Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Armed robbery - Sentence appeal - Manifest excess - Extension of time - Life imprisonment

Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338

Bensegger v The Queen [1979] WAR 65

Gavin v The Queen (1992) 6 WAR 195

GHK v The State of Western Australia [2014] WASCA 19

Juma v The State of Western Australia [2011] WASCA 54

Lancaster v The Queen (1989) WAR 83

McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121

Miles v The Queen (1997) 17 WAR 518

Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458

Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465

Wimbridge v The State of Western Australia [2009] WASCA 196

1 MARTIN CJ: This application for an extension of time within which to appeal should be granted, the appeal allowed and the appellant resentenced in the manner proposed by Hall J, for the reasons given by Hall J, with which I agree.

4 On 13 January 2000 the appellant was sentenced on seven counts of armed robbery. He had previously entered fast track pleas of guilty to the charges. On the first six counts he was sentenced to 8 years' imprisonment. On the seventh count he was sentenced to life imprisonment with a non-parole period of 8 years.

5 On 25 October 2013, the appellant filed a notice of appeal seeking leave to appeal against the sentence of life imprisonment imposed on count 7. The notice was more than 13 years and 8 months out of time and the appeal cannot proceed unless an extension of time is granted: s 28(3) Criminal Appeals Act 2004 (WA).

6 The respondent concedes that given the particular facts and circumstances of the offending the imposition of a life sentence was an error. However, the respondent submits that an extension of time should not be granted because the appellant has not demonstrated that there are exceptional circumstances that would justify the granting of an extension or, alternatively, has not demonstrated that there would be a miscarriage of justice if an extension was not granted.

7 In order to assess the merit of the application for an extension of time it is necessary to consider the facts of the original proceedings and the events that have occurred in the following 14 years.

8 On 13 January 2000 the appellant pleaded guilty to seven counts of armed robbery contrary to s 391 and s 393 of the Criminal Code (WA) (as they then stood). The facts of that offending were as follows.

9 On the morning of 25 August 1999 the appellant went to the National Bank in South Perth. He approached a female teller holding his hand under his jacket to give the impression that he was armed with a handgun. He stated that he had a gun and demanded money. The teller handed the appellant $1,050 in cash. The cash contained a dye bomb. The appellant

walked from the bank to a car park where he had a taxi waiting. The dye bomb activated in his pocket causing him to throw the bomb and some of the money on the ground. Three hundred dollars in cash was recovered stained with dye (count 1).

10 The appellant then walked to the Commonwealth Bank in South Perth, which was located next to the National Bank. He again held his hand under his jacket as if armed and approached the teller stating that he had a gun and demanding money. The female teller handed him $3,300 in cash and the appellant walked from the bank (count 2).

11 When later interviewed the appellant told the police that after committing the first two offences he had gone to New South Wales for a short time. He admitted committing other offences in the Eastern States before returning to Western Australia immediately prior to the commission of the offence which was the subject of count 3.

12 On 9 September 1999 the appellant entered the premises of the Hospital Insurance Fund in Stirling Street, Perth. His right hand was wrapped in clothing to give the impression he was armed. He approached a female teller and demanded money. He was handed $2,570 in cash, which he took with him when he walked from the building (count 3).

13 On 12 September 1999 the appellant entered a shop in London Court. He held his hand under his shirt in a pretence of being armed with a weapon and demanded money from the female shop attendant. The attendant opened the till and backed away from the counter. The appellant then grabbed $250 in cash from the till and left with the money (count 4).

14 Later in the afternoon of the same day the appellant went to the Pagoda Bar and Restaurant in South Perth and asked a female attendant for change. As the attendant opened the till the appellant held his hand under his clothes to give the impression he was armed. He then walked behind the counter and demanded money from the attendant and was handed $400 which he took with him (count 5).

15 On the following day, 13 September 1999, the appellant went to a bank in St George's Terrace. He approached the teller holding his hand under his jacket as if he was armed. He told the teller it was a robbery and demanded money. He was handed $3,090 which he took with him when he left the bank (count 6).

