FLETCHER -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 112

[2026] WASCA 112 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FLETCHER -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 112 CORAM : HALL JA ARCHER JA SWEENEY JA HEARD : 14 JANUARY 2026 DELIVERED : 7 AUGUST 2026 FILE NO/S : CACR 121 of 2024 BETWEEN : TREVOR STEVEN FLETCHER Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : GETHING DCJ File Number : IND 484 of 2023 Catchwords: Appeal against sentence - Backdating error - Arson offences - Additional evidence on appeal - Mitigatory value of conditions in prison - Whether imprisonment more onerous on appellant -- 1 of 49 -- [2026] WASCA 112 Page 2 Legislation: Sentencing Act 1995 (WA), s 37 Result: Leave to appeal granted Appeal allowed Appellant resentenced Category: B Representation: Counsel: Appellant : Mr C Porter & Mr C Parker Respondent : Mr T B L Scutt Solicitors: Appellant : Hugo Law Group Pty Ltd Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 Astill (No 2) v R (1992) 64 A Crim R 289 Bekink v The Queen [1999] WASCA 160; (1999) 107 A Crim R 415 Betts v The Queen [2016] HCA 25; (2016) 258 CLR 420 Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348 Costar v The State of Western Australia [2025] WASCA 187 de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 Debono v The State of Western Australia [2019] WASCA 193 Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 Mooney v The State of Western Australia [2007] WASCA 54 R v Lian [2023] SASCA 122; (2023) 144 SASR 303 R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231 R v Perez-Vargas (1986) 8 NSWLR 559; (1986) 25 A Crim R 194 Ratcliffe v The State of Western Australia [2026] WASCA 75 Smythe v The State of Western Australia [2026] WASCA 107 -- 2 of 49 -- [2026] WASCA 112 Page 3 The State of Western Australia v O'Kane [2011] WASCA 24 The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 Watts v The State of Western Australia [2026] WASCA 83 Wellstead v The State of Western Australia [2019] WASCA 130 Wheeler v The Queen [No 2] [2010] WASCA 105 York v The Queen [2005] HCA 60; (2005) 225 CLR 466 -- 3 of 49 -- [2026] WASCA 112 Page 4 Table of Contents Overview .................................................................................................................................... 5 Ground of appeal ........................................................................................................................ 7 Power to resentence on appeal ................................................................................................... 7 Facts of the arson offences ......................................................................................................... 8 Count 1 - criminal damage by fire ........................................................................................ 12 Count 2 - attempted criminal damage by fire ....................................................................... 12 Count 3 - criminal damage by fire ........................................................................................ 13 Seriousness of the offending .................................................................................................... 14 Personal circumstances and matters taken into account in mitigation at sentencing ............... 15 Sentences imposed at first instance .......................................................................................... 18 Facts of the traffic offences ...................................................................................................... 19 The appellant's application to put further evidence before this court ....................................... 21 Principles as to receiving additional materials ..................................................................... 21 To what extent can a sentencing judge take into account poor conditions in prison? .......... 22 The additional materials ....................................................................................................... 36 Resentencing ............................................................................................................................. 46 -- 4 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 5 JUDGMENT OF THE COURT: Overview 1 On 8 July 2024, the appellant was convicted on his pleas of guilty of two offences of criminal damage by fire, otherwise known as arson, and one offence of attempted arson. He was sentenced on 22 October 2024 by Gething DCJ (as his Honour then was) to a total effective sentence of 5 years' imprisonment. 2 The appellant had recently served a term of 22 months' imprisonment imposed by Stewart DCJ on 29 August 2023 for an offence of possession of methylamphetamine with intent to sell or supply. That sentence had been backdated to 3 August 2021 to take account of the appellant's time in custody on remand pursuant to s 87 of the Sentencing Act 1995 (WA). The backdating meant that, on 29 August 2023 when it was imposed, the sentence had already been served in full as of 2 June 2023. 3 Gething DCJ backdated the sentence for the arson offences to commence on 30 August 2023. It is common ground that, in ordering that backdating, his Honour acted on erroneous information provided to the prosecution by the Sentencing Information Unit. The correct backdate was 3 June 2023, and the error resulted in the appellant not being given credit for 87 days in custody. 4 The appellant raised with the learned sentencing judge the error in the backdate and claimed (correctly) that the backdate should be 3 June 2023. His Honour adjourned the proceedings for the appellant to discuss several matters with his counsel. Unfortunately, upon reconvening, both counsel shared the view that the proper backdate was to 30 August 2023. 5 On 12 November 2024, the appellant was further sentenced for a raft of earlier traffic-related offences, for which he received a cumulative term of 10 months' imprisonment. The backdating error might have been rectified at that sentencing had it been raised with the learned magistrate. It was not, however. And, so, the 87 days in custody on remand remain uncredited. 6 There is no ground of appeal suggesting that Gething DCJ erred in imposing a total effective sentence of 5 years' imprisonment. -- 5 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 6 7 While the backdating error could have been corrected pursuant to s 37(3) of the Sentencing Act had it subsequently been brought to the attention of his Honour, s 37(4) of the Act preserves a right to appeal the sentence, which the appellant has done. 8 The learned sentencing judge did not err, but the State concedes that the erroneous understanding of all involved in the appellant's sentencing (except the appellant) as to the appropriate backdate for the 5-year term has resulted in a miscarriage of justice. Further, the State concedes that the appellant must now be resentenced by this court. 9 The failure to credit 87 days is material1 and the State's concession is appropriately made. Leave to appeal is granted and the appeal allowed. The sentence must be set aside.2 The appellant must therefore be resentenced. 10 The appellant has sought to put a volume of additional material before this court for the purposes of the resentencing which, the appellant argues, should lead to the imposition of a sentence lower than that originally passed. Some of that material relates to matters that occurred after the sentence was imposed, and some before. 11 Among the matters raised by the appellant in written submissions and, to a qualified extent, oral submissions, is the important question of whether the substandard conditions endured by inmates at Hakea Prison generally should be treated as a mitigatory matter. The State takes issue with any such generalised approach. 12 It is a well-established sentencing principle that if, by reason of matters personal to an offender, he will find prison significantly more onerous than the general prison population, that should be taken into account in mitigation.3 The State takes no issue with that, but submits that no such mitigation is relevant in this case. 13 It is apparent that in some cases sentencing judges have taken hard conditions in prison into account in mitigation without necessarily linking it to increased hardship on an offender due to matters personal to him. This appeal gives the occasion for this court to examine whether a sentencing judge can properly take into account in mitigation 1 See Debono v The State of Western Australia [2019] WASCA 193, in which the failure to credit 17 days in an erroneous backdating was found to be material. 2 Criminal Appeals Act 2004 (WA), s 31(5). 3 The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [44] (Steytler P, with whom Martin CJ, McLure, Buss & Miller JJA agreed). -- 6 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 7 poor conditions experienced generally by inmates within a particular prison. 14 In our view, it is not open to do so. Nor does the additional material sought to be adduced in this case amount to evidence that the appellant would likely suffer hardship in prison that, by reason of matters personal to him, is more onerous than the average prisoner. 15 Much of the additional material is not truly additional, and was before the learned sentencing judge in one form or another. Other material relates to events which have occurred since sentencing, which are irrelevant or not mitigatory. We would refuse the appellant's application to adduce additional evidence. 16 The backdating error requires this court to resentence the appellant afresh. But in sentencing afresh, we are satisfied that the appropriate sentence is the same as that the learned sentencing judge imposed, except that the backdating must take into account the 87 days in custody not credited. We would impose the same sentences again, backdated to commence on 3 June 2023. Ground of appeal 17 There is a single ground of appeal: The appellant suffered a miscarriage of justice as a result of the sentencing judge not taking into account the entirety of the period available for backdating the appellant's sentence (s 31 Criminal Appeals Act 2004 (WA)). 18 The ground was particularised by reference to the error in relation to the backdate. It is unnecessary to explain those details again. The ground of appeal itself is properly conceded and the ground made out. Power to resentence on appeal 19 Pursuant to s 31 of the Criminal Appeals Act 2004 (WA) (CAA), this court may allow an appeal against sentence, or any order made as a result of a conviction on indictment, if it thinks a different sentence should have been imposed or a different order made. If this court allows such an appeal, it must set aside the sentence or order and may instead impose a new sentence that is either more or less severe, or make a new order, or may send the charge back to the court at first instance to be dealt with. The court may also take into account any matter, including any material change to a person's circumstances -- 7 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 8 relevant to sentence that has occurred since the sentencing by the court below and when the appeal is heard.4 20 Pursuant to s 41(2) of the CAA, if this court varies or sets aside the sentence imposed by the learned sentencing judge, it may also vary the subsequent sentence imposed by the Magistrates Court on 12 November 2024 in relation to the traffic offences, because the learned magistrate took into account as part of the application of the totality principle the fact that the appellant was already serving the 5-year term imposed by the District Court for the arson offences. Facts of the arson offences 21 It appears from the materials before the learned sentencing judge that the appellant and Ms Barbara Olney had been in an on-off relationship for some time. At the time of the offending, they had been together for about six weeks, but they also had some history together. It was not a good relationship. 22 The facts of the arson and attempted arson offences are taken from the statement of material facts read to the court, accepted by defence counsel at sentencing, and either repeated or incorporated by reference by his Honour, as follows. The facts have been rearranged slightly to put them into chronological order. 23 At the time of the offending, the appellant's girlfriend was Ms Olney. She regularly resided with a friend, Mr Derek Harris, at his house in Drummond Street, Redcliffe, where Mr Harris looked after her dogs. Mr Harris was the victim in count 1. 24 Mr Marc Dyer was the victim in count 2. He is Ms Olney's ex-partner and resided at premises in Belgravia Street, Belmont. On Friday, 29 July 2022, two days before the offending, the appellant and Ms Olney had driven to Mr Dyer's house. The appellant had parked the car, leaving Ms Olney in the car, then walked to Mr Dyer's house. When he returned to the car, the appellant told Ms Olney that he and Mr Dyer had argued. The appellant told Ms Olney that he was 'going to go back and burn the cars in their driveway'. 25 The victim in count 3 was Ms Olney's friend of many years, Mr Damien Clark. Mr Clark resided in a unit in Mars Street, Carlisle, which is a single, freestanding, brick and tin house in a complex owned by the Department of Communities. The appellant and Ms Olney had 4 CCA, s 41(4). -- 8 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 9 attended the unit several times in the past, including in the few days prior to the offence. 