CHEESEMAN -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 78 (19 May 2023)

(3) three counts of possessing ammunition while not being the holder of a licence or permit under the Firearms Act entitling him to be in possession of ammunition, contrary to s 19(1)(c) of the Firearms Act (with the relevant penalty stipulated by s 19(1ad));

(4) one count of possessing a firearm that is reasonably suspected to be stolen, contrary to s 417(1) of the Code; and

(5) a series of simple offences the subject of a Section 32 Notice.

1. The appellant now appeals against his sentence, advancing four grounds of appeal. The first two grounds of appeal assert that, in sentencing the appellant on the three counts under s 304(2)(b) of the Code, the judge erred in sentencing the appellant on the basis of facts not alleged by the prosecution. Ground 3 asserts that the sentencing judge erred in fact in sentencing the appellant on the basis that remorse was not a mitigating factor because, had the appellant been truly remorseful, he would have identified his co‑offender on counts 1 ‑ 3 to the police. Ground 4 asserts that the appellant's total effective sentence of 7 years 9 months' imprisonment breaches the first limb of the totality principle.
2. The appellant's contentions fail. In short, the first three grounds of appeal involve a misreading of the learned sentencing judge's sentencing remarks. Ground 4 fails because the appellant's total effective sentence is an appropriate reflection of his overall criminality, in all of the circumstances, including taking into account his personal circumstances.
3. Our more detailed reasons for these conclusions are set out below.

1. The offences to which the appellant pleaded guilty, and the sentences imposed, are set out in the table below.

With intent to harm, did an act, as a result of which the life, health or safety of [the victim of count 1] was or was likely to be endangered (s 304(2)(b) of the Code)

3 years 6 months' imprisonment, reduced for totality to 2 years 6 months

With intent to harm, did an act, as a result of which the life, health or safety of [the victim of count 2] was or was likely to be endangered (s 304(2)(b) of the Code)

With intent to harm, did an act, as a result of which the life, health or safety of [the victim of count 3] was or was likely to be endangered (s 304(2)(b) of the Code)

Possessed a firearm, namely a Savage .22 calibre bolt action rifle, while not being the holder of a licence or permit under the Firearms Act entitling him to do so

And that the firearm had been altered from the design or characteristics of its original manufacture (s 19(1)(c) and s 19(1ac)(d) of the Firearms Act)

18 months' imprisonment, reduced for totality to 6 months

Both counts 4 and 6 cumulative on count 2 and count 1

Possessed ammunition, namely various rounds of ammunition, while not being the holder of a licence or permit under the Firearms Act entitling him to do so (s 19(1)(c) and s 19(1ad) of the Firearms Act)

12 months' imprisonment, reduced for totality to 3 months

Counts 5, 7 and 8 cumulative on count 2, count 1, and counts 4 and 6

Possessed a Savage .22 calibre bolt action rifle, that is reasonably suspected to have been stolen (s 417(1) of the Code)

18 months' imprisonment, reduced for totality to 6 months

Possessed ammunition, namely two 12‑gauge shotgun shells, while not being the holder of a licence or permit under the Firearms Act entitling him to do so (s 19(1)(c) and s 19(1ad) of the Firearms Act)

12 months' imprisonment, reduced for totality to 3 months

Counts, 5, 7 and 8 cumulative on count 2, count 1, and counts 4 and 6

Possessed ammunition, namely a 9 mm cartridge, while not being the holder of a licence or permit under the Firearms Act entitling him to do so (s 19(1)(c) and s 19(1ad) of the Firearms Act)

12 months' imprisonment, reduced for totality to 3 months

Counts 5, 7 and 8 cumulative on count 2, count 1, and counts 4 and 6

Section 32 Notice

Not being a person exempted under s 10, carried a controlled weapon (s 7(1) of the Weapons Act 1999 (WA))

Not being a person exempted under s 6(2), s 6(3) or s 10, carried a prohibited weapon (s 6(1)(b) of the Weapons Act)

Possessed two bandannas and four face masks with the intention of using them as a disguise in connection with committing an offence (s 557H of the Code)

Drove a motor vehicle on a road whilst not authorised (suspension) (s 49(1)(a), s 49(3)(c) of the Road Traffic Act 1974 (WA))

12 months' imprisonment, fine of $400 - $2,000, mandatory driver's licence disqualification of 9 months ‑ 3 years

10 months' imprisonment, $1,000 fine, and disqualification of 2 years

Drove a motor vehicle on a road whilst not authorised (suspension) (s 49(1)(a), s 49(3)(c) of the Road Traffic Act)

12 months' imprisonment, fine of $400 - $2,000, mandatory driver's licence disqualification of 9 months ‑ 3 years

7 years 9 months' imprisonment, $3,000 in fines. Term of imprisonment backdated to 13 June 2021. Eligible for parole.

