THE STATE OF WESTERN AUSTRALIA -v- CLARK [2020] WASCA 103 (25 June 2020)

1. The facts and circumstances of the offending were as follows.
2. As at late 2017, the respondent and Ms Cardy had been in a relationship for about 10 years. They had four children together. By November 2017, the respondent and Ms Cardy had separated. The separation occurred about one or two months prior to the offending.
3. During the two year period before their separation, the respondent and Ms Cardy lived with their four children at a house in Brookdale. After the separation, the respondent moved out. Ms Cardy remained living at the house with the children. Ms Cardy permitted the respondent to visit and stay at the house from time to time, including overnight. Ms Cardy wanted the respondent to continue to have regular contact with the children.
4. Despite the visits, it was essential to the jury's verdict that, by 25 November 2017, the Brookdale house was no longer the respondent's place and he did not honestly believe it to be his place. In other words, as at 25 November 2017, the house was solely the place of Ms Cardy and her children, and the respondent knew that to be the case. The respondent's visits to the house, including staying overnight, occurred because Ms Cardy consented to them.
5. Ms Cardy ended the relationship. The respondent did not want the relationship to end and had trouble accepting that it was finished. The respondent was especially concerned at the prospect of Ms Cardy becoming involved with other men. On an occasion in the weeks before the offending, the respondent believed (incorrectly) that Ms Cardy was with another man at the Brookdale house. The respondent travelled by train to the house in the early hours of the morning to investigate the situation. There was a verbal confrontation between the respondent and Ms Cardy.
6. On the night before the offending, the respondent was again preoccupied with the thought that Ms Cardy was involved with other men. In the early hours of the morning the respondent sent himself a text message purporting to be from a man who had recently had sex with Ms Cardy. In the message the respondent taunted himself about this imagined incident. The respondent, having become agitated and angry at the prospect of Ms Cardy becoming involved with another man, then fabricated a reason for going to the Brookdale house. He sent false text messages to and from his mobile telephone to create an apparent conversation between himself and a fictitious buyer of a bicycle that the respondent had for sale. The bicycle was at the Brookdale house. The respondent sent a text message to Ms Cardy about the proposed fictitious sale and telephoned her unsuccessfully.
7. By the night before the offending, Ms Cardy had become involved with another man, namely Mr Lole. They spent the night together and had sex at the Brookdale house.
8. At about 9.00 am on 25 November 2017, the respondent went to the Brookdale house. At the time he did not know that Mr Lole or anyone else apart from Ms Cardy would be at the house. Nevertheless, he went to the house preoccupied with the thought that Ms Cardy was involved with another man.
9. The respondent entered the Brookdale house through the back door. Although the door had been locked, the respondent was able to unlock it. The respondent did not have Ms Cardy's consent to enter the house.
10. Once inside, the respondent had a conversation with Ms Cardy in the kitchen. He asked Ms Cardy to give their relationship another chance. Ms Cardy told him that she was not interested in giving the relationship another chance. She said she had spent the night with someone else and he was in her bed.
11. The respondent then entered the bedroom and had a brief verbal exchange with Mr Lole about the fact that Ms Cardy and Mr Lole had slept together that night. The respondent returned to the kitchen and removed a knife from a drawer. He attempted to return to the bedroom but was prevented from doing so by Ms Cardy. After holding the knife for some time, the respondent threw it across the room. Ms Cardy demanded that the respondent leave the house. He left through the front door. Ms Cardy locked the door.
12. Between 11.57 am and 12.08 pm on 25 November 2017, the respondent attempted repeatedly to contact Ms Cardy by text message and telephone. He wanted Ms Cardy to get Mr Lole to leave the Brookdale house and speak to him. Ms Cardy declined and told the respondent that she would speak to him later by telephone. The respondent was not satisfied with Ms Cardy's response. He returned to the house.
13. The respondent knocked on the front window of the Brookdale house. Ms Cardy refused to let him inside. Instead, she went outside to speak to him, closing the front door behind her. They went to the carport, which was several metres from the front door. The respondent again attempted to speak to Ms Cardy about their relationship and about getting Mr Lole to leave. Ms Cardy refused. She returned to the front door. As she opened the front door slightly, the respondent jammed his foot into the opening. Ms Cardy told him to leave. Instead, he kissed her and pushed past her into the house. The respondent spent some time in the lounge room acting in a manner that Ms Cardy described as 'getting pumped up' as if he was 'in a boxing match'.[1]
14. When he was in the lounge room, the respondent removed a Stanley knife from his pocket. A razor blade protruded from the end of the knife. As he removed the knife, the respondent said to Ms Cardy, 'I'm going to slice this cunt up'.[2] The respondent walked to the bedroom where Mr Lole was lying on the bed. Ms Cardy went outside and telephoned the 000 emergency service.
15. The respondent approached Mr Lole and said he was going to kill him for having sex with Ms Cardy. The respondent punched Mr Lole in the mouth with his fist while Mr Lole was lying on the bed. After the punch, the respondent slashed Mr Lole across the face with the knife. The slash caused an injury of such a nature as to endanger or be likely to endanger life. Mr Lole began bleeding profusely.
16. The respondent continued to attack Mr Lole. This involved the respondent jumping on top of Mr Lole, sitting on his chest and slashing him with the knife. Mr Lole's arms and hands were cut as he attempted to defend himself. The respondent inflicted a number of large cuts to Mr Lole's body. The respondent continued to attack Mr Lole after Mr Lole fell to the floor. The respondent again got on top of Mr Lole and repeatedly said that he was going to kill Mr Lole.
17. Eventually, Mr Lole managed to grab the knife. During a struggle for control of the knife, the blade at the end of the knife was ejected. Mr Lole told the respondent that he was 'done'.[3] At one point, Mr Lole put his hand to the left side of his face. His finger penetrated the laceration on his cheek. He could touch his tongue.
18. The respondent left the bedroom and walked to the kitchen. He obtained two knives and returned to the bedroom. At some point, the respondent also obtained a screwdriver.
19. When the respondent returned to the bedroom Mr Lole was standing near the curtain at the far end of the bed. The respondent approached Mr Lole and slashed and stabbed him with one of the knives and the screwdriver. The respondent stabbed Mr Lole in the left pectoral with the screwdriver and in the left shoulder blade with either the screwdriver or a knife.
20. The respondent left the Brookdale house with the knives. He walked to a park in the vicinity. On the way, he began cutting his left wrist with one of the knives. Shortly afterwards, the respondent was arrested by the police.

