TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 174 (22 December 2022)

1. The trial judge made the following findings as to the circumstances of the offence.[5]
2. On 26 February 2019, the deceased, the appellants, Mr Kapene, Mr Clay, and B were remand inmates in A Wing of Unit 9 of Hakea Prison.
3. During that afternoon, Mr Taylor and Mr Clay entered the cell occupied by Mr Kapene and B. Mr Taylor then said words to the effect that 'there was someone downstairs who is a rapist and that they needed to earn their spot in the wing or otherwise something that would happen to him will happen to you'. Afterwards, Mr Taylor returned to the cell where he gave Mr Kapene and B a pair of blue prison gloves.
4. During late afternoon on 26 February 2019, the inmates were having dinner. At that time, the planned attack was to occur on the deceased.
5. At mealtime, the appellants, Mr Kapene, Mr Clay and B entered the deceased's cell. At that time, the deceased was on his own in his cell. The deceased was a 46-year-old man. At that time, a violent attack was inflicted upon the deceased.
6. Mr Taylor, upon entering the cell, hit the deceased twice with his right fist and then with his left fist to the deceased's face. Mr Clay, upon entering the cell wearing a balaclava, hit the deceased about five times to his face. Mr Penny, who also entered the cell with his face covered, commenced hitting the deceased approximately two or three times to the deceased's face. B hit the deceased twice with his fist. Mr Kapene, who also entered the cell, hit the deceased once in the chest.
7. Mr Taylor then grabbed the deceased and threw him to the ground. When the deceased landed on the floor, his eyes flickered. Mr Taylor commenced kicking the deceased with both feet with 'maximum force'. At that time, Mr Penny and Mr Clay were alongside Mr Taylor. They were grouped around the deceased's head. Mr Clay forcefully kicked the deceased to the side of his face about four or five times. Mr Penny was also kicking the deceased to his face. The kicking was a sustained attack, which went on for some time.
8. Mr Clay then grabbed hold of a top bench in the cell and 'double kicked' or 'double stomped' the deceased to the face several times as the deceased was lying injured and incapacitated on the ground. Mr Taylor tried to stop the continuing double stomping by Mr Clay.
9. The offenders then departed the cell, leaving the deceased in a pool of blood, which was seeping out of the cell and into the corridor.
10. After lockdown finished, Mr Penny visited Mr Kapene and B, stating, 'All we have to do is keep our mouths shut and none of us will go down with it'. When Mr Kapene subsequently asked Mr Taylor why he had to be involved, Mr Taylor answered 'cos - cos you had to.'
11. The deceased lived for approximately two weeks after sustaining the head injuries, but there was no clinical progress to recovery. The deceased remained in ICU and received terminal palliative care. The supports of life ended because the deceased was dying.
12. The cause of the deceased's death was head injury, complicated by bronchopneumonia with palliation. The bronchopneumonia was a consequence of the fact that the deceased was dying and the head injury he had sustained.
13. The deceased sustained a significant head injury, with an ultimately fatal injury to his brain. There were at least several impacts to his face based upon the presence of five discrete lacerations around the eyes and nose (with one impact of sufficient force to fracture the deceased's nose both externally and internally) and his left cheek bone. Subcutaneous bruises were observed on both sides of the head, the left side of the forehead, the forearms, the elbows and the upper part of the right arm.
14. The deceased died as a result of a blunt force injury to the brain. The appellants and Mr Clay each inflicted blunt force to the deceased's head by inflicting blows, including kicking, to the deceased's head region. Mr Clay 'double stomped' on the deceased's head. The trial judge was unable to find whether a specific act done by one of the offenders was the sole cause of the deceased's death. The judge found that one or more acts in a series of acts done by the appellants and Mr Clay, either alone or in combination with the acts of their co‑offenders, was a significant or substantial cause of the death. The judge found that the acts done by each of the appellants and Mr Clay, made a significant or substantial contribution to the death of Mr Eades. The trial judge found that, in any event, each offender was criminally responsible under s 7(b) and s 7(c) of the Criminal Code by their physical presence and their physical acts.
15. The trial judge found that it was not possible to determine if there were other persons who ordered that the deceased be attacked.
16. Mr Taylor procured the commission of others in the offence by approaching Mr Kapene and B in their cell. Mr Taylor was a 'very willing and active participant', who was not threatened to be involved. He participated in the assault by punching the deceased and then forcing him on to the ground and delivering the kicks to the deceased's head with his right foot with close to maximum force.
17. The trial judge noted that, at trial, Mr Taylor's counsel submitted to the jury that he was guilty of manslaughter but not murder. The defence case was that Mr Taylor attended the cell and participated in the assault, but that he attended to 'give Mr Eades a touch up' and that he struck the deceased only once. In his record of interview, Mr Taylor accepted that he did attend the cell and act violently. However, the trial judge found that Mr Taylor significantly downplayed his role.
18. The trial judge noted that, at trial, Mr Penny maintained he was not involved in the attack on the deceased and contended that the State failed to prove his identity beyond a reasonable doubt. The jury's verdict indicated that the jury were satisfied beyond reasonable doubt that Mr Penny was present and unlawfully killed the deceased.
19. The trial judge was satisfied that Mr Penny was a willing and active participant in the violent attack on the deceased. During the attack, Mr Penny aided the offending by his physical presence and then inflicted violent blows to the deceased. He inflicted violent blows two or three times with his fist to the deceased's face and further kicked the deceased to the face during the attack.
20. Following the attack, Mr Penny visited Mr Kapene and B, and told them that they had to keep their mouths shut and 'none of us will go down with it'. Mr Penny was an active participant who was trusted to send the message to the two offenders who participated through threats that they should keep quiet.