1. The facts of the appellant's offending were not in dispute before the sentencing judge. They were outlined by the prosecutor[1] in terms that were not challenged by the appellant in the proceedings before the sentencing judge. The sentencing judge's outline of the facts, which we have summarised below, reflects the prosecutor's statement of the facts.

1. At about 7.00 am on Saturday, 12 June 2021, the appellant drove a silver Peugeot into a car park on Cockburn Road in Henderson.[2] There was a male passenger (unknown shooter) in the front passenger seat of the Peugeot, and there was a firearm in the Peugeot.[3]
2. The appellant parked the Peugeot near the car park's entrance, got out of the car and approached the victim of count 1, who was seated in the driver's seat of his parked car at the car park's far end.[4] The appellant, who was unknown to the victim, spoke to the victim and asked him for a cigarette, as a result of which the victim rolled a cigarette and gave it to the appellant.[5] Following a brief conversation, the appellant returned to the driver's seat of the Peugeot.[6]
3. After about 15 minutes, the appellant reparked the Peugeot next to the victim's vehicle, such that the victim, still in the driver's seat of his car, was closest to the front passenger seat of the Peugeot.[7] The appellant then questioned the victim as to whether he had any drugs, before then accusing the victim of being a police officer.[8]
4. After a short exchange, the appellant reversed the Peugeot and parked it behind the victim's vehicle, with the Peugeot remaining stationary for about 15 seconds, before the appellant moved the Peugeot so that it was once again alongside the victim.[9] The appellant and the unknown shooter then questioned the victim about being a drug dealer or a police officer.[10]
5. Following another short exchange, the victim reversed his vehicle out of the bay in which it was parked and drove towards the car park's exit.[11] As the victim drove away, the unknown shooter produced the firearm that was in the Peugeot and fired one round at the victim's vehicle. The bullet struck the rear windscreen of the victim's vehicle, travelled through the vehicle, striking the driver's side of the rear-vision mirror and coming to rest on the dashboard.[12]
6. In an effort to escape the appellant and the unknown shooter, the victim drove out of the car park and onto Cockburn Road.[13] The appellant, driving the Peugeot, followed the victim's vehicle onto Cockburn Road, before overtaking the victim's vehicle before the intersection of Cockburn Road and Rockingham Road and driving away.[14]

1. At about 8.50 pm on the same day (12 June 2021), the appellant drove the silver Peugeot, which was carrying the same unknown shooter in the front seat and another unknown male passenger in the backseat, along Roe Highway in Beckenham.[15] Again, there was a firearm in the Peugeot.[16]
2. Driving in the left-hand lane, the appellant slowed the Peugeot down to pull alongside a Nissan Navara being driven by the victim of count 2 and in which the victim of count 3 was seated in the front passenger seat.[17] The unknown shooter leaned across the appellant and held the firearm, such that the firearm was pointed through the driver's‑side window of the Peugeot and in the direction of the two victims.[18]
3. After a short period of time, the appellant slowed down the Peugeot slightly, such that it was no longer parallel with the Nissan Navara, before speeding back up again within seconds; during this time, the unknown shooter still had the firearm directed at the two victims.[19]
4. The appellant again pulled the Peugeot parallel with the Nissan Navara and, after about five seconds, the unknown shooter fired a single round from the firearm at the two victims, thereby constituting counts 2 and 3. The round struck the Nissan Navara in the rear of the vehicle tray.[20] Thereafter, the appellant accelerated away from the Nissan Navara.[21]

Counts 4 - 8 on the indictment and the Section 32 Notice offences

1. On the date the offences the subject of counts 1 ‑ 3 were committed, the appellant was subject to two driver's licence revocations. Thus, the appellant was driving while suspended during the commission of those offences (FR 4158/21).[22] Further, in the afternoon on Sunday, 13 June 2021, the appellant was arrested while seated in the driver's seat (FR 4159/21) of the parked Peugeot at an address in Wellard.[23]
2. During a search of the Peugeot on the same date, police located a modified Savage .22 calibre bolt action rifle in the driver's footwell (count 4); the rifle was stolen during a burglary in Byford in December 2020, and the appellant knew this to be the case (count 6).[24] Also located in the Peugeot during the search was a full box of .22 calibre ammunition containing 50 cartridges, a glass jar containing 39 loose .22 calibre cartridges, a small black pouch containing three rounds, and one round within the rifle (collectively, count 5).[25]
3. A backpack containing two throwing knives (FR 4155/21), a butterfly knife (FR 4156/21), and two bandannas and four face masks (FR 4157/21) was also located in the Peugeot during its search.[26]
4. In the late evening on the same day, police executed a search warrant at the appellant's home at 108 Coronata Drive, Warnbro.[27] During this search, police located two 12-gauge shotgun shells (count 7) and one 9 mm cartridge (count 8).[28]