1. Mr Lole suffered a facial injury that was of such a nature as to endanger or be likely to endanger his life. Dr Emily Ryan gave evidence that the deep cut to his cheek, if not treated, would have caused permanent injury to his health because nerves would not have been repaired and would have left him with painful nerve clusters, the inability to chew food and a facial droop. Dr Ryan also gave evidence that the facial injury, if not treated, would have endangered or been likely to have endangered life because an untreated injury of that nature may result in septicaemia, with a high risk of the blood becoming infected and leading to organ dysfunction followed by multiple organ failure.
2. Mr Lole also suffered multiple lacerations to his arms, hands, back, face, shoulder and abdomen. The lacerations were washed and sutured. These injuries were not serious.

The trial judge's findings of fact and observations

1. The trial judge made the following findings of fact:

(a) The respondent did not act in self‑defence. He attacked Mr Lole with dangerous weapons. Mr Lole was defenceless.

(b) The respondent entered the bedroom with the intention of killing Mr Lole. He held that intention while he inflicted the injuries. The intention to kill was not held only momentarily.

(c) The respondent's attack on Mr Lole was premeditated. After leaving the Brookdale house on the first occasion, the respondent returned carrying a weapon. The respondent entered the house on the second occasion without consent and with an intention to attack Mr Lole. The respondent stated that he intended to kill Mr Lole, whom he had not met before the date of the offending.

(d) The respondent's attack on Mr Lole was persistent and violent. After inflicting the very serious facial injury, the respondent left the bedroom, obtained two knives and a screwdriver, returned to the bedroom and attacked Mr Lole again.

(e) The respondent's attack upon Mr Lole resulted in a very serious injury to Mr Lole's face. It was likely to have endangered his life without medical treatment. Mr Lole has been left with a permanent facial disfigurement.

(f) The respondent fled the scene and rendered no assistance to Mr Lole despite it being obvious that Mr Lole had suffered injury.

(g) The offending must have been traumatic for Ms Cardy.

(h) The respondent had not accepted responsibility for his offending and had endeavoured to blame Mr Lole.

(i) The respondent had limited remorse and displayed limited victim empathy.

