MAITLAND (A PSEUDONYM) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 108

[2026] WASCA 108 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MAITLAND (A PSEUDONYM) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 108 CORAM : QUINLAN CJ MAZZA JA SWEENEY JA HEARD : 22 OCTOBER 2025 DELIVERED : 31 JULY 2026 FILE NO/S : CACR 13 of 2025 BETWEEN : EDWIN MAITLAND (A PSEUDONYM) Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : BLACK DCJ File Number : IND XXX of XXXX Catchwords: Criminal law - Appeal against sentence - Manifest excess - Breach of totality principle - Assault occasioning bodily harm - Sexual penetration without -- 1 of 62 -- [2026] WASCA 108 Page 2 consent - Dangers of strangulation - Domestic violence - 'Toxic' relationship - Mitigatory value of provocation - Improper exercise of discretion - Court-ordered reports - Assessment of risk of reoffending - Substitution by judge of own view for that in expert reports - Whether judge as well placed to assess risk of reoffending - Failure to adjourn sentencing to order new reports Legislation: Criminal Code (WA), s 281 (repealed) Result: Extension of time within which to appeal granted Leave to appeal is granted on grounds 1 and 2 Leave to appeal is refused on grounds 3, 4 and 5 Appeal allowed Appellant resentenced Category: B Representation: Counsel: Appellant : Dr G Janssen Respondent : Mr B Murray Solicitors: Appellant : Janssen & Maluga Legal Pty Ltd Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Alalyani v The State of Western Australia [2018] WASCA 44 AMH v The State of Western Australia [2016] WASCA 180 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Gomboc v The State of Western Australia [2023] WASCA 115 Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441 Juma v The State of Western Australia [2011] WASCA 54 -- 2 of 62 -- [2026] WASCA 108 Page 3 Kabambi v The State of Western Australia [2019] WASCA 44 Moffa v The Queen [1977] HCA 14; (1977) 138 CLR 601 Morrison v The State of Western Australia [2025] WASCA 132 Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17 MYB v The State of Western Australia [2024] WASCA 53 Singh v The Queen [2012] NSWSC 637 Skelly v The State of Western Australia [2020] WASCA 3 The State of Western Australia v LSM [2023] WASCA 132 The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 The State of Western Australia v Turaga [2006] WASCA 199 Vagh v The State of Western Australia [2007] WASCA 17 Vella v The State of Western Australia [No 2] [2025] WASCA 70 Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361 -- 3 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 4 JUDGMENT OF THE COURT: Overview 1 On 23 December 2024, the appellant was sentenced following pleas of guilty to a total effective term of 10 years 6 months' imprisonment, for offending comprising two separate occasions of violence predominantly directed at Ms Eve Barnard (a pseudonym), his on-off partner and mother of his young son. 2 The first occasion of offending, on which counts 1 - 4 on the indictment were committed, was particularly serious. In breach of a family violence restraining order, the appellant came to the property where Ms Barnard lived and, upon finding her in the caravan at the back with another man, proceeded to violently assault, firstly, the man, Mr Nicholas Harris (also a pseudonym), and then Ms Barnard. He beat her violently causing injuries, strangled her to the point of near unconsciousness, and sexually penetrated her without her consent. Because of that sexual offending, the names of all parties, including that of the appellant, have been anonymised to protect Ms Barnard's privacy. 3 On the second occasion, about five weeks later, the appellant again came to the house and assaulted Ms Barnard, by punching her to the face. 4 The appellant appeals his sentence on five grounds. Leave to appeal is granted in respect of ground 1, which argues that the individual term of 6 years' imprisonment for the sexual offence was manifestly excessive and incidentally raises an issue as to whether it was mitigatory that the appellant found Ms Barnard with another man. 5 Ground 1 fails, however. The sentence was high, but not manifestly excessive and, in the circumstances of this case, there was no mitigation to be found in the matters raised. 6 The appeal succeeds on one ground, namely that the total effective sentence infringed the totality principle. While the offending was undoubtedly serious and the appellant's past history of domestic violence justified a deterrent sentence, we are satisfied that the total sentence did not bear a proper relationship to the overall criminality involved, having regard to all factors including the appellant's personal circumstances. Accordingly, the appellant is to be resentenced. -- 4 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 5 7 Leave to appeal is refused in respect of the remaining grounds, which assert that the learned sentencing judge sentenced the appellant for the strangulation offence on a more serious factual basis than alleged, that fresh pre-sentence reports should have been called for, and that a miscarriage of justice arose when her Honour reached her own assessment of the risk of the appellant reoffending. Sentences imposed 8 The table below sets out the maximum penalties for each count on the indictment, the sentences imposed, and how the sentence was structured to achieve the total sentence of 10 years 6 months' imprisonment. Count Offence Maximum penalty Sentence imposed 4 Aggravated sexual penetration without consent (Criminal Code (WA) (Code) s 326) 20 years' imprisonment 6 years' imprisonment (Head sentence) 1 Assault occasioning bodily harm (Code s 317(1)(b)) 5 years' imprisonment 12 months' imprisonment (Cumulative) 2 Aggravated assault occasioning bodily harm (Code s 317(1)(a)) 7 years' imprisonment 2 years' imprisonment (Concurrent) 3 Aggravated strangulation (Code s 298(b)) 7 years' imprisonment 2 years' imprisonment (Cumulative) 5 Aggravated assault occasioning bodily harm (Code s 317(1)(a)) 7 years' imprisonment 18 months' imprisonment (Cumulative) 9 The appellant was made eligible for parole, and the sentence was backdated to 26 October 2022 to reflect time in custody. As can be seen from the table, all bar one of the sentences was ordered to be served cumulatively with the sentence for count 4. -- 5 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 6 Grounds of appeal 10 There are five grounds of appeal, as follows, and as amended by counsel during the hearing of the appeal: 1. The sentence of 6 years' imprisonment for count 4 was manifestly excessive. 2. The total effective sentence of 10 years and 6 months of imprisonment infringed the first limb of the totality principle. 3. The Learned Sentencing Judge improperly exercised her discretion by considering irrelevant factors as to an assessment of the Appellant. 4. The Learned Sentencing Judge erred in law by not requiring Court-ordered reports to be made anew to a sufficient standard, as well as by substituting said Court-ordered reports on, amongst other things, the risk of reoffending with her own assessment of the Appellant, resulting in a miscarriage of justice. 5. The Learned Sentencing Judge improperly exercised her discretion by substituting Court-ordered reports on, amongst other things, the risk of reoffending with her own assessment of the Appellant, resulting in a miscarriage of justice. Facts of the offending 11 The following summary is taken from the amended statement of material facts presented to the learned sentencing judge on 19 July 2024, and which were expressly accepted by counsel for the appellant at sentencing.1 Counsel at sentencing was the same counsel who appeared in the appeal (counsel). 12 Ms Barnard is an ex-partner of the appellant, and they share a son who was 2 years old at the time of the offending. On 7 October 2021, the appellant was served with a two-year family violence restraining order (FVRO), Ms Barnard being the protected person named in the order. The second victim, Mr Harris, is a friend of Ms Barnard. 13 Just digressing from the facts presented to the learned sentencing judge to comment on that FVRO,2 we note that the order did not prohibit the appellant from communicating with Ms Barnard. Rather, it prohibited him from behaving 'in an intimidatory, offensive or 1 WAB 112. 2 Prosecution brief (91). -- 6 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 7 emotionally abusive manner' towards Ms Barnard. There were also exceptions, allowing for communication through a lawyer, or compliance with Family Court arrangements in relation to their child, participating in court mediation or family dispute resolution and the like. 14 The FVRO curtailed the appellant's physical proximity to Ms Barnard, though not entirely. He was prohibited from entering or remaining at her home address or any place where she lives or is educated, or from being within 30 metres of the nearest external boundary of those premises. He was prohibited from damaging any of her property. He was also prohibited from being in possession of a firearm or firearms licence, or obtaining the same, or causing anyone else to engage in any of the conduct that the order prohibited him from engaging in. 15 The appellant was therefore able to contact Ms Barnard, provided he was not intimidatory, offensive or emotionally abusive towards her. He was able to make arrangements to have contact with his son. He could meet with Ms Barnard without breaching the order, providing he was not intimidatory, offensive or emotionally abusive towards her. He was not, however, allowed to turn up at the property where she lived, at all. He was not to set foot on that property, nor be within 30 metres of its boundaries. 16 Returning to the facts presented for sentencing, counts 1 - 4 on the indictment arose out of a single occasion. At about 7.00 am on Sunday, 28 August 2022, Ms Barnard and Mr Harris were inside a caravan parked in the backyard behind her house in South Hedland. The appellant arrived at the address and parked in a nearby street. He entered the property and walked into the backyard. When Ms Barnard heard him approaching the caravan, she hid under the bed. 17 The appellant opened the caravan door, entered the caravan and confronted Mr Harris about being with Ms Barnard. He then punched Mr Harris to the head and face. Mr Harris tried to fend the appellant off by returning punches, and managed to flee the caravan. He sought help from people at a nearby address, and the police were called. 18 As a result of the assault, Mr Harris received heavy swelling to the left side of his face, and numerous abrasions to his neck area. Those are the facts of count 1, being an assault occasioning bodily harm upon Mr Harris. -- 7 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 8 19 After the appellant had assaulted Mr Harris, he pulled Ms Barnard out from under the bed. He punched her multiple times to the head and face, fracturing her eye socket and causing heavy swelling to her eyes and face, and numerous abrasions to her head and neck area. That was the commencement of count 2, being an aggravated assault occasioning bodily harm, aggravated because the appellant was in a family relationship with Ms Barnard.3 20 The appellant placed his hands around Ms Barnard's neck, impeding her ability to breathe and causing her to lose consciousness (later described by the learned sentencing judge as 'almost' losing consciousness).4 That is the aggravated strangulation charge in count 3, aggravated because the appellant was in a family relationship with Ms Barnard and because the offence constituted a breach of the FVRO. 21 The appellant then pushed Ms Barnard onto the bed and noticed that she was not wearing underwear. He then questioned her about having sex with another male. The appellant then forcefully digitally penetrated her vagina with multiple fingers, vigorously moving them in and out, causing her pain. When later examined, she was found to have cuts and bruising to her genital and inner thigh areas. The sexual penetration without consent, aggravated again because the two were in a family relationship and the offence was committed in breach of the FVRO, was count 4 on the indictment. 22 In a continuation of the aggravated assault occasioning bodily harm constituting count 2, after the appellant pulled his fingers out from her vagina, he punched Ms Barnard's pubic bone, and then continued to punch her in the head and face. She could no longer see anything (on account, her Honour inferred,5 of the gross swelling to her eyes) and pleaded with the appellant to stop. 23 The two of them moved outside of the caravan. Ms Barnard curled into a ball on the ground. She then heard the police announce their presence. When the police arrived, the appellant was observed standing over her at the entry to the caravan, while she was lying on the ground, in a distressed and bloodied state. That is the conclusion of the offending constituting count 2 on the indictment. 3 The definition of 'family relationship' is found in the Restraining Orders Act 1997 (WA) s 4(1) and includes parties who have, or had, an intimate personal relationship with each other. 4 WAB 93. 5 WAB 93. -- 8 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 9 24 The appellant was then taken to South Hedland police station, where he declined to participate in an interview with police. He was released to bail upon conditions which included that he was not to approach within 50 metres of Ms Barnard. 25 The offence constituting count 5, an aggravated assault upon Ms Barnard occasioning bodily harm, occurred about five weeks later. The appellant was still subject to the FVRO and the aforesaid bail conditions. 26 On 5 November 2022, at about 7.40 am, the appellant entered Ms Barnard's house in South Hedland through an unlocked back sliding door. She was asleep with their 2-year-old son at the time, but was awakened by the appellant entering the house. She got up and saw him in the hall. 27 The appellant told her he wanted the car key and her mobile telephone. Ms Barnard went into the lounge room to get the car key. He grabbed her shirt aggressively. She pointed to their son, and the appellant let her go, picking up the child and putting him near the kitchen. She grabbed the car key and gave it to the appellant. As she did so, the appellant punched her to the face with his right hand, striking her in the mouth and causing injury to her inner lip, which was the charged assault. 28 The appellant then told her to take her shirt off, as it belonged to him. Ms Barnard walked outside to the backyard to find another shirt to wear. The appellant followed her, holding their child. Once outside, the appellant then chased her around the trampoline. She managed to run inside and lock the door, and then she telephoned the police. As the police arrived, the appellant jumped the back fence and left the scene. He was located about 10 minutes later, walking along a street, with the car key in his possession. 29 The appellant was arrested and taken to South Hedland Police Station, where he commenced an interview but then declined to answer any questions, requesting legal advice. He was remanded in custody and remained there until sentencing. Appearance on 19 July 2024 30 The matter was listed for trial in the week commencing 29 July 2024. Negotiations between the parties resulted in some changes to the indictment, and pleas of guilty were entered before the learned -- 9 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 10 sentencing judge on 19 July 2024. Prosecuting counsel (the prosecutor) indicated to the court at sentencing that the same offer of negotiated charges that was ultimately accepted by the appellant ten days prior to trial had been put to the defence approximately a year prior to trial, and rejected.6 31 Counsel asked the court to order a pre-sentence report, a psychological report and a psychiatric report on the appellant. 32 The learned sentencing judge referred to an email received from counsel's office that morning, indicating that counsel would be seeking the reports 'with a focus on [the appellant]'s alcoholism and cultural development'.7 Counsel confirmed that the email was correct and stated that he 'cannot work in this case without a psychiatric [report]' despite the anticipated delay of 20 weeks to obtain such a report.8 33 No information was provided to suggest that the appellant suffered from any mental impairment. The court ordered all three requested reports. The sentencing was adjourned to 18 December 2024. 