1. The appellant was born on 20 December 1985. He is the oldest of two children from his parents' union. The appellant has always been close with his younger sister. The appellant also has an older half-brother, with whom he has a distant relationship, from a prior relationship of his mother's.[29]
2. When the appellant was 15, the appellant's mother, who had a gambling problem, used the appellant as a scapegoat for financial problems, falsely telling the appellant's father that the appellant had a drug problem and that this was the cause of the family's financial issues. Distressed by his mother's dishonesty, and harbouring anger and resentment towards his parents, the appellant left home to live independently, having no contact with his parents until he was 21 years old. The appellant has since reconnected with his parents.
3. From the age of 15, the appellant has mainly lived with his friends, his sister, or a partner.
4. In his early 20s, the appellant discovered that his sister had been sexually abused by his half‑brother. This made the appellant extremely angry and distressed. Because the appellant's parents did not initially believe what the appellant's sister said, she and the appellant became estranged from their parents, with the appellant becoming his sister's main source of emotional and physical support. Subsequently, it was discovered that the appellant's nieces were also victims of the half‑brother's sexual abuse. The appellant felt significant guilt about being unaware of the abuse.
5. Since these events, the appellant has seen himself as a vigilante and has 'built a reputation' for protecting others, particularly women and children, from abuse, by using violence.[30]

1. The appellant reported having had three significant intimate relationships.
2. At the age of 20, the appellant began a significant relationship with a woman to whom he was engaged and with whom he has two daughters (aged 11 and 13 at the time of sentencing).[31] After learning that this partner was having a long-term affair, the appellant was 'seriously violent' to her, and he was subsequently convicted and imprisoned in 2011.[32] By reason of the appellant's violence, he no longer has contact with his daughters.
3. The appellant's next relationship lasted less than 12 months, with both parties using drugs. The relationship ended when the appellant was imprisoned for impersonating a child protection worker in order to assist the woman's sister to retrieve her children.
4. At the time of sentencing, the appellant was in a relationship with a woman with whom he had been friends for a number of years and who remained supportive of the appellant, stating that she intended to remain in the relationship even if the appellant was imprisoned.[33]

1. The appellant left school after year 10, as he wanted to commence working. He completed a pre-apprenticeship in welding/boilermaking, before working in northern Western Australia as a jackaroo for 12 months.[34] Following this, the appellant returned to Perth and spent two years working in fencing, welding and roof tiling.[35] Additionally, the appellant had worked, at various times, as a shed hand, a shearer and a fly‑in/fly‑out worker.[36]
2. However, since he was about 28, the appellant has had limited employment as a result of being in prison, his substance abuse and his involvement in criminal activities with antisocial associates.[37]
3. The sentencing judge observed that the appellant had admitted that many of his associates were criminal and underworld figures, and the appellant reported fearing for his safety and that of his family if he were to divulge further information.[38] Although not spelled out, this appears to be a reference to the identity of the unknown shooter. The appellant said that he had been a member of an outlaw motorcycle gang between the ages of 22 and 30, and that ending his membership had caused him subsequent problems, with the appellant having been the victim of many assaults and sustaining various injuries.[39]

1. The appellant enjoys reasonably good physical health, but he has experienced depression, anxiety and trauma symptoms resulting from his various life experiences. The appellant has acknowledged long‑term anger and resentment, and a propensity for violence.[40] For about six years, the appellant used prescribed antidepressant medication, but he stopped taking the medication in 2021, when he resumed using illicit substances.[41]
2. The appellant had resumed taking medication during his remand prior to sentencing and acknowledged that the medication was of some benefit to him. The appellant had also expressed a willingness to engage in psychological counselling.[42]

1. By his early 20s, the appellant was using alcohol as a coping mechanism.[43] He reported first using methylamphetamine when he was 18 years old. After some years of abstinence, he resumed using methylamphetamine when he was 28. While the appellant claimed to have abstained from drugs while imprisoned, the sentencing judge observed that he had relapsed each time after he was released.[44]

1. The appellant has a significant criminal history, having been imprisoned in 2011, 2017 and 2018. He has convictions for offences of violence, stealing, fraud and other property offences, as well as driving and damage offences. The offences the subject of this appeal were committed approximately six months after the appellant was released from prison, following conviction for property damage, violence and weapons offences, as well as breaches of various orders.[45]

1. The sentencing judge made a number of observations as to the vulnerability of each victim and the impact of the appellant's offending on them:[46]

(1) All three victims were strangers to the appellant, minding their own business and doing nothing that could in any way diminish or mitigate the criminality of the appellant's offending.

(2) When the shot was fired at the victim of count 1, he was alone in a car park and was trying to drive away, such that there was nothing he could do to protect himself against the gunshot.

(3) The victims of counts 2 and 3 were returning home at night and, given the complete lack of any warning, there was nothing they could do to protect themselves from the gunshot.

(4) While there were no victim impact statements before the sentencing judge, it could be inferred that each of the victims would have to deal with the reality that their lives had been endangered by being shot at, and the noise of the round being shot would be indelibly impressed in their memory. The judge inferred that, whenever the victims go about their regular activities, they would be liable to wonder if the person they were near was one of the other people responsible for the offending against them.