16 On Friday, 17 September 1999 the appellant returned to the Hospital Insurance Fund premises in Stirling Street which were the subject of count 3. He approached the counter as a male customer also walked forward to be served. The appellant pushed the customer aside and said, 'This is a holdup'. He then approached the female teller holding his hand under his clothing as if he were armed and demanded money. The teller handed over $2,970 in cash to the appellant who then said, 'Don't follow or I'll shoot'. He then walked from the premises with the money (count 7).

17 None of the stolen cash was recovered, other than the $300 thrown away when the dye bomb activated on 25 August 1999. The appellant was apprehended on the morning of 20 September 1999 when he was observed entering an ANZ Bank by detectives conducting surveillance of banks in South Perth. When interviewed he admitted the seven offences and stated that he was a heroin addict and had used the stolen money to purchase heroin.

The 2000 convictions - personal circumstances

18 The appellant's childhood was marred by sexual abuse but nevertheless he had maintained a close relationship with his mother and his grandmother. He completed school and then obtained employment in the Public Service where he worked until he was about 19 years of age. He then travelled widely, including in third world countries where he worked in hospitals. He trained as a psychiatric nurse and on return to Australia began working at Graylands Hospital.

19 In 1980 the appellant was attacked by a patient whilst working at Graylands Hospital. This left him with a significant injury to his back. He returned to work but was attacked again in 1981. The second attack was also very violent and left him with injuries to his neck and back that were such that he could not continue to work as a nurse.

20 The appellant described experiencing a personality change and having no enthusiasm for life after ceasing his nursing work. In 1981 a friend suggested that he try heroin as a way of coping with pain and depression. He soon became addicted. He commenced offending in order to finance his drug use. He travelled to New South Wales and offended there. Whilst in custody in that State he trained as a social worker and was involved in setting up a rehabilitation programme for prisoners with drug addiction issues. The success of this programme led to his early release and he then returned to Western Australia.

21 On return to Western Australia the appellant began to use heroin again. He committed two armed robberies in 1992 to fund his drug addiction and was sentenced to a total of 6 years' imprisonment. Whilst in prison for those offences he participated in Narcotics Anonymous meetings and provided mentoring for younger prisoners. In early 1994 the appellant was released on a work release programme. Whilst on work release he committed further offences between 29 March and 22 April 1994. Those offences included six armed robberies that were similar in their factual circumstances to the offences later committed in 1999.

22 On 26 August 1994 the appellant was sentenced for the offences he committed earlier that year to a total of 10 years and 11 months' imprisonment with eligibility for parole. Whilst serving a sentence of imprisonment for the 1994 offences the appellant was the subject of a violent sexual assault. This caused significant internal injuries as well as having psychological effects. Also whilst in prison he made efforts to pay compensation to the victims of the 1994 offences out of his prison income.

23 The appellant was released on parole on 26 May 1999. At that time he needed medical treatment to deal with the consequential effects of the attack that had occurred in prison. A surgical operation led to the discovery of cancerous cells. At this time he was living with his elderly mother. There were disagreements between he and his mother about his beliefs and lifestyle. The end result was that the appellant returned to using heroin. He sought assistance from a psychologist and from a number of non-government organisations without success. He approached his parole officer to ask whether his parole could be breached because he was going off the rails. His drug use escalated and it was in this context that the 2000 offences were committed.

The 2000 convictions - sentencing submissions

24 It was submitted on behalf of the appellant that whilst he had committed a significant number of armed robberies in the previous ten years none of the offences had involved verbal or physical threats to victims (the pushing of a customer on count 7 was not admitted). Further, none of the offences had involved the use of actual weapons, rather on each occasion the appellant had only pretended to be armed. It was said that the offences fell in the middle of the range of seriousness of offences of this type. It was also submitted that the offending was caused by drug addiction and that the appellant had acquired greater understanding of his own addiction issues. When these factors were coupled with his age and health problems it was suggested that the best guarantee for the community that he would not return to using heroin and commit further offences was that he be made eligible for parole so that on his release into the community he would have appropriate support.

25 The only submission on sentence made by the State Prosecutor was in regard to parole. She submitted that adequate provision already existed in sentences that had previously been imposed for the appellant to be released on parole after serving a sentence. In these circumstances it was submitted that there was no basis for the exercise of the discretion to grant parole in respect of the sentences that were required to be imposed for these offences.