1. The trial judge noted the victim impact statements that he had received from various members of the deceased's family, which indicated the extraordinary grief suffered by his family. The deceased's family, including his 15-year-old son and 12-year-old daughter, had been shattered by the offenders' senseless acts of violence.[6]

1. The trial judge made the following findings as to the appellants' personal circumstances.[7]

1. Mr Taylor was aged 25 years at the date of sentencing. He was the second youngest of six children to his parents' union and had two older half-sisters to his mother's previous relationship. He had a 'normal childhood' without any violence or abuse. His parents were strict but ensured that he enjoyed a loving and supportive relationship with his family.
2. Mr Taylor attended high school until year 9. He never held employment in the community but had engaged in intermittent jobs in prison including gardening and milk delivery.
3. Mr Taylor had no significant relationships and no dependants. He was generally in good health. He had no history of self-harm or suicidal ideation, although he suffered with depression whilst in custody. Mr Taylor had utilised the prison counselling service and was engaged with his family who remained very supportive.
4. Mr Taylor commenced alcohol use at the age of 13 years. He accepted that his consumption was 'out of control' prior to him being sentenced to a period of youth detention at the age of 17. From the age of 16, Mr Taylor continued to use methylamphetamine and cannabis during periods in the community. Mr Taylor had expressed concerns about his cannabis use and wished to engage in programs and counselling to adopt relapse prevention strategies.
5. Mr Taylor had a criminal history as a juvenile and as an adult, including convictions for robbery, property offences, dishonesty offences, offences of violence, weapon offences and breach of court orders. In 2020, Mr Taylor was in prison for gaining benefits by fraud.

1. Mr Penny was 26 years old at the date of sentencing. He is one of two children born to parents who separated early in his childhood. Mr Penny has five half‑siblings from other relationships of his parents.
2. Mr Penny's father had a lengthy history of offending behaviour and drug dependence, and was absent due to lengthy terms of incarceration. Mr Penny's mother had significant problems with substance use (alcohol and methylamphetamine) and was emotionally dysregulated, behaviourally unpredictable, and abusive to her children. Mr Penny's grandmother became his primary carer.
3. Mr Penny was sexually victimised by an older cousin when he was 6 years old. At the age of 14 years, he left the family home to commence a transient lifestyle living with various relatives where drug use and violence was normalised.
4. Mr Penny had been in two significant relationships, which were unstable due to substance abuse issues.
5. Mr Penny's early school years were interrupted by family relocation and a lack of basic stationery supplies. He presented at school with oppositional behaviour issues due to the lack of behavioural structures at home. His level of achievement at school was below average due to poor attendance. He had no vocational skills and no employment history.
6. Mr Penny formed group associations with other disaffected youths at an early age. He had no constructive leisure pursuits when in the community due to his lack of appropriate community support networks.
7. Mr Penny enjoyed reasonably sound physical health but did have a history of self-harm attempts and depression. He reported episodes of sleep paralysis and auditory hallucinations as a consequence of drug abuse. At the time of sentencing, Mr Penny was compliant with prescribed anti-depressant medications.
8. Mr Penny had a history of polydrug use commencing with cannabis at 11 years of age before progressing to other illicit substances, including amphetamine, heroin, hallucinogens and the misuse of prescription medication.
9. Mr Penny also had a significant criminal record, including assaults on public officers, threatening to destroy or damage property, aggravated armed robbery, stealing motor vehicles, other dishonesty offences, breach of court orders, and drug offences.

1. After making findings as to the circumstances of the offending and the offenders' personal circumstances, the trial judge noted the following aggravating features of the offending:[8]
   1. The deceased was attacked by five men, who inflicted a violent attack on a defenceless 45‑year‑old man, who was older and weaker than each of the fit, strong, young men who attacked him.
   2. The offending was premeditated rather than a spontaneous act.
   3. The offenders each joined together to go to the cell where they knew that the deceased was vulnerable. They each knew that the purpose of entering the cell was to inflict an attack on the deceased. They were each present whilst the attack occurred. They each then inflicted blows to the deceased and assisted others to assault the deceased by their presence.
   4. The offenders did not render first aid to the deceased or seek any immediate assistance. Rather, they each fled the scene.
   5. The attack on the deceased was a senseless attack that was committed for no reason other than that the offenders accepted a rumour concerning the deceased's antecedents. Upon hearing rumours, the offenders each joined together to inflict this most violent attack.
   6. The level of violence escalated when the deceased was pushed to the ground, after which the appellants and Mr Clay continued the brutal attack.
2. The trial judge noted that the fact that the offence occurred in prison was a significant aggravating factor. His Honour observed:[9]

You committed the offence within one of the State's main prison complexes and the main metropolitan remand centre facility for inmates and prisoners. The sentence must reflect the need for general deterrence. That is because an inmate such as Mr Eades has no choice to be in his cell and is extremely vulnerable. Mr Eades had a limited ability to take prudent measures for his own safety. Prisoners who are serving terms of imprisonment must understand that to undertake offending and, in particular, crimes of violence whilst incarcerated will not be tolerated and will be met with a condign punishment.

