Criminal law - Appeal against sentence - Attempt to pervert the course of justice - Whether sentence manifestly excessive - Offence of short duration and at early stage - Whether sentence consistent with sentences imposed in comparable cases

Billing v The State of Western Australia [2007] WASCA 145

Cummins v The State of Western Australia [2006] WASCA 201

Dillon v The State of Western Australia [2010] WASCA 135

Dudzik v The State of Western Australia [2012] WASCA 195

Fazari v The State of Western Australia [2012] WASCA 176; (2012) 224 A Crim R 372

Gilmour v The State of Western Australia [2008] WASCA 42

Kelly v The State of Western Australia [2013] WASCA 200

Librizzi v The State of Western Australia [2006] WASCA 237; (2006) 33 WAR 104; (2006) 167 A Crim R 26

McAuley v The State of Western Australia [2010] WASCA 98

Murphy v The State of Western Australia [2013] WASCA 178

Norton v The State of Western Australia [2007] WASCA 75

Penny v The State of Western Australia [2010] WASCA 65

Ranford v The State of Western Australia [2006] WASCA 134

Ranford v The State of Western Australia [No 2] [2006] WASCA 243; (2006) 166 A Crim R 451

Rauhina v The Queen [2002] WASCA 91

Re The State of Western Australia; Ex parte Richards [2005] WASCA 176

S v The Queen [2003] WASCA 309

1 MARTIN CJ: This appeal should be allowed, the sentence imposed following the appellant's conviction of attempting to obstruct the course of justice set aside, and instead the appellant sentenced to a term of 2 years' imprisonment for that offence, to be served cumulatively upon the sentence imposed in respect of the other count on the indictment, for the reasons given by Hall J, with which I agree.

4 The appellant was convicted after a trial in the District Court of one count of doing grievous bodily harm contrary to s 297 of the Criminal Code (WA) (Code) and one count of attempting to obstruct the course of justice contrary to s 143 of the Code. On 5 December 2013 he was sentenced to 3 years 6 months' imprisonment on the first count and 3 years' imprisonment cumulative on the second count making a total effective sentence of 6 years 6 months. An order was made that he be eligible for parole and the sentence was backdated to commence on 30 August 2013.

5 The appellant relies on a single ground of appeal. It is that the sentence of 3 years' imprisonment imposed for the offence of attempting to pervert the course of justice was manifestly excessive. No error is suggested in respect of the sentence imposed for the offence of doing grievous bodily harm, however the two offences are connected and it will be necessary to refer to the facts relating to both offences.

6 At the time of the offences the appellant had a financial interest in the Evolution Night Club in Karratha. On the evening of 18 February 2012 he was in attendance at the night club in the capacity of approved manager. It was the first occasion he had acted in that role.

7 At about 12.15 am on 19 February 2012 the complainant, Mr Adrian Armstrong, and two other men arrived at the night club. Approximately an hour later one of the complainant's companions, who was intoxicated, was removed by a bouncer. The appellant went to the door to see what was happening and then indicated to the bouncer that the other companion should also be removed. Around this time the complainant also left the night club.

8 The appellant noticed that the complainant's companions were getting irate and aggressive with the security staff and arguing with each other. However, the appellant thought the situation would defuse itself and went back inside. When he returned to the front door a short time later the situation had escalated. At some point the appellant went over to where the altercation was occurring. Security staff were trying to move the complainant's companions away from the night club entrance and across the car park. There was pushing and shoving and the group was moving across the car park to the vicinity of the night club's Toyota Landcruiser, which was parked near the outdoor beer garden. At that location a brawl commenced involving the bouncers and one or possibly both of the complainant's companions.

9 The complainant then approached the group. After speaking to members of the group he attempted to pull a bouncer off one of his friends. The appellant then punched the complainant. The complainant blocked the first punch but a second punch from the appellant struck him on the left side of the head. This punch had sufficient force to cause the complainant to fall, striking the back left hand side of his head on the side step of the Landcruiser. It was an unprotected fall caused by what was described as a powerful hit. As a result the complainant suffered grievous bodily harm.