The 2000 convictions - sentencing judge's remarks

26 The sentencing judge's remarks on sentence were brief and can be set out in full. They are as follows:

Anthony Noel Wilson, you may remain seated for the moment. You have pleaded guilty to seven counts of armed robbery. On each occasion you pretended to be armed with a hand gun by the device of holding your hand under your clothing as if you were armed. While in the cold light of day such a device may seem laughable it is obvious that it had the potential to disturb and distress the young women who on each occasion were the direct victims of your crime.

Your crime spree was over a comparatively short period in this state from 25 August to 17 September 1999 and was committed in order to feed your heroin habit. You obtained over $13,000 from your crime, almost all of which it appears you have injected into yourself during that period. Heroin, as is all too often sadly the case in this court, is the explanation for your crimes. It is not, however, an excuse. A heroin addiction, especially an addiction such as yours which is of long standing, is a scourge and its relentless grip is difficult, if not impossible, to break.

There are available in the community avenues of help. Although you made some attempts at trying these you did not persist. Instead you intimidated a series of young women and obtained a significant amount of money. It seems to me that yesterday was your birthday. You are now 47 years old. You are not in good health and your prognosis is not good. From your record and other matters you seem to have had a heroin addiction for nearly 20 years. You have committed numerous offences over that period.

These convictions seem to bring the number of armed robberies to 15. While it is true that individually they are not of the worst type, that being that they were not done with the degree of violence that they might have had, nevertheless the combined effect of seven committed so shortly after you were released on parole in respect of a series of other armed robberies is such that the community protection is uppermost in my mind. I do not believe that you are or likely to be in the future able to live in the community without a great deal of supervision and without constant risk to other people who have in your case violence inflicted upon them by being scared, terrified and had robberies performed.

When you appeared in the court last time the sentencing judge, after some hesitation, granted you parole. Your sentence then, having regard to the totality principle, was 11 years. Those offences - at the time you were warned that you were in danger of being declared an habitual criminal if you ever appeared in the court again. There appears to me to be virtually nothing in your background which would provide any mitigation for the offences and your counsel, whose submissions I have listened to with care, has not sought to minimise the crimes themselves.

The only matter of mitigation is the fact that you have pleaded guilty at an early opportunity. I have taken account of the pre-sentence report and the recommendations there. I have given this matter careful consideration but I'm afraid that the most important matter at this stage, having regard to your past record, is the risk that you are to the community, the need to punish you for a serious of serious crimes.

Anthony Noel Wilson, will you stand? For the crime of armed robbery which is number 7 on the indictment, committed last in time, you are sentenced to imprisonment for life. I set a non-parole period of 8 years. For the crimes of armed robbery in counts 1 to 6 you are sentenced to 8 years' imprisonment, each to be served concurrently with each other and concurrently with the sentence of life imprisonment just imposed. I order that the dye-stained cash be forfeited to the crown. Stand down (AB 88).

27 Where there was been a lengthy delay in filing an application for leave to appeal the court requires exceptional circumstances to be established before an extension of time will be granted, unless it can be shown that there will be a substantial miscarriage of justice if an extension is not granted: Gavin v The Queen (1992) 6 WAR 195, 198 (Malcolm CJ). See also Juma v The State of Western Australia [2011] WASCA 54 [5], Wimbridge v The State of Western Australia [2009] WASCA 196 [19] (Wheeler JA, Buss and Miller JJA agreeing) and Lancaster v The Queen (1989) WAR 83, 85. Whilst Gavin and Lancaster were referring to an earlier statutory provision the principle has been held to apply in the context of s 28(3) of the Criminal Appeals Act, which requires that appeals be commenced not later than 21 days after the date of the decision.

28 In Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [113] - [114] Wheeler JA (in dissent on the outcome of the appeal) questioned whether the statutory time limit would serve any purpose if all that was required to obtain an extension was that there be a ground which would have succeeded in a regularly instituted appeal. Her Honour concluded that, in her view, more was required to be demonstrated than that an appeal ground will be successful before the discretion to grant an extension of time should be exercised. Her Honour reiterated that view in Wimbridge [21]. She then referred to some of the factors that may be relevant in considering whether a miscarriage of justice has occurred, including whether the decision appealed from has resulted in serious consequences for the appellant, such as a very lengthy term of imprisonment.

