Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - State appeal against sentence - Respondent charged with murder - Respondent convicted after trial of manslaughter - Sentence of 4 years 11 months' imprisonment conditionally suspended for 18 months - Offer to plead guilty - Whether trial judge erred in allowing a discount of 20% for the respondent's offer to plead guilty to manslaughter and limited admissions - Trial judge gave credit for time spent in custody on remand rather than backdate the sentence - Trial judge's decision to give credit rather than backdate evaded the limit in Sentencing Act 1995 (WA), s 81(1) - Whether sentence manifestly inadequate

Criminal Appeals Act 2004 (WA), s 31(4), s 41(3)

Sentencing Act 1995 (WA), s 6, s 8(2) (repealed), s 9AA, s 39, s 76, s 81, s 87

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 33

Carr v The Queen [2012] VSCA 299

Colledge v The State of Western Australia [2007] WASCA 211

DF v The Queen [2006] NTCCA 13

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

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

Fisher v The Queen [1999] WASCA 122

Fogg v The State of Western Australia [2011] WASCA 11

Forkin v The State of Western Australia [2013] WASCA 51

Goodwyn v The State of Western Australia [2013] WASCA 141

Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539

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

Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

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

Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264

Macaree v The State of Western Australia [2011] WASCA 207

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

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Neumann v The State of Western Australia [2013] WASCA 70

Nguyen v The State of Western Australia [2007] WASCA 114

Petrelis v The State of Western Australia [2012] WASCA 235

R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535

R v Franklin [2012] SASCFC 109; (2012) 114 SASR 206

R v Hansen [2011] SASCFC 10; (2011) 206 A Crim R 54

R v Jones [2010] SASFC 58; (2010) 108 SASR 479

R v Lyon [2006] QCA 146

R v Marshall [1994] QCA 161; (1995) 1 Qd R 673

R v McDonald [2000] WASCA 336

R v Nguyen [2013] NSWCCA 195

R v Oinonen [1999] NSWCCA 310

R v Smith (1987) 44 SASR 587

R v Wiggins [2003] QCA 367

Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656

Skipworth v The State of Western Australia [2008] WASCA 64

Smith v The State of Western Australia [2010] WASCA 176

Spooner v The State of Western Australia [2008] WASCA 86

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

The State of Western Australia v Walley [2008] WASCA 12

Wicks v The Queen (1989) 3 WAR 372

1 BUSS JA: This is a State appeal against sentence.

2 The respondent was charged on indictment with a single count which alleged that on 8 June 2012, at Clarkson, he murdered his stepson, Jason Jeffrey Burton, contrary to s 279 of the Criminal Code (WA) (the Code).

4 Between 18 and 22 February 2013, the respondent was tried in the Supreme Court before EM Heenan J and a jury. The jury was unable to agree upon a verdict and was discharged.

5 Between 29 April and 3 May 2013, the respondent was retried in the Supreme Court before Simmonds J (the trial judge) and a jury. The jury acquitted the respondent of murder but convicted him of manslaughter, contrary to s 280 of the Code.

6 On 5 July 2013 the trial judge imposed sentence. The respondent had been remanded in custody between 8 June 2012 and 5 July 2013. His Honour imposed a sentence of 4 years 11 months' imprisonment but conditionally suspended the term for 18 months. The conditions of suspension included supervision and programme requirements. The commencement date for the sentence was 5 July 2013.

7 On 25 July 2013, the State filed its appeal notice. On 26 July 2013, McLure P made an urgent appeal order.

8 At trial, there was little dispute about the evidence adduced by the State.

9 The respondent gave sworn evidence in his own defence at the original trial but not at the retrial. The respondent's account of events at the retrial was embodied in an extensive video recorded interview with the police. The interview was tendered as part of the State's case. At the retrial, defence counsel called the respondent's wife, Jacquelyn Auckram, the mother of the victim, to give evidence about the relationship between the respondent and her, on the one hand, and the victim, on the other.

10 During her opening address at the original trial and the retrial, defence counsel formally admitted, on behalf of the respondent, that the victim had died of multiple gunshot wounds and that these wounds had been sustained 'as a consequence of shots fired from a gun that was in [the respondent's] hands at all relevant times'. The respondent had previously made these admissions in the video recorded interview with the police. Despite the curious and passive mode of expression of the admissions, the defence of accident was not in issue at the original trial or the retrial.

11 The defence case was that the respondent's actions in shooting the victim were not unlawful because they were committed in self-defence.

12 Section 248(1) of the Code provides that, in s 248, the term 'harmful act' means an act that is an element of an offence under pt V other than ch XXXV.

13 Section 279 creates an offence under ch XXVIII of pt V.

14 By s 248(2), a harmful act done by a person is lawful if the act is done in self-defence under s 248(4).

If -

(a) a person unlawfully kills another person in circumstances which, but for this section, would constitute murder; and

(b) the person's act that causes the other person's death would be an act done in self-defence under subsection (4) but for the fact that the act is not a reasonable response by the person in the circumstances as the person believes them to be,

the person is guilty of manslaughter and not murder (emphasis added).

A person's harmful act is done in self defence if -

(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and

(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs. (emphasis added)

17 Section 248 was inserted by the Criminal Law Amendment (Homicide) Act 2008 (WA). It commenced on 1 August 2008.

18 In Goodwyn v The State of Western Australia [2013] WASCA 141, this court examined the elements in s 248(4). It is unnecessary to reproduce the views expressed in that case.

19 In the present case, the critical issues at the original trial and the retrial were:

(a) whether the State had negatived the respondent's claim of self-defence by excluding at least one of the elements in s 248(4) beyond reasonable doubt; and

(b) whether the respondent's act in inflicting the multiple gunshot wounds from which the victim died would have been an act done in self-defence under s 248(4), but for the fact that the act was not a reasonable response by the respondent in the circumstances as he believed them to be, within s 248(3)(b).

The trial judge's sentencing remarks: the facts and circumstances of the offending

20 The trial judge described, in his sentencing remarks, the facts and circumstances of the offending. His Honour's findings of fact were not challenged in the appeal by either the State or the respondent.

21 At the time of the offence, the respondent was aged 52. He was 190 cm tall and of medium build.

22 At the time of the offence, the victim was aged 41. He was 182 cm tall and of medium build.

23 The relationship between the respondent and Mrs Auckram, on the one hand, and the victim, on the other, had become strained over several years prior to the offence. The trial judge was satisfied the victim had made threats to cause harm, including to kill, the respondent and Mrs Auckram. Shortly before the offence, a psychiatrist who was treating the victim had told Mrs Auckram the victim had expressed a wish to kill the respondent. Mrs Auckram conveyed this information to the respondent [11].

24 As at 8 June 2012, when the offending occurred, the victim had recently and unexpectedly returned from Cambodia. He was living with the respondent and Mrs Auckram [13].

25 On 8 June 2012, the respondent decided to confront the victim and 'set some ground rules for [the victim] living in [the respondent's] home, including having the victim pay his own way, and eventually moving out of the home' [14].

26 So, on 8 June 2012, the respondent and the victim began a discussion in the lounge area of the respondent's home. Mrs Auckram was at work. No-one else was present. The discussion soon became an argument. The victim said words to the effect that he would 'slaughter the lot of you'. Shortly afterwards, the respondent left the lounge area and went to his bedroom where he kept a hunting rifle and ammunition. The respondent believed the victim had 'a gun somewhere close by', and the respondent wanted to 'get something for protection in case [the victim] was going to do something' [15].

27 The respondent unlocked the safe in his bedroom which contained the hunting rifle and ammunition. The rifle was designed for killing medium-sized game. He loaded the rifle with several rounds of ammunition. The respondent left the bedroom, armed with the rifle, to look for the victim. He walked into a passageway and moved towards the lounge room [16].

28 At that stage, the victim walked from the lounge room into the passageway and moved towards his bedroom. He was not armed. However, the respondent believed the victim had a gun in his bedroom. Also, the respondent saw something in the victim's hand. It was in fact a coffee mug. The respondent did not know what it was, but he thought it might be a weapon of some kind [17] - [18].

29 The respondent raised the rifle and, without warning, fired at the victim from a distance of about 3 or 4 m. The bullet struck the victim in the right bicep and caused him a life-threatening injury [19].