10 The complainant's injuries consisted of a brain haemorrhage, brain swelling and a bone fracture at the back of his head on the left side. Due to the swelling a decompressive craniotomy was performed. The injuries were such as to permanently affect brain function with possible long term cognitive impairment.

11 Immediately following the incident the appellant told an employee that he did not know what happened. He then told the employee to go inside the club and find another employee, the night club disk jockey (the DJ), who he said should 'get rid of the tapes'. This was repeated to another employee who was told that the DJ should 'remove, delete, get rid of the tape'. These were references to surveillance footage of the car park.

12 The DJ met the appellant in the car park a short time later. The appellant again repeated that he did not know what had happened and then told the DJ that one of the complainant's companions had hit him (the complainant). This was something that the DJ later repeated to the police. It was, of course, untrue.

13 As a result of the appellant's instructions the DJ switched the 16 camera CCTV system to eight cameras. This meant that the security monitor showed vision from only eight cameras. This gave the appearance that only eight cameras had been operating at the relevant time and removed from the screen two of the cameras that captured part of the car park. As it happens neither of these cameras, nor indeed any of the cameras, had captured anything of relevance. However, this was unknown to the appellant at the time.

14 A police officer attended the night club office shortly after the incident and asked the appellant whether there was any CCTV footage of the incident in the car park. The appellant pointed to the screen, which was displaying only the eight camera system, and said that those were the only cameras that captured the front of the club and that there were no cameras that captured the car park.

15 Police attended at the night club again on the following morning. They spoke to the appellant but he did not reveal that there was a 16 camera system which covered the car park.

16 The trial judge found that by his silence and conduct the appellant sought to deflect attention from himself. In particular, by concealing the existence of the 16 camera CCTV system he attempted to obstruct the course of justice in respect of the investigation of the grievous bodily harm done to the complainant.

17 The appellant had also sought to deflect the police in their efforts to interview other witnesses. Shortly after the incident he told police that a door girl was upset and that they could not speak to her. In fact he had told the door girl to stay where she was and not to go to where the police were. A day or two after the incident the appellant had also told one of his employees not to talk to the police and that if asked about the complainant he should say that the complainant fell over. The appellant also repeatedly told police that it was a mystery how the complainant had received his injuries. The charge related specifically to the concealment of the CCTV footage, but the other conduct was relevant to place that concealment into context.

18 The police later obtained footage from the 16 camera system when they executed a search warrant, however it revealed nothing of any relevance. There was no allegation that any of the footage had been destroyed or edited. The offence of attempting to obstruct the course of justice occurred over a relatively short period of time, from the time the appellant was first spoken to by police shortly following the incident until the afternoon of the following day when a search warrant was executed and the footage seized.

19 When sentenced the appellant was aged 38 years old, married with two children aged four and six. He was also the father of two children from a previous relationship who are aged 12 and 13 years old. He continued to maintain a relationship with the older children, who would reside with him during school holidays. The appellant had separated from his wife in July 2013. His wife had relocated to the metropolitan area with the children.

20 The appellant completed Year 12 and then attended university. He completed a Bachelor of Business in 2000 and had partially completed a Bachelor of Engineering. He had also enrolled in a law degree at Edith Cowan University, which remained uncompleted. He had worked as an accountant in his own business for 13 years prior to 2010. He then commenced work as part owner and manager of the Evolution Night Club in Karratha.

21 The appellant did not have a significant record of prior criminal offending. He did have a conviction for common assault in 1997, but the sentencing judge considered that that was so long ago that it was not a factor in sentencing.

22 A number of personal references were received, including from the appellant's brother and members of the local community. Those references spoke in positive terms of the appellant, describing him as a trustworthy, reliable and generous person. There was also reference to him having made a positive contribution to community activities in Karratha.

