THE STATE OF WESTERN AUSTRALIA -v- WINCH [2024] WASCA 79 (3 July 2024)

[2024] WASCA 79

Court of Appeal (WA)|2024-07-03|Before: Mitchell JA

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Source facts

Court

Court of Appeal (WA)

Decision date

2024-07-03

Before

Mitchell JA

Source

Original judgment source is linked above.

Judgment (108 paragraphs)

[1]

Over a period of about eight years, the respondent subjected his wife to repeated assaults, and on several occasions, made serious threats of violence toward her. On most of those occasions, the respondent was drunk. On the morning of 26 September 2023, which was to be the first day of his trial in the District Court, the respondent pleaded guilty to an offence of persistently engaging in family violence, contrary to s 300 of the Criminal Code (WA) (Code). On 1 February 2024, the respondent was sentenced to 2 years and 3 months' immediate imprisonment. An order was made that the respondent was eligible to be considered for release on parole and a lifetime family violence restraining order was made to protect the victim.
The State now appeals against the sentence imposed on the respondent, arguing that the sentencing judge made a material error of fact in relation to the conditions under which the respondent was required to serve his sentence of immediate imprisonment. The State also contends that the sentence of 2 years and 3 months' immediate imprisonment is manifestly inadequate.
The State applied for and was granted an urgent appeal order. Further, on 22 April 2024, Buss P granted the State leave to appeal on the grounds of appeal contained in the appellant's case dated 17 April 2024.
By an application dated 17 May 2024, the respondent applied for leave to adduce additional evidence in the event that the court was otherwise minded to allow the appeal, in support of a contention that it should exercise its residual discretion to dismiss the appeal or on the basis that it was relevant to resentencing. In that regard, the respondent filed an affidavit that he swore on 15 May 2024 and a further affidavit sworn by the respondent's solicitor and counsel, on 16 May 2024 (the Additional Evidence). That application was granted at the hearing of the appeal.
For the following reasons, the appeal should be allowed, and the respondent should be resentenced to 5 years and 8 months' imprisonment.

[30]

As can be seen, s 300(1) of the Code creates an offence of persistently engaging in family violence, which attracts a maximum penalty of 14 years' imprisonment, or a maximum penalty of 3 years' imprisonment and a fine of $36,000 if dealt with summarily.
A person 'persistently engages in family violence' if they do an 'act of family violence' on three or more occasions, each of which occurs on a different day, against the same person, and over a period that does not exceed 10 years (s 299(5)). Relevantly, a person does an 'act of family violence' if they do an act that would constitute a 'prescribed offence' in relation to another person with whom they are in a 'designated family relationship' (s 299(4)).
A 'prescribed offence' is an offence against s 221BD, s 298, s 301, s 304(1), s 313, s 317, s 317A, s 323, s 324, s 338B, s 338C, s 338E or s 444(1)(b) of the Code, or an attempt to commit such an offence; or an offence against s 61(1) or s 61(1A) of the Restraining Orders Act 1997 (WA) (s 299(1)).
A 'designated family relationship' means a relationship between two people who are, or were, married to each other, or in a de facto relationship, or otherwise had an 'intimate personal relationship' with each other (s 299(1)). An 'intimate personal relationship' exists if the two people are engaged to be married to each other, including a betrothal under cultural or religious tradition, or they date each other, or have a romantic involvement with each other, whether or not a sexual relationship is involved (s 299(2)). In deciding whether an 'intimate personal relationship' exists, s 299(3) identifies several matters that may be taken into account, including the circumstances of the relationship, the period of time over which it existed, the frequency of contact between the two people in the relationship, and their level of intimacy.
Although a charge of persistently engaging in family violence must specify the period during which it is alleged that the acts of family violence occurred, there is no need to specify the dates, or in any other way particularise the circumstances of those acts (s 300(2)), and the prosecutor cannot be ordered to provide further particulars (s 300(5)). The prosecution may charge an accused with both an offence against s 300(1) and a prescribed offence alleged to have been committed during the same period (including a prescribed offence constituted by an act or acts that are alleged to make up the offence under s 300(1)) (s 300(4)).[1] However, other provisions operate to protect an accused from double jeopardy and the prospect of double punishment (s 300(8)).
As explained in the Explanatory Memorandum to the FVLR Bill:

