THE STATE OF WESTERN AUSTRALIA -v- RILEY [2024] WASCA 11 | Case summary

Court of Appeal (WA)|2024-02-02|Before: Buss P

This is a State appeal against sentence.
The respondent was convicted on his pleas of guilty of one count of aggravated threat to kill contrary to s 338B(1) of the Criminal Code (WA) (Code) (count 1), one count of aggravated assault occasioning bodily harm contrary to s 317 of the Code (count 2) and one count of aggravated deprivation of liberty contrary to s 333 of the Code (count 3). In each case, the circumstances of aggravation were that the respondent was in a family relationship with the victim and that the offence occurred in breach of a restraining order.
The respondent was sentenced to 14 months' imprisonment on count 1, 6 months' imprisonment on count 2 and 20 months' imprisonment on count 3. The sentences on counts 2 and 3 were ordered to be served cumulatively and the sentence on count 1 was ordered to be served concurrently. Accordingly, the total effective sentence was 2 years 2 months' immediate imprisonment.
The sentence was imposed on 20 October 2023 and was backdated to commence on 11 July 2022 to take into account time the respondent had spent in custody prior to sentencing. The non‑parole period of that sentence was completed on 10 August 2023. The respondent has not been released on parole. The sentence will be completed on 10 September 2024. The State filed the notice of appeal on 23 October 2023. On 24 November 2023, Buss P granted leave to appeal on the grounds contained in the appellant's case (filed on 23 November 2023) and made an urgent appeal order.
There are two grounds of appeal. The first ground, in essence, is that each of the individual sentences is manifestly inadequate. The second ground is that the total effective sentence of 2 years 2 months' imprisonment infringed the first limb of the totality principle. Leave to appeal on these grounds was granted by Buss P on 24 November 2023.
For the reasons that follow, the appeal should be allowed and the respondent resentenced.