30 The victim, upon being hit by the first shot, turned around and dropped to the floor on his hands and knees. The respondent fired again. The bullet struck the victim in the back and he became prone on the floor. The respondent fired another two shots. One bullet struck the victim in the back and the other entered his head near the top of his left ear. At least two of the final three shots inflicted life-threatening injuries. The four bullets were fired within a very short period [24].

31 The respondent stepped over the victim and walked into the kitchen area. He telephoned 000 and spoke to a police operator. He told the operator the victim was unwell and needed an ambulance. He was unsure whether the victim was still breathing. The operator inquired whether the victim required mouth to mouth resuscitation. The respondent replied, '[no], he's motionless, I am not sure'. The respondent did not attempt any first aid or other measures of the kind suggested by the operator. The trial judge was not satisfied, however, that the respondent had shown a callous disregard for the victim. His Honour said the respondent was 'unable to come fully to terms with what had happened' [26].

32 After completing the telephone call, the respondent went to the front yard of his home. He placed the rifle on the bonnet of a vehicle and raised his arms in surrender when the police arrived [28].

33 During the video recorded interview with the police, the respondent made a substantial number of admissions relating to the shooting of the victim [28] - [29].

34 His Honour found that the offending was aggravated by a number of factors:

(a) The respondent obtained and loaded the rifle for use [35].

(c) The respondent continued to shoot the victim after seriously injuring him with the first bullet. It would have been apparent to the respondent that the first bullet had occasioned serious injury [38].

(d) The respondent did not take any of the steps suggested by the police operator to assist the victim [39].

35 The trial judge found that the only reasonable inference, in the circumstances, was that the respondent intended to kill the victim [41]. However, this aggravating factor was ameliorated by his Honour's findings in relation to the jury's verdict. His Honour held that the jury's verdict was explicable 'only on the basis that they were satisfied beyond a reasonable doubt that [the respondent's] actions were not done in self-defence except in this one respect: those actions were not a reasonable response by [the respondent] in the circumstances as [he] believed them to be' [43].

36 His Honour decided that 'overall' the respondent's offending was 'a serious example of manslaughter', but was 'some distance from the most serious offence of this kind imaginable' [48].

The trial judge's sentencing remarks: the respondent's 'offers' to plead guilty to manslaughter

37 By letter dated 13 September 2012, the respondent's solicitors wrote to the Office of the Director of Public Prosecutions (WA) (DPP). In the letter the respondent offered to plead guilty to manslaughter in full satisfaction of the indictment. The letter comprised five pages. It included detailed submissions explaining why it was appropriate for the DPP to accept the offer. The basis on which the respondent was willing to plead guilty to manslaughter was, relevantly, as follows:

(a) At no time did [the respondent] ever form the intention to kill [the victim] or even to cause him serious harm.

(b) [The respondent's] purpose for getting the gun was he became frightened of [the victim] and considered he was violent and dangerous and posed an immediate threat to both himself and to his wife.

(c) Just prior to getting the gun, [the victim] had both, from his words at the time and actions on earlier occasions, caused [the respondent] to believe that if he did not act, he and his family were in immediate peril.

(d) When [the respondent] fired the gun, the only thought in his head was to eliminate the threat rather than to harm or kill [the victim].

38 The letter dated 13 September 2012 was sent about five months before the commencement of the original trial. The DPP rejected the respondent's offer.

39 On 23 April 2013, defence counsel sent an email to a representative of the DPP, as follows:

I inquire whether the DPP would consider accepting a plea to manslaughter on this matter at this time?

40 The email of 23 April 2013 was sent after the completion of the original trial and six days before the commencement of the retrial. On 24 April 2013, Laura Elizabeth Christian, a senior State prosecutor, informed defence counsel that the DPP was not prepared to accept a plea to manslaughter.

41 The trial judge said the respondent's offer in the letter dated 13 September 2012 was consistent with his admissions in the video recorded interview with the police [52].

42 His Honour referred to the formal admissions made by defence counsel on behalf of the respondent in her opening address at the original trial and the retrial [53].

These matters do not, individually or in combination, represent a formal plea of guilty to the offence of which you were ultimately convicted, namely manslaughter [54].

However, I consider that I am entitled to treat the offer and the admissions in much the same way as if you had made an early plea of guilty. Indeed, I am satisfied you pleaded guilty at the first reasonable opportunity. I consider that I should take account of benefits to the State, witnesses and the immediate family of the victim of those matters in much the same way I would had a formal plea of guilty been made to a charge of manslaughter put to you at the first reasonable opportunity [55]. (emphasis added)

45 The trial judge said he took the strength of the State case into account in assessing the value of the respondent's offer to plead guilty to manslaughter and his admissions. According to his Honour, the State case 'indicated the inevitability of a conviction of manslaughter. ... [t]he State case was very strong in that regard' [56].

46 His Honour decided to allow a discount of 20% on the sentence he would otherwise have imposed 'for benefits to the State, witnesses and victims for your offers [sic] to plead guilty and your admissions' [57].

47 The trial judge, in summarising the mitigating factors before he imposed sentence, referred to the respondent's 'early offer to plead guilty to manslaughter [and] the formal admissions at both of your trials' [89].

48 His Honour, in explaining the sentence he had arrived at, reiterated that he had reduced the sentence he would otherwise have imposed 'for the benefits to the State, witnesses and victims, of your offers [sic] to plead guilty and your admissions by 20%' [123].

The trial judge's sentencing remarks: the respondent's remorse and acceptance of responsibility

49 The trial judge found that the respondent had evinced 'deep and genuine' remorse and acceptance of responsibility for his offending [60]. His Honour said there would be 'significant additional credit on that account' [60] (emphasis added).

The trial judge's sentencing remarks: the respondent's personal circumstances and antecedents apart from his physical ill health

50 The respondent was born in New Zealand on 15 May 1960. He ceased his schooling at age 16 and commenced employment. He has had a stable employment history including in the Western Australian hospitality industry.

51 The respondent and Mrs Auckram have had a lengthy and stable marriage. She remains supportive of him.

52 The information before the trial judge included a report dated 17 June 2013 from Ms Wendy Wager, a specialist counselling and clinical psychologist, a report dated 19 June 2013 from Dr Gosia Wojnarowska, a consultant psychiatrist, and a pre-sentence report dated 20 June 2013.

53 Ms Wager said the respondent's offending was preceded by years of bullying behaviour by the victim. The respondent 'reached the point where his fear was so intense that he felt he needed to act to prevent harm to himself and his wife'. Ms Wager was of the view that the respondent was at low risk of further violent offending. He had no identified treatment needs relating to the offence.

54 Dr Wojnarowska diagnosed the respondent as suffering from post-traumatic stress disorder relating to his offending. The risk of the respondent reoffending was very low. His personality structure 'is such that he is not prone to violence or acting out behaviour'.

55 The trial judge made these observations about the respondent's mental health at the time of the offence and generally:

At the time of the offending, the psychiatric report indicates to me your mental state was altered. You had feelings of depersonalisation and de-realisation suggesting that you were in a dissociative state while committing the offence. That seems to me to be fully consistent with your behaviour in the video record of interview. That commission was caused by a psychological blow representing an intense emotional shock which induced such a state that you acted in a manner, although goal directed and purposeful as that manner was, that was out of character for you.

At the same time, however, none of that, in my view - and the psychiatric report tends to confirm this - indicates that you were suffering from any mental illness that contributed to your offending. Indeed, the contrary was not put to me by your counsel.

Subsequent to the offending, on both the psychological report and the psychiatric report, you have suffered, I understand from post-traumatic stress disorder for which you should be treated. The treatment would appear to be psychological counselling combined with antidepressant medications [82] - [84].

56 The respondent does not abuse alcohol. He does not use illicit drugs or other substances.

57 The respondent does not have a prior criminal or traffic record except for a very minor and old traffic offence. His Honour sentenced him on the basis that he was of prior good character [86]. Numerous written references made available to his Honour spoke well of the respondent's character and his qualities as a father, employee and union representative.

