DONOVAN -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 9 (18 January 2024)

1. The respondent does not oppose the extension of time. I consider that, in the circumstances of this case, it is in the interests of justice to grant an extension of time within which to appeal.

1. The appellant appeals the sentence on the following two grounds:

(1) The learned sentencing magistrate erred in imposing a sentence in relation to PE 38798/22 being armed in a way that may cause fear that was manifestly excessive.

(2) The learned sentencing magistrate erred in imposing a total sentence that infringed the first limb of the totality principle.

Possession of prohibited drug with intent to sell or supply (AR 1719/22) and five offences of Breach of PSSO (PE 53160/21, PE 53161/21, PE 53162/21, PE 53163/21 and AR 1714/22) (collectively the SIO Offences)

1. The appellant was released from Acacia Prison on 16 March 2020 and was placed on a PSSO for two years, expiring on 16 March 2022. The PSSO required the appellant to comply with certain conditions, including to attend for random urinalysis for illicit substances at the direction of a Community Corrections Officer and to provide a valid sample.
2. The appellant breached the PSSO by being in possession of cannabis, failing to report for scheduled supervision and failing to attend for urinalysis.
3. In relation to the possession of a prohibited drug with intent to sell or supply offence, on 24 February 2022 the appellant was at a service station in Gosnells in a car with false and stolen number plates. He was arrested and searched at the Gosnells Police Station. The appellant was in possession of 1.71 gm of cannabis found in a balloon inside his underwear.
4. The appellant was sentenced to the SIO for these offences.

1. On 4 July 2022, the appellant was in the Beverley Hotel, talking to patrons at the main bar. The appellant did not buy a drink at the bar, a patron bought a drink for him.
2. The victim, the son of the licensee of the hotel, purchased a drink and placed his wallet on the bar. At around 6 pm, the victim went outside to get wood for the fire and left his wallet on the bar. The appellant grabbed the wallet from the bar and placed it down the front of his pants. This was captured on CCTV. This was an offence of stealing.
3. The appellant tried to use the debit card in the wallet to purchase a packet of cigarettes but there were insufficient funds. The appellant tried to purchase a cheaper packet of cigarettes but there was also insufficient funds. These are the offences of attempting to gain a benefit by fraud.
4. The appellant then went to the Beverley liquor store and walked out with a six pack of Jack Daniels cans valued at $28.99 without paying for them. Bar staff saw this and told the licensee who chased after the appellant. The appellant and the licensee returned to the hotel to confirm whether payment was made. The appellant then ran off. This was an offence of stealing.
5. On the same date, the appellant placed a lamb shank and a box of chocolates down his pants at the Beverley IGA and left the store without paying for them. This was an offence of stealing. The appellant pleaded guilty to the three offences of stealing and was fined a total of $550.
6. The learned magistrate activated the SIO and the appellant was sentenced to 3 months imprisonment for each of the breaches of PSSO offences and 9 months imprisonment for the possession of a prohibited drug with intent to sell or supply offence.

Being armed in a way that may cause fear (AR 31985/22) (Beverley armed to cause fear offence)

1. On 2 August 2022, at 1.40pm, the appellant was outside the ANZ Bank in Beverley. The appellant brandished a 34cm axe as four men were pursuing him who were brandishing weapons. The appellant was sentenced to 3 months imprisonment for this offence.

Being armed in a way that may cause fear (AR 38798/22) (Binningup armed to cause fear offence) and Burglary (PE 38975/22)

1. On 9 September 2022, the appellant drove into a fuel station in Binningup in a stolen vehicle. The appellant took a number of items from the store without paying for them. The total value of the items was $182.80. Staff confronted him as he got back into the car and asked him to return the items. The staff returned to the store and locked the door, The appellant returned back to the store with a small axe and tapped the axe on the glass window, showing the victim.
2. The accused was sentenced to 2 years for the offence of being armed in a way that may cause fear and 3 months for the offence of burglary.
3. I will discuss the total effective sentence imposed by the learned magistrate shortly as there is some confusion as to the term.

