THE STATE OF WESTERN AUSTRALIA v LESTER [2024] WASCSR 3

1. The circumstances of Mr Lester's offending, taken from the learned sentencing judge's sentencing remarks, were as follows.
2. At the time of the offence, Mr Lester was 23 years of age. He was living in Perth and employed in the mining industry in the north of Western Australia as a fly in, fly out employee on a rotating roster.
3. Over the Christmas period of 2022, Mr Lester travelled to New South Wales to be with family. He returned to Perth on 30 December 2022 with a friend and they soon met up with Mr Nash. Mr Lester knew Mr Nash, having worked with him for the same company in 2022. Mr Nash was 41 years of age. Together with Mr Nash and the other friend, Mr Lester visited Mr Harris's residence in Lena Street, Tuart Hill. Mr Harris was 53 years of age. Mr Nash was also living at the house in Tuart Hill.
4. Mr Lester spent the New Year weekend at a hotel in Perth and checked out of the hotel on the morning of 2 January 2023.
5. Later that morning, Mr Lester went to the home of an acquaintance, in Greenwood, and used a small tomahawk to smash glass and items of property belonging to the acquaintance, who was of the impression that Mr Lester was affected by methylamphetamine.
6. On the evening of 2 January 2023, Mr Lester again went to the address in Lena Street, Tuart Hill.
7. At some point between 2.00 am and 3.00 am on 3 January 2023, Mr Nash provided Mr Lester, at his request, with approximately 3 ml of GHB (gamma hydroxybutyrate), a prohibited drug, which he consumed before going back to his room to rest.
8. At about 9.00 am the same morning, Mr Lester and Mr Nash were in the lounge room of the Lena Street address. Mr Lester asked Mr Nash if he had any methylamphetamine, who shared with Mr Lester 0.1 of a gram of that drug. Mr Nash smoked his portion using alfoil, while Mr Lester smoked his portion using a glass pipe.
9. After smoking the methylamphetamine, without any warning, and completely unprovoked, Mr Lester smashed the glass pipe he was holding. He held it up to his face, looked at it and then tapped it again on the table, which resulted in it having a cleaner break. Mr Lester then lunged at Mr Nash and stabbed him with the broken, serrated end of the glass pipe. He made slashing motions towards Mr Nash with the broken glass pipe, who put both of his hands up to defend himself.
10. Mr Lester continued to attack Mr Nash, stabbing him several times over his body, causing him wounds to the right side of his head, including to his temple, cheek and neck, and deep lacerations on the palms of his hands and fingers.
11. Mr Nash said in a statement that, as Mr Lester lunged at him, Mr Lester said something like 'fuck you' and 'you raped me'. This appeared to reflect a delusional belief on Mr Lester's part that he had been sexually assaulted.
12. Two witnesses, Ms Yeates and Ms Sorgiovanni, who had arrived at the house earlier that same morning and were still present, intervened and stopped Mr Lester's attack upon Mr Nash. Mr Nash was bleeding profusely. They took him to a doctor's surgery nearby before he was taken by ambulance to Royal Perth Hospital.
13. Mr Nash received lacerations to his right cheek, the right side of his neck, his left cheek and jaw, and his lip. He also received lacerations to both hands. All the lacerations consisted of cuts through the full thickness of the skin.
14. The injuries to Mr Nash were of such a nature as to interfere with his health and comfort. He underwent surgery on 6 January 2023, which included an exploration of the lacerations to both hands and the repair of a tendon and a branch nerve, both of which were completely severed. The surgeon also explored Mr Nash's neck wounds and repaired the damage to the skin and the mucosal tissue of his mouth.
15. Without medical treatment, the injuries suffered by Mr Nash were of such a nature as to cause or be likely to cause permanent injury to his health. The attack on Mr Nash constituted count 1.
16. At approximately 9.19 am, after assisting Mr Nash to get medical treatment, Ms Yeates and Ms Sorgiovanni returned to the Lena Street address to check on Mr Harris, who was alone at the residence with Mr Lester. At that point in time, Ms Yeates and Ms Sorgiovanni noticed that Mr Lester and Mr Harris appeared to be calm, and there was no injury to Mr Harris. Ms Yeates and Ms Sorgiovanni left a few minutes later to return to the doctor's surgery.
17. At a time between 9.21 am and 9.35 am, Mr Lester and Mr Harris had a physical altercation which resulted in Mr Harris receiving a significant wound to his neck. It was one of 21 wounds inflicted by Mr Lester to Mr Harris's head and neck area with a pair of scissors, which were subsequently located by police at the house.
18. At 9.35 am, Mr Lester left the Lena Street address, and started walking towards Royal Street, Tuart Hill.
19. Shortly after, at approximately 10.05 am, Ms Yeates and Ms Sorgiovanni returned to the Lena Street address. Upon entering the house, they found Mr Harris near the front doorway, lying face down in a pool of blood. He was unconscious and not breathing. It was obvious that he had succumbed to his injuries by that stage. Ms Yeates and Ms Sorgiovanni notified the police and the ambulance service, who attended the residence and provided critical medical attention to Mr Harris. Despite their efforts, Mr Harris could not be revived. He was declared life extinct at 10.35 am.
20. On 6 January 2023, a post-mortem examination was performed on Mr Harris's body. It identified that the cause of death was from multiple sharp force, penetrating injuries to his head, face, and neck, specifically with internal injury to the left common carotid artery, internal jugular vein, and hyoid bone. Many, if not all, of the injuries were consistent with having been caused with the scissors found at the scene.
21. The reason for the altercation between Mr Lester and Mr Harris, and Mr Lester's motive for killing him, were not known, except that Mr Lester continued to be in a drug-induced psychotic state. The learned sentencing judge considered it likely that Mr Lester's motivation was related to the statements he made to Mr Nash and subsequently to Mr Di Silvio, concerning being raped, something which had no basis in reality.
22. The killing of Mr Harris constituted count 2. I will return to the learned sentencing judge's finding in relation to Mr Lester's intention later, as it is challenged in the appeal.
23. After his attack on Mr Harris, Mr Lester left the Lena Street address and walked towards Royal Street, Tuart Hill.
24. At around 10.00 am, Mr Di Silvio was putting the bins out at the front of his residence on Royal Street. Mr Di Silvio saw Mr Lester walking towards him covered in blood. They were not known to each other.
25. Mr Lester said, 'Help, I've been raped.'
26. After initially trying to hide from Mr Lester, Mr Di Silvio engaged with Mr Lester when he went to the front door of his next‑door neighbour, who Mr Di Silvio believed to be a single young woman.
27. Mr Di Silvio told Mr Lester to sit down. He then went inside his house and got Mr Lester a bottle of water, which he gave to Mr Lester. Mr Di Silvio then called '000' to request an ambulance for Mr Lester. When asked for his name, Mr Lester identified himself to Mr Di Silvio by his correct name. While Mr Di Silvio was on the phone at the front of his house, Mr Lester walked into the house. Mr Lester went to the kitchen area and picked up two kitchen knives, one in each hand. Mr Lester then ran and lunged at Mr Di Silvio, who was still outside his home, and stabbed him in his head, neck, chest, and abdomen.
28. Despite being considerably older than Mr Lester, and being wounded from his attack, Mr Di Silvio managed to wrestle Mr Lester to the ground and pinned him down. At this point, Mr Di Silvio's son returned home and rendered assistance to his father by trying to break up the struggle and calling the police. He located the knives and moved them away from Mr Lester.
29. Shortly after, police arrived at the scene and separated Mr Lester from Mr Di Silvio, while Mr Lester was trying to put Mr Di Silvio in a headlock. The police arrested Mr Lester. Mr Lester was clearly in a mentally unstable state, uttering non-sensical statements. Nevertheless, Mr Lester appeared to have shown awareness of what he had done, and the possible consequences, when Mr Lester said to the officers that he would 'go to jail for the rest of [his] life'.[5]
30. Mr Di Silvio was taken to Royal Perth Hospital by ambulance where he underwent surgery for a right vertebral artery injury with an arteriovenous fistula formation. This was an injury to the artery on the right that supplies blood to the brain and spine. Mr Di Silvio also had an intraventricular hemorrhage and a subarachnoid hemorrhage and facial fractures and lacerations. There was a left maxillary sinus fracture and a right mandible fracture, which were managed conservatively. The lacerations were cleaned and sutured.
31. Without medical treatment, the injuries suffered by Mr Di Silvio were of such a nature as to endanger his life due to ongoing bleeding from the arteriovenous fistula. Without medical treatment, the injuries were also of such a nature as to cause or be likely to cause permanent injury to health.
32. The attack on Mr Di Silvio constituted count 3.

1. After Mr Lester was arrested, he was conveyed to the Mirrabooka Police Station. A sample of his blood was taken for drug analysis. Methylamphetamine was found to be present in his blood at a level of 0.04 mg/L, and amphetamine was found at a level of The State has not submitted that your use of violence upon Mr Harris with an intention to kill was pre-meditated. Rather, the State acknowledges that it may have been an unprovoked, and unexplained, spur of the moment act of violence while you were affected by drugs and experiencing psychosis. However, your actions required a number of conscious decisions by you to arm yourself with the scissors, and to stab Mr Harris multiple times to the head and neck. These are plainly vulnerable areas of the human body. Although the State described the violence as a frenzied attack, it did so by reference to the number and ferocity of the wounds you inflicted to that vulnerable part of Mr Harris's body. It submitted that the focus of your stabbing to Mr Harris's head and neck, with no injuries to other parts of his body, points inexorably to an attack calculated to cause his death.

I will return later to the nature of your drug-induced psychosis, but it is appropriate to note at this stage that the fact a person is in a psychotic state does not mean they cannot form an intention to kill another person, or that they have not acted with such an intention on a particular occasion. In fact, depending on the nature of the psychosis, it may bring about the formation of such an intention, for instance within a delusional belief system.

On the materials in the prosecution brief, I am satisfied beyond reasonable doubt that you used the scissors to stab Mr Harris, and that when you did so, you intended to kill him. I am satisfied that, notwithstanding that your mental functioning was affected by your drug‑induced psychosis, and that the methylamphetamine is likely to have heightened your aggression, the persistent attack on Mr Harris's head and neck with a weapon such as the scissors, and the nature of the injuries you inflicted, point compellingly to an intention on your part to cause Mr Harris's death. It was a form of violence calculated to cause death. Further, the fact that you left him in a pool of blood and unresponsive, offering him no assistance, tends to strengthen that conclusion.

1. The learned sentencing judge identified a number of aggravating factors relevant to Mr Lester's offending. For present purposes I will focus on those factors relevant to the offence of murder.
2. First, Mr Lester's attack on each victim was unprovoked and without reasonable explanation, other than his self-induced psychosis resulting from drug intoxication.
3. Secondly, in relation to all three offences, Mr Lester used a dangerous weapon. The fact that he used a weapon in each case objectively meant that it was likely to result in serious injury. This, his Honour said, was a significant aggravating feature of the offending.
4. Thirdly, Mr Lester was aware that using drugs could bring on psychosis. He had been experiencing psychotic symptoms for a period of time before the day on which he committed the offences, and he was aware that the drugs made him aggressive. Mr Lester's awareness of the effects of drug intoxication was an aggravating factor.
5. Fourthly, the number and nature of the injuries, which showed a sustained attack on Mr Harris, was an aggravating factor. The learned sentencing judge also said that the fact that Mr Lester left Mr Harris to die, when he was heavily bleeding and hardly conscious, and made no effort to either provide assistance to him, or to arrange for assistance to be provided to him, was a further aggravating factor. While his Honour acknowledged, in relation to these last matters, that Mr Lester was not thinking in a rational way because of his condition at the time, his Honour considered that that they were nevertheless aggravating factors.