The trial judge's sentencing remarks: the respondent's physical ill health

58 In about 1998 the respondent was diagnosed with tonsillar carcinoma. He was treated by surgery and radiation therapy.

59 Shortly after the commission of the offence, the respondent suffered a recurrence of the carcinoma.

60 The information before the trial judge included a report from Dr Lisa Wun, a Head and Neck Fellow at Sir Charles Gairdner Hospital. His Honour summarised her report as follows:

In my view, the medical report makes it plain that the overall five year survival rate for cancers of the kind you suffer is about 50%; that is to say, as I have understood it, about half of the patients generally with your kind of cancer, live no more than five years. That does not mean that the patients who do survive beyond that period will be disease free. In about 20% to 30% of cases, according to the report, the disease will recur. There is a higher probability for you, and this is a specific opinion from Dr [Wun], as you have already had two incidents of the cancer diagnosed.

Further, the medical report indicates you would likely be an inpatient for about three weeks after surgery next week, as I have already said. You would still have a feeding tube on discharge and you would likely require it for three months or more. There would be an ongoing rehabilitation process in respect of your swallowing. Your speech is also going to be affected in that you will have no or minimal ability to talk while the tube is in place. After the removal of the tube you would still require ongoing rehabilitation of your speech by a speech pathologist. It will take you weeks to months to regain, if you do regain, good conversational speech.

Your overall recovery from surgery is likely to take three months or more, and it would be longer if you are suitable for further doses of radiotherapy post-operatively [73]- [75]. (emphasis added)

61 It is apparent from this passage that the respondent was to have surgery during the week commencing Monday, 8 July 2013.

The trial judge's sentencing remarks: how his Honour arrived at the sentence

62 The trial judge explained how he had arrived at the sentence of 4 years 11 months' imprisonment, conditionally suspended for 18 months.

63 His Honour's 'starting point' was 8 years 10 months' imprisonment [122]. He reduced the starting point by 20% for 'the benefits to the State, witnesses and victims, of your offers [sic] to plead guilty and your admissions' [123]. He then further reduced the starting point 'for the matters subjective to you that I have described, including the matter of mercy' [124]. These reductions produced a term of 6 years' imprisonment [124].

64 Next, his Honour decided it would be appropriate 'to credit against [the term of 6 years] the time [the respondent] had spent in custody' [125]. As I have mentioned, the respondent was remanded in custody between 8 June 2012 and 5 July 2013. His Honour decided not to back-date the sentence by 13 months but, instead, to credit the 13 months against the term of 6 years. In the result, the length of the term was reduced to 4 years 11 months [125].

65 Finally, the trial judge said he had 'weighed all the circumstances again, aggravating and mitigating, to determine whether or not to suspend the sentence'. His Honour concluded:

In view of all of that, notwithstanding that it is an unusual - indeed an extraordinary - decision to make in the context of offending of this kind, I would suspend the sentence of manslaughter that I have previously referred to. I would do so for a suspension period of 18 months with supervision and programme requirements [128].

67 Ground 1 alleges the trial judge erred in concluding that the respondent 'pleaded guilty at the first reasonable opportunity', and then allowing a discount of 20% for the alleged plea of guilty, and the subsequent benefits to the State, witnesses and immediate family of the victim, when the respondent did not plead guilty.

68 Ground 2 alleges his Honour erred by imposing a sentence that was so inadequate as to manifest error, both in respect of the length of the sentence and by ordering that the sentence be conditionally suspended.

69 On 9 August 2013, Mazza JA granted leave to appeal.

70 Ground 1, as developed at the hearing of the appeal, raises two issues.

71 First, did the trial judge allow the discount of 20% on the erroneous factual basis that the respondent had pleaded guilty to manslaughter at the first reasonable opportunity?

72 Secondly, in any event, was the discount of 20% unreasonable or plainly unjust?

Ground 1: the application to adduce additional evidence in the appeal

73 At the hearing of the appeal on 13 September 2013, counsel for the State made submissions in relation to the 'offers' in the letter dated 13 September 2012 and the email of 23 April 2013. Counsel referred to the conditions attaching to the offer in the letter dated 13 September 2012. He said the email of 23 April 2013 'was understood by the State as being on the same precondition terms as the first offer and the consequence was that it was not accepted' (appeal ts 8).

74 Counsel for the respondent, who was defence counsel at the original trial and the retrial, interrupted the submissions of counsel for the State and said, in relation to the email of 23 April 2013:

One matter that's just occurring to me [is] there seems to be likely to be some significant factual disputes as to this negotiation phase ... [and] it strikes me, sitting here, that I may become a witness, potentially, in that respect (appeal ts 14).

75 Later, counsel for the respondent contended that the email of 23 April 2013 contained 'an unconditional offer to plead guilty to manslaughter as opposed to the first offer to plead guilty, which clearly had the conditions set out in the letter [dated 13 September 2012]' (appeal ts 26).

76 On 13 September 2013, it was necessary, as a result of counsel for the respondent having belatedly informed the court that she may have a conflict, to adjourn, part heard, to 7 October 2013. Programming orders were made for the filing and service of affidavits concerning the email of 23 April 2013.

77 The respondent's solicitor, Kate Jennifer King, in an affidavit sworn 24 September 2013, deposed to a conversation between counsel for the respondent, Ms Black, and the prosecutor at the original trial, Dave Dempster. Ms King's affidavit reads, relevantly:

1. Following the jury having been discharged, I was present during a conversation that took place between Ms Black and Mr Dempster ...
2. During the course of this conversation, I heard Ms Black ask Mr Dempster whether, in light of the jury's failure to reach a verdict and the issues that had emerged during the trial, the State would now consider an offer for manslaughter. I had spoken with Ms Black while waiting for the jury and we agreed that if the jury was discharged we should again offer a plea to manslaughter. I had taken some instructions from [the respondent] regarding this.
3. Consistent with our discussions, Ms Black did not indicate to Mr Dempster that it would be a conditional offer. Rather she stated words to the effect that she was 'confident her client would agree to plead to manslaughter rather than endure another trial'.
4. Mr Dempster stated that he was not in a position to make a decision then and there. He confirmed that he would soon be leaving the DPP. He had previously told both myself and Ms Black that this was his last trial. He advised that he would be passing this matter on to another prosecutor. I recall it being discussed that he did not know who the new prosecutor/trial Counsel would be.
5. Ms Black confirmed with Mr Dempster that there was no point in formally making the offer to him, to which he agreed. He stated that it would be necessary to make the offer to the new prosecutor once they were assigned.

1. I received an email from Ms Christian ... on 16 April 2013 confirming that she was the prosecutor for the retrial and that the State did intend to run the trial in much the same manner as Mr Dempster had for the first trial. Ms Black advised me that Ms Christian had informed her she was in the process of coming up to speed with this matter.
2. Ms Black then emailed Ms Christian at my request on 23 April 2013 enquiring whether the State would consider accepting a plea to manslaughter ...
3. The email that Ms Black sent was intended to be an unconditional offer to plead guilty to manslaughter. This is why it did not include any terms or conditions of the plea.

78 Counsel for the State did not object to the tender of Ms King's affidavit and did not require her attendance for cross-examination. The court received the affidavit as additional evidence in the appeal.

79 The State relied on an affidavit of Ms Christian sworn 26 September 2013 and affidavits of Sarah Helen Linton and David Justin Thiering sworn 1 October 2013. Ms Christian was the prosecutor at the retrial and Mr Thiering was the trial file manager responsible for the conduct of the prosecution of the respondent. They deposed in effect that Mr Dempster, the prosecutor at the original trial, had not informed them of any plea offer or any conversation with defence counsel or Ms King about a plea offer. Ms Linton deposed that efforts to contact Mr Dempster, who has retired and now lives in Scotland, had been unsuccessful. The affidavits filed on behalf of the State were received, without objection, as additional evidence in the appeal, and none of the deponents was required for cross-examination.

80 As I have mentioned, the trial judge said in his sentencing remarks:

I am satisfied you pleaded guilty at the first reasonable opportunity [55].

81 Counsel for the State submitted that this statement was erroneous because the respondent did not plead guilty. He was convicted after trial. It was open to the respondent to enter a plea of guilty to manslaughter when he was arraigned before the jury at the commencement of the original trial and the retrial. He did not do so.