29 Also in Wimbridge Buss JA said that there were generally five factors to be considered in determining whether to grant an application for an extension of time to appeal against conviction:

First, the nature and extent of the delay. Secondly, the reasons for the delay. Thirdly, the proposed grounds of appeal and their merit. Fourthly, the prejudice to the applicant if an extension of time is not granted. Fifthly, the prejudice (if any) to the State or the Crown if an extension of time is granted. These factors are not intended to be an exhaustive statement of the relevant considerations [45].

30 In the present case, as at the date the appellant was sentenced on 13 January 2000, the time for appealing was provided for by s 695 of the Criminal Code. That section required that notice of an appeal against sentence must be given within 21 days of the pronouncement of the sentence. Section 695 of the Criminal Code was repealed and replaced by s 28(3) of the Criminal Appeals Act, which became operative on 2 May 2005. That section imposes the same time requirement. Accordingly, time for appealing the sentence expired on 3 February 2000 and since that time the law has consistently required the appellant to apply for an extension of time.

31 In support of his application for an extension of time the appellant has filed an affidavit. He says that after being sentenced on 13 January 2000 he did not speak to his lawyer about an appeal and that she was appointed as a judge the following week. He says that he was in shock after the sentencing and had no understanding of legal matters. He had always pleaded guilty to charges and had never brought an appeal.

32 The appellant did not speak to any other lawyers about an appeal until 2010. At that time a lawyer who was acting for him on another matter raised the topic of an appeal from the life imprisonment sentence imposed in 2000 and gave him the name of two lawyers who could act for him. He wrote to one of the lawyers and provided her with his documents. That lawyer did not return his letters or calls and did not return the sentencing transcript. He was unaware how to obtain another copy of the transcript.

33 Another prisoner spoke to the appellant 'a few months ago' and told him that he could obtain legal aid for an appeal. He also found out that he could get another copy of the transcript from the court. He applied for legal aid on 17 May 2013. Aid was initially refused but was granted on a reconsideration on 2 October 2013.

34 Whilst in prison the appellant's mother died and he had a number of serious medical problems, including cancer. This required him to undergo chemotherapy and he also had one kidney removed. These were factors advanced to explain why he had not pursued an appeal at an earlier time.

35 An affidavit from the appellant's counsel has also been filed. It annexed to it medical reports regarding the health of the appellant. These reports confirm that the appellant has hepatitis C and HIV. The HIV has been very well controlled by daily oral medication for the last two years. He does not have immune deficiency and has a good prognosis for long term optimal control if he continues to take medication. The hepatitis C was detected over 20 years ago and the appellant is asymptomatic. He has normal liver function and an ultrasound of his liver shows no portal hypertension, nodularity or focal lesions. Treatment for the hepatitis C was under consideration at the time the medical report was written.

36 The reports also state that the appellant had his right kidney removed on 28 January 2011 due to cancer. This has left him with chronically reduced kidney function creating a permanent difficulty with doses of many medications for other illnesses. The appellant is required to attend Royal Perth Hospital to undergo regular examinations and tests to detect any recurrence of the cancer. Imprisonment was said to have had an impact on the appellant's treatment in that he cannot contact specialists directly and this has led to delays and uncertainties about treatments and medication delivery. The lack of confidentiality has also undermined the appellant's emotional wellbeing.

37 The extent of the delay in this matter is self-evidently gross. The affidavits provide an explanation for some of the delay, but not all of it. In particular, the appellant appears to have done little, if anything, to pursue an appeal between the time he was sentenced and 2010. There is nothing exceptional about the circumstances that could possibly justify a delay of the length involved here.

38 The application to extend time critically depends on whether there would be a substantial miscarriage of justice if an extension is not granted. This requires consideration of the merits of the grounds of appeal and whether there would be any prejudice to the appellant if an extension is not granted or to the State if it is.

39 The proposed grounds of appeal contained in the appellant's case are as follows:

1. The learned sentencing Judge erred in law by increasing the sentence on count 7 of the Indictment beyond what was proportionate to the seriousness of the offence on the basis of the Appellant's criminal record.
2. The sentence on count 7 of the Indictment was manifestly excessive having regard to the circumstances of the offence, the Appellant's plea of guilty, his personal circumstances, and sentencing standards.

