cases may serve as yardsticks which point to the possible range of sentences available,[99] they are not binding precedents.[100] As stated in Hili v The Queen[101] and recently reaffirmed in Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym),[102] historical sentences do not establish that the sentencing range is the correct range or that the upper or lower limits to the range are the correct upper and lower limits. Current sentencing practices do not fix quantitative boundaries within which future sentences must be imposed.[103] Thus, in appropriate circumstances, a court may, in order to arrive at a sentence that is commensurate with the seriousness of the offence,[104] impose a sentence higher or lower than the range of sentences customarily imposed.

1. The maximum sentence for the offence the subject of count 1 is 20 years' imprisonment.

1. We will not repeat the facts and circumstances of the offence. His Honour's characterisation of the offending as 'exceptionally serious'[105] is entirely apt. The appellant's behaviour exhibited criminality at the upper end of the scale of offences not in the worst case category.
2. Among the matters relevant to an evaluation of the criminality of an offence of doing grievous bodily harm with intent are: (1) the nature of the harm caused; (2) the nature of the acts which caused the injuries; and (3) the background and circumstances of the offence.[106] Consideration of those matters demonstrates the very high level of criminality involved in the appellant's offence.
3. The offence was completely unprovoked and was premeditated. As a viewing of the CCTV footage reinforces, this can fairly be described as a random and senseless attack. The appellant armed himself with a dangerous weapon, a knife, which he concealed. Mr Farrell was seated with his back to the appellant. He was unaware that the appellant was behind him. The attack occurred without any warning to the victim, who was not in a position to defend himself. The victim could hardly have been more vulnerable. The stabbing was not prolonged, but it was ferocious.
4. As the sentencing judge observed, the appellant's use of a knife to inflict serious injury underlines the significance of general deterrence, given the prevalence of such conduct.[107]
5. As the CCTV footage shows, the appellant forcibly and persistently stabbed at the victim's neck and upper back numerous times. The appellant intended to inflict life‑threatening injuries to Mr Farrell. His actions had their intended consequence. Fortunately for the victim, the blade of the knife broke off its handle early in the attack, rendering the appellant's further blows less effective.
6. The appellant fled the scene without showing the slightest concern for the man he had just stabbed. He callously told the manager of the motel that he hoped the victim would die. The appellant made similar statements a little later to one of the arresting officers.
7. The injuries inflicted by the appellant could have easily killed the victim. Mr Farrell required intensive medical treatment to ensure his survival. His physical recovery was prolonged and the adverse physical and psychological consequences of the attack are significant and ongoing.

1. We have reviewed the comparable cases referred to in the sentencing remarks and by the parties in their submissions to this court. It is unnecessary to discuss them all.
2. The standards of sentencing with respect to offences contrary to s 294 of the Code have been discussed in a number of cases decided by this court, beginning with Stephens v The State of Western Australia,[108] and subsequently in such cases as The State of Western Australia v Jeffries;[109] Zhang and Oxenham. In Oxenham, Martin CJ (with whom Buss & Mazza JJA) observed:[110]

To the extent that a range can be discerned from the previously determined cases, as this court observed in The State of Western Australia v Jeffries, analysis in Stephens v The State of Western Australia suggested that sentences of between 7 and 12 years imprisonment (prior to the transitional provisions) were not uncommon. That range equates approximately to a range of between 4½ and 8 years under the current sentencing system. More recently, this analysis was cited with apparent approval in this court in The State of Western Australia v Khasay. Further, in Zhang v The State of Western Australia, Mazza JA observed that his analysis of the previously decided cases revealed that in serious cases of offences contrary to s 294 of the Criminal Code and which were not in the worst category of cases, the range of sentences customarily imposed after trial had not exceeded 8 years imprisonment. That observation must be viewed in light of the fact that in Zhang, the appellant, whose offence was described as 'extremely serious' was re‑sentenced by this court to a term of 8 years and 6 months imprisonment. Nevertheless, taking the upper limit of the previous range identified by Mazza JA, after allowing for a 15% reduction for Mr Oxenham's plea of guilty, a sentence of 8 years imprisonment after trial equates to a sentence of approximately 6 years and 10 months after plea, which, of course, exceeds the sentence imposed upon Mr Oxenham. (footnotes omitted)