82 It was submitted on behalf of the State that his Honour erred in allowing a discount of 20%, on the sentence he would otherwise have imposed, for the alleged plea of guilty. According to counsel, the 20% discount was manifestly excessive.

83 Counsel for the respondent submitted that the trial judge's statement that he was satisfied the respondent 'pleaded guilty at the first reasonable opportunity' [55] had been taken out of context. On a fair reading of the sentencing remarks as a whole, it was clear his Honour was referring to the 'offer' to plead guilty to manslaughter as having been made at the first reasonable opportunity. He decided this 'offer' could be treated in the same manner as a plea of guilty at the first reasonable opportunity.

84 Counsel also contended that the email of 23 April 2013 contained an unconditional offer to plead guilty to manslaughter. She argued Ms Christian's response in the email of 24 April 2013, namely 'we are not prepared to accept a plea to manslaughter', indicated the State understood the proposal was an offer.

85 It was submitted on behalf of the respondent that, in all the circumstances, it was open to the trial judge to allow a discount of 20% on account of the 'offers' to plead guilty to manslaughter and the formal admissions at the commencement of each trial.

86 As to the first issue raised by ground 1, as developed at the hearing, I am satisfied the trial judge did not allow the discount of 20% on the erroneous factual basis that the respondent had pleaded guilty to manslaughter at the first reasonable opportunity.

87 It is true his Honour made a statement to that effect in his sentencing remarks, but it is plain, on a fair reading of the sentencing remarks as a whole, that the statement was an inadvertent error or slip.

88 For example, elsewhere in his sentencing remarks, the trial judge refers to:

(a) the absence of a formal plea of guilty to manslaughter [54];

(b) his decision 'to treat the offer and the admissions in much the same way as if you had made an early plea of guilty' [55];

(c) the 20% discount having been allowed for, amongst other things, 'your offers [sic] to plead guilty' [57];

(d) the respondent's 'early offer to plead guilty to manslaughter' in the course of summarising the mitigating factors [89]; and

(e) the respondent's 'offers [sic] to plead guilty' in explaining the sentence he had arrived at [123].

89 Also, in their written sentencing submissions and at the sentencing hearing, the prosecutor and defence counsel mentioned on numerous occasions the respondent's 'offers' to plead guilty to manslaughter. At the sentencing hearing his Honour had discourse with the prosecutor and defence counsel about the 'offers' (ts 819 - 825, 863 - 864).

90 It is inconceivable that the trial judge, when sentencing the respondent, was under the misapprehension that the respondent had pleaded guilty to manslaughter when he was arraigned before the jury at the commencement of the original trial or the retrial.

91 As to the second issue raised by ground 1, as developed at the hearing, s 9AA of the Sentencing Act 1995 (WA) was inserted, and s 8(2) of that Act was deleted, by the Sentencing Amendment Act 2012 (WA). The amendments came into operation on 20 December 2012. Section 9AA provides:

(1) In this section -

fixed term has the meaning given in section 85(1);

head sentence, for an offence, means the sentence that a court would have imposed for the offence if -

(a) the offender had been found guilty after a plea of not guilty; and

(b) there were no mitigating factors;

victim has the meaning given in section 13.

(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.

(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.

(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -

(a) by more than 25%; or

(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.

(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.

(6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.

(a) Section 9AA applies where a person has actually pleaded guilty to a charge for an offence and the person is to be sentenced for that offence. It does not apply where a person has merely offered to plead guilty.

(b) Any discount under s 9AA for a plea of guilty is to the 'head sentence', as defined in s 9AA(1). The head sentence, as defined, must be discounted for the plea before any other discount is allowed for any other mitigating factor.

(c) Any discount under s 9AA for a plea of guilty must not exceed 25%. Further, a discount of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.

(d) The purpose of allowing a discount under s 9AA is 'to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea': s 9AA(2).

(e) Section 9AA does not prevent a sentencing judge from reducing the 'head sentence', as defined, for any offence because of any mitigating factor other than a plea of guilty: s 9AA(6).

93 Prior to the insertion of s 9AA, the rationale for reducing, on account of a plea of guilty, the sentence that would otherwise have been imposed on an offender, was explained by the High Court in Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [17] - [22] (Gaudron, Gummow & Callinan JJ) and by this court in Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [29] - [38] (Steytler P, Wheeler, McLure & Buss JJA). See also Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656 [22] (Gleeson CJ, Gummow, Hayne & Callinan JJ).

94 However, as McLure P (Mazza JA agreeing) noted in Forkin v The State of Western Australia [2013] WASCA 51 [20], the insertion of s 9AA into the Sentencing Act, and the accompanying deletion of s 8(2) of that Act, involved a very significant departure from the previous legislative scheme, as explained by Gaudron, Gummow and Callinan JJ in Cameron [17] - [22].

95 It is a well-established sentencing principle that where:

(a) an offender is convicted of an offence (the subject offence) after trial;

(b) the offender previously offered to plead guilty to the subject offence but the prosecution rejected the offer;

(c) the prosecution proceeded to trial or continued with the trial on a more serious offence than the subject offence; and

(d) the offender is acquitted of the more serious offence,

the rejected offer is a mitigating factor to be taken into account in the exercise of the sentencing discretion. See R v Marshall [1995] 1 Qd R 673 (Fitzgerald P), 673 - 674 (Pincus JA); R v Oinonen [1999] NSWCCA 310 [15] - [18] (Grove J, Spigelman CJ & Sully J agreeing); R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535 [14] - [22] (Hidden J, James J agreeing); Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264 [34] (Steytler P); R v Wiggins [2003] QCA 367 (McMurdo P, Dutney & Philippides JJ agreeing); R v Lyon [2006] QCA 146 [27] - [28] (Jerrard JA, Douglas J agreeing); DF v The Queen [2006] NTCCA 13 [17] (Riley J, Martin (BR) CJ & Angel J agreeing); Spooner v The State of Western Australia [2008] WASCA 86 [18] - [19] (Steytler P, McLure & Buss JJA agreeing); R v Jones [2010] SASCFC 58; (2010) 108 SASR 479 [203] - [210] (Peek J); R v Hansen [2011] SASCFC 10; (2011) 206 A Crim R 54 [8] - [10] (Vanstone J, Sulan J agreeing), [26] - [38] (White J); R v Franklin [2012] SASCFC 109; (2012) 114 SASR 206 [43] - [50] (White J, Nicholson J agreeing); Petrelis v The State of Western Australia [2012] WASCA 235 [55], [58] - [59] (Buss JA, Mazza JA agreeing); Carr v The Queen [2012] VSCA 299 [70] - [73] (Neave & Redlich JJA & Williams AJA).

96 An offer to plead guilty is to be distinguished from a mere 'overture' or 'sounding out' by an offender's legal representatives, either with or without instructions.

97 The weight to be given to an offer to plead guilty to the subject offence, as a mitigating factor, will depend on all the circumstances of the particular case including, for example:

(b) the form and precise terms of the offer, including any conditions attached to it and the factual basis on which it was made;

(c) whether the offender entered a plea of guilty to the subject offence when he or she was arraigned at the trial;

(d) whether and, if so, to what extent the offender gave evidence at the trial, or conducted his or her defence, in a manner inconsistent with the offer;

(e) whether and, if so, to what extent the trial judge makes findings of fact, for the purposes of sentencing, that are inconsistent with the offer; and

(f) whether and, if so, to what extent the making of the offer reflects the offender's acceptance of responsibility and remorse or contrition.

These examples are not, of course, an exhaustive statement of the relevant circumstances.

98 However, the reasonableness or unreasonableness of the State's rejection of an offer to plead guilty to the subject offence is not a relevant consideration in deciding upon the weight to be given to the offer as a mitigating factor. See Hansen [34].

99 The making of an offer to plead guilty to the subject offence will be a mitigating factor even though the offender did not enter a plea of guilty to the subject offence when he or she was arraigned.

100 If the offender does not enter a plea of guilty to the subject offence upon arraignment, that fact will not of itself diminish the weight to be given to an earlier offer. See Marshall (674 - 675); Cardoso [19] - [21]; Jones [205] - [210]; Hansen [34]. However, the absence of a plea of guilty upon arraignment may diminish the weight to be given to an earlier offer if the absence of the plea, either alone or with other facts, indicates that:

(a) the offender does not accept responsibility for the offending or is not remorseful or contrite; or

(b) any acceptance of responsibility, or any remorse or contrition, is limited.