[47]

A pre-sentence report was prepared by a Community Corrections Officer for the purposes of sentencing. The writer of the report was highly critical of the respondent, noting that although he had engaged during his interview with her, he also consistently minimised or denied his violent behaviours. According to the report, the respondent thought that both he and the victim were to blame for the breakdown of their relationship, and he tended to focus on his own financial and mental strains. The respondent told the writer of the report that the threats he had made to kill the victim were made in 'jest', and that the victim 'knows his sense of humour'. He was also adamant that his behaviour throughout the relationship was a reaction to the victim's own behaviour, and he presented with 'a victim stance', claiming that the victim was financially abusive, jealous, and controlling.
The respondent said that he would be unlikely to benefit from a family violence program because he understood the dynamics of family violence. However, he agreed to attend such a program if directed, and expressed a willingness to continue to engage with services that supported his mental health and alcohol abuse issues. According to the writer of the report, the respondent presented with several 'protective factors', including stable accommodation, family support, employment and proactive engagement with mental health and substance abuse assistance.
The sentencing judge also had the benefit of an oral pre‑sentence report delivered by a Corrective Services employee, who provided information about whether the prison authorities were able to manage prisoners who were detoxifying from an alcohol addiction. According to the oral report, the respondent could expect to receive immediate medical support upon reception at the prison to assist in reducing the effects of withdrawal from alcohol. It was explained that there is a great risk that a person who is detoxifying from alcohol may suffer life‑threatening seizures. However, it was also explained that the prison authorities manage detoxification very well and that if something occurred that was beyond the expertise available in the prison, the person would be removed from the prison to receive the required specialist care. The sentencing judge was also informed that if the respondent was still experiencing chronic withdrawal symptoms at the end of the treatment provided in prison, the treatment would be extended until any symptomatology had passed.
The respondent would also have the opportunity to engage in group programs, such as Alcoholics Anonymous, whilst serving a sentence of imprisonment. However, her Honour was told that while prisoners have some access to an attending psychiatrist, the confidential prison counselling service was not operating other than in extreme cases. Her Honour was also informed that whether the respondent had access to the medication he had been prescribed for attention deficit hyperactivity disorder (ADHD) would be a decision for the prison doctor, but that non‑stimulant medications are preferred in the custodial environment. The sentencing judge was told that any difficulties that the respondent might experience from suddenly ceasing stimulant medication would be closely monitored.

[51]

The respondent was 52 years of age at the time of sentencing, and was between the ages of about 40 and 48 years during the period that he committed the offence. The sentencing judge found that the respondent had a relatively uneventful upbringing, and that his family were supportive.
The respondent has one child from a previous relationship. The sentencing judge appeared to find that one of the reasons for the 'stresses in the relationship' with the victim were the issues the respondent was having in relation to making arrangements for having contact with, and providing support for, that child.
The respondent finished school after year 11 and began working in an electrical trade. He had a stable employment history, and his current employer described him as thorough and diligent.
The respondent had been an alcoholic for a long time, although there had been some periods of abstinence in his life. The sentencing judge noted that the respondent had been making efforts to reduce his alcohol intake. However, even at the time of sentencing, which occurred over four years after his relationship with the victim had finally ceased, the respondent was still drinking alcohol every day.
Her Honour also observed that the respondent had not made any efforts to obtain treatment for emotional regulation and to deal with his use of violence towards women. As a result, the sentencing judge expressed some doubt about whether the respondent appreciated that the underlying reasons for his offending were not limited to his abuse of alcohol.
The sentencing judge accepted that the respondent had ADHD and anxiety issues, and that he was first diagnosed with depression when he was 28 years of age. Her Honour also noted that the respondent had previously made serious suicide attempts, most recently in October 2023.
The respondent has a criminal record, which included offences of aggravated common assault and aggravated assault occasioning bodily harm, as well as several convictions for offences of breaching a violence restraining order. A number of those offences were committed during the period the respondent persistently engaged in family violence against the victim. Further, one of the offences of breaching a violence restraining order was committed in June 2022, which was not long after the end of that period. The respondent's conviction for aggravated common assault and conviction for breaching a violence restraining order related to another woman with whom he had a previous relationship.
The sentencing judge was provided with some written character references from the respondent's employer, as well as from his current partner and her daughter, all of whom said positive things about the respondent.