23 The appellant provided a letter to the sentencing judge expressing his regret for the offending. By the time he wrote that letter he had been in custody for three months following the trial. He said that he was ashamed and embarrassed for the suffering he had caused to the complainant. He acknowledged the seriousness of the complainant's injuries and recognised that the complainant could have died from those injuries. He expressed a wish to make efforts to compensate the complainant for his pain and suffering. He said that he had previously been in denial but now accepted the wrongfulness of what he had done and that he must suffer punishment for it. He said that his actions in regard to the CCTV footage were 'borne out of fear and a latent realisation that I had acted improperly' (AB 188).

24 Whilst remanded in custody awaiting sentence the appellant had taken steps to assist with the rehabilitation of other prisoners. This involved having a curriculum approved by the prison superintendent and tutoring other prisoners in business studies.

25 The sentence for the offence of causing grievous bodily harm is not challenged. Accordingly, it is unnecessary to refer in detail to the impact of that offence upon the complainant. It is sufficient to note that he sustained a severe traumatic brain injury that required urgent surgery. A medical report stated that the complainant had been fortunate in making an excellent recovery in all aspects of his functioning. He continued to have some mild cognitive impairment but was able to live independently and resume his previous work. The complainant referred to the fear and trauma caused by his hospitalisation, both to him and to his family. He referred to long term effects such as poor memory, inability to play sport, lack of confidence and the embarrassment caused by scarring and disfigurement.

26 It is not suggested that the sentencing judge made any express errors in his sentencing remarks. Accordingly, those remarks can be briefly summarised.

27 In regard to the offence of grievous bodily harm, his Honour noted that the complainant had sustained very serious head injuries and that his life was endangered. The act which caused the injuries was deliberate and unprovoked. The complainant was intoxicated whereas the appellant was sober.

28 In regard to the attempt to obstruct the course of justice, his Honour said:

I turn now to the attempt to obstruct the course of justice. Again in my view this was a serious example of that for these reasons. You tried to conceal your role in a very serious offence of grievous bodily harm, an offence where the victim's life was endangered.

You involved three employees in your deception. The deception occurred, I accept, over a relatively short period of time from the Sunday morning through to the Monday afternoon. Your deception caused investigating police officers to question Mr Philip Connolly as to whether he had struck the victim.

It caused a diversion of the police investigation in that sense. Your deception was not a spur of the moment response. It was premeditated to the extent that you arranged for cameras to be switched before you and the police went to the office to view footage (AB 69).

29 Those remarks indicate that the sentencing judge took into account some acts which were not strictly part of the offence alleged, which was confined to the concealment of the CCTV footage. But no complaint is made in that regard. In any event, those other actions were relevant in placing the offence into context and determining its seriousness.

30 His Honour accepted that the expressions of regret and desire to compensate the complainant referred to in the appellant's letter were mitigatory. He also accepted that the appellant had cooperated with the prosecution during the trial. Whilst his Honour said that he was not impressed by the appellant's conduct during the trial of seeking to lay the blame at the feet of others, he accepted that the appellant had now 'moved on'. His Honour said:

Your cooperation with the prosecution during the trial facilitated the trial, made it run much smoother than it could have otherwise or would have otherwise. Your expression of concern and victim empathy with respect to Mr Armstrong, I've taken that into account.

I accept you are remorseful. I accept that you propose to make compensation for him. I take into account also your post offence conduct, what I've heard about, what you've been doing in the prison is positive and a step towards your own rehabilitation and certainly that of others. I take into account your community involvement in the past (AB 69 - 70).

31 Having regard to the seriousness of the offences and the need for specific and general deterrence, his Honour concluded that the only appropriate disposition was terms of immediate imprisonment. Although the two offences were linked, his Honour said that they were separate and distinct offences deserving of cumulative sentences.