The respondent has previously been in a relationship with AB and they have three children together. The children were aged 6, 4 and 3 at the relevant time. The respondent has a lengthy history of violent offending against AB. He was declared a serial family violence offender on 15 December 2021 as a result of that offending.[1]
On 12 May 2022, the respondent was released from custody after serving a sentence of imprisonment of 10 months for breaching a family violence restraining order protecting AB. On his release the respondent was on bail for other offending, also against AB. He also remained subject to the family violence restraining order. That order prohibited, amongst other things, any communication with AB, including by text message; any intimidatory, offensive or emotionally abusive behaviour towards AB; entering or approaching within 100 m of a house in Ballajura where AB was living; and approaching within 20 m of AB.[2]
On 29 May 2022, AB received text messages from the respondent's sister, Maryanne, asking if the respondent could come to the Ballajura house to see their children. AB replied, 'No'. At around 6.00 pm ‑ 7.00 pm the same day, AB heard a knock at a window of the house and heard the voice of Maryanne. Maryanne then came to AB's bedroom and began talking to AB about allowing the respondent to see the children.[3]
AB shared the Ballajura house with other members of her family, including her sister. She decided to go to her sister's bedroom to talk to her. While there she heard the respondent's voice inside the house. AB came out of her sister's room and saw the respondent talking to their children. The respondent asked, 'We can talk. Can we talk?' and AB responded, 'No'. The respondent said, 'I just want to talk' and 'just come over to the house'. AB understood this to be a reference to the respondent's family home in Midvale. She refused.[4]
AB had previously arranged with her family that if the respondent came to the Ballajura house, they were to immediately call the police, so she went outside to allow this to occur. Her children and some other family members followed her to the front of the house. Those at the front of the house included the respondent, and another sister of the respondent, Chelsea Turvey, who had come to the house with the respondent. The respondent continued asking AB to come to his family home and became angry when she refused.[5]
The respondent then went inside the house and returned holding a 20 cm bladed knife. He walked over to AB, who was standing further down the driveway and said, 'I'm going to kill you if you don't get in the car'. CCTV footage records the respondent in possession of the knife.[6]
The respondent raised the knife and hit AB once to the upper left forearm with it. It was not alleged that this movement caused any rupturing of the skin, however AB did feel immediate pain. The respondent then grabbed AB's forearms with his hands. She was smoking a cigarette at the time and when he grabbed her the cigarette fell from her mouth and onto her chest causing a small burn.
As this was occurring, the respondent was yelling at AB, 'Get in the car', 'I'll stab you like your dad did your mum' and 'I'm a butcher now and I slit animals' throats while they are alive'. The reference to AB's parents was to the fact that AB's mother had died as a result of being stabbed by her father.[7]
Ms Turvey stepped between the respondent and AB. Ms Turvey remonstrated with the respondent about his behaviour. The respondent then calmed down a little and apologised to Ms Turvey but not to AB.[8]
These events occurred in the presence of AB's children, who were outside. She was concerned for their safety and her own. She believed that the only thing she could do to keep herself and her children safe was to comply with the respondent's demands to get in the car. She believed that the respondent would kill her if she did not comply with his demands. The deprivation of liberty commenced at this point.[9]
AB got into the back seat of the car with her three children. The respondent sat in the front passenger seat, still armed with the 20 cm knife. Maryanne drove the car. They stopped the car at a bottle shop, and Maryanne drove around the car park whilst the respondent got out to purchase alcohol. He left the knife on the floor behind the passenger seat and AB was able to hide it in the pocket on the back of the passenger seat while he was out of the car. While the respondent was absent, Ms Turvey received a telephone call from another sister of the respondent, who told Ms Turvey that the police were looking for the respondent at his family's house.[10]
AB believed that she could not leave the car whilst the respondent was in the bottle shop as she could not leave her children in the car and it was unsafe to attempt an escape. Two of the children had sores on their feet and legs and she knew that the respondent would catch up with them if they tried to run. She decided it was safer to wait for the police to intercept them.[11]
The respondent got back into the car with a carton of alcohol. He said that the bottle shop attendant had tried to stop him, so he hit him. Maryanne then drove away from the bottle shop and toward the family home in Midvale. On arrival, a police car pulled in behind them and the respondent was arrested for breaching the violence restraining order. The deprivation of liberty that commenced when AB complied with the respondent's demands to get into the car ceased with the arrival of the police and the respondent's arrest.[12]
Police officers spoke to AB at the scene in the presence of the respondent's sister. AB felt unable to speak freely to the police as she did not want to say what had happened in front of the respondent's sister. When she got home at around midnight, AB called the Department of Communities and told an officer from that department what had happened. Two days later, on 31 May 2022, AB was observed to have bruising and soreness to her left forearm and a small burn on her chest.[13]
The respondent was arrested on 11 July 2022 and participated in an interview with police. He admitted that he had gone to AB's house to see his children. He knew that there was a restraining order in place and that he was supposed to stay away from AB and not talk to her. He said that one of the children was running around with a knife and he took it from the child and told AB to take it back inside. He said that AB probably thought he was trying to stab her because he was drunk. He denied being dangerous with the knife and said that the knife did not touch her. He said that he called AB a 'dumb bitch' because she was letting the children walk around with knives. He accepted that he might have threatened her by saying something like 'if he (the child) cuts himself, I'll cut you back'. He denied forcing AB to get into the car. The respondent did not maintain this position on his plea of guilty.

