THE STATE OF WESTERN AUSTRALIA -v- EDWINS [2025] WASCA 73 (19 May 2025)

1. The facts and circumstances of the offending, as alleged by the State, were accepted by the respondent at the sentencing hearing before the primary judge.
2. At the time of the offending, the respondent was aged 23 years and SW was aged 21.
3. The respondent is 170 cm tall and of medium build. SW is 165 cm tall and of slim build.
4. The respondent and SW had been in a family relationship since 2020.
5. At the time of the offending, the respondent and SW resided together at a house in Roebourne with their daughter, AE, who was born in about September 2023.
6. As to count 1, at about 4 pm on 25 October 2023 the respondent was at home in the lounge room asleep with AE. When he awoke he noticed that his water had been taken.
7. The respondent began yelling at SW, asking where his water was. He became angry and threw SW's mobile telephone at her. The telephone struck her on the left elbow, causing pain and swelling.
8. SW left the house to go to her uncle's residence. As SW was leaving the house, the respondent again threw the mobile telephone towards SW, but this time it missed her and hit a fence, causing the telephone to break.
9. The respondent went into the house and SW walked away to obtain assistance.
10. Police arrested the respondent at the house and conveyed him to Roebourne Police Station, where he declined to participate in a recorded interview.
11. The respondent was released on bail.
12. When the respondent committed count 1 he was subject to a community based order that had been imposed in the Magistrates Court on 18 July 2023 for assaulting a public officer.
13. As to count 2, on 17 March 2024 SW, the respondent and AE were at home. During the afternoon a 'jealousy argument' between the respondent and SW occurred. The argument involved each of them yelling at the other and ended with the respondent leaving the house.
14. SW took AE to the house of her uncle, CW. SW and AE stayed overnight at the uncle's house.
15. The next day, 18 March 2024, the respondent entered the uncle's house. SW was sleeping with AE in one of the bedrooms.
16. The respondent entered the bedroom, picked up AE, stood on the bed and began talking 'jealousy stuff' to SW. SW did not answer. The respondent reacted to SW's silence by assaulting her.
17. The respondent was standing on the bed holding AE. SW was lying on the bed. The respondent kicked SW to the left side of her body. SW struggled to breathe and began crying due to the immense pain.
18. The respondent then kicked SW to the face, head and neck.
19. CW returned to his house and saw the respondent standing over SW. CW spoke to the respondent who told him that SW had always treated him like a dog. CW took AE from the respondent who then walked out of the house.
20. SW struggled to sit up due to the pain she felt in her ribs and stomach.
21. CW called an ambulance.
22. SW was flown from Karratha to Royal Perth Hospital for treatment.
23. SW suffered a splenic laceration and internal bleeding consistent with an assault. The injury was of such a nature as to endanger or be likely to endanger life. Specifically, the injury had the potential to cause life threatening bleeding and death by exsanguination, pseudoaneurysms with potential for rupture, haemorrhage, formation of splenic abscesses and sepsis.
24. Police arrested the respondent on 18 March 2024. He declined to participate in a recorded interview.
25. When the respondent committed count 2 he was on bail for count 1. The bail included conditions for SW's protection.