101 If the offender enters a plea of guilty to the subject offence upon arraignment, this will ordinarily be an additional mitigating factor because the offender will have in effect reiterated his or her earlier offer. Also, the entry of the plea of guilty, either alone or with other facts, may establish or reinforce the genuineness or completeness of the offender's acceptance of responsibility and remorse or contrition.

102 The making of an offer to plead guilty to the subject offence will demonstrate a willingness to facilitate the course of justice and will have pragmatic value (for example, benefits to the State from being relieved of the burden of proof and benefits to witnesses from being relieved of the burden of giving evidence and being cross-examined), even if the offer is not accompanied by an acceptance of responsibility or remorse or contrition.

103 Since the insertion of s 9AA, a sentencing judge's exercise of discretion, in deciding upon the amount of any discount for an offer to plead guilty to the subject offence, will be informed by, amongst other things, the following:

(a) any discount under s 9AA for an actual plea of guilty to the offence for which the offender is to be sentenced must not exceed 25%;

(b) a discount of 25% under s 9AA must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, to the offence for which the offender is to be sentenced, at the first reasonable opportunity; and

(c) the purpose of allowing a discount under s 9AA, as set out in s 9AA(2), and the saving provision in s 9AA(6).

104 The rationale for treating an offer to plead guilty as mitigatory is analogous to the rationale for treating an actual plea of guilty as mitigatory.

105 In the present case, the offer in the letter dated 13 September 2012 and the proposal in the email of 23 April 2013 (in the context of the discussion between defence counsel and Mr Dempster at the conclusion of the original trial) were mitigating factors to be taken into account by the trial judge in the exercise of his sentencing discretion.

106 The weight to be given to the respondent's offer and proposal depended on all the circumstances of the case, including the following:

(a) The offer was made on 13 September 2012, about five months before the original trial began. The respondent was charged on 8 June 2012. He appeared in the Magistrates Court on 27 June, 29 August and 31 October 2012. On 31 October 2012, he was committed for trial in the Supreme Court.

(b) The offer was conditional upon the State accepting, amongst other things, that 'at no time did [the respondent] ever form the intention to kill [the victim] or even to cause him serious harm'. However, the trial judge found in his sentencing remarks that the only reasonable inference, in the circumstances, was that the respondent intended to kill the victim [41]. This finding was not challenged in the appeal.

(c) The proposal in the email of 23 April 2013 was made six days before the commencement of the retrial. However, the proposal must be viewed against the background of the discussion between defence counsel and Mr Dempster at the conclusion of the original trial.

(d) Ms King said in par 14 of her affidavit that the email 'was intended to be an unconditional offer to plead guilty to manslaughter'. As I have mentioned, counsel for the State did not object to the tender of Ms King's affidavit and did not require her attendance for cross-examination. In these circumstances, I will accept that this was the subjective intention of defence counsel and Ms King. However, in my opinion, a reasonable prosecutor, in the position of Ms Christian and with knowledge of the circumstances of the original trial (including the discussion between defence counsel and Mr Dempster at the conclusion of the original trial) and the State's proposed case at the retrial, would not have understood the email to be an unconditional offer to plead guilty to manslaughter. Rather, the email would have been understood by a reasonable prosecutor, with knowledge of the relevant context, to be a 'sounding out' by defence counsel as to whether the State might be receptive to a plea of guilty to manslaughter with a view to the parties endeavouring to negotiate the terms of the plea if the State was receptive. On an objective analysis, the form and content of the email were in the nature of an 'overture'. There is no basis in the material before this court for supposing that Ms Christian or any other representative of the State subjectively believed the proposal in the email was an unconditional offer to plead guilty to manslaughter.

(e) The respondent did not enter a plea of guilty to manslaughter when he was arraigned at the original trial or the retrial. However, in my opinion the State would not have accepted such a plea if it had been entered.

(f) The respondent's case at the original trial and the retrial was that he did not intend to kill the victim and he did not intend to cause a bodily injury of such a kind as to endanger or be likely to endanger the life of the victim. The only thought in his mind was to protect himself and his family. Also, the respondent's case at the original trial and the retrial was that he acted in self-defence when he used the hunting rifle to shoot the victim on four occasions (although, according to the respondent, he only recalled firing three bullets). At the original trial and the retrial, defence counsel submitted in substance that the jury should acquit the respondent of murder and manslaughter; alternatively, if he was guilty of any offence then it was manslaughter.

(g) His Honour found in effect that the jury's verdict was only explicable on the basis of s 248(3) of the Code [43]. That is, the respondent had unlawfully killed the victim in circumstances which, but for s 248, would constitute murder, and the respondent's act that caused the victim's death would have been an act done in self-defence under s 248(4) but for the fact that the act was not a reasonable response by the respondent in the circumstances as he believed them to be.

107 The weight to be given to the offer in the letter dated 13 September 2012 was limited because the trial judge made findings of fact, for the purposes of sentencing, that were inconsistent, in significant respects, with the conditions of the offer.

108 Very little weight should have been given to the proposal in the email of 23 April 2013 (in the context of the discussion between defence counsel and Mr Dempster at the conclusion of the original trial) because a reasonable prosecutor would not have understood the email to be an unconditional offer to plead guilty to manslaughter. On an objective appraisal, it was merely a 'sounding out' by defence counsel. However, the proposal cannot, in the circumstances (in particular, where the unchallenged sworn evidence of the respondent's solicitor is that the email was intended to be an unconditional offer to pleaded guilty to manslaughter), be discarded as irrelevant to the sentencing disposition and given no weight.

109 As I have mentioned, his Honour found that the respondent had evinced 'deep and genuine' remorse and acceptance of responsibility for his offending, and said there would be 'significant additional credit on that account' [60] (emphasis added). By 'significant additional credit', his Honour meant a significant discount on sentence in addition to the discount of 20% 'for benefits to the State, witnesses and victims for your offers [sic] to plead guilty and your admissions' [57]. So, the 20% discount was for those pragmatic factors. The admissions made on the respondent's behalf at the original trial and the retrial, and the admissions to similar effect in his video recorded interview with the police, were limited.

110 In my opinion, when all the circumstances of the present case, including those to which I have made express reference, are evaluated, it is apparent that the discount of 20% allowed by the trial judge, on account of the offer in the letter dated 13 September 2012, the proposal in the email of 23 April 2013 (in the context of the discussion between defence counsel and Mr Dempster at the conclusion of the original trial) and the admissions made by or on behalf of the respondent, was unreasonable or plainly unjust. The amount of the discount was manifestly excessive. Error in the exercise of his Honour's discretion should be inferred.

111 Ground 1, as developed at the hearing, has been made out in part.

112 Counsel for the State submitted the sentence of 4 years 11 months' imprisonment, conditionally suspended for 18 months, was manifestly inadequate, having regard to:

(b) the serious nature of the offending, including that:

(ii) the respondent's actions in unlawfully killing the victim by shooting him four times were not a reasonable response in the circumstances as the respondent believed them to be; and

(iii) the respondent had an intention to kill when he shot the victim;

(d) the standards of sentencing customarily observed for offending of this nature.

113 Counsel for the respondent stressed that the respondent genuinely believed it was necessary, in the circumstances, to kill the victim.

114 It was submitted that the trial judge took into account all relevant sentencing factors and had proper regard to the seriousness of the offending. As to comparable cases, counsel said the circumstances of the present case were 'unique', having regard, in particular, to 'the fact of the partial self-defence and the respondent's medical condition'.

115 Counsel for the respondent argued it might be said (although it was not conceded) that the trial judge's starting point of 8 years 10 months 'was at the bottom end of the range that is reflected by the cases'. However, counsel maintained the sentence was nevertheless 'proper' because 'the respondent had been diagnosed with secondary cancer and [was] required to undergo extensive treatment', he had positive antecedents, he genuinely believed it was necessary to kill the victim and he acknowledged his wrongdoing. Also, counsel relied on the letter dated 13 September 2012 and the email of 23 April 2013 as significant mitigating factors.