The respondent was 24 years old at the time of the offences and 25 years old at sentencing (shortly before his 26th birthday). He experienced significant dysfunction and disruption during his childhood, largely due to his parents' substance abuse, which resulted in him being taken into the care of his grandmother at the age of 4.[14]
The respondent has longstanding substance abuse issues (predominantly methylamphetamine) and was affected by alcohol at the time of the offences. He has not engaged with community‑based orders imposed for previous offences or made other efforts towards his rehabilitation.[15]
The respondent was assessed by a presentence report writer as posing a high likelihood of reoffending in a serious manner due to 'his continuation of concerningly violent behaviours and lack of regard for previous dispositions, including Court Orders'. The report also noted that the appellant had limited protective factors in the community, referring to unstable accommodation and negative peer and family associations.[16] However, it was submitted by the respondent's counsel that he had a new girlfriend, a job available in Northam and accommodation with his maternal grandmother, and the combined effect of these factors was that he would not reoffend against AB once released, nor further breach the restraining order.[17]
As noted earlier, the respondent has a lengthy criminal history, including a number of prior offences of which AB was the victim. Whilst not an aggravating factor, this history means that the respondent was not entitled to any mitigation for prior good character and is relevant in considering the need for personal deterrence.[18] The relevant prior offences can be summarised as follows.
On 5 September 2019, the respondent was sentenced in the District Court to 7 months' imprisonment, conditionally suspended for 12 months for one count of aggravated home burglary. This offence involved a home invasion‑type burglary by the respondent in breach of a family violence restraining order which prohibited him from attending at AB's home. When AB refused the respondent entry into her home, he ripped off a window security screen and fly screen in order to enter the home, forced a door off its hinges to reach AB (who was hiding in the toilet) and assaulted her. The respondent later breached the suspended imprisonment order by further offending against AB and was sentenced to serve 6 months of the suspended term on 13 October 2020.[19]
On 6 September 2019, the respondent was sentenced in respect of two offences of aggravated common assault, which occurred on 19 November 2017 and 18 March 2018. The second offence occurred during the aggravated home burglary referred to in the previous paragraph. Also on 6 September 2019, the respondent was sentenced in respect of six separate offences of breaching the family violence restraining order in relation to AB (as well as a number of other offences). Those breaches occurred on 18 March 2018, 19 May 2018, 7 June 2018, 21 June 2018, 1 August 2018 and 5 December 2018. He was fined $1,000 as a global fine for all of these offences, including the two aggravated common assault offences.[20]
On 12 November 2019, the respondent was sentenced for a further breach of the family violence restraining order in respect of AB, which had occurred on 28 October 2019. This breach offence occurred less than two months after the respondent had been placed on the conditional suspended imprisonment order on 5 September 2019.[21]
On 23 November 2019, the respondent breached the restraining order again (although he was not sentenced for this offence until 23 March 2021).[22]
On 12 June 2021, the respondent breached the restraining order again and was sentenced on 23 June 2021 to a fine of $750.[23]
The respondent committed six further offences of breaching the restraining order between 4 July 2021 and 13 July 2021. He also committed offences of trespass and aggravated common assault against AB on the same dates. He was arrested for these offences on 13 July 2021 and remanded in custody until being sentenced on 15 December 2021.[24]
On 15 December 2021, the respondent was sentenced to an overall sentence of 10 months' immediate imprisonment in respect of the six restraining order breach offences which he committed in July 2021. The sentence was backdated to commence on 13 July 2021. He was also declared a serial family violence offender at this time.[25]
As noted earlier, the respondent was not granted parole in relation to the sentence of 10 months' imprisonment and was released from custody on 12 May 2022. The respondent breached the restraining order again on 29 May 2022, by committing the offences that are the subject of this appeal. At that time, he was also on bail for alleged offending against AB (being the other offences that accompanied the July 2022 breaches). By this date, the respondent had accumulated 16 convictions for breaching the restraining order intended to protect AB.[26]

The sentencing judge referred to the following aggravating factors:[27]
1. The existence of a family violence restraining order that was in place to protect AB and the children. That restraining order was breached by the offending and that 'significantly elevates the severity' of the offences.
2. That the respondent was declared a serial family violence offender on 15 December 2021 for prior offending against AB, and the further offending indicates a 'disregard and contempt' for the rights of AB and the children to be safe from harm and shows that this type of behaviour is deliberate and persistent.
3. That the behaviour of the respondent appears to be escalating in nature notwithstanding the many and varied measures put in place to protect AB and the children.
4. That the respondent and AB had been in an intermittent relationship for some years, which means that the offending involved a breach of trust and that AB was vulnerable to this type of abuse.
5. That the offences took place in the presence of the children, who were aged 6, 4 and 3 at the time. Her Honour referred to the devastating adverse consequences on children who witness domestic violence within their home, particularly when the violence is perpetrated by their father against their mother.
6. The fact that the respondent was on bail at the time of the offences.
7. In regard to count 1, that at the time the threat was made the appellant was holding a knife, which would have elevated the level of intimidation and fear for the victim. It also meant that the respondent had the capability of carrying out his threat to kill AB and this caused her to genuinely fear for her life.
8. That the respondent made additional threats to harm the victim, including referring to the fact that her father had murdered her mother by stabbing her. The threat to stab AB in the same manner 'significantly elevates the severity of the offending' as it involved an 'additional level of terror, trauma and senseless cruelty inherent in such a threat'.
9. The trauma inflicted on the victim was significant. She was in a heightened vulnerable state because she was attempting to protect her three young children.
10. In regard to count 3, that the respondent retained possession of the knife whilst depriving the victim of her liberty, until she was able to move the knife to a different location in the car.
11. In regard to count 3, that the deprivation of liberty continued for about an hour and a half and only came to end due to the intervention of the police.
The sentencing judge referred to the following mitigating factors:[28]
1. That the respondent pleaded guilty, though not at the first reasonable opportunity. Her Honour allowed a 20% discount for those pleas.
2. That the respondent was aged 24 at the time of the offences and that some mitigation for youth should be allowed.
3. That the respondent had experienced a childhood marked by deprivation and exposure to his parents' substance abuse.
The sentencing judge noted that whilst the respondent's criminal record, including many prior offences against AB, was not an aggravating factor, it underscored the need for personal deterrence. Her Honour also noted that there was no evidence of remorse and that claims made in that regard were not consistent with the ongoing, repetitive nature of the offending against AB.[29]
The sentencing judge referred to the paramount importance of general and personal deterrence for offending of this nature. Her Honour said that the sentences must also reflect 'the appropriate degree of public denunciation of this kind of prevalent, abhorrent offending that exists in our community'.[30]
The sentencing judge said that in all the circumstances only a sentence of imprisonment was appropriate and that such a sentence was also justified in order to protect the community. Her Honour imposed the following sentences:[31]