[54]

After setting out her findings about the respondent's offending conduct, the sentencing judge then noted that although that conduct had occurred over about eight years, the respondent had taken no real steps to change his behaviour. Her Honour also noted that the offending took place in the context of a family relationship, although she reminded herself that the offending was not aggravated on that account because it was, in effect, an element of the offence.
The sentencing judge found that the violence used by the respondent was 'towards the lower end of the scale in terms of physical violence and physical outcomes for the victim',[9] although her Honour also said that this did not mean that it was 'at the lowest end', and accepted that there were 'aspects of [his] offending that [were] degrading to the victim'.[10] She also noted that the respondent's threats invoked fear in the victim, and his use of weapons was a serious aspect of the offending. The sentencing judge had regard to the victim impact statement and concluded that the impact on the victim had been 'far ranging'.[11]
The sentencing judge also made findings about the respondent's personal circumstances, which we have already summarised earlier in these reasons.
After referring to the pre-sentence report and noting that it did not 'paint a flattering picture of [the respondent]', her Honour found that the respondent was at a high risk of re-offending, having regard to his abuse of alcohol, his mental health issues, and his treatment needs. Her Honour also noted that there was a need to impose a punishment on the respondent that deterred him from behaving in this way again.
The sentencing judge took into account the fact that the respondent had pleaded guilty and afforded him a 12% discount on the sentence she would otherwise have imposed in accordance with s 9AA of the Sentencing Act 1995 (WA). Her Honour was prepared to accept that there was 'an aspect of remorse'[12] based on the respondent's plea of guilty and on the submissions that had been made on his behalf by his counsel. She also took into account the fact that the respondent was making some efforts to deal with his alcohol abuse, and the fact that he was otherwise a useful member of the community having particular regard to his work history.
Her Honour made mention of the fact that the respondent would need to detoxify from his abuse of alcohol while he was in custody serving his sentence. As her Honour's findings about this issue are the subject of ground 1 in the appeal, it is necessary to set out the relevant parts of her Honour's remarks in full:[13]

[55]

I will take into account that your initial time in custody if [I] sentence you to a term of imprisonment will be difficult. No doubt detoxifying from alcohol is going to be an incredibly scary, challenging and medically dangerous thing.

Doing it in custody is probably one of the worst places anyone could imagine to have to go through that. No doubt you'll be vulnerable for that period of time, in pain and scared and hurting [in] a custodial environment, particularly if you've never been sentenced to imprisonment before which you have not will be a very difficult place to go through that.

I am told that the prison will manage that as best as they can. It seems to be different in relation to how it would occur if you were in the community. The State says I have no evidence that it will be more difficult. I don't accept that submission.

I can as a matter of absolute common sense accept that it must be the worst place or one of the worst places to detoxify and it's not just whether or not it's medically more difficult, but whether it will be emotionally and mentally more difficult.

If one is detoxifying in the community one doesn't have to worry about their own safety. In the prison environment when they're at their most vulnerable as one might have to in a prison environment, that's just one way in which it would be a lot harder.

So what I'm told, though, is that the physical detoxification, it might take five, 10, even if it's 15 days, [is] going to be a short period of time comparative to what a sentence might be, but it's only going to be one part of withdrawing from alcohol.

There's obviously the long-term counselling and support you'll need. Whilst the prison will have programs such as [Alcoholics Anonymous] and instructive programs, it is very disappointing to hear that there is no counselling service available in the prison so I'm prepared to take into account as a mitigating factor that your time in custody in terms of your detoxification will be more onerous and that your rehabilitation will be more onerous than if you had been in the community.

Now, that doesn't mean it's going to be more onerous than for other prisoners. No doubt you're not the only person who might go to prison with a history of alcoholism and tragically a very large part of the prison population has addiction issues and they're all no doubt suffering from the lack of services in prison, but I accept that it will be harder than being in the community to detoxify.