26 On 30 July 2022, Ms Olney caught a taxi to get away from the appellant. She travelled to Mr Harris' house in Redcliffe, to stay with him. She had left a bag behind in the appellant's car and he followed her taxi to the Redcliffe address. He approached the property carrying her bag but, upon approaching, was asked by Mr Harris to leave. The appellant put the bag down and departed. 27 Later that day, the appellant sent multiple threatening messages to Ms Olney that he was looking for her and would track down her location, including: • 6.39 pm - 'You know you are going to kill you dog'. • 8.26 pm - 'I can't wait to catch you. I'm looking'. • 8.30 pm - 'Derek's first'. • 8.45 pm - 'You can bet in the next fucken hour you're going to get in phone calls off everyone you know and I'll give up your location smart arse'. • 10.40 pm - 'Oh that's ok because when I get around to puppies house and if you not there when I turn up I that you have your own video of the tragic event'.5 [Incorrectly described in the statement of material facts and incorrectly read to the court as 'traffic event'.] • 11.00 pm - 'Your dog is dead pick him up up'. • 11.03 pm - 'Because while you're texting and thinking that you're a hero I've got someone that's about to track you and I don't give a fuk about your dog you any other monkey in your life so what you like nothing will change what is going to happen'. 28 On 31 July 2022, the appellant continued to send threatening and jealous messages, questioning Ms Olney's whereabouts, including: • 8.38 pm - 'You fucken disrespect me in the way you talk to me one more time and the first place I'm going is Derek and I'll 5 WAB 173. -- 9 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 10 smash his fucken head in you fucken smart-ass cont I'm sick of you fucken smart mouth you fucken clown'. • 10.50 pm - 'Where are you?' • 10.53 pm - 'Where are you?' • 10.54 pm - 'Where are you?' • 11.04 pm - 'Safe fucking the new dog'. • 11.18 pm - 'Who were you fucking last night in the hotel slut'. 29 At 11.56 pm that night, the appellant called Ms Olney for seven minutes on a private number. She recorded the conversation, during which the appellant said, amongst other things: • 'Where are ya?'6 • 'You know that you don't want to fucking tell me where you are because you're with some cunt now'.7 • 'You know what I'm going to do, you know? I'm going to fucking set you on f …'.8 • 'You're going to see, Derek's the first cunt, all right. Derek's the first cunt'.9 • 'Either you're lying or he's lying about shit that he - oh, about you fucking getting hotel rooms … Listen, dog, he's getting it'.10 • 'I'll jump on your fucking head, 'til your brain oozes out of your ear, you fucking dog'.11 30 After the telephone call, the appellant sent Ms Olney the following messages, now on 1 August 2022: • 12.04 am - 'Talk over'. • 12.47 am - 'It's because you f*** my future it's ok though because you're not getting away with it this time I know where 6 WAB 146. 7 WAB 148. 8 WAB 151. 9 WAB 152. 10 WAB 153. 11 WAB 154. -- 10 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 11 I'm going but I'm going to get you any other fucken dogs Google friends'. 31 At 1.19 am, Ms Olney sent, 'Goodbye Trevor. I'm not going to repeat the same shit, different day anymore. The outcome will always be the same and I'm so unhappy. I will always have love for U but we are getting nowhere fast Xxx'. In response, the appellant replied, at 1.20 am, 'B[r]ace yourself bye'. 32 The first of the arson offences occurred an hour and 20 minutes later. 33 We digress from the facts of the offending to deal with a complaint made by the appellant at sentencing. This was to the effect that the messages mentioned in the statement of material facts were only his messages. Defence counsel explained: 'He's saying at various times there were text messages that, if you like, in his eyes provoked him to respond in the way that he did, but that doesn't undermine what took place on the night'.12 34 However, the exchanges between the two, including Ms Olney's responses, were before the court by way of the tendered prosecution brief.13 Shortly after the complaint was made, his Honour observed: 'I think the impression I get from all the materials is it didn't appear to be as positive or supportive a relationship for either of them'.14 It is apparent that his Honour had seen the screen shots of her mobile phone showing both sides of the exchanges, as part of the prosecution brief. 35 The screen shots show that Ms Olney replied to some of the appellant's messages and not others. Some of her responses were abrasive in nature, plainly designed to let the appellant know that she would have no trouble moving on from their relationship. Some were feisty, designed to take the wind out of his sails: 'How is my dog dead when he is laying between all of us.'15 At one point the appellant quoted a few of her messages back to her, to which she texted: 'So big deal I was being mean just like U were', and then, 'Not nice is it.'16 Some of her responses amounted to telling him off for resorting to name-calling, bullying and threats, while some were an attempt to 12 WAB 72. 13 WAB 129 - 249. 14 WAB 72. 15 WAB 177. 16 WAB 190. -- 11 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 12 reason with him. Not one of her messages to the appellant was threatening in nature. Count 1 - criminal damage by fire 36 Around 2.40 am on Monday, 1 August 2022, the appellant attended the Redcliffe address where Mr Harris lived. The appellant was carrying with him two Molotov cocktails, which he ignited on the front (timber) verandah of the house. 37 Mr Harris was sleeping at the time. He was awoken by the sound of the dogs barking. He looked out of his bedroom window and saw a glow at the front of the house. He opened his front door and saw flames about 1.5 m high on his front verandah. He went inside his house to get a fire extinguisher, which he then used to extinguish the flames. 38 After extinguishing the fire, he located a Jack Daniels bourbon bottle and a Fireball whisky bottle on the verandah. The Fireball bottle had a scorched rag in it, in the form of a Molotov cocktail. At 2.53 am, Mr Harris called police and reported the incident. The fire left a burn mark, damaging the verandah of the house. 39 The offence carries a maximum penalty of life imprisonment. Count 2 - attempted criminal damage by fire 40 Not quite an hour later, at 3.37 am on 1 August 2022, the appellant attended the Belmont address occupied by Mr Dyer (of whom the appellant had previously said to Ms Olney that he was 'going to go back and burn the cars in their driveway'.) 41 CCTV footage from the residence captured the appellant, in company with a person unknown, pouring petrol from a jerry can over a black Kia Sorrento, a red Mazda 3, and a Hyundai hatchback parked in the driveway of the premises. The appellant, or his accomplice, poured accelerant on the ground leading away from the vehicles, towards two Molotov cocktails they had placed under a tree at the entrance to the driveway. One of them then lit the Molotov cocktails, before walking away from the area. 42 The Molotov cocktails burnt the grass patch around the base of the tree, but failed to ignite the petrol trail leading to the vehicles, hence the offence was charged as an attempted arson, which carries a maximum -- 12 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 13 penalty of 14 years' imprisonment. The matter was reported to police the next day. 43 The prosecutor clarified for the learned sentencing judge that a female occupant of the house had been messaged, during the night, to the effect that someone was in the vicinity of the house. She had then watched the events on CCTV, but waited until the next day to telephone police. Meanwhile, the appellant had moved on to the next address. 44 As to his criminal liability in relation to count 2, the prosecutor specified that the appellant was either the principal offender or, alternatively, procured his companion to ignite the accelerant. The learned sentencing judge (correctly) observed that, on either version of events, the appellant's culpability for the offence was the same. Count 3 - criminal damage by fire 45 About half an hour later, at about 4.05 am on 1 August 2022, the appellant attended the Carlisle address of Ms Olney's longstanding friend Mr Clark. A silver Chery sedan, belonging to Mr Clark, was parked in the carport of the unit. The windows to the vehicle were down. 46 The appellant doused the interior of the vehicle with petrol, and set the car alight. The fire inside the vehicle set the ceiling of the carport on fire which, in turn, spread through to the roof of the unit. Mr Clark was inside the unit, and heard a crackle and popping noise coming from outside the front door. He opened the door and saw flames coming out of the windows of the car and on the roof of the carport. He went back inside the unit and woke his friend, who was sleeping in the bedroom. The two exited the unit from the backdoor because of the flames at the front of the unit and jumped the back fence into a neighbour's property to escape the fire. The matter was reported to police at 4.08 am. 47 The fire caused $164,343.85 in damage to the unit (owned by the Department of Communities) and destroyed the vehicle. 48 At 4.34 am, after having committed all three offences, the appellant messaged Ms Olney, saying:17 17 WAB 126. -- 13 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 14 • 4.34 am - 'Ok that's 3 fucken houses and guess what I'm going to Mel's next get the dog ready cos I'm going to put a bullet in its fucken head. I told you not to fuck with me'. • 4.34 am - 'You got one minute and I'm gonna open fire on your frickin house'. 49 Count 3 carries a maximum penalty of life imprisonment. 50 Around 10.08 am on 5 August 2022, police attended the appellant's residence, arrested him, and searched his premises. Amongst other items, they located three whisky bottles, a pair of scissors and a piece of cut T-shirt. When questioned about the cut T-shirt, the appellant claimed that it was for use as a rag to clean his motorbike. Cell tower data associated with his mobile telephone number placed it in the area of each incident at the relevant time. Seriousness of the offending 51 The learned sentencing judge identified nine factors18 which reflected the seriousness of the arson offences: 1. Each of the three offences was committed within the context of the breakdown of a relationship, in which the offences were designed to punish Ms Olney for ending her relationship with the appellant and to instill in her a fear for her life. The offending carried with it therefore the implication of domestic violence; 2. The offending involved a degree of planning and premeditation, reflected in the text messages indicating an intention to commit the offences, in the creation of the Molotov cocktails and in the taking of accelerants to each location; 3. The fires were deliberately lit, intending to destroy or damage property; 4. The choice of location for lighting the fires: in count 1, the fire had the very clear potential to destroy or significantly damage the house, being started on a wooden front verandah; in count 2, the appellant attempted to light the fire with the very clear potential to destroy the cars and, finally, in count 3, the fire destroyed the car and caused significant damage to the house; 18 WAB 82 - 83. -- 14 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 15 5. The fires lit in relation to each of counts 1 and 3 posed a real risk of injury, even death, to the occupants of each house; 6. The size of the fire in count 3 meant that emergency services personnel had to attend, entailing risk of injury to them and, in addition, the expenditure of public money in order to put the fire out. It also rendered emergency services unavailable to attend other emergencies; 7. The significant losses which occurred as a result of the offending. In particular, the fire in count 3 caused $164,34319 worth of damage which, given that the home was public housing, would come out of the public purse. The car in count 3 was also destroyed; 8. The impact on the victims was considerable. His Honour found that the offending would have caused considerable distress to Ms Olney, Mr Harris and Mr Dyer. In addition, his Honour had a victim impact statement from Mr Clark (the occupant of the burnt unit and car in count 3) who said that, following the burning of the house, he had nowhere to go and was left with a feeling of total hopelessness at having lost what little he had. As a result of the fire, he was left homeless and carless, and unable to continue with casual work because of the loss of the car and other related high-visibility and safety work material. Following the fire, the property could not be secured and was looted, and he lost a number of expensive items and personal items. It was challenging for him to find new housing, which took five months. Mr Clark also suffered ongoing fear and anxiety; and 9. The appellant was on bail for drug-related offending at the time he committed the arson offences, showing little regard for the law. Personal circumstances and matters taken into account in mitigation at sentencing 52 The learned sentencing judge took into account the pleas of guilty, entered just under three months prior to the scheduled trial, in the face 19 The transcript indicates '$764,000' damage at WAB 82, but his Honour stated the correct figure of $164,343.95 at WAB 81. -- 15 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 16 of a strong case. His Honour allowed a discount of 10% off the head sentence on account of the plea.20 53 His Honour referred to the appellant's personal circumstances.21 The appellant was 47 years old at the time of the offending, and 49 at the time of sentence. His Honour accepted that the appellant's childhood had been marred by traumatic incidents when he was 6 and 7 years old, which are detailed in the pre-sentence and psychological reports. Then, at the age of 14, the appellant came across information which caused him to question his parentage, and that was a matter of significant distress to him. 54 The appellant's schooling was relatively uneventful, except for some bullying issues in high school. He left school as soon as he was able to secure employment, commencing an apprenticeship as a carpenter and joiner and, when employed, had worked in that field. The appellant had told the psychologist that he had been more unemployed than employed, because of his longstanding drug addiction. The appellant informed the court that he had some opportunities for work upon release. 