1. The trial judge accepted the State's submission that the degree of violence used by an offender is relevant to criminal culpability. His Honour explained:[10]

That is, there is a relationship of proportion between the degree of violence used by you as offenders and your criminal culpability, notwithstanding the absence of an intention to kill or to inflict a life endangering injury. I find that in this case the severity of the injuries suffered by the deceased, Mr Eades, was of measure of the extraordinary degree of violence used by each of you in the offending.

1. The trial judge found that Mr Penny had no real remorse for the offending. Mr Penny denied the offending and had no empathy for the victim or his family who continued to suffer because of Mr Penny's actions. The judge said that he was unable to find that Mr Penny had any sound prospects of rehabilitation.[11]
2. The trial judge observed that Mr Taylor accepted that he was involved in the attack on the deceased and did attempt to stop Mr Clay's double stomping. However, Mr Taylor actively inflicted significant blows to the deceased. The trial judge found that Mr Taylor had insight into his actions but limited remorse. The judge was unable to find that Mr Taylor had any sound prospects for rehabilitation.[12]
3. The trial judge also took account of each of the appellant's history of disadvantage. His Honour observed:[13]

On behalf of Mr Penny, it was raised that his history of disadvantage is a mitigating factor. I will take that factor into account for you, Mr Penny, and also give weight to that for you, Mr Taylor. I do accept that your backgrounds are characterised, particularly during your formative years, by disadvantage and for you, Mr Penny, also dysfunction. These are characteristics of Aboriginal offenders who come before the courts in Western Australia. So in particular, I give that full weight for you, Mr Penny, but also take it into account for Mr Taylor.

1. The trial judge observed that the fact that the appellants had a criminal record was not an aggravating factor but it meant that they did not come before the court as persons of good character.[14]
2. The trial judge said that, in imposing sentences for manslaughter, he was mindful that there is no tariff, given the variation in the circumstances in which the offending may occur. His Honour observed that the sentences imposed for manslaughter must reflect the value that the Parliament has placed upon human life.[15]
3. The trial judge also referred to the parity principle.[16] As there is no complaint on appeal about parity, it is unnecessary to refer to these observations.
4. The trial judge then imposed sentences of 17 years' imprisonment on both the appellants. The judge noted that Mr Taylor had been in custody solely for the manslaughter offence since 17 March 2021, and backdated Mr Taylor's sentence to that date.[17] In relation to Mr Penny the trial judge said:[18]

Mr Penny, you are still serving a term of imprisonment. You are eligible for release on 22 March 2022. For you, the issue of totality arises. I have decided that the term of imprisonment imposed will commence today. Therefore, the balance of the term that you are currently serving will be served concurrent with this term.

1. It is convenient to deal with the grounds of appeal alleging express error before turning to the question of whether the sentences are manifestly excessive.

1. Both appellants contend that the trial judge erred in fact in assessing that he was unable to find that the appellants had any sound prospects of rehabilitation and failed to give sufficient consideration or weight to the respective appellants' prospects of rehabilitation.[19]
2. As 'sound prospects of rehabilitation' is a mitigating factor, the appellants bore the onus of proving that fact on the balance of probabilities. As the court observed in RMM v The State of Western Australia:[20]

If the prosecution or an offender seeks to have the sentencing judge take a fact or circumstance into account when passing sentence, it will be for the party relying on the fact or circumstance to bring it to the judge's attention and, if necessary, call evidence about it. The calling of evidence will only be required if the asserted fact or circumstance is disputed or if the judge is not prepared to act on the assertion.

...

A sentencing judge may not take disputed facts or circumstances into account in a way that is adverse to the interests of the offender unless those facts or circumstances have been established beyond reasonable doubt. However, a sentencing judge may take into account disputed facts or circumstances which are in the offender's favour if those facts or circumstances are proved on the balance of probabilities.

(citations omitted)

1. Counsel for both appellants accepted that the appellants bore the onus of proving sound prospects of rehabilitation on the balance of probabilities.[21]

1. It is significant that neither of the appellants' sentencing counsel submitted to the trial judge that he should find the appellants had sound prospects of rehabilitation. Nor did either counsel identify any factual basis on which such a finding could properly be made. The only significant reference to prospects of rehabilitation was made in written sentencing submissions advanced on behalf of Mr Penny, which observed:[22]

[Mr Penny] was brought up in an environment in which he [was] brutalised by exposure to violence, sexual abuse, abandonment. Mr Penny learned to struggle physically to defend himself against violence. Mr Penny never had a chance.

His parents were both drug-users. Penny has a history of polysubstance abuse, self-harm and depression (for which he [is] now medicated), his drug problems and offending dating to age 14. He is now 26 years and no longer has much benefit of youth, but his age gives hope of rehabilitation.

He has spent much time in custody since age 14, which suggests a risk of institutionalisation that would frustrate rehabilitation by depriving him of the contemplation of life after release, which ought be avoided if possible.

(emphasis added)

1. Contrary to the argument advanced by counsel for Mr Penny,[23] this written submission falls well short of a contention that Mr Penny had sound prospects of rehabilitation. The fact that the trial judge was not asked to find that either appellant had sound prospects of rehabilitation counts very strongly against any conclusion that his Honour erred in failing to make that finding.