1. Based on what the appellant had told the authors of the pre‑sentence report and the psychological report, the judge made the following observations as to the appellant's personal circumstances that led him to commit these offences:[47]

(1) The appellant was released from prison in January 2021, and he returned to his criminal associates and criminal offending ways. More specifically, the appellant returned to completing tasks for and assisting others (in committing offences), and he returned to using alcohol and methylamphetamine.

(2) At the time of the offending the subject of this appeal, the appellant said he was sleep-deprived and under the influence of substances, including methylamphetamine.

(3) The appellant was unwilling to provide much detail in the way of motivation for the offences the subject of this appeal, with the appellant stating that he feared for his safety and the safety of his family if he provided such information.

(4) The appellant adamantly denied discharging the firearm at any point.

(5) The appellant claimed he was confident the victims would not be harmed due to the gun not being powerful enough to penetrate a car (about which, her Honour noted, the appellant was wrong).

(6) The appellant showed little empathy, but he acknowledged that someone with no knowledge of guns would be scared.

(7) By way of explanation for his offending, the appellant said he had received information that one of the victims had been raping women, and the appellant had attended the carpark to search for the person responsible.

1. Her Honour then noted that, absent any 'believable' explanation as to the motive for the appellant's offending, she was left to conclude that the appellant and another or others 'willingly engaged in random acts of life‑endangering violence which included having a firearm discharge at truly innocent victims'.[48]

1. The sentencing judge was satisfied that the appellant's pleas of guilty were entered at the earliest reasonable opportunity, finding that it was thus appropriate to reduce each individual sentence by 25% on that account.[49]
2. As the judge's approach to the question of remorse is the subject of complaint on appeal, we set out this aspect of her Honour's sentencing remarks in full:[50]

I must take into account any genuine remorse you have demonstrated. Genuine remorse is often difficult to assess, and in your case, you have pleaded guilty. In some cases, that can be a demonstration of remorse, but not always. However, I look to see what else you've said or done that may be a demonstration of remorse outside of your pleas of guilty.

In your case, you did make admissions to the police about your involvement, but you have failed to show or acknowledge any understanding or appreciation for the impact your offending is likely to have had on each of the victims. Any acknowledgement you have expressed has been superficial only.

As to your interview, it was your right not to speak to the police and you cannot be punished for that. However, it is to be noted that you failed to identify the shooter to the police. In my view, if you were truly remorseful, you would have provided the identity of the male shooter to the police.

You say that you are unable to provide the identity of the shooter because it would have serious consequences for you. Well, I guess, ... this is part of the life that you've chosen to live and that's not a matter I consider to be an excuse acceptable to the community. In my view, you have shown very little genuine remorse for what you have done to the victims, all three of them. (emphasis added)

1. Ground 3 asserts that the italicised portion of this passage reveals error.
2. As to the appellant's prospects of rehabilitation, the sentencing judge observed that the appellant was a 36-year-old man who had done nothing to show that he had left his violent ways behind and, for the appellant, rehabilitation would involve 'ditching [his] mates, getting off the drugs and stop[ping] [his] offending'.[51] Her Honour considered the appellant remained a high risk of reoffending.[52]

1. Turning to the seriousness of the appellant's offending, the sentencing judge observed that it was good luck and not good management that none of the victims was physically harmed.[53]
2. The judge observed that the appellant played a critical role in the commission of counts 1 ‑ 3, saying:[54]

You were the driver of a vehicle who positioned or manoeuvred the vehicle on both occasions which enabled your male passenger to have a point from which he had a clear line of sight to both vehicles. You enabled your male passenger to have access to, take possession of and discharge the firearm in the direction of three innocent victims; three people who were strangers to you.

You committed these offences in company. It is not an aggravating factor of the offences, but the reality is that you could not have committed these offences when you did and in the way that you did if you did not have a co‑offender. It was the combined conduct of both you and the male passenger that enabled these offences to occur in the way they did and where they did.

1. Ground 1 asserts error in these aspects of the sentencing remarks.
2. Her Honour observed that while committing the offences in company was not an aggravating factor, in reality, without a co‑offender, the offences could not have been committed in the time, place and manner that they were.
3. The judge made the following further observations as to the seriousness of the appellant's offending:

(1) The firearm involved in the offending was stolen and, thus, was a firearm the appellant should never have had.[55]

(2) The victims, all of whom were innocent and going about their own business, were strangers to the appellant, and, thus, the appellant's offending was entirely unprovoked and gratuitous.[56]

(3) The victims were never afforded the opportunity to defend themselves from the danger the appellant's conduct posed to them.[57]

(4) The impact of the appellant's offending on the victims was likely to be grave.[58]

(5) The appellant was subject to a driver's licence suspension at the time the offences were committed and, therefore, should not have been driving.[59]

1. The judge then made the following observations, which are the subject of ground 2:

I have to say that your paranoia that the victim in count 1 was a police officer is quite alarming. In my view, if your shooting at that man was because you thought he was a police officer [that] aggravates your offending. Going around shooting at people because you think they are police officers is entirely unacceptable. Just because the way you choose to live is anti‑authoritarian gives you no right to go about shooting people in authority.