[68]

The State argues, in effect, that the seriousness of an offence contrary to s 300 falls to be assessed by reference to the range of acts and the consequences of those acts that are capable of attracting criminal liability under that provision. It is submitted that the offending targeted by s 300 is the repeated and persistent use of violence and intimidation (including violence directed at property) that occurs in the context of family relationships, regardless of whether the acts result in the infliction of significant physical injury. The State submits that as domestic violence can also result in psychological injury and emotional trauma, the seriousness of an offence contrary to s 300 depends on more than the physical injuries that a victim may have suffered as a consequence of an individual instance of violence.
The State submits that the offence committed by the respondent was at least in the mid-range of seriousness for an offence contrary to s 300 of the Code, having particular regard to the significant number of 'acts of family violence', as well as the long period of time over which, and the broader context in which, the offence was committed. In that regard, the State relies on the fact that the sentencing judge found that the acts constituting the offence reflected a relationship marred by violence, which were representative of a broader course of conduct that continued despite violence restraining orders and police orders. The State also draws attention to the seriousness of several of the 'acts of family violence' constituting 'prescribed offences', including those that involved non‑fatal strangulation, the use of weapons, and those that degraded the victim.
The State submitted that notwithstanding the absence of any truly comparable case, other cases in which sentences have been imposed for different offences committed in circumstances of domestic violence were of some utility in determining whether the sentence imposed in this case was broadly consistent. In that regard, the State referred to Drage v The State of Western Australia;[17] Duncan v The State of Western Australia; Gillespie v The State of Western Australia;[18] Gomboc v The State of Western Australia; Iveson v The State of Western Australia;[19] McCombe v The State of Western Australia;[20] Pureau v The State of Western Australia;[21] The State of Western Australia v Chungarai; and The State of Western Australia v Riley.
Ultimately, the State says that the sentence of 2 years and 3 months' imprisonment that was imposed on the respondent is unreasonable or plainly unjust.
The respondent submits that the sentence was not manifestly inadequate, notwithstanding the fact that the offence involved acts that would have terrified the victim and that some of his conduct was degrading.
The respondent also submits, in effect, that none of the cases referred to by the State in its written submissions can be described as broadly comparable, noting that this court is yet to determine an appeal in which a sentence imposed for an offence contrary to s 300 of the Code is said to be manifestly excessive or inadequate, and submits that none of those cases assist the State's argument that the sentencing judge erred in the exercise of her discretion.
On behalf of the respondent, it is noted that the respondent pleaded guilty, there were several protective factors present at the time of sentencing that were in his favour, and the respondent was suffering from several medical issues. Further, the court's attention was drawn to the fact that the respondent had been on bail for a considerable period before sentencing, and he had not committed any offences during that time.

[71]