1. On appeal, counsel for Mr Taylor relies on the following findings made by the trial judge as supporting a finding that Mr Taylor had sound prospects of rehabilitation:[24]
   1. While in prison, Mr Taylor had utilised prison counselling services and continued to be engaged with his family who remained very supportive.
   2. By the time of sentencing, Mr Taylor had expressed concerns about his cannabis use and had expressed a wish to engage in programs and counselling to adopt relapse prevention strategies.
   3. Mr Taylor accepted that he was involved in the attack on the deceased.
   4. Mr Taylor attempted to stop Mr Clay from continuing to double stomp the deceased.
   5. Mr Taylor had insight into his actions but limited remorse.
2. In our view, it does not follow from these findings that Mr Taylor had sound prospects of rehabilitation. While he acknowledged participating in the attack and accepted that he was guilty of manslaughter, Mr Taylor also sought to significantly downplay his role in the offending. The fact that Mr Taylor attempted to stop Mr Clay from continuing to 'double stomp' the deceased is to his credit, as the trial judge recognised. However, the fact remains that Mr Taylor participated in an unprovoked brutal attack on a defenceless fellow prisoner and contributed to the fatal injuries which he sustained. He played an active role in conscripting others to participate in the offending. There is nothing about the overall circumstances of the offending which supports a finding that Mr Taylor had sound prospects of rehabilitation.
3. Mr Taylor's willingness to participate in programs in prison is to be encouraged and is mitigating. However, participation in programs while in custody does not necessarily equate to sound prospects of rehabilitation. Further, Mr Taylor's long history of prior offending, his response to past sentencing dispositions, his substance abuse issues, and his lack of employment prospects stand as significant impediments to a finding that he had sound prospects of rehabilitation.
4. There was nothing in the pre-sentence report prepared in relation to Mr Taylor which suggested that his prospects of rehabilitation were sound. To the contrary, the authors of that report noted:

Mr Taylor's risks to offending appear to be linked to a level of immaturity, poor consequential thinking, and impulsivity, as well as negative peer influences. During his interview, Mr Taylor generally accepted his actions however appeared to blame his co-offenders for continuing to assault the victim. It is noted that Mr Taylor has spent approximately two months in the community as an adult and has had limited opportunities to seek employment or education. Mr Taylor would likely benefit from referrals to programs and counselling to address his treatment needs, particularly in relation to his cognitive functioning and violent offending. Should Mr Taylor fail to adequately address his treatment needs he is considered likely to reoffend.

1. In oral submissions on appeal, counsel for Mr Taylor accepted that the material referred to above did not demonstrate that Mr Taylor's prospects of rehabilitation were sound. Counsel said that the best he could put it was that there were some prospects of rehabilitation in a young man, which would have justified greater mitigation. Counsel contended that the trial judge erred in taking the question of rehabilitation 'off the table altogether'. However, counsel effectively accepted that this would require an amendment to the grounds of appeal, which he ultimately did not pursue.[25]

1. In written submissions on appeal, counsel for Mr Penny contends that 'no factual basis or process of reasoning was set out for making such a finding'.[26] This submission ignores the fact that the onus was on Mr Penny to establish that he had sound prospects of rehabilitation, and sentencing counsel had not sought to discharge that onus. It also ignores the fact that the trial judge did not make a positive finding, but rather, was unable to make a finding. An explanation for the absence of further discussion as to why the trial judge could not find that Mr Penny had sound prospects of rehabilitation is that the judge was never asked to make that finding. Further, the trial judge's observations indicate his Honour's view that there was no material before him that would support such a finding.
2. In written submissions, counsel refers to the fact that Mr Penny was 26 years old at the time of sentencing, enjoyed reasonably sound physical health, and was compliant with prescribed anti-depressant medication. Counsel also contends that Mr Penny has only one conviction as an adult which involved violence (being an assault on a public officer on 31 October 2017 for which he was imprisoned for 1 year from 30 January 2019). Counsel submits that there was nothing before the trial judge to indicate that Mr Penny 'had a psychopathic or violent personality or history of violent offending'.[27]
3. Counsel submits that the above matters 'would justify the view that there were still some prospects of rehabilitation for' Mr Penny. However, the trial judge did not find that Mr Penny had no prospect of rehabilitation. Rather, his Honour felt unable to find that Mr Penny's prospects of rehabilitation were sound.
4. Counsel's submissions significantly understate the seriousness of Mr Penny's criminal record.
5. On 17 January 2019, Mr Penny was sentenced by the Supreme Court to a total effective sentence of 4 years' immediate imprisonment backdated to 23 March 2018 in respect of aggravated armed robberies committed on 7 September 2017 and 11 April 2018, and the stealing of a motor vehicle on 11 April 2018. The offence on 7 September 2017 involved Mr Penny threatening a department store assistant with what he said was a 'dirty syringe' while stealing items from the store. The armed robbery offence on 11 April 2018 involved Mr Penny and a co‑offender chasing the victim, and the co-offender striking the victim twice with a crowbar, in order to steal the victim's car.[28]
6. On 30 January 2019, Mr Penny was sentenced by the Magistrates Court to 12 months' imprisonment concurrent from that date in respect of offences which included assaulting a public officer on 31 October 2017.
7. These sentences were imposed by the Supreme Court and the Magistrates Court only two months prior to Mr Penny committing the current offence. The fact that Mr Penny committed manslaughter so shortly after being sentenced to terms of imprisonment for violent offending does nothing to support a finding that he had sound prospects of rehabilitation.
8. Mr Penny was also convicted in the District Court of armed robbery committed on 24 January 2014, for which he was sentenced to 12 months' imprisonment after a pre-sentence order. He also had convictions as a juvenile for aggravated armed robbery committed on 2 September 2009 and assaulting a public officer committed on 26 May 2011. He had a long adult and juvenile record for various other offences and rehabilitation had not been achieved by the variety of sentences imposed for that offending.
9. In oral submissions on appeal, counsel for Mr Penny also pointed to the absence of any adequate treatment for his drug use and psychological and physical trauma Mr Penny had suffered in the past.[29] However, that lack of past treatment, and issues arising from Mr Penny's drug use and past trauma, represent barriers to his rehabilitation which it is hoped can be overcome, rather than a basis for concluding that Mr Penny's prospects of rehabilitation are sound.
10. In oral submissions, counsel also relied on a comment in the pre‑sentence report that 'Mr Penny's literacy skills are perceived to be adequate despite his early departure from school' and reference in that report to a caring grandmother.[30] Counsel's approach involves cherry‑picking from the pre-sentence report. The report refers to Mr Penny's grandmother becoming a primary carer who was physically abusive towards him and often absent, leaving Mr Penny and his brother without supervision or sustenance. The report also refers to Mr Penny having no vocational skills or employment history and the lack of an appropriate community support network. The report refers to his good physical health, his history of self-harm attempts and depression, his current compliance with prescribed anti-depressant medication, and his continuing polydrug use. Taken as a whole, the pre-sentence report does not form a basis for a finding that Mr Penny's prospects for rehabilitation are sound.
11. In our view, the material relied on by Mr Penny does not support a finding that he had sound prospects of rehabilitation. The trial judge correctly declined to make that finding.