1. Mr Lester was born in the United Kingdom, where his father played professional rugby from 1997 to 1999. His family returned to Australia when Mr Lester was one year-old and settled in Wollongong, New South Wales.
2. Mr Lester's early childhood was a happy one, although his parents separated when he was around six years old. After his parents separated, he lived with his mother and younger brother. Both of Mr Lester's parents went on to find new partners and have more children. While he was initially hesitant about his mother's new partner, Mr Lester grew to like him and acknowledged that he had been a good father to Mr Lester's younger siblings.
3. At the time of the offending, Mr Lester was not in a domestic relationship, and he has no children.
4. Mr Lester attended school in various places in New South Wales as a child and teenager. He had a close group of friends who remained close with him at the time of his sentencing. Mr Lester described himself as something of a class clown, and he struggled at school due to difficulty concentrating and sitting still. He said that he was asked to leave school in year 10 because of behavioural difficulties.
5. I have already referred to Mr Lester's drug use in the context of Dr Tate's report.
6. After leaving school, Mr Lester completed two and a half years of a four‑year carpentry apprenticeship, but his drug use affected his ability to complete that apprenticeship.
7. At the age of 21, Mr Lester moved to Perth and commenced work in concreting in the metropolitan area before beginning work in the regions on a fly-in fly-out basis.
8. Mr Lester had no prior convictions for any form of violent offending, and a limited criminal history related to traffic offences.
9. A number of character references were provided to the learned sentencing judge from Mr Lester's family members and friends. They demonstrated that he was clearly loved and liked within his family and circle of friends. He was regarded as being courteous and respectful, helpful and compassionate; even being regarded as a role model by younger family members and friends. Mr Lester was also regarded as a hard worker.
10. The learned sentencing judge accepted that Mr Lester had good qualities that he could work with in order to lead a law-abiding life in due course, when released from prison. His Honour also referred to a report from the Whitehaven Clinic, where Mr Lester completed 12 one‑on‑one counselling sessions. The report revealed that Mr Lester had shown a real commitment to his rehabilitation and to putting himself in the best position to avoid drug use in the future, including insightful reflections upon the factors in his life that led to his offending, and that he was proactive in looking at ways in which he could improve his life in the future to avoid those factors.
11. The learned sentencing judge accepted that Mr Lester had indicated genuine remorse for his offending, which was also evident in a letter to the court. That letter expressed remorse for his actions and acknowledged and apologised for the physical and mental harm that he had caused to his victims and their families. He also expressed remorse for the harm that he had caused to his own family as a result of his offending.
12. His Honour said that the fact that Mr Lester was not seeking to diminish his responsibility in any way was important in the court's consideration of his capacity for rehabilitation.

1. Both Mr Nash and six members of Mr Harris's family provided victim impact statements.
2. In relation to the secondary victims of Mr Harris's murder, the victim impact statements spoke eloquently of the devastating impact of the family's loss, which had left an indescribable void in their lives and an immeasurable emotional and psychological toll.

1. The learned sentencing judge identified the following mitigating factors.
2. The first, and most significant, mitigating factor was Mr Lester's pleas of guilty, which were entered at the first reasonable opportunity. Those pleas saved many people the need to come to court and give what would no doubt have been traumatic evidence. They also gave a sense of closure, at least in relation to the proceedings, to the families of the victims, in particular the family of Mr Harris, who would have had to endure the uncertainty associated with waiting for a trial and then the trial itself.
3. Secondly, while Mr Lester was not a very young man, the learned sentencing judge accepted that, at 24 years of age, he had a greater ability to change and improve his life.
4. Thirdly, Mr Lester's genuine remorse was a mitigating factor in his favour which went beyond his acceptance of responsibility and early pleas of guilty.
5. Finally, Mr Lester had good prospects of rehabilitation and significant support within the community.

1. As noted above, the learned sentencing judge imposed the following sentences:
   1. in relation to count 1 (the offence under s 304(2)(b) of the Criminal Code concerning Mr Nash), 5 years' imprisonment;
2. in relation to count 3 (the offence under s 304(2)(b) of the Criminal Code concerning Mr Di Silvio), 7 years' imprisonment;
3. in relation to count 2 (the offence of murder), life imprisonment, with a minimum non‑parole term of 20 years' imprisonment; and
4. all of the sentences be taken to have commenced on 3 January 2023.
5. Prior to imposing those sentences, his Honour said the following:[10]

If I had been dealing with you only in respect of the offences in counts 1 and 3, I would have accumulated the sentences at least in part because, in my view, the sentences that I am going to impose would not individually have reflected the whole of your offending in that regard. However, as I am going to be imposing the life sentence with a non‑parole minimum term that will be well in excess of what the sentences would be for the offences in counts 1 and 3, it is not appropriate to accumulate the sentences for those offences.

However, the minimum term that I impose for the murder offence will reflect the context in which the offence was committed, and that is that it was part of a course of violent conduct, what might properly be regarded as a rampage, that resulted in the death of one man and serious injuries to two others. The sheer gravity of such extended, persistent violence is necessarily an aggravating factor when determining the minimum term for the offence of murder. For that reason, the minimum term that I consider to be appropriate as a starting point before making the reductions that I have referred to, which will result in the final term that I impose, is greater than it would have been if that was the only offence for which I was sentencing you and there was not the broader context of violent behaviour that occurred on that occasion.

Finally, I indicate that had I been sentencing you only for the offences under s 304(2) of the Criminal Code, I would have made you eligible for parole as there would have been no reason for you not to be eligible for parole, but that will be futile given that I am going to impose a minimum term that will far exceed the sentences that I am going to impose for the offences under s 304(2)(b).

1. Ground 1 contends that the minimum non‑parole period of 20 years for the life sentence imposed on count 2 was manifestly excessive.
2. Alleging, as it does, implied error, ground 1 proceeds upon acceptance of the learned sentencing judge's finding that Mr Lester intended to kill Mr Harris and that His Honour otherwise made no express error. As before the learned sentencing judge, however, Mr Lester submitted that the relevance of his specific intention was not as significant as it often is in other cases, due the fact that Mr Lester's intention was formed in the spur of the moment while he was experiencing a psychotic episode.
3. In that regard, counsel for Mr Lester placed significant emphasis on Mr Lester's early plea of guilty and remorse and, notwithstanding the very serious nature of the offence and a number of aggravating factors, noted the absence of:

(a) pre-meditation;

(b) attempt at concealment;

(c) a pre-existing relationship between Mr Lester and Mr Harris, such as a domestic relationship;

(d) the involvement of any other person;

(e) any material benefit to Mr Lester from the killing;

(f) the presence of a calm, rational or 'cold blooded' thought process;

(g) offending over a protracted period of time; or

(h) any active steps taken by Mr Lester to avoid responsibility.[11]

1. Both Mr Lester and the State referred to a number of previous decisions of this Court in relation to the range of non‑parole periods customarily imposed for murder, including Pedersen v The State of Western Australia,[12] The State of Western Australia v Lee,[13] Rosewood v The State of Western Australia,[14] Stinson v The State of Western Australia,[15] The State of Western Australia v Smith,[16] Zwerus v The State of Western Australia,[17] The State of Western Australia v Stoeski,[18] Corbett v The State of Western Australia,[19] The State of Western Australia v Attwood,[20] and Sturniolo v The State of Western Australia.[21]

1. The applicable principles in relation to setting a minimum non‑parole period pursuant to s 90 of the Sentencing Act 1995 (WA) are well‑established.
2. A non‑parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period.[22] This principle, which may be traced to the High Court's decision in Power v The Queen (a case concerned with the setting of minimum terms for fixed term sentences), has been recognised as applying to sentences for murder in this Court on many occasions.[23]
3. In that context, the considerations which the sentencing court must take into account in setting the minimum non‑parole period are all relevant sentencing factors, including the circumstances of the offence, all aggravating and mitigating factors and the offender's personal circumstances. The non‑parole period must be set by reference to achieving or satisfying all relevant sentencing objectives, including punishment, retribution, personal deterrence and general deterrence.[24]
4. Of course, while all relevant sentencing factors must be brought to bear in setting a minimum non‑parole period, the setting of a non‑parole period must be distinguished from the determination of a head sentence. As Mason CJ and McHugh J observed in Bugmy v The Queen:[25]

[T]he considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.

1. The 'different purposes behind each function' (that is, between the head sentence and minimum non‑parole period) is reflected in the result in Bugmy v The Queen. In that case, the High Court was concerned with a minimum term of 18 years and 6 months set in relation to a mandatory life sentence. In relation to the task faced by the sentencing judge, Dawson, Toohey and Gaudron JJ said:[26]

[T]he task facing [the sentencing judge] was not that of determining an appropriate sentence for the offence of murder of which the applicant had been convicted. That sentence had been marked out by the legislature. The task his Honour assumed was to determine an appropriate minimum term in all the circumstances. The practical effect of fixing a minimum term is that thereafter the Parole Board may, but of course need not, grant the prisoner parole... That is not to say that the minimum term should be seen as the shortest time required for a paroling authority to form a proper view of the prisoner's prospects of rehabilitation. That approach was rejected in Power v The Queen. ... Referring to Power, this Court said in Deakin v The Queen:

'The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.'

The views expressed in Power have been affirmed on other occasions in this Court. ...

In Iddon & Crocker v The Queen, the Court of Criminal Appeal of Victoria said of the legislation with which this appeal is concerned:

'The scheme of the legislation is plain enough. The intention of the legislature is that a minimum term is a benefit to the prisoner ...'

That benefit lies in providing the prisoner a basis for hope of earlier release and in turn an incentive for rehabilitation: ... The fact is, though, that the sentence remains, in the present case, one of life imprisonment.

1. In concluding that the sentencing judge had erred in Bugmy v The Queen, Dawson, Toohey and Gaudron JJ said:[27]

Although [the sentencing judge] clearly gave detailed consideration to the task he had to perform, it is hard to resist the conclusion that in his reasons his Honour was unduly influenced by considerations which bear on the fixing of a head sentence rather than on the minimum term. The risk that the applicant might re-offend was of course a relevant factor in fixing a minimum term. But a minimum term of eighteen years and six months is of such length as to take the prospects of re-offending in this case beyond even speculation. The applicant was twenty-seven years of age when the minimum term was fixed. He will be over forty‑five before the likelihood that he will re-offend will become a matter for assessment. It is not possible to say now what the likelihood will be then. Equally, the applicant's behaviour in prison is a relevant consideration, but the longer the minimum term the less importance it must assume, simply because of the impossibility of making a forecast of future behaviour so far ahead. Again, while the desire on the part of his Honour to protect the community is material to the fixing of a minimum term as well as a head sentence, its significance must be the less the longer the minimum term, simply because relevant forecasts cannot be made at such a distance.