34 By an application dated 16 December 2024, the appellant's counsel sought orders adjourning the sentencing to a date in January 2025 and summonsing the authors of the reports to testify on the basis that the reports were inaccurate and had not included 'material matters'.9 35 The sentencing ultimately had to be rescheduled in any event to 23 December 2024. From comments made by the learned sentencing judge at that hearing,10 it appears that the psychiatric report was unavailable for the original date as the psychiatrist had been unable to see the appellant in time. When the psychiatrist did meet with the appellant, it was via videoconference. The appellant's application at sentencing and the plea in mitigation 36 At the sentencing hearing, in advancing his application for an adjournment and for the authors of the reports to be summonsed to court, counsel complained that all three of the reports shared the same flaw,11 namely that none of them considered the factual situation facing 6 WAB 72. 7 WAB 112. 8 WAB 113. 9 Application dated 16 December 2024 WAB 122. 10 WAB 81. 11 WAB 58. -- 10 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 11 the appellant prior to the commission of the offences in counts 1 - 4, in that he had found his partner with another man. 37 The learned sentencing judge invited counsel to make his plea in mitigation to enable the court to understand any deficiency in the reports because, in the end, it was her Honour who would decide what matters were mitigatory.12 Her Honour indicated that the court was unlikely to grant the appellant's application unless it was necessary, which was unlikely, because her Honour would simply afford little or no weight to a report which was deficient.13 38 Counsel informed the court that the relationship between the appellant and Ms Barnard was 'toxic', drawing a distinction between a toxic relationship and a toxic person.14 39 Counsel submitted that two of the reports just 'denied' the presence of a toxic relationship.15 Counsel pointed to communications between the appellant and Ms Barnard, which formed part of the prosecution brief. Counsel informed the court that both the appellant and Ms Barnard chose to ignore the FVRO,16 citing as an example that Ms Barnard had travelled to Perth 'to bring the son when she needed my client' although in fact, as can be seen from [13] - [15] above, the FVRO did not prohibit the appellant from such contact. 40 Counsel informed the court that, on the night prior to the commission of counts 1 - 4, the appellant and Ms Barnard had been intimate with each other and, on the morning of the offending, the appellant had come to Ms Barnard's residence with a 'new plan for his relationship in regards to his son, more contact with the son, better contact with the son'.17 Upon his arrival, counsel continued, the appellant found his partner 'being infidel', being unfaithful to him and, as a result of this new situation which he had never encountered before, and while heavily intoxicated, the appellant lost all self-control.18 The submission was consistent with the letter from the appellant to the court dated 9 December 2024.19 12 WAB 62. 13 WAB 62. 14 WAB 61. 15 WAB 61. 16 WAB 64. 17 WAB 64. 18 WAB 64. 19 WAB 128 - 129. -- 11 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 12 41 Counsel submitted that, outside of the toxic relationship, and 'outside of the weekend heavy drinking'20 the appellant was a law-abiding person, save for a former relationship which had also ended in offending, which counsel characterised as also having been toxic.21 Counsel later submitted that the appellant, while being addicted to alcohol, was partnered with a person who suffered from addiction, as had a previous partner, and the appellant was 'not able to run these relationships in the expectation of the law'.22 42 Counsel submitted that the offending in counts 1 - 4 was not planned or anticipated, but was the result of the relationship being an emotional rollercoaster, and that the appellant's loss of control coupled with his intoxication was a mitigating factor which ought to be taken into account by the learned sentencing judge.23 Counsel submitted that these factors ought to have been taken into account in the court-ordered reports. 43 Counsel relied upon published sentencing comments following the trial in New South Wales24 of an offender who was charged with the murder of his wife, but convicted of manslaughter on account of the defence of sudden provocation. Counsel's submission was that such loss of control is: quite common and has a huge tradition. Whether it's now changed, whether in modern time, it's not so political appropriate anymore, but it is deeply hurtful for the person. And it is a factor to lose self-control.25 44 Given the pleas of guilty, counsel pitched this submission on the basis that it was a mitigatory factor, not a lawful excuse. 45 Counsel submitted that the appellant's offending in counts 1 to 4 was not a 'planned revenge'.26 There was no suggestion in the facts presented to the court27 that the offending in counts 1 - 4 was premeditated. Counsel submitted that the appellant had been heavily intoxicated at the time of the commission of counts 1 - 4, which counsel submitted was mitigatory.28 20 WAB 66. 21 WAB 65. 22 WAB 66. 23 WAB 64. 24 Singh v The Queen [2012] NSWSC 637. 25 WAB 60. 26 WAB 64. 27 WAB 108 - 110. 28 WAB 64. -- 12 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 13 46 Counsel submitted that a term of imprisonment would be harder for the appellant than others because he was a man who was running a business and actively employed and so he was 'very sensitive' to the loss of his freedom29 and 'not like other inmates, maybe, used to doing nothing and wasting his day'.30 47 It is unnecessary to summarise the rest of the plea in mitigation, which consisted of less contentious submissions concerning the appellant's background, work history, family connection and his desire to rehabilitate himself. The State's response at sentencing to the 'loss of control' submission 48 While the contention that the appellant had been intimate with Ms Barnard the night before the offending was inconsistent with the witness statements from Ms Barnard and others on the prosecution brief, the prosecutor indicated that the State did not seek to lead evidence to the contrary.31 49 It was the prosecutor's submission that, even taking a view of the facts most favourable to the appellant that there may have been a 'rekindling of the relationship', a claimed loss of control while voluntarily intoxicated and upon finding a former partner with another man provided some context to offending behaviour, but was not a mitigatory factor to be taken into account by the court.32 The prosecutor also observed that the appellant's submission may have had more weight and force 'if it could be backed up by a submission that this was an aberration'.33 Personal circumstances of the appellant and materials before the learned sentencing judge The appellant's age and criminal record 50 The appellant was aged 39 at the time of the offending, and 41 at the time of sentencing. He had a five-page criminal record, having first come to the attention of the law at the age of 16. His adult criminal record fell into two categories, being traffic-related offences including several alcohol-related driving offences, and then offences in the nature of violence against women and breach of protective orders. 29 WAB 70. 30 WAB 70. 31 WAB 79. 32 WAB 72 and 79. 33 WAB 80. -- 13 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 14 51 He had mostly been dealt with by way of fines but, in 2014, he received a 12-month period of imprisonment for domestic violence offending over two days in November 2013. There were a couple of gaps in his criminal record where no offending was recorded, namely between March 2005 and December 2009 and then between March 2014 (beginning with that term of imprisonment) and September 2020. The limited offending which followed, however, was in the nature of breaching a police order in July 2020 and two offences of breaching a FVRO in March 2022, those latter convictions being related to this same victim. 52 The learned sentencing judge had received three reports for the purposes of sentencing, namely a psychological report dated 7 October 2024, a pre-sentence report dated 4 December 2024 and the psychiatric report dated 20 December 2024. The psychological report 53 The psychological report detailed the appellant's background. He is from the Pilbara and is of Aboriginal heritage. He is the only child to his parents' short-lived relationship, but has half-siblings from his parents' subsequent relationships. 54 The appellant initially described his childhood as stable, but a more detailed enquiry indicated that it was not. 55 His mother was dependent upon alcohol and, as a result, was volatile and physically abusive, and there were times when the appellant went to stay with his grandmother. His mother re-partnered several times, and he was frequently exposed to violence within the family, recalling one event as a child when one of his mother's partners threatened him with a knife. He was also exposed to excessive alcohol consumption, but denied any sexual abuse. 56 The appellant had no relationship with his father until he met him at around the age of 17. It seems he lived full-time with his grandmother for several years when his mother went to Perth, but also lived with his mother in Perth at some stage. 57 He attended three different primary schools, including one in Perth, and was an average student with no learning difficulties, but soon lost interest in high school. He began misbehaving and getting involved in fights and drinking. He left school at 15, and then attended TAFE and completed his Certificate II in civil construction. -- 14 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 15 58 The appellant has a solid enough work history. He first worked at 19 years old in a railway role for a mining company and then, from the age of 21, had a variety of short-term jobs, when he was going through a period of instability and excessive drinking. At the age of 23, he began working for Main Roads Department, and worked there for about a decade. After that, he subcontracted to Main Roads and engaged his own crew, running his own business with a partner. He told the psychologist that the company went through some periods of difficulty. The psychologist concluded that, while the appellant has a good work ethic, it is sometimes sabotaged by his instability and substance abuse. 59 The appellant described himself to the psychologist as a binge drinker throughout his adult years, and indicated that the current offending had occurred when he was intoxicated. He has never received treatment for alcohol dependence and expressed an interest in addressing that issue. He indicated that he felt better for the lack of alcohol while in custody. He denied any other substance use. 60 The appellant informed the psychologist that he has never been formally diagnosed with any mental health challenges. He revealed a gambling problem, and also said his mood had been low during his relationship with the complainant. The psychologist concluded that he used negative coping strategies, which probably stemmed from childhood abandonment and victimisation. The psychologist saw no signs of thought disorder or cognitive difficulties in the appellant's presentation or self-report. 61 The appellant described four significant relationships with adult females. 62 His first relationship, when he was 19 years old, ended after a year due to his drinking. His second relationship, which began around 22, lasted five years, and ended due to his drinking and 'likely resultant aggression'. He has three children to that union. At 27 years, he became involved in another relationship, which ended after five years due to drinking and domestic violence. The appellant described the relationship as volatile and said his partner used drugs. He has three children to that relationship. 63 At 35 years old, the appellant met Ms Barnard, that relationship lasting approximately two years, and their son was 4 years old by the time of sentencing. -- 15 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 16 64 The psychologist took a detailed history from the appellant as to the facts of the offending. Contrary to counsel's complaints, the psychologist recorded that the appellant described his relationship with Ms Barnard as volatile, characterised by substance use, violence, numerous separations, and mixed messages. 65 Also contrary to counsel's complaints, the psychologist noted that the appellant claimed that he and Ms Barnard had been reunited and intimate the night before the offending, further noting that, when the appellant then found Ms Barnard with another man, he became angry and jealous, leading to his very violent behaviour towards the two. The appellant admitted to the psychologist that he had wanted to degrade and humiliate Ms Barnard by the offence of sexual penetration without consent in count 4. The appellant also described himself as heavily intoxicated at the time. 66 As to the offence in count 5, the appellant stated to the psychologist that Ms Barnard had requested that he travel to Port Hedland from Perth, where he was living, and that they were still physically intimate at that time and, when he went to collect his (car) key from her, he became angry and aggressive. 67 The psychologist said that the appellant acknowledged a pattern of aggressive behaviours towards partners when intoxicated and expressed regret for his offending but, due to his self-focus, displayed limited understanding of the impact of his behaviour on Ms Barnard. 68 Bearing in mind that counsel had requested the reports to address the appellant's issues with alcoholism and cultural development, the psychologist noted that she asked the appellant about his cultural development 'and he seemed confused about this and why his lawyer had requested the information'.34 69 A character reference from the appellant's business partner, which is referred to at [100] - [103] below, was more informative in that regard, but the appellant did inform the psychologist that he was culturally connected with other Aboriginal family members during his childhood and went through the lore as expected when he was an adolescent. He reported that, although he is not an elder in his community, he is respected and connected. 34 Psychological report [3]. -- 16 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 17 70 The psychologist explained that the appellant presents as a man who has major challenges as a result of child abandonment and trauma, and exposure to violence and maternal alcohol dependence. He becomes stressed and controlling with his partners due to a fear of abandonment and loss of control.35 71 The psychologist concluded that his current sexual offending in count 4 is best analysed in the context of relationship violence. The psychologist noted that the appellant has a history of aggression in relationships and is likely to be aggressive and controlling towards partners. She said that, while the appellant does not demonstrate violent attitudes, he becomes aggressive due to jealousy and in the context of substance use. His self-awareness and insight are poor. The psychologist concluded that the appellant required a family violence programme and intensive substance abuse intervention. 72 The psychologist employed the Spousal Assault Risk Assessment Version 3 (SARA-V3) to assess the risk of reoffending in a similar manner against an intimate partner. She employed a different tool, the HCR-20v3 to assess the appellant's risk of violently offending more generally. 73 The psychologist found the appellant to represent a high risk of violently reoffending in a similar manner on his release, unless he addresses his challenges.36 The psychologist considered that the likelihood of him offending aggressively in the future against non-partners is moderate, but that may also reduce if he addresses, particularly, his substance abuse. The psychiatric report 74 The psychiatric report was criticised by the learned sentencing judge on the basis that the interview had taken place by videoconference. On that basis, her Honour remarked that the appellant had not had a 'fair' consultation.37 As a result, her Honour said that she was not prepared to act on any conclusions drawn in the psychiatric report which were unfavourable to the appellant.38 Her Honour's 35 Psychological report [14]. 