1. There is no merit to the grounds of appeal so far as they contend that the trial judge failed to give sufficient consideration or weight to the respective appellants' prospects of rehabilitation. It is well established that an appellate court should not set aside an order made in the exercise of a judicial discretion on such a ground unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.[31]

1. Mr Penny contends that the trial judge erred in law 'in imposing a sentence akin to a conviction for murder or attempted murder instead of manslaughter'.[32]
2. In written submissions, counsel for Mr Penny submits that it is apparent from the severity of the sentence imposed that Mr Penny was not sentenced for the offence of manslaughter.[33] He refers to a decision of this court on an appeal against a sentence imposed for the offence of attempted murder,[34] and two decisions dealing with appeals from sentences for the offence of murder.[35] Counsel contends that in effect Mr Penny has been sentenced as if he committed the offence of murder.[36]
3. There is no merit to this ground of appeal. The trial judge's sentencing remarks make it plain that Mr Penny was sentenced on the basis that he did, and knowingly aided, an act which caused the deceased's death without intending to kill or cause an objectively life‑threatening injury to the deceased. If Mr Penny had been convicted at trial of the offence of murder, then the appropriate sentence would have been a sentence of life imprisonment with a non-parole period that, in the circumstances, would have well exceeded 17 years. In any event, there is no utility in contemplating the sentences which might have been imposed for offences of which Mr Penny was not convicted. This ground adds nothing to the contention that the sentence imposed on Mr Penny for the offence of manslaughter was manifestly excessive. Counsel for Mr Penny ultimately accepted this to be the case in oral submissions.[37]

1. For the above reasons, the appellants' grounds alleging express error have no reasonable prospect of succeeding. Leave to appeal should be refused in respect of those grounds of appeal.

1. We turn to deal with the grounds of appeal which contend that the sentences imposed on the appellants are manifestly excessive.

1. The principles relevant to an allegation that a sentence is manifestly excessive are well established. They were summarised in Kabambi v The State of Western Australia.[38] The relevant portions of that summary are repeated below:

(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) ...

(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.

1. The maximum penalty for the offence of manslaughter is life imprisonment. The Manslaughter Legislation Amendment Act 2011 (WA) increased the maximum penalty for the offence of manslaughter from 20 years' imprisonment to life imprisonment. In The State of Western Australia v Auckram,[39] this court recognised that this increase in the maximum penalty was an indication that sentences for the offence of manslaughter should increase.

1. Section 280(1) of the Criminal Code provides that a person commits the offence of manslaughter where he or she unlawfully kills another person under such circumstances as not to constitute murder.
2. As was noted in Francis v The State of Western Australia,[40] there are a variety of legal bases on which a person may commit the offence of manslaughter. The offence may be constituted by a willed act, not accompanied by an intention to kill or cause an objectively life‑threatening injury, that materially contributes to the non-accidental death of the victim.[41] The offence may be constituted by the intentional killing of a victim in an act of excessive self-defence.[42] It may also be constituted by a breach of the duties relating to the preservation of human life,[43] such as the duty of a person in charge of a dangerous thing (including a motor vehicle) to use reasonable care to avoid danger to the life of other persons.[44] Each of these categories (which are not exhaustive) themselves involve a wide range of conduct and circumstances.
3. Reflecting this diversity of circumstances in which the offence of manslaughter may be committed, there is no particular customary range of sentences imposed for the offence. In The State of Western Australia v Munda,[45] McLure P observed:

Sentences of immediate imprisonment imposed for manslaughter (for a plea of guilty with the 20‑year maximum penalty) range between two years four months and 12 years. The fact that the sentence imposed on the respondent falls within that range does not prevent a conclusion that it is, in all the circumstances of this case, manifestly inadequate. ... [M]anslaughter is by its very nature an offence in respect of which the facts and circumstances differ widely in every case and sentences for the offence should reflect the value placed upon human life by the legislature.