32 His Honour said that in structuring the sentences he had taken into account the totality principle. He said that in his view the total criminality of the offending warranted a total effective sentence of 6½ years' imprisonment. Since the individual sentences were made wholly cumulative this implies that any impact that the totality principle may have had was to reduce the individual sentences. However, if that was done his Honour did not say so and the totality principle only requires such a reduction if the total effective sentence would be disproportionate to the total criminality involved in the offending or would be crushing.

33 A ground of appeal that a sentence is manifestly excessive asserts the existence of an implied error. In determining whether a sentence is manifestly excessive it is necessary to examine it from the perspective of the maximum penalty for the offence, the standard of sentencing customarily observed with respect to that offence, the place that the criminal conduct occupies in the scale of seriousness of offences of that kind and the personal circumstances of the offender.

34 It has often been said that offences of attempting to obstruct or pervert the course of justice strike at the heart of the criminal justice system and that general deterrence will almost invariably be a significant factor in respect of such offences: Rauhina v The Queen [2002] WASCA 91 [16], Kelly v The State of Western Australia [2013] WASCA 200 [82]. Offences of this type are ordinarily punishable by a term of immediate imprisonment: Librizzi v The State of Western Australia [2006] WASCA 237; (2006) 33 WAR 104; (2006) 167 A Crim R 26. Ordinarily a sentence of imprisonment for an offence of attempting to obstruct the course of justice should be wholly cumulative with the sentence for the offence to which the attempt was directed: Dudzik v The State of Western Australia [2012] WASCA 195 [30].

35 The maximum penalty for the offence of attempting to obstruct, prevent, pervert or defeat the course of justice contrary to s 143 of the Code is 7 years' imprisonment.

36 As to the seriousness of this offence, some of the factors which can bear upon seriousness were referred to in Ranford v The State of Western Australia [2006] WASCA 134 [36] and Dillon v The State of Western Australia [2010] WASCA 135 [30]. The factors include:

(a) the nature and seriousness of the consequences sought to be avoided (as for example, whether to avoid demerit points, or to avoid conviction);

(b) the period of time over which the deception occurred and whether it was merely allowed to continue or was repeated or persisted in and what else was done to maintain it;

(c) whether the deception involved some other person, either as an accomplice or a victim;

(d) whether there was any threat or violence involved;

(e) whether the deception caused diversion of investigative, police or court resources;

(f) whether the offence was a 'spur of the moment' response or was premeditated, and, if so, the degree of premeditation, planning and persistence;

(g) whether the deception was carried through to the extent of deceiving a court, or the creation of false public records, and, if so, the extent and consequence of that.

37 The nature of the consequences that the appellant sought to avoid in this case were serious. He sought to deflect the police investigation in order to avoid being held responsible for the very serious injuries caused to the complainant. He involved others in the concealment of the CCTV footage. On the other hand, the deception was unsophisticated and persisted for a relatively short period of time. It had no significant or material effect upon the course of the investigation. Whilst the sentencing judge doubted that the offence could be described as having occurred on the spur of the moment, it is clear that it involved no significant planning or forethought. The offence did not involve the deceiving of a court, a factor which would significantly increase the gravity of such offending: Kelly v The State of Western Australia [82].

38 As regards the appellant's personal circumstances, there were a number of factors that had mitigatory value. In particular, the appellant's remorse and positive steps towards rehabilitation. Whilst the genuineness of remorse may be doubted when expressed following a trial, in this case more than three months had elapsed between conviction and sentencing. The sentencing judge accepted that by the time of sentencing the appellant had 'moved on' and was genuine in his expressions of regret and remorse. His conduct in prison indicated that there were good prospects for rehabilitation.

39 As regards comparable sentences, there is no established range of sentences for the offence of attempting to obstruct or pervert the course of justice. This is because offences of this type can occur in a wide range of circumstances. Nevertheless, it is important to consider comparable cases to ensure, as far as possible, broad consistency in sentencing. The appellant has referred to a number of cases that he suggests should be considered. I will refer to those cases in reverse chronological order.