55 His Honour referred to the appellant's three significant past relationships, the first in which the appellant's two (now adult) daughters were born, the second in which his newborn baby tragically died, and the third being the relationship with Ms Olney for around six weeks prior to the offending, (although it is apparent that they had a longer on-off history). His Honour found that the relationship with Ms Olney was neither positive nor supportive for either party. 56 The appellant was said to be in good physical health, apart from some ongoing pain from past injuries. His Honour referred to a diagnosis of post-traumatic stress disorder (PTSD) stemming from childhood trauma, witnessing violent incidents in the past, past incidents with the police and witnessing first-hand self-harm incidents by others in custody. 57 His Honour referred to the opinion of the psychologist to the effect that the appellant's early life experiences had played a role in shaping some predisposing factors contributing to his offending behaviour. The appellant was said to struggle with emotional neglect and identity issues, a tendency to feel inadequate and rejected, a tendency to isolate 20 WAB 84. 21 WAB 84 - 86. -- 16 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 17 and be emotionally withdrawn, difficulties with emotional regulation, a tendency to engage in impulsive and destructive actions as an expression of frustration and helplessness, and a tendency to use alcohol and drugs to cope. 58 His Honour alluded to the appellant's past issue with problematic drinking but concluded that alcohol had been overtaken by methylamphetamine use in the appellant's late 20s, which later progressed to daily use. The author of the pre-sentence report noted that the appellant was able to acknowledge the link between his substance abuse and offending behaviour. Defence counsel had acknowledged that, at the time of the offences, the appellant was using methylamphetamine. Counsel had also acknowledged that it was not a mitigating factor.22 59 His Honour noted that the appellant had been given significant past opportunities, while on court orders and on parole, to address his drug addiction, but his compliance had been poor. His Honour noted that the appellant had spent some time in Linkt supported recovery accommodation prior to being remanded in custody in relation to the current offending. 60 His Honour referred to character references tendered on behalf of the appellant from Mr Hartzenberg (a fellow prisoner), Mr Hicks (the prison chaplain), and Mr McDonald (a friend). Mr Hartzenberg wrote of his gratitude that the appellant had intervened to save his life when he had attempted suicide in his cell. Mr Hicks wrote that the appellant had found that event very traumatic, but Mr Hicks had been working through that trauma with him. 61 Mr Hicks also wrote of the appellant having turned to Christian beliefs, having successfully completed some theological studies, and of the appellant's hopes to continue studying to become a pastor. Mr Hicks also wrote that the appellant is a peer support member within the prison, voluntarily participates in Narcotics Anonymous meetings and is a member of the Prison Council at Hakea. The appellant was also working within the prison. His Honour noted all of those matters. 62 His Honour commented that the appellant's acquisition of faith while in prison was very significant to the appellant and had helped him to realise that he was on the wrong path. 22 WAB 72. -- 17 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 18 63 His Honour found that the appellant had used his time in prison well to improve himself, completing courses related to substance abuse, parenting skills and a Lifeline course in relation to talking about suicide. 64 A letter from the appellant dated 6 June 2024 was also before the court, in which the appellant expressed regret for committing the offences and acknowledged the loss caused by his actions and a willingness to engage in victim mediation. 65 Combining all of those factors, his Honour concluded: 23 I am prepared to allow you a measure of mitigation, on the basis that you appear to have made a firm decision to turn your life around, and taken some concrete steps along that positive pathway. 66 His Honour found that the appellant had taken some steps in relation to dealing with his drug addiction and in becoming aware of the psychological drivers behind his offending that still needed to be addressed. His Honour found that the appellant's risk of reoffending in the future was 'somewhat decreased'.24 67 His Honour also acknowledged that he would need to take into account the 22 months already served in relation to the drug offence as part of the total period of time spent in custody, to ensure that the time in custody bore a proper relationship to the appellant's overall criminality. Sentences imposed at first instance 68 The learned sentencing judge imposed the following sentences: 1. Count 1 (arson) - 3 years' imprisonment. 2. Count 2 (attempted arson) - 2 years 6 months' imprisonment. 3. Count 3 (arson) - 5 years' imprisonment. The sentences on counts 2 and 3 were ordered to be served concurrently with the sentence on count 1, resulting in a total effective term of 5 years' imprisonment. The appellant was made eligible for parole and the sentence backdated. 23 WAB 86. 24 WAB 86. -- 18 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 19 69 As the appellant submits that he should be resentenced for both the arson offences and the traffic offences which were dealt with by the Magistrates Court, we will set out the facts of the traffic offences below. Facts of the traffic offences 70 On 12 November 2024, the appellant was sentenced in the Magistrates Court for a raft of traffic related offences, which occurred more than a year prior to the arson offences, and the stealing of a motor vehicle which occurred in the same week as the arson offences. The facts of those offences were as follows. 71 On Saturday 13 March 2021 at 9.58 pm, police activated their emergency lights to direct the appellant to stop driving his car, but the appellant failed to stop as directed (RO1594/2021 aggravated failure to stop). He crossed to the wrong side of Great Eastern Highway and drove at 120 km per hour in a 60 km per hour zone while weaving in and out of traffic (RO1593/2021 reckless driving to escape police pursuit). The police lost sight of the appellant's vehicle and called off the pursuit. At the time of the incident, the appellant had no authority to drive, being under suspension (RO1585/2021). 72 For each of those offences the appellant received a term of 6 months' imprisonment to be served concurrently. 73 On 14 March 2021 at an unknown time (because the prosecutor did not state the time to the court), the appellant was driving a car in Redcliffe when police, who were driving toward him, activated their lights to direct him to stop. He failed to stop (RO1586/2021 aggravated failure to stop), and a collision occurred between the two cars, before the appellant then mounted a kerb and drove through a fence into a skip bin, causing the bin to be pushed into a parked car. The appellant then kept driving (RO1587/2021 failure to stop at an incident causing property damage), accelerating on Coolgardie Avenue to 100 km per hour in a 50 km per hour zone (RO1585/2021 reckless driving to escape police pursuit) before making a couple of turns into other streets which caused police to lose sight of him. At the time of the incident, the appellant had no authority to drive, being under suspension (RO1584/2021). The car he was driving was later found abandoned. 74 For the offence of failing to stop at an incident causing property damage, and a second such incident to come, the appellant received a $2,000 'global' fine. For failing to stop as directed, the appellant -- 19 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 20 received a term of 6 months' imprisonment to be served concurrently. For the offences of driving while under suspension and reckless driving, the appellant received terms of 8 months' imprisonment, to be served concurrently. 75 A few days later, on 17 March 2021 at 1.25 pm, the appellant was driving a car on Welshpool Road in Wattle Grove when police activated their lights and sirens to direct him to stop. The appellant accelerated heavily (RO1594/2021 aggravated failure to stop), then turned onto Roe Highway and continued to accelerate heavily, reaching a speed of 160 km per hour (the speed limit for the zone was not stated). On approaching an exit, he drove in the emergency lane in heavy traffic before colliding with the side of another car travelling in the same direction (RO1589/2021 reckless driving to escape police pursuit and RO1591/2021 failure to stop at an incident causing property damage). At the time of the incident, the appellant had no authority to drive, being under suspension (RO1588/2021). 76 Police called off the pursuit given his manner of driving. The appellant parked the car at a business in Canning Vale and was apprehended a short time later. 77 He was searched, and police located 15.08 g methylamphetamine which was the subject of the District Court sentencing before Stewart DCJ. His intention in regard to the drugs was to use them and share them with his partner and close associates.25 78 For the offence of failing to stop at an incident causing property damage, and the earlier similar offence, the appellant received a $2,000 'global' fine. For failing to stop as directed, the appellant received a term of 6 months' imprisonment to be served concurrently. For the offence of driving while under suspension, the appellant received a term of 10 months' imprisonment, to be served concurrently. For the offence of aggravated reckless driving, the appellant received a term of 10 months' imprisonment, to be served cumulatively on the existing sentence imposed by Gething DCJ. 79 Finally, more than a year later on 12 July 2022, a blue Toyota Corolla hatchback was stolen. Between 28 July and 5 August 2022, the appellant was in possession of the stolen vehicle and changed its appearance by removing a white sticker from the rear window. He was sentenced not on the basis that he was the original thief but on the 25 WAB 297. -- 20 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 21 extended basis of unlawfully driving the car without the consent of the owner.26 The two offences of arson and the attempted arson occurred during that same week. For the offence of stealing, the appellant received a term of 9 months' imprisonment to be served concurrently. The appellant's application to put further evidence before this court 80 The appellant's application dated 15 July 2025 to adduce additional evidence on this appeal was referred to the hearing of this appeal. 81 The appellant applied to put various materials before this court, said to be 'additional' materials, as annexed to an affidavit of the appellant's lawyer, Mr Parker. One of the annexures is an affidavit sworn by the appellant, annexing various materials. 82 Other than the materials which relate to the miscalculation of the backdating, and the limited material which relates to events which occurred after the sentencing before Gething DCJ, the State opposes the application on the basis that the materials are either irrelevant or would not have made a different to sentence. In so far as the materials relate to events which occurred prior to the sentencing and were not put before the learned sentencing judge, the State says the failure to do so is unexplained. 83 The State also made application to adduce additional materials in the event that this court does accept the additional materials relied upon by the appellant. Principles as to receiving additional materials 84 Section 39(1) of the CAA requires this court to decide the appeal on the evidence and material which was before the learned sentencing judge at first instance, but does not affect the power of the court to 'admit any other evidence' pursuant to s 40(1)(e) of the CAA 'for the purposes of dealing with an appeal'. 85 Pursuant to s 41(4)(a) of the CAA, on an appeal that 'does or may require' this court to impose a sentence, or vary a sentence imposed, on a person for an offence, this court 'may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard'. 