1. The setting of a minimum non‑parole period, like all sentencing decisions, is a discretionary judgment in relation to which there is no single correct answer.
2. Accordingly, an appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.[28]
3. In that context, guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a non‑parole period is within the range of other non‑parole periods 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 that a non‑parole period 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 (including a minimum non‑parole period) is manifestly excessive. 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.[29]

1. For the reasons that follow, I am unable to conclude that the minimum non‑parole period set by the learned sentencing judge was unreasonable or plainly unjust. While I would grant leave to appeal, I would not uphold ground 1.
2. The offending conduct involved in the murder of Mr Harris was objectively extremely serious. It involved an unprovoked attack, with a dangerous weapon, that was sustained and brutal. The sheer number of wounds inflicted on Mr Harris, and the location of those wounds (including the head, face and neck) betrayed a ferocity and capacity for violence (albeit when under a state of self-induced psychosis) that called for a lengthy minimum period of imprisonment. Without a lengthy period of imprisonment, as a minimum, the community's interest in the objectives of punishment, retribution and general deterrence could not legitimately be met.
3. The impact on Mr Harris's family and friends by Mr Lester's offending was profound and, as the learned sentencing judge observed, inevitably created ripples of harm beyond his loved ones and into the wider community. That impact underscores the necessity that the sentence, including the minimum non‑parole period, would reflect all of the demands of justice.
4. It is true that the offence was committed, as senior counsel put it at the hearing of the appeal, by 'a young man who was under the scourge of methamphetamine self-abuse'[30] and that 'the whole circumstance is tragic'.[31] The waste, not only of the innocent life of Mr Harris, but of what could have been the successful life of Mr Lester had he not succumbed to the scourge of methylamphetamine, cannot be doubted. Nor is it difficult to recognise the pathos of an otherwise intelligent, capable, and well-liked young man such as Mr Lester finding himself facing life in prison because of his choices.
5. Nevertheless, as the learned sentencing judge recognised, the law in this State is that the existence of psychosis or other psychological difficulties resulting from self-induced intoxication are not mitigatory, at least where (as in this case) the offender is aware of the potential effects of a drug and can be regarded as morally responsible for his or her condition.[32] There was no challenge to that principle, or its application, in the present case.[33] That being the case, adherence to principle requires that in a case such as the present no weight can be placed on the fact that Mr Lester's offending may be partly, or even wholly, attributable to his disordered mental state at the time of the offending, notwithstanding that, following the offending, he exhibits no psychiatric symptoms.
6. Against the objective seriousness of Mr Lester's offending there were a number of matters that mitigated the length of the minimum non‑parole period. Chief among them was Mr Lester's plea of guilty at the earliest reasonable opportunity and his genuine remorse for the harm that he had caused, and for which he accepted full responsibility. Those matters, in particular, were deserving of real weight, as were Mr Lester's relative youth and good prospects for rehabilitation. These last matters, the hope of earlier release providing an incentive for rehabilitation, are particularly relevant considerations for the setting of a minimum non‑parole period.
7. Nevertheless, these mitigating factors, while significant, could not eclipse the objective seriousness of the offence. Indeed, in the absence of those mitigating factors, it could be expected that the minimum non‑parole period would have been substantially greater than 20 years.
8. The comparable cases identified by the parties reflect a wide range of minimum non‑parole periods, from 17 years (after trial) in Smith to 27 years (following pleas of guilty) in Stoeski. In my view, Stoeski cannot be regarded as truly comparable, as it involved two separate and discrete acts of murder, committed in different locations, with an interval of time between the murders. Putting that decision to one side, the range of minimum non‑parole periods reflected in the cases identified by the parties was 17 years (in Smith) to 21 years (in Lee). That range broadly accords with the review of previous cases undertaken by Mitchell J (as his Honour then was) in Corbett. In that case his Honour observed:[34]

It is not uncommon for minimum terms in the range of 17 - 23 years to be imposed for single offences of murder, including in cases where there has been a plea of guilty and/or an absence of any intention to kill. ...

In particular, I note that minimum terms of 17 - 19 years' imprisonment imposed on mature offenders in a domestic situation after pleas of guilty were held not to be manifestly excessive in Rosewood, Silva and Stinson.

1. I have read and considered all of the cases referred to by the parties. Each of them, of course, have distinguishing features from the present case and no case is truly comparable. Nevertheless, the broad range of non‑parole periods revealed by those cases suggests that the minimum non‑parole period in the present case was at the higher end of the range of periods customarily imposed, in cases in which the offender has pleaded guilty.
2. In that regard, save for the sentences imposed in Lee, in all of the cases referred to by the parties in which the offender pleaded guilty, a minimum non‑parole period of less than 20 years was imposed.
3. In Lee, two co-offenders participated in a premeditated murder. That murder was aggravated by the fact that it was committed in company and that deliberate steps were taken to conceal the crime, including by one of the offenders disfiguring the deceased's body. The other offender had a criminal record including violent crime and was assessed as a high risk of future offending. Each of the offenders in Lee was resentenced by this Court to a minimum non‑parole period of 21 years.[35] In all of the circumstances Lee was more serious than the present case.
4. As I have said, in the other decisions referred to by the parties involving pleas of guilty (Pedersen, Rosewood and Stinson) the minimum non‑parole period was less than that in the present case (between 17 and 19 years). Nevertheless, the period in the present case, while at the higher end of a sound exercise of sentencing discretion, was still broadly consistent with those periods. In that regard, I agree with the observation of Martin CJ in Smith that when a very substantial minimum term of imprisonment is being imposed, differences in the order of magnitude of 2 to 3 years are 'of a kind that are inherent in the discretionary nature of the sentencing process'.[36] As his Honour said in that case, 'differences of that magnitude are incapable of sustaining the conclusion that the sentence imposed was "obviously erroneous".'[37]
5. It is important that I recall that the question on ground 1 is not whether I would have exercised the sentencing discretion differently. In all of the circumstances I would have. The question raised by the ground 1 is whether the result produced in this case was plainly unjust or unreasonable, such that I should imply error.
6. Having regard to all of the circumstances, and to the sentencing range for comparable cases (and in the absence of express error), I am not satisfied that I can, or should, imply error on the part of the learned sentencing judge.
7. While I would grant leave to appeal on ground 1, I would not uphold that ground.

1. Ground 2 contends that the learned sentencing judge erred in finding that Mr Lester intended to kill Mr Harris, that being held by his Honour to be an aggravating factor in respect of count 2.
2. By his plea of guilty, of course, Mr Lester admitted each of the essential elements of the offence of murder, including all of the essential facts necessary to constitute the offence. In the present case, that involved an admission that Mr Lester at least had an intention to cause Mr Harris a bodily injury of the kind he suffered, which was objectively of such a nature as to endanger life.
3. Senior counsel for Mr Lester submitted that the learned sentencing judge could not be satisfied beyond reasonable doubt that Mr Lester had the intention to kill Mr Harris, as opposed to the lesser intention. In that regard, counsel placed significant weight on the continuing state of delusion, commencing with the incident involving Mr Nash and continuing through to the incident involving Mr Di Silvio.

1. The applicable principles in relation to fact-finding for the purpose of sentence are well established. In that regard, the prosecution must establish an aggravating circumstance beyond reasonable doubt.
2. In the present case, the learned sentencing judge considered that a finding that Mr Lester intended to kill would increase his moral culpability to some extent, and so clearly regarded it as an aggravating circumstance.[38] Generally speaking, of course, that will be the case: an offender's intention in relation to the particular killing is a relevant fact or circumstance to be considered together with all the other relevant facts and circumstances of the offending and the offender in determining the appropriate non‑parole period.[39]
3. While I have some doubt as to the significance of Mr Lester's specific intention in the circumstances of the present case, clearly it was material to the learned sentencing judge's exercise of discretion and so needed to be established beyond reasonable doubt.
4. The principles applicable to appellate review of a finding of fact for the purpose of sentence mirror those in relation to a ground of appeal that a verdict is unreasonable or cannot be supported by the evidence.[40] Relevantly:
   1. The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the finding. The appeal court must determine whether, in all the circumstances, the finding was open.
   2. The question for the appeal court is whether, on the whole of the evidence, it was open to the primary court to be satisfied beyond reasonable doubt in relation to the finding.
   3. That question requires consideration of whether the primary court must, as distinct from might, have entertained a reasonable doubt about the finding.
   4. In answering that question, the appeal court must pay full regard to the consideration that the primary court was entrusted with the primary responsibility of making findings in relation to sentence, and to the advantage that the primary court had in seeing and hearing the evidence.
   5. A doubt experienced by an appellate court will be a doubt which the primary court ought also to have experienced, unless the primary court's advantage in seeing and hearing the evidence is capable of resolving that doubt.
5. The task of this Court is therefore to undertake its own independent assessment of the whole of the evidence to determine whether the only rational inference available on the evidence was that Mr Lester intended to kill Mr Harris and, if not so satisfied, to determine whether the learned sentencing judge's satisfaction could be attributed to some identified advantage that his Honour had over this Court.[41]
6. In relation to this last matter, the advantage that a sentencing judge might have had over the appellate court will vary from case to case depending on the form in which the evidence was adduced and depending on the nature of the issues.[42] In the present case, the learned sentencing judge's findings were made on the basis of the written material adduced as part of the prosecution brief. Any advantage that his Honour might have had must be slight and, in my view, would not be capable of resolving any doubt as to the issue that I might have.

1. Having independently assessed the material before the learned sentencing judge, I am not satisfied that his Honour erred in concluding that at the moment that he inflicted the fatal injuries to Mr Harris, Mr Lester intended to kill Mr Harris. My review of all of that material does not give rise to a reasonable doubt in my mind that Mr Lester intended to kill Mr Harris.
2. Putting to one side (for the moment) Mr Lester's impaired mental state, I agree with the learned sentencing judge that the violence used by Mr Lester was of a form that was 'calculated to cause death'.[43] That is, the number, nature and location of the injuries inflicted on Mr Harris can have had only one likely consequence; namely his death.
3. While it is correct to say that the attack on Mr Harris was frenzied, it was nevertheless focused and, in my view, targeted. The post-mortem examination (and accompanying photographs) reveal not only that multiple injuries were inflicted to Mr Harris's head and neck, but that these vulnerable parts of the body were the only parts of Mr Harris's body that were wounded. The injuries to Mr Harris were not indiscriminate. They were, in my assessment, directed to these vulnerable parts of the body.
4. In the absence of some contrary explanation, in my view, the focus of Mr Harris's injuries, and the nature of those injuries, pointed inexorably to an intention to kill.
5. The evidence in relation to Mr Lester's intoxication and psychosis did not support any reasonable alternative hypothesis consistent with Mr Lester having intended to do anything other than kill Mr Harris. In that regard, the expert evidence (supported by the surrounding circumstances) did not support the inference that Mr Lester's state of intoxication or delusions affected his capacity to form an intention to kill or otherwise suggest that he did not have an intention to kill Mr Harris.
6. There was no evidence, for example, that Mr Lester was under any delusion as to the inevitable consequence of his deliberate actions. On the contrary, the evidence of Dr Tate was that the primary factors affecting Mr Lester's actions were the aggression-promoting effects of methylamphetamine and anabolic steroids combined with a heightened sense of threat and stress. That sense of threat was, in part, the product of a delusional belief that Mr Lester was going to be raped. That is not, however, a delusional belief that is inconsistent with an intention to kill; it is, rather, a delusion belief that explains an intention to kill. In other words, the expert evidence as to Mr Lester's disordered thinking simply served to explain the motivation behind his having had an intention to bring about the very consequence that would be expected from stabbing a person 21 times to the head and neck. It supported no hypothesis that he did not intend that consequence.
7. The learned sentencing judge did not err in concluding that Mr Lester intended to kill Mr Harris. In my view there is no merit in ground 2 and I would refuse leave to appeal on that ground.

1. Ground 3 contends that the learned sentencing judge erred in determining that the use of persistent violence was an aggravating factor in setting the minimum non‑parole period for count 2, in circumstances in which Mr Lester was sentenced to terms of imprisonment for the other two acts of violence. Ground 3 alleges an express error, manifested in the passage from his Honour's sentencing remarks reproduced at [87] above.