40 In Kelly v The State of Western Australia the offender pleaded guilty to seven counts of fraud and one count of attempting to pervert the course of justice. He received a sentence of 1 year 8 months for the attempt to pervert the course of justice charge which was ordered to be served cumulatively on a total effective sentence on the other counts of 16 months' imprisonment. The offender had used a false name and false information to obtain a lease of residential premises. When he defaulted on the lease he continued to use the false name in representing himself in the Magistrates Court in eviction proceedings brought against him under the Residential Tenancies Act 1987 (WA). He provided a number of false documents to the court which he had altered or created and gave false answers to questions from the magistrate. As a result the offender was successful in having the proceedings against him dismissed. The offence involved premeditation and planning, continued over a period of time, involved deception of a court and the offender did not evince any remorse or contrition.

41 In Murphy v The State of Western Australia [2013] WASCA 178 the offender was convicted after trial of five sexual offences and one offence of attempting to pervert the course of justice. He received a total of 5 years' imprisonment on the sexual offences and 3 years cumulative for the attempt to pervert the course of justice. The offender had been released on bail for the sexual offences with conditions that he not make contact with the two child complainants. In contravention of his bail the offender made numerous telephone calls to one of the complainants. He also met both of the complainants and bought one of them gifts. He asked one of the children to drop the charges telling her that bad things would happen to him in prison. The conduct continued over a lengthy period and targeted the vulnerable children who the offender had sexually abused. The offender made no expressions of regret or remorse for his offending.

42 In Dudzik v The State of Western Australia the offender entered fast track pleas of guilty and received a sentence of 2 years' imprisonment for an offence of attempt to pervert the course of justice cumulative upon a total sentence of 2 years' imprisonment for five fraud offences. The offender in that case provided false references to the District Court for the purposes of bail and sentencing in relation to the fraud offences. One of the documents was a letter from her employer in support of an application to vary bail so that she could travel overseas which had been obtained by deceiving the signatory of the letter.. The offender also falsely instructed her counsel that both her parents were deceased and her two children were dependent on her. The offender's conduct was considered to be particularly serious because it involved deceiving a court in the exercise of its judicial function [24]. Other than the pleas of guilty there was nothing by way of mitigation; in particular there was no indication of remorse.

43 In Fazari v The State of Western Australia [2012] WASCA 176; (2012) 224 A Crim R 372 the offender pleaded guilty and was sentenced to 2 years' imprisonment for attempting to pervert the course of justice cumulative on a total of 2 years imposed for offences of failing to stop and failing to report an accident in which other people had suffered grievous bodily harm. The sentences were made cumulative on a sentence of 4 years 4 months' imprisonment that the offender was already serving for a drug offence. The offender in that case told police that one of his employees had been driving a truck that was involved in a serious traffic accident. The employee told police that he was the driver and that he had fled the scene. As a result of the admission the employee was arrested and charged. The employee made four appearances in court to answer the false charges before the truth finally came to light four months later. At the time of the offences the offender's driver's licence had been suspended and he was on bail for the drug offence. The offender believed that if his identity as the driver of the truck was known to the police he would be remanded in custody. The conduct in that case continued for an extended period and the offender showed no remorse.

44 In Dillon v The State of Western Australia the offender entered fast track pleas of guilty and was sentenced to 2 years' imprisonment for an attempt to pervert the course of justice cumulative upon a total of 4 years 6 months imposed for drug trafficking and other offences. In that case the offender asked another person to take the blame for drugs found in his car in return for which the offender would give the person his car valued at $10,000. The person in question signed a statutory declaration to that effect and presented it to the police. Shortly afterwards the person was interviewed and admitted that the statutory declaration was false. The offence was premeditated and was aggravated by the promise to another person of a financial reward. The offending conduct had occurred over a four day period.