40 The State accepts that the imposition of a life sentence on count 7 was an error. It is conceded that the maximum penalty for the offence of armed robbery was not properly available having regard to the appellant's offending, notwithstanding the serious and persistent character of that offending. That concession is properly made.

41 The maximum penalty for armed robbery was at the relevant time, and remains, life imprisonment. The maximum penalty is reserved for cases falling within the worst category of cases for which that penalty is prescribed: GHK v The State of Western Australia [2014] WASCA 19. That does not mean that a lesser penalty must be imposed if a worse case can be envisaged. It is always possible to imagine a case that is worse than the one presently before the court: Bensegger v The Queen [1979] WAR 65, 68 (Burt CJ). However, a sentence that imposes the maximum penalty will offend this sentencing principle if the case is recognisably outside the worst category: Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 478 (Mason CJ, Brennan, Dawson and Toohey JJ).

42 In determining the seriousness of an offence it is appropriate to take into account both the nature of the crime and the circumstances of the criminal. This is consistent with s 6(2) of the Sentencing Act, which provides that the seriousness of an offence must be determined by taking into account the statutory penalty, the circumstances of the commission of the offence (including the vulnerability of the victim), any aggravating factors and any mitigating factors: GHK [43] (Buss JA).

43 As serious as the offence constituted by count 7 was, it clearly does not fall within the worst category of cases of armed robbery. That fact was acknowledged by the sentencing judge in his remarks. The appellant did not possess an actual weapon and no violence was used. The fact that the appellant had previously committed offences of a similar nature heightened the need for personal deterrence but it did not make the objective circumstances of the offences worse. There was also nothing more inherently serious about count 7 that could have justified a sentence so much greater than that imposed on the other counts.

44 The appellant refers to the comments made by the sentencing judge regarding the prior offending and the importance of community protection. It is possible to infer from these comments that his Honour concluded that a sentence of life imprisonment was required not because of the inherent seriousness of the offence but in order to protect the community from the risk of the appellant committing further offences of the same type.

45 The previous criminal record of an offender may be taken into account in determining a sentence but not because it aggravates the offending. It is relevant because an offender with a relevant record cannot claim the benefit of good character. It may also be relevant in assessing the need for personal deterrence. However, it cannot be given such weight as to lead to a penalty that is disproportionate to the gravity of the offence. To do so would be to impose a fresh penalty for past offences: Veen [No 2], 477. In particular, a sentence should not be increased beyond what is proportionate to the offence in order to extend the period of protection of society from the risk of recidivism on the part of the offender: Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458, 467 (Steven J), 468 (Mason J), 482 - 483 (Jacobs J) and 495 (Murphy J).

46 In the present case it is reasonable to conclude that the sentencing judge increased the sentence on count 7 beyond the longest sentence that that offence, when viewed objectively, could justify in order to ensure community protection. In these circumstances ground 1 clearly has merit.

47 As to ground 2, the range of sentences commonly imposed for armed robbery after trial in 2000 was six to nine years' imprisonment, without taking mitigating and aggravating factors into account: Miles v The Queen (1997) 17 WAR 518. In this case the only significant mitigating factor was the appellant's early pleas of guilty, but that was a factor that in itself would normally justify a reduction in the sentence to be imposed.

48 A sentence of life imprisonment on count 7, being the maximum penalty, was well beyond the usual range. Whilst that is only one consideration in determining whether there has been an implied error in the exercise of sentencing discretion, the State accepts that the circumstances of the offending in this case did not call for a sentence outside the usual range. The State also accepts that, notwithstanding the seriousness of the offences and the aggravating feature that they were committed whilst on parole, the sentence of life imprisonment was manifestly excessive. Accordingly, ground 2 also has merit.

49 In order to understand the effect that the life sentence continues to have on the appellant it is necessary to give an account of subsequent events. After serving approximately 8 years and 11 months of the life sentence the appellant was released on parole on 22 December 2008. The parole order was for two years.