26 Criminal Code (WA), s 371A. -- 21 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 22 86 The distinction between 'fresh' and 'new' evidence is of lesser significance in an appeal against sentence.27 The test for when this court should exercise its power to admit additional evidence in an appeal against sentence is whether, had the additional material been before the learned sentencing judge, a different sentence should have been imposed.28 87 The absence of material before a sentencing judge may give rise to a miscarriage of justice, but where such material was known to the appellant it will only be in an exceptional case that this court will conclude that the failure to disclose the evidence has resulted in a miscarriage of justice. An appeal is not generally an opportunity to advance material that was available to the appellant at the time of sentencing. An appellant who seeks to rely on such material bears an onus of explaining why the material was not submitted to the sentencing judge.29 This applies equally to resentencing on appeal. An appellant is bound by the forensic choices made at the original sentencing proceedings and cannot approach the resentencing exercise as if it were an opportunity to make an entirely new plea in mitigation, unhindered by what occurred in the court below.30 88 As a meaningful portion of the additional evidence sought to be put before this court relates to conditions inside Hakea Prison, we turn now to the legal principles determining what relevance such material could have to a sentencing process. To what extent can a sentencing judge take into account poor conditions in prison? 89 The decision of this court in Milenkovski v The State of Western Australia31 concerned an appeal against sentence by a member of a motorcycle gang who had been convicted of serious drug related offences, for which he received a term of 17 years' imprisonment. One of his grounds of appeal claimed that the sentencing judge had erred in declining to take into account in mitigation that the offender had served a significant period of time in solitary confinement on remand due to the risk of violence from rival gang members who bore him a grudge, 27 Wheeler v The Queen [No 2] [2010] WASCA 105 [53]. 28 Wellstead v The State of Western Australia [2019] WASCA 130 [82] - [84], citing Wheeler v The Queen [No 2]. 29 Watts v The State of Western Australia [2026] WASCA 83 [15] (Vaughan & Seaward JJA), [93] - [95] (Hall JA). 30 Betts v The Queen [2016] HCA 25; (2016) 258 CLR 420 [14]. 31 Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324. -- 22 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 23 and that he was likely to continue to serve his time under conditions more arduous than usual. 90 The affidavit in support indicated that the offender's conditions on remand were considerably more restrictive than his conditions post-sentence and, by the time the appeal was heard, he was no longer segregated and was back in with the general population. 91 Buss JA commenced his consideration of that ground of appeal with a general statement of principle:32 It is well-established that a sentencing judge, in determining the sentencing outcome in a particular case, must take into account, amongst other things, any subjective circumstances of an offender (as distinct from the prison conditions in which the offender is held) that may make imprisonment a materially harsher experience for him or her than for offenders generally. These subjective circumstances include, for example, advanced age, physical or mental ill health or disabilities, and a lack of fluency in the English language. Also, sentencing judges have occasionally made allowance in the sentencing outcome for the fact that a particular offender will be subject to prison conditions that are materially more arduous than normal, including where the offender will be held in lockdown conditions, solitary confinement or protective custody. However, the detention of an offender in solitary confinement or other punitive action taken because of the offender's breaches of prison rules or disciplinary requirements is not a matter which a sentencing judge is required to take into account. (citation omitted) 92 Buss JA then reviewed a significant number of High Court decisions and cases from around the country including this State,33 many of which were cooperation cases or risk of retribution cases (either due to criminal connections or the nature of the offending), in which an offender was in protective custody for his own safety. His Honour summarised the relevant principles as follows:34 32 Milenkovski [104] - [106] (Buss JA). 33 Including AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 (concerning a teacher convicted of child abuse offences); York v The Queen [2005] HCA 60; (2005) 225 CLR 466 (concerning an offender who had substantially assisted the authorities and received a suspended term); R v Perez-Vargas (1986) 8 NSWLR 559; (1986) 25 A Crim R 194 (an offender who had substantially cooperated with authorities); The State of Western Australia v O'Kane [2011] WASCA 24 (child-killer in protective custody due to the nature of offending, where no evidence to prove offender would suffer hardship beyond the norm); Mooney v The State of Western Australia [2007] WASCA 54 (concerning an offender who would be in strict security due to expected deportation). 34 Milenkovski [151] - [157] (Buss JA). -- 23 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 24 A number of principles may be distilled from the weight of authority as to whether some leniency or a discount should be given to an offender in the sentencing outcome for the fact that he or she has been or is likely to be subject to prison conditions that are materially more arduous than normal, other than for reasons attributable to breaches of prison rules or disciplinary requirements. First, the fact that an offender has served or is likely to serve at least part of a term of imprisonment in conditions that are materially more arduous than those applicable to the general prison population is a factor to be taken into account in the determination of the sentence. Secondly, if it is submitted, accepted or otherwise apparent at the sentencing hearing that an offender has been or is likely to be held in custody under conditions that are, at least in some respects, materially more arduous than those applicable to the general prison population, the prosecutor and defence counsel should provide the sentencing judge with all available information as to: (a) the facts and circumstances of the offender's detention in custody; (b) how those facts and circumstances differ from the facts and circumstances applicable to the general prison population; and (c) the nature and extent of any consequential hardship or benefit to the offender. Thirdly, the weight to be given in the sentencing outcome to an offender's detention under conditions that have been or are likely to be materially more arduous than those applicable to the general prison population will depend on all the facts and circumstances of the case including, for example, the reasons why the offender required or is likely to require protection and the duration or likely duration of the materially more arduous conditions. Plainly, any benefits to the offender, as well as the hardships, from the special nature of the offender's detention must be taken into account. Fourthly, greater leniency or a larger discount will ordinarily be given to an offender who is at risk of reprisals from other criminals held in prison because of the offender's cooperation with law enforcement authorities than an offender who is at risk of reprisals because of grudges arising in the context of the illegal activities of rival criminal gangs. The reason for this difference in treatment lies in the public policy rationale for allowing leniency or a discount for cooperation with law enforcement authorities, namely the demonstration of genuine remorse and apparent rehabilitation and, also, the public interest in the detection and successful prosecution of crime. This rationale is absent where the risk to the offender is attributable to grudges of the kind I have mentioned. -- 24 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 25 Also, greater leniency or a larger discount will ordinarily be given where the materially more arduous conditions have caused or exacerbated an offender's physical or mental illness or disability than where those conditions have not had that deleterious effect on an offender. Fifthly, the justification for allowing an offender some leniency or a discount where he or she has been or is likely to be held in custody under conditions that are materially more arduous than those applicable to the general prison population is that time spent in custody under materially harsher or more onerous circumstances is, in general, equivalent, in evaluating the sentencing objectives of punishment, denunciation, personal deterrence and general deterrence, to a longer period in custody under materially less harsh or onerous circumstances. 93 Buss JA was satisfied that the sentencing judge had erred in entirely ignoring the circumstances of the offender's incarceration prior to sentencing, inferring that the reasons the sentencing judge so decided were because the reasons for the prisoner's confinement were attributable to grudges arising in the context of the illegal activities of rival criminal gangs.35 Buss JA considered the actual mitigation to be found in conditions of imprisonment 'materially more arduous than those applicable to the general prison population' would depend on all the facts, including the reason why the offender required protection. His Honour concluded that a 'very small discount should have been allowed',36 but that, given the seriousness of the offending, no different sentence should have been imposed. 94 Mazza JA agreed with Buss JA's analysis of the legal principles as to the mitigation, if any, which may be given to the conditions in which an offender is held in custody, and observed that 'where it is submitted that an offender's detention has or will be more arduous, it is necessary for the submission to be supported by appropriate evidence'.37 Mazza JA disagreed, however, that the conditions in which the prisoner was held prior to sentencing were mitigatory, finding that 'The conditions of the appellant's detention in a mainstream unit could not be mitigatory'38 and that, while for a time the offender had been kept separate from the main prison population, 'this does not mean that the conditions of his imprisonment were materially more arduous'.39 In any event, his Honour did not consider a different sentence should have 35 Milenkovski [171] - [172]. 36 Milenkovski [204] (Buss JA). 37 Milenkovski [212] (Mazza JA). 38 Milenkovski [215] (Mazza JA). 39 Milenkovski [212] - [215] (Mazza JA). -- 25 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 26 been imposed and remarked that, if he was wrong about the mitigatory value of the conditions of the offender's confinement, any mitigatory value would have been 'very small'.40 95 McLure P reasoned as follows:41 As the appellant relied on his conditions in custody prior to sentencing as a mitigating factor, it was incumbent on the sentencing judge to consider that issue. However, the failure to consider that issue will only constitute a material error enlivening this court's power to intervene if it is a mitigating factor to which some weight must be given. A mitigating factor is defined in s 8(1) of the Sentencing Act 1995 (WA) to mean a factor which, in the court's opinion, decreases the culpability of the offender or decreases the extent to which the offender should be punished. Otherwise, the amount of weight to be given to a mitigating factor is in the discretion of the sentencing judge. I have had the considerable advantage of the review of the case law undertaken by Buss JA. That review discloses, not unsurprisingly, that whether conditions in custody are mitigating depends on all the circumstances of the case. A necessary but not itself sufficient condition is that there be material departures from the conditions applicable to the general prison population (usual custodial conditions). Material departures from usual custodial conditions will ordinarily be regarded as mitigating if that is a consequence of another mitigating factor that advances the public interest, such as informing on third parties or other cooperation with authorities. At the other extreme, material departures from usual custodial conditions for prison disciplinary reasons will not ordinarily be mitigating. 96 McLure P was not persuaded of the mitigatory value of the conditions in which the offender was held prior to sentencing, remarking that the period of his segregation was relatively short compared to his sentence, that 'the extent of the departure from usual custodial conditions for a person on remand or prior to sentence is not clear',42 that the conditions did not appear unduly harsh or unreasonable, and that he was separated for his own protection as a result of the risks associated with his voluntary membership of a motorcycle gang.43 40 Milenkovski [216] (Mazza JA). 41 Milenkovski [13] - [15] (McLure P). 42 Milenkovski [16] (McLure P). 