36 Psychological report [15]. 37 WAB 95 and earlier comments during discussions with counsel at WAB 81. 38 WAB 95 and earlier comments during discussions with counsel at WAB 81. -- 17 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 18 comments were not aimed at the psychiatrist, rather at a lack of available psychiatrists to prepare such reports.39 75 Nevertheless, the psychiatrist took a very detailed account from the appellant of the offending and the relationship generally and the sentencing comments make it plain that her Honour relied upon the appellant's account to the psychiatrist.40 Contrary to counsel's complaint, the psychiatrist recounted the appellant's description of his relationship as 'toxic' and mentioned Ms Barnard's drinking, and there is reference to the appellant continuing to support Ms Barnard. The report says that the appellant described the two contacting each other, and said the abuse went both ways and there were physical fights, and both had called police on each other. 76 The psychiatrist noted the appellant's description of the offending in counts 1 - 4. There is no reference in the narrative to them having been intimate or reconciled the day prior, but the appellant described being at Ms Barnard's place the day prior, the two getting into an argument about Ms Barnard wanting to drink, and Ms Barnard having kicked him out. The appellant described going to a hotel later to have a drink and finding Ms Barnard already at the hotel with two men. The appellant said that he and Ms Barnard argued. The appellant described himself as drunk at the time. The men she was with wanted the appellant kicked out and, while Ms Barnard offered to go home with him, the appellant brushed her off and went back to wherever he was staying. 77 The appellant told the psychiatrist that Ms Barnard telephoned him multiple times in the early morning, but he did not want to answer and, so, went around to her place at about 7.00 am. He described seeing their son and Ms Barnard's daughter sleeping inside the house and said that he 'went around and checked the house'. After finding no one, he went to the caravan where the offences were then committed. 78 Contrary to counsel's complaints, the psychiatrist detailed the appellant's claims that 'the whole time I lost my mind and couldn't think properly', that the offending was 'very out of character', that the appellant 'couldn't comprehend what was going on' and 'had no control and just lost my mind'.41 The appellant also said that, after the offending, he 'picked [Ms Barnard] up and came to [his] senses' and 39 WAB 81. 40 WAB 91 - 93. 41 Psychiatric report [17]. -- 18 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 19 that, when the police arrived, they had found the appellant 'trying to help her'.42 79 The psychiatrist also noted the appellant's description of the offending in count 5. The appellant said that, while on bail conditions to the effect that he was not to travel to Port Hedland, he received his mobile phone back and saw messages from Ms Barnard apologising for what had happened and they exchanged text messages in which she asked him to come to Port Hedland and to watch their son while she attended a funeral. 80 While this court has seen the text messages on the prosecution brief43 related to count 5, in which the two discuss the appellant coming to spend time with his son, the messages are best described as mutually abusive and ending badly. 81 The appellant said he travelled up as agreed, they argued, Ms Barnard had his car, he got drunk and went to her house the next morning and the offence in count 5 occurred. 82 The psychiatrist said that the appellant denied any history of abuse or trauma as a child, but did note that the appellant said that his mother liked to drink and got into fights when drunk, and then his grandmother would pick him up. He also said that he did not have a father figure when growing up. That account is rather less detailed and understated compared to the detail in the psychologist's report. 83 The psychiatrist said that the appellant had no history suggestive of a major mental illness, denied any family history of mental illness, has no history of contact with mental health services and did not report any ongoing psychopathology at the time of the interview or in the recent past. The psychiatrist saw no evidence of a thought disorder based on the appellant's verbal communication, and observed that the appellant was orientated in time, place and person, and showed no sign that he was experiencing any thought or perceptual abnormalities. The psychiatrist concluded that the appellant did not present with any symptoms suggestive of a mental illness. 84 The psychiatrist considered that the appellant had fair insight into his current circumstances and tried to impress as a changed man, referring to his engagement with the Whitehaven programme while in 42 Psychiatric report [18]. 43 Prosecution brief 209 - 213. -- 19 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 20 custody. The appellant expressed remorse, said that he took full responsibility, had forgiven himself, had been baptised, and wanted to move on and continue to support his children and former partners. 85 The psychiatrist considered that the appellant had engaged in significant positive impression management throughout the interview. He said the appellant tended to minimise his involvement in domestic violence by making claims around the relationship being 'toxic', a partner using drugs, or blaming his own intoxication when he had not wanted to drink.44 86 Like the psychologist, the psychiatrist also assessed the appellant's future risk of intimate partner violence using the SARA-V3. The psychiatrist noted that the assessment of risk 'is not an exact science' and noted that, 'over the years various tools and strategies have been used to predict recidivism'.45 He said that the SARA-V3 is a 24-item structured professional judgment tool used to guide that assessment. 87 The tool identified various risk factors pertaining to the appellant, including intimidation, physical harm, severe intimate partner violence and supervision violations, as well as substance use and distorted thinking about domestic violence in relationships. 88 The psychiatrist considered the appellant to be at significant risk of intimate partner violence in future relationships. The psychiatrist also concluded that the appellant should engage in alcohol rehabilitation and an anger management programme. The pre-sentence report 89 The pre-sentence report added little to the details of the appellant's childhood provided by the psychologist, except to the effect that the appellant's grandmother had taken him into her care due to his mother's alcoholism, and he remained with his grandmother until he was approximately 14 years old, when it was thought that he was able to take care of himself. The appellant also reported to the author that, when drinking, his mother would become violent towards him and towards friends and other family members. 90 The author reported the appellant's claim to have been intimate with Ms Barnard the night before the offending in counts 1 - 4, and likewise his assertion that he had 'lost control' upon 'seeing her with 44 Psychiatric report [73]. 45 Psychiatric report [66]. -- 20 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 21 another man' while also heavily intoxicated. The author concluded that the appellant fails to recognise the serious nature of his offending 'due to the emotional hurt the victim had caused him'.46 91 The author reported that the appellant felt that he had been 'set up' to breach his bail conditions on the occasion of the offending in count 5, resulting in his re-arrest, as Ms Barnard had asked him to come to Port Hedland from Perth to care for their son.47 92 The appellant informed the author that he is the joint owner of a civil construction business in Port Hedland, started in 2016, and that the business is still operational and run by his business partner while he is in custody. The appellant intends to return to the business upon his release. 93 The author did not quantify the appellant's risk of reoffending, but described the appellant as having 'outstanding treatment needs including the use of violent behaviours within intimate relationships, which are exacerbated by his use of alcohol' and described the current offending as an 'escalation in severity' in his 'ongoing use of violence toward women'.48 The author recommended programmatic intervention to address domestic violence and substance abuse, as well as psychological counselling to 'assist in addressing childhood trauma, including abandonment issues, the normalisation of violence and poor emotional regulation'.49 The appellant's letters, character references and letter from Whitehaven Clinic 94 Two letters from the appellant both dated 9 December 2024, were before the learned sentencing judge.50 95 In the first, the appellant expressed his remorse, and stated that he took full responsibility for his actions, while also claiming that he had not intended to harm anyone, 'but as a result of the mental impact of confusion I clearly lost my mind that lead to a traumatic event'. 96 The appellant said that he had been depressed because of his 'toxic' relationship and concerned about the future of his son but that, while in custody, he had reflected in prayer and study and realised that he 46 Pre-sentence report (1). 47 Pre-sentence report (1). 48 Pre-sentence report (2). 49 Pre-sentence report (3). 50 WAB 128 - 129. -- 21 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 22 needed to deal with his issues. He had reflected on the impact on his childhood of his own absent father, and wanted to break that cycle for his own son. He assured the court that he was ready to 'move forward' and 'continue with my path of healing being a positive member of the community once again'. The appellant acknowledged that he had broken the law and agreed to 'pay any fines to help settle debts'. 97 In the second letter, the appellant purported to address the reasons behind the second occasion of offending in count 5, emphasising that, while he was on 'strict bail conditions', he received his phone back after his time in custody and saw that Ms Barnard had messaged him and, while his lawyer had advised him not to contact Ms Barnard, he could not help but do so. 98 He then described contact and intimacy between the two in Perth and their plan for the appellant to come to South Hedland to babysit their son, while Ms Barnard went to a funeral. He described the immediate deterioration of the plan as she did not pick him up from the airport: he did not babysit and went drinking instead, she did not drop his car off to him as requested, he attended her house to collect it and 'the incident happened', whereupon she called the police. 99 The deterioration of the plan and the total breakdown of civil relations between the two is captured by the text messages in the prosecution brief.51 100 Also before the court was a positive reference from the appellant's business partner,52 who explained that he first met the appellant as a client in his accountancy business, and they later became business partners, and are now friends. 101 The business partner identified the appellant as a Ngarla senior lore man, born and raised in Port Hedland, who had experienced the effects of growing up with the impact of domestic violence and alcohol abuse, and who has worked hard to prioritise changing this for his people and his children. The referee described the appellant as being passionate about the preservation of his people's language, and as having taken it upon himself to make audio recordings of the elders to preserve their stories and their language. 51 Prosecution brief 209 - 213. 52 WAB 126 - 127. -- 22 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 23 102 The referee said that, prior to his arrest, the appellant had provided a refuge at his house for his children and their friends, providing a safe place to sleep. He encouraged the children to go to school. Since the appellant's arrest, the referee said that those children have now had to, in effect, couch surf, with little supervision, and only one has managed to remain at school. 103 The referee wrote of the appellant's remorse and the deep regret he holds for the inexcusable example he has set for his own sons and nephews. The referee was rather more articulate of the appellant's remorse and insight than the appellant was himself. The referee also spoke of the appellant's desire to enter a rehabilitation programme as soon as possible, and of his desire to change the course of the next generation and to be a good example for his family and other young men. 104 The appellant's brother provided a character reference53 which spoke to the appellant's business, his endeavours to improve his lifestyle and provide a better future for him and his family, his connection to country and Aboriginal lore and cultural practice, and his remorse for committing the offences. 105 The court also received a character reference from the Anglican chaplain at Casuarina Prison,54 who wrote of the appellant's remorse, embarrassment and shame about the offending, his commitment to his new Christian belief, and his baptism into the Christian faith in June 2024. 106 The chaplain also observed that the appellant's mother and uncle both passed away while he was in custody and, while an attempt was made to enable the appellant to watch his mother's funeral via Skype, the weather prevented that from occurring. The chaplain was impressed with the appellant's understanding and patience in that situation. The chaplain also wrote of the appellant's respectful conduct while in prison, and his work while in custody. 107 As at the time of sentencing, an 'Incidents and Occurrences' report for the appellant's time in custody indicated that no incidents had occurred involving the appellant, and his work history indicated that he had worked in the kitchen while in custody. 53 WAB 125. 54 WAB 123. -- 23 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 24 108 Finally, also before the learned sentencing judge was a letter dated 9 December 2024 from the Whitehaven Clinic.55 The letter indicated that the appellant had requested participation in the clinic's addiction recovery programme, had attended an initial assessment session in November 2022, and had recently completed one session, equating to one and a half hours of one-on-one counselling. 109 The author stated that the appellant had engaged enthusiastically with his counselling. As at the date of the letter, however, engagement was limited to one session. Counsel had informed the court that programmatic intervention had been unavailable while the appellant was in custody in the Pilbara,56 awaiting trial. The letter from Whitehaven stated that appellant had requested to continue until the completion of the programme. Sentencing comments Past violent conduct towards women 110 Her Honour noted that the FVRO appeared to have been granted very early in the appellant's relationship with Ms Barnard, and had been breached by the appellant on 5 March 2022 and then again on 13 March 2022, and then by the offending in October (sic August) 2022.57 111 Her Honour found that it was quite apparent from the appellant's criminal record that he has a history of being violent towards women with whom he is in a relationship. Contrary to submissions on behalf of the appellant suggesting the violence occurred in one previous relationship which was also toxic, her Honour found that the appellant had been violent towards three women in the past, as follows:58 1. On 6 April 2004 and on 15 July 2004, the appellant had breached a violence restraining order protecting a previous partner and mother of his children, and then committed an offence of aggravated common assault against her. 2. On 18 December 2009 the appellant committed a common assault against another female, who apparently was not a partner of the appellant. 55 WAB 130. 56 WAB 65. 57 WAB 87. 