The hearing before the learned magistrate on 1 August 2023

1. At the sentencing hearing on 1 August 2022, the appellant's counsel made the following sentencing submissions:

(1) for each of the relevant offences (other than the Binningup armed to cause fear offence), the appellant entered a plea of guilty at the earliest reasonable opportunity and should be afforded a 25% discount pursuant to s 9AA of the Sentencing Act 1995 (WA) (Sentencing Act);

(2) in relation to the Binningup armed to cause fear offence, the plea of guilty was entered after negotiation on the first day of trial, with some charges being discontinued;

(3) the facts in relation to the Beverley armed to cause fear offence were nowhere near as serious as the Binningup armed to cause fear offence;

(4) the Binningup armed to cause fear offence was very serious and there was no dispute that a term of imprisonment was the appropriate sentencing disposition;

(5) when the appellant uses drugs and alcohol it has a significant impact on him and his offending; and

(6) since being in custody, the appellant had an opportunity to dry out and had insight into what was the cause of offending.

1. The prosecutor made the following sentencing submissions:

(1) the appellant had not done well on the PSSO;

(2) the appellant had received the benefit of the SIO but had reoffended whilst subject to that order;

(3) the fact that the appellant had armed himself with an axe at the Binningup service station suggests that he had not learnt the error of his ways; and

(4) an immediate term of imprisonment was the only appropriate sentencing disposition and that a degree of accumulation was appropriate given the most recent offending of the appellant.

1. The learned magistrate made the following sentencing remarks:

(1) in relation to the offences for which the appellant received a term of imprisonment, the appellant received a 25% discount for his early pleas of guilty, save for the Binningup armed to cause fear offence for which he received a 15% discount for his plea of guilty;

(2) in relation to the offences for which the appellant was placed on the SIO, being those which breached the PSSO, the appellant had displayed a persistent course of conduct such that the magistrate who dealt with the PSSO breaches imposed the SIO;

(3) the breaches of the SIO commenced less than a month after the SIO was imposed;

(4) there was no argument put that it would be unjust to trigger the SIO other than that credit ought be given for the time the appellant had spent in custody, being 326 days, given that the SIO could not be backdated;

(5) one way to give the appellant credit for the time spent in custody is to backdate the terms of imprisonment imposed for other matters to take into account the time the appellant had spent in custody and that is what the learned magistrate intended to do;

(6) the SIO would be triggered in full;

(7) the appellant's criminal record was not mitigatory;

(8) the appellant has an issue with drugs and alcohol and has 'dried out' whilst in custody;

(9) the principles of general and specific deterrence and totality must be taken into account;

(10) the offending in relation to the Binningup armed to cause fear offence was very serious as it must have been beyond frightening for the service station staff; and

(11) the case of Hayward v Martin[2] noted that sentencing outcomes for offences of being armed to cause fear range between six to eight months imprisonment although there is no sentencing tariff for offences of this kind.

1. The learned magistrate was positively satisfied that it was not appropriate for a less serious option than immediate imprisonment to be imposed.

1. The appellant submitted that the total effective sentence imposed on the appellant by the learned magistrate was 3 years and 3 months backdated to commence on 1 September 2022. The respondent submitted that the total effective sentence was only 2 years and 3 months, as the SIO of 12 months that was ordered to be served, commenced on 1 August 2023 and was not ordered to be served cumulatively on the other sentences of imprisonment.
2. The appellant, by application dated 3 January 2024, applied for leave to adduce additional evidence in the form of the affidavit of Natalie Rae Sinton affirmed on 3 January 2024 (Sinton Affidavit). The Sinton Affidavit annexed a copy of an email from the sentencing information unit confirming that the total effective sentence imposed on 1 August 2023 was 3 years and 3 months commencing on 1 September 2022. Given this evidence is relevant to the total effective sentence imposed on the appellant, I grant leave for the appellant, pursuant to s 41(4)(a) of the Criminal Appeals Act 2004 (WA) (CA Act) to adduce the Sinton Affidavit.
3. The warrants of commitment issued by the court pursuant to s 36 of the Sentencing Act recorded the sentences imposed as follows:

Possession of a prohibited drug with intent to sell or supply *triggered SIO

1. The sentences imposed for the offences which activated the SIO have a start date of 1 August 2023. This is because, as the learned magistrate correctly observed, there can be no backdating of a term of suspended imprisonment that has been activated.
2. The sentences imposed for the remainder of the offences were backdated to have a start date of 9 September 2022, to take into account the time that the appellant had spent in custody.
3. The warrants of commitment are not means by which the court passes sentence on the offender, but rather merely record the sentence that was imposed at the time of the pronouncement of the sentence in the courtroom.[3]
4. Section 88 of the Sentencing Act provides that an offender sentenced to one or more fixed terms is to serve the terms concurrently unless the court makes an order that the fixed term is to be served cumulatively on the other fixed term or that the fixed term is to be served partly concurrently with the other fixed term (emphasis added).
5. The learned magistrate said the following when sentencing the appellant:[4]

...I'm simply going to trigger the suspended imprisonment order and give you the sentence that was imposed upon you by his Honour Magistrate Mahon... In relation to the charge 1719 which is possession with intent to sell or supply, there will be nine months imprisonment. In relation to - I will just get the charge that was cumulative.... Perth charge ... 53160, that is three month imprisonment cumulative.

So it's a total for those matters of 12 months imprisonment. And for the remaining charges 1714, it will be three months imprisonment concurrent.

...

In relation to [the offences of armed in a way that may cause fear and burglary], that will be a total period of imprisonment of two years and three months. ... That will be backdated to 9 September [2022].

...

The suspended term of imprisonment of 12 months, that will run from today and there is, obviously, some element of cumulacy in relation to the current matters which have been backdated. So the being armed is cumulative but it's backdated.

1. In my view, the learned magistrate did not expressly order that the activated total term of 12 months suspended imprisonment be served cumulatively or partly concurrently on the Binningup armed to cause fear offence. Therefore, the activated SIO sentence, by virtue of s 88 of the Sentencing Act, runs concurrently with the Binningup armed to cause fear offence, making the total effective sentence 2 years and 3 months commencing on 9 September 2022.
2. However, the effect of the start date of the sentence for the SIO offences being 1 August 2023 is that the earliest release date for parole was not less 6 months from that date, that is 1 February 2024.

1. This is an appeal under the pt 2 of the CA Act.
2. The CA Act by s 7(1) allows an aggrieved party to appeal to a single judge of this court, in respect of a decision made by a court of summary jurisdiction. A sentence imposed as a result of a conviction is a decision which may be appealed.[5]
3. Section 8(1) of the CA Act sets out the grounds upon which an appeal under s 7 is made. Those grounds include where there has been an error of law[6] and/or there has been a miscarriage of justice.[7]
4. The appellant must obtain leave to appeal.[8] If leave to appeal is not granted, the appeal is taken to have been dismissed.[9] The court must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[10]
5. An appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner. It must be shown that the sentencing magistrate has made an error in exercising his or her discretion.[11]
6. Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[12]

Legal principles applicable to an appeal against sentence

1. The principles that apply on an appeal against sentence contending that error should be inferred on the basis that an individual sentence is manifestly excessive, or that a total effective sentence infringes the totality principle are well established and were summarised by the Court of Appeal in Kambabi v The State of Western Australia as follows:[13]

(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.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(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. In ground 1, the appellant asserts that the individual sentence of 2 years immediate imprisonment for the Binningup armed to cause fear offence is manifestly excessive. The appellant challenges the sentence as to length, as opposed to type.
2. In ground 2, the appellant relies upon the imposition of a manifestly excessive sentence in relation to the Binningup armed to cause fear offence as establishing that the total effective sentence imposed infringes the first limb of the totality principle.
3. As I have outlined, in order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of:

(1) the maximum sentence prescribed by law for the crime;

(2) the standards of sentencing customarily imposed with respect to it;

(3) the place that the criminal conduct occupies in the scale of seriousness of crimes of that type; and

(4) the offender's personal circumstances.