There was no suggestion that any of the individual sentences was reduced for totality reasons. The sentencing judge took into account the totality principle in making orders as to accumulation and concurrency. Her Honour said that in her view the total sentence that properly reflected the overall criminality was 2 years 2 months' imprisonment. She achieved that by making the sentences on counts 2 and 3 cumulative and the sentence on count 1 concurrent. Her Honour considered whether the sentence should be suspended and was satisfied that it should not, as a suspended sentence would not achieve the objectives of personal and general deterrence.[32]
The sentence was backdated to commence on 11 July 2022 and an order was made that the respondent be eligible for parole. The effect of this was that the respondent was immediately eligible for release on parole, as by the time of sentencing he had already served 15 months' imprisonment. A lifetime family violence restraining order protecting AB was also made.[33]

The grounds of appeal are as follows:[34]

The sentencing judge erred in law by imposing individual sentences in relation to counts 1, 2 and 3 that were so inadequate as to manifest error having regard to:

(a) the maximum penalty for the offences;
>
> (b) the serious nature of the offences and the circumstances in which they were committed;
>
> (c) the need for the sentences to adequately reflect general and personal deterrence, as well as appropriate punishment for offending of this nature;
>
> (d) the personal circumstances of the respondent; and
>
> (e) the requirement that the sentences be consistent with the standards of sentencing customarily observed for offending of this nature.

The sentencing judge erred in law by imposing a total effective sentence of 2 years 2 months' imprisonment that infringed the first limb of the totality principle.

The State has a right to appeal against a sentence imposed on a person convicted of a charge pursuant to s 24(1)(a) of the Criminal Appeals Act 2004 (WA). An appeal against sentence depends on the appellant establishing error on the part of the primary court. Even if error is established this court may only allow the appeal if, in its opinion, a different sentence should have been imposed.[35]
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that the total effective sentence infringes the first limb of the totality principle, are well established. Those principles were summarised in Kabambi v The State of Western Australia:[36]

(1) Sentencing is a discretionary exercise. 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.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

The relevant sentencing principles in relation to offences involving domestic violence were referred to in The State of Western Australia v Chungarai.[37] In Chungarai, this court emphasised the importance of general deterrence and recognised that sentences for offences committed in the course of domestic violence have firmed up. The court then said:[38]

There is no doubt that the incidence of violent assaults by men on vulnerable victims (mostly women) who are in domestic relationships with them, means that general deterrence is an important sentencing consideration in offences of this kind. In Bropho v Hall,[39] Mitchell J (as his Honour then was) discussed the impact of the aggravating factor of an assault committed in the context of a domestic relationship. His Honour rightly said:

'The fact that the aggravating assault occurred in a domestic setting is a significant aggravating factor of the offence. An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing in mind a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner.'

In Chungarai, the court also recognised the significance of the presence of children as an aggravating factor. In this regard, the court said:[40]

The courts have long recognised that an offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated or angry. The commission of violent offences in the presence of a child thereby exposes the child to the risk that the cycle of violence may extend to another generation. It is reasonable to expect that this risk is magnified where, as here, the offender and the victim is each a parent of the child, as those circumstances tend more strongly to normalise violence from the child's perspective.