58 WAB 88. -- 24 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 25 3. On 27 and 28 November 2013, the appellant committed an aggravated common assault, an aggravated assault occasioning bodily harm, and a further aggravated assault occasioning bodily harm on his then partner. Risk of reoffending 112 Her Honour noted that, while the appellant's criminal record did not aggravate his conduct in any way, it was relevant to the consideration of submissions made by counsel and was relevant to the consideration of a need for personal deterrence and what risk the appellant represents to the community.59 113 Her Honour expressly gave minimal regard to the assessments in all three reports to the effect that the appellant was at high risk of reoffending, considering the task of risk assessment ultimately to lie with the court.60 114 While her Honour accepted that the appellant had taken steps to address his attitudes and his conduct, she was persuaded that the appellant represents 'a risk' and that, unless he continues down the path he has belatedly started while in prison then, 'if the past is any indication of the future', he is 'a dangerous man' to women with whom he is in a relationship.61 115 Her Honour expressed the hope that the custodial term the appellant would receive would assist to bring about the necessary changes.62 Submissions about character 116 Her Honour was not prepared to accept a submission that it was mitigating that the appellant was a person of good character other than when he was in a 'toxic' relationship and intoxicated. Her Honour observed that character is demonstrated in how a person acts behind closed doors and how he treats those closest to him.63 Findings about 'loss of control' and whether it was mitigating 117 Her Honour did not accept that the offending the subject of counts 1 - 4 occurred because the appellant simply 'lost control' in that 59 WAB 88. 60 WAB 89. 61 WAB 88 - 89. 62 WAB 89. 63 WAB 88. -- 25 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 26 situation, and acted in a way which was out of character. Her Honour found that the appellant's previous violence towards women made that submission very difficult to accept,64 although this offending represented more serious offending.65 118 Her Honour did not find it mitigating that the appellant and the complainant were in a 'toxic' relationship, and observed that whether or not Ms Barnard used drugs or drank or had her own issues 'is neither here nor there'.66 119 Her Honour expressed 'significant doubts' about whether the appellant and Ms Barnard had just reconciled such that Ms Barnard could be described as being unfaithful to him. While her Honour noted that the suggestion that they were reconciled was contrary to Ms Barnard's statements in the prosecution brief, her Honour also found the suggestion to be contrary to the appellant's own account. Her Honour recited the appellant's own version of events as recounted in detail in the psychiatric report.67 120 Her Honour found that, on the appellant's own account, he was hopeful of reconciling with the complainant that night.68 Her Honour found that, at best, the appellant and Ms Barnard were in an on-again, off-again relationship, and that there were times when they would reconcile and then the relationship would fall apart again.69 Her Honour did not make an express finding that the two had not been intimate earlier that night. 121 Her Honour accepted that the appellant was hurt, angry and upset when he found Ms Barnard with another man the next morning.70 122 However, consistent with the appellant's account to the psychiatrist, her Honour found that, the evening before, the two had argued, Ms Barnard had then gone out to a hotel with friends where the appellant then later arrived and the bouncer had wanted to kick him out, and the friends Ms Barnard was with had been telling him to leave.71 64 WAB 89. 65 WAB 89. 66 WAB 96. 67 WAB 91 - 93. 68 WAB 90. 69 WAB 89. 70 WAB 90. 71 WAB 90. -- 26 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 27 123 Her Honour found that the complainant had tried to appease the appellant by saying that she would come back with him,72 but that the appellant had then pushed her hand away and said 'No', whereupon the two had parted ways.73 Her Honour quoted the appellant's version that Ms Barnard had then telephoned him four times at around 4.00 am that morning.74 (The account that her Honour was quoting from indicated that the appellant had not answered the phone.75) 124 Her Honour found that the appellant had then gone looking for Ms Barnard the next morning while heavily intoxicated and, on being unable to find her in her house, had persisted in looking for her.76 Her Honour observed that, in those circumstances, the appellant had picked a poor time to discuss their relationship, and was persistent in looking for her because he regarded her as his property.77 125 Her Honour observed that, upon the appellant realising that Ms Barnard was there with another man, it should have been obvious to him that he should leave. Her Honour remarked that Ms Barnard is no more the appellant's property than he is hers.78 Her Honour also noted that the appellant was the one with the obligation to stay away pursuant to the FVRO, and he had not taken steps to have the order set aside.79 126 Her Honour considered that, in any event, the appellant having found Ms Barnard with another man was only part of an explanation as to why he had acted as he had.80 While her Honour accepted that the appellant was heavily intoxicated, she (quite rightly) did not consider the appellant's voluntary intoxication to be mitigatory.81 127 Her Honour observed that the appellant has a long history of aggressive behaviour towards women, and a tendency to minimise his offending behaviour.82 Her Honour noted that the appellant again turned up at Ms Barnard's address several weeks later on the occasion of count 5 and punched her again to the head.83 72 WAB 90. 73 WAB 92. 74 WAB 92. 75 WAB 92. 76 WAB 90. 77 WAB 90. 78 WAB 89. 79 WAB 90 - 91. 80 WAB 91. 81 WAB 97. 82 WAB 91. 83 WAB 95. -- 27 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 28 128 Her Honour found that the appellant did not have a recognised mental condition that explained his offending.84 129 Her Honour observed that even if it had been the case that the appellant had lost control that morning because he was drunk and upset that he appeared to be losing Ms Barnard, that only highlighted that he was dangerous to her.85 Dismissal of appellant's application to adjourn sentencing and summons report-writers 130 As part of the sentencing comments, her Honour refused the appellant's application to adjourn the sentencing to summons the authors of the reports, on the basis that the authors had not failed to recognise some salient fact in mitigation and that it was, in any event, a matter for the court to determine what matters should be taken into account.86 Remarks about seriousness of offending 131 Turning to specific comments on the seriousness of the offences, her Honour found that the appellant had caused very visible, serious-looking injuries to Mr Harris in the assault upon him which is the subject of count 1.87 132 Having detailed the severity of the beating of the complainant on the occasion the subject of counts 1 - 4, and the strangulation which her Honour found caused the complainant to 'almost lose consciousness', her Honour then made the impugned comment:88 You are very, very fortunate that you didn't come here in the Supreme Court on a murder charge, because many men before you have done what you did and ended up killing them. How she didn't get more serious injuries from what you did to her is beyond me. 133 Her Honour found that the sexual penetration without consent in count 4 amounted to 'literally punching her on the inside of her vagina',89 and noted that the appellant had accepted that he had attacked her vagina with his hand in order to humiliate her.90 Her Honour found 84 WAB 95. 85 WAB 91. 86 WAB 94. 87 WAB 93. 88 WAB 93. 89 WAB 94. 90 WAB 94. -- 28 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 29 that the forceful penetration must have been both humiliating and painful. 134 As to the offending in count 5, her Honour found that the appellant had not been invited into the house, was not a welcome guest, and had no reason to believe that he was going to be a welcome guest on that morning. Her Honour observed that the appellant had no legitimate reason to demand Ms Barnard's mobile telephone and, having been given his car key, had then punched Ms Barnard 'for no good reason'.91 Her Honour found that the only reason the appellant demanded that Ms Barnard take his shirt off was to control and perhaps humiliate her.92 135 Her Honour found that the background of the earlier offending in counts 1 - 4 several weeks earlier would have made the assault inflicted upon Ms Barnard in count 5 more painful to her, both physically and mentally.93 136 Her Honour also referred to Ms Barnard's victim impact statement, and her hope that one day she and the appellant would be able to co-parent peacefully, and for their son to be able to thrive with both parents involved in his life. Her Honour considered those sentiments to be very gracious and merciful.94 Mitigatory factors 137 In terms of matters in mitigation, her Honour allowed a discount of 12% for the plea of guilty.95 138 Her Honour accepted that the appellant had demonstrated remorse, both in his pleas of guilty and also 'by not cavilling' with the statement of material facts.96 Her Honour did not accept that the appellant was 'fully remorseful', but did accept that he had made some belated attempts while in prison to address his issues and for the first time was starting to turn his life around.97 Her Honour considered, however, that there was a long way to go.98 91 WAB 95. 92 WAB 95 - 96. 93 WAB 95. 94 WAB 98. 95 WAB 98. 96 WAB 97. 97 WAB 98. 98 WAB 98. -- 29 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 30 139 Her Honour was unsympathetic to the appellant's submission that prison was harder for him than others.99 The factual circumstances of this case do not require a discussion of the issues raised before this court in The State of Western Australia v Richards.100 140 Her Honour accepted that, outside the context of the appellant's domestic relationships and when not intoxicated, the appellant tended to behave in a lawful way, ran a successful business, and 'did some good for the community'.101 141 Her Honour expressed the hope that the time in prison would mean that, by the time the appellant was released, he would be a very different man, who no longer presented a high risk to his partner. 142 After discussing the importance of general deterrence, and noting that personal deterrence still had a role to play, her Honour concluded that only a term of immediate imprisonment could be appropriate, and passed sentence. 143 We turn now to the grounds of appeal. We will deal firstly with those grounds which allege express error on the part of the learned sentencing judge as they impact on the factual basis for sentencing. Ground 3 - comment on the risks in strangulation offences 144 Counsel's written submissions identified the complaint in ground 3 to be that, after the learned sentencing judge found that, by strangling Ms Barnard, the appellant had caused her to 'almost lose consciousness', her Honour said:102 You are very, very fortunate that you didn't come here in the Supreme Court on a murder charge, because many men before you have done what you did and ended up killing them. How she didn't get more serious injuries from what you did to her is beyond me. 145 Counsel submitted that the learned sentencing judge 'wrongly found and wrongly took into account that the life of Ms Barnard was endangered' by the appellant's conduct, and that her Honour wrongly observed that only luck had protected Ms Barnard from dying, when there were no 'expert findings' indicating that Ms Barnard's life was 99 WAB 96. 100 The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 dealt with the relevance of the impact of incarceration upon an indigenous offender from a remote community. 101 WAB 97. 102 WAB 93. -- 30 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 31 endangered, and nor did the State allege that her life was endangered. Counsel submitted that her Honour improperly speculated as to what injuries could have occurred in other circumstances, and that the appellant was thereby wrongly sentenced on the basis of an irrelevant aggravating fact. 146 The appellant relies upon the following observations of this court in Skelly v The State of Western Australia:103 It is a fundamental principle that 'no one should be punished for an offence of which he has not been convicted'. The importance of this fundamental principle, which is founded on basic notions of fairness and justice, means that it trumps the general principle that all the circumstances of the offence are to be considered in determining the appropriate sentence for that offence. This principle applies in several different situations. Among other things, it means that, in sentencing an offender for an offence, a sentencing judge must not take into account a fact or circumstance if it would, in effect: (a) treat the offender as guilty of a more serious offence that the offence of which they have been convicted; or (b) constitute a circumstance of aggravation, so as to render the offender liable to a higher penalty. Another emanation of this fundamental principle is that in sentencing an offender for one offence, the judge is not entitled to punish the offender for an additional offence to the one with which the offender was charged. It is not always easy to determine where the line is to be drawn between permissible consideration of the circumstances of the offence and punishment for an offence not charged. Questions of fact and degree are involved. What is required is a careful reading of the sentencing remarks to see to what extent, and for what purpose, uncharged acts might have been taken into account. (citations omitted) 147 There is no merit in this ground of appeal. The learned sentencing judge was not in error in referring to the dangers of strangulation as her Honour did, and did not sentence the appellant for an offence of which he had not been convicted. 148 Firstly, the submission runs contrary to the plain meaning of her Honour's comment. Her Honour expressed surprise that greater 103 Skelly v The State of Western Australia [2020] WASCA 3 [81] - [84]. -- 31 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 32 injury had not resulted from the offending. Her Honour could not have been both surprised that greater injury had not been caused, but also under some misapprehension that greater injury had been caused. 149 Secondly, her Honour did not take into account any additional, uncharged act as part of the factual scenario encompassed in the strangulation offence in count 3. There was the one act of strangulation. Her Honour did not sentence the appellant on some alternative version of events to that charged. 150 Third, the impugned comment was clearly made in the course of addressing the appellant directly in language he would readily understand in the hope of impressing upon him the potential tragic consequences of an act of strangulation. The comment was supported by authority from this court and others, and literature on the dangers inherent in strangulation. 151 In MYB v The State of Western Australia,104 this court stated: In R v Kilic, the High Court observed that current sentencing practices for offences involving domestic violence have changed over time, in line with changes in societal attitudes towards domestic relations. The short and long-term psychological and physical harm caused by acts of domestic violence to victims, and to children who are present when such behaviour occurs, is much better appreciated now than it once was. So too, is the potential for the violence to escalate, with lethal consequences. 