116 It was contended that, 'in the overall sentencing process', the respondent had been 'required to endure two lengthy trials for murder through no fault of his own' and this experience '[carried] with it a particular punishment to him not ordinarily experienced by other accused'.

117 It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum penalty 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 the kind in question, and the personal circumstances and antecedents of the offender.

118 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate.

119 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper limit of the range. See Neumann v The State of Western Australia [2013] WASCA 70 [30] (Buss JA, McLure P & Pullin JA agreeing).

120 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. The maximum penalty in the present case is life imprisonment.

121 The maximum penalty fixed by Parliament for an offence demonstrates Parliament's view of its gravity. This view must be taken into account in determining, in a particular case, the appropriate sentence.

122 If Parliament, by a legislative amendment, increases the maximum penalty for an offence, Parliament's new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes. See R v Lawrence (1980) 32 ALR 72, 110 (Moffitt P); Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89 [35] (Anderson J, Pidgeon & Steytler JJ agreeing); Fisher v The Queen [1999] WASCA 122 [14] (Malcolm CJ, Ipp & Owen JJ agreeing); Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 [7] (Malcolm CJ); Nguyen v The State of Western Australia [2007] WASCA 114 [13] (Steytler P, McLure JA & Miller AJA agreeing).

123 An increase in the maximum penalty is an indication that sentences for the offence in question should be increased. See Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).

124 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 (1989) 3 WAR 372, 379 - 380 (Malcolm CJ); Colledge v The State of Western Australia [2007] WASCA 211 [17] (Wheeler JA, Owen and Miller JJA agreeing).

125 The great variation in these circumstances explains the difficulty in discerning sentencing patterns for manslaughter. As Wheeler JA noted in Colledge:

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 [18].

126 Sentences for manslaughter should, however, reflect the value which Parliament has placed on human life. See The State of Western Australia v Walley [2008] WASCA 12 [32] (Wheeler and Miller JJA).

127 In recent years, sentences for manslaughter (when the maximum penalty was 20 years' imprisonment) have, in general, tended to increase. See The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137; Hishmeh v The State of Western Australia [2012] WASCA 183; McNamara v The State of Western Australia [2013] WASCA 63; Dodd v The State of Western Australia [2013] WASCA 80; Heaton v The State of Western Australia [2013] WASCA 207.

128 In the present case, the trial judge made the following comments about his finding that the respondent intended to kill the victim in the context of his finding that 'the offence was manslaughter by excessive self-defence':

While the effect of a finding of intention to kill is significantly reduced by the fact that the offence was manslaughter by excessive self-defence the effect of the finding of intention to kill is by no means eliminated. That is, the matter is more serious than if the intent found was not to kill but was to do harm of such a nature as to endanger, or be likely to endanger, human life, which is another intent sufficient for the offence of murder.

At the same time, however, I consider that such a finding of intent to kill might not, by virtue of the finding of excessive self-defence, necessarily be a more serious aggravating factor than that, for example, of criminal negligence; at least if criminal negligence was present in the absence of provocative conduct from the victim. The effect, in other words, of the intention in connection with excessive self-defence depends on all the circumstances of the offending, not just the presence or absence of excessive self-defence or provocative conduct; although both of those matters, excessive self-defence and provocative conduct, are relevant factors in the sentencing exercise [46] - [47].

129 In my opinion, it must be emphasised that sentencing for manslaughter is not to be approached by endeavouring to formulate different categories or gradations of the offence. The sentencing judge must make all relevant findings of fact in relation to the offending and the offender and then, by reference to all relevant sentencing principles, decide upon the appropriate sentencing disposition. Each case must be decided on its own facts.

130 The illness of an offender may be a mitigating factor if it cannot be treated effectively in prison or if the nature of the illness will result in imprisonment being more onerous for the offender than would ordinarily be the case. However, as King CJ (Cox & O'Loughlin JJ agreeing) stressed in R v Smith (1987) 44 SASR 587, 589:

The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The Courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.

See also Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539.

131 In Smith v The State of Western Australia [2010] WASCA 176, I reviewed various provisions of the Prisons Act 1981 (WA) and the Prisons Regulations 1982 (WA) in relation to the provision of medical treatment for prisoners. I said (McLure P & Mazza J agreeing), in the context of an offender suffering from a psychiatric illness:

First, the chief executive officer of the department of the Government principally assisting the Minister in the administration of the Prisons Act (the Department) is under a duty to ensure that medical care and treatment is provided to the appellant in prison. Secondly, a medical officer is bound, on the request of the chief executive officer, to examine and treat the appellant if he requires medical care and treatment. Thirdly, the chief executive officer is empowered to give written permission for the appellant to be absent from prison for a period specified, and for a reason described, in an absence permit. An absence permit may be given by the chief executive officer for the appellant to be admitted to the Frankland Centre at Graylands Hospital or to any other authorised hospital for the purpose of the treatment of his psychiatric illness. Fourthly, if the chief executive officer were to give an absence permit in relation to the appellant, the chief executive officer may give the permit subject to conditions or restrictions for the purpose of protecting the safety and interests of the public [68].

132 Where an offender is to be sentenced for a single offence and there is a real risk the offender may die in custody, the second limb of the totality principle may, in substance, depending on the circumstances (including, in particular, the seriousness of the offence), apply by analogy.

133 By s 6(4) of the Sentencing Act:

A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.

134 Section 76 of the Sentencing Act provides, relevantly:

(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.

(2) Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

135 Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

136 The limit of 5 years or 60 months specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.

137 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).

138 The sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA); Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P, Mazza J agreeing).

139 The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] (Kirby J). The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].

140 Section 87 of the Sentencing Act is concerned with a sentencing judge taking into account time already spent in custody by an offender solely in respect of the offence in question. Section 87 provides, relevantly:

If when an offender is being sentenced to imprisonment for an offence -

(a) he or she has previously spent time in custody in respect of that offence and for no other reason ... ; and

(b) the sentencing court decides that that time should be taken into account,

the court may take that time into account -

(c) if it imposes a fixed term, by reducing that term by an appropriate period; or

(d) by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence.

141 In the present case, as I have mentioned, the trial judge imposed sentence on 5 July 2013 and the respondent had been remanded in custody between 8 June 2012 and 5 July 2013. The respondent was in custody solely in respect of the offence in question. His Honour took the respondent's time in custody into account by reducing the term of imprisonment he would otherwise have imposed by 13 months (from 6 years to 4 years 11 months), instead of backdating the sentence of 6 years to 8 June 2012. Section 87 permitted his Honour to give the respondent credit in the manner he did, but his Honour's approach was unusual. The usual practice where, at the time of sentencing, an offender is in custody (and has for some time been in custody) in respect of the offence in question (and for no other reason), and where the sentencing judge decides that the time spent in custody should be taken into account, is to backdate the sentence of imprisonment. In all the circumstances, the only reasonable objective inference is that his Honour gave credit in the manner he did, rather than backdate, because he had already decided to impose conditional suspended imprisonment. If his Honour had backdated, it would not, of course, have been open to him to conditionally suspend because the term of imprisonment (that is, 6 years) would have exceeded the limit of 5 years or 60 months specified in s 81(1) of the Sentencing Act. His Honour's approach involved an evasion of Parliament's intention as embodied in s 81(1).

142 I have reviewed numerous prior cases of sentencing for manslaughter. The cases include Munda, Hishmeh, McNamara, Dodd, Heaton, Macaree v The State of Western Australia [2011] WASCA 207 and the decisions referred to in those cases. It is unnecessary to reproduce the facts of the cases or the sentencing dispositions. All of the prior cases involved sentencing when the maximum penalty was 20 years' imprisonment. My review confirms that diverse sentences have been imposed for manslaughter and there is no sentencing tariff for the offence.

143 In the present case, neither counsel for the State nor counsel for the respondent was able to cite any appellate decision, apart from R v McDonald [2000] WASCA 336, which has considered sentencing for manslaughter where a suspended term of imprisonment was imposed by the sentencing judge.

144 In McDonald, suspended imprisonment for manslaughter was imposed on the offender and upheld on an appeal brought by the Attorney-General. The appeal was instituted more than seven months out of time. The DPP had declined to appeal. The common law principles of double jeopardy applied.