50 Between 19 October and 1 November 2009, whilst still subject to parole, the appellant committed further offences. The offences were of a similar nature to those committed previously and included two armed robberies. The appellant pleaded guilty and was sentenced on 2 March 2010 to a total effective sentence of 5 years' imprisonment with no order as to eligibility for parole. On his arrest for these offences the appellant's parole on the 2000 offences was rescinded and he was returned to gaol on 2 November 2009 to continue serving the life sentence.

51 As at the date of the appeal hearing the State submitted that the appellant had served 8 years, 11 months and 9 days of the life sentence before being released on parole on 22 December 2008. To that must be added the period of time that the appellant spent in custody after he was arrested and his parole on the life sentence was cancelled until he was sentenced on 2 March 2010. That period of time has not been quantified, though it appears to be a further 4 months.

52 On being sentenced on 2 March 2010 to 5 years' imprisonment that fixed term commenced immediately. That sentence, however, was to be served concurrently with the sentence of life imprisonment. No parole was ordered on the 5 years' imprisonment and accordingly the appellant would not again become eligible for release on the life sentence until after the fixed term of 5 years has been completed on 1 March 2015.

53 In short, since committing the further offences in 2009 and having his parole revoked the appellant has resumed serving the life sentence, albeit that from 2 March 2010 he has been serving that sentence concurrently with the 5 year fixed term imposed on that day. It is apparent from this that the life sentence has continued, and will continue, to have a very significant impact on the appellant. Unless again granted parole on the life sentence he faces the prospect of being imprisoned for the rest of his natural life.

54 There may be cases where a lengthy delay in commencing an appeal means that the original decision no longer has any significant practical consequences. This is not such a case. If an extension of time to appeal is not granted there would be significant prejudice to the appellant.

55 On the other hand, allowing an extension of time causes little if any prejudice to the State. This is not appeal against conviction where the passage of time may be relevant in considering the availability of witnesses and fading memories. The only issue here is whether the sentence of life imprisonment was an appropriate exercise of sentencing discretion. That is a matter that the State concedes.

56 The delay in bringing this appeal is gross. The reasons for that delay are inadequate. However, the grounds of appeal have merit. The appellant would suffer very significant prejudice if an extension is not granted. The State would suffer no significant prejudice if an extension is granted. Bearing these factors in mind an extension of time is appropriate. In my view, it would be unfair to the appellant to refuse an extension of time and thereby dismiss his appeal in circumstances where it is conceded that the original sentence was in error and it continues to have practical impact on his life.

57 In my view an extension of time should be granted, leave to appeal in respect of each of the grounds granted and the appeal allowed. The appeal should be allowed because the sentence of life imprisonment on count 7 was in error and a different sentence should have been imposed: s 31(4)(a) Criminal Appeals Act 2004 (WA).

Resentencing - current personal circumstances

58 Having come to those conclusions it is necessary to resentence the appellant. In order to facilitate resentencing the appeal hearing was adjourned in order to obtain reports regarding the appellant's current personal circumstances. A pre-sentence report and a psychological report were obtained.

59 The appellant was born on 12 January 1953 and is now 61 years of age. The appellant's history of offending and breaching his parole on several occasions by reoffending has been set out earlier in these reasons.

60 Over the many years that he has spent in prison the appellant has completed a range of programmes including a number intended to address his substance use issues. Whilst he successfully completed these programmes, the pre-sentence report notes that he has been unable to maintain treatment gains when released to the community. Most recently the appellant completed a cognitive skills programme and the 100 hour Pathways programme. His participation in respect of both programmes was positive. He developed a relapse and reoffending prevention plan in the Pathways programme. This detailed strategies including attending substance abuse counselling, further education, participation in hobbies, regular meditation and use of consequential thinking and active sharing. The completion report suggested that the appellant would require long term substance abuse counselling, regular urinalysis, ongoing counselling with a psychologist and support to engage in employment, identify recreational and leisure interests and stable accommodation. The appellant stated to the pre-sentence report author that if he were released from prison it was his current plan to transition to the community via a residential rehabilitation programme. There are no recorded prison incidents or charges and the appellant is described as a model prisoner who is compliant and respectful at all times.