1. The common law principle against double punishment was recently confirmed and applied by this Court in Luckman v The State of Western Australia.[44] That principle was described by McHugh, Hayne and Callinan JJ in Pearce v The Queen:[45]

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

1. In Luckman v The State of Western Australia, the Court concluded that the principle of double punishment was infringed where fixed terms of imprisonment for two offences were accumulated in circumstances in which the facts relating to one offence involved no additional criminality to the facts relating to the other offence.[46]
2. It is clear that the principle also has application where an offender is sentenced to life imprisonment and also sentenced to finite terms of imprisonment for other offences. In such a case, s 88(5) of the Sentencing Act provides that the offender is to serve the sentence of life imprisonment concurrently with any other term that he or she is serving or has yet to serve. This legislative requirement accords with the reality of a life sentence. It is an existential fact that a person cannot serve a term of imprisonment longer than the term of their life. The notion that any period of imprisonment could be accumulated so as to commence after the offender has died is a nonsense.
3. This does not have the result that the fixed terms imposed for the other offences are of no consequence. Not only do those terms, in substance, serve to meet the objectives of punishment, retribution, personal deterrence and general deterrence, the nature and seriousness of the offending reflected in those sentences is a relevant consideration, along with circumstances, relevant to the offender, in relation to the decision of the parole authorities as to whether the offender should be released on parole at some point after having served the minimum non‑parole period.
4. The life sentence and the fixed terms in such a case, of course, remain separate and distinct; and the fact that, by operation of the Sentencing Act any fixed term is wholly concurrent with a life term could not in any way affect the appropriate sentence (including the minimum non‑parole period) for an offence punishable by life imprisonment. Such a result would infringe the principle against double punishment.
5. Again, however, this does not have the result that the factual context of other offending is wholly irrelevant to the exercise of the sentencing discretion in relation to the appropriate sentence (including the minimum non‑parole period) for an offence of murder punishable by life imprisonment. That context may, for example, inform a proper understanding of the gravity of the murder itself.
6. In Pedersen, for example, where the offender was sentenced to offences of going armed to cause fear and criminal damage committed after a murder, Buss JA (as his Honour then was) observed:[47]

The appellant's behaviour after he killed the victim (that is, the criminal conduct the subject of counts 3 and 4) was, of course, different criminality from that embodied in the count of murder, but it reveals the appellant's state of mind on the day in question and the overall devastating consequences which the implementation of his plan occasioned. His Honour approached the sentencing for the murder, rightly in my opinion, on the basis that what happened before and after the killing were circumstances relevant to the commission of the murder. He took those circumstances into account in determining the appropriate sentence for the murder, but emphasised, correctly, that those circumstances would not be taken into account in sentencing for the other counts. That approach was appropriate.

1. The correctness of this approach, and the need to avoid double punishment in setting the minimum non‑parole period, was confirmed in Smith. In that case Martin CJ, citing the above passage from Pedersen, said:[48]

Because Mr Smith was sentenced to imprisonment for life for the offence of murder, obviously the sentence imposed for the offence of arson had to be served concurrently with the sentence imposed for murder. However, this does not lead to the conclusion that the sentence imposed in respect of the offence of arson is of no significance. Nor does it sustain the conclusion that Mr Smith's conviction for arson should result in the imposition of a longer period of imprisonment prior to eligibility for parole for the offence of murder. Nevertheless, conduct which is relevant to the offence of murder is properly taken into account in assessing the appropriate minimum term of imprisonment to be served prior for that offence to eligibility for parole. So, in this case, the finding of the trial judge that Mr Smith was motivated by a desire to conceal his involvement in the death of Mr Noakes at the time he set fire to the unit is a circumstance which aggravates the offence of murder and which is therefore properly taken into account when assessing the sentence imposed for that offence. However, aspects of the offence of arson which are discrete to that charge such as the extent of damage to property and the risk to safety created by the fire are relevant only to the sentence imposed in respect of that offence. Bringing those matters to account when assessing the minimum period of imprisonment to be served by Mr Smith prior to eligibility for parole for the offence of murder would, in effect, amount to double punishment.

1. It may readily be accepted that, in a particular case, it may be difficult to draw the line between the factual context of a particular offence (which factual context includes the commission of other offences) and the criminality separately punished by those other offences. Nevertheless, it is a line that is not illusory and one that must be drawn. In that regard, the line is not dissimilar to the principle, regularly applied by the courts, that an offender's previous offending and criminal history cannot be an aggravating factor so as to increase a sentence but that it may prevent the sentencing court from giving weight to prior good character or prevent it from concluding that the relevant offending was 'isolated'.

1. Having recognised the difficulty of drawing the line between the context of the murder, in the present case, and the circumstances relevant to the sentences for the offending against Mr Nash and Mr Di Silvio, I am bound to conclude that the learned sentencing judge erred in drawing that line. Accordingly, for reasons that follow, I would uphold ground 3.
2. The conduct of Mr Lester before and after the murder of Mr Harris, in violently attacking Mr Nash and Mr Di Silvio, was clearly necessary context for a proper appreciation of the seriousness of the murder in the present case. As reflected in the learned sentencing judge's finding in relation to Mr Lester's intention at the time of the murder, for example, the statements he made to Mr Nash and to Mr Di Silvio, concerning being raped, provided evidence relevant to his likely motivation in attacking Mr Harris.
3. Similarly, the fact that Mr Lester committed serious acts of violence against Mr Nash and to Mr Di Silvio, meant that in sentencing him for murder (including setting the minimum non‑parole period), the learned sentencing judge could not conclude that the murder was an entirely isolated instance of violence.
4. If his Honour's reliance on the circumstances surrounding the murder, including the attacks on Mr Nash and Mr Di Silvio, were limited to these matters, in my view, no error would be revealed. Those matters were properly relevant to the assessment of the minimum non‑parole period (albeit that in my view, in all of the circumstances, they were not of considerable weight). Taking into account the surrounding circumstances in this way, in particular, would not involve treating the other offending as 'aggravating', such as to lead to a greater minimum non‑parole period than the objective seriousness of the offence would otherwise require.
5. Taken as whole, however, in my view the learned sentencing judge's sentencing remarks cannot be so confined. In this context, I recognise that sentencing remarks are not to be viewed as a written judgment and that this Court ought not approach such remarks in a hostile or hypercritical manner.[49] Nevertheless, in my view, his Honour's sentencing remarks can only be understood as concluding that Mr Lester's convictions for the two offences contrary to s 304(2)(b) of the Criminal Code should result in the imposition of a longer period of imprisonment prior to eligibility for parole for the offence of murder. [50]
6. In that regard, the learned sentencing judge clearly treated the surrounding violence, for which Mr Lester was also sentenced, as 'an aggravating factor when determining the minimum term for the offence of murder'.[51] Taken with his Honour's statement that the minimum non‑parole period was 'greater than it would have been if that was the only offence for which [his Honour] was sentencing [Mr Lester]',[52] in my view his Honour can only be understood as meaning that the minimum non‑parole period for count 2 was increased by reason of the commission of counts 1 and 3.
7. That conclusion infringed the rule against double punishment and was in error. That error was, in turn, clearly material to the exercise of his Honour's sentencing discretion. I would uphold ground 3.
8. The question remains whether, notwithstanding this express error, on resentence, a different or lesser sentence should be imposed. If, in the independent exercise of its discretion, this Court would impose the same sentence as the learned sentencing judge, then the appeal will be dismissed.[53]

1. This Court has all the necessary material to resentence Mr Lester in relation to count 2.
2. For the reasons that follow, and in the exercise of my independent discretion, I would impose a different sentence to that imposed by the learned sentencing judge.
3. It is not necessary to repeat all of the relevant sentencing principles and relevant considerations in this case. It is sufficient that I record the following.
4. As I have already said, the murder of Mr Harris was objectively extremely serious. It involved an unprovoked attack, with a dangerous weapon, that was sustained and brutal. The impact upon Mr Harris's family and friends was profound. There was no possible basis upon which the exception provided for in s 279(4) of the Criminal Code could have ever applied in the present case. The only appropriate sentence for Mr Lester was, and is, one of life imprisonment.
5. Similarly, the interests of justice and the community's interest in the objectives of punishment, retribution and general deterrence require that the minimum non‑parole period also be very lengthy. The objective seriousness of the offending was not mitigated by Mr Lester's self‑induced psychosis, for which he must accept moral responsibility.
6. In that context, I would observe that while I find that Mr Lester intended to kill Mr Harris, in the particular circumstances of this case I do not regard the precise content of Mr Lester's state of mind or intention as a significant sentencing consideration. Clearly his state of mind at the time of the murder was disordered, and his intention actuated by intoxication and delusions. In that regard, Mr Lester's moral responsibility lies more in his responsibility, by self-intoxication, for that disordered state of mind, than in the content and effect of his delusions.
7. Similarly, while the serious acts of violence against Mr Nash and to Mr Di Silvio meant that the murder of Mr Harris could not be regarded as an entirely isolated instance of violence on Mr Lester's part, it must be recognised that the violence committed by him on 3 January 2023, as a whole, was a single incident born of the same single episode of intoxication and psychosis. Mr Lester did not otherwise have a history of violent offending and so in that sense, at least, the violence exhibited by him on 3 January 2023 was relatively isolated. None of which, as I have said, is to downplay the extreme gravity of the offending itself, which called for a lengthy minimum non‑parole period.
8. Nevertheless, that minimum term needed to meaningfully reflect the significant mitigation in Mr Lester's plea of guilty at the first reasonable opportunity and his genuine remorse for the harm he had caused. It is, in my view, no small thing for a relatively young man, with no previous history of violence, to accept full legal and moral responsibility for the offence of murder at the earliest reasonable opportunity, with the sure knowledge that he would thereby receive, as a matter of practical certainty, a sentence of life imprisonment. It is not only in the interests of Mr Lester's continued steps towards rehabilitation, but also in the interests of the administration of justice generally, that such a tangible recognition of responsibility mitigate the period within which Mr Lester might hope to be released at some time in the future.
9. In all of the circumstances, and in light of all relevant sentencing principles, in my view the appropriate minimum non‑parole period is one of 17 years.

1. For the foregoing reasons I would make the following orders:
   1. Leave to appeal on ground 1 is granted.
   2. Leave to appeal on ground 2 is refused.
   3. Leave to appeal on ground 3 is granted.
   4. The sentence imposed by Fiannaca J on count 2 on indictment INS 44 of 2023 on 21 February 2024 is set aside.
   5. The appellant is resentenced on count 2 to life imprisonment with a minimum non‑parole period of 17 years. The sentence is ordered to have commenced on 3 January 2023.
2. The effect of these orders is that Mr Lester will be eligible to be considered for parole when he is 40 years of age.

1. The appellant has appealed against sentence.
2. On 30 January 2024, the appellant was convicted on his pleas of guilty of three counts in an indictment.
3. Count 1 alleged that on 3 January 2023, at Tuart Hill, the appellant, with intent to harm Darren Nash, did an act as a result of which the life, health or safety of Mr Nash was, or was likely to be, endangered, contrary to s 304(2)(b) of the Criminal Code (WA) (the Code).
4. Count 2 alleged that on 3 January 2023, at Tuart Hill, the appellant murdered Lauchlan Harris, contrary to s 279 of the Code.
5. Count 3 alleged that on 3 January 2023, at Tuart Hill, the appellant, with intent to harm Michael Di Silvio, did an act as a result of which the life, health or safety of Mr Di Silvio was, or was likely to be, endangered, contrary to s 304(2)(b) of the Code.
6. The maximum penalty for each of counts 1 and 3 is 20 years' imprisonment.
7. Section 279(4) of the Code provides, relevantly, that a person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless that sentence would be clearly unjust given the circumstances of the offence and the person, and the person is unlikely to be a threat to the safety of the community when released from imprisonment. Section 90(1) of the Sentencing Act 1995 (WA) provides, relevantly, that a court that sentences an offender to life imprisonment for murder must set a minimum period of at least 10 years that the offender must serve before being eligible for release on parole. By s 90(2), any minimum period so set begins to run when the sentence of life imprisonment begins.
8. On 21 February 2024, Fiannaca J imposed sentences on the appellant as follows:

(a) count 1: 5 years' imprisonment;

(b) count 2: life imprisonment with a minimum non‑parole period of 20 years; and

(c) count 3: 7 years' imprisonment.