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 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 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 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 104 MYB v The State of Western Australia [2024] WASCA 53 [63] - [66]. -- 32 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 33 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 appellant courts in a number of 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. (citations omitted) 152 In one of the footnotes to the above quotation,105 this court cited an article entitled 'Domestic Violence, Sex, and the 'Blurry' Question of Consent'106 before observing: Even where the pressure placed on the victim's neck is released before the point of unconsciousness, the sustained lack of oxygen to the victim's brain may cause irreversible damage. The victim may also suffer other injuries not visible to the naked eye, such as vision and hearing changes, sore throat, paralysis, anxiety, post-traumatic stress, dissociation and suicidality. 153 Further decisions of this court107 have observed that the particular dangers associated with strangulation, and the role that non-fatal strangulation offences play in cases of domestic violence, have been recognised by Parliament and the courts. 154 There was no error in her Honour seeking to impress upon the appellant that he was fortunate that his conduct did not have far more serious consequences, for both his victim and him. The appellant was fortunate that his conduct did not have far more serious consequences. His conduct undoubtedly had the potential for more serious consequences, which was the focus of her Honour's comment. 155 Finally, the appellant's submission worked on the premise that the appellant was sentenced on a more serious basis and exposed to a higher penalty. The sentence imposed of 2 years' imprisonment in the face of a maximum penalty of 7 years' imprisonment does not support the appellant's submission. 156 Leave to appeal on this ground is refused. 105 MYB Footnote 66. 106 Douglas H, Sharman L and Fitzgerald R, (2024) 88(I) Journal of Criminal Law 1, 3 and the peer-reviewed studies cited therein. 107 The State of Western Australia v LSM [2023] WASCA 132 [16] (Quinlan CJ); Gomboc v The State of Western Australia [2023] WASCA 115 [192]. -- 33 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 34 Grounds 4 and 5 157 There is overlap in grounds 4 and 5 and they can be dealt with together. Ground 4 complains that the learned sentencing judge erred in law in not requiring the court-ordered reports to be made anew 'to a sufficient standard', and then both grounds complain that her Honour erred in substituting her own assessment of the appellant's risk of reoffending for that of the authors of the reports. The appellant complains that this led to a miscarriage of justice. 158 Her Honour's complaint108 during the sentencing process concerning the psychiatric report was that the meeting between the psychiatrist and the appellant was by means of videoconferencing.109 159 Her Honour remarked that, in those circumstances, had the report been positive for the appellant then the positive features would have still been taken into account in his favour. As the psychiatrist concluded that the appellant was at high risk of reoffending, however, her Honour expressed reluctance:110 to place too much weight on it in that I do not see how you could possibly make a realistic assessment of the risk other than from the same factors that are available to me, namely the actual circumstances of what he did and what he's done before. 160 Her Honour's criticism was not aimed at the psychiatrist personally, but at the resourcing issues which led to the situation.111 Her Honour later remarked:112 I am treating the psychiatric report with some reservations, because I do not consider you had a fair consultation. And I think it would be quite unfair on you if I was to use that adversely to you. And so anything that can be described as negative in the psychiatric report, or that contradicts any of the other materials, I do put to one side, other than the incontrovertible fact that you do not have a recognised mental condition that explains your offending. 161 Her Honour did, however, recite the appellant's version of events as told to the psychiatrist in detail when dealing with the 'loss of control' issue. 108 WAB 81. 109 WAB 81. 110 WAB 81. 111 WAB 81. 112 WAB 95. -- 34 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 35 162 Counsel's complaint at sentencing about all three court-ordered reports, by contrast, was that they failed to take into account, or they 'denied', that the appellant was in a toxic relationship and had lost control when he found Ms Barnard with another man.113 163 In fact, as detailed earlier, all three authors detailed both of these issues from the appellant's perspective. Counsel's complaint to the learned sentencing judge was simply inaccurate. 164 None of the authors worked on a premise that the appellant had not found Ms Barnard in the caravan with another man, but none had identified the fact of the appellant having found her with another man as a justification or excuse for his offending behaviour, or a reason to conclude that his offending was an aberration and the result of extenuating circumstances. 165 That appears to have been the real complaint: that, in assessing the risk of the appellant violently reoffending in the future as 'high' (the psychological report) or 'significant' (the psychiatric report), the authors of the reports cannot have had due regard to the fact of the appellant having found Ms Barnard with another man. 166 Counsel complained that 'the intention of the defence was to get the opposite of that, what we had in this report'.114 Counsel submitted to this court that, as the appellant has no prior criminal history of sexual violence, the combination of these two 'extraordinary circumstances' make it difficult to draw any conclusion as to the risk of the appellant reoffending. 167 On appeal, counsel added a further complaint, namely that, if the psychiatric report was prepared on the basis of an unfair consultation, as her Honour found it to be, then the report should not have been taken into account at all. 168 Further, counsel now argues that the authors of the psychological and psychiatric reports did not prepare 'scientifically proper' reports. This is based, we assume, upon an exchange between counsel and the learned sentencing judge in which her Honour expressed the view that,115 113 WAB 61. 114 WAB 63. 115 WAB 85. -- 35 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 36 with no disrespect to any of the authors, but I think as to risk, really, judges are as well placed as any psychologist or psychiatrist. I'm not sure their predictions (inaudible) scientific. It seems to me it's just pure logic. And certainly, their assessments here are pure logic, it seems to me. 169 We infer that the inaudible word or words missing from the above quotation, whether that was 'are' or 'were' or something similar, indicated that her Honour did not regard the risk assessments to be scientifically based. 170 Counsel argues that, 'in the absence of a scientifically proper psychiatric or psychological report', her Honour ought to have excluded the reports entirely, on the basis of 'non-compliance with the rules surrounding an expert psychiatric report'.116 No rule was identified that is said to have been breached. 171 The appellant's application at sentencing was to adjourn the sentencing proceedings in order to summons the authors of the reports to court. Her Honour was not asked to order that new reports be made. The appellant cannot now complain that her Honour erred in law by failing to order new reports, when none were sought. 172 Further, the decision to order a report 'if a court considers it would be assisted in sentencing'117 rests with the sentencing judge. The report is there to assist the sentencing judge. A failure to order a pre-sentence report cannot be a ground of appeal in itself.118 173 The appellant was represented by counsel who could address her Honour on the factual issues said to be mitigatory, and her Honour had the benefit of the reports that were before the court which were informative as to the appellant's background, employment history and challenges. 174 The reports were not deficient in the manner alleged by the appellant. They simply did not reach the conclusions that counsel had hoped for. 175 The complaint was about the significance of the appellant having found Ms Barnard in a situation in which he concluded that she had been unfaithful to him. The significance of that fact and any mitigatory 116 WAB 29. 117 Sentencing Act 1995 (WA) s 20(1). 118 AMH v The State of Western Australia [2016] WASCA 180 [32] and the cases there cited. -- 36 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 37 weight it carried was a matter for the learned sentencing judge to assess. 176 As to her Honour's criticism of the psychiatric report because it was based on a video conference with the appellant, her Honour's view as expressed at [158] - [160] above appears to be that the use of a videoconference denied the psychiatrist the ability to bring clinical judgment to the process of applying the predictive risk-assessment tools. 177 No such issue occurred in the preparation for the psychologist's report, however, and her Honour did not place weight on the psychologist's assessment of the risk of reoffending either. 178 It seems, therefore, that the fact that a video conference was employed cannot have been pivotal to her Honour's decision to reach her own assessment as to the risk of reoffending, bearing in mind that the courts routinely deal with the taking of evidence, including important and sensitive evidence in criminal trials, by means of closed-circuit television. 179 With respect to the learned sentencing judge, her Honour's comments concerning the unfairness in the use of video conferencing by the psychiatrist do not sit consistently with her Honour's reliance upon the report in detail when recounting the appellant's version of events. The comments appear to us to have been born out of frustration at the strained resources and delays routinely occasioned by the seeking of psychiatric reports, rather than having been carefully crafted for this sentencing. 180 While video conferencing might not be optimal for the purpose of establishing rapport with the subject, we do not accept that the use of video conferencing, without more, was unfair to the appellant or that, as a result, the court was required to order a new psychiatric report, or any other report. In any event, the psychological report, which was the most detailed of the reports and based upon a meeting at the prison, indicated that the appellant was at 'high' risk of offending violently against a partner. 181 Further, it seems to us, on a reading of the whole transcript, that her Honour's observations concerning the prediction of recidivism as being, in effect, more a matter of logic than science, were a response to the submissions by counsel strongly criticising the three court-ordered reports and seeking to summons the authors. -- 37 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 38 182 Her Honour was, in our view, seeking to impress upon the appellant and his counsel that decisions about the facts, the matters in mitigation, the seriousness of the offending and the risk of reoffending were all, in the end, the province of the sentencing judge, and so there was nothing to be gained in focusing so strongly on the reports and possibly cross-examining the authors at some future hearing. 183 Her Honour was managing the hearing, and did not wish the progress of the sentencing to be further delayed for no material gain to the appellant. And there could have been no material gain to the appellant, because it is readily apparent that further reports were not going to result in an assessment that the appellant represented a low or only modest risk of reoffending. 184 The matter had been delayed already by calling for the first set of reports, particularly the psychiatric report which required a five-month delay, and there was no error in refusing to adjourn the matter further. 185 That deals with the first complaint raised by grounds 4 and 5. 186 We turn now to whether a miscarriage of justice arose from the manner in which her Honour reached her own view of the level of the appellant's risk of reoffending. The complaint is that her Honour's substitution of her own assessment for that in the court-ordered reports prepared by experts was not open to her Honour and resulted in a miscarriage of justice. 187 Her Honour's rationale for conducting her own assessment of the appellant's risk of reoffending was that risk assessment is a task for the sentencing judge, particularly in circumstances where there is no history or current signs of mental illness. As referred to at [168] above, her Honour also considered that the method by which the authors of the reports had assessed the risk was not scientific, and instead employed pure logic. 188 Given that there was no unfairness in the court having regard to all three reports then, if the court was obliged to accept the opinions of experts, the result must have been a finding that the appellant was at a 'high' (the psychological report) or 'significant' (the psychiatric report) risk of violently reoffending towards an intimate partner. 189 Her Honour's own assessment that, unless the appellant is successful in rehabilitating himself, he will continue to pose 'a risk' and is 'a dangerous man' to any woman with whom he is in a relationship -- 38 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 39 does not constitute a more adverse finding against the appellant than would have followed from an acceptance of the contents of the reports. 190 Her Honour allowed that the current risk level the appellant represents within his relationships may reduce with the deterrent impact of a term of imprisonment and with a continuation on his part of the process of rehabilitation that he has commenced in custody. Her Honour considered that the length of sentence required by the seriousness of the offending would allow the time for programmatic intervention to alleviate that risk.119 191 Her Honour's assessment was well open on the materials before the court, particularly given the facts of the offending and the appellant's prior history of violence towards his intimate partners (and another woman who was not his partner). Any finding that the appellant represents a lesser risk than her Honour articulated would have been insupportable. 192 If her Honour was wrong to substitute her own view for that contained in the reports, there can have been no miscarriage of justice arising from the error. For that reason, grounds 4 and 5 must fail. 193 We do wish to make some further comments on this ground, however. 194 Risk assessment is a task for the sentencing judge, although it may not be necessary or possible in every sentencing exercise to assess the likely risk of reoffending. An absence of pre-sentence reports may not relieve a sentencing judge of the ability and obligation to make a finding as to risk of reoffending, if there is evidence upon which to do so.120 When there is expert evidence available, a sentencing judge is not bound to accept it.121 A sentencing judge is entitled to accept or reject opinions expressed in such reports.122 119 WAB 82. 120 Morrison v The State of Western Australia [2025] WASCA 132 [45]. 121 Morrison [45]. 122 LSM [20] (Quinlan CJ). -- 39 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 40 195 The psychologist explained in her report123 that it is not possible to predict with certainty whether or not a person will reoffend, and that any such assessment is dependent upon the quality and breadth of the information available to the assessor. The psychologist continued: 124 However, using tools that assess the static and dynamic factors empirically validated as relating to recidivism can greatly reduce errors in management and release of offenders by providing data and opinion in relation to the probability of recidivism. 196 The report also informed the court that the particular predictive tool used by the psychologist to assess the risk of reoffending within a relationship 'is a quality-control checklist that determines the extent to which a professional has assessed risk factors of crucial predictive importance according to clinical and empirical literature'.125 197 The description of that predictive tool strongly suggests that the predictive tool is based upon empirical evidence demonstrating a statistical correlation between the 'risk factors' and reoffending. The conclusions reached are also informed by professional judgment. The conclusions are more than 'pure logic', though they should be logical. 