HUTTON -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 133 (14 October 2022)

1. The primary judge referred to the facts and circumstances of the offending in his sentencing remarks.
2. His Honour also referred to the appellant's personal circumstances and antecedents.
3. The appellant was born on 30 June 1981. He was aged 38 (almost 39) at the time of the offending and was aged 40 when sentenced.
4. The appellant's parents separated when he was a baby. The appellant has never met his biological father. The appellant's mother was physically and verbally abusive towards him when he was a child. When the appellant was aged 7 his mother formed another relationship. The appellant's stepfather was a loving and caring parent who endeavoured to protect the appellant from his mother's abusive behaviour.
5. The appellant left school in year 11. He had behavioural and anger management problems at school. He had experienced some bullying.
6. Upon leaving school, the appellant was employed in a variety of occupations. He has a good work history.
7. The appellant has a son and two daughters. He began a long‑term relationship at the age of about 21. He separated from his wife in October 2018 and the relationship ended finally in 2020. At the time of sentencing his son was aged 23 and his daughters were aged 19 and 14. The older daughter was the alleged victim of Mr Backshall's alleged sexual abuse.
8. The disintegration of the appellant's marriage caused him to suffer mental health issues for which he was prescribed antidepressant medication. He began using cannabis as a coping strategy. The appellant had previously used cannabis between the ages of about 15 and 22.
9. The information before the primary judge included a psychological report dated 13 March 2022 from Bart Wszola, a counselling psychologist, and a pre-sentence report dated 22 March 2022. The appellant told Mr Wszola that he was affected by cannabis at the time of the offending. Mr Wszola carried out a risk assessment in relation to the appellant and determined that he was at a low risk of future violent offending. Mr Wszola also said:

(a) the most likely scenario for future violent offending by the appellant would involve the appellant having failed to address his unresolved trauma issues and deficits;

(b) the appellant had treatment needs, including treatment for his unresolved trauma issues and deficits and for his poorly developed skills in managing those issues as well as for his broader emotional functioning; and

(c) the appellant must abstain from cannabis use.

1. His Honour noted that defence counsel had accepted that there was no direct causal link between the appellant's unresolved trauma issues and deficits, on the one hand, and the offending, on the other. However, his Honour accepted that the trauma issues and deficits were an important part of the appellant's personal circumstances and explained why the appellant had offended.
2. The primary judge referred to a number of written references from the appellant's family members and from other members of the community. The references spoke highly of the appellant's personal qualities and expressed the referees' ongoing support for the appellant.
3. The appellant had a prior criminal record. His previous convictions included numerous traffic offences, stealing, burglary, drug offences, wilful damage and breach of an intensive supervision order. However, the appellant had not previously been sentenced to a term of imprisonment and, apart from a minor traffic offence in 2011, all of the offences were committed between 2000 and 2004. His Honour noted that the appellant had not previously committed a violent offence and acknowledged that the appellant's prior criminal record was not an aggravating factor in relation to the current offending. However, as a result of his previous offending, the appellant was not a person of prior good character.
4. The primary judge referred to the maximum penalty for each of the offences.
5. His Honour said that the appellant's action in assaulting Mr Backshall and inflicting the knife wounds and his action in setting fire to Mr Backshall's home were premeditated. On the previous day the appellant had been informed of the allegations concerning Mr Backshall's sexual abuse of the appellant's daughter. A number of people had advised the appellant not to take any action against Mr Backshall. Nevertheless, the next day, the appellant drove from Perth to Geraldton, armed with a kitchen knife, and with the intention of confronting Mr Backshall. The appellant's actions upon arriving at Mr Backshall's home were not spontaneous. They were well planned. The appellant's actions were those of a vigilante. The appellant's daughter had informed the police of the allegations on 2 June 2020. His Honour accepted that neither of the injuries inflicted by the appellant with the knife was life threatening. However, the appellant did not provide or obtain medical assistance for Mr Backshall either in relation to the knife wounds or after the appellant ignited the fire.
6. The primary judge found that the appellant's action in taking Mr Backshall's mobile telephone was not done for the purpose of preventing Mr Backshall calling for assistance. His Honour did, however, conclude that the appellant's action in taking the telephone may have had that consequence.
7. His Honour said that the offence of arson was serious because the act of arson, by its very nature, is a serious offence. The appellant had used an accelerant to cause the fire. He had targeted a house in a residential neighbourhood. There was a significant risk of the fire spreading to adjoining properties or land. One of Mr Backshall's neighbours had attempted to enter Mr Backshall's home to render assistance, but was unable to do so because of the extent of the fire.
8. The primary judge observed that the appellant's action in setting fire to Mr Backshall's home put at great risk the members of the fire and emergency services who were required to attend and extinguish the fire.
9. His Honour added that Mr Backshall's home was not owned by him but, rather, was owned by the appellant and his wife. The appellant and his wife were separated at the time of sentencing. The destruction of the home by fire had resulted in great financial loss. In particular, there was direct financial loss to the appellant's estranged wife. Also, the destruction of the house had an impact upon a financial institution which held a mortgage over the property.
10. The primary judge said that the appellant's pleas of guilty were not entered at the first reasonable opportunity. Nevertheless, in all the circumstances, his Honour discounted the head sentence he would otherwise have imposed for each offence by 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA).
11. His Honour found that:

(a) the appellant was remorseful;

(b) the appellant had accepted responsibility for his offending;

(c) the appellant had been very well behaved while in prison;

(d) the appellant was well supported by his family and friends and had resolved to improve himself, including improving his mental health; and

(e) the appellant had very sound prospects of rehabilitation.

1. The primary judge then imposed the sentences we have mentioned at [7] above.

1. As to ground 1, counsel for the appellant submitted that the sentence of 7 years 6 months' imprisonment for count 2 was unreasonable or plainly unjust having regard to the circumstances of the offending and all relevant sentencing factors. Counsel argued that the violence used by the appellant in committing count 2 was significantly less than the violence used by offenders in other cases of manslaughter where the offenders had received the same sentence as the appellant. The other cases relied upon by counsel were Marshall v The State of Western Australia[1] and Thomas v The State of Western Australia.[2] Counsel also emphasised the mitigating factors in relation to the appellant's offending.
2. As to ground 2, counsel for the appellant submitted that the offending on count 1 was part of the same course of conduct as the offending on count 2. Both offences occurred at the same property within a few minutes of each other. It was submitted that the sentence for count 1 and an appropriate sentence for count 2 should have been ordered to be served concurrently.

1. Since the commencement of the Manslaughter Legislation Amendment Act 2011 (WA) on 17 March 2012, the maximum penalty for manslaughter has been life imprisonment. Previously, the maximum penalty was 20 years' imprisonment.
2. There is no sentencing tariff for manslaughter because of the great variation that is possible in the circumstances of the offending and the offenders. Each case must be decided on its own facts. See Wicks v The Queen;[3] Colledge v The State of Western Australia;[4] The State of Western Australia v Walley.[5]
3. The great variation in these circumstances explains the difficulty in discerning sentencing patterns for manslaughter. As Wheeler JA (Owen & Miller JJA agreeing) noted in Colledge [18]:

A person convicted of manslaughter may have had an intent to kill or do grievous bodily harm, but have formed it in circumstances where there was provocation; or may be acting in self-defence, although excessively; may have been so affected by substances of one kind or another as to be incapable of forming any clear intention; may suffer from a mental illness falling short of insanity; or may have been culpably negligent in the management of either a motor vehicle or some other thing. That list is by no means exhaustive, but one can see why there is much variation in sentencing. The University of Western Australia Crime Research Centre Report (UWA Crime Research Centre, Crime and Justice Statistics for Western Australia (2004) table X, p 73) demonstrates that, between 1996 and 2004, there was considerable variation in the median sentence for manslaughter; in 1998, it was as low as 4 years, while, in 1997, it was 8 years.