43 Milenkovski [16] (McLure P). -- 26 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 27 97 There is in our view nothing in the decision of Milenkovski or the cases reviewed therein which supports the extension of the general principles summarised by Buss JA to a broader principle to the effect that conditions within a prison system generally, or within one prison within that prison system, should be held by the courts to a normal or usual standard, such that any deterioration from that norm, for whatever reason, is mitigatory. The emphasis in Milenkovski on the extent to which the conditions in which the offender was held departed from the conditions to which the main prison population was subject goes against the notion of a broader principle. 98 During oral submissions, counsel for the appellant was asked whether the appellant was arguing for the proposition that sentencing courts should sentence on the basis that any departure from a norm in sentencing conditions should attract mitigatory value, or whether the appellant's argument was that, due to matters personal to him, prison was more arduous for him. Counsel for the appellant wished to argue both positions, and placed considerable emphasis (as in written submissions) on the 1999 decision in Bekink v The Queen.44 99 Counsel submitted that the starting point was based on subjective factors personal to the appellant, but emphasised that conditions in Hakea departed from a norm that the executive had set for itself. The difficulty in that submission is that it suggests that all prisoners subject to such a regime should be entitled to mitigation on that score. When pressed, counsel clarified that the appellant is not seeking to establish any statement of principle which would result in all prisoners subject to a general regime receiving a discount in mitigation. The concession was clear when it was made, but the submissions that followed did still tend at times to return to a generalised submission about prison conditions. 100 The high point of support for such a broader principle in the authorities in this State is the judgment of Ipp J in Bekink. The sole ground of appeal against a 3-year sentence for an offence of unlawful wounding was to the effect that a miscarriage of justice had occurred because, since being sentenced, the prisoner had been subject to an executive order confining him to his cell in Casuarina Prison for 21 hours each day. 101 Fresh evidence to the following effect was not objected to and was admitted on the appeal. The reason for the confinement was not on 44 Bekink v The Queen [1999] WASCA 160; (1999) 107 A Crim R 415. -- 27 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 28 account of any misconduct on the part of the prisoner; a prison riot which occurred before he was at the prison had resulted in a decision to make structural changes to the prison to make it more secure and, in order to achieve that, half of the prison population was placed in 'lock down'. The lock down conditions meant that, apart from meal and medication times, and apart from a recreation period of 2 hours 15 minutes, the prisoner was confined to his cell. The recreation period was limited to walking in a 30-metre-long corridor at the same time as 26 other prisoners. He had no access to fresh air and sunlight at any time. 102 Ipp J considered the provisions of the Prisons Act 1981 (WA) before concluding that the prisoner was being kept under conditions not significantly different from those applicable to prisoners who have committed offences while in prison, and for a longer period.45 His Honour observed that confinement in a cell for a substantial period is a severe form of punishment.46 103 His Honour reviewed several decisions in which courts, his Honour said, 'have had regard to factors which render the imprisonment of a particular individual more arduous than the norm',47 such as where a prisoner had cooperated with police or become an informer and was to be kept in protective custody, where a prisoner contracted the AIDS virus, and where the prisoner was blind. At the time of the decision, there was no express power to admit the evidence of events post-sentence. From those decisions his Honour distilled the principle that the court is required to take into account the reductive effect of hardships, not ordinarily experienced by ordinary prisoners, that an offender through circumstances subjective to him, may endure by being in prison. If those hardships are not known at the time of sentencing, evidence may be given of them in the course of an appeal against the sentence imposed and the appellate court is required to have regard thereto in determining whether the sentence imposed was according to law.48 (emphasis added) 104 What followed from that principle, according to his Honour, was a statement of rather broader import:49 45 Bekink [6] (Ipp J). 46 Bekink [5] (Ipp J). 47 Bekink [9] (Ipp J). 48 Bekink [11] (Ipp J). 49 Bekink [12] (Ipp J). -- 28 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 29 In my view, it is no answer to the applicant's argument that half of the prisoners in Casuarina Prison are being subjected to the same regime. Three points can be made in regard thereto. Firstly, the fact that half of the prisoners in Casuarina Prison have to endure the same conditions does not transform those conditions into the norm for this State. 105 His Honour considered that the lock down conditions in Casuarina resembled conditions usually applicable to prisoners who have committed offences while in prison. His Honour observed that the lock down conditions were therefore 'significantly more severe than those contemplated by Parliament as the ordinary conditions of imprisonment when it passed the Prisons Act.'50 106 The second point made by his Honour was that 'our legal system is founded on equal justice before the law' and that, because the decision that placed the prisoner into lock down was made 'arbitrarily and fortuitously', he was receiving punishment of a more severe quality than those not unluckily selected, and therefore 'justice is not equal'.51 The third point was that the arbitrary nature of the allocation of prisoners to the lock down regime was, in his Honour's view, 'inimical to justice'.52 107 Nevertheless, his Honour did not interfere with the sentence imposed at first instance due to the modest period during which the prisoner had been subjected to the lock down regime. His Honour considered that, had the regime been known at the time of sentencing, it might have resulted in a sentence a month lower and a reduction in the period to be actually served of possibly 10 days, which was not a difference sufficient to justify appellate intervention. His Honour granted leave to appeal, but would have dismissed the appeal. 108 Heenan J broadly agreed with the approach of Ipp J, but expressed a concern as to the practicalities of such an approach and ultimately refused leave to appeal. His Honour pointed out that usually a sentencing court will have no information before it as to the prison to which an offender will be sent following sentencing, or as to what sentencing regime will be applied to him, as these 'are matters for the prison authorities into whose custody he is entrusted'.53 That remains the case in 2026. The court has no role in selecting into which prison, or progression of prisons, a prisoner will be placed. 50 Bekink [12] (Ipp J). 51 Bekink [13] (Ipp J). 52 Bekink [14] (Ipp J). 53 Bekink [29] (Heenan J). -- 29 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 30 109 Heenan J acknowledged that, where there is a basis before the court for concluding that imprisonment will 'impose hardship upon a particular individual which is much greater than the average person' then the court 'might impose a term shorter than usual'.54 110 His Honour continued:55 The same approach might be adopted if, for example, the sentencing court were informed that a large minimum or medium security prison were destroyed by earthquake or flood, so that all prisoners, or even a particular group of prisoners, would be subject to unduly onerous conditions for a substantial period. Thus, had [the sentencing judge] been aware that the [prisoner] would be subject to the particular regime in question throughout his time in prison, his Honour might well have imposed a sentence of less than three years imprisonment. 111 His Honour observed that there was no evidence before the court as to whether, or for how long, the prisoner would remain subject to the lock down regime and questioned whether, should the court reduce his sentence to reflect the more onerous nature of his time in prison to date, it would be met with a further appeal should it transpire that he remained subject to the same regime after his appeal. 112 His Honour was also concerned, like Ipp J was, about whether modest reductions to a sentence would be 'fairly perceived as tinkering' with the sentence.56 His Honour remarked that 'these are merely some examples of the practical difficulties that such an approach would bring'.57 His Honour refused leave to appeal. 113 Anderson J also refused leave to appeal. His Honour considered it to be 'a doubtful proposition' that, in selecting an appropriate custodial term, a sentencing court 'acts upon the assumption that prison conditions will be "normal"'.58 While his Honour accepted that courts assume that prison conditions 'will not be inhuman or cruel', he observed that59 I am not aware of any principle of sentencing that makes the sentence conditional on the prison regime being of a particular quality or which requires the sentencing court to appraise or evaluate the actual conditions in the various prisons to which the prisoner is likely to be 54 Bekink [29] (Heenan J). 55 Bekink [29] (Heenan J). 56 Bekink [31] (Heenan J) 57 Bekink [31] (Heenan J). 58 Bekink [22] (Anderson J). 59 Bekink [22] - [23] (Anderson J). -- 30 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 31 sent, before handing down sentence. Therefore, I think it is impossible to take the next step called for by the argument. That is, that if it should turn out that the conditions are harsher than those that were assumed at the time of sentence, the sentence should be shortened on appeal. In my opinion, there is no basis in law for this approach. 114 His Honour acknowledged the general principle in relation to the potential mitigatory value of factors personal to the offender having the effect of rendering his time in prison more onerous, before continuing:60 It is one thing, however, to say that Judges must have regard for matters personal to a convicted person in determining the appropriate punishment for him or her. It is quite another thing to say that the length of prison terms generally should be linked to some norm as regards prison conditions and adjusted according to whether the prison in question meets the norm. There is no suggestion of any such principle in the Sentencing Act and I know of no decided case which would provide a foothold for it. The enormous practical difficulties that would confront the courts in attempting to give effect to any such principle are alluded to by Heenan J. 115 The decision in Bekink is not clear authority for the proposition that substandard conditions in prison should be regarded as a mitigatory factor of general application. Ipp J and Anderson J were arguably on opposite sides of the argument, while Heenan J thought such conditions might well be taken into account by a sentencing judge, but was concerned about the practical difficulties attendant upon such a principle, a concern held in common with Anderson J, neither of whom granted leave to appeal. The judgment of Anderson J cannot be accurately described as a dissenting judgment. 116 In the 2006 decision of this court in de la Espriella-Velasco v The Queen,61 Roberts-Smith JA said of the judgment of Ipp J in Bekink:62 His Honour also referred to a comment by Kirby P (as his Honour then was) in R v Astill (No 2)63 … to the effect that ordinary sentencing principles would require consideration to be given to the disparity between 'arduous sentencing conditions' and 'ordinary sentencing conditions'. However, Kirby P was in dissent in that case and as Anderson J pointed out in Bekink (at [24]), it is one thing to say that 60 Bekink [24] (Anderson J). 61 de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291. 62 de la Espriella-Velasco [135] - [136] (Roberts-Smith JA). 63 Astill (No 2) v R (1992) 64 A Crim R 289, 293 - 294 (Kirby P). -- 31 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 32 judges must have regard to matters personal to an offender in determining the appropriate punishment for him or her but quite another to say that the length of prison terms generally should be linked to some norm and adjusted according to whether the offender's incarceration differs from the norm. I respectfully agree with that and I do not take Anderson J there to be expressing any different view to the principle Ipp J derived from his consideration of the authorities, namely that in sentencing the court is required to take into account the reductive effects of hardships, not ordinarily experienced by ordinary prisoners, that an offender through circumstances subjective to him, may endure by being in prison. Further, as his Honour said, if those hardships are not known at the time of sentencing, evidence may be given of them in the course of an appeal against the sentence imposed and the appellate court is required to have regard thereto in determining whether the sentence imposed was according to law. 117 In the 2007 decision of this court in Cohen v The State of Western Australia [No 2],64 Steytler P committed to the views of Anderson J in Bekink and Roberts-Smith JA in de la Espriella-Velasco. After observing that 'Some disquiet has been expressed at the notion of making allowance for an unduly harsh prison regime',65 his Honour quoted from Anderson J in Bekink and Roberts-Smith JA in de la Espriella-Velasco, and the following observation from Gray J in R v Liddy (No 2)66: Making an allowance for an unduly harsh prison regime creates considerable difficulty. Such an approach may lead to a court participating in both law enforcement and the administration of prisons. The latter is traditionally a matter for a different arm of government. A consideration of the doctrine of the separation of powers suggests that involvement of this kind by the courts is inappropriate. 