(citation omitted)

1. Further, as Martin CJ observed in Marshall v The State of Western Australia,[46] (a case of manslaughter on the basis of excessive self‑defence):

It has been observed many times that there is no customary range of sentences for the offence of manslaughter because of the almost infinite variety of circumstances in which the offence can be committed and the consequential variation in the sentences appropriately imposed in respect of any particular offence. Nor do the cases establish any different pattern of sentences or different sentencing ranges in respect of offences committed by the use of excessive force in self-defence, as compared to offences committed by unlawfully killing another without the intent necessary to establish the offence of murder. However, this court has observed on a number of occasions over recent years that sentences imposed for the offence of manslaughter have trended upwards in recent years. That trend reflects the value which the community places upon the sanctity of human life, which was recognised by the Parliament when it increased the maximum penalty for manslaughter from 20 years imprisonment to life imprisonment with effect from 17 March 2012.

(citations omitted)

1. It has been recognised that sentences for manslaughter should reflect the value which Parliament has placed on human life.[47]
2. The written submissions for Mr Taylor provide a summary of many decisions delivered by this court in appeals against sentences imposed for manslaughter since 1995. That exercise well illustrates the point noted above that the offence of manslaughter covers a broad range of criminal conduct, for which a wide range of sentences have been imposed. The sentences imposed or upheld in the cases referred to range from 3 years' immediate imprisonment to 13 years 6 months' immediate imprisonment. None of the cases are directly comparable with the present case.
3. It is noteworthy that the sentence imposed on each appellant in the present case is significantly above the sentences considered in any of the previous decisions of this court. However, as noted above, the range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion in a particular case.
4. Particular reference was made to the decision of the Court of Criminal Appeal in Wicks v The Queen.[48] At the end of a day on which Mr Wicks consumed a very large amount of alcohol with his friend Mr Dyson, the men observed Mr Sampi (who was unknown to them) sitting in Mr Dyson's parked car. Mr Dyson and Mr Wicks ran to the car. Mr Dyson dragged Mr Sampi from the car and fought with him, punching Mr Sampi unconscious. Mr Wicks then repeatedly struck Mr Sampi about the head with an approximately 3 kg concrete block. He then obtained a knife from the car and stabbed Mr Sampi twice in the chest before cutting his throat (which was the fundamental cause of Mr Sampi's death). Mr Wicks was acquitted of murder and convicted of manslaughter after trial. Mr Wicks was sentenced on the basis that the jury were not satisfied beyond reasonable doubt that, in his drunken state, he intended either to kill or inflict grievous bodily harm upon Mr Sampi.
5. There are several matters which should be noted in comparing the sentence of 13 years 6 months' imprisonment upheld in Wicks with the present case. First, the maximum penalty at that time was only 20 years' imprisonment. Second, the sentence which the trial judge in Wicks considered to be appropriate was 15 years' imprisonment, which was reduced by 18 months to take account of time spent in custody on remand. Third, the sentence was a 'pre-transitional' sentence, which the parties agreed was equivalent to a 'post-transitional' sentence of 10 years' imprisonment.[49] Fourth, the offences of murder and manslaughter were structured differently at that time, with murder requiring an intention to kill or do bodily harm, rather than (as at present), a subjective intention to inflict an objectively life-threatening injury.
6. The most significant aspect of the decision in Wicks is the court's recognition that the degree of violence used informs the criminality of the offence of manslaughter. In that regard, Malcolm CJ observed:[50]

This was a case of manslaughter committed under circumstances where there was neither an intention to kill nor an intention to cause grievous bodily harm. There was not, however, a complete absence of intention with respect to the applicant's actions. It is common ground that it was not a case of automatism. The acts of the applicant were conscious willed acts, although the verdict of the jury negated any intention to kill or cause grievous bodily harm. No doubt the jury took into account the applicant's degree of intoxication in reaching this conclusion. This absence of intention no doubt reduced the degree of criminal culpability. At the same time, the degree of violence used by the applicant was also relevant to criminal culpability: R v Langford [1974] Qd R 67; Kinmond v The Queen (1982) 5 A Crim R 413 at 416, 417. In my view there is a relationship of proportion between the degree of violence used by an offender and his criminal culpability, notwithstanding the absence of an intention to kill or to cause grievous bodily harm. In this context the severity of the injuries suffered by the deceased was a measure of the degree of violence used.

1. The degree of violence inflicted by Mr Wicks was very severe, such that the death of Mr Sampi was almost inevitable. However, as is noted below at [97] - [107], the degree of violence used in the present case, although it did not involve the use of weapons, was severe and objectively highly likely to result in the deceased's death. While the degree of violence in the present case was no greater than that employed in Wicks, there are other aggravating factors in the present case which were absent in Wicks. The assault in Wicks was the spontaneous reaction of Mr Wicks in a drunken state to Mr Sampi apparently trying to steal a car. It was not the planned assault of a vulnerable person by multiple younger stronger offenders which occurred in the present case. The offending in Wicks also did not occur in a custodial setting which, as we will discuss, was a significant aggravating factor in the present case. There were also mitigating factors in Wicks (such as the prior good character of the 22-year-old offender) which are absent in the present case.
2. For all of the reasons explained, it is difficult to draw any meaningful comparison between the sentence imposed in Wicks and the sentences imposed on the appellants in the present case. Having regard to the many differences, we are not persuaded that the sentence imposed in Wicks is out of step with the sentences imposed on the appellants in the present case.