The State submits that each of the individual sentences was not commensurate with the seriousness of the offence and was manifestly inadequate. The State submits that the sentences were not consistent with sentences imposed in comparable cases. The State refers to Chungarai in respect of counts 1 and 2; Duncan v The State of Western Australia in respect of count 2; and The State of Western Australia v TIK;[41] Cook v The Queen;[42] Pureau v The State of Western Australia;[43] and Iveson v The State of Western Australia[44] in respect of count 3.[45]
The State submits that the need to firm up sentences for offences committed in the course of domestic violence is well known. The legislative amendments that increased the maximum penalty for deprivation of liberty when committed in circumstances of aggravation to 14 years' imprisonment, including where the offence is committed in a family relationship, is said to illustrate the seriousness of deprivation of liberty in the context of a family relationship.[46]
The State submits that in the present case, the aggravated deprivation of liberty committed by the respondent was very serious. It was committed during a very serious domestic assault, in breach of a restraining order whilst the respondent was on bail for previous offending against the victim and in the presence of their children. General deterrence and denunciation of the respondent's offending were significant sentencing considerations. The protection of vulnerable women requires a sentence that makes it clear to the community that engaging in this type of behaviour will not be tolerated. Personal deterrence was also a significant consideration given the respondent's recidivist pattern of offending against the victim in breach of restraining orders protecting her and their children.[47]
The respondent submits that the threat was of short duration and that shortly after it was made, Ms Turvey stepped in to reprimand the respondent, who apologised to her. The assault involved a sudden and momentary act that was intended to intimidate rather than inflict injury and the injury that did occur was minor in nature. The seriousness of the deprivation of liberty is said to be reduced by the fact that there was no use of violence whilst AB was in the car, nor were any further threats made. The respondent also notes that Ms Turvey, who had previously intervened, was also in the car and that this may have provided some comfort to AB. In these circumstances, it is submitted that each of the sentences imposed by the sentencing judge was consistent with the seriousness of the offending.[48]

The maximum penalties for each of the offences are as follows:

Aggravated threat to kill - s 338B(1)(a)(ii) of the Code

Aggravated assault occasioning bodily harm - s 317(1)(a) of the Code

Aggravated deprivation of liberty - s 333(a) of the Code

Each of the offence provisions appears in pt 5 of the Code. For the purposes of pt 5, a circumstance of aggravation is a circumstance in which an offender is in a family relationship with the victim, where a child is present when the offence was committed, where the conduct of the offender in committing the offence constitutes a breach of a restraining order, or where the victim is of or over the age of 60 years.[49] Where the offences are committed in circumstances of aggravation, a significantly higher maximum penalty applies. In contrast, the maximum penalty for making a threat to kill unaccompanied by circumstances of aggravation is 7 years' imprisonment (other than in the case of circumstances of racial aggravation, which is not relevant here). The maximum penalty for assault causing bodily harm unaccompanied by circumstances of aggravation is 5 years' imprisonment. The maximum penalty for deprivation of liberty unaccompanied by circumstances of aggravation 10 years' imprisonment. This illustrates the significance of circumstances of aggravation and the increased seriousness of such offences.
The maximum penalty for aggravated deprivation of liberty was introduced in 2020 when s 333 of the Code was deleted and replaced with the current section. This indicates the intention of Parliament that sentences should increase in cases where deprivation of liberty occurs in circumstances of aggravation, including where the offender is in a family relationship with the victim. This change formed a part of reforms to the criminal law intended to address concerns regarding the prevalence of domestic violence.[50]
As to the seriousness of the offences, the sentencing judge accurately identified the many aggravating factors that accompanied this offending. Significant factors included that these offences involved breaches of a restraining order, that they were committed in the presence of young children and that they were committed in the context of a family relationship.
The threat to kill was made while the respondent was intoxicated, agitated and armed with a knife. The references to his employment killing animals in an abattoir and to the fact that AB's father had killed her mother by stabbing her, added a chilling and very personal edge to the threat. The respondent clearly intended to intimidate and terrify AB. The threat was made with the purpose of getting AB to comply with his demand that she come with him. He achieved that objective. The threat was a serious example of this type of offence.
The assault did not result in serious injury, but that was probably fortuitous given that the respondent struck AB with the hand in which he was holding the knife. This must have conveyed to AB the ability and willingness of the respondent to stab her if he wanted to do so. Again, the assault occurred whilst the respondent was demanding that AB go with him. The use of violence to reinforce such a demand places it into its proper context. The assault was at least a moderately serious example of its type for these reasons.
The deprivation of liberty continued for about one and a half hours. During most of this time AB was essentially trapped in a car with the respondent. The knife was also in the car and accessible, at least until AB placed it into the pocket behind the seat. AB's vulnerability was increased by the fact that her young children were also in the car. She had no realistic opportunity to escape and had to rely on the hope that her family had contacted the police. The fact that two of the respondent's sisters were also in the car, including Ms Turvey, could only have provided meagre comfort to AB. The respondent's statement that he hit the bottle shop employee who tried to stop him taking a carton of alcohol conveyed his continuing willingness to use violence. The deprivation of liberty only came to an end because the police attended as soon as the car arrived at the Midvale house. The deprivation of liberty was a very serious example of its type.
The personal circumstances of the respondent provided little by way of mitigation. His history of deprivation as a child was a relevant consideration, but not one that in any way excused or lessened the seriousness of the offences he committed. Youth was a factor that, at the age of 24 at the time of the offences, could only have very limited significance. There was no genuine remorse. The only mitigating factor of any great significance was the respondent's pleas of guilty. The sentencing judge allowed a 20% discount for those pleas.
As to comparable cases, as regards the threat offence, in Chungarai, the offender was sentenced to 12 months' imprisonment for an offence of threat to kill. The factual circumstances of the offence were broadly similar to the present offence. The offender in Chungarai received a discount of 10% for his plea of guilty, but he had, unlike the respondent, made real efforts towards his rehabilitation by engaging in intervention programmes for drug and alcohol addiction, as well as domestic violence. A State appeal against the sentence was allowed and a sentence of 22 months' immediate imprisonment was substituted for that offence. At the time of the offence in that case, the lower maximum penalty of 7 years' imprisonment applied.
As regards the assault offence, in Duncan, the offender was convicted after trial of assault occasioning bodily harm and was sentenced to 3 years' imprisonment. The maximum penalty applicable to that offence was 5 years' imprisonment. The offender in that case had a serious prior record of violence. He repeatedly kicked his partner to the head, face and body, grabbed her by the hair and dragged her along whilst he punched her. The bodily harm was a superficial laceration and substantial bruising. Whilst the assault in that case was more protracted than the present case, there was no use of a weapon and no children were present. An application for leave to appeal against the sentence of 3 years' imprisonment was refused.
In Chungarai, the offender was also dealt with for an offence of aggravated assault occasioning bodily harm. At first instance, a sentence of 2 years' imprisonment had been imposed for this offence. The assault in that case was more serious than the present case in that it was more protracted and involved the infliction of multiple bodily injuries. However, there were similarities in that the assault was committed in the presence of a child and in the context of a domestic relationship. It also occurred in the context of a threat to kill and deprivation of liberty. On appeal, the sentence for the assault was increased to 3 years 9 months' imprisonment.
As regards deprivation of liberty, in TIK, this court noted that sentences for deprivation of liberty in six other cases had ranged from 1 year 4 months' imprisonment to 3 years 4 months' imprisonment, with two of the sentences being imposed post‑trial and four being imposed after pleas of guilty.[51]
In Cook, a case decided over 20 years ago, a total effective sentence of 6 years 5 months' imprisonment was imposed after trial for offences of armed robbery and deprivation of liberty. The sentence for the deprivation of liberty was 2 years' imprisonment concurrent (the equivalent of 16 months' imprisonment in post‑transitional terms) and related to the offender tying a woman's hands with tape and tying her to a chair to prevent her from escaping after he had entered the premises in order to steal takings from the business. The offender had relatively good antecedents and his contention was that the sentencing judge did not take that into account, or gave it insufficient weight. Leave to appeal was refused.
In Pureau, a sentence of 3 years' imprisonment was imposed after trial for deprivation of liberty (reduced from 3 years 6 months' imprisonment for reasons of totality) for an offence that continued for five hours and where the victim was assaulted and threatened by three people. The victim in that case was the offender's partner. For part of the time, the offender deprived the victim of her liberty by shutting the door of a room before threatening to kill her and hitting her thumb with a taser. He also followed her around the house and indicated that she could not leave. At the time, he was armed with a taser and had a knife strapped to his leg. The offender in that case was aged 24 at the time of offending and had one prior conviction for violence, an assault occasioning bodily harm against a previous partner, for which he had received a fine. Leave to appeal against the sentence imposed for the deprivation of liberty offence was refused.
In Iveson, the offender received a total effective sentence of 4 years 10 months' imprisonment for offences that occurred in a domestic violence context, including deprivation of liberty. The offender was aged 21 at the time of sentencing and pleaded guilty at the earliest opportunity, for which he received a 25% discount on his sentence. At the time of sentencing, he was serving an 8 month term for unrelated offending. The deprivation of liberty related to the offender preventing the victim from running out of the front door after assaulting her and then shutting the door with one hand whilst choking her with his other hand. The individual sentence for the unlawful detention was 2 years' imprisonment. Leave to appeal was refused and the court characterised the offences, including the deprivation of liberty, as very serious.
The comparable cases in relation to deprivation of liberty all relate to offences occurring before the amendment to introduce the higher penalty for the aggravated form of the offence.
This case clearly required that significant weight be given to personal deterrence. The respondent has a deplorable history of offending against AB. He has shown disregard, if not frank contempt, for court orders put in place to protect AB. He is driven by a misplaced sense of entitlement that puts the continued safety of AB at real risk. That risk was confirmed by the assessment in the presentence report.
General deterrence also looms large in cases of this type. Domestic violence is a scourge on society. Awareness of this type of offending and concern to prevent it have grown markedly in recent years. Persistent violence and intimidation in the context of family relationships must be strongly discouraged by appropriate sentences.
Domestic violence can include physical injury, psychological injury and emotional trauma. It affects mainly women and children. In the present case, the respondent physically, psychologically and emotionally abused AB. The abuse occurred in the context of an obvious imbalance of power. The respondent's offending included behaviour that was calculated to intimidate, coerce and control AB. Denunciation of the respondent's criminal conduct, in addition to personal and general deterrence, was an importance sentencing consideration. See, generally, The State of Western Australia v LSM.[52]
In this case the sentencing judge correctly identified the aggravating and mitigating factors and the importance of general and personal deterrence. However, the sentences imposed by her Honour did not properly reflect those factors. Nor did they adequately reflect the maximum penalties for these offences, bearing in mind that each of them was committed in circumstances of aggravation.
When the maximum penalties for each of the offences, the seriousness of the offences, the personal circumstances of the respondent and comparable cases are considered it is apparent that the sentences imposed for each of the offences are not merely lenient, they are plainly unreasonable or unjust. The State has established that those sentences are manifestly inadequate.