1. His Honour backdated all of the sentences to 3 January 2023 to take account of time the appellant had spent in custody in relation to the offending.
2. Initially, the appellant relied upon two grounds of appeal. At the hearing of the appeal, this court granted the appellant leave to amend his grounds by adding a new ground 3. The grounds of appeal focus solely upon the sentence imposed on the appellant for count 2.
3. Ground 1 alleges, in essence, that the minimum non‑parole period of 20 years' imprisonment for count 2 was manifestly excessive.
4. Ground 2 alleges, in essence, that the primary judge made an express material error in finding, in the context of count 2, that the appellant intended to kill Mr Harris.
5. Ground 3 alleges, in essence, that his Honour made an express material error in concluding that the appellant's use of persistent violence in relation to all of the offending was an aggravating factor in determining the length of the minimum non‑parole period for count 2, in circumstances in which the appellant was sentenced to terms of imprisonment for the acts of violence the subject of counts 1 and 3.
6. Ground 1 asserts an implied error. Each of grounds 2 and 3 asserts an express error.
7. Ground 2 is without merit. Leave to appeal on that ground should be refused. Ground 3 has been made out. Leave to appeal on that ground should be granted. It is unnecessary and inappropriate, having regard to the express material error established by ground 3, to decide ground 1. Leave to appeal on that ground should be refused.
8. The appeal should be allowed on the basis of ground 3. The primary judge's sentencing decision in relation to count 2 should be set aside and the appellant resentenced by this court on that count.

The facts and circumstances of the offending; the primary judge's sentencing remarks; the appellant's personal circumstances and antecedents; and the submissions of the parties in the appeal

(a) the facts and circumstances of the offending;

(b) the primary judge's sentencing remarks;

(c) the appellant's personal circumstances and antecedents; and

(d) the submissions of the parties in the appeal.

1. I will not repeat or elaborate upon those details except to the extent necessary to explain my reasons.

Overview of the facts and circumstances of the offending

1. An overview of the facts and circumstances of the offending is as follows:

(a) The appellant was aged 23 (nearly 24) at the time of the offending and was aged 25 when sentenced. He lived in Perth and was employed in the mining industry on a fly in/fly out basis.

(b) The appellant spent the 2022 Christmas holiday period with his family in New South Wales.

(c) On 30 December 2022, the appellant returned to Perth with a friend, Dylan Skinner. The appellant and Mr Skinner went to a hotel in Osborne Park and met with Mr Nash, the victim in count 1. The appellant had worked with Mr Nash during 2022. Later, the appellant, Mr Skinner and Mr Nash went to residential premises in Tuart Hill. These premises were the home of Mr Harris, the victim in count 2. Mr Nash was living with Mr Harris.

(d) The appellant and Mr Skinner spent the night of 30 December 2022 at a hotel in Perth. They stayed at the hotel until the morning of 2 January 2023.

(e) During the morning of 2 January 2023, the appellant went to the home of Toryn Fast in Greenwood. The appellant used a small tomahawk to smash glass and items belonging to Mr Fast. Mr Fast, who had known the appellant for two or three months, had the impression that the appellant was affected by methylamphetamine.

(f) On the evening of 2 January 2023, the appellant returned to the Tuart Hill house where Mr Nash and Mr Harris lived. The appellant was unkempt. He went to the bathroom and said he needed to have a shower. Mr Nash gave the appellant clean clothing and food. He permitted him to stay the night.

(g) Between 2.00 am and 3.00 am on 3 January 2023, Mr Nash gave the appellant, at the appellant's request, a quantity of a prohibited drug known as GHB, which the appellant consumed before returning to his room.

(h) At about 9.00 am on 3 January 2023, the appellant asked Mr Nash for some methylamphetamine. Mr Nash shared 0.1 g of methylamphetamine with the appellant. Mr Nash smoked his methylamphetamine using alfoil. The appellant smoked his methylamphetamine with a glass pipe.

(i) Suddenly and without warning, the appellant smashed the glass pipe. After inspecting the broken pipe, the appellant tapped the pipe on the table and created a neater break. The appellant then lunged at Mr Nash and stabbed him with the broken end of the pipe. The appellant made slashing motions with the broken pipe. Mr Nash raised his hands in defence. The appellant continued to attack Mr Nash, who was stabbed several times. Mr Nash suffered wounds to the right side of his head, including his temple, cheek and neck. He also suffered deep lacerations on the palms of his hands and fingers.

(j) Audine Yeates and Shelley Sorgiovanni, who had arrived at the Tuart Hill house earlier that morning, intervened and stopped the appellant's attack upon Mr Nash. They took Mr Nash to the surgery of a medical practitioner in the vicinity. He was then transported by ambulance to Royal Perth Hospital where he underwent surgery and had other treatment. Mr Nash was aged 41. Without medical treatment, Mr Nash's injuries were of such a nature as to cause or be likely to cause permanent injury to health.

(k) When the appellant lunged at Mr Nash and stabbed him with the broken end of the pipe, the appellant said words to the effect of 'fuck you' and 'you raped me'. The statement about being raped had no basis in reality. It was a delusional belief arising from the appellant's drug induced psychotic state.

(l) At about 9.19 am on 3 January 2023, Ms Yeates and Ms Sorgiovanni returned to the Tuart Hill house. Mr Harris had remained at the house with the appellant. When they arrived Mr Harris was uninjured and the appellant appeared to be calm. Ms Yeates and Ms Sorgiovanni then left the premises.

(m) Between about 9.21 am and 9.35 am, the appellant and Mr Harris engaged in a physical altercation during which the appellant stabbed Mr Harris with a pair of scissors. Mr Harris suffered 21 wounds to his head including a significant wound to his neck.

(n) At 9.35 am, the appellant left the Tuart Hill house and began walking towards Royal Street, Tuart Hill.

(o) Shortly afterwards, Ms Yeates and Ms Sorgiovanni returned again to the Tuart Hill house. They discovered Mr Harris near the front door. He was unconscious and not breathing. Ms Yeates and Ms Sorgiovanni called the police and the ambulance service. Despite the efforts of police and ambulance officers, Mr Harris could not be revived and died from his injuries.

(p) A post‑mortem examination revealed that the cause of Mr Harris' death was multiple, sharp force, penetrating injuries to his head, face and neck, with internal injuries to his left carotid artery, internal jugular vein and hyoid bone. Mr Harris was aged 53.

(q) At about 10.00 am on 3 January 2023, Mr Di Silvio, the victim in count 3, was at his home in Royal Street, Tuart Hill. Mr Di Silvio's home is about 110 m from the Tuart Hill house where Mr Harris was killed. Mr Di Silvio was at the front of his house. He saw the appellant, covered in blood, walking towards him. The appellant said that he had been raped. Mr Di Silvio did not know and had not previously seen the appellant.

(r) Mr Di Silvio went into his house and found a bottle of water. He returned to the front of his house and gave the water to the appellant. Mr Di Silvio called the emergency services.

(s) While he was on the telephone to the emergency services, Mr Di Silvio noticed that the appellant had walked into his house. Mr Di Silvio saw that the appellant was holding a kitchen knife in each hand. The appellant then ran at Mr Di Silvio. The appellant lunged at Mr Di Silvio and stabbed him in his face, neck, chest and abdomen.

(t) Mr Di Silvio wrestled the appellant to the ground. Mr Di Silvio's son, Luis Di Silvio, arrived and assisted his father by attempting to restrain the appellant. Shortly after, police arrived and arrested the appellant.

(u) Mr Di Silvio was taken by ambulance to Royal Perth Hospital. He suffered a right vertebral artery injury with fistula formation; an intraventricular and subarachnoid haemorrhage; facial fractures; and lacerations to a bicep and his chest. Mr Di Silvio was aged 60. He underwent surgery and had other treatment. Without medical treatment, Mr Di Silvio's injuries were of such a nature as to cause or be likely to cause permanent injury to health.

The appellant's voluntary intoxication by illicit drugs

1. After the appellant was arrested a sample of his blood was taken for drug analysis. The analysis revealed the presence of methylamphetamine at a level of 0.04 mg/l and amphetamine at a level of (a) The appellant had no previous contact with mental health services and had never been prescribed any psychiatric medications.

(b) The appellant was diagnosed with attention deficit hyperactivity disorder as a child, but he never took any medication for this condition. There was no evidence to suggest that he had a major mental illness.

(c) The appellant had a history of extensive polysubstance use for more than ten years. He met the criteria for substance related disorder. At the time of the offending, the appellant was regularly using methylamphetamine and anabolic steroids. The offending occurred in the context of acute distress and paranoia secondary to drug use. The appellant's mental state resolved rapidly after cessation of drug use. He has not required any psychiatric intervention.

(d) The appellant does not have any features of mental illness. His substance use disorder was the main risk factor in relation to reoffending. In the absence of drug use, the appellant's risk of reoffending was likely to be low.

1. In her report dated 29 January 2024, Dr Tate said:

(a) The appellant's offending appears to have occurred as a result of acute paranoia in the context of intoxication with methylamphetamine.

(b) The appellant's substance use appears to have escalated over the years, causing him to become indebted to drug gangs.

(c) The appellant's psychiatric symptoms resolved rapidly after he ceased using drugs.

(d) The appellant did not present with any symptoms of psychiatric illness when he was assessed by Dr Tate on 1 December 2023. There was no indication for hospitalisation or psychiatric treatment.

(e) The appellant's offending appears to have represented unplanned and impulsive acts of severe violence towards those around him in the context of a brief psychotic state. This appears to have been caused by the neuropsychiatric effects of intoxication with multiple substances in the context of long‑term polysubstance misuse.

(f) The aggression promoting effects of methylamphetamine and anabolic steroids, combined with a heightened sense of threat and stress, appear to have been the primary factors in the appellant's offending behaviour.

(g) The appellant reported that he was in a state of heightened stress on the day before the offending. He had not slept for four days. He was involved in an altercation two days earlier. He appears to have had a reality‑based fear of retribution from a drug gang to which he was indebted.

(h) The appellant has few outstanding criminogenic needs. He requires a relatively low level of intervention to manage his risks.

The victim impact statements in relation to count 2

1. The information before the primary judge included numerous victim impact statements from members of Mr Harris' family.
2. The statements reveal that Mr Harris' murder has had a devastating impact upon his family and friends. They have experienced profound grief and pain, and very significant psychological and emotional trauma.

The unchallenged aggravating factors in relation to the appellant's offending on count 2

1. The unchallenged aggravating factors in relation to the appellant's offending on count 2, as found by the primary judge, were as follows.
2. First, the appellant's attack upon Mr Harris was unprovoked. There was no reasonable explanation for the attack.
3. Secondly, the appellant used a dangerous weapon, namely scissors, to attack Mr Harris' neck and head. This increased the likelihood of Mr Harris suffering serious injury.
4. Thirdly, the appellant was aware that using drugs could induce psychosis. He had been experiencing psychotic symptoms before the day on which he murdered Mr Harris. The appellant was aware that using drugs made him aggressive and potentially violent, but he continued to use methylamphetamine.
5. Fourthly, the appellant's attack upon Mr Harris was sustained, as revealed by the number and nature of the injuries which the appellant inflicted on Mr Harris.
6. Fifthly, the appellant abandoned Mr Harris while Mr Harris was bleeding heavily and barely conscious. The appellant made no effort either to provide Mr Harris with assistance or to arrange for assistance to be given to him.

