Court of Appeal (WA)|2013-11-06|Before: Buss JA

THE STATE OF WESTERN AUSTRALIA -v- AUCKRAM [2013] WASCA 256 (6 November 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- AUCKRAM [2013] WASCA 256

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

Sentencing Act 1995 (WA), s 6, s 8(2) (repealed), s 9AA, s 39, s 76, s 81, s 87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

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

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

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

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

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

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

R v McDonald [2000] WASCA 336

R v Oinonen [1999] NSWCCA 310

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:

Following the jury having been discharged, I was present during a conversation that took place between Ms Black and Mr Dempster ...
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.
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'.
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.
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.

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.
Ms Black then emailed Ms Christian at my request on 23 April 2013 enquiring whether the State would consider accepting a plea to manslaughter ...
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];

(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;

(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

THE STATE OF WESTERN AUSTRALIA -v- AUCKRAM [2013] WASCA 256 (6 November 2013)

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THE STATE OF WESTERN AUSTRALIA -v- AUCKRAM [2013] WASCA 256 (6 November 2013)

Legislation Cited (4)

Cases Cited (15)