1. Section 6(1) of the Sentencing Act requires that a sentence imposed on an offender be commensurate with the seriousness of the offence. By s 6(2) of the Sentencing Act, the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating and mitigating factors, and the vulnerability of any victim of the offence.
2. Section 6(3) of the Sentencing Act provides that s 6(1) does not prevent the reduction of a sentence because of any mitigating factors or totality principles. According to s 8(1) of the Sentencing Act, a mitigating factor is one which, in the court's opinion, decreases the moral culpability of the offender or decreases the extent to which the offender should be punished.
3. Pursuant to s 6(4) of the Sentencing Act a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it.
4. The maximum penalty for the offence of being armed in a way that may cause fear, contrary to s 68(1) of the Criminal Code (WA), is 7 years imprisonment, with the summary conviction limit being imprisonment for 3 years and/or a fine of $36,000.
5. In assessing whether a sentence is manifestly excessive having regard to the seriousness of an offence, it is the statutory maximum penalty that is relevant, not the jurisdictional limit.[14]
6. The appellant referred to the cases of King v The State of Western Australia,[15] Hayward v Martin, Cleminson v State of Western Australia,[16] Hume v Jefford,[17] Crotty v Peck[18] and Garlett v Director of Public Prosecutions[19] in support of his contention that the sentence of 2 years immediate imprisonment for the Binningup armed to cause fear offence is manifestly excessive. I have read and considered the facts and sentencing dispositions in each of those cases.
7. Counsel for the appellant submitted that the cases of King and Hume most closely align to the facts of the appellants' offending.
8. In King, a sentence of 2 years' imprisonment was found to have been manifestly excessive for an offence of being armed in a way that may cause fear. In King, the offender entered a store armed with a hammer. He used the hammer to smash the glass of a display cabinet, from which he stole 3 watches. A customer witnessed this and retreated from the area of the cabinet. The owner of the shop came in after hearing the glass break. The offender brandished the hammer in the direction of the owner and ran from the store. The offender was several metres from the shop owner when he brandished the hammer. The offender pleaded guilty to unlawfully damaging the display cabinet, stealing the watches, and being armed in a way that may cause fear. He received a 20% discount for his pleas. He was sentenced to 2 years 6 months imprisonment for being armed to cause fear and 12 months imprisonment for unlawful damage and stealing. The sentence for being armed to cause fear was reduced to 2 years for totality. The appellant was resentenced to 12 months for this offence on appeal, although the total effective sentence of 3 years imprisonment imposed remained unchanged.
9. Counsel for the appellant submitted that the appellant's offending in this case is no more serious than the offending in King.
10. Counsel for the respondent submitted that the offending in King is less serious than the appellant's offending for two reasons. Firstly, in King the offender did not use the hammer with the intention of causing fear that he would commit a violent offence against the victim, but rather it was incidental to his breaking the glass. Secondly, the respondent says that personal deterrence, while a significant factor in King, was not as pronounced as in the appellant's case. This is because in King the offender had not committed a serious offence in over 10 years, while the appellant committed the offence whilst on the SIO which had been imposed for breaches of the PSSO.
11. In Hume, the offender was sentenced to 9 months' imprisonment for a single offence of being armed in a way that may cause fear. The facts in Hume were that the offender attended a petrol station in Hamilton Hill armed with a metal pole. He was intoxicated at the time. He used the metal pole to strike the glass shop front four or five times before throwing a spillage kit on the floor then chasing a customer, while wielding the pole. He then left the petrol station and walked along the road where he began to chase cars, swinging the pole at them. At one point he approached a woman and child walking down the street and held the pole above his head in a threatening manner. He dropped the pole and picked up a wooden stake which he then swung at passing vehicles causing them to swerve. The appellant had a significant criminal record, including violent offences and breaches of suspended imprisonment orders.