1. The respondent sent a letter dated 21 August 2019 to his Honour in which he confirmed that he did not take responsibility for his actions and maintained his innocence. The respondent said he believed he had 'suffered the most'.
2. The respondent had a prior criminal record including a conviction in 2011 for domestic violence in relation to Ms Cardy. The respondent was not a person of previous good character.
3. The trial judge recounted in detail the respondent's personal circumstances.
4. Since the age of 18, the respondent had been using methylamphetamine. He had also, on occasions, used MDMA.
5. The information before his Honour included a report dated 5 September 2019 from Cinzia Zuin, a psychologist, and a pre‑sentence report dated 4 September 2019.
6. Ms Zuin noted in her report that the respondent was born on 25 September 1986. The respondent had marked issues with emotional arousal and regulation, stemming from childhood, where lashing out became normalised as a way of managing emotional distress. This could also, in part, be attributable to his diagnosis of Attention Deficit Disorder (ADD) as a child. Longstanding issues with trust, impulsivity, a sense of betrayal, being made a fool of, perceived injustices and poorly developed decision making and coping skills were relevant factors in the respondent's offending. Ms Zuin assessed the respondent's risk of violent recidivism to be medium. He needed treatment for drug abuse, cognitive distortions, impulsivity, emotional dysregulation, poor consequential thinking, weapon use and lack of community support. According to Ms Zuin, the respondent appeared to be 'in the pre‑contemplative stage of change such that there may be some challenges to treatment of criminogenic needs'.
7. The trial judge did not accept that the respondent's health issues, including ADD and epilepsy, reduced his moral culpability for the offending or reduced the necessity for general deterrence.

1. Counsel for the State submitted that the trial judge erred in law by imposing the statutory minimum penalty of 15 years imprisonment for the offence of attempted murder committed in the course of conduct that constituted aggravated home burglary. A sentence substantially greater than the mandatory minimum was necessary. The objective features of the offending placed the respondent's offence towards 'the mid to upper range of seriousness'. There was very little mitigation.

1. Counsel for the respondent noted that the trial judge described the respondent's offending as 'an unlawful reaction to very emotional circumstances' [59]. His Honour said that he had imposed the statutory minimum penalty 'after careful reflection' [66].
2. It was submitted that the imposition of the statutory minimum penalty, 'in circumstances other than [where] a plea of guilty has been entered', is not precluded by s 283(2) of the Code.
3. According to counsel for the respondent, the trial judge's sentencing discretion did not miscarry.

1. As we have mentioned, the sole ground of appeal alleges that the sentence imposed on count 2 was manifestly inadequate as to length. The State does not challenge the sentence imposed on count 1 or the order that the sentences be served concurrently,[4] or allege that his Honour made any express error of fact.[5]
2. The general principles governing a ground of manifest inadequacy are well-established and were summarised recently by this court.[6] A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.
3. 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 for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
4. When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
5. If, in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the inadequacy of a sentence.[7]
6. Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law.[8]
7. The discretion conferred on sentencing judges is, of course, of fundamental importance and as the respondent correctly identified, this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.[9]
8. As we have mentioned:

(a) the maximum penalty for attempted murder, contrary to s 283(1) of the Code, is life imprisonment; and

(b) if the offence of attempted murder is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender, if it does not impose a term of life imprisonment must, notwithstanding any other written law, impose a term of imprisonment of at least 15 years: s 283(2) of the Code.

1. Section 283(2) was inserted into the Code by the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA), with effect from 30 October 2015.
2. The policy impetus for the introduction of s 283(2) of the Code was explained by the Attorney General in his second reading speech.
3. The Attorney said: [10]

(a) the volume of burglaries committed in Western Australia was 'at an unacceptably high level';

(b) home burglaries, particularly in circumstances of aggravation and in the course of which violence may be committed, were 'a major source of worry to the community'; and

(c) the government was determined 'to ensure that burglars who commit numerous home invasions, which can involve serious violent offences, are incarcerated for longer periods; to deter such offenders; to ensure that such offenders are kept out of circulation longer; and to reflect community abhorrence of such offending'.

[T]he Bill stipulates in the Criminal Code new mandatory minimum sentences for serious offences of physical or sexual violence committed in the course of an aggravated home burglary. These serious offences include murder, manslaughter, attempted unlawful killing, aggravated grievous bodily harm, aggravated sexual penetration without consent and sexual offences against a child. For an adult offender, the Bill provides for a minimum sentence of 75 per cent of the statutory maximum term of imprisonment for each of those serious offences. In the case of offences carrying a maximum, but not mandatory, term of life imprisonment, the Bill prescribes a minimum sentence of 15 years. For a juvenile offender, which is a person between 16 and 18 years of age, the Bill provides for a minimum sentence of three years' imprisonment or detention for each of those serious offences. The Bill does not impose any minimum sentences on offenders under 16 years of age.

The Bill also amends the Sentencing Act 1995 to provide that adult offenders who commit murder in the course of an aggravated home burglary and who are sentenced to life imprisonment will serve a minimum non‑parole period of 15 years' imprisonment.