61 The psychological report states that the appellant is currently at moderate risk of violent reoffending with his prior history of offending and substance dependence influencing this rating. Whilst the appellant has limited personal supports, engagement in treatment has afforded him the opportunity to develop better coping, problem-solving and consequential thinking skills. The appellant's risk of reoffending would be significantly reduced if he was successful in abstaining from heroin use. The report recommends that if the appellant is released it be to a residential rehabilitation facility. This would support him in his transition to living back in the community and allow slow exposure to potential high risk situations. The appellant would also benefit from engagement with a psychologist and ongoing urinalysis.

62 The appellant's health appears to have stabilised. Whilst he has had HIV since at least 2010 he has very low viral loads and this condition does not affect his life expectancy. He was diagnosed with cancer of the kidney in 2010 and this resulted in a nephrectomy in that year. He has since remained clear of any recurrence of cancer. He has mildly impaired renal function as a result of the nephrectomy but this is stable and has not altered his life expectancy.

63 At the appeal hearing on 6 August 2014 the State indicated that it may seek the imposition of an indefinite sentence on count 7. Such a sentence would, of course, have largely the same effect as the life sentence that was imposed in 2000. An indefinite sentence of imprisonment cannot be ordered unless the court is satisfied on the balance of probabilities that at the time the offender would otherwise be released from custody he would be a danger to society due to the exceptional seriousness of the offence, the risk that he will commit other indictable offences, his character or any other exceptional circumstances: s 98(2). Such sentences are reserved for very exceptional cases. The applicable principles were referred to by the High Court in McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121, 130 [23]. It is unnecessary to refer any further to those principles as the State subsequently conceded that in light of the moderate risk of reoffending referred to in the psychological report the grounds for seeking an indefinite sentence could not be made out.

64 At the resumed hearing of the appeal an issue arose as to whether the resentencing should also encompass the sentences on other counts imposed in 2000 and also the sentences imposed in 2010. This is on the basis that s 41(2) of the Criminal Appeals Act provides that where an appeal court varies or sets aside a sentence it may vary any other sentence that was imposed at or after the time that the sentence that is the subject of the appeal was imposed and that took that sentence into account. The parties were given further time to make written submissions on this issue.

65 I was the judge who sentenced the appellant in 2010. Whilst those sentences are not the subject of this appeal they could be varied if s 41(2) applies. Section 57(3) of the Supreme Court Act 1935 (WA) prohibits the Court of Appeal from being constituted so as to include a judge whose judgment or decision is the subject of the appeal. In its written submissions the State raises s 57(3) of the Supreme Court Act out of an abundance of caution, but states that it does not consider that it poses an issue in this case as it is the sentence imposed on count 7 in 2000 that is the subject of the appeal and the possible variation of the 2010 sentences is merely incidental.

66 The submission by the State that the sentences imposed by me in 2010 should be varied does not depend on there being any error in those sentences in the circumstances that existed at the time that they were imposed. Rather, it relies upon the proposition that if those circumstances had been different, that is, if the appellant had not then been serving a life sentence, some other sentence would have been appropriate. There is no obvious reason why a judge would have a conscious or unconscious wish to maintain a sentence where the circumstances have changed unless that sentence remained appropriate. In these circumstances I do not consider that it is necessary for me to recuse myself from the resentencing exercise.

67 As to the question of whether the 2010 sentence took into account the life sentence, the State notes that I referred to the existing life sentence and the fact that the appellant may have to serve that sentence in full because he had breached parole. I also referred to the life sentence when considering the issue of parole eligibility. However, the sentencing remarks make clear that the sentence of 5 years was imposed as being the sentence appropriate for the offending and parole was refused having regard to the appellant's poor past record of complying with the terms of parole. Nonetheless there was reference to the fact that there was less need to give weight to the need for community protection in circumstances where the appellant was already serving a life sentence. I will assume in these circumstances that the 2010 sentences took into account the life sentence and therefore fall to be considered under s 41(2) of the Criminal Appeals Act.