1. Dimitrovska was decided after Zhang. The appellant in Dimitrovska was convicted after trial of one count of doing grievous bodily harm with intent to maim, disfigure, disable or do grievous bodily harm, contrary to s 294 of the Code. The appellant doused the victim with methylated spirits which immediately ignited, causing extensive burns. This court dismissed an appeal against the sentence imposed of 17 years' imprisonment. The outcome of this case may be put to one side for present purposes as, unlike the present case, Dimitrovska fell within the category of worst cases.
2. Darroch was decided after the appellant in the present appeal was sentenced. In that case, the respondent was convicted on his early plea of guilty of an offence of committing an act, with intent to harm, the result of which endangered or likely endangered the victim's life, health or safety, contrary to s 304(2) of the Code. Like s 294 of the Code, this offence carries a maximum penalty of 20 years' imprisonment. The respondent was 44 years of age at the time of the offence and had, for many years, suffered from a form of schizoaffective disorder and had a prior record of violent offending. In the days leading up to the commission of the offence, the respondent had abused alcohol and methylamphetamine. He attacked the victim in a service station bathroom by striking him repeatedly to the head with a hammer. The injuries inflicted by the respondent had a catastrophic effect on the victim, who now requires around‑the‑clock care.
3. The sentencing judge in Darroch gave a discount of 25% pursuant to s 9AA of the Sentencing Act for the respondent's plea of guilty and found that he was remorseful. The sentencing judge also found that there was some mitigation in the respondent's mental impairment, insofar as it would make a term of imprisonment harder for him to cope with. At first instance, the respondent was sentenced to 5 years' imprisonment. This court allowed the State's appeal against sentence and substituted a sentence of 10 years' imprisonment.
4. Returning to the present case, it is apparent that the sentence imposed upon the appellant in this case was, as the sentencing judge acknowledged, substantially above the customary range recognised in Zhang. It is the same sentence as was imposed on the offender in Darroch, although it must not be overlooked that the offence in that case was a different one, albeit with the same maximum penalty. The impact on the victim in that case was more severe than the impact on the victim in the present case. On the other hand, the offender in Darroch received a greater discount for his guilty plea and, unlike the appellant in the present case, was remorseful for what he had done.
5. As Martin CJ observed in Oxenham, offences contrary to s 294 of the Code are committed in a wide variety of facts and circumstances.[111] The range of sentences customarily imposed for s 294 offences is broad. Recently, there has been a firming up of sentences, particularly in relation to those cases which are at the upper end of the spectrum of seriousness, although below the worst case category. As we stated earlier, the range of sentences customarily imposed does not fix the quantitative boundaries within which future sentences must be imposed. Indeed, this factor is but one of the factors which must be considered in deciding whether a sentence is manifestly excessive. We will return to this point.
6. Acknowledging all these factors, the range of sentences customarily imposed points to the sentence that was imposed upon the appellant as being, at least, high.

1. We now turn to the appellant's personal circumstances. At the time of the sentence, the appellant was 37 years of age. He did not have the mitigation of youth. He has an extensive criminal history, including for offences of violence. He is not a person of prior good character.
2. It must be accepted, having regard to the unchallenged expert evidence before the sentencing judge, that the appellant experienced profound childhood deprivation. According to Dr Bala, there is a link between this deprivation and the appellant's personality disorders and drug addiction which have blighted his life.
3. The effects of profound childhood deprivation upon an offender do not diminish with the passage of time or with repeated offending. They must be given 'full weight' in every sentencing decision relating to that offender: see Bugmy v The Queen.[112]
4. The effects of a mental disorder falling short of insanity and which is not self‑induced on the moral culpability of an offender is variable, and depends upon the nature, effect and severity of the condition and its symptoms: see The State of Western Australia v Malone.[113]
5. Profound childhood deprivation and mental disorder are both factors which will often diminish an offender's moral culpability and give rise to a lesser sentence. However, this is not always the case. Such factors may have countervailing effects. For example, while diminishing the offender's moral culpability, they may increase the importance of factors such as personal deterrence and public protection: see Veen v The Queen (No 2);[114] Peterson v The State of Western Australia[115] and Bugmy.[116]
6. Put another way, factors such as profound childhood deprivation and mental disorder must be considered within the broader context of all other relevant sentencing factors. In the present case, no ground of appeal suggested that the sentencing judge failed to apply or erred in his application of these principles.