118 Then in a brief but clear indication, Steytler P, with whom Buss JA agreed and McLure JA relevantly agreed, observed that 'In this case concerns of the kind discussed by Gray J, Anderson J and Roberts-Smith JA are particularly apposite'.67 119 It is the experience of the court however that some, but not all, sentencing judges do, at least on occasion, take the well-publicised conditions at Hakea into account at sentencing, or at least express some sympathy for offenders who have been enduring ongoing lock down 64 Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348. 65 Cohen [No 2] [24] (Steytler P). 66 R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231 [207] (Gray J). 67 Cohen [No 2] [29] (Steytler P). -- 32 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 33 conditions. The extent to which such a consideration has resulted in any meaningful reduction in sentence, however, is often unknown. 120 Despite that, we do not consider there to be any clear support in the authorities in this State for the proposition that substandard conditions in prison, suffered by the general cohort or a substantial proportion of the general cohort of inmates, should be regarded as a mitigatory factor. To the contrary, the weight of opinion is that such conditions cannot properly be taken into account. 121 The appellant pointed to a recent decision of this court in Costar v The State of Western Australia68 in which this court took into account the conditions to which the offender had been subjected in Hakea. The offender suffered from schizophrenia to the extent that the usual weight attached to general deterrence was in his case reduced. Serious mental illness of that nature is very often regarded as a basis upon which to accept that, due to the offender's vulnerability, prison will go harder on him. No issue was taken in Costar concerning any proposition that harsh conditions should be considered to be generally mitigatory, and the decision does not stand as an authority for such. 122 There is recent authority from this court against the proposition. In the decision of Ratcliffe v The State of Western Australia,69 this court admitted further evidence on appeal in relation to the offender's personal experiences in prison for the limited purpose of resentencing. The court gave some limited mitigation to the fact that the prisoner was to serve his time in protective custody due to the nature of his offending. 123 However, evidence that the prisoner had been one of three occupying a cell meant for two at Hakea Prison, his descriptions of difficulties in accessing courses and his experiences on his first night in prison, was regarded as irrelevant to sentence in the absence of evidence that his experience was different to the conditions experienced by the general population.70 124 Even more recently in the decision of Smythe v The State of Western Australia,71 submissions were made about conditions at Hakea to which the offender in that case had been subjected. After citing Ratcliffe, this court stated: 68 Costar v The State of Western Australia [2025] WASCA 187 [130]. 69 Ratcliffe v The State of Western Australia [2026] WASCA 75. 70 Ratcliffe [145]. 71 Smythe v The State of Western Australia [2026] WASCA 107 [52]. -- 33 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 34 The conditions described by the appellant are concerning. It is unsurprising that prisoners such as the appellant report a decline in their mental health due to situational anxiety in experiencing such conditions. But those who are responsible for the welfare and safe custody of prisoners under the Prisons Act 1981 (WA) are no doubt well aware of their duties. In this appeal the only question for the court is whether the conditions the appellant says he has experienced at Hakea Prison are a significant mitigating factor. They are not. There is nothing in the appellant's affidavit by which it can be concluded that his personal circumstances are such that he has experienced materially more arduous conditions than those experienced by the general prison population. 125 The decision of Bekink has been overtaken by this recent authority. 126 The appellant briefly referred this court to the High Court decision in York v The Queen,72 which was considered by Buss JA in Milenkovski.73 In York, serious concerns were held for the safety of an offender who had cooperated with the authorities to a high degree and, as a result, was under an identifiable and credible risk of being killed inside prison. The only ground in the successful appeal by the Attorney-General in the Court of Appeal was that the suspended term imposed by the sentencing judge for the offender's drug related offences was manifestly inadequate. The complaint was as to the type of disposition, not the length of the term. The High Court unanimously reversed the decision of the Court of Appeal. The decision needs to be viewed within that important context. 127 While McHugh J made a broad statement that 'in fixing an "appropriate penalty"' a sentencing judge is 'entitled to take into account any matter' that ensures that the sentence achieves the function of the criminal law and the purposes of punishment,74 the matter under consideration was the risk of death which his Honour considered a relevant factor, the weight of which would depend upon all the circumstances of the case, including the likelihood of its occurrence.75 The decision does not constitute High Court authority for the proposition that harsh conditions within prison are mitigating generally despite a lack of material suggesting they will make prison more 72 York v The Queen [2005] HCA 60; (2005) 225 CLR 466. 73 Milenkovski [110] - [115] (Buss JA). 74 York [21] (McHugh J). 75 York [23] (McHugh J). -- 34 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 35 arduous for the specific offender than for the general population. It is unnecessary to analyse York further.76 128 There are considerable practical difficulties with the notion that substandard conditions in prison from time to time or generally should be taken into account as a mitigatory factor at sentencing. Those difficulties include the comparison of standards from one prison to another (there are 18 prisons in this State alone), from one period of time to another, and the comparison between one prisoner to another as to how long each prisoner was subject to a particular regime. 129 Prisoners in 'better' prisons would have to expect correspondingly higher sentences than those in prisons suffering resources challenges, as no mitigation could be found for those in better conditions. Under such a broad principle, application of the parity principle would require consideration as a matter of course of the prison conditions to which each offender was subject. There are more practical difficulties, but these will suffice. 130 Finally, in reaching this view, we have given consideration to s 57 of the Prisons Act which provides a right of inspection of any prison at any time to a Supreme or District Court judge. The right of inspection by a judge in our view is simply concerned with transparency and accountability on the part of the executive, and the right of inspection by an independent judiciary encourages the same. 131 None of this is to suggest that this court does not share the legitimate concerns expressed by others as to the conditions in which prisoners are housed in facilities which are overstretched and under-resourced, such that the rehabilitative capacity of such facilities is surely compromised. But equally it does not suggest that the courts bear any continuing responsibility for monitoring the standard of prisons or incorporating assessments of those standards into the sentencing process. 132 Further, in our view, if the question of imprisonment versus a non-custodial option is a finely balanced one at a particular sentencing exercise and rehabilitation is a primary consideration, questions of what rehabilitative features a facility offers, if the facility in which a prisoner will be housed is a known quantity (as it may be, for example, in the 76 The decision in York was analysed in detail by the Court of Appeal of South Australia in R v Lian [2023] SASCA 122; (2023) 144 SASR 303 [35] - [52] (Kourakis CJ), [151] - [153], [162] - [163] (Doyle JA with whom Lovell JA relevantly agreed). -- 35 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 36 case of a juvenile offender), may legitimately be of relevance in choosing the most appropriate sentencing disposition. That is a quite separate matter from mitigatory value being attached to conditions within a prison generally. The additional materials 133 The appellant's submission over and above the submission concerning sub-standard conditions generally in prison is that, due to the appellant suffering from PTSD which was caused by the conditions within Hakea, and for which no medical treatment, or no sufficient medical treatment could be obtained in Hakea, coupled with the combination of the appellant's exposure to attempted suicides and deaths in custody as well as his failure to be at his mother's bedside when she passed, imprisonment has been more onerous for the appellant than the general population in prison. 134 With that in mind, we turn now to the additional materials relied upon. The appellant has sworn an 11-page affidavit dated 14 July 2025, which covers multiple topics, and to which there are numerous annexures. Some extra materials have also been provided as annexures to an affidavit sworn by one of the appellant's legal representatives, Mr Parker. We will deal with the material by topic. 135 The appellant's affidavit speaks of deaths in custody. The appellant writes that he has 'experienced' a large number of deaths in custody, and that he has 'been a witness to 14 prisoners committing suicide through my position in Peer Support meetings'. Later references in the affidavit suggest that the appellant is speaking of men committing suicide at the same time that he was in custody, rather than personally witnessing such incidents. He details two specific incidents. 136 The first relates to an incident in January 2024 where the appellant intervened to save a fellow prisoner from suicide in his cell by hanging. A letter from Mr Hartzenberg expressing his gratitude to the appellant for intervening in his suicide attempt is annexed to the affidavit. 137 That same letter was provided to the learned sentencing judge, and is not fresh evidence. The appellant's counsel at sentencing informed the learned sentencing judge of the appellant's role as a peer supporter and of the 'very confronting' incident involving Mr Hartzenberg.77 His Honour also had the reference from the prison chaplain, Mr Hicks, 77 WAB 73. -- 36 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 37 who spoke of the incident involving Mr Hartzenberg and the 'huge impact' it had on the appellant. Mr Hicks wrote of how it had taken several months for the appellant to deal with the trauma and had brought some past experiences and childhood trauma to the surface. The incident was also mentioned in the pre-sentence report and the psychological report. His Honour expressly took that matter into account. His Honour also included the past experiences and childhood trauma as causative factors in the PTSD. 138 The second incident relates to the appellant having been asked to strip paint from a metal bed frame following an incident in March 2025 (post-sentence) where a prisoner had died from a fire in his cell. His affidavit indicates that he found the task (given the circumstances of the death) to be traumatic.78 That fresh evidence is relied upon to establish that the appellant has, predominantly due to PTSD in the face of such experiences, found imprisonment more arduous than others, and will continue to do so. 139 The appellant also writes of an inmate who was pushed into his cell at midnight that same night, and who suffered two seizures the following night because he was not given his prescribed medication. The appellant says that he rendered what first aid he could while waiting for staff to arrive, which took more than two hours. That is also fresh evidence. 140 The appellant referred to other prisoners self-harming. It is apparent from the further details provided in his affidavit that, for those particular matters at least, the appellant's source of knowledge was conversations with staff in the Crisis Care Unit. He wrote a letter dated 27 January 2025 about an incident in which a prisoner threatened to kill himself, and then later did. The letter asserts that the prisoner's threat to harm himself was made in front of other prisoners, not the appellant, and then not taken sufficiently seriously by staff to avert the later tragedy. That is fresh evidence. 