1. The maximum penalty and any mandatory minimum penalty fixed by the Parliament for an offence demonstrate the Parliament's view of the gravity of the offence. They must be taken into account in determining, in a particular case, the appropriate sentence.
2. Section 6(1) of the Sentencing Act 1995 (WA) provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. Pursuant to s 6(2) of the Sentencing Act, the seriousness of an offence must be determined by taking into account, amongst other things, the statutory penalty for the offence. The expression 'statutory penalty' is defined in s 4 of the Sentencing Act to mean, in relation to an offence, the penalty specified by a written law for an offence. Section 9 of the Sentencing Act, which deals with the effect of the statutory penalty, relevantly provides in subsection (3) that:

If the statutory penalty for an offence specifies a minimum and a maximum penalty, the penalty to be imposed for the offence must be at least that minimum and not more than that maximum.

1. It follows from those provisions that the expression 'statutory penalty' in s 6(2) of the Sentencing Act obliges a sentencer, when ascertaining the seriousness of an offence, to take into account not only the maximum penalty for that offence, but also, if applicable, the minimum penalty.
2. The effect of the minimum penalty and the maximum penalty is that these factors operate as a floor and ceiling within which the sentencing discretion must be exercised.
3. Subject to s 283(3) of the Code, the manner in which the sentencing discretion operates within the floor and the ceiling must reflect the general sentencing principles set out in the Sentencing Act, including the fundamental sentencing principle of proportionality contained in s 6(1) of the Sentencing Act, as supplemented by the common law.
4. The maximum penalty of life imprisonment for the offence of attempted murder (including for the offence of attempted murder committed by an adult offender in the course of conduct that constitutes an aggravated home burglary) is to be imposed for the worst category of case. The concept of the worst category of case was explained by the High Court in R v Kilic.[12]
5. The statutory minimum penalty of 15 years' imprisonment for the offence of attempted murder committed by an adult offender in the course of conduct that constitutes an aggravated home burglary is to be imposed for the least serious category of case. The concept of the least serious category of case was considered in Eldridge v The State of Western Australia[13] in the context of the statutory minimum penalty for the offence of home burglary, contrary to s 401(2)(b) of the Code, where the offender is a 'repeat offender' (as defined in s 401B) and s 401(4)(b) therefore applies.
6. A sentencing judge, when sentencing an offender who is subject to the statutory minimum penalty prescribed by s 283(2), must determine, having regard to all relevant sentencing factors, where the offending falls in the range between the least serious category of offending, for which the statutory minimum penalty is appropriate, and the worst category of offending, for which the maximum sentence is appropriate.
7. Both the nature of the offence committed by the offender and the circumstances of the offender must be considered in determining whether an offence of attempted murder committed by an adult offender, in the course of conduct that constitutes an aggravated home burglary, is within the worst category of case or within the least serious category of case or at an intermediate point between those ends of the spectrum.
8. Since the introduction of s 283(2) of the Code, this court has considered a sentence imposed for attempted murder committed by an adult offender, in the course of conduct that constitutes an aggravated home burglary, on only one occasion. See Smith v The State of Western Australia.[14]
9. In Smith, the appellant was convicted, on his pleas of guilty, of three counts in an indictment, including two counts of attempted murder committed by an adult offender in the course of conduct that constitutes an aggravated home burglary. He was sentenced to 15 years' imprisonment on each count of attempted murder and to 3 years' imprisonment on the other count. The sentencing judge ordered that the sentence for one of the counts of attempted murder commence upon the offender having served 4 years of the sentence for the other count of attempted murder. The total effective sentence was 19 years' imprisonment. A parole eligibility order was made. The offender appealed against sentence. This court refused leave to appeal. It is unnecessary to refer to the facts and circumstances of Smith. It is trite that one previous decision of this court refusing leave to appeal does not, of itself, indicate a sentencing pattern or provide material guidance for the sound exercise of a sentencing discretion.
10. Although all offences of attempted murder will, no doubt, be serious, the degree of seriousness of the facts and circumstances of particular offending and the nature and extent of any mitigating factors will vary significantly.
11. In the present case, the respondent's offending was a serious example of offending of its type. The respondent's attack on Mr Lole was premeditated. The attack was carried out with weapons. The respondent's intention to kill was not held only momentarily. He held that intention while he was inflicting the injuries. The respondent's attack on Mr Lole was persistent. After attacking Mr Lole, the respondent fled the scene and rendered no assistance to him.
12. The respondent was aged 31 when he committed the offence. He was not youthful or inexperienced for sentencing purposes.
13. The fact that the respondent had a prior criminal record did not aggravate the seriousness of the offending in question. However, his criminal history indicated he was not entitled to leniency on the ground that he was of previous good character.
14. Although the respondent was entitled to proceed to trial, he did not have the mitigation that a plea of guilty would have brought.
15. The respondent had limited remorse and displayed limited victim empathy. He did not take responsibility for his actions and maintained his stance of denial in relation to criminal responsibility.
16. The trial judge did not accept that the respondent's health issues, including ADD and epilepsy, reduced his moral culpability for the offending or reduced the necessity for general deterrence. His Honour's approach and conclusions in relation to those matters have not been challenged.
17. The mitigation available to the respondent was limited. He had a difficult and problematic childhood. The respondent made appropriate concessions at the trial which facilitated the administration of justice. He evinced some remorse and some victim empathy. The trial judge received letters from the respondent's mother and elder sister. They spoke highly of him. His Honour accepted that the respondent had completed a number of courses and had responded positively to his incarceration.
18. In our opinion, the sentence of 15 years' imprisonment was not commensurate with the seriousness of the respondent's offending. We are satisfied, after considering all relevant facts and circumstances and all relevant sentencing factors, that the respondent's offending was not within the least serious category of offending, for which the statutory minimum penalty is appropriate. The length of the sentence was unreasonable or plainly unjust. Those are the only conclusions reasonably open when the sentence is viewed from the perspective of the maximum penalty; the statutory minimum penalty; the facts and circumstances of the offending; the seriousness of the offending (including the vulnerability, in the circumstances, of Mr Lole); the importance of appropriate punishment and personal and general deterrence as sentencing considerations; and all aggravating and mitigating factors. The sentence of 15 years' imprisonment was not merely lenient. In particular, the sentence was not merely at or towards the lower end of the sentencing outcome open to his Honour on a proper exercise of his discretion. The sentence was substantially less than the sentencing outcome that was properly open to his Honour.
19. The ground of appeal has been made out.