1. So, manslaughter is, of its nature, an offence where the facts and circumstances of each case will usually differ significantly. See Walley [32]. Wheeler and Miller JJA pointed out in Walley [32] that comparisons with sentences imposed at trial, and even in the case of R v Churchill [6] (after appeal), are seldom helpful in manslaughter cases.
2. Sentences for manslaughter should, however, reflect the value which Parliament has placed on human life. See Taylor v The State of Western Australia;[7] Walley [32].
3. As we have mentioned, the maximum penalty for the offence of manslaughter committed by the appellant is life imprisonment. The effect of the increase in the maximum penalty from 20 years' imprisonment to life imprisonment was examined in The State of Western Australia v Auckram.[8] An increase in the maximum penalty for an offence is an indication that sentences for the relevant offence should be increased.
4. We have considered numerous prior cases of offending against s 280 of the Code since the maximum penalty was increased to life imprisonment. See, in particular, Auckram; Beard v The State of Western Australia;[9] Marshall; Al Jrood v The State of Western Australia;[10] LCM v The State of Western Australia;[11] Liyanage v The State of Western Australia;[12] Brewerton v The State of Western Australia;[13] TDO v The State of Western Australia;[14] Pomana v The State of Western Australia.[15] We have also considered the cases cited by counsel for the appellant.
5. It is unnecessary to reproduce the facts and circumstances of the prior cases we have considered or the sentencing outcomes. There are some comparable features between some of the prior cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
6. However, we note the following in relation to Marshall and Thomas.
7. In Marshall, there was an interaction between the appellant and the deceased at a block of home units. The deceased became aggressive towards the appellant, who retreated to his home unit to avoid further confrontation. The deceased approached the front door of the appellant's home unit and attempted to open the security door. The deceased pulled out and bent the grille section of the security door and ripped the fly wire. The deceased yelled 'Do you want to smash?'. The appellant called the police. Later, the appellant left his home unit in the erroneous belief that the disturbance involving the deceased had ended. After he had left his home unit, the appellant saw the deceased (and some companions of the deceased) walking towards him and his home unit. Upon seeing them approach, the appellant armed himself with a golf club. The appellant and the deceased struck each other with weapons they were holding. Both fell to the ground. The golf club had broken. The appellant used the shaft of the golf club to stab the deceased five times in the back. Three of the wounds were minor, but two were very significant and resulted in the deceased's death. The appellant was sentenced at first instance to 7 years 6 months' imprisonment following his plea of guilty. The appellant's appeal to this court against the sentence was dismissed. The court held that the sentence imposed at first instance was not unreasonable or plainly unjust.
8. In Thomas, the appellant and his partner became involved in an argument with the deceased. The deceased became angry and struck the appellant with her fists. The appellant walked away. The deceased followed the appellant. The deceased struck the appellant on the arm with an Aboriginal ceremonial stick (which was about 1 metre in length) and caused a fracture. The deceased then struck the appellant on the head with the ceremonial stick. The appellant reacted by grabbing the ceremonial stick from the deceased. He then raised the ceremonial stick and struck the deceased twice on the head. The deceased fell heavily to the ground. The appellant struck the deceased at least twice more to the body as she fell. The deceased died as a result of a depressed compound fracture of the skull with associated traumatic brain injury. The deceased also suffered fractures of her ribs, a collapsed lung, multiple bruising and deep lacerations to the skull. The appellant was convicted following his plea of guilty. He was sentenced at first instance to 7 years 6 months' imprisonment. This court refused to grant leave to appeal on the sole ground of appeal which alleged that the sentencing judge had erred in failing to allow a 25% discount for the appellant's plea of guilty pursuant to s 9AA of the Sentencing Act. The appeal was dismissed.
9. It is true, as counsel for the appellant submitted, that the violence used by the offenders in Marshall and Thomas was greater than the violence used by the appellant in committing count 2. However, the degree of violence used by an offender who is to be sentenced for the offence of manslaughter is merely one factor in determining the appropriate sentence. Neither the degree of violence used by the offenders in Marshall and Thomas compared to the degree of violence used by the present appellant, nor any other features of the offending in Marshall and Thomas compared to the present offending, supports counsel for the appellant's submission that the sentence of 7 years 6 months' imprisonment for count 2 was manifestly excessive.
10. In our opinion, the appellant's contention that the sentence of 7 years 6 months' imprisonment for count 2 was manifestly excessive does not have a reasonable prospect of success. That is the only conclusion reasonably open when the sentence is viewed from the perspective of:

(a) the maximum penalty;

(b) the facts and circumstances of the offending;

(c) the seriousness of the offending;

(d) the vulnerability of Mr Backshall;

(e) the general pattern of sentencing for offending of this kind;

(f) all aggravating factors referred to by the primary judge;

(g) the appellant's personal circumstances and antecedents;

(h) all mitigating factors referred to by his Honour; and

(i) all statutory and judge‑made sentencing principles.