68 The power to vary other sentences under s 41(2) is discretionary. The State submits that it is appropriate to exercise that discretion in this case. In that regard the State refers to the purpose which s 41(2) is intended to serve. The explanatory memorandum to the Criminal Appeals Bill 2004 (WA) states that s 41 'addresses in part the recommendations made in the Murray Report in relation to s 689 and s 697 of the Criminal Code'. The relevant recommendation in the Murray Report (M J Murray QC, The Criminal Code a General Review 1983) related to the then s 689 of the Criminal Code. Section 689 was never amended however s 693 of the Criminal Code which was introduced in 1982 contained a similar power to that contained in s 41(2). The relevant part of the Murray Report states:

In such cases commonly it is found that the aggregate sentence reflects what the court conceives to be a proper result for the totality of the offences. If one conviction is removed or one sentence altered it may well be that the aggregate picture is changed and that the Court of Criminal Appeal will feel that it is proper to adjust the other sentences to give effect of the intention of the sentencing court in relation to the proper disposition of the offences for which the convictions remain but in respect of which the sentences may now be seen to be passed on an artificial basis (Murray Report, page 463).

69 The State submits that interfering with the life sentence without altering the balance of the sentences on the 2000 indictment or the 2009 indictment would result in an artificially constructed total effective sentence that would not properly reflect the totality of the offending across both indictments. The State says that in the absence of a life sentence on count 7 of the 2000 indictment there is a need for a degree of accumulation of individual sentences in order to achieve a total effective sentence that adequately reflects the total criminality involved. There is said to be a similar need to vary the sentences in the 2009 indictment. It is said that in the absence of the life sentence the total effective sentence of 5 years' imprisonment would not be an appropriate reflection of the total criminality of that offending and that a proper exercise of the sentencing discretion requires a degree of accumulation with the corrected terms of imprisonment on the 2000 indictment.

70 At the time the appellant was sentenced in 2000 the pre-transitional sentencing regime applied. A sentence of 8 years' imprisonment imposed at that time is the equivalent of 5 years and 4 months' imprisonment under the current law. Whilst count 7 was no more serious than the other counts on that indictment, to impose a sentence on that count that was wholly concurrent with the other sentences and produced a total effective sentence of 8 years would not be appropriate. Such a sentence would be manifestly inadequate. This suggests that some degree of accumulation is appropriate. However, any resentencing needs to take into account the different sentencing regime that now applies.

71 As regards the sentences imposed in 2010, the offending conduct was remarkably similar to that that had occurred in the past. However, there were only two offences of armed robbery and a smaller amount of money was obtained. The sentences imposed at that time were automatically concurrent with the life sentence. If the life sentence is set aside some degree of accumulation of the sentences imposed for the 2010 offences would be appropriate. However, any such accumulation would have to have due regard to the totality principle. It is also necessary for any sentences imposed now to have regard to s 9AA of the Sentencing Act 1995 (WA). In respect of both the 2000 and 2010 offences pleas of guilty were entered at the first reasonable opportunity and accordingly the appellant should be allowed a 25% discount for those pleas.

72 Having regard to the factors referred to I consider that it is appropriate to resentence the appellant for the 2000 and 2010 offences in the following manner. For counts 1 to 7 of the 2000 indictment sentences of 5 years' imprisonment should be imposed on each count. Counts 1 and 7 should be served cumulatively. All other sentences should be served concurrently. For the 2010 offences the sentences should be as originally imposed but the total effective sentence of 5 years should be cumulative on the 2000 offences. This produces a total effective sentence of 15 years.

73 The commencement date for the sentence needs to take into account the time spent in custody since 13 January 2000. After taking into account the period on parole between 22 December 2008 and 2 November 2009 (10 months and 8 days), the appropriate commencement date, pursuant to s 41(3)(c) of the Criminal Appeals Act, is 23 November 2000.

74 Given the appellant's moderate risk of reoffending, his age and improved prospects I would make an order that he be eligible for parole. That means that he is now eligible for parole and that his maximum term will expire on 23 November 2015.

(4) The sentence of life imprisonment on count 7 be set aside and the appellant be resentenced on that and the other counts on both the 2000 and 2009 indictments as follows:

5 years' imprisonment on each of counts 1 to 7, the sentences on counts 1 and 7 to be cumulative all others to be concurrent;

The sentences remain as originally imposed but the total effective sentence of 5 years be ordered to be served cumulatively on the total effective sentence imposed on INS 13 of 2000.

The overall total effective sentence is 15 years' imprisonment. That sentence is to take effect from 23 November 2000. The appellant is eligible for parole.