141 The appellant's affidavit refers to his mental health issues. He writes that his mental health diagnosis of PTSD 'has been the direct cause (sic - result) of traumatic events and the conditions of the lockdowns at Hakea.'79 He says he is now on medication for PTSD (he has been since June 2024) but still suffers from symptoms. He was 78 WAB 51; the State took issue with whether the appellant had any direct exposure to the incident and the affidavit contains insufficient detail to indicate that he did. 79 YAB 16. -- 37 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 38 referred to Psychological Health Services (PHS) at Hakea Prison in January 2024 (after the incident with Mr Hartzenberg) but, due to a long waitlist, PHS was not able to see him until 6 April 2024, when he was given a single counselling session. 142 That material is not fresh evidence. The psychologist in the report prepared for sentencing recorded the appellant saying that he has engaged with a counsellor once, and that was only because of a senior officer pushing for it as he was on the scene after a person took their own life on 21 January 2024 and he has witnessed similar previous incidents. He stated that his intervention at one stage saved a person's life, although he has nightmares and sleeping issues as a result.80 143 It appears there was some confusion on the part of the psychologist as, according to the prison chaplain, Mr Hicks, it was the incident involving saving Mr Hartzenberg which occurred on 21 January 2024, and it was in connection to that incident that the appellant suffered trauma. The reference to having witnessed similar previous incidents is consistent with the appellant's affidavit, but his use of the term 'witness' is ambiguous, and it is not clear whether he has witnessed incidents, or heard of them from others. 144 A letter from Health and Disability Services is annexed to the affidavit. It notes that the appellant was seen by a Prison Medical Officer on 12 June 2024, at which time he was identified as experiencing symptoms of anxiety and PTSD and was prescribed medications, which were then reviewed on 9 September 2024 and continued. A letter from PHS to the appellant dated 18 September 2024 refers to having received a referral from him for counselling, but informs him that there is a long waitlist and no current capacity to provide general counselling, advising him to consider other options such as his unit Peer Support or the prison chaplain. None of that material is fresh evidence, relating as it does to events prior to the sentencing, including the letter from PHS. There is no explanation as to why, if this is relevant, it was not put before the learned sentencing judge. We will return to the appellant's PTSD below. 145 Minutes of Prison Council meetings are annexed to the affidavit. The appellant was a member of the Prison Council at Hakea and attended meetings in which issues affecting the prisoners were raised 80 Psychological report [11]. -- 38 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 39 with prison management. Defence counsel at sentencing informed the court that the appellant had given him minutes of monthly meetings which I haven't troubled your Honour with but he's certainly a member of that and the minutes revolve and recognise contribution he makes into improvement of decisions that affect prisoners, so he's playing a positive role then.81 146 Counsel's instincts to not provide the minutes at sentencing were entirely sound. His Honour took the appellant's involvement with the Prison Council into account.82 Those materials, which are not fresh evidence, could not have made a difference to sentence. 147 It appears that the appellant was transferred from Hakea to Eastern Goldfields Prison on or about 15 March 2025. His time there it seems was interrupted by an 18-day stay in Albany Prison in the Multi-Purpose Unit due to certain old security alerts relating to motorcycle gangs which affected his security rating, and restricted his opportunities for placement in Perth metropolitan area prisons. He wanted to participate in programmes so as to improve his prospects of parole and, on 4 June 2025, he wrote to the Assistant Commissioner of Corrective Services that the alerts 'are of a past I have left over 3 years ago'. He also hoped to be sent to Karnet Prison Farm, which would put him closer to where his father lives. The time in Albany Prison and his letter of 4 June 2025 are matters which arose post-sentence and are fresh evidence. 148 Consistent with his letter above, the appellant has annexed a letter from the Department of Corrective Services to Mr Scutt from the State which indicates that those security alerts were in place initially in Hakea and then the appellant was assessed and cleared of risk. The later issue on account of the security alerts was rectified. 149 The only relevance of the appellant's previous gang connections in the sentencing before his Honour was the reference in the pre-sentence report mentioned earlier, and in the character reference from the prison chaplain to the effect that the appellant had faced some challenges in his life including renouncing his gang affiliation. The prosecution made nothing of the alleged connections in submissions. 150 There is no mitigatory value on account of any delay occasioned by such alerts. The brief stay in Albany Prison is not a matter which, 81 WAB 73. 82 WAB 86. -- 39 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 40 had it occurred prior to sentencing and was known to the learned sentencing judge, would have affected the sentence imposed. There is also no material to suggest that the conditions to which the appellant was subject for a brief time in Albany were any worse than general conditions in Hakea. 151 In the annexures is a letter from Linkt Centre (undated) indicating that the appellant had contacted them seeking accommodation and explaining a little about the programme. That is not fresh evidence. His Honour took into account that, for a short time prior to being remanded into custody, the appellant had spent some time there.83 It is not clear that the letter itself was before the learned sentencing judge, but the matter was taken into account and the letter could not have made a difference to sentence. 152 There is also a letter annexed, undated, from Wandalgu Transformation Centre which is addressed to 'your honour' and refers to a telephone interview with the appellant while he was in Hakea, so the letter is very dated. That is not fresh evidence. The appellant's desire to enter that programme upon his eventual release from custody was brought to the learned sentencing judge's attention by the pre-sentence report.84 153 There are also various certificates of completion of short courses in Hakea, all of which were before the learned sentencing judge and do not amount to fresh evidence. 154 The affidavit contains the appellant's own experience and records of the regimes he experienced while at Hakea whereby prisoners were kept in their cells for extended periods varying from complete lock down conditions to all but complete lock down, where prisoners were allowed out of their cells for periods varying from 30 minutes to 3 hours. The 'standard' prison day amounting to 9 hours 15 minutes out of a cell per day occurred, according to the appellant's own records, on only 40 out of 441 days. The appellant also writes of reduced visits, lack of access to a legal library and unsanitary conditions and the like. To the extent to which the records relate to the period prior to sentence, which is the majority of the records, they are neither fresh evidence and nor could they have impacted on sentence. The records post-sentence are fresh evidence, but do not impact on sentence. 83 WAB 85. 84 Pre-sentence report, 3. -- 40 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 41 155 In Mr Parker's affidavit, which annexed the appellant's affidavit, the relevance of the appellant's affidavit and annexures was said to be that the appellant has endured arduous conditions in prison but has still made genuine efforts to rehabilitate himself and that, due to those same conditions, he has been unable to engage in further treatment programmes. 156 To the extent to which the materials relate to the period prior to sentencing for the arson offences, no such submission was made before the learned sentencing judge. His Honour accepted that the appellant had participated in some short programmes. Sentencing judges are well aware, however, of the limitations on programmes available to remand prisoners. The learned sentencing judge took a positive view of steps taken by the appellant to change the pattern of his life. The material would not have made a difference to sentencing. 157 To the extent that the materials relate to the period post-sentencing, the material is fresh, but material which is said to demonstrate why programmes have not been completed will not impact on any resentencing. It may be more relevant to a parole application. 158 The submissions in support of the appeal went considerably further than the purpose attributed to the material in Mr Parker's affidavit. 159 Annexed to Mr Parker's affidavit is the '2024 Inspection of Hakea Prison' report by the Office of the Inspector of Custodial Services. The report is publicly available and makes depressing reading. It has been publicly available for some time, and this court was already familiar with its contents. The various complaints made by the appellant in his affidavit have been made by defence counsel on behalf of accused to sentencing judges for several years. 160 Also annexed is a copy of 'Prison Rule 10 Privileges', being a rule made pursuant to s 35 of the Prisons Act, which sets out certain prisoner entitlements as to conditions in cells, exercise times, visitations and other matters. The same affidavit also annexes 'The Guiding Principles for Corrections in Australia' (revised 2018 version), which describes itself as representing a 'national intent around which each Australian state and territory will develop its practices, policies and performance standards'. The principles are designed to recognise international best practice and reflect societal expectations of correctional facilities. -- 41 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 42 161 The combination of all of this resource material, however compellingly it makes the case for improvements to be made, does not assist the appellant. The documentation makes it plain that conditions at Hakea have been poor for some time and have impacted on the prison population generally. It comes as no shock that, the longer prisoners are locked up in their cells without exercise and fresh air and sufficient time to shower and contact family members, the more desperately unhappy they become. 162 In addition, many prisoners suffer from mental health challenges, including serious mental illnesses and intellectual disabilities which present significant challenges while in custody and when back in the community. The report on Hakea and associated documents do not advance the case that the appellant, because of matters personal to him, will find, or has found, imprisonment more of a hardship than the general prison population. 163 The single ground of appeal does not assert any miscarriage of justice on the basis that the learned sentencing judge failed to take into account the hard conditions at Hakea prior to the sentencing date. Nor could such a ground have succeeded. 164 Defence counsel did not make anything in his plea in mitigation at sentencing of conditions in Hakea Prison being the sole or main cause of the appellant's PTSD. Nor was it suggested at sentencing that the appellant's PTSD should be regarded as a factor which made a prison sentence more onerous upon the appellant compared to other prisoners. At most, defence counsel referred to the incident involving Mr Hartzenberg as 'a very confronting situation'. 165 Defence counsel accentuated the positive contribution the appellant made while in prison in working, supporting other inmates, being a member of the Prison Council, helping to save Mr Hartzenberg's life for which, counsel said, the appellant had received a commendation, and his devotion to his faith and bible studies. 166 The learned sentencing judge was nevertheless aware of the appellant's PTSD. There is a reference in the pre-sentence report, which was before his Honour, to PTSD: 'Mr Fletcher indicated that he has been diagnosed with Post Traumatic Stress Disorder related to ''unnecessary violence in my life … the bikie lifestyle'''. The appellant also disclosed being the first responder to an attempted suicide in -- 42 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 43 custody', the latter being a reference to Mr Harztenberg. The author also notes that the appellant reported taking prescribed medication 'which he feels has been of benefit to him'.85 167 The psychologist said the appellant conveyed to her that he had experienced mental health issues 'because of reported past experiences involving the police, particularly in 2015, when he was approximately 40 years of age, where he was subsequently admitted to Royal Perth Hospital (unconfirmed)' and that 'he is subsequently triggered by government facilities such as police stations and, as such, he does not believe that prison is right for him'.86 168 The learned sentencing judge attributed the appellant's PTSD to 'your childhood trauma, witnessing violent incidents in the past, past incidents with the police, and witnessing first-hand self-harm incidents by others in custody',87 before later referring to the incident with Mr Hartzenberg.88 His Honour therefore expressly took into account in the appellant's favour his PTSD and the traumatic impact of the incident involving Mr Hartzenberg, but also the appellant's positive contributions in averting tragedy in Mr Hartzenberg's case and offering peer support to other inmates. 