I also take into account the impact your offending was likely to have on the victims. These events must have been terrifying for them. Quite frankly, you should not have been driving on this day. You were under suspension. But, typical of your disregard for the law, you did not care that you were under suspension.

I have to say ... when I reflected on your offending I thought it was almost unfathomable that you could think that you could be driving around and then shooting randomly at people in their cars completely unconcerned for their lives or welfare. It's something I just do not understand and the fact not only did you do it once, but about 13 or 14 hours later, you did it again.

Your explanation that you were under the influence of drugs does not make your offending less serious. In my view, it simply makes you a greater danger to our community to know that you go around shooting randomly at strangers when under the influence of drugs. (emphasis added)

1. The judge referred to relevant sentencing principles in a manner not challenged on appeal. In the course of dealing with totality, the judge said that counts 2 and 3 were more serious than count 1 because they were the 'second occasion within 14 hours [the appellant] deliberately and consciously decided to go and randomly shoot at innocent victims.'[60] Again, this observation is challenged by ground 2.
2. Her Honour then imposed the following terms of imprisonment:

(1) 3 years 6 months in respect of count 1 (reduced to 2 years 6 months' imprisonment for totality purposes);[61]

(2) 4 years 6 months in respect of count 2;[62]

(3) 4 years 6 months in respect of count 3;[63]

(4) 18 months in respect of count 4 (reduced to 6 months for totality purposes);[64]

(5) 12 months in respect of count 5 (reduced to 3 months for totality purposes);[65]

(6) 18 months in respect of count 6 (reduced to 6 months for totality purposes);[66]

(7) 12 months in respect of count 7 (reduced to 3 months for totality purposes);[67] and

(8) 12 months in respect of count 8 (reduced to 3 months for totality purposes).[68]

1. The sentence in respect of count 2 (4 years 6 months' imprisonment) was the head sentence.[69] The sentence in respect of count 1 (2 years 6 months' imprisonment) was ordered to be served cumulatively with the sentence on count 2.[70]
2. The sentences in respect of counts 4 and 6 (6 months' imprisonment for each) were ordered to be served concurrently with each other but cumulatively on the sentence on count 2.[71] The sentences in respect of counts 5, 7 and 8 (3 months' imprisonment for each) were ordered to be served concurrently with each other but cumulatively on the sentence imposed on count 2.[72]
3. Consequently, the total effective sentence was 7 years 9 months' imprisonment. The sentence was backdated to commence on 13 June 2021 and the appellant was made eligible for parole.

1. The appellant advances the following grounds of appeal:
   1. In relation to counts 1, 2 and 3 of the indictment the sentencing judge erred in mixed fact and law because she sentenced the appellant on the basis that on both occasions when a shot was fired by the shooter, the appellant had intentionally and purposely positioned or manoeuvred his vehicle to enable the shooter to have a point from which he had a clear line of sight to both vehicles. This was not alleged to have been the case by the prosecution.
   2. In relation to counts 1, 2 and 3 of the indictment the sentencing judge erred in fact because she sentenced the appellant on the basis that the appellant was the shooter who fired the shots at the victims, when the facts alleged by the prosecution were that a passenger in the appellant's vehicle had fired the shots.
   3. In relation to counts 1, 2 and 3 of the indictment the sentencing judge erred in fact in sentencing the appellant on the basis that remorse was not a mitigating factor because had the offender been truly remorseful, he would have identified the shooter to the police.
   4. The sentencing judge erred in mixed fact and law because she imposed a total effective sentence of 7 years 9 months' immediate imprisonment, which was manifestly excessive considering all the circumstances and the overall criminality of the appellant's offending.
2. The question of leave to appeal was referred to the hearing of the appeal.

Ground 1: what the appellant did Appellant's submissions

1. As an encapsulation of the appellant's criminality, the appellant points to the prosecutor's statement that the appellant enabled the unknown shooter to possess the firearm, to travel with it in his motor vehicle while loaded and to discharge it, and the appellant made no attempt to remove the firearm from the unknown shooter.[73]
2. The appellant submits that the prosecution did not allege that the appellant intentionally positioned or manoeuvred his vehicle to enable the unknown shooter to have a clear line of sight to both vehicles, and nor was it alleged that the appellant counselled or procured the unknown shooter to fire the shots.
3. The appellant points to the passage of the sentencing remarks set out in [46] above, submitting that the sentencing judge thereby erred in that she sentenced the appellant on the basis that his actions had an equal degree of criminality to those of the unkno[74] shooter.74

1. Ground 1, and the appellant's submissions in support of it, are founded on a misreading of the sentencing remarks.
2. In our view, the sentencing remarks cannot reasonably be understood as meaning that the appellant was sentenced on the basis that he had an equal degree of criminality to that of the person who fired the shots. For convenience, we set out the impugned passage in full:[75]

On both of these occasions making up counts 1 to 3, you played a critical role in the commission of these offences.