This means that the gravity of an offence contrary to s 300 will not necessarily depend on and may not be informed to any significant extent by, the seriousness of any physical injuries suffered by a victim. The seriousness of an offence contrary to s 300 is to be determined in light of the limited range of acts that are capable of amounting to an 'act of family violence'. Further, in assessing the seriousness of an offence contrary to s 300 of the Code, it must be appreciated that the gravity of any physical injuries is not the only litmus test; it will often be very important to also pay close attention to any psychological injury and emotional trauma that may have been suffered.
Thirdly, as is the case with offences contrary to s 321A of the Code,[22] an offender is to be sentenced and punished for the whole course of criminal conduct, which is the essence of the criminality involved in the offence proscribed by s 300. However, and for reasons similar to those expressed by Vandongen JA in XBX v The State of Western Australia,[23] this does not mean that an appropriate sentence for the purpose of an offence contrary to s 300 falls to be determined by reference to any individual or total effective sentences that might otherwise have been imposed had the various 'acts of family violence' been the subject of individual charges. Pursuant to s 6(2)(a) of the Sentencing Act, when sentencing a person for an offence contrary to s 300, it is the maximum penalty of 14 years' imprisonment that is to be taken into account in determining the seriousness of a particular offence, and not the maximum penalties that may have applied, or the sentences that may have been imposed, had the offender been convicted of any of the relevant 'prescribed offences'. Further, a sentence imposed in another case for a single 'prescribed offence', or even several individual 'prescribed offences', will not ordinarily be a useful comparator for the purposes of assisting in the determination of an appropriate sentence for an offence contrary to s 300.
Fourthly, given the potentially very wide range of circumstances in which an offence contrary to s 300 of the Code may be committed, coupled with inevitable variations in the personal circumstances of the perpetrators and victims of such an offence, sentences imposed in other cases are unlikely to provide any real assistance in determining an appropriate sentence. Each case must be determined according to its particular facts and circumstances, and by having regard to all relevant sentencing factors.
Fifthly, the maximum penalty for the offence of persistently engaging in family violence of 14 years' imprisonment reflects the serious view that Parliament has taken of such conduct.
Sixthly, the following matters will often be relevant to the court's assessment of the seriousness of an offence against s 300 of the Code:
1. The length of the period over which the victim was subjected to persistent family violence.
2. The frequency with which the victim was subjected to family violence within that period.
3. The nature of the acts of family violence to which the victim was subjected.
4. The psychological impact of the persistent family violence upon the victim, including the impacts of constant psychological stress that may be involved in living with a person whose acts of family violence are unpredictably spasmodic.
5. The physical impacts of the persistent family violence upon the victim.
6. The degree of dependence of the victim upon the offender, and any limits on the ability of the victim to extricate themselves from the situation.
7. The extent to which the acts of persistent family violence were intended or likely to have the effect of trapping the victim in the violent relationship or deterring the victim from leaving the relationship.

[73]

Against that background, it is necessary to consider the seriousness of the offence committed by the respondent.
The respondent pleaded guilty to an offence that alleged that he persistently engaged in family violence against his wife over a lengthy period of approximately eight years. During that time, the respondent regularly verbally and physically abused his wife. As the sentencing judge appeared to accept, the many specific instances on which the State alleged that the respondent committed acts of family violence were just representative of a 'much broader picture and relationship that involved abuse, and physical and verbal violence, and threats, and aggression'.[24]
As appears to be all too common in cases of domestic violence, the respondent's behaviour tended to follow a cyclical pattern. The respondent's acts of family violence would generally occur at night, and in private, behind the closed doors of the home they shared together. They would also usually occur when the respondent was very drunk. The respondent would frequently verbally and physically abuse the victim, and he made a number of terrifying threats. On occasions, the respondent would engage in controlling behaviour, including by telling the victim that she was not allowed to see her family again, by taking the victim's mobile telephone away (and by smashing it), and by locking her inside their home. The respondent would usually apologise at some later point, after the effects of the alcohol had worn off, and make what would then turn out to be empty promises to the victim that the abuse would never happen again.
Some of the acts of family violence that were specifically relied on by the State were extremely serious. On one occasion, the respondent held a kitchen knife to the victim's throat and threatened to kill her. This must have been a horrific experience for the victim, particularly as the respondent made it very clear that he intended to carry out his threat. The two separate occasions on which the respondent, while intoxicated and angry, threatened to cut off one of the victim's legs with an axe, and then when he pointed a speargun at the victim at close range, would also have been very terrifying experiences. Although the respondent was ultimately sentenced on the basis that the speargun was unloaded at the time he pointed it at the victim, she was unaware of that at the time.
On a further occasion, the respondent told the victim that if she ever left him again there would be murders, before he then strangled her and threatened to slit her throat and smear her blood all over a wall for her mother to find. Although the respondent held the victim by her throat for a relatively short period of time, she was unable to breathe. The victim must have felt extremely concerned about her welfare.
In MYB v The State of Western Australia, the following observations were made about the seriousness of offences that involve non‑fatal strangulation:[25]

[74]

Strangulation, which is commonly reported by women who have experienced domestic violence, can be distinguished from other forms of family and domestic violence on the basis that it often leaves very few marks or signs; even in cases where the strangulation was life‑threatening. The fact that this type of offending is more likely to go undetected makes strangulation a particularly dangerous form of domestic violence, and recent studies have consistently shown that it is both a predictive risk factor for future severe domestic violence and a relatively common cause of domestic violence‑related homicide.