The unchallenged mitigating factors in relation to the appellant's offending on count 2

1. The unchallenged mitigating factors in relation to the appellant's offending on count 2, as found by the primary judge, were as follows.
2. First, the appellant entered a plea of guilty at the first reasonable opportunity.
3. Secondly, although the appellant was 'on the cusp of what is regarded as the mitigating factor of youth' [151], he was still a young man.
4. Thirdly, the appellant was remorseful for his offending. His remorse went beyond his acceptance of responsibility for his criminal behaviour and his plea of guilty at the first reasonable opportunity.
5. Fourthly, the appellant had good prospects of rehabilitation and avoiding a return to the lifestyle that resulted in his offending. The appellant had voluntarily participated in a programme at the Whitehaven Clinic. He also had significant support within the community.

The appellant's personal circumstances and character

1. At the time of the offending, the appellant was not in a domestic relationship. He does not have any children.
2. The appellant does not have any previous convictions for violent offending. He has a limited criminal history relating to traffic offences.
3. The appellant was not of prior good character for sentencing purposes. However, numerous written references from the appellant's family and friends spoke well of him.
4. The primary judge noted that the appellant's family reside outside Western Australia. Consequently, the appellant will serve his sentence at a considerable distance from his family. His Honour said that he could not give 'any significant weight to that [circumstance] as a mitigating factor' [156].

1. As I have mentioned, ground 2 alleges, in essence, that the primary judge made an express material error in finding, in the context of count 2, that the appellant intended to kill Mr Harris.
2. Where an offender is convicted on his or her plea of guilty, the plea necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. The plea also negatives all defences. A plea of guilty does not, however, constitute an admission of all of the facts stated in the State's or Crown's depositions or witness statements. It is necessary for the sentencing judge to evaluate the facts, consistently with the plea, to determine the offender's culpability and decide upon an appropriate sentence. See Law v The State of Western Australia.[55]
3. The prosecution must establish an aggravating factor beyond reasonable doubt and the offender must establish a mitigating factor on the balance of probabilities. See R v Storey;[56] R v Olbrich;[57] Law [25] ‑ [34].
4. At the sentencing hearing before the primary judge, the State submitted that his Honour could and should find that the appellant intended to kill Mr Harris. The prosecutor acknowledged that the existence of an intention to kill may not make a difference (or, at least, a significant difference) to the determination of the appropriate minimum non‑parole period for count 2 because the appellant's intention, whether to kill or to cause a life endangering injury, was formed in the context of a psychotic state and on the spur of the moment.
5. By contrast, defence counsel submitted that his Honour should not find that the appellant had an intention to kill Mr Harris because the appellant's psychotic state when he committed the offence would have impaired his judgment. Defence counsel argued, in effect, that the appellant's psychotic state would have made him incapable of rational decision making. In particular, it was possible that the appellant acted without properly thinking about the consequences of his violent actions, and that he intended to cause serious injuries, but not death.
6. The primary judge accepted the prosecutor's submission in relation to intention. His Honour said in his sentencing remarks [45]:

On the materials in the prosecution brief, I am satisfied beyond reasonable doubt that you used the scissors to stab Mr Harris, and that when you did so, you intended to kill him. I am satisfied that, notwithstanding that your mental functioning was affected by your drug-induced psychosis, and that the methylamphetamine is likely to have heightened your aggression, the persistent attack on Mr Harris's head and neck with a weapon such as the scissors, and the nature of the injuries you inflicted, point compellingly to an intention on your part to cause Mr Harris's death. It was a form of violence calculated to cause death. Further, the fact that you left him in a pool of blood and unresponsive, offering him no assistance, tends to strengthen that conclusion.

1. Section 26 of the Code provides that '[e]very person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved'.
2. Section 27 of the Code is concerned with the circumstances in which a person is not criminally responsible for an act or omission on account of unsoundness of mind.
3. Section 28(3) provides:

When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.

1. Section 279(1) of the Code provides, relevantly:

If a person unlawfully kills another person and -

(a) the person intends to cause the death of the person killed or another person; or

(b) the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or

...

the person is guilty of murder.

1. Section 279(1)(a) is concerned with the subjective intention of an accused to cause the death of the person killed or another person.
2. Section 279(1)(b) is concerned with the subjective intention of an accused to cause bodily injury and with the objective nature of that bodily injury. The provision does not refer to the accused's action or intended action to give effect to his or her subjective intention to cause a bodily injury. The accused must subjectively intend to cause a bodily injury and that bodily injury must be of such a nature as objectively to endanger, or objectively be likely to endanger, the life of the person killed or another person. That is, the bodily injury which is subjectively intended is the bodily injury which must be evaluated to determine whether it is of such a nature as objectively to endanger, or objectively be likely to endanger, life. See Wongawol v The State of Western Australia;[58] Schmidt v The State of Western Australia;[59] Clarke v The State of Western Australia;[60] Birdsall v The State of Western Australia;[61] Turner v The State of Western Australia.[62]
3. In Atherden v The State of Western Australia,[63] Wheeler JA (McLure P and Owen JA agreeing) made these observations about the seriousness of the intent embodied in s 279(1)(a) compared with the intent embodied in s 279(1)(b):

It follows from the creation of [an] offence, which may be committed by a person who has either an intention to kill or an intention to cause bodily injury of such a nature as to endanger life, with the same penalty range available in relation to offenders holding either intention, that it will not invariably be the case that killing with an intention to cause bodily injury of such a nature as to endanger life must be regarded, for sentencing purposes, as necessarily less serious than killing with an intention to cause death. Examples of cases in which an intention to cause bodily injury of such a nature as to endanger life may be more seriously regarded than an intention to cause death can be imagined. For example, the case of a revenge attack, where a person deliberately wishes to cause bodily injury of such a nature as to endanger life, but not cause death, in order that the victim may experience a lengthy period of suffering, may be regarded as more serious than killing with an intention to cause death, if the latter type of killing could reasonably be regarded as a 'mercy killing', or took place in the heat of the moment, after significant provocation. Further, in many cases, it may be difficult to discern precisely what the offender's intention was, so that the offender will fall to be sentenced largely for his or her conduct, rather than for his or her intention.

Broadly, it may be accepted that the value which the community places on human life is such that it is likely that, other things being equal, killing with an intention to cause death will be more seriously regarded. However, to state that is to say no more than that the offender's intention is one of a range of circumstances which will be relevant to determining an appropriate sentence.

1. Occasionally, there is direct evidence of the intention of an accused in the form of an admission against interest. Usually, however, the existence of the intention of an accused is a matter of inference from the surrounding facts and circumstances, including what the accused has done. The existence of intent is a question of fact. In most cases, whether a particular intent existed will depend on whether an inference can be drawn, to the requisite standard, from the facts established by the prosecution. See Kural v The Queen;[64] Smith v The Queen.[65]
2. In the present case, the primary judge's impugned finding about the appellant's intention must be evaluated having regard to the following:

(a) The appellant admitted, by his plea of guilty to count 2, that he had at least a subjective intention to cause the bodily injuries he inflicted on Mr Harris and that those bodily injuries were of such a nature as objectively to endanger, or objectively be likely to endanger, Mr Harris' life.

(b) The appellant's motive in attacking Mr Harris appears to have been the appellant's paranoid and delusional belief that he had been raped.

(c) The appellant armed himself with a weapon, namely a pair of scissors, and used the scissors to attack Mr Harris.

(d) The appellant's attack upon Mr Harris was not premeditated and the duration of the attack was relatively short. However, within that relatively short period, the attack was repetitive and sustained.

(e) The focus of the appellant's attack was Mr Harris' head and neck, which obviously are vulnerable areas of the human body.

(f) The post‑mortem examination revealed that Mr Harris had suffered 13 injuries to his neck and 33 injuries to his face, ears and scalp. The cause of Mr Harris' death was multiple, sharp force, penetrating injuries to his head, face and neck, with internal injuries to his left carotid artery, internal jugular vein and hyoid bone.

(g) The nature and extent of the injuries suffered by Mr Harris and the duration of the appellant's attack indicate that the attack was frenzied.

(h) After attacking Mr Harris, the appellant abandoned Mr Harris while he was bleeding heavily and barely conscious. The appellant made no effort either to provide Mr Harris with assistance or to arrange for assistance to be given to him.

(i) When he attacked Mr Harris, the appellant was intoxicated by methylamphetamine. His Honour made an unchallenged finding that the methylamphetamine which the appellant had consumed was likely to have heightened his aggression [45]. That finding reflected the expert evidence of Dr Tate.

1. The absence of premeditation is not inconsistent with the appellant having had an intention to kill Mr Harris. It is true that, when he attacked Mr Harris, the appellant's mental functioning was affected by a drug‑induced psychosis. However, the fact that an accused attacks another person while the accused is in a psychotic state does not preclude the formation of an intention to kill the other person. An intention to kill may be formed within the context of a paranoid and delusional belief system.
2. In my opinion, having regard to the matters I have set out at [218] ‑ [219] above, the primary judge was entitled to conclude that the only reasonable inference was that the appellant intended to kill Mr Harris when he stabbed Mr Harris with the scissors.
3. I have reviewed the evidence that was before his Honour at the sentencing hearing. I am satisfied beyond reasonable doubt, having regard to the matters I have set out at [218] ‑ [219] above, that when he stabbed Mr Harris with the scissors the appellant intended to kill Mr Harris.
4. Ground 2 is without merit. Leave to appeal on that ground should be refused.

1. As I have mentioned, ground 3 alleges, in essence, that the primary judge made an express material error in concluding that the appellant's use of persistent violence in relation to all of the offending was an aggravating factor in determining the length of the minimum non‑parole period for count 2, in circumstances in which the appellant was sentenced to terms of imprisonment for the acts of violence the subject of count 1 and 3.
2. The primary judge made these comments in his sentencing remarks in relation to the individual sentences he intended to impose for counts 1, 2 and 3 [169] ‑ [170]:

If I had been dealing with you only in respect of the offences in counts 1 and 3, I would have accumulated the sentences at least in part because, in my view, the sentences that I am going to impose would not individually have reflected the whole of your offending in that regard. However, as I am going to be imposing the life sentence with a non‑parole minimum term that will be well in excess of what the sentences would be for the offences in counts 1 and 3, it is not appropriate to accumulate the sentences for those offences.

However, the minimum term that I impose for the murder offence will reflect the context in which the offence was committed, and that is that it was part of a course of violent conduct, what might properly be regarded as a rampage, that resulted in the death of one man and serious injuries to two others. The sheer gravity of such extended, persistent violence is necessarily an aggravating factor when determining the minimum term for the offence of murder. For that reason, the minimum term that I consider to be appropriate as a starting point before making the reductions that I have referred to, which will result in the final term that I impose, is greater than it would have been if that was the only offence for which I was sentencing you and there was not the broader context of violent behaviour that occurred on that occasion.

Finally, I indicate that had I been sentencing you only for the offences under s 304(2) of the Criminal Code, I would have made you eligible for parole as there would have been no reason for you not to be eligible for parole, but that will be futile given that I am going to impose a minimum term that will far exceed the sentences that I am going to impose for the offences under s 304(2)(b). (emphasis added)

1. His Honour then imposed the sentences for count 1, 2 and 3; namely 5 years' imprisonment for count 1; life imprisonment with a minimum non‑parole period of 20 years for count 2; and 7 years' imprisonment for count 3. His Honour backdated all of the sentences to 3 January 2023.
2. A non‑parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen;[66] Deakin v The Queen;[67] Griffiths v The Queen;[68] Bugmy v The Queen.[69]
3. The purposes and benefits of fixing a non‑parole period apply equally to an offender who is sentenced to life imprisonment as they do to an offender who is sentenced to a finite term of imprisonment. See R v Chamberlain.[70]
4. Some general observations may be made in relation to the determination of a non‑parole period where an offender is to be sentenced to life imprisonment for murder.
5. First, the considerations which the sentencing judge must take into account in setting the non‑parole period are all relevant sentencing factors, including the facts and circumstances of the offence, all aggravating and mitigating factors and the offender's personal circumstances and antecedents.
6. Secondly, the non‑parole period must be set by reference to achieving or satisfying all relevant sentencing objectives, including punishment, retribution, personal deterrence and general deterrence.
7. Thirdly, the offender's intention in relation to the particular killing is a relevant fact or circumstance (invariably, if not always, a very significant matter) to be considered together with all the other relevant facts and circumstances of the offending and the offender in determining the appropriate non‑parole period.
8. It is well established that:

(a) a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;

(b) if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and

(c) if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.