145 The offender and the victim in McDonald were aged 21. They were girlfriend and boyfriend. They had known each other for many years. The offender lived with her grandmother in a home unit. On the evening of the offence, the offender and the victim went to a party. They were driven from the party to the grandmother's unit at about 1.00 am. The offender went into the unit. She closed but did not lock the front door. She understood the victim was going to his own home. However, the victim returned, opened the front door and entered the unit. The offender insisted that the victim leave. An argument developed. On the offender's account, she came under significant physical attack from the victim. His conduct was uncharacteristic and she was fearful of him. In these circumstances, the offender inflicted a fatal wound with a small kitchen knife. The knife had been on a bench and she picked it up as the victim advanced on her again. The fatal wound penetrated the victim's chest to a depth of about 6 - 7 cm. It penetrated his heart. Initially, the wound was not bleeding, but slight bleeding commenced a little later and it worsened. At the offender's request, the victim went outside with the knife and waited for his father. The offender had telephoned the victim's father shortly before the stabbing and the father had agreed to collect him. When the victim left the unit, the offender shut and locked the front door. She again telephoned the victim's home and was told his father had left to collect him. The offender had a brief conversation with her grandmother. The grandmother opened the front door and noticed the victim's condition was deteriorating. She telephoned for an ambulance. The victim died shortly after his father arrived and shortly before the ambulance attended.

146 The offender in McDonald pleaded guilty. She was sentenced to 3 years 6 months' imprisonment. The term was suspended for 2 years. The offender did not have a prior record of violence or serious offending.

147 The Court of Criminal Appeal (Pidgeon, Wallwork & Parker JJ) held there 'may well be an arguable case' whether the sentencing judge was justified in suspending the term of imprisonment, but it could not be said 'the Crown has a clear or obvious case that justice has miscarried by virtue of the sentence of imprisonment being suspended' [24]. That factor and two other material considerations caused the court to dismiss the Attorney-General's application for an extension of time to appeal. The other considerations were the factor of double jeopardy and the long delay before the Crown sought to appeal.

148 McDonald is not relevantly comparable to the present case. The offending in McDonald was, objectively, significantly less serious than the offending in the present case (in particular, the offender in McDonald did not intend to kill the victim and inflicted only one wound); the offender in McDonald was youthful and she entered a plea of guilty; the maximum penalty in McDonald was 20 years' imprisonment; and the decision of the Court of Criminal Appeal in McDonald was constrained by the principles of double jeopardy and the extraordinary delay by the Crown in commencing the appeal.

149 In the present case, the trial judge said, rightly in my opinion, that the respondent's offending was 'a serious example of manslaughter', but 'was some distance from the most serious offence of this kind imaginable' [48].

150 The seriousness of the respondent's offending is evident from the following:

(a) The respondent deliberately, and after some effort, obtained and loaded the hunting rifle for use in committing the offence.

(b) The respondent used the firearm against the victim who was unarmed. At the highest, the respondent thought the victim may have had a weapon.

(c) The respondent shot the victim without warning.

(d) The respondent continued to shoot the victim even though it would have been apparent to the respondent that the first bullet had seriously injured him.

(e) The second, third and fourth shots (two in the back and one in the side of the head) were fired while the respondent was in close proximity to the victim and the victim was helpless on the ground.

(f) After calling for an ambulance, the respondent did not make any attempt to provide assistance to the victim.

(g) As his Honour found, the only reasonable objective inference from the respondent's conduct was that he intended to kill the victim when he shot him four times.

151 It is true that, consistent with his Honour's finding as to the basis for the jury's verdict, at all material times the respondent subjectively believed that shooting the victim four times was necessary to defend himself and other members of his family in the circumstances as the respondent subjectively believed them to be. However, at least after the respondent fired the first shot, continuing to shoot the victim was, in my opinion, a grossly unreasonable response by the respondent in the circumstances as he subjectively believed them to be.

152 After taking into account the respondent's subjective beliefs, I consider that appropriate punishment, denunciation of the use of firearms as weapons against people and general deterrence were important sentencing factors.

153 There were, of course, a number of mitigating factors in relation to the respondent and his offending. In particular:

(a) The respondent was aged 52 at the time of the offending. He was a person of prior good character. He had a history of stable employment and a good marriage. People spoke well of him. He had no prior criminal record and he did not abuse substances.

(b) The respondent made the offer in the letter dated 13 September 2012 and the proposal in the email of 23 April 2013 (in the context of the discussion between defence counsel and Mr Dempster at the conclusion of the original trial).

(c) Although the reports from Ms Wager and Dr Wojnarowska did not indicate the respondent was suffering from any mental illness that contributed to his offending, since committing the offence he had been diagnosed with post-traumatic stress disorder.

(d) The respondent had been assessed as at a very low risk of reoffending.

(e) The respondent was deeply and genuinely remorseful and accepted responsibility for the offending.

(f) Shortly after the commission of the offence, the respondent suffered a recurrence of his tonsillar carcinoma. It was necessary for the respondent to undergo surgery. Recovery from the surgery was likely to take three months or more, and it would be longer if he was suitable for radiotherapy post-operatively. In addition, there would be ongoing rehabilitation of the kind described by Dr Wun in her report.

(g) The respondent's medical condition (including his ongoing rehabilitation after surgery and, possibly, radiotherapy) will make imprisonment more arduous for him than is usual. Also, according to Dr Wun, the overall five-year survival rate for patients suffering from the kind of carcinoma suffered by the respondent is about 50%. Further, there is a real risk the respondent may require other treatment, and the treatment available to him if he were in custody would probably be given in circumstances that are less than ideal.

154 In my opinion, the trial judge's decision to conditionally suspend the term of imprisonment was not commensurate with the seriousness of the offence. Notwithstanding the numerous mitigating factors, the seriousness of the offending (in particular, the grossly unreasonable use of the hunting rifle to fire the second, third and fourth shots at the victim from close range and while he was helpless on the floor) was such that only immediate imprisonment could be justified. Conditional suspended imprisonment was not, as a matter of fact, an appropriate sentencing option. His Honour's decision to conditionally suspend was not reasonably open to him.

155 After evaluating all relevant facts and circumstances and all relevant sentencing considerations, I am satisfied the sentence imposed by his Honour was manifestly inadequate. I have arrived at this conclusion after viewing the sentencing disposition (including the time the respondent had already spent in custody) from the perspective of the maximum penalty (life imprisonment), the seriousness of the offending, the importance of the denunciation of the use of firearms as weapons against people and general deterrence as sentencing factors; and also after taking into account the general standards of sentencing applicable to manslaughter (bearing in mind there is no sentencing tariff for the offence and each case must be decided on its own facts), the value of human life, the respondent's personal circumstances and antecedents and all mitigating factors.

The result of the appeal and the resentencing of the respondent

157 I would allow the appeal. The sentencing decision of the trial judge should be set aside. This court has the material necessary to resentence the respondent. At the hearing of the appeal, counsel for the respondent

informed the court she did not wish to adduce any additional evidence in the event the court decided to allow the appeal and resentence the respondent. Counsel assured the court she understood there would not be another hearing (appeal ts 63 - 67).

158 A sentence must be imposed on the respondent which is commensurate with the seriousness of the offence. See s 6(1) of the Sentencing Act. After taking into account the maximum penalty (life imprisonment), the circumstances of the offending (including the vulnerability of the victim after the respondent armed himself with the hunting rifle and, especially, after the respondent fired the first shot) and all other relevant sentencing factors, I would impose a term of 6 years' imprisonment.

159 I have reduced the sentence I would otherwise have imposed to reflect:

(a) the mitigating factors I have enumerated at [153] above; and

(b) the real risk the respondent may die in custody, bearing in mind (as I have mentioned) that, according to Dr Wun, the overall five-year survival rate for patients suffering from the kind of carcinoma suffered by the respondent is about 50%.

160 The new sentence of 6 years' imprisonment should be taken to have taken effect on the date which is 13 months before the date on which the respondent is taken into custody pursuant to the orders made by this court in the appeal. See s 41(3) of the Criminal Appeals Act 2004 (WA). He should remain eligible for parole. The respondent will become eligible to be considered for release on parole after he has served 4 years calculated from the date on which the new sentence is taken to have taken effect.