198 But the psychologist's caveat concerning the certainty of such predictions demonstrates that predicting reoffending is not the equivalent of proving a scientific theorem with replicable results. The psychiatrist also stated in his report that 'the assessment of risk is not an exact science'.126 That is not a surprise, given that human behaviour is involved. The approach would appear to be based on statistical probability, however, and informed by the clinical judgment of a qualified person who has interviewed the subject. 199 Experienced sentencing judges naturally have their own broad experience of predictable risk factors. The sentencing judge will often have a more detailed appreciation of the facts of the case than the author of a report, but then the sentencing judge has no opportunity to interview the offender who is to be sentenced, and is unlikely to have the benefit of any statistic-based risk-assessment tool. If judges are 'as well placed' as psychologists and psychiatrists to assess risk of reoffending, that is no reason to not have regard to assessments conducted by psychologists and psychiatrists. 123 Psychological report [18]. 124 Psychological report [18]. 125 Psychological report, note following [19]. 126 Psychiatric report [66]. -- 40 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 41 200 If, as did not occur in this case, the authors of the reports had assessed the risk of reoffending as low, but the sentencing judge had paid no regard to those assessments and instead found the risk of reoffending to be high then, absent a solid basis for rejecting the conclusions in the reports, the judicial assessment may well be open to question on the basis of inadequate reasons or a failure to properly exercise the judicial discretion. 201 We doubt that her Honour meant to imply that all such assessments by psychologists or psychiatrists using predictive tools should be dismissed out of hand by sentencing judges, in favour of their own experience with assessing the risk of reoffending. But in any event, there was no miscarriage of justice in the conclusion as to risk of reoffending reached by her Honour as it was no less favourable to the appellant than the conclusions reached by the authors of the reports. Ground 1 - was the sentence on count 4 manifestly excessive? Legal principles in relation to whether a sentence is manifestly excessive 202 The first ground of appeal asserts that the individual sentence of 6 years' imprisonment for the aggravated sexual penetration without consent in count 4 was manifestly excessive. 203 The legal principles in relation to such a ground of appeal are well known and have been stated in numerous decisions of this court, including Kabambi v The State of Western Australia.127 Such a ground asserts implied error on the part of the sentencing judge. This court can only intervene where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.128 204 In determining whether the sentence imposed in relation to count 4 is manifestly excessive, this court should have regard to the maximum sentence prescribed by law, the standards of sentencing customarily imposed for such an offence, where the offence sits on the scale of seriousness, and the offender's personal circumstances.129 Disposition 205 Despite ground 1 asserting implied error, the appellant's written submissions raise two weighting errors. In the appellant's submission, 127 Kabambi v The State of Western Australia [2019] WASCA 44 [21]. 128 Kabambi [21]. 129 Kabambi [21]. -- 41 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 42 the learned sentencing judge failed to give 'sufficient' weight to matters in mitigation, including, but not limited to, the 'toxic' relationship the appellant and Ms Barnard were in, and the appellant's loss of self-control upon finding Ms Barnard with another man. 206 Ordinarily, it is impossible to demonstrate that insufficient weight was given to a factor by a sentencing judge, when the attribution of weight to various factors is the very essence of discretionary judgment and ordinarily not quantified in the sentencing process.130 207 In this case, the learned sentencing judge expressly gave no mitigatory weight to either factor. If counsel wished to formulate a ground of appeal addressing that aspect of the sentencing comments, a ground should have asserted that the learned sentencing judge failed to properly exercise her judicial discretion in failing to have any regard to those factors.131 208 Despite the inappropriate manner in which this issue is raised in submissions in ground 1, in assessing whether the sentence of 6 years imposed for count 4 was manifestly excessive, we will address the submissions that these factors constitute material mitigation because, if they do, then that reduces the seriousness of the offending. 209 The first submission is that a 'toxic' relationship provides mitigation for domestic violence within that relationship. Little detail was given to the learned sentencing judge to underpin the description 'toxic' over and above the criminal conduct of the appellant towards Ms Barnard. The appellant did describe Ms Barnard contacting him on occasion, despite the FVRO in place for her protection, and either requesting his assistance with their child, or engaging in sexual talk with him, such that he was receiving 'mixed messages'. 210 As part of this scenario, counsel emphasised the appellant's caring nature and law-abiding conduct outside of his toxic relationships. The underlying logic of such a submission is that the offending must be referable to the toxicity of the relationship, rather than the appellant's character. Her Honour rightly rejected the notion that character could be compartmentalised in this fashion.132 211 The learned sentencing judge observed, correctly, that the appellant had a legal obligation to comply with the FVRO regardless of 130 Vagh v The State of Western Australia [2007] WASCA 17 [47]. 131 Vagh [49] (Roberts-Smith JA with whom Pullin JA agreed) and [76] (McLure JA). 132 WAB 88. -- 42 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 43 any contact from Ms Barnard.133 The FVRO prohibited the appellant from approaching or entering Ms Barnard's home address. That was so even if she invited him to attend. 212 It is plain from the material before the learned sentencing judge that this was not a happy, healthy relationship based on mutual respect. The learned sentencing judge's findings detailed at [119] - [120] and [124] above were well justified. 213 Unfortunately the courts are very familiar with the difficulties that victims of domestic violence can experience in either bringing an abusive relationship to an end, or maintaining that separation in the long term. 214 No ambivalence on the part of Ms Barnard towards ending the relationship, no personal issues she may have been struggling with, and no optimistic attempts at reconciliation or desire on her part to co-parent, could possibly have provided an explanation for, or mitigated, the violent offending in this case. 215 The 'toxic' nature of the relationship afforded no mitigation for the appellant's offending. The submission did not approach the offensive level of victim-blaming seen in Gomboc v The State of Western Australia,134 but did still minimise the seriousness of the offending by externalising responsibility for the appellant's extreme violence towards the victim to the relationship he was in, as though the relationship was something separate from him, which produced his offending. The violence within the relationship was not something that happened to the appellant because he was in a poor relationship with a woman who gave him mixed messages. To suggest that it was is a vast rationalisation. 216 The submissions made by counsel were consistent, though more developed, with the appellant's letters to the court, which showed very limited insight into the seriousness of his position. 217 The reference to the appellant's 'loss of control' was a reference to the appellant's assertion that, having been intimate with Ms Barnard on the evening before, when he returned to her residence early the next morning 'to continue the relationship he had the night before'135 and 133 WAB 90. 134 Gomboc v The State of Western Australia [2023] WASCA 115. 135 WAB 63. -- 43 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 44 found her in the caravan with another man, he suffered a total loss of control. 218 In relying upon first instance sentencing comments from a 2012 manslaughter conviction in a different jurisdiction, it appeared that counsel simply wished to prove that the mitigatory effect of a man finding his wife with another man in circumstances where he saw, or inferred, infidelity had been acknowledged elsewhere (14 years ago) by means of the partial defence of sudden provocation. 219 A partial defence of killing on 'sudden provocation', which had the effect of reducing criminal culpability for wilful murder or murder to culpability for manslaughter in circumstances of sudden provocation, existed in this State pursuant to s 281 of the Code, until that provision was repealed in 2008.136 That law provided that, when a person unlawfully killed another in circumstances which would otherwise amount to murder, but had killed the victim 'in the heat of passion caused by sudden provocation, and before there is time for his passion to cool', he would be guilty of manslaughter only. 220 The partial defence applied to varied factual circumstances. There had been a willingness in the courts to leave the partial defence open for a jury's determination in circumstances where the killer had found his spouse in an act of adultery, or in circumstances from which adultery could safely be, and had been, inferred. The history and state of the law in that regard and the many varied factual scenarios in which the courts were, or were not, prepared to leave the partial defence to the jury were summarised in detail by Steytler J in 2003 in Hart v The Queen.137 221 His Honour found no real consistency between the cases,138 and remarked that they revealed 'conflicting attitudes which, over time, have shifted with the prevailing community standards'.139 His Honour cited,140 with apparent approval,141 a passage in the judgment of Gibbs J in Moffa v The Queen:142 The question has to be decided in the light of contemporary conditions and attitudes, for what might be provocative in one age might be 136 By the Criminal Law Amendment (Homicide) Act 2008 (WA). 137 Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441 [22] - [112]. 138 Hart [87]. 139 Hart [70]. 140 Hart [91]. 141 Hart [98]. 142 Moffa v The Queen [1977] HCA 14; (1977) 138 CLR 601 [8]. -- 44 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 45 regarded with comparative equanimity in another, and a greater measure of self-control is expected as society develops. 222 The topic was also dealt with in the recent decision of this court in Vella v The State of Western Australia [No 2]143 which, though a 2025 decision, concerned a second appeal against a 2005 conviction for wilful murder. Vandongen JA, before referring to the decision in Hart, observed that:144 It might appear surprising to speak of a defence being available to an accused person who has intentionally killed their spouse, which operates so as to reduce the accused's criminal liability for that killing if, applying the words of s 281, they 'acted in the heat of passion caused by sudden provocation, and before there is time for his passion to cool', where the provocation relied on is some form of infidelity on the part of the spouse. 223 By the time that observation was made, the partial defence to a charge of murder of sudden provocation had been gone from the law of this State for some 17 years, but still applied in that decision given the date of the murder. 224 The case concerned the brutal murder by the offender of his estranged wife, who had been separated from him for six weeks following his violence towards her and had obtained a violence restraining order prohibiting him from visiting the house. The offender had watched her from outside the home, and seen her in company with another man. 225 At his second appeal to this court, the offender argued that his trial counsel should have led evidence of the victim's (claimed) prior infidelity, as though this could have advanced the partial defence of sudden provocation. The appeal was dismissed. 226 In their joint judgment in Vella [No 2], Mazza & Mitchell JJA observed:145 The appellant appears to be blind to changes in contemporary attitudes of behaviour as to what might constitute provocative conduct for the purposes of s 281 (repealed) of the Code. His allegations of alleged misconduct by Mrs Vella overlook the fact that, at the time he killed her, he and his wife were separated and she was entitled to live her own life, which included forming relationships with whomever she chose. 143 Vella v The State of Western Australia [No 2] [2025] WASCA 70. 144 Vella [No 2] [193]. 145 Vella [No 2] [125]. -- 45 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 46 227 The repeal of s 281 did not, either expressly or by implication, have the effect of rendering a provocative act on the part of a deceased (whether related to an act of infidelity, or something else entirely) wholly irrelevant to sentence as a potentially mitigating factor, dependant on the factual scenario before the court. That is consistent with the second reading speech for the Criminal Law Amendment (Homicide) Bill 2008 before the Legislative Assembly on 19 March 2008, in which Attorney General Mr JA McGinty explained that the purpose of the repeal of the section was that 'if an offender was provoked by the victim, it is considered that this, as well as any other relevant circumstance, is most appropriately taken into account when sentencing the offender'.146 228 The change in the law did, however, reflect changing community attitudes towards 'crimes of passion'. The limitations on the law of provocation as it currently stands reflect an expectation that an ordinary person will, at a minimum, not lose control to the point of causing death or serious injury. 229 The current law in this State in relation to provocation is contained in sections 245 - 247 of the Code. Section 246 provides that a person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived of the power of self-control and acts upon it on the sudden and before there is time for his passion to cool, provided the force used is not disproportionate to the provocation and is not intended or likely to result in death or grievous bodily harm. 230 'Provocation' is defined to mean and include any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive him of the power of self-control and to induce him to assault the person. The defence is only available in the case of offences of which assault 'is an element'.147 It does not apply to offences which might factually encompass an aspect of non-consensual force but do not require proof of an assault as an element. 231 The appellant pleaded guilty to all charges including the charged assaults, and relied upon the concept of provocation only by way of mitigation. 146 Legislative Assembly, Hansard, 19 March 2008, p 1209c - 1212a. 147 Code s 245. -- 46 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 47 232 The prosecutor's submission before the learned sentencing judge, referred to at [41] above, impliedly accepted that if, taking a view of the facts most favourable to the appellant, there had been a rekindling of the relationship and the appellant's violence was wholly out of character for him, then there may have been more substance in a submission that the appellant's claimed loss of control upon finding his partner with another man in the caravan had some mitigatory value. 233 As it was, however, given that violence towards Ms Barnard and women generally, both inside and outside of an intimate relationship, was not out of character for the appellant, counsel submitted that the claimed loss of control could have no mitigatory value. 234 Her Honour's comments referred to at [102] - [107] above were consistent with an acceptance of that general position. 235 The State's submission before this court is that the appellant's 'loss of control' could not be mitigating in any event, let alone a mitigating factor of substance. The State's position before this court was, we infer, a fact-driven position. 