In Pedrochi [v Brown [2021] WASC 81 [64]], Quinlan CJ referred to the growing appreciation of the particular dangers associated with offences involving strangulation and its role in cases of intimate and family violence. The recognition of the particular dangers posed by non‑fatal strangulation in incidents of domestic violence has resulted in the introduction of the specific offence of strangulation, with which this appellant was charged on count 1 [s 298 of the Code]. However, as there was a second, separate instance of strangulation that comprised part of the series of acts committed with intent to harm, contrary to s 304(2)(a) of the Code, a recognition of the seriousness and danger of non‑fatal strangulation was also a relevant sentencing consideration in respect of count 2, with which ground 1 of this appeal is concerned.

In his Second Reading Speech in respect of the Bill that introduced s 298 of the Code, the Attorney General referred to research which reveals that strangulation, when committed against an intimate partner, is one of the strongest indicators of an increased risk of homicide. The Attorney General went on to describe strangulation as a 'perversely intimate and callous form of violence', which is often used by a perpetrator to convey to his victim that he has the power to take her life away. Observations to this effect have also been made by intermediate appellate courts in a number of other jurisdictions, including Queensland, Tasmania and New Zealand. Those cases also recognise that the need for deterrent punishment arises, not just from the physical and psychological harm which frequently results from an act of strangulation, but also from its inherently dangerous nature and the strong likelihood that, if it is repeated, death or serious injury may eventually result.

[75]