1. The primary judge referred to the facts and circumstances of the offending in his sentencing remarks.
2. His Honour asserted in relation to the injuries suffered by SW, as a result of the offending on count 2, that if SW had not received proper medical treatment for her splenic laceration and internal bleeding 'she could have possibly died from it or had a permanent injury for the rest of [her] life'. His Honour's assertion was inconsistent with the prosecution case. The prosecutor alleged that the injury was life‑endangering, but did not allege that the injury was likely to cause permanent injury to health.
3. The primary judge said that the respondent was severely affected by alcohol when he committed count 1 and under the influence of methylamphetamine when he committed count 2. His Honour recognised that the respondent's intoxication explained his offending but was not mitigatory.
4. The respondent had lived in Roebourne all of his life. He had been in a relationship with SW since the age of 18. The respondent began using methylamphetamine at that age. SW was not a drug user.
5. The respondent's father was violent and the respondent was exposed to that violence as a child. He was raised by his grandmother. She died when the respondent was in year 9. His grandmother was a significant role model for him. The respondent's father and mother both suffer from mental health issues.
6. The respondent left school in year 11. He has a history of employment. He has worked on a mine site as an assistant tradesman. He has also worked as a gardener on community projects.
7. During 2024, the respondent was using methylamphetamine about three times a day. His Honour said this suggested that the respondent was addicted to methylamphetamine when he committed count 2.
8. His Honour noted that the respondent had a prior criminal record. He had previous convictions for violence, including domestic violence. However, he had not previously been sentenced to a term of immediate imprisonment. Although the previous convictions did not aggravate the seriousness of the offences for which the respondent was to be sentenced, his criminal history required that, in sentencing him, increased weight be given to personal deterrence.
9. The primary judge said that count 2 was aggravated by two circumstances, namely that the respondent was in a family relationship with SW and that a child was present when he assaulted her. Count 2 involved continuing violence. The violence stopped only because SW's uncle entered the bedroom.
10. The respondent's pleas of guilty were not entered at an early stage, but his Honour allowed a discount of 15% for the pleas pursuant to s 9AA of the Sentencing Act 1995 (WA).
11. The primary judge noted that the respondent was aged 23 at the time of the offending and was 24 when sentenced. His Honour described the respondent as a youthful offender and said that his rehabilitation was an important sentencing consideration. His Honour observed that if the respondent was to abuse methylamphetamine again or to drink alcohol excessively he would be at risk of reoffending.
12. The respondent is an Indigenous man who had lived the whole of his life in Roebourne. Between about 18 March 2024 (when he was arrested) and 17 March 2025 (when he was sentenced) the respondent was held on remand in Casuarina Prison. During that time the respondent was away from his country and he had no contact with AE, who lives with SW in Roebourne. His Honour took those circumstances into account in sentencing the respondent. The respondent has been unable to participate in drug or alcohol rehabilitation due to his status as a remand prisoner.
13. The respondent sent correspondence to the District Court in which he expressed remorse for his offending behaviour. The primary judge accepted that he was genuinely remorseful. The respondent said in the correspondence that he wanted to 'become a better man and role model' for his daughter.
14. His Honour said that count 2 was more serious than count 1 'because of the potential, when you are kicking someone in a vulnerable state, and kicking them more than once to their head and body, to cause serious injury' (ts 31). His Honour also said that SW was a 'smaller person' (referring, no doubt, to her physical stature) than the respondent (ts 31).
15. The primary judge then imposed the sentences we have set out at [7] above.

1. Counsel for the State submitted that, having regard to:

(a) the serious and sustained nature of the assault;

(b) the life‑threatening injury caused to SW;

(c) the context of ongoing domestic violence;

(d) the presence of the child, AE;

(e) the respondent's personal circumstances; and

(f) sentencing standards in comparable cases,

the sentence of 2 years' immediate imprisonment for count 2 was unreasonable or plainly unjust.

1. Counsel also submitted that, having regard to the aggravating and mitigating factors and the importance of general and personal deterrence, the total effective sentence of 2 years 6 months' immediate imprisonment did not properly reflect the overall criminality of the respondent's offending conduct.

1. Counsel for the respondent accepted that the sentence imposed by the primary judge for count 2 was lenient, but submitted that it was not unreasonable or plainly unjust having regard to the overall facts and circumstances of the respondent and the offending.
2. Counsel emphasised:

(a) the respondent's exposure to domestic violence as a child;

(b) the devasting impact on the respondent of his grandmother's death;

(c) the respondent's relative youth;

(d) the respondent's genuine remorse;

(e) the respondent having been separated from his country while on remand for about one year; and

(f) the respondent not having contact with AE while on remand and his desire to rehabilitate for the purpose of parenting her.