161 Finally, I note counsel for the respondent did not submit that the discretion under s 31(4) of the Criminal Appeals Act should be exercised. I would not invoke the discretion. The trial judge imposed a sentence that was wholly inadequate. Appealable error has been very clearly established. This court's intervention is necessary to ensure the preservation of proper sentencing standards for manslaughter.

162 MAZZA JA: I respectfully agree with Buss JA that the State's appeal must be allowed and that the respondent should be resentenced to 6 years' imprisonment, with eligibility for parole backdated to take into account the time the respondent served in custody on remand.

163 I will briefly state my own reasons for upholding ground 1. I agree with Buss JA's reasons on ground 2. I agree with Buss JA's reasons in respect of the resentencing, save for one aspect.

164 It is unnecessary for me to set out the circumstances of the offending and the sentencing proceedings, as well as the submissions of counsel in this appeal. That has been comprehensively and accurately done by Buss JA.

165 Generally speaking, an unaccepted offer to plead guilty to the offence that an accused is ultimately convicted of will be a mitigating circumstance: R v Marshall [1994] QCA 161; (1995) 1 Qd R 673, 675 (Pincus JA).

166 The rationale behind this practice is analogous to the rationale behind the mitigating effect of a plea of guilty. The offer may indicate remorse and an acceptance of responsibility and/or it may indicate a willingness to facilitate the course of justice.

167 The weight that will be given to any offer will depend upon all of the relevant circumstances of the case, informed by the rationale I have just mentioned. Moreover, although s 9AA of the Sentencing Act 1995 (WA) does not apply to offers to plead guilty, because of the close analogy between the rationales behind the mitigating effects of the entry of a plea of guilty and an offer to plead guilty, the amount of any discount should also be informed by that provision.

168 Buss JA has set out, at [97] of his reasons, specific considerations which, depending upon the facts of an individual case, may be relevant to assessing the weight to be given to an unaccepted offer to plead guilty. The matters he mentions are not exhaustive.

169 I now turn to the circumstances of the present case. I will deal first with the offer dated 13 September 2012. The letter is detailed and plainly written in terms of an offer. At best, the weight that could reasonably have been given to that offer is small. While the respondent offered to plead guilty to the charge of which he was ultimately convicted, the offer was predicated on conditions that were contradicted by the learned trial judge's findings of fact for the purpose of sentencing. Specifically, his Honour found, contrary to the conditions contained in the letter, that the appellant intended to kill the victim. Although the letter, when viewed in the light of the respondent's video record of interview, evinced remorse and a willingness to facilitate the course of justice, the appellant has never acknowledged that he killed the victim with that intention.

170 With respect to the 'offer' made in the email of 23 April 2013, I am unable to see how, on any objective basis, that communication could be understood as an unconditional offer to plead guilty to manslaughter. The entire text of the email is as follows:

I inquire whether the DPP would consider accepting a plea to manslaughter on this matter at this time? (emphasis added)

171 The use of the words 'inquire' and 'consider' could not reasonably be understood as conveying an offer. Rather, the email would be understood as an attempt to 'sound out' the prosecution as to whether it might accept a plea to manslaughter. Its text is in sharp contrast to the unequivocal language of offer used in the letter dated 13 September 2012. It had no mitigating effect.

172 It was suggested by counsel for the respondent that, if there was any uncertainty as to the status of the communication on 23 April 2013, the prosecution could have clarified it. That submission overlooks the plain fact that it is for the accused, when he or she wishes to make an offer to plead guilty, to clearly articulate that fact when the offer is made. Any offer should be in writing in such terms as to make it objectively clear that what is being put is an offer and, if there are conditions to it, those conditions.

173 I agree with Buss JA that on a fair reading of his Honour's sentencing remarks as a whole, he did not allow a 20% discount on the erroneous basis that the respondent had pleaded guilty to manslaughter at the first reasonable opportunity. The one statement his Honour made to that effect was no more than a slip of the tongue. However, with great respect, his Honour's decision to discount the sentence by 20% for the offer in the letter dated 13 September 2012, the 'offer' in the email of 23 April 2013 and the admissions made at the commencement of the trial was unreasonable and plainly unjust. It was, in the circumstances, an unjustifiably generous discount to the sentence. This is particularly so when, as Buss JA in his reasons demonstrates, the discount was for utilitarian factors and did not include remorse and acceptance of responsibility for his offending.

174 My only point of departure from Buss JA's reasons in respect of the resentencing is that I would give no mitigating weight to the email of 23 April 2013.

175 HALL J: I agree with Buss JA, generally for the reasons he gives, that this State appeal should be allowed and the respondent re-sentenced in the way his Honour proposes. I wish to make some comments of my own on three issues. They are:

1. whether the email of 23 April 2013 was an unconditional offer to plead guilty to manslaughter;
2. whether it was appropriate to credit the respondent for the time spent in custody rather than backdating the sentence; and
3. whether manslaughter arising from excessive self-defence falls into a special category for the purposes of sentencing.

176 The email of 23 April 2013 could not have been understood as anything more than an overture or 'sounding out'. The brevity of that email, its terms and the fact that it was sent prior to a re-trial all indicate that it was sent in an effort to determine whether the prosecution resolve not to entertain a plea to manslaughter had weakened. If it was intended to be an unconditional offer it should have been clearer in its terms, particularly given the conditions that had previously applied.

177 Where an accused person wishes to make an unconditional offer to plead guilty to a lesser charge it would be prudent to place it on the record prior to trial, at least in the presence of the trial judge. It may be that if the offer is rejected the accused may not want to repeat it in the presence of the jury because he or she may decide to take a chance on achieving a complete acquittal. However, putting the offer on the record will provide certainty as to the terms and timing of it in the event of a conviction. But here the offer to plead guilty to manslaughter was referred to in court only after the verdict. This supports a conclusion that the email was not, as has been suggested, an unconditional offer at all. However, that issue does not need to be resolved against the respondent in order to determine this appeal.

178 It is open to a sentencing judge to recognise time spent in custody in respect of an offence by giving credit for that time or by backdating the sentence: s 87 Sentencing Act 1995 (WA). The usual course is to

backdate the sentence. The advantage of this is that it ensures that the sentence imposed is seen to be one that is a proper reflection of the actual time spent in prison. It also ensures that any calculation of the parole eligibility period is not distorted.

179 Section 81 of the Sentencing Act provides for the imposition of conditional suspended sentences of imprisonment. That was the type of sentence imposed on the respondent. Such a sentence cannot be imposed where the sentence exceeds 60 months, that is 5 years. It is evident from this that Parliament considered that offences that justified a sentence of imprisonment of more than 5 years were too serious to allow for the possibility of suspension.

180 The sentence imposed here was 4 years and 11 months, but that figure was only reached after crediting the amount of time already spent in custody. If the original sentence of 6 years had been backdated rather than reduced for time in custody it would not have been open to suspend. The reality was that the sentence was one that was effectively equivalent to a sentence of 6 years' imprisonment. With respect to the sentencing judge, it seems to me that the limitation in s 81 was subverted by crediting rather than backdating the sentence.

181 It was submitted by counsel for the respondent that the finding that the respondent was guilty of manslaughter on the basis that he acted in self-defence but that his response was not reasonable in the circumstances places the offence into a special category. The implication was that manslaughter on this basis was inherently less serious than other forms of manslaughter. I am unable to accept that submission.

182 The fact is that the appellant was found to have had an intent to kill. He was sentenced on the basis that he believed it was necessary for him to repeatedly shoot the deceased to protect himself from harm but that his belief was unreasonable. The intentional killing of the deceased would have resulted in a conviction for murder but for the unreasonable belief of the respondent. That belief resulted in a conviction for manslaughter and the significantly more favourable penalty regime applicable for such an offence as compared to murder. There is no basis for asserting that the case falls into a lesser category of manslaughter. The same maximum penalties apply to all cases of manslaughter. It would be wrong, in my view, to treat as specially mitigating the existence of an unreasonable belief as to the need to act in a particular way in self-defence that, if not present, would have resulted in a conviction for murder rather than manslaughter: R v Nguyen [2013] NSWCCA 195 [40] - [54]. The seriousness of the offence depends upon an assessment of all relevant circumstances, not on placing the case into some special category.