It should be noted that during the period the respondent committed the offence, the act of strangulation was not an 'act of family violence' for the purposes of s 300 of the Code on the basis that it would otherwise have constituted an offence contrary to s 298 of the Code. This is because s 298 did not commence operation until 1 October 2020.[26] However, the act of strangulation was nevertheless an 'act of family violence' because it would otherwise constitute an offence contrary to s 304(1), as it was an act the result of which the life, health or safety of the victim was, or was likely to be, endangered. However, this does not detract from the general applicability of what was said in MYB.
Although it is true that the victim did not suffer from any very serious physical injuries, this is to be expected given the limited range of acts of family violence that can constitute an offence contrary to s 300. Had the respondent committed more serious offences than any of the prescribed offences referred to in s 299(1) of the Code, it would be expected that he would have been charged with those offences separately. While the seriousness of the victim's physical injuries was a relevant consideration, the essential gravamen of the respondent's criminality is that for over an extended period of time, he repeatedly committed acts of family violence which included an act of strangulation and the use of weapons to make very serious threats. The respondent subjected the victim to an extended period of psychological terror which, due to the unpredictably spasmodic nature of the acts of family violence, would not be confined to the occasions on which violence occurred.
As we have already observed, it is important to recognise that repeated and persistent acts of domestic violence do not always result in physical injuries, and that offences that do not result in physical injuries are not, on that account, automatically less serious. In this case, the victim impact statement very clearly illustrates the pernicious effect of sustained domestic violence in general and, more specifically, the enduring and deleterious effect the respondent's behaviour has had on the victim's psychological and emotional wellbeing.
The respondent's criminal conduct amounted to a gross breach of the trust and commitment the victim had invested in him, and the intimacy she had bestowed upon him. That breach materialised itself repeatedly and over a very long period of time. The respondent did not change his ways when he was charged with and pleaded guilty to an offence of aggravated assault occasioning bodily harm that he committed against the victim in November 2015. Further, the respondent's violent and intimidatory conduct did not abate after September 2019, when the victim withdrew a violence restraining order she had obtained in July 2019.
The nature of many of the respondent's acts of persistent family violence were such as to be likely to make it very difficult for the victim to leave the relationship. They appear to have been designed to make the victim terrified of the potential consequences of attempting to leave the respondent. On the different occasions particularised above, the respondent told the victim it was no longer her choice whether she lived, and he threatened to kill the victim before killing himself. He told the victim he would slit her throat and smear her blood over the wall for her mother to see. The victim could reasonably fear that an attempt to leave the relationship would trigger a dangerous escalation in the respondent's violence towards her.
There was nothing in the respondent's personal circumstances that could properly be regarded as mitigating. The only mitigating factor of any substance was the respondent's plea of guilty. In that regard, the sentencing judge afforded the respondent a discount of 12% on the sentence she would otherwise have imposed had the respondent been found guilty after trial, and before taking into account any other mitigating factors, pursuant to s 9AA of the Sentencing Act. The appellant does not challenge the extent of that discount, notwithstanding that the respondent entered a plea of guilty on the morning of the first day of his trial. By that stage, the State had fully prepared the matter for trial and the victim would have endured many hours of proofing, having already spent a great deal of time anticipating the need to give evidence and being unable to properly move on with her life. Although the plea of guilty meant that there were benefits to the State and to the victim, particularly as she did not then have to give evidence, a discount of just under half the maximum discount allowable for a plea of guilty might be regarded as generous.
We note that, when a court exercises its discretion under s 9AA of the Sentencing Act, there is a need to be mindful of the possibility that offenders who have repeatedly committed offences of violence against their partners, while engaging in manipulative and controlling behaviour, may delay pleading guilty for the purpose of testing whether the victim of this behaviour will persevere with their allegations and give evidence after a long period of reflection. The offender may also seek to use delay to exercise control and to perpetuate the suffering of the victim. To afford significant discounts for pleas of guilty entered in those kinds of circumstances can have the effect of undermining the purpose of s 9AA of the Sentencing Act. However, in the present case the State did not contend, and the sentencing judge did not find, that the respondent delayed his plea for those purposes. Accordingly, nothing we have said in this regard should be understood as amounting to a criticism of the sentencing judge's approach in the present case.
As we have already observed, the sentencing judge took into account, as a mitigating factor, the fact that the respondent's 'time in custody in terms of [his] detoxification will be more onerous and that [his] rehabilitation will be more onerous than if [he] had been in the community'.[27] This finding is challenged by the State under ground 1. The State contends that the sentencing judge erred in fact in making this finding.
It is not necessary for us to reach any conclusions about the merits of that contention. As will be seen, this is because we are of the view that the sentence imposed on the respondent was manifestly inadequate, even after taking her Honour's finding into account as a mitigating factor. Further, as is explained below, the fact that the respondent's treatment for alcoholism would be more difficult in custody than in the community is not a mitigating factor which should decrease the culpability of the respondent or decrease the extent to which he should be punished. We will deal further with the sentencing judge's findings about the conditions the respondent was likely to experience while serving his sentence in more detail later in these reasons.
This is the first occasion on which this court has been required to consider an appeal against a sentence imposed for an offence of persistently engaging in family violence contrary to s 300 of the Code. However, as was noted in McAlpine v The State of Western Australia:[28]

[77]

As we have already recorded earlier in these reasons, the State referred to several cases in its written submissions and suggested that they may provide some assistance as comparators for the purpose of deciding whether the sentence imposed in this case was broadly consistent with standards of sentencing. It is unnecessary to summarise the facts and circumstances of those cases, or the sentences that were imposed. This is because none of those cases are even broadly comparable. A fundamental difference between the circumstances of this case and all of those cases is that the respondent was charged with one offence, relating to a course of conduct that took place over an extended period of time. To the extent that any of the cases referred to by the State concerned a course of conduct, the acts constituting the relevant offending were the subject of separate charges each one of which attracted a discrete maximum penalty. In this case, the respondent was liable to a single maximum penalty of 14 years' imprisonment. However, we acknowledge that, to the extent possible, inconsistency with sentences imposed in a broader class of offending that involves a 'prescribed offence', as defined in s 299(1) of the Code, should be avoided.[29] Accordingly, and in that regard, we have taken all those cases into account.
It has been said on many occasions that general deterrence is an important consideration when sentencing for violent offences committed by men against women, including in domestic environments. In this context, there has been a 'firming up' of sentences for offences committed in those circumstances.[30] The same approach should be taken with offences committed contrary to s 300.
There was also an obvious need to ensure that any sentence imposed in this case had the effect of deterring the respondent from committing similar offences in the future and, to the extent possible, that it protected the community.
In our view, having regard to the maximum penalty that is prescribed, the seriousness of the offence, the very limited mitigation that was available, and the respondent's personal circumstances, the sentence of 2 years and 3 months' imprisonment was unreasonable or plainly unjust. The sentence was so inadequate such that it must be inferred that the sentencing judge made a material error in the exercise of her sentencing discretion. A significantly higher sentence should have been imposed.
Accordingly, ground 2 has been made out.