You were the driver of a vehicle who positioned or manoeuvred the vehicle on both occasions which enabled your male passenger to have a point from which he had a clear line of sight to both vehicles. You enabled your male passenger to have access to, take possession of and discharge the firearm in the direction of three innocent victims; three people who were strangers to you.

You committed these offences in company. It is not an aggravating factor of the offences, but the reality is that you could not have committed these offences when you did and in the way that you did if you did not have a co‑offender. It was the combined conduct of both you and the male passenger that enabled these offences to occur in the way they did and where they did.

1. In the first sentence of this passage, the judge characterised the appellant's role as critical. To so observe is not to equate the appellant's criminality with that of the person firing the shots. The same is true of what her Honour said in the third paragraph of the impugned passage, in which her Honour observed, with respect, correctly, that (i) the appellant could not have committed the offences when and in the manner that he did if he did not have a co‑offender, and (ii) the combined conduct of the appellant and the unknown shooter enabled the offences to occur in the manner and place that they occurred.
2. The nub of this ground is its complaint that the judge sentenced the appellant on the basis that he intentionally and purposely positioned or manoeuvred his vehicle to enable the unknown shooter to have a point from which he had a clear line of sight. The sentencing remarks cannot reasonably be so read. Her Honour's observation in the first sentence of the second paragraph of the impugned passage is a statement of the objective effect of the appellant's conduct - it does not involve any finding about the appellant's purpose. Her Honour expressed her observations in the form of 'which enabled' rather than, as the appellant paraphrased it, 'to enable'. This distinction is important and, it may reasonably be inferred, informed her Honour's choice of words. What her Honour said in the second sentence of that paragraph reflects what the prosecutor had said, namely that the appellant allowed the unknown shooter to (i) possess the gun, (ii) travel with it when loaded, and (iii) discharge it.
3. For these reasons, ground 1 fails.

Ground 2: Was the appellant sentenced on the basis that he was the shooter? Appellant's submissions

1. The appellant recognises that, in stating the facts on counts 1, 2 and 3, the sentencing judge referred - correctly - to the unknown shooter as being the person who fired the shots the subject of those counts. However, the appellant points to several passages later in the sentencing remarks, namely the passages extracted at [50] and [51] above, in which the sentencing judge was said to have evidently viewed the appellant as being the person who fired the shots. In particular, the appellant points to t[76] following passages:76

(1) 'In my view, if your shooting at that man was because you thought he was a police officer that aggravates your offending.'

(2) '... when I reflected on your offending, I thought it was almost unfathomable that you could think that you could be driving around and then shooting people in their cars ...'

(3) 'In my view, it simply makes it a greater danger to our community to know that you go around shooting randomly at strangers when under the influence of drugs.'

(4) '... this was a second occasion within 14 hours you deliberately and consciously decided to go and randomly shoot at innocent victims.'

(5) 'when you shot at the victim [of count 1]' and 'when you shot at the victims [of counts 2 and 3]'.

1. In essence, ground 2 complains that the judge sentenced the appellant on the basis that he was the person who fired the gun. In our view, it is clear from the sentencing remarks read fairly as a whole that her Honour did not do so. The appellant's submissions on ground 2 involve taking the sentencing judge to have correctly understood, in stating the facts, that the passenger was the person who fired the shots at the outset of the sentencing remarks, and yet having fundamentally misconceived the position soon thereafter in treating the appellant as the person who had fired the gun. The inherent unlikelihood of such an error is reinforced and magnified when regard is had to the course of the sentencing proceedings, which the sentencing remarks immediately followed. Both parties' submissions on sentence were framed on the basis that the unknown shooter, and not the appellant, had fired the gun on both occasions.
2. Moreover, her Honour's observation that the appellant had not identified the unknown shooter to police (which is the subject of ground 3) further reinforces that the judge was well aware that the appellant was not the person who fired the shots.
3. When the sentencing remarks are considered as a whole, it is clear that her Honour sentenced the appellant on the basis that it was the unknown shooter, who was the passenger in the appellant's car, and not the appellant who fired the shots. The appellant was, as he acknowledged by his plea of guilty, criminally liable for the acts of the unknown shooter. When the sentencing remarks are considered as a whole and in their context, the impugned passages must be understood as a reference to the actions of the appellant and the unknown shooter collectively.
4. Ground 2 is without merit and leave to appeal must accordingly be refused.