The outcome of the appeal and the resentencing of the respondent

1. Counsel for the respondent did not submit that the residual discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. The respondent does not, of course, bear an onus to establish that the residual discretion should be exercised in his favour. Rather, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised. See CMB v Attorney General (NSW).[15]
2. In our opinion, there is no basis, in the present case, for invoking the residual discretion. As we have indicated, the sentence imposed by the trial judge was substantially less than the sentence open on a proper exercise of the sentencing discretion. Appealable error has been very clearly established. This court's intervention is necessary to ensure that proper sentencing standards are adopted and maintained for the relevant offence.
3. We would allow the appeal.
4. The sentences imposed and the order for concurrency made by his Honour should be set aside.
5. This court has the material necessary to resentence the respondent.
6. After taking into account the maximum penalty; the statutory minimum penalty; the facts and circumstances of the offending; the seriousness of the offending (including the vulnerability, in the circumstances, of Mr Lole); the importance of appropriate punishment and personal and general deterrence as sentencing considerations; and all aggravating and mitigating factors, we would resentence the respondent to 17 years' imprisonment on count 2.
7. We would resentence the respondent to 3 years 6 months' immediate imprisonment on count 1, being the sentence imposed by the trial judge.
8. The new individual sentences are to be served concurrently. The new total effective sentence is therefore 17 years' imprisonment.
9. The new sentences are to be taken to have taken effect on 25 November 2017.
10. The respondent remains eligible for parole. He will be eligible to be considered for release on parole upon having served 15 years in custody, calculated from 25 November 2017.

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

[6] The State of Western Australia v Yamalulu [2019] WASCA 6.

[7] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600; The State of Western Australia v Doyle [2017] WASCA 207; McAlpine v The State of Western Australia [2018] WASCA 195.

[8] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58.

[9] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.

[10] See Western Australia, Parliamentary Debates, Legislative Council, 24 March 2015, 1917 ‑ 1919 (Mr M Mischin, Attorney General).

[11] Western Australia, Parliamentary Debates, Legislative Council, 24 March 2015, 1919 (Mr M Mischin, Attorney General).

[12] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [18] (Bell, Gageler, Keane, Nettle & Gordon JJ).

[13] Eldridge v The State of Western Australia [2020] WASCA 66 [52] ‑ [55] (Buss P; Mazza & Mitchell JJA).

[14] Smith v The State of Western Australia [2019] WASCA 7.

[15] CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34], [66] (French CJ, Kiefel, Bell, Gageler & Keane JJ).