1. At all material times, the maximum penalty for count 1 has been life imprisonment.
2. We have had regard to the sentencing dispositions in a range of cases including The State of Western Australia v Bennett;[16] Wright v The State of Western Australia;[17] Lesay v The State of Western Australia;[18] JKL v The State of Western Australia;[19] Edmonds v The State of Western Australia.[20]
3. It is unnecessary to repeat the relevant facts and circumstances of the previous sentencing cases we have considered or the sentences imposed. There are some comparable features between some of those cases and the present case, but there are also distinguishing features.
4. It is well established that:

(a) general deterrence is the dominant sentencing factor in cases of arson;

(b) an offender's personal circumstances carry less weight in those cases than they might otherwise do; and

(c) there is no tariff for the offence of arson.

1. We note that, on 19 December 2009, the maximum penalty for the offence of wilfully and unlawfully destroying or damaging property by fire was increased from 14 years' imprisonment to life imprisonment. See the Arson Legislation Amendment Act 2009 (WA).
2. The so called 'one transaction rule' is merely a rule of thumb designed to assist sentencing judges to ensure that the total effective sentence imposed for offences which occur close in time or in a spree is proportionate to the offender's overall criminality in respect of those offences. The critical point is whether the total effective sentence properly reflects the overall criminality of the offending, considered as a whole, having regard to all relevant facts and circumstances, including the offender's personal circumstances and antecedents, and all relevant sentencing factors. See R v Faithfull;[21] Borbil v The State of Western Australia.[22]
3. It is true that, in the present case, the appellant's offending on count 1 and count 2 occurred within a short period. However, we are satisfied that it was necessary in order properly to mark the seriousness of the appellant's overall offending, having regard to all relevant facts and circumstances and all relevant sentencing factors, to order some accumulation of the appropriate sentence for count 1 and the appropriate sentence for count 2. As we have mentioned, the primary judge, in the application of the totality principle, reduced the sentence he would otherwise have imposed for count 1, namely 3 years 3 months' imprisonment, to 18 months' imprisonment. We consider that a sentence of 3 years 3 months' imprisonment for count 1 (before considering totality) was lenient.
4. In our opinion, the appellant's contention that the total effective sentence of 9 years' imprisonment was unreasonable or plainly unjust does not have a reasonable prospect of success. A custodial term of that length was required in order properly to reflect the very serious character of the appellant's overall offending. The total effective sentence bears a proper relationship to the criminality involved in both of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the seriousness of the overall offending, Mr Backshall's vulnerability, the short period within which the offending occurred, the pattern of sentencing in reasonably comparable cases, the appellant's personal circumstances and antecedents and the mitigating factors referred to by his Honour.
5. Leave to appeal on ground 2 should be refused.

1. Leave to appeal should be refused. The appeal must be dismissed.

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

[1] Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99.

[2] Thomas v The State of Western Australia [2014] WASCA 202.

[3] Wicks v The Queen (1989) 3 WAR 372, 379 ‑ 380 (Malcolm CJ).

[4] Colledge v The State of Western Australia [2007] WASCA 211 [17] (Wheeler JA, Owen & Miller JJA agreeing).

[5] The State of Western Australia v Walley [2008] WASCA 12 [32] (Wheeler & Miller JJA).

[6] R v Churchill [2000] WASCA 230.

[7] Taylor v The State of Western Australia [2007] WASCA 218; (2007) 177 A Crim R 81 [54] (Miller JA; Owen & Wheeler JJA agreeing).

[8] The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397 [120] - [127] (Buss JA).

[9] Beard v The State of Western Australia [2015] WASCA 74.

[10] Al Jrood v The State of Western Australia [2016] WASCA 73.

[11] LCM v The State of Western Australia [2016] WASCA 164; (2016) 262 A Crim R 1.

[12] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359.

[13] Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176.

[14] TDO v The State of Western Australia [2018] WASCA 135.

[15] Pomana v The State of Western Australia [2020] WASCA 204.

[16] The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137.

[17] Wright v The State of Western Australia [2010] WASCA 14.

[18] Lesay v The State of Western Australia [2011] WASCA 154.

[19] JKL v The State of Western Australia [2012] WASCA 215.

[20] Edmonds v The State of Western Australia [2013] WASCA 255.

[21] R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [28] (McLure J; Malcolm CJ & Wheeler J agreeing).

[22] Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [84] ‑ [87] (Steytler P; Wheeler & McLure JJA agreeing).