236 It is not the law that it could never be mitigatory in an assault case for an offender to have been suddenly and shockingly confronted by an act of infidelity within what he believed to be a committed and monogamous relationship. 237 As to how mitigatory that fact might be, however, will obviously be very fact-driven, and balanced against the level of seriousness of the assault and any injury caused to the victim, whether or not the act of violence was out of character, and other factors, including contemporary attitudes of abhorrence towards domestic violence, and a growing awareness of the damaging nature of ownership and coercive control within relationships. If a relationship is toxic, or if exclusivity within a relationship is agreed upon but not respected, the solution is to end the relationship, rather than to respond with violence. 238 In the factual circumstances before the court, even taking a view of the facts most favourable to the appellant, he was in an unhappy, unsettled on-off relationship marred by prior domestic violence. The relationship had reached such a low point that Ms Barnard had obtained the FVRO, prohibiting the appellant from ever being at her home address. They were not living together. Ms Barnard was lawfully entitled to see other men, if she so chose. -- 47 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 48 239 Even assuming that the two had been intimate the evening before the offending in counts 1 - 4 the following morning, they had also argued and parted ways. The appellant had later seen Ms Barnard in the company of two other men at a hotel. He had plainly not then spent the night with Ms Barnard, despite the claimed reconciliation. Had he not unlawfully attended her house the next morning, drunk and in breach of the FVRO, he would never have seen another man within the privacy of the caravan. 240 It was after having already violently assaulted Mr Harris and then Ms Barnard that the appellant noticed her absence of underwear and had the presence of mind to question her. That was inconsistent with a claimed loss of control. The appellant accepted that he had then effectively attacked her vagina with his hand in order to humiliate her. That was also inconsistent with a claimed loss of control. It was consistent with a desire to exert control, out of a sense of ownership and a desire to punish and humiliate. 241 The learned sentencing judge also, justifiably, had regard to the fact that, several weeks later, the appellant again attended the complainant's premises, still in breach of the FVRO, in circumstances where Ms Barnard was simply at home with their child, and punched her to the face. The conduct on that second occasion made it plain that the appellant requires no provocation to resort to violence. 242 Her Honour also justifiably had regard to the appellant's previous convictions for violence against women. The violence of the offending in counts 1 - 4 cannot be regarded as an aberrant response to sudden provocation. 243 Even if there could have been some small mitigation to be found in the factual circumstances, the resulting violence including a violent sexual offence was so out of proportion to the upset that it eclipsed any mitigatory value there could have been. 244 We are satisfied that the learned sentencing judge was correct to find that there was no mitigation to be found in the appellant finding Ms Barnard with another man. 245 We return now to the submission that the sentence of the sexual penetration without consent in count 4 was manifestly excessive. -- 48 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 49 246 The appellant pointed to three decisions of this court in support of his submission, namely Juma v The State of Western Australia,148 The State of Western Australia v LSM149 and The State of Western Australia v Turaga.150 247 As this court has repeatedly said, appeals in which leave to appeal is not granted do not serve as comparators for the purpose of an argument of manifest excess or inadequacy. The offender in Juma was unsuccessful in his application for leave to appeal on the basis that his sentence for offences of sexual penetration without consent was manifestly excessive. The sentence imposed at first instance is of no assistance as a comparator. 248 The case of Turaga dates back to 2006, prior to the acknowledgement of this court of the need to firm up sentences for offending which amounts to domestic violence. It pre-dates the repeal of the mandatory one-third reduction in sentences by the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA). It also dates back to a period of time in which this court took into account special considerations relating to State appeals, namely a principle of double punishment, since repealed, which saw a reduction of 14 months in the substituted sentence. Totality considerations also arose in the case because the offences had been committed in breach of parole, and the offender owed 490 days in unserved sentence. 249 Factually, the case is not a comparator. It involved serious and sadistic sexual offending by the offender over a four-hour period against his estranged de facto partner who was the protected person in a violence restraining order. The offending did not involve violence over and above the sexual offending. The substituted total effective sentence of 7 years and 4 months, which seems too low in 2026, was also imposed under a sentencing regime which no longer exists. The case is too dated to be of any assistance as a comparator. 250 In the case of LSM, the sentence imposed at first instance of 5 years and 6 months' imprisonment was set aside and substituted for a sentence of 9 years and 6 months' imprisonment. 251 The offender had forced his wife into his car by holding her by her neck. He then drove dangerously down the Kwinana Freeway, 148 Juma v The State of Western Australia [2011] WASCA 54. 149 The State of Western Australia v LSM [2023] WASCA 132. 150 The State of Western Australia v Turaga [2006] WASCA 199. -- 49 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 50 threatening to crash the car and kill them both. The victim was twice able to escape the car before being captured and forced back in. She managed to call 000 when she was out of the car and the call was left open, capturing some of the offending on audio. Once home, the offender repeatedly and violently sexually assaulted her, forcibly penetrating her vagina with his fingers and penis, forcing her to perform fellatio on him, and, at the same time, strangling her, all as a form of punishment. The house was equipped with CCTV, which captured further audio of the offending, including her pleas for him to stop and his telling her, 'I'll rape you if I want to'. She finally fled the house. 252 Once the offender was in custody, he pressured her to drop the charges, including enlisting a friend to ensure the charges were dropped, before the offender was charged with attempting to pervert the cause of justice. 253 He pleaded guilty, but not at the first reasonable opportunity and was given the full 25% discount for his plea of guilty on all charges in error at first instance. 254 In his separate judgment, Quinlan CJ observed that, while there is no tariff for offences of sexual penetration without consent, offences for sexual penetration without circumstances of aggravation, which carry a maximum penalty of 14 years' imprisonment, can be expected to attract a sentence after trial of around 5 or 6 years' imprisonment. Like count 4 in this appeal, the convictions in LSM followed pleas and were therefore not after trial, but were aggravated because the offender and his victim were in a familial relationship, rendering the maximum applicable penalty one of 20 years' imprisonment. Quinlan CJ's comments in LSM are apt in this case:151 The circumstance of aggravation in this case reflects the recognition by the Parliament and the courts of the seriousness of offences involving family violence, including by reason of the significant breach of trust and exploitation of vulnerability involved in such offending. These matters make clear the importance of general deterrence in sentencing for offences involving violence by men on vulnerable victims (mostly women) with whom they are in domestic relationships. Secondly, the offences in this case were not only committed with the respondent's full knowledge that the victim was not consenting to his actions, they were evidently committed with the intention that that 151 LSM [14] - [15]. -- 50 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 51 would be so. That is, the respondent positively intended to violate, hurt, demean and humiliate the victim by his actions. 255 Among the various individual sentences imposed for the various sexual offences in LSM, the forceful digital penetration of the victim's vagina while she told him to stop, attracted a substituted sentence of 5 years' imprisonment following a discount for the pleas of guilty of 15%. Other acts of sexual penetration without consent, being fellatio and penile-vaginal penetration attracted terms of 6 years' imprisonment (or slightly less in the case of the offence which attracted the higher discount for the earlier plea of guilty). 256 In addition to his pleas of guilty, the offender in LSM had no prior criminal record, and the sentencing judge had accepted that the offender was genuinely remorseful and had acted out of character, which was accepted for the purposes of the appeal. The fact that the offender was significantly intoxicated and coming down from methylamphetamine at the time was not considered mitigatory. 257 When this court resentences after a successful appeal against sentence, the substituted sentence imposed does not fix the upper (or lower) limit of the range of a sound exercise of the sentencing discretion.152 258 The appellant in this case received a discount of 12% for his pleas of guilty and had a prior history of violent offending against women and limited insight into the seriousness of his offending, pointing to a high risk of reoffending and the need for a deterrent sentence. The decision in LSM suggests that the individual term of 6 years imposed in relation to count 4 in this case was firm, but does not suggest error. 259 Further, there is no hierarchy of seriousness by type of penetration in such offences.153 Each case must be considered individually to assess the seriousness of the offence committed. The exercise of considering comparable cases can be skewed if directed only to those cases which factually involve the same type of act of sexual penetration as though there is a de facto hierarchy of sexual penetrations by type, which is contrary to principle.154 On the facts of this case, the fact that count 4 was a digital penetration as opposed to a penile penetration does not reduce the seriousness of the offence. 152 Kabambi [21]. 153 Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17 [6] - [8] (Quinlan CJ), [125] - [127] (Buss P), [283] - [293] (Pritchard JA). 154 The State of Western Australia v Rayapen [2023] WASCA 55. -- 51 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 52 260 As was said by this court in The State of Western Australia v Rayapen,155 within the broader context of sentences customarily imposed for offences of sexual penetration without consent contrary to s 325 of the Code, sentences of 5 to 6 years are not unusual. Count 4 was an offence contrary to s 326 of the Code, carrying a higher maximum penalty. 261 This was a serious example of a sexual penetration without consent. It was forceful and painful, and motivated by a desire to degrade and humiliate. That motivation was accepted by the appellant in speaking to the psychologist.156 This was domestic violence by sexual penetration, after the appellant had beaten Ms Barnard so hard about the face that she was unable to see out of her swollen eyes, and strangled her to the point where she almost lost consciousness. Not only did the appellant not have her consent to the sexual penetration, but the inference is irresistible that her obvious lack of consent and pain and fear was the very point of the offending. 262 There was in this case an obvious need to deter the appellant from future violent offending, including violent sexual offending, against women. There were matters in mitigation, including his eventual plea of guilty, which attracted a 12% discount. Those matters did not include the 'toxic' relationship between offender and victim, or the fact that the appellant found Ms Barnard in the company of another man in the caravan. The matters in mitigation will be discussed in more detail in relation to ground 2, but they do not persuade us that the individual sentence for count 4 reveals error. 263 The sentence of 6 years was at the high end of the range of a sound exercise of the sentencing discretion, but not outside it. Leave to appeal on ground 1 is granted, but the ground fails. 264 We move finally to ground 2, which challenges the total effective sentence. Ground 2 - totality Legal principles in relation to totality 265 Ground 2 asserts that the total effective sentence of 10 years and 6 months' of imprisonment infringed the first limb of the totality principle. 155 Rayapen [238]. 156 Psychological report [13]. -- 52 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 53 266 Again, the legal principles in relation to such a ground of appeal are well known and stated in many cases such as Kabambi. Only the first limb of the totality principle is relevant to this appeal. It requires that the total effective sentence bear a proper relationship to the overall criminality involved in the offending in its entirety, having regard to all facts and circumstances, including those referable to the offender personally (including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentence imposed in comparable cases.157 267 Again, this court will not interfere unless the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.158 268 Of particular relevance to this case, in Kabambi this court observed that, 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, such that a heavy sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed for other counts, while a light individual sentence may be increased in severity if ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.159 Disposition 269 The appellant's submission, based upon the observation of the court in Kabambi cited directly above, is that the individual sentences which were ordered to be served cumulatively ought to have been ordered to be served concurrently.160 As can be seen from the table in [3] above, all bar one of the individual sentences imposed was ordered to be served cumulatively. The sentence imposed in respect of the aggravated assault occasioning bodily harm against Ms Barnard the subject of count 2 was ordered to be served concurrently. 270 There is no basis for a submission that, as a matter of principle, all counts on an indictment should be ordered to be served concurrently with each other. 157 Kabambi [21]. 158 Kabambi [21]. 159 Kabambi [21]. 160 WAB 20. -- 53 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 54 271 In support of his submission, the appellant refers the court to three decisions of this court, namely LSM and Juma referred to earlier, and Warburton v The State of Western Australia161 on the basis, it seems, that they were cases in which the sentences imposed, whether by this court or by the sentencing judge at first instance, included orders for concurrency. On that basis, the reference to those cases is misconceived and of no assistance to this court. 272 Treating the appellant's submission instead as relying upon the three decisions as comparators in relation to the total effective sentences imposed, the decision of Juma, as previously stated, is of no assistance. The appellant's reliance upon a sentence imposed at first instance is misconceived. 273 The 2009 decision of Warburton is not a comparable case. While sentencing ranges are discussed in Warburton, the offending occurred in 2007 at a time when a different sentencing regime applied,162 and concerned the aggravated sexual penetration without consent of a mentally disabled woman by her neighbour. It was not a case of domestic violence and there was no violence involved over and above the violence inherent in non-consensual penetration. 