1. The maximum penalty of 20 years' imprisonment for an offence contrary to s 294 of the Code reflects the seriousness with which Parliament views such offences. The offence committed by the appellant was a very serious example of its type, properly characterised by the sentencing judge as being exceptionally serious, although falling short of being in the worst case category.
2. Leaving to one side the effect of the appellant's highly dysfunctional childhood and his mental condition, there was little mitigation, apart from his plea of guilty, which resulted in the 20% reduction pursuant to s 9AA of the Sentencing Act.
3. At the time of the offending, the appellant was under the influence of methylamphetamine and may have been psychotic. Based on the opinions of Dr Bala, the appellant's offending behaviour can be linked to his highly dysfunctional childhood. We accept that the appellant's moral culpability for his offending was, to some extent, reduced by this factor and its sequelae, being the psychological disorders he developed and his abuse of illicit drugs. However, the effects of the appellant's highly dysfunctional childhood must be weighed against other relevant sentencing factors.
4. The appellant has long been aware of his mental condition. Unless he complies with treatment there is a real danger that he will continue to commit violent offences. The appellant is capable, if he so chooses, of staying on his prescribed medication and staying off illicit substances which trigger his offending.[117]
5. In the present case, as in the past, the appellant chose to withdraw from treatment, abuse his prescription medication and consume amphetamines. He was aware of the capacity of these substances to trigger an emotional state which causes him to commit offences of serious violence. Thus, in large measure, the appellant's impaired emotional state on the night of this offence was self‑induced.
6. Moreover, as the sentencing judge found, the appellant is a dangerous man who poses a very high risk of future violent offending when in the community. The appellant is institutionalised, ambivalent about change and possesses very limited insight into his offending.
7. The appellant's submissions outlined in [70] above do not overcome the combined force of the matters outlined in [97] ‑ [99].
8. The mitigating effect of the appellant's highly dysfunctional upbringing and mental health conditions is comprehensively outweighed by the countervailing sentencing factors of public protection and the need to properly punish the offender.
9. The sentencing judge was prepared to moderate the need for general deterrence by reason of the appellant's mental conditions. We do not disagree with this approach. However, in all of the circumstances of the case, the degree of moderation is limited, and general deterrence remains a significant sentencing consideration.
10. Counsel for the appellant submitted that personal deterrence was not a relevant consideration as the appellant is institutionalised.[118] Presumably, the logic of this submission is that an institutionalised offender is one for whom prison holds no fear and, accordingly, the prospect of imprisonment is no longer a deterrent. While imprisonment may not hold any fear for an institutionalised offender, the fact that he or she is institutionalised will, usually, heighten the need for public protection. That is the effect of institutionalisation in this case.
11. The sentencing judge recognised that the sentence he imposed on count 1 was significantly above the standards of sentencing customarily observed. Nevertheless, having carefully evaluated all of the relevant facts and circumstances of the particular case before him, he concluded, based on his evaluation of the seriousness of the offence and where it lay on the spectrum that extends from the least serious instance of the offence to the worst category, properly so called, that a sentence in excess of the customary range was appropriate. In so doing, his Honour's approach was in accordance with established sentencing principles.[119] As explained above, we see no error in his Honour's assessment of the seriousness of the appellant's offence.
12. As already noted, the fact that a sentence is outside the range of sentences customarily imposed does not, in itself, demonstrate implied error. That is all the more so where, as here, the judge has carefully and cogently explained why he imposed a sentence distinctly above the customary range. Those circumstances diminish the force of the fact that the sentence is above the customary range as a foundation to infer that 'there must have been some misapplication of principle'.[120]
13. When all relevant sentencing considerations are taken into account, the sentence imposed by his Honour, while undoubtedly high, was not, in our opinion, manifestly excessive, having regard to the exceptionally serious circumstances of the offending, the effect of the offending on the victim, the need to provide general deterrence and, importantly, to protect the public. In the end, taking into account the circumstances of the offending, the appellant's plea of guilty, his personal circumstances and all relevant statutory principles, the sentence does not reach, although it approaches, a length which could be properly characterised as unreasonable or plainly unjust. If the sentence had been any longer, the position may well have been different. Thus, we are not persuaded that the sentence is so high as to compel the inference that there has been some misapplication of principle in the exercise of the sentencing judge's discretion. While we would grant leave to appeal on ground 1, the ground has not been made out.

1. Neither of the grounds of appeal have been made out. The appeal must be dismissed.
2. We would make these orders:

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

[4] ts 16. The motel was also referred to in the sentencing proceedings as the Dunsborough Central Motel.

[69] ts 30. In so finding, his Honour appropriately referred to the principles laid down by the High Court in R v Kilic [2016] HCA 48; (2016) 259 CLR 256.

[71] Black v The State of Western Australia [No 2] [2010] WASCA 145.

[72] Oxenham v The State of Western Australia [2015] WASCA 30.

[73] Eriha v The State of Western Australia [2011] WASCA 167.

[74] Dimitrovska v The State of Western Australia [2015] WASCA 162.

[75] Zhang v The State of Western Australia [2013] WASCA 121.

[85] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, 389. See Skelly v The State of Western Australia [2020] WASCA 3 [82] and cases there cited.

[86] SV v The State of Western Australia [2014] WASCA 123 [137].

[91] The State of Western Australia v Darroch [2018] WASCA 114.

[92] The State of Western Australia v Naumoski [2013] WASCA 215.

[97] See, for example, Hayward v The State of Western Australia [2020] WASCA 57 [24].

[98] Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 [27].

[99] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [29].

[100] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584.

[101] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54].

[102] Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) [2017] HCA 41; (2017) 262 CLR 428 [83].

[104] Sentencing Act 1995 (WA), s 6(1).

[107] Liu v The State of Western Australia [2012] WASCA 218 [86].

[108] Stephens v The State of Western Australia [2005] WASCA 98.

[109] The State of Western Australia v Jeffries [2007] WASCA 255.

[112] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [42] ‑ [44].

[113] The State of Western Australia v Malone [2015] WASCA 188 [74].

[114] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 476 ‑ 477.

[115] Peterson v The State of Western Australia [2019] WASCA 207 [54], [60].

[119] See, for example, Ng v The State of Western Australia [2020] WASCA 70 [53].

[120] Pham [28]; Allen v The State of Western Australia [2017] WASCA 203 [63].