1. The appellant acknowledges that both the pre‑sentence report and the psychological report indicated that he had little or no understanding of the impact of his offending on the victims. However, the appellant submits that his refusal to identify the unknown shooter was not because he did not care about the victims, but because of his genuine fear of the unknown shooter and the unknown shooter's family. Consequently, it was reasonable for the appellant not to identify the unknown shooter. The appellant submits that, in these circumstances, the sentencing judge erred in sentencing the appellant on the basis that remorse was not a mitigating factor because, had the appellant been truly remorseful, he would have identified the unknown shooter to the police.[77]

1. It should be noted at the outset that, in making sentencing submissions, the appellant's counsel did not submit to the sentencing judge that remorse was a mitigating factor.
2. The principles concerning remorse as a mitigating factor were recently discussed by this court in some detail in The State of Western Australia v Rayapen.[78] For present purposes, the most relevant principles include the following:

(1) As remorse is a mitigating factor, the offender bears the onus of establishing remorse on the balance of probabilities.

(2) Remorse is not demonstrated simply by sorrow for being caught or regret as to the consequences for the offender and their family. Remorse involves a realisation by the offender that what they did was wrong, regret that they did it and some insight into the consequences for the victim.

(3) In determining whether an offender is remorseful, the sentencing judge must have regard to the offender's conduct as a whole. In this context, actions speak louder than words.

1. Contrary to the apparent premise of the appellant's submissions on this ground, the sentencing judge did not treat the appellant's failure to identify the unknown shooter as the sole criterion for evaluating the question of remorse. Rather, consistently with the principles we have outlined, her Honour had regard to a number of matters. Her Honour noted the appellant's pleas of guilty and his admissions to police as matters indicative of remorse. However, against this, her Honour referred to the appellant's superficial acknowledgement of, and insight into, the impact of his offending on the victims. As the appellant recognises, both the pre‑sentence report and the psychological report referred to this lack of insight into and acknowledgement of the effect of his offending on the victims.
2. In our view, the appellant's lack of acknowledgement of and insight into the impact of his offending on the victims weighed decisively against remorse as a mitigating factor.
3. Had the appellant identified the unknown shooter to the police, that would, no doubt, have been a significant mitigating factor. However, that mitigating factor was not present. Read in context, this is the point the sentencing judge was making in the impugned passage the subject of ground 3.
4. In all the circumstances, we are not persuaded of material error in the judge's conclusion that the appellant had shown little genuine remorse for what he had done to his victims, and so remorse was not a mitigating factor. Ground 3 fails.

1. The appellant submits that, particularly bearing in mind the 25% discount for his pleas of guilty and the fact that he did not fire the gun, his total effective sentence of 7 years 9 months' imprisonment did not bear a proper relationship to the overall criminality of his offending.[79]
2. The appellant submits that, as a person liable as an aider, he must be taken to have known of the unknown shooter's intent to harm, but he - the appellant - did not have any such intent and this diminishes the appellant's criminality.[80]
3. The appellant submits that the decisions of this court in The State of Western Australia v Popal[81] and in Kaokula v The State of Western Australia[82] support the conclusion that the total effective sentence in the present case was excessive. He submits that the level of criminality, and the risk of serious harm to innocent victims, was significantly higher in Popal than in the present case.[83]

1. The general principles governing an appeal contending that the total effective sentence infringes the first limb of the totality principle are well established. They were summarised in Kabambi v The State of Western Australia[84] in, relevantly, the following terms:

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

...

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

1. An offence against s 304(2)(b) involves endangering life, health or safety and does not necessarily involve bodily harm. The text and structure of s 304(2) reveals that the potential risk to life, health and safety involved in an act done with intent to harm may be equally as important as any actual harm caused by that act.[85]
2. Factors relevant to determining the appropriate sentence for an offence under s 304(2) of the Code include:[86]

(1) the nature and seriousness of the offender's intent to harm;

(2) the nature and seriousness of the bodily harm caused to a particular victim, or the severity and other circumstances of the actual or likely endangering of the particular victim's life, health or safety, as the case may be; and

(3) the potential (as distinct from the actual) consequences of the offender's conduct.

1. Because of the wide variety of circumstances in which offences against s 304(2) of the Code occur, and of the offenders who commit them, there is no sentencing tariff for such offences.[87] As this court observed in Popal, the cases reveal that a wide range of sentences have been imposed for offences contrary to s 304(2) of the Code and that, in some cases, substantial individual sentences have been imposed or upheld on appeal. For example, in Kaokula, a sentence of 6 years 2 months' imprisonment was found not to be manifestly excessive; in Vander Waide v The State of Western Australia,[88] a sentence of 7 years' imprisonment was found not to be manifestly excessive; and in Popal, in resentencing, this court imposed a sentence of 6 years' imprisonment on one of the offences under s 304(2).