45 In Gilmour v The State of Western Australia [2008] WASCA 42 the offender was convicted after trial of offences of aggravated stalking and attempting to pervert the course of justice. He received a term of 4 years' imprisonment for the aggravated stalking and 10 months' imprisonment cumulative for the attempt to pervert the course of justice. The offender had requested his neighbours to provide him with a false alibi. The neighbours told the police the false story when first asked. However, when pressed, they revealed the true position. The offender also gave the alibi to police in his videotaped interview. The offending was considered to be more serious than cases involving giving a false name to police because it involved a deliberate attempt to engage innocent and unconnected third parties in criminal conduct.

46 In Norton v The State of Western Australia [2007] WASCA 75 the offender pleaded guilty to one count of fraud and one count of attempting to pervert the course of justice. She was originally sentenced to 18 months' imprisonment on each count, to be served concurrently, but the sentence on the fraud offence was reduced to 12 months on appeal. This did not alter the total effective sentence. The offender was having trouble selling her car so she recruited two others to take it and burn it in order to obtain the insured value. The persons recruited took the car and drove it at excessive speeds and in a reckless manner. One of them was later involved in a police pursuit which ended in him crashing the car. The offender contacted police and told them that the car had been stolen. She also made a false insurance claim. She maintained this position in a written statement to police and this resulted in one of the persons she had recruited being charged with stealing the car. After over a year and several court appearances the recruited person confessed the truth to the police. The offender did not admit her own actions until she was confronted with the other person's confession. The offender then entered a fast track plea of guilty and expressed remorse. She was the sole carer of her 6-year-old child and was considered to be unlikely to reoffend. The sentence of 18 months' imprisonment was considered to be severe but not manifestly excessive.

47 In Rauhina v The Queen the offender pleaded guilty to one count of assault occasioning bodily harm and was convicted after trial of one count of aggravated burglary, one count of robbery and one count of attempting to pervert the course of justice. A sentence of 3 years' imprisonment for the offence of attempting to pervert the course of justice was made cumulative on a total of 3 years imposed for the other offences. The offender assaulted the complainant and stole his car. The complainant reported this to the police and the offender was charged. The offender then made three telephone calls to the complainant, in one of which he threatened the complainant with violence if he did not withdraw the charges. The offender showed no remorse for his actions. The sentences in this case were imposed prior to changes in the sentencing laws. The post transitional equivalent of the sentence imposed for the attempt to pervert the course of justice in this case is one of 2 years' imprisonment.

48 There are other cases involving offences of attempting to pervert the course of justice. I have also considered those cases. They include McAuley v The State of Western Australia [2010] WASCA 98 in which the offender made false statements to police resulting in a 19-year-old being charged with stealing and appearing in court on three occasions. The offender in that case received a sentence of 12 months' imprisonment. He pleaded guilty and showed remorse but had prior convictions, including one in which he had previously deceived the police.

49 In Penny v The State of Western Australia [2010] WASCA 65 the appellant entered a fast track plea of guilty and was sentenced to 9 months' imprisonment for attempting to pervert the course of justice cumulative on a total of 12 months' imprisonment imposed for offences of driving whist disqualified and stealing. The appellant gave a false name and date of birth when arrested for driving offences. She was disqualified from driving for life at the time. She was charged and bailed in the false name and later telephoned the Magistrates Court to say she could not attend court, again using the false name. On appeal the total effective sentence was reduced because the sentencing judge had failed to take into account another term of imprisonment that the offender was serving at the time of sentencing.

50 Other cases include Billing v The State of Western Australia [2007] WASCA 145 (18 months' imprisonment for conspiracy to assault a prosecution witness to stop him testifying), Ranford v The State of Western Australia [No 2] [2006] WASCA 243; (2006) 166 A Crim R 451 (8 months' imprisonment for an attempt to have another person accept responsibility for traffic offences in return for payment), Librizzi v The State of Western Australia (15 months' imprisonment for an attempt to pressure an elderly prosecution witness to withdraw eyewitness testimony to an indecent assault), Cummins v The State of Western Australia [2006] WASCA 201 (32 months' imprisonment for an attempt to have another person damage the cars of prosecution witnesses in order to prevent them attending court) and S v The Queen [2003] WASCA 309 (2 years' suspended imprisonment for the creation of text messages to falsely implicate the offender's ex-husband in a sexual offence against their child).