274 Comparing cases for the purpose of the first limb of the totality principle is already challenging, given the expected variation in the combination of offences making up the total offending in each case, and the variation in personal circumstances of offenders. It is of no assistance to this court to rely upon a case so unrelated to the circumstances of the current appeal. 275 The offending in the case of LSM, the broad facts of which are summarised at [251] - [252] above, was a serious case of domestic violence involving sexual violence. LSM is a reasonably recent decision of this court, reflecting the firming up of sentences in cases involving domestic violence. 276 It is always an uncomfortable task comparing levels of seriousness between cases which all involve serious and traumatic offending, but it needs to be done to ensure broad consistency in sentencing. 277 The total effective sentence imposed in the case of LSM after the successful State appeal was 9 years and 6 months' imprisonment, a year 161 Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361. 162 Prior to the repeal of the so-called 'truth in sentencing' regime by the passage of the Sentencing Legislation (Transitional Provisions) Amendments Act 2008 (WA). -- 54 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 55 less than the sentence imposed on the appellant in the current appeal. The discount in LSM for the pleas of guilty was 15%, although one offence attracted a higher discount of 20% for the earlier plea of guilty to that offence. 278 The totality of the sexual offending in LSM was considerably more serious than the sexual offending in this case, by virtue of volume. The victim was subjected to four violent non-consensual sexual penetration offences, including forced fellatio while also being strangled, as punishment and as a means of exerting control. Each sexual offence was aggravated and subject to the same maximum penalty as the current case. There were multiple occasions throughout the whole ordeal during which the offender in LSM was holding his victim's neck. The sexual offending caused physical pain, distress and humiliation and followed the terrifying deprivation of liberty and death threats in the car. 279 The offending in LSM also included the later attempt to pervert the course of justice, representing both an attack on the administration of justice and a further attempt to control the victim. There was also mitigation available to the offender by way of his lack of criminal record.163 280 In the current case there were two victims involved in the first group of offences. The current case was more overtly violent than the offending in LSM in terms of causing injury, and was charged accordingly. The offending in LSM, however, was more calculated and prolonged and included the attempt to escape the consequences of his earlier offending by pressuring the victim to get the charges dropped. The offending in the current case was more in the way of spontaneous violence, though both cases involved violent sexual offending. 281 The cases have obvious factual differences but, in terms of overall seriousness, we would regard the offending and overall circumstances in LSM as the more serious of the two cases. It attracted a sentence a year lower than the current case. The slight difference in the discount given for the pleas of guilty does not account for the difference in sentence. 282 A single case does not establish a range customarily applied in sentencing in comparable cases.164 The sentence imposed in LSM does 163 LSM [60] (Buss P). 164 Kabambi [24] citing Alalyani v The State of Western Australia [2018] WASCA 44. -- 55 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 56 not set an upper range for such offending and, in any event, reflects the inherent difficulty in comparing total effective sentences across cases which are factually varied. 283 The State did not proffer any comparable case to be taken into account in supporting the sentence imposed. 284 We have gained some assistance from the decision of this court in Gomboc, a case involving serious and very repetitive domestic violence, but not the added violation of sexual offending. The offender pleaded guilty to 19 offences. The conduct was highly abusive and comprised many incidents charged as threats to kill or harm, numerous of which occurred within the context of actual violence, or the use of weapons or objects. The offences included physical assaults occasioning bodily harm, an act of unlawful wounding, and an act endangering the health or safety of the victim with intent by way of strangulation. The impact on the victim of such prolonged and terrifying behaviour was significant. 285 The total effective sentence imposed at first instance of 11 years and 10 months' imprisonment was found by this court to have breached the totality principle and this court substituted a sentence of 9 years and 6 months' imprisonment. The facts of the case obviously differed from the current case and it is not a true comparator, but the decision and the review of other appeal decisions reviewed by this court in dealing with the totality ground165 was of assistance in gaining a 'broad-brush' picture of sentences imposed in serious domestic violence cases. 286 Comparing total sentences imposed in other cases is only one of the factors to be taken into account in considering whether the totality principle has been breached. 287 In the State's submission, while the total effective sentence of 10 years and 6 months' imprisonment 'may, at first blush, appear harsh',166 the factual circumstances, the length of the individual terms and the factors justifying accumulation of the individual terms are such that it cannot be said that error is revealed. Essentially, the State submits that the internal logic of the structure of the sentence does not reveal error. 165 Gomboc [204] - [218]. 166 WAB 50. -- 56 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 57 288 Her Honour was plainly mindful of the totality principle, ordering the sentence for count 2, the aggravated assault occasioning bodily harm to Ms Barnard, to be served concurrently. The assault upon Mr Harris represented an attack upon a separate victim, and the sentence for count 5 represented offending on a different occasion and in breach of bail conditions and the FVRO, which factors could justify orders for cumulation of those individual sentences. 289 The sentence imposed in respect of count 4, though not manifestly excessive, was high, and the orders made for cumulation of all bar one of the other offences did not ameliorate the impact of that high sentence. 290 The appellant clearly represents a risk of future offending against an intimate or former partner, whether that risk is described as 'a risk', or a 'high risk' or a 'significant risk'. He will continue to represent such a risk unless he is able to tackle his drinking, his temper and his distorted rationalisations that present him as a victim of his relationship. 291 A firm sentence was required to both protect the community, particularly women with whom the appellant may become involved, from his violence and to impress upon the appellant that his violence towards intimate partners will not be tolerated by the community, irrespective of whether a partner of his may be prepared from time to time to consider reconciliation. 292 Despite that, when we have regard to the facts and circumstances relating to the offender personally, including the desirability of accommodating his expressed wish to rehabilitate, the total effective sentence does appear to us to be too high to bear a proper relationship to the overall criminality involved in all of the offences viewed in their entirety. 293 In cases of serious domestic violence, an appellant's personal circumstances will carry less weight. They are not wholly irrelevant, however. 294 We consider that the matters in mitigation in this case included the appellant's childhood. Apart from his pleas of guilty, the appellant's dysfunctional upbringing was the most powerful factor in mitigation. 295 The psychologist placed some emphasis on the appellant's childhood and its connection to his alcohol abuse and controlling and -- 57 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 58 jealous behaviour within relationships. Those matters are detailed at [55] and [70] above. 296 The effects of childhood deprivation do not diminish with the passage of time,167 and they have plainly not diminished in the case of the appellant. 297 The link between his childhood and his issues as an adult is plain enough. The appellant was raised by an alcoholic mother who was violent, and he was frequently exposed to violence and excessive alcohol consumption within her relationships, except when he was raised by his grandmother and when his mother moved to Perth and left him behind. 298 All of his main relationships as a child were either missing, or insecure. He grew into an adult who drinks to excess and is jealous and violent within relationships, and justifies the same to himself. The psychologist thinks it likely that he resorts to negative coping strategies - alcohol and gambling - to cope with childhood abandonment and victimisation. 299 The learned sentencing judge made no reference in her sentencing comments to the appellant's background of instability and abandonment, or exposure to domestic violence and chronic alcohol and substance abuse as a mitigatory factor. 300 That is not to say that her Honour did not have some regard to his background as, in discussions with the prosecutor, her Honour stated that she intended to rely upon the psychological report in that regard rather than the psychiatric report,168 although her Honour thought it to the appellant's benefit that he was 'if I can put it bluntly, not milking his childhood for best effect in court'.169 301 We consider that the appellant was very disadvantaged practically and emotionally by his childhood, and his offending repeats the violence and alcoholism he was exposed to as a child. He is motivated to change, but plainly lacks insight, which can be developed with programmatic intervention. 167 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [43] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). 168 WAB 83. 169 WAB 83. -- 58 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 59 302 The appellant's criminal record, while of obvious concern, does suggest that he is able to respond positively to deterrence by way of a term of imprisonment. The appellant's most serious prior convictions are two assaults occasioning bodily harm. Following his one and only prison term of 12 months imposed in March 2014 for the most recent violent offences on his record, the appellant remained conviction free for more than six years. There was also an earlier gap in his record of about five years from January 2005 to February 2010. The present offences do, however, represent a concerning escalation in seriousness. 303 The appellant's character references are very positive as to his remorse and desire to set a better example for his children. Despite that, he violently assaulted Ms Barnard on two occasions when their young son was nearby. Clearly, any insight he may have as to the importance of a stable childhood disappears when he is drunk. 304 The appellant is, while in custody, attempting to better himself. He has been baptised into the Christian faith and is undergoing self-funded counselling with the Whitehaven Clinic. His employment history is a positive, and speaks to some ability to be a productive member of the community. 305 The appellant is now in his early forties. His dysfunctional childhood and his alcohol abuse is likely to have compromised the natural maturing process. If there is a time for the appellant to make meaningful inroads into his behaviours and attitudes, that time is now, when he faces the significant consequences of his offending and is motivated to undergo counselling at his own expense within custody. 306 These cases are difficult sentencing exercises. Any court sentencing such an offender must have concerns for future potential victims. That concern played a significant role in the lengthy sentence imposed by the learned trial judge. 307 There can never be a guarantee that the appellant will not reoffend unless he is imprisoned for the rest of life, and the offending in this case, while serious, cannot possibly justify such a course. The sentence imposed must bear a proper relationship to the overall criminality involved. 308 While it often seems distasteful to comment on more serious features that might be absent from the offending under consideration, lest that be thought to downplay the seriousness of the offending or the -- 59 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 60 impact upon the victim, it is necessary to step back and see where the offending fits on the scale of potential offending. 309 Despite the undoubted seriousness of the offending, particularly the sexual offence, and the impact upon the victim, the injuries sustained by the victim did amount to bodily harm and not more serious harm, and the second occasion of offending was considerably less serious than the first occasion. 310 The sentence imposed by the learned sentencing judge will see the appellant spend at least 8 years and 6 months in prison, backdated to 26 October 2022, and possibly the full 10 years and 6 months if he is not released on parole. We consider that the total effective sentence imposed was so high as to demonstrate error. Leave to appeal is granted on this ground and the appeal allowed. Accordingly, the appellant must be resentenced. 311 We consider that a lower, but still lengthy, term of imprisonment coupled with parole eligibility will reflect the seriousness of the offending, achieve general and personal deterrence and bring home to the appellant the seriousness of his offending, while also acting as encouragement to the appellant to use the time in custody to address his distorted thinking and to tackle his dependency on alcohol. Resentencing 312 This court has all the materials necessary to resentence the appellant. 313 There was no suggestion in this appeal that the discount allowed by the learned sentencing judge for the pleas of guilty following negotiations was inappropriate. A discount of 12% appears to us to be appropriate and so we allow that same discount. 314 After taking into account the facts and seriousness of the offending, the appellant's pleas of guilty and the other matters in mitigation, we would impose the following terms: 1. On count 4 - 5 years and 6 months' imprisonment. 2. On count 1 - 12 months' imprisonment, reduced to 6 months, for totality. 3. On count 2 - 2 years and 6 months' imprisonment. -- 60 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 61 4. On count 3 - 2 years' imprisonment. 5. On count 5 - 18 months' imprisonment, reduced to 6 months for totality. 315 We would order that the sentences for counts 1, 3 and 5 be served cumulatively upon the sentence for count 4 and each other, and the sentence for count 2 be served concurrently. 316 That results in a total effective term of 8 years and 6 months' imprisonment. We would make the appellant eligible for parole, with the sentence to take effect from 26 October 2022 to reflect time in custody. Conclusion 317 The orders of the court will be: 1. An extension of time within which to appeal is granted. 2. Leave to appeal is granted on grounds 1 and 2. 3. Leave to appeal is refused on grounds 3, 4 and 5. 4. The appeal is allowed. 5. The sentences imposed by the learned sentencing judge on 23 December 2024 are set aside. 6. The appellant is resentenced as follows: Count 4 - 5 years and 6 months' imprisonment. Count 1 - 6 months' imprisonment. Count 2 - 2 years and 6 months' imprisonment. Count 3 - 2 years' imprisonment. Count 5 - 6 months' imprisonment. 7. The sentences on counts 1, 3 and 5 are to be served cumulatively upon the sentence for count 4 and each other, and the sentence for count 2 is to be served concurrently, resulting in a total effective sentence of 8 years 6 months' imprisonment. -- 61 of 62 -- [2026] WASCA 108 JUDGMENT OF THE COURT Page 62 8. The appellant is eligible for parole. The sentence is to be taken to have commenced on 26 October 2022. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. NM Associate to the Hon Justice Sweeney 31 JULY 2026 -- 62 of 62 --