The appellant contends that as result of the manifestly inadequate sentences imposed for counts 1, 2 and 3, and despite the order that the sentence on count 2 be served cumulatively on that for count 3, the total effective sentence of 2 years 2 months' imprisonment failed to properly reflect the overall seriousness of the respondent's offending.[53]
The appellant submits that the total effective sentence fell well short of bearing a proper relationship to the overall criminality involved in the offending, having regard to all relevant facts, circumstances and all relevant sentencing factors. Significant weight had to be given to denunciation of the respondent's criminality and to personal and general deterrence. The total effective sentence was unreasonable and plainly unjust, being substantially less than the total sentence that was open to her Honour on a proper exercise of the sentencing discretion.[54]
The respondent submits that the offences all arose from a single incident which involved the respondent seeking access to his children. The offending lasted less than one and a half hours and the respondent had also been dealt with separately for breaching the restraining order, which resulted in a fine (and the taking into account of some of the time that had been spent in custody, for which the respondent did not receive further credit).[55]
The respondent submits that in making counts 2 and 3 cumulative, the sentencing judge imposed a total effective sentence that properly reflected the overall criminality of the offending. The respondent also submits that the deprivation of liberty was less serious than in the comparable cases referred to by the State.[56]

The manifest inadequacy of the individual sentences contributed to a total effective sentence that failed to adequately reflect the overall criminality of the respondent's offending conduct. Notwithstanding that the offending all occurred as part of the same incident, each offence was a separate act, and some degree of accumulation was required to reflect the total criminality. The respondent used a threat to kill while armed with a knife and violence to deprive the victim of her liberty. The aggravating factors applied to all of the offending and needed to be reflected in the total sentence. The total effective sentence of 2 years 2 months was plainly unreasonable or unjust.