51 Sentences of 3 years' imprisonment or more are towards the higher end of sentences imposed for offences of this nature. The only case referred to above that involved a sentence in that range was Murphy (taking into account the different sentencing regime that applied in Rauhina). The circumstances in Murphy were significantly more serious than the present case. Furthermore, several of the cases which attracted much lower sentences involved facts that were more serious than the present case; in particular Kelly, Dudzik, Fazari, Rauhina, Billing and Librizzi.

52 The respondent points out that many of the cases referred to by the appellant involved pleas of guilty which attracted a discount in the sentence. However, even taking that factor into account, the sentence imposed here was particularly high having regard to the circumstances of the offending. Unlike many of the cases referred to, the offending here was of very short duration and involved no planning or sophistication. As serious as offences of this nature are, this was a less serious example of its type. Having regard to those factors the sentence imposed here could not be said to be consistent with those imposed in other cases.

53 In my view the sentence of 3 years imposed for the offence of attempting to pervert the course of justice was manifestly excessive. That sentence did not properly reflect the relative seriousness of the offence and the personal circumstances of the appellant. That is not to say that offences of this kind are not serious and will not generally require a term of immediate imprisonment to be served cumulatively on any other sentence. It was entirely appropriate to impose a cumulative sentence of imprisonment here, however, with respect to the sentencing judge, he fell into error in setting the length of that sentence.

54 For those reasons, in my view, the ground of appeal should succeed. Having regard to all of the circumstances the appropriate sentence is one of 2 years' imprisonment cumulative. It is, however, important to take into account that this sentence formed part of a total effective sentence of 6½ years' imprisonment. It cannot be viewed in isolation.

55 It is artificial to take the sentence on a single offence out of the context of the total effective sentence. To reduce an individual sentence may produce a total effective sentence that no longer adequately reflects the overall criminality. In such a case it might be necessary to increase the sentence on another offence imposed at the same time: s 41(2) Criminal Appeals Act. See Re The State of Western Australia; Ex parte Richards [2005] WASCA 176 [31] - [33] (Roberts-Smith JA).

56 It may be appropriate for this court to exercise the power to adjust the sentence for another offence pursuant to s 41(2) if it is apparent that such a sentence has been reduced by the sentencing judge from what would otherwise have been appropriate having regard to the totality principle. However, in this case it is not apparent that the sentencing judge did make such a reduction. His reference to totality does not necessarily support such a conclusion. It is possible that his Honour, having considered totality, did not consider that any reduction was necessary. Furthermore, the State did not submit that a reduction in the sentence for the attempt to obstruct the course of justice offence (which it conceded was a high sentence) would result in an inappropriate total effective sentence and require an adjustment for the sentence for the grievous bodily harm offence.

57 In this case the sentence imposed for the grievous bodily harm offence of 3 years' imprisonment was arguably lenient. However, I am not convinced that a reduction in the manifestly excessive sentence on count 2 would produce a total effective sentence that failed to properly reflect the overall criminal conduct. Accordingly, in my view, it would not be appropriate to adjust the sentence on the grievous bodily harm offence.

1. Appeal allowed.
2. Set aside the sentence of 3 years' imprisonment cumulative on count 2.
3. In lieu thereof sentence the appellant to 2 years' imprisonment cumulative on the sentence on count 1 (with the effect that the total effective sentence would be one of 5 years 6 months' imprisonment).

59 The orders made by the sentence judge regarding eligibility for parole and backdating of the sentence should remain unaffected.