1. It was submitted that the total effective sentence did not infringe the first limb of the totality principle.

1. The applicable principles where the State asserts that a sentence is manifestly inadequate and relevant general sentencing principles are set out in The State of Western Australia v Hussian.[1]
2. 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 adequacy or inadequacy of a sentence. See Munda v The State of Western Australia;[2] The State of Western Australia v Doyle;[3] McAlpine v The State of Western Australia.[4]
3. The maximum penalty for count 2, being the offence of unlawfully doing grievous bodily harm to another in circumstances of aggravation, contrary to s 297(1) read with s 297(3) of the Code, is 14 years' imprisonment.
4. This court has considered, on numerous occasions, appeals against sentence for unlawfully doing grievous bodily harm in circumstances of aggravation. See The State of Western Australia v Jeffries;[5] Hansen v The State of Western Australia;[6] The State of Western Australia v Ellement;[7] The State of Western Australia v Smith;[8] The State of Western Australia v WTG;[9] Merlo v The State of Western Australia;[10] The State of Western Australia v Yamalulu;[11] The State of Western Australia v TLP;[12] Hansen v The State of Western Australia;[13] The State of Western Australia v Cronin.[14]
5. There is no tariff for unlawfully doing grievous bodily harm in circumstances of aggravation because of the great variation that is possible in the circumstances of the offending and the offenders. See Hansen (2014) [26]. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. We have had regard to the cases we have cited at [58] above to obtain a conspectus of the sentencing dispositions in previous cases involving this kind of offending.
6. In Trompler v The State of Western Australia,[15] Wheeler JA said that three matters that are generally significant in assessing the criminality involved in an offence of unlawfully doing grievous bodily harm, without circumstances of aggravation, are as follows. First, the nature of the resulting harm (which may range from a permanent injury which the victim is able to accommodate, to a severe and life‑threatening injury resulting in serious permanent disability). Secondly, the nature of the act which causes the injury (which may involve deliberate and repeated violence or only a single act, and which may or may not involve the use of weapons). Thirdly, the background to and circumstances of the offence (whether a deliberate attack carried out in order to obtain some personal advantage, or for revenge; whether the attack was random, senseless violence or aggression; and whether the offender's act is a response to provocative or threatening conduct). Those three matters are also generally of significance in assessing the criminality involved in an offence of unlawfully doing grievous bodily harm in circumstances of aggravation. See Cronin [35].
7. Domestic violence is a major concern in Australia. It affects mainly women and children. Domestic violence can involve physical injury, psychological injury and emotional trauma. It will often occur in the context of a patent imbalance of power and be calculated to intimidate, coerce and control the victim. The victim will invariably be vulnerable. Denunciation of the offender's criminal conduct and personal and general deterrence are important sentencing considerations. Sentences for violent assaults by offenders (who are usually men) on vulnerable victims (who are usually women), in the context of domestic relationships, have increased. See Drage v The State of Western Australia;[16] The State of Western Australia v Chungarai;[17] Gomboc v The State of Western Australia;[18] The State of Western Australia v LSM;[19] The State of Western Australia v Riley.[20]
8. In the present case, the respondent's offending on count 2 was very serious. The gravity of his offending is obvious from our account of the relevant facts and circumstances. It was a significant aggravating factor that, when he committed count 2, the respondent was on bail for count 1 and that the bail included conditions for SW's protection.
9. There was some mitigation. The principal mitigating factor was the respondent's plea of guilty. The primary judge allowed a discount of 15% for the plea. The respondent was aged 23, and therefore youthful, at the time of the offending. His Honour accepted that the respondent was genuinely remorseful.
10. The respondent has been away from his country (that is, the Karratha/Roebourne region) while he has been a remand prisoner and during that time he has had no contact with AE.
11. The respondent has a prior criminal record. He has previous convictions for violence, including domestic violence. In 2020 the respondent assaulted SW by kicking and stomping on her while she was lying flat on the ground. The previous convictions underscore the importance of personal deterrence.
12. Denunciation of the respondent's criminal conduct and personal and general deterrence were significant sentencing considerations.
13. In our opinion, the sentence of 2 years' immediate imprisonment for count 2 was not commensurate with the seriousness of the respondent's offending. We are satisfied, having regard to all relevant facts and circumstances and all relevant sentencing factors (including the respondent's personal circumstances and antecedents and the mitigating factors), that the length of the sentence was manifestly inadequate. The sentence was not merely 'lenient' or 'at the lower end of the available range'. The sentence was substantially less than the sentence that was open to his Honour on a proper exercise of the sentencing discretion.
14. Ground 1 has been made out.

1. The principles applicable to a ground of appeal which alleges that a total effective sentence infringes the first limb of the totality principle are well established. See, for example, The State of Western Australia v Murray.[21]
2. The maximum penalty for count 1, being the offence of unlawfully assaulting another and thereby doing that other person bodily harm in circumstances of aggravation, contrary to s 317(1)(a) of the Code, is 7 years' imprisonment. As we have mentioned, the maximum penalty for count 2 is 14 years' imprisonment.
3. We have considered a number of previous appeals against sentence, decided by this court, which involved the offence of unlawful assault causing bodily harm in circumstances of aggravation. See Hansen (2014); Gillespie v The State of Western Australia;[22] McCoombe v The State of Western Australia;[23] Drage; Chungarai; Gomboc; Riley.
4. The respondent's offending on count 1 was towards the lower end of seriousness of offences of unlawful assault causing bodily harm in circumstances of aggravation. He was sentenced on the basis that the bodily injury involved pain and swelling to SW's left elbow. It was an aggravating factor that the offending occurred while the respondent was subject to a community based order that had been imposed for assaulting a public officer.
5. In our opinion, the total effective sentence of 2 years 6 months' immediate imprisonment did not bear a proper relationship to the overall criminality involved in both of the respondent's offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors. As we have mentioned, in the context of ground 1, the individual sentence for count 2 was manifestly inadequate. Significant weight had to be given, in deciding upon the total effective sentence, to the denunciation of the respondent's criminal conduct and personal and general deterrence. The objective facts and circumstances of the respondent's offending, viewed as a whole, were very serious. The total effective sentence was unreasonable or plainly unjust. It was not merely 'lenient' or 'at the lower end of the available range'. The total effective sentence was substantially less than the total effective sentence that was open to the primary judge on a proper exercise of the sentencing discretion.
6. Ground 2 has been made out.