This court has a residual discretion not to interfere with a primary judge's exercise of the sentencing discretion in the context of a State appeal notwithstanding that appellable error has been established: see s 31(4)(a) of the Criminal Appeals Act 2004 (WA). A respondent to a State appeal against sentence does not bear an onus to establish that the residual discretion should be exercised in his or her favour. Rather, it is incumbent on the State to satisfy this court that the residual discretion should not be exercised.[57]
The difference in the approach between offender appeals against sentence and State appeals against sentence is explicable by the purpose underpinning each category of appeals. Offender appeals are concerned with the correction of error in the particular case. State appeals are concerned with establishing principles for the guidance of sentencing judges.[58]
In the present case, counsel for the respondent referred to the fact that the respondent had already served a significant portion of the sentence, though it was accepted that this was because that sentence had been backdated. There was no suggestion that the respondent had made any real progress towards rehabilitation during his time in custody. There was no delay by the State in bringing the appeal.
Intervention in the present case is necessary to maintain proper standards of sentencing. Appellable error has been clearly established and the public interest in maintaining appropriate sentencing standards for serious offending of the type committed here weighs strongly against the exercise of the residual discretion.

Each of the individual sentences was manifestly inadequate. The total effective sentence infringed the first limb of the totality principle in that it failed to reflect the overall criminality of the respondent. The individual sentences and the total effective sentence were plainly unreasonable or unjust. Both grounds have been established. The appeal must be allowed, and the respondent resentenced.

The facts of the offending and the personal circumstances of the respondent have been set out earlier. It is unnecessary to repeat them. Counsel for the respondent said that there were no matters that have occurred since the sentencing that needed to be taken into account. Like the sentencing judge we would allow a discount of 20% for pleading guilty, noting that the quantum of the discount was not the subject of challenge by the State.
No sentence other than immediate imprisonment is appropriate. The offences are too serious to permit a suspended sentence to be imposed. Having regard to the maximum penalties, the seriousness of the offences, the personal circumstances of the respondent and the importance of personal and general deterrence, the appropriate individual sentences are 2 years 6 months' imprisonment on count 1, 12 months' imprisonment on count 2, and 3 years' imprisonment on count 3.
The appropriate total effective sentence is 4 years 6 months' imprisonment. We would achieve that by reducing the sentence on count 1 to 18 months' imprisonment for totality reasons only and making the sentences on counts 1 and 3 cumulative on each other and the sentence on count 2 concurrent.
Given the respondent's prior history there is a real question as to whether eligibility for parole is appropriate. He has shown little interest to date in rehabilitation or reform. The risk of reoffending if he does not change his attitudes and behaviour is high. However, he is still a relatively young man and will have opportunities in prison to engage with programs should he wish to do so. The possibility of parole may act as an incentive to undertake programs. In these circumstances an order that the respondent be eligible for parole should be made.

The appeal is allowed.
The sentences imposed in the District Court on IND 1031 of 2023 are set aside.
In lieu thereof, the respondent is sentenced as follows:

The sentences on counts 1 and 3 are to be served cumulatively on each other and the sentence on count 2 is to be served concurrently with count 3. The total effective sentence is 4 years 6 months' immediate imprisonment. That sentence is deemed to have commenced on 11 July 2022. The respondent is eligible for parole.

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

[15] Presentence report, 29 August 2023, page 2.

[16] Presentence report, 29 August 2023, pages 1 - 2.

[36] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[37] The State of Western Australia v Chungarai [2021] WASCA 147. See also Gomboc v The State of Western Australia [2023] WASCA 115 [190] - [193].

[38] Chungarai [57] quoting Duncan v The State of Western Australia [2018] WASCA 154 [40].

[39] Bropho v Hall [2015] WASC 50 [16]. Also referred to with approval in Gillespie v The State of Western Australia [2016] WASCA 216 [48].

[41] The State of Western Australia v TIK [2009] WASCA 122.

[42] Cook v The Queen [2001] WASCA 16.

[43] Pureau v The State of Western Australia [2017] WASCA 115.

[44] Iveson v The State of Western Australia [2005] WASCA 25.

[50] Western Australia, Parliamentary Debates, Legislative Assembly, 27 November 2019, 9427 (Mr JR Quigley, Attorney General).

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

[57] CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34] (French CJ & Gageler J).

[58] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1] (French CJ, Crennan & Kiefel JJ); CMB [55] (Kiefel, Bell & Keane JJ).

THE STATE OF WESTERN AUSTRALIA -v- RILEY [2024] WASCA 11 (2 February 2024)

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Legislation Cited (1)

Cases Cited (2)