1. The trial judge did not find that either appellants' offending was within the most serious category of manslaughter for which the maximum sentence of life imprisonment would be the appropriate sentence. No party contended otherwise on appeal. However, in our view, the offending by the appellants was very much in the upper range of the scale of criminality of manslaughter offences and warranted a penalty towards the upper end of the available range of sentences.
2. Although no weapons were used, the degree of violence involved in the offending was sustained and extreme. Objectively, the repeated blows with feet and fists to the deceased's head were highly likely to result in his death. The jury's verdict indicates that they were not satisfied, beyond reasonable doubt, that any of the offenders subjectively intended to inflict an objectively life-threatening injury. However, the high level of the violence and the probable consequence of that level of violence was a significant aggravating feature of the offending.
3. There was some debate at the hearing of the appeal as to whether the trial judge found that Mr Penny kicked the deceased in the head only once or on multiple occasions.[51] The trial judge's findings, noted at [14] and [26] above, were that Mr Penny was 'also kicking Mr Eades to his face', and that Mr Penny 'kicked him to the face during the attack', and 'kicked at the[52]ead of Mr Eades'.52 In context, the trial judge's finding was of sustained kicking by Mr Penny. The finding was made by reference to evidence which described Mr Clay and the appellants kicking the deceased at a rate of at least 15 kicks per minute over a sustained period of 2&#16[53]- 3 minutes.53 Immediately after referring to Mr Penny kicking the deceased to his face, the trial judge said that 'the kicking[54]ent on for some time'.54
4. Further, this was a planned attack on a vulnerable person by a large group of fit, strong, young men. The victim offered no provocation for what was done. The deceased had no opportunity to resist or avoid the offenders. The offenders continued to kick and stomp on the deceased's head as he lay helpless on the ground.
5. The appellants both played an important role in the offending. Each delivered blows to the deceased's head which were a significant or substantial cause of the death. There is no ground of appeal challenging the finding that the acts of the appellants contributed to the deceased's death in that way. Mr Penny's submissions that seek to attribute primary responsibility to the stomping by Mr Clay are inconsistent with the trial judge's conclusion that he was unable to find whether a specific act done by one of the offenders was the sole cause of the deceased's death. No ground of appeal challenges that conclusion. There was no evidence that either of the appellants were anything other than a willing participant, and no challenge to the trial judge's finding that each of the appellants were willing and active participants in the sustained violent attack on the deceased.
6. We note that much of the oral argument by Mr Penny's appeal counsel was directed to the comparative roles of the different offenders. In debate with counsel, the court made it clear that, if counsel wished to argue that Mr Penny played a lesser role that merited a lower sentence than Mr Taylor or Mr Clay, then he would need to add a ground of appeal contending an infringement of the parity principle. While indicating he would consider whether to move to amend the grounds of appeal, counsel for Mr Penny ultimately did not seek to do so.[55]
7. A very significant aggravating feature of the offending is that it occurred in a custodial setting. We agree with the observations of the trial judge quoted at [45] above. This court has recognised that the fact that an assault occurs in a custodial setting where prisoners are vulnerable to attack by other prisoners is an aggrava[56]ng factor.56 As Ashley JA observed in De Castres [57]The Queen:57

The fact that an offence of violence is committed in a custodial setting renders general deterrence of paramount importance as a sentencing consideration. In part, that is because the victim has no choice but to be where he or she is, and has at least a reduced ability to take prudent measures for his or her own safety. In part, it is because the courts cannot permit the law of the jungle to take hold in prisons.

Particularly if the offender has a past history of violence, commission of an act of violence in a custodial setting will underline the importance of specific deterrence as a sentencing consideration.

In the presence of the two circumstances described, matters going in mitigation of sentence will be of lesser weight in the sentencing synthesis. The question in the particular case will be the extent to which the circumstances tending towards a heavier sentence operate. It is not a question, however, of there being a tariff for the particular offence if committed whilst in custody which is different and unrelated to the pattern of sentences generally for that offence.

1. In the same case, Harper JA observed:[58]

There is in my opinion no doubt that the custodial setting is a relevant sentencing consideration in this case - as in most if not all cases of prisoner-on- prisoner assaults. At the same time, I agree with that which was said by McMurdo J in R v Ainsworth; Ex parte Attorney‑General [(2004) 1 Qd R 670, 682-683 [13] and [15]] to the effect that an offence when committed by a prisoner is not so unlike an assault on a citizen in the general community as to make an identified range of appropriate penalties in the latter case irrelevant to the former.

It is nevertheless true that life in prison is very different from life outside; and that difference must be reflected in the courts' attitude to assaults by inmates on other inmates. Theirs are closed communities. In them, dislikes can quickly turn to hatred. Cliques will form. Gossip will be rife. Bullies will tend to thrive. Outbursts of anger, in the particular case unpredictable by prison staff, will occur and may quickly turn violent.

Violence, then, is much closer to the surface there than in the general community. If discipline is to be maintained - and, without it, prison life would be nasty, brutish and short - outbreaks of violence must be dealt with appropriately. Prison authorities will be assisted if it is known that the courts will in general regard deterrence as having a significance inside prison greater than that which it enjoys outside: the word will get around, inside prison, in ways which cannot be replicated in the general community. Another consideration is that, if rules are not enforced, prisoners will tend to take advantage of a lack of discipline, thus compounding the resultant difficulties.

The counter to this is not harsh discipline. It is fair and predictable discipline. The courts must play their part in this.