See Pearce v The Queen[71] and Nguyen v The Queen.[72]

1. However, a sentence of life imprisonment is, by its very nature, indeterminate. The indeterminate nature of a life sentence means that another sentence cannot be imposed cumulatively on it. Any finite sentence imposed at the same time as a sentence of life imprisonment, or before or after a sentence of life imprisonment, must necessarily be concurrent with the sentence of life imprisonment. See R v Jolly;[73] R v Taikmaskis;[74] R v Mickelo;[75] Lee Vanit v The Queen;[76] R v Pryor;[77] Chamberlain [15].
2. Those common law principles are embodied in s 88(5) of the Sentencing Act, which provides that '[a]n offender sentenced to life imprisonment is to serve that sentence concurrently with any other term that he or she is serving or has yet to serve'.
3. In Fardon v Attorney‑General (Qld),[78] Kirby J referred to the origin of the common law rule against double punishment as follows:

The rule against double punishment for proved crimes may be traced to Biblical times (In the Old Testament Book of Nahum 1:9 (King James Bible). See Thomas, Double Jeopardy: The History, the Law, (1998) at 72). In English law it is often traced to the Constitutions of Clarendon (1164) by which King Henry II asserted a right to subject clergy to trial in the civil as well as ecclesiastical courts. The resolution of that conflict, following the murder of Archbishop Thomas à Becket, witnessed the beginning of the acceptance by English law that a person should not be put in danger twice for the same crime (Blackstone, Commentaries, (1769), bk 4, c 26, p 329). This rule is reflected in the common law.

1. In R v Hoar,[79] Gibbs CJ, Mason, Aickin and Brennan JJ said that there is 'a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act'.
2. So, when an offender is to be sentenced for multiple offences which contain one or more common legal or factual elements, care must be taken by the sentencing judge to avoid punishing the offender twice (or more) for the commission of the common elements. See Pearce [40]; Johnson v The Queen.[80] See also Beekman v The State of Western Australia;[81] s 11(1) of the Sentencing Act.
3. In Pearce [42], McHugh, Hayne and Callinan JJ acknowledged that '[t]he identification of a single act as common to two offences may not always be ... straightforward', but emphasised that the inquiry should be approached 'as a matter of common sense, not as a matter of semantics'.
4. In Western Australia a sentencing judge is obliged to sentence an offender in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.
5. Section 6(1) of the Sentencing Act, which provides that '[a] sentence imposed on an offender must be commensurate with the seriousness of the offence', embodies the principle of proportionality. See McGarry v The Queen.[82] Section 6(2) explains how 'the seriousness of an offence', for the purposes of s 6(1), is to be determined. Section 6(2) states that '[t]he seriousness of an offence must be determined by taking into account' the statutory penalty for the offence (s 6(2)(a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (s 6(2)(b)); any aggravating factors (s 6(2)(c)); and any mitigating factors (s 6(2)(d)). The nature of 'aggravating factors' is explained in s 7 and the nature of 'mitigating factors' is explained in s 8. Section 7(1) provides that aggravating factors are factors which, in the court's opinion, increase an offender's culpability. Section 8(1) provides that mitigating factors are factors which, in the court's opinion, decrease an offender's culpability or decrease the extent to which the offender should be punished. Accordingly, the principle of proportionality embodied in s 6(1) requires that the sentence to be imposed on an offender must be determined by reference to the matters specified in s 6(2). By s 6(3), the mandate in s 6(1) does not prevent the reduction of a sentence because of any mitigating factors.
6. In Pedersen v The State of Western Australia,[83] the appellant was convicted of one count of aggravated burglary, one count of murder, one count of going armed to cause fear and one count of criminal damage. All of the offences occurred on the same date. The appellant was sentenced to 2 years' imprisonment for the aggravated burglary; life imprisonment with a minimum non‑parole period of 19 years for the murder; 2 years 6 months' imprisonment for going armed to cause fear; and 1 year's imprisonment for the criminal damage. All of the sentences were backdated to the date on which the appellant was taken into custody.
7. The salient facts of the offending in Pedersen were these. On 15 November 2008, the appellant attended the victim's home with the intention of stealing a gun and ammunition. When he entered the home, the appellant was confronted by the victim. The appellant stabbed him several times with a knife. One of the stab wounds caused the victim's death. After stabbing the victim, the appellant stole a rifle and ammunition from the victim's gun cabinet. He then drove with the rifle and ammunition to an address where the half‑brother of the appellant's de facto partner and his family resided. The appellant fired two shots from the rifle in the direction of the half‑brother. The first shot missed him narrowly. Both shots entered the residence, where other members of the half‑brother's family were present. The appellant then drove to a hill overlooking the property of his brother‑in‑law. He shot and killed a pet animal belonging to the brother‑in‑law and his family.
8. The appellant in Pedersen appealed to this court against the minimum term imposed by the sentencing judge for the murder. One of the two grounds of appeal alleged that the minimum term was manifestly excessive. The appeal was dismissed. In Pedersen, I made these comments (with which McLure P and Mazza J agreed) about the sentencing judge's approach to the imposition of the minimum term [64]:

The appellant's behaviour after he killed the victim (that is, the criminal conduct the subject of counts 3 and 4) was, of course, different criminality from that embodied in the count of murder, but it reveals the appellant's state of mind on the day in question and the overall devastating consequences which the implementation of his plan occasioned. His Honour approached the sentencing for the murder, rightly in my opinion, on the basis that what happened before and after the killing were circumstances relevant to the commission of the murder. He took those circumstances into account in determining the appropriate sentence for the murder, but emphasised, correctly, that those circumstances would not be taken into account in sentencing for the other counts. That approach was appropriate.

1. The circumstances before and after the killing that were taken into account by the sentencing judge in Pedersen, in determining the appropriate sentence (in particular, the minimum term) for the count of murder, did not include the specific criminal acts upon which the other counts were founded.
2. In The State of Western Australia v Smith,[84] the respondent was charged with two counts. Count 1 alleged, relevantly, that on or about 27 June 2012 the respondent murdered the victim. Count 2 alleged, relevantly, that on 28 June 2012 the respondent wilfully and unlawfully damaged a dwelling, and that the dwelling was damaged by fire, contrary to s 444(1) of the Code. The respondent was convicted, after trial, of the count of murder. At the commencement of the trial, the respondent was convicted, on his plea of guilty, of the count of arson. The respondent murdered the victim in a home unit by stabbing him numerous times with a knife. The next morning the respondent set fire to the home unit and left the premises. The trial judge sentenced the respondent to life imprisonment with a minimum non‑parole period of 17 years for the murder offence. His Honour sentenced the respondent to 4 years 6 months' imprisonment for the arson offence. Both sentences were ordered to be served concurrently.
3. The State appealed against sentence on the sole ground that the minimum non‑parole period of 17 years was manifestly inadequate. The appeal was dismissed.
4. In this court, Martin CJ said [41]:

Because [the respondent] was sentenced to imprisonment for life for the offence of murder, obviously the sentence imposed for the offence of arson had to be served concurrently with the sentence imposed for murder. However, this does not lead to the conclusion that the sentence imposed in respect of the offence of arson is of no significance. Nor does it sustain the conclusion that [the respondent's] conviction for arson should result in the imposition of a longer period of imprisonment prior to eligibility for parole for the offence of murder. Nevertheless, conduct which is relevant to the offence of murder is properly taken into account in assessing the appropriate minimum term of imprisonment to be served ... for that offence [prior] to eligibility for parole. So, in this case, the finding of the trial judge that [the respondent] was motivated by a desire to conceal his involvement in the death of [the victim] at the time he set fire to the unit is a circumstance which aggravates the offence of murder and which is therefore properly taken into account when assessing the sentence imposed for that offence. However, aspects of the offence of arson which are discrete to that charge such as the extent of damage to property and the risk to safety created by the fire are relevant only to the sentence imposed in respect of that offence. Bringing those matters to account when assessing the minimum period of imprisonment to be served by [the respondent] prior to eligibility for parole for the offence of murder would, in effect, amount to double punishment (Pedersen v The State of Western Australia [2010] WASCA 175 [64] (Buss JA, McLure P & Mazza J agreeing)).

1. In the present case, each of counts 1, 2 and 3 was founded upon a different criminal act by the appellant. Further, each criminal act by the appellant caused harm to a single victim. No criminal act caused harm to more than one victim.
2. The specific criminal act upon which count 1 was founded involved the appellant attacking and stabbing Mr Nash several times with the broken glass pipe. His Honour punished that criminal act by imposing a sentence of 5 years' imprisonment.
3. The specific criminal act upon which count 3 was founded involved the appellant stabbing Mr Di Silvio on multiple occasions with the knives. His Honour punished that criminal act by imposing a sentence of 7 years' imprisonment.
4. In my opinion, it is apparent from the primary judge's comments which I have emphasised in the passage from his Honour's sentencing remarks set out at [224] above (in particular, his Honour's references to 'a course of violent conduct', 'such extended, persistent violence' and 'the broader context of violent behaviour') that:

(a) in determining the minimum non‑parole period for count 2, his Honour increased the 'starting point', before making any reductions for the mitigating factors, by taking into account each of the specific criminal acts upon which counts 1 and 3 were founded; and

(b) the minimum non‑parole period ultimately imposed by his Honour for count 2, namely 20 years' imprisonment, was higher than it would otherwise have been because his Honour took into account each of the specific criminal acts upon which counts 1 and 3 were founded.

1. I am satisfied that his Honour breached the rule against double punishment in that:

(a) his Honour punished the specific criminal act the subject of count 1 by imposing the sentence of 5 years' imprisonment and again punished that criminal act by increasing the minimum non‑parole period for count 2; and

(b) his Honour punished the specific criminal act the subject of count 3 by imposing the sentence of 7 years' imprisonment and again punished that criminal act by increasing the minimum non‑parole period for count 2.

1. Ground 3 has been made out.
2. In my opinion, the primary judge's express error in breaching the rule against double punishment was 'material' in that the error increased the actual minimum non‑parole period imposed by his Honour for count 2. It would have been sufficient, for the purpose of characterising the error as 'material', if the error was capable of affecting the actual minimum non‑parole period. It is therefore the duty of this court to exercise the sentencing discretion afresh. See Kentwell v The Queen.[85] As I will explain, I consider that a different and lower minimum non‑parole period should have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

1. It is unnecessary and inappropriate, in view of my opinion in relation to ground 3, to consider the merits of ground 1 because an allegation of manifest excess alleges an implied error by reference to the sentencing outcome and necessarily assumes that the sentencing judge did not make any material express error.