169 Counsel's oral submissions before this court implicitly attributing the PTSD solely to the appellant's time in Hakea are not persuasively supported by the evidence, although it is likely that his time and certain experiences in custody have contributed to his challenges with his mental health. The additional information concerning witnessing self-harm incidents in prison and resulting PTSD in our view could not have made a difference to a sentence which already took account of the appellant's PTSD, and nor does it make a difference in the resentencing. 170 In his affidavit the appellant also speaks of his faith and his bible studies, and annexes a letter from the Director of Emmaus Correspondence School, dated 16 October 2024, confirming the appellant's participation in bible studies with that body and the appellant's positive engagement with the course. The author of the letter made it clear he had never met the appellant. Also annexed was a lengthy set of responses dated 19 September 2024 by a tutor in response to the appellant's exam answers (not annexed), complimenting 85 Pre-sentence report, 2 - 3. 86 Psychological report [10]. 87 WAB 84 - 85. 88 WAB 85. -- 43 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 44 the appellant on his work and offering a lot of commentary. The document showed more about the author than the appellant. That material is not fresh evidence. 171 Defence counsel at sentencing (misattributed in the transcript to the prosecutor) informed the learned sentencing judge that the appellant had started a correspondence course with Emmaus and had 'done a number of courses, certificates which he's completed and he's always got a high mark. They're genuine'.89 Counsel informed the court that the appellant had been told that one of his answers had been used by Emmaus in a PowerPoint presentation and counsel spoke of the appellant's interest in religion. 172 Defence counsel had clearly seen materials similar to, and probably the same as, those annexed to the affidavit, and exercised discernment in not providing them to the court but in summarising the essential mitigatory value of them. The learned sentencing judge was provided with the letter from the prison chaplain, Mr Hicks, and another character reference from Mr McDonald who also spoke of the appellant's faith, and took both into account in mitigation. 173 The annexed material from Emmaus would have added nothing to the sentencing exercise and could not have made a difference to sentence. 174 Finally, the appellant speaks of the impact of his imprisonment on his family and the emotional impact upon himself of that loss of contact with family. His mother was hospitalised in Rockingham in May 2025 after three massive seizures. Initially the appellant was informed his mother could suffer cardiac arrest; then the news was more positive as she began taking food a few days later, but then she suffered a stroke that same day with massive brain damage and paralysis and was only kept alive by life support equipment. 175 Eastern Goldfields Prison staff made compassionate attempts to arrange for the appellant to be flown to Perth to see his mother before she died. The appellant was informed that Qantas security required 48 hours' notice. A plan was then arrived at to drive the appellant to Perth instead but, as part of that arrangement, he was told that he would have to stay in Hakea. The appellant lacked all faith that he would arrive on time, and he was informed that Hakea had not yet made arrangements for his transport to the hospital. He says that his 'PTSD 89 WAB 74. -- 44 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 45 kicked into gear' and he decided not to go. His mother passed away on 7 May 2025, the day after his birthday. 176 This occurred well after he was sentenced and amounts to fresh evidence. The appellant's counsel in oral submissions before this court appeared to rely upon this as a factor indicating that, by reason of a matter personal to him, a prison term is likely to be, or has been, more arduous on him. 177 Loss of family connection and missing family milestones goes with being imprisoned. At the time of sentencing, the appellant had amassed a 19-page criminal record and been sentenced to terms of imprisonment many times previously. No doubt he missed a lot of family milestones. An attempt was made to get him to his mother's bedside, despite him being in custody for serious offences. In the end, he decided not to engage in the effort to get him there. That does not constitute evidence that a prison term has been or was likely to be more arduous on him than on others in prison. 178 Prisoners with spouses and children and aging parents all suffer the loss of connection with their families. Hard though that is, it is often a motivating factor for prisoners to try to change the course of their lives and to stay out of prison in the future. 179 Likewise, the appellant would like to be able to look after his father who was diagnosed with some form of cancer in May 2024 and required surgery in June 2024, which appears to have been successful. Arranging prison visits while the appellant was in Hakea was difficult and it was only through the efforts of a senior officer there that the appellant's father was able to visit him in November 2024. The appellant's father has other health issues as well, and grieves for his wife. His father wants the appellant home. Much of these events occurred prior to sentencing and are not fresh evidence. 180 No explanation has been advanced as to why this was not raised before the learned sentencing judge. No criticism of defence counsel at sentencing is implied. Hardship suffered by family members as a result of an offender's bad choices in life is not mitigatory unless the hardship is exceptional. There is nothing in the circumstances raised that is exceptional. We infer that defence counsel chose to focus on matters relating to the appellant's efforts at rehabilitation. 181 Nor does the material constitute evidence that a prison term was likely to be more arduous on the appellant than on others in prison. -- 45 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 46 182 Finally, there is a letter from the Manager of the Sentencing Information Unit dated 20 January 2025 which is a response to the appellant's letter querying the backdate applied at sentencing. The annexed letter confirms what is common ground in this appeal, namely that the correct backdate was in fact 3 June 2023 to give credit for 87 additional days in custody which had not yet been credited. Given that the correct backdate is uncontroversial and that we accept the State's concession of the backdating error, the additional material is not required to be adduced to this court. It is relevant, but simply not in issue and therefore not required. 183 The State also filed a volume of additional materials to be taken into consideration by this court if the court decided to admit the appellant's additional materials as being relevant to the resentencing. 184 While it has been necessary to review all of the materials filed by the appellant to consider their relevance and while the appeal has been conceded to the extent that a resentencing is necessary, for the reasons outlined above we do not consider that any of those materials advance the appellant's position on resentencing and, in those circumstances, the application to adduce the extra materials is refused. 185 While the State's similar application to adduce additional materials has already been granted by order of Mazza JA on 3 September 2025, we understand from counsel's submissions before this court that the State does not press for its additional material to be taken into consideration if the appellant's application is refused. Accordingly, apart from having checked the State's summary of the traffic offences against the sentencing transcript for accuracy, this court will confine itself on the resentencing to the materials which were before the learned sentencing judge which, as mentioned above, includes a number of the materials annexed to the appellant's affidavit in any event. Resentencing 186 We consider that the learned sentencing judge correctly identified the features of the offending which made it serious. Those factors are referred to at [51] above and there is no need to repeat them. Overall, the appellant showed little regard for the safety, property or psychological wellbeing of any of his three victims or his girlfriend. His conduct was dangerous, malicious and premeditated. That disregard for others was also echoed in the raft of traffic-related offences that occurred during the previous year. -- 46 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 47 187 We consider that his Honour also captured the matters in mitigation which have been set out at [52] - [66] and we have had regard to those same matters. We include the finding that the appellant does suffer from symptoms of PTSD, for which he has been medicated for the last two years. 188 We are less optimistic, however, than his Honour in assessing the appellant's risk of reoffending in the future as 'somewhat decreased'.90 189 The psychologist assessed the appellant as representing a high risk for future offending without significant and sustained intervention. The appellant had, prior to the addition of these offences, a 19-page criminal record. While it is certainly a positive that he ceased his affiliation with a motorcycle gang in 2022 when he first turned to Christianity (as stated in the pre-sentence report),91 it remains to be seen whether he can maintain his good intentions when back out in the community. The arson offences (and the threatening messages) all occurred after that positive development in his life. 190 His personal issues are of very long standing and, at the age of 47 years old when he offended, he has not yet experienced that maturing process that enables many offenders to start questioning their life choices by the time they leave their 20s and have families who need them present. It is to be hoped that the appellant will now begin that process of maturing, particularly given his stated desire to be supportive to his father, but we cannot be confident of that. 191 Although the three offences occurred over the space of 90 minutes, each was a separate incident with a separate intended victim, although in a real sense each of them was also directed at the appellant's girlfriend. We entirely agree with his Honour that this offending carried the implications of domestic violence. The offending was certainly a form of coercive control directed at punishing and controlling his girlfriend by punishing her friends. The need for deterrence is high and the only reason to make any of the sentences concurrent is the application of the totality principle. 192 The totality principle also requires us to have regard to the 22 months already served in relation to the drug offence as part of the total period of time spent in custody, to ensure that the time in custody bears a proper relationship to the appellant's overall criminality. 90 WAB 86. 91 Pre-sentence report, 2. -- 47 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 48 193 Like the learned sentencing judge, we allow a 10% discount for the pleas of guilty. If we were not having regard to the 22 months already served, we would have imposed the same individual terms imposed by the learned sentencing judge, but ordered the sentence for count 3 to commence 12 months into the sentence for count 1, resulting in a total effective term of 6 years' imprisonment. 194 However, having regard to the 22 months already served and the totality principle, we would impose, as his Honour did, a total effective term of 5 years' imprisonment, achieved by making two of the sentences concurrent. 195 In the circumstances, there is no occasion to consider the later sentence imposed by the learned magistrate for the traffic offences. Nevertheless, we observe that the sentence imposed by the learned magistrate reflected the application of the totality principle to the overall time served. 196 We would impose a sentence in the same terms as that imposed by the learned sentencing judge, namely: 1. Count 1 (arson) - 3 years' imprisonment. 2. Count 2 (attempted arson) - 2 years 6 months' imprisonment. 3. Count 3 (arson) - 5 years' imprisonment. The sentences on counts 2 and 3 are to be served concurrently with the sentence on count 1, resulting in a total effective term of 5 years' imprisonment. The appellant is to be eligible for parole, and the sentence is to be taken to have commenced on 3 June 2023. 197 The new commencement date for the sentence does not require any consequential variation to the sentence imposed by the Magistrates Court. 198 We grant leave to appeal, allow the appeal and set aside the sentence imposed by the learned sentencing judge on 22 October 2024, and resentence as indicated above. 199 Violence restraining orders made by his Honour on 27 November 2024 to protect each of the three victims are to remain in place. -- 48 of 49 -- [2026] WASCA 112 JUDGMENT OF THE COURT Page 49 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 7 AUGUST 2026 -- 49 of 49 --