12. Fianacca J allowed the appeal on the basis that the learned magistrate had failed to discount the sentence for the offender's plea of guilty. His Honour refused leave to appeal on the ground that the sentence was manifestly excessive as to type. The offender was resentenced, with a 20% discount for the plea of guilty, credit for time served and recognition of progress towards rehabilitation while serving that sentence and on bail pending the appeal, to 6 months and 1 day imprisonment suspended for 12 months.
13. Counsel for the appellant submits that the offending in Hume is more serious than in this case as the court found the offending in Hume to be particularly serious given, apart from causing fear, the offender also created danger in causing motorists to swerve their vehicles to avoid him. In Hume there was a real danger that physical harm may have been caused.
14. Counsel for the respondent says that the appellant's offending is far more serious than the offending in Hume. This is because the appellant committed the offence after staff at the service station had tried to get him to return property he had just stolen, making the appellant's offence deliberate and targeted. The respondent says that the appellant produced the axe for the purpose of causing the staff to experience fear, whereas the offender in Hume swung the 'pole' at inanimate objects including vehicles, which afforded the occupants protection and the ability to move away from any immediate threat. Further, while both the appellant and the offender in Hume had significant criminal histories, the offender in Hume had recently completed a period in which a sentence of imprisonment was suspended, and had not been imprisoned for approximately 6 years before the offence. This is in contrast to the appellant who committed this offence as part of a series of offences including offences of burglary and stealing a motor vehicle while on a suspended imprisonment order. The respondent says that, while personal deterrence was a significant consideration in Hume, it was not as significant as it is in the appellant's case.
15. Conversely, the appellant says that the case of Cleminson, for which the offender received the same sentence as was imposed on the appellant, is far more serious than in this case. In Cleminson, the offender had smashed property in his mother and stepfather's house before threatening to kill them. He obtained two rifles from his stepfather's safe and fired a single round from one of them at a drum which was used as a target. The offender surrendered to police on their arrival, and spat at one of the officers placing him in the police vehicle. The offender was sentenced to 2 years imprisonment for being armed in a way that may cause fear and a total effective sentence of 4 years and 2 months imprisonment.
16. The offender in Cleminson was aged 25 years, had limited cognitive capacity and unaddressed and deep-rooted psychological issues. The only significant mitigating factor was his plea of guilty, for which he received a 25% discount.
17. The appellant submitted that the appellant's offending was not nearly as serious as that in Cleminson, in which a sentence equal to that was imposed on the appellant by the learned magistrate.
18. The respondent did not dispute that there are features of Cleminson which are more serious than in the appellant's case, but says there are other features of the appellant's case which are more serious than in Cleminson. This is because the offence in Cleminson was largely a consequence of the offender's antisocial and borderline personality traits and the offender in Cleminson was unable to properly deal with anger and regulate his emotions. The respondent says that, in contrast, the appellant's offending was deliberate, and committed in order to intimidate the staff who had tried to get him to return stolen property. Further, the respondent says that, while the offender in Cleminson had a lengthy criminal history, it was largely antisocial and traffic offences, with two prior convictions for aggravated assault occasioning bodily harm and two prior convictions for common assault. In contrast, the appellant had prior convictions of aggravated robbery, aggravated home burglary, robbery, and aggravated armed robbery, and was on a suspended imprisonment order.
19. I accept that there are some comparable features with the cases of King and Hume and the appellant's case, but there are also distinguishing features. I also accept that while the offending in Cleminson is objectively more serious than the appellant's offending, there are differences in the personal circumstances of the offender in Cleminson compared to those of the appellant.
20. While comparable cases are often referred to by appellate courts in assessing the standards of sentencing customarily imposed with respect to an offence, the guidance afforded by those cases is flexible rather than rigid and the fact that a sentence is imposed which is outside the range of sentences for comparable cases, does not establish the