1. The difference between the approach of this court in offender appeals against sentence and State appeals against sentence is explicable by the purpose underpinning each category of appeal. Offender appeals are concerned with the correction of error in the particular case. State appeals are concerned with establishing principles for the guidance of sentencing judges. See Green v The Queen;[24] CMB v Attorney‑General (NSW).[25]
2. If this court is to allow a State appeal against sentence and to impose a heavier sentence on the offender, the State must establish two matters. First, the State must make out an appellable error in the exercise by the sentencing judge of his or her discretion. Secondly, the State must negate any reason why the residual discretion of this court under s 31(4) of the Criminal Appeals Act 2004 (WA) not to interfere should be exercised.
3. Counsel for the respondent did not submit that the court should dismiss the appeal on the basis of the residual discretion.
4. In the present case, there is no basis for invoking the residual discretion. As we have mentioned, the individual sentence for count 2 and the total effective sentence imposed by the primary judge were substantially less than the sentences open on a proper exercise of the sentencing discretion. Appellable error has been clearly established. This court's intervention is necessary to ensure that proper sentencing standards are maintained. The public interest requires that the appeal be allowed, the sentences imposed by his Honour be set aside and the respondent resentenced.

The outcome of the appeal and the resentencing of the respondent

1. We would allow the appeal.
2. The primary judge's sentencing decision, including the sentences imposed by his Honour, should be set aside.
3. This court has the material necessary to resentence the respondent.
4. At the hearing, counsel for the respondent informed the court that the respondent is currently being held at Greenough Prison, which is a significant distance from his country in the Karratha/Roebourne region. The respondent has not had any contact with AE. He continues to aspire to 'become a better man and role model' for his daughter. The respondent is willing to participate in any programmes that are made available to him in the custodial setting to assist in his rehabilitation.
5. We have discounted each of the head sentences that we would otherwise have imposed by 15%, pursuant to s 9AA of the Sentencing Act, in recognition of the pleas of guilty.
6. We have also reduced each sentence that we would otherwise have imposed to reflect the other mitigating factors referred to by his Honour in his sentencing remarks. We have also taken into account and given credit for the matters referred to at [82] above.
7. We would exercise the sentencing discretion afresh as follows:

(a) count 1: 6 months' immediate imprisonment (reduced from 12 months in the application of the totality principle); and

(b) count 2: 4 years' immediate imprisonment.

1. The new sentence for count 1 should be served cumulatively upon the new sentence for count 2. The overall criminality involved in both of the respondent's offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, requires that the new sentences be accumulated. The new total effective sentence is 4 years 6 months' immediate imprisonment. The new total effective sentence should be backdated to 18 March 2024 to account for time the respondent has spent in custody solely in relation to this offending. A parole eligibility order should be made.
2. The respondent will be eligible to be considered for release on parole when he has served 2 years 6 months in custody calculated from 18 March 2024.
3. The serial family violence offender declaration and the lifetime family violence restraining order made by the primary judge should not be disturbed.

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

[1] The State of Western Australia v Hussian [2020] WASCA 186 [88] ‑ [97] (Buss P, Mazza & Beech JJA).

[2] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).

[3] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).

[4] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).

[5] The State of Western Australia v Jeffries [2007] WASCA 255.

[6] Hansen v The State of Western Australia [2014] WASCA 229.

[7] The State of Western Australia v Ellement [2016] WASCA 1.

[8] The State of Western Australia v Smith [2016] WASCA 153.

[9] The State of Western Australia v WTG [2016] WASCA 175.

[10] Merlo v The State of Western Australia [2018] WASCA 71.

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

[12] The State of Western Australia v TLP [2019] WASCA 66.

[13] Hansen v The State of Western Australia [2019] WASCA 170.

[14] The State of Western Australia v Cronin [2020] WASCA 203; (2020) 287 A Crim R 215.

[15] Trompler v The State of Western Australia [2008] WASCA 265 [9] ‑ [11].

[16] Drage v The State of Western Australia [2021] WASCA 6 [41] ‑ [42] (Buss P & Vaughan JA).

[17] The State of Western Australia v Chungarai [2021] WASCA 147 [57] (Buss P, Mazza & Beech JJA).

[18] Gomboc v The State of Western Australia [2023] WASCA 115 [190] ‑ [193] (Quinlan CJ, Mazza & Hall JJA).

[19] The State of Western Australia v LSM [2023] WASCA 132 [59] (Buss P).

[20] The State of Western Australia v Riley [2024] WASCA 11 [44] (Buss P, Mazza & Hall JJA).

[21] The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426 [68] ‑ [69], [71] (Buss P, Mazza & Beech JJA).

[22] Gillespie v The State of Western Australia [2016] WASCA 216.

[23] McCoombe v The State of Western Australia [2016] WASCA 227.

[24] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1] (French CJ, Crennan & Kiefel JJ).

[25] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [55] (Kiefel, Bell & Keane JJ).