1. The appellant committed three offences under s 304(2), for which the maximum penalty is 20 years' imprisonment. His offending was characterised by a number of features that rendered the offending very serious. The victims were strangers to the appellant who, prior to the day of the offending, had had no interaction with him. The appellant's offences involved the discharge of a loaded gun at innocent and vulnerable victims. While the discharge of a weapon is always extremely dangerous, particularly where it occurs in a public place, the danger here was magnified by the circumstance that, when counts 2 and 3 were committed, the victims were in a moving car on the open road. Thus, not only was there the potential for serious injury or death to the victims, but there were also serious risks to other road users.
2. As the sentencing judge observed, it was nothing more than good luck that the potential for serious harm was not realised. In relation to count 1, the bullet entered the cab of the victim's vehicle and went perilously close to hitting him; it hit the driver's side of the rearview mirror in close proximity to the victim's head. On counts 2 and 3, while the bullet hit the tray of the victims' vehicle, given the speed of travel of the vehicle, the bullet could very easily have gone into the cab of the victims' vehicle and, in any event, a driver's reaction to the firing of a gun is inherently unpredictable.
3. As the sentencing judge recognised, the separation in time and place between the commission of count 1 and the commission of counts 2 and 3 reinforced the appellant's overall culpability. The appellant did not engage in a spree of offences in rapid succession; counts 2 and 3 occurred more than 12 hours after count 1 had occurred. In these circumstances, it was both appropriate and necessary to impose some accumulation between the sentence for count 1 and the sentences for counts 2 and 3, to ensure that the sentence properly reflected the appellant's overall criminality.
4. The appellant's submission summarised at [79] above does not assist him. The appellant's conduct in intentionally aiding the unknown shooter while knowing that he (the unknown shooter) had an intent to harm - relevantly, an intent to cause bodily harm or an intent to intentionally endanger the life, health or safety of a person - reveals a high degree of culpability that is not significantly less than if the appellant had himself had an intent to harm.
5. In evaluating the appellant's overall criminality, it is important to recognise that his offending also included a number of offences against the Firearms Act. The maximum penalty for counts 4 and 6 was 7 years' imprisonment. The maximum penalty for counts 5, 7 and 8 was 5 years' imprisonment.
6. This court has said that general deterrence is the main consideration when sentencing for offences against the Firearms Act, with personal circumstances playing a lesser role. See, for example, Stagno v The State of Western Australia[89] and Sakhie v The State of Western Australia.[90]
7. In this case, the extent of the appellant's offending, and his criminal history, meant that specific deterrence was a significant sentencing consideration. In the circumstances of this case, both general and specific deterrence were of primary importance. Thus, as the respondent submits, the accumulation of the sentences imposed for counts 4 and 5 was appropriate. Indeed, in our view, some accumulation was necessary to ensure that the sentence properly reflected the appellant's overall criminality.
8. While the appellant had the significant benefit of his early pleas of guilty, as well as his admissions to police, there was otherwise little in the way of mitigation in his favour. Given his age, his substantial criminal record and the absence of any meaningful steps towards rehabilitation, the judge's conclusion that the appellant posed a high risk of reoffending was amply justified.
9. Consideration of other decisions does not assist the appellant. One case does not establish the bounds of an available exercise of sentencing discretion. In any event, the sentence imposed in Popal is broadly consistent with the appellant's sentence in the present case. Both cases involved the discharge of a gun at victims driving or passengers in other cars. In Popal, over the course of about 30 minutes, the offender, in the midst of a self‑induced methylamphetamine psychosis, drove through suburban streets discharging a handgun. There were five shooting charges, two against s 304(2); the other three were charged as offences under s 304(1), which carries a maximum penalty of 7 years' imprisonment. The offender in Popal had personal circumstances and mitigating factors appreciably more favourable than that of the appellant in this case. The offender in Popal had substantial mitigation from remorse and his efforts at rehabilitation, had significantly better antecedents than the appellant, and had some mitigation from his favourable work history and family support. By contrast, in the present case, specific deterrence was a significant sentencing factor. Moreover, in the present case, the appellant had committed a number of additional firearms offences.
10. Taking into account all the circumstances of the appellant's offending and his personal circumstances, and having regard to all relevant sentencing factors, we are satisfied that the appellant's total effective sentence was an appropriate reflection of his overall criminality. Ground 4 has not been established.

1. For the above reasons, we would dismiss the appeal. We would make the following orders:

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[73] Appellant's submissions [1], referring to ts 17.

[76] Appellant's submissions [10], with reference to ts 62 - 63; appeal ts 20, referring to ts 53.

[77] Appellant's submissions [12] - [14].

[78] The State of Western Australia v Rayapen [2023] WASCA 55 [139] - [147].

[79] Appellant's submissions [17]; appeal ts 24 - 25.

[81] The State of Western Australia v Popal [2020] WASCA 200.

[82] Kaokula v The State of Western Australia [2016] WASCA 198.

[83] Appellant's submissions [18] - [24].

[84] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[88] Vander Waide v The State of Western Australia [2019] WASCA 148

[89] Stagno v The State of Western Australia [2013] WASCA 166 [44].

[90] Sakhie v The State of Western Australia [2017] WASCA 103 [29].