[82]

We have the necessary information to resentence the respondent.
As we have already explained, the offence committed by the respondent was very serious. Apart from the plea of guilty, there were no other mitigating factors of any significance.
While, as we have noted, a discount of 12% for the purposes of s 9AA of the Sentencing Act may be regarded as generous, it has not been challenged by the appellant. It was open to her Honour to give that discount in all of the circumstances of the case. In those circumstances, we will apply the same discount allowed by the sentencing judge in exercising the sentencing discretion afresh.[33]
We noted earlier in these reasons at [74] that the sentencing judge took into account as a mitigating factor the fact that the respondent's 'time in custody in terms of [his] detoxification will be more onerous and that [his] rehabilitation will be more onerous than if [he] had been in the[34]ommunity'34 (the impugned finding). By ground 1, the State argued that the sentencing judge erred in fact in making the impugned finding because there was an insufficient evidentiary basis.
It is unnecessary to decide whether the sentencing judge did make an error of fact. This is because, in exercising the sentencing discretion afresh, we would not take the impugned finding into account as a mitigating factor in any event.
As Buss JA (as his Honour then was) explained in Milenkovski v The State of Western Australia,[35] in determining the sentencing outcome in a particular case, a sentencing judge must take into account, amongst other things, any subjective circumstances of an offender (as distinct from the prison conditions in which the offender is held) that may make imprisonment a materially harsher experience for the offender than for offenders generally. Those subjective circumstances include, relevantly, physical, or mental ill-health or disabilities.
For present purposes, the important point is that the relevant comparison to be made is between the day‑to‑day experience of the offender while in custody as against the day‑to‑day experiences of other offenders in the general prison population.[36] In reaching the impugned finding, the sentencing judge did not engage in that comparison. Instead, her Honour compared the experience the respondent was likely to have while serving a sentence of imprisonment with the experience he might otherwise have had if he had remained in the community. In fact, her Honour specifically found that the respondent's custodial experience would not be more onerous than it would be for other prisoners, noting that 'a very large part of the prison population has addiction issues and they're all no doubt suffering from the lack of services in prison'.[37]
In our view, the impugned finding is not a mitigating factor for the purposes of s 8(1) of the Sentencing Act. The fact that the respondent's detoxification and rehabilitation would be more onerous than if he had been in the community is not a factor that decreases the extent to which he should be punished. Further, the Additional Evidence does not establish, on its own or in combination with the evidence that was before the sentencing judge, that imprisonment will be a materially harsher experience for the respondent than for offenders generally. Although the respondent has suffered from seizures due to alcohol withdrawal while he has been in custody, and he has endured several other unrelated medical issues, there is no suggestion that the respondent has not been adequately treated by the prison authorities or that imprisonment has been or will be a materially harsher experience for him when compared to the rest of the prison population. While the respondent's state of health is relevant for the purposes of resentencing as it forms part of his personal circumstances, it is not a mitigating factor that decreases the extent to which he should be punished.
Given that conclusion, it is not necessary to give consideration to the larger question of whether an offender who has committed offences while under the influence of alcohol or drugs (or both), and who has failed to take reasonable steps to address any underlying addiction while in the community, should receive a discount on an otherwise appropriate sentence of immediate imprisonment because of the onerous effects of experiencing enforced withdrawal from the use of such substances while in custody.
Considering all the relevant facts and circumstances, including the current state of the respondent's health as revealed by the Additional Evidence, the relevant sentencing principles that we have referred to earlier in these reasons, and allowing the same discount that the sentencing judge afforded for the respondent's plea of guilty, we are of the view that the respondent should be resentenced to a term of 5 years and 8 months' imprisonment.
That sentence should be taken to have commenced on 31 January 2024. An order should also be made that the respondent is eligible for parole.