1. Ross AJA reviewed a number of authorities which supported the proposition that deterrence assumes particular importance as a sentencing principle where the offending takes place in a custodial or prison setting, and that the custodial or prison setting of an offence may be regarded as an aggravating feature.[59]
2. The above observations are consistent with the view expressed by this court in Francis,[60] that the sentencing task is not to be approached by dividing manslaughter offences into categories. Rather, the task of a sentencing judge is to determine the sentence which is commensurate with the seriousness of the offence having regard to precisely what the offender has done, taking account of all mitigating and aggravating factors. The fact that the offence occurs in a custodial setting, while it does not place the offending in a separate category, is a very significant aggravating feature of the present offending.
3. Consistent with the above authorities, this court in The State of Western Australia v Tumata,[61] recognised that, along with the objective of preserving the good order of prisons, both specific and general deterrence are major sentencing considerations for offences of intimidation and violence committed by a prisoner upon another prisoner.

1. There was limited mitigation to be found in either of the appellants' personal circumstances. Both had long criminal records which elevated the significance of personal deterrence as a sentencing consideration. Neither was of good character. They did not enjoy the mitigating effect of pleas of guilty. The only mitigating factors warranting significant reduction in the sentence to be imposed were the appellants' relatively young ages at the time of offending and Mr Penny's childhood marred by violence, neglect, and abuse.

1. In our view, in all the circumstances, the 17-year sentences of imprisonment imposed on the appellants appropriately reflected, and were commensurate with, the seriousness of the offence which they committed. The sentences were not unreasonable or plainly unjust. Manifest excess has not been established.
2. While we would grant leave to appeal on the grounds contending the sentences imposed on the appellants to be manifestly excessive, in our view, those grounds are not established.

1. Mr Penny requires an extension of time in which to appeal. We would grant the extension on the basis that the delay is relatively short and has been adequately explained. For the reasons explained above, we would grant leave to appeal on the grounds of appeal alleging the sentences to be manifestly excessive but would refuse leave to appeal on the other grounds that have not been abandoned and dismiss the appeal.
2. The orders we would make in each appeal are as follows:

1. Leave to appeal is granted on ground 3.
2. Leave to appeal is refused on ground 2.
3. The appeal is dismissed.

1. The appellant's application for an extension of time in which to appeal is granted.
2. Leave to appeal is granted on ground 1.
3. Leave to appeal is refused on grounds 2 and 3.
4. The appeal is dismissed.

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

[1] Ground 3 of Mr Taylor's appeal and ground 1 of Mr Penny's appeal.

[2] Ground 2 of Mr Taylor's appeal and ground 2 of Mr Penny's appeal.

[4] Ground 1 of Mr Taylor's appeal contended that the trial judge 'made a wrong decision on a question of law in holding that the offending (as distinct from an assault) was premeditated'. This ground was abandoned at appeal ts 30.

[5] The State of Western Australia v Taylor [2021] WASCSR 55 (Remarks) [6] - [29].

[7] Remarks [33] - [41], [49] - [60].

[19] Ground 2 of Mr Taylor's appeal and ground 2 of Mr Penny's appeal.

[20] RMM v The State of Western Australia [2018] WASCA 183 [201], [203].

[22] Outline of Sentencing Submissions Clinton Alan Penny, pars 31 - 33.

[24] Appellant's submissions in Mr Taylor's appeal, pars 16(i), 16(m), 16(p), 20 - 22 and 31 - 34; appeal ts 27.

[26] Appellant's submissions in Mr Penny's appeal, pars 63 - 64; appeal ts 7.

[27] Appellant's submissions in Mr Penny's appeal, pars 65 - 67.

[28] See The State of Western Australia v Penny [2019] WASCSR 23.

[31] See, for example, the discussion in Lee v The State of Western Australia [2022] WASCA 137 [73] - [75].

[33] Appellant's submissions in Mr Penny's appeal, par 69.

[34] The State of Western Australia v Clark [2020] WASCA 103, referred to at appellant's submissions in Mr Penny's appeal, pars 71 - 76.

[35] Khan v The State of Western Australia [2013] WASCA 193 and Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328, referred to at appellant's submissions in Mr Penny's appeal, pars 77 - 84.

[36] Appellant's submissions in Mr Penny's appeal, par 85.

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

[39] The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397 [121] - [123] (Buss JA, Mazza JA & Hall J relevantly agreeing).

[40] Francis v The State of Western Australia [2019] WASCA 43 [53] - [55] (from which the following observations are taken).

[41] Section 268 and s 270, read with s 23A and s 23B of the Criminal Code.

[42] Section 248(3) of the Criminal Code.

[43] Section 262 and s 267 of the Criminal Code.

[44] Section 266 of the Criminal Code; as to which see Callaghan v The Queen (1952) 87 CLR 115.

[45] The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 [62]; see also McNamara v The State of Western Australia [2013] WASCA 63 [116].

[46] Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99 [49]. To similar effect see also Marshall, Buss JA [125] - [126]. See also Colledge v The State of Western Australia [2007] WASCA 211 [18], adopted in TDO v The State of Western Australia [2018] WASCA 135 [41].

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

[48] Wicks v The Queen (1989) 3 WAR 372.

[49] Par 38 of the Respondent's Submissions in Mr Penny's appeal; par 42 of the Respondent's Submissions in Mr Taylor's appeal; appeal ts 24, 51.

[51] See appeal ts 18 - 19, 22, 45 - 46.

[56] Forrest v The State of Western Australia [2019] WASCA 172 [48].

[57] De Castres v The Queen [2011] VSCA 377; (2011) 33 VR 493 [1] - [3].

[61] The State of Western Australia v Tumata [2022] WASCA 161 [14], [116].