The outcome of the appeal and the resentencing of the appellant

1. I would grant leave to appeal on ground 3 and refuse leave on grounds 1 and 2. The appeal should be allowed.
2. The primary judge's sentencing decision in relation to count 2 should be set aside and the appellant resentenced by this court on that count.
3. This court has the material necessary to resentence the appellant.
4. As I have mentioned, by s 279(4) of the Code, relevantly, a person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless that sentence would be clearly unjust given the circumstances of the offence and the person, and the person is unlikely to be a threat to the safety of the community when released from imprisonment. I am satisfied that a sentence of life imprisonment would not be unjust in the present case given the circumstances of count 2 and the appellant.
5. I have considered numerous cases in which this court has heard and determined appeals against sentence for murder since the commencement of the Criminal Law Amendment (Homicide) Act 2008 (WA). I have taken into account the sentencing dispositions in the cases cited by counsel for the appellant and counsel for the State. Those cases are listed in Quinlan CJ's reasons. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
6. I am satisfied that Mr Harris' murder was a very serious example of offending of the kind in question. The very serious character of the offence is readily apparent from the facts and circumstances of the offending, including the aggravating factors enumerated by the primary judge in his sentencing remarks. There were, of course, mitigating factors as found by his Honour.
7. After taking into account:

(a) the facts and circumstances of the appellant's offending on count 2;

(b) the seriousness of the offending (including the vulnerability of Mr Harris);

(c) the sentencing considerations that are relevant to the determination of the non‑parole period where an offender is to be sentenced to life imprisonment for murder;

(d) the minimum non‑parole periods which have been imposed in previous cases, with at least some features comparable to this case, where offenders have been sentenced to life imprisonment for murder;

(e) the appellant's personal circumstances and antecedents;

(f) the aggravating factors;

(g) the mitigating factors; and

(h) all other relevant sentencing considerations,

I would fix a minimum non‑parole period of 17 years' imprisonment for count 2.

1. I have reduced the new minimum non‑parole period that I would otherwise have fixed in recognition of the mitigating factors.
2. The new sentence for count 2 of life imprisonment with a minimum non‑parole period of 17 years is backdated to 3 January 2023.
3. The sentences imposed by the primary judge for counts 1 and 3 stand.
4. The appellant will be eligible to be considered for release on parole upon having served 17 years in custody calculated from 3 January 2023.

1. I have had the advantage of reading the draft reasons of each of Quinlan CJ and Buss P. All of the relevant background has been set out in those reasons. It is unnecessary for me to recount that material.
2. I agree that the appellant's appeal against sentence must be allowed, and that the sentence imposed by Fiannaca J on count 2 be set aside. Like Quinlan CJ and Buss P, I would resentence the appellant on count 2 to life imprisonment, with a minimum non‑parole period of 17 years, backdated to commence on 3 January 2023. My reasons for these conclusions may be briefly stated as follows.
3. The appellant relies on three grounds of appeal. Grounds 2 and 3 allege express errors by the primary judge. Ground 1 alleges an implied error.
4. Ground 2 alleges that the primary judge erred in concluding that, at the moment he inflicted the fatal injuries on Mr Harris, the appellant intended to kill Mr Harris. On my independent review of all of the material relevant to this question, I do not have a reasonable doubt that the appellant intended to kill Mr Harris. While I accept that there was no premeditation, in the sense that the appellant planned to kill Mr Harris, his attack on him was frenzied, repetitive, and persistent, albeit over a relatively short period. The implement he used, a pair of scissors, was plainly capable of inflicting fatal wounds. The attack was concentrated on vulnerable areas of Mr Harris' body, and was carried out in such a way that his death was almost certain.
5. It is true that the appellant attacked Mr Harris while in a state of drug‑induced psychosis. However, such a state does not preclude the formation of an intention to kill. Indeed, the formation of an intention to kill may occur as a consequence of such a psychotic state.
6. Ground 2 has no reasonable prospect of succeeding. Leave to appeal should be refused.
7. Ground 3 alleges, in substance, that, in setting the minimum non‑parole period, his Honour infringed the principle against double punishment by, in effect, increasing the length of the minimum non‑parole period to take into account the appellant's offending against Mr Nash (count 1) and Mr Di Silvio (count 3). For the reasons given by Quinlan CJ and Buss P, this ground has been made out. As the error was, in my opinion, capable of affecting the actual minimum non‑parole period, this court's duty to sentence the appellant afresh is enlivened.
8. I would prefer not to decide ground 1. Ground 1 is premised on an assumption that the primary judge did not make any material express error. As the sentencing process before the primary judge was infected by a material express error, deciding ground 1 is, in my respectful view, hypothetical.
9. As to the resentencing of the appellant, the only issue is the length of the minimum non‑parole period. It has not been argued, nor could it be rationally argued, that the sentencing judge erred in imposing a term of life imprisonment.
10. Without doubt, the murder of Mr Harris was a serious example of its kind. A substantial minimum non‑parole period was required to be imposed. However, the appellant pleaded guilty to the offence at a very early stage in the proceedings. By doing so, Mr Harris' family, and those who were close to him, were relieved of the further trauma and uncertainty of a trial. The appellant is remorseful and likely amenable to rehabilitation. In all of the circumstances, the appropriate minimum non‑parole period is 17 years.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The State of Western Australia v Lester [2024] WASCSR 3 (Sentencing remarks) [171].

[6] Sentencing remarks [138] ‑ [140].

[10] Sentencing remarks [168] ‑ [170].

[12] Pedersen v The State of Western Australia [2010] WASCA 175 (Pedersen).

[13] The State of Western Australia v Lee [2013] WASCA 246 (Lee).

[14] Rosewood v The State of Western Australia [2014] WASCA 21 (Rosewood).

[15] Stinson v The State of Western Australia [2014] WASCA 72 (Stinson).

[16] The State of Western Australia v Smith [2015] WASCA 87; (2015) 250 A Crim R 468 (Smith).

[17] Zwerus v The State of Western Australia [2015] WASCA 174 (Zwerus).

[18] The State of Western Australia v Stoeski [2016] WASCA 16 (Stoeski).

[19] Corbett v The State of Western Australia [2016] WASCA 97 (Corbett).

[20] The State of Western Australia v Attwood [2020] WASCA 49 (Attwood).

[21] Sturniolo v The State of Western Australia [2023] WASCA 147 (Sturniolo).

[22] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 (Power v The Queen), 628 - 629 (Barwick CJ, Menzies, Stephen & Mason JJ); Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367 (Gibbs CJ, Murphy, Wilson, Brennan & Dawson JJ); Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 (Bugmy v The Queen), 530 ‑ 531 (Mason CJ & McHugh J), 536 (Dawson, Toohey & Gaudron JJ).

[23] Pedersen [40] (Buss JA; McLure P & Mazza JA agreeing); Smith [164] (Buss & Mazza JJA); Stoeski [42] (Buss JA; Mazza JA & Mitchell J agreeing); Attwood [63] (Buss P, Mazza & Beech JJA).

[24] Pedersen [42] - [43] (Buss JA; McLure P & Mazza JA agreeing); Smith [165] (Buss & Mazza JJA); Stoeski [43] (Buss JA; Mazza JA & Mitchell J agreeing).

[25] Bugmy v The Queen, 531 (Mason CJ & McHugh J). While Mason CJ and McHugh J dissented in the result in Bugmy v The Queen, this statement of principle is consistent with the holding of the majority.

[26] Bugmy v The Queen, 536 - 537 (Dawson, Toohey & Gaudron JJ) (citations omitted).

[27] Bugmy v The Queen, 537 (Dawson, Toohey & Gaudron JJ).

[28] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).

[29] Smith [166] - [167] (Buss & Mazza JJA); Stoeski [46] - [47] (Buss JA; Mazza JA & Mitchell J agreeing); Attwood [65] (Buss P, Mazza & Beech JJA); Sturniolo [297] (Quinlan CJ, Beech & Hall JJA).

[32] Pedersen [50(a)] (Buss JA; McLure P & Mazza JA agreeing); Zwerus [25] (Mazza JA; McLure P agreeing).

[34] Corbett [101] - [103] (citations omitted).

[35] Lee [54] - [56] (McLure P; Mazza JA & Hall J agreeing).

[39] Pedersen [45] (Buss JA; McLure P & Mazza JA agreeing).

[40] Greenland v The State of Western Australia [2017] WASCA 83 [114] - [115] (Newnes JA, Mazza JA & Beech J).

[41] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 (Dansie) [37] ‑ [38] (Gageler, Keane, Gordon, Steward & Gleeson JJ).

[42] Dansie [17] (Gageler, Keane, Gordon, Steward & Gleeson JJ).

[44] Luckman v The State of Western Australia [2024] WASCA 140 (Luckman v The State of Western Australia).

[45] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40] (McHugh, Hayne & Callinan JJ).

[46] Luckman v The State of Western Australia [73] - [74] (Quinlan CJ, Mazza & Hall JJA).

[47] Pedersen [64] (Buss JA; McLure P & Mazza JA agreeing).

[49] Lee v The State of Western Australia [2022] WASCA 137 [54] - [55] (Buss P, Mitchell JA & Livesey AJA).

[53] Criminal Appeals Act 2004 (WA), s 31(4).

[54] Miorada v The State of Western Australia [2022] WASCA 143 [43] (Buss P, Mazza & Hall JJA).

[55] Law v The State of Western Australia [2009] WASCA 193 [27] (Buss JA; McLure & Pullin JJA agreeing).

[56] R v Storey [1998] 1 VR 359, 369 ‑ 371 (Winneke P, Brooking & Hayne JJA & Southwell AJA).

[57] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25], [27] (Gleeson CJ, Gaudron, Hayne & Callinan JJ).

[58] Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91 [23] ‑ [27] (McLure P; Buss JA & Mazza J agreeing).

[59] Schmidt v The State of Western Australia [2013] WASCA 201 [160] ‑ [168], [172] (Buss JA).

[60] Clarke v The State of Western Australia [2018] WASCA 14 [226] ‑ [229] (Buss P; Mazza JA agreeing).

[61] Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418 [140] (Buss P & Mazza JA).

[62] Turner v The State of Western Australia [2021] WASCA 158 [31] (Buss P, Mitchell JA & Morrison AJA).

[63] Atherden v The State of Western Australia [2010] WASCA 33 [30] ‑ [31].

[64] Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502, 504 ‑ 505 (Mason CJ, Deane & Dawson JJ).

[65] Smith v The Queen [2017] HCA 19; (2017) 259 CLR 291 [7] ‑ [8] (Kiefel CJ, Bell, Gageler, Keane, Nettle & Gordon JJ).

[66] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 ‑ 629 (Barwick CJ, Menzies, Stephen & Mason JJ).

[67] Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367 (Gibbs CJ, Murphy, Wilson, Brennan & Dawson JJ).

[68] Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372, 396 (Gaudron & McHugh JJ).

[69] Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531 (Mason CJ & McHugh J).

[70] R v Chamberlain [2001] VSCA 159 [17] (Charles JA; Chernov JA agreeing).

[71] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).

[72] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).

[73] R v Jolly [1982] VicRp 4; [1982] VR 46, 49 (McInerney & Gobbo JJ), 51 ‑ 52 (Murray J).

[74] R v Taikmaskis (1986) 19 A Crim R 383, 384 ‑ 385 (Fullagar J).

[75] R v Mickelo [1993] 1 Qd R 230, 230 ‑ 231 (Williams J; Thomas & Derrington JJ agreeing).

[76] Lee Vanit v The Queen [1997] HCA 51; (1997) 190 CLR 378, 387 ‑ 388 (McHugh J).

[77] R v Pryor [2001] QCA 241 [29] (McMurdo P, Davies JA & Jones J).

[78] Fardon v Attorney‑General (Qld) [2004] HCA 46; (2004) 223 CLR 575 [180].

[79] R v Hoar [1981] HCA 67; (1981) 148 CLR 32, 38.

[80] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [27], [34] (Gummow, Callinan & Heydon JJ), [38] (Kirby J).

[81] Beekman v The State of Western Australia [2022] WASCA 130 [43] ‑ [46] (Buss P, Mazza & Mitchell JJA).

[82] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [24] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).

[83] Pedersen v The State of Western Australia [2010] WASCA 175.

[84] The State of Western Australia v Smith [2015] WASCA 87; (2015) 250 A Crim R 468.

[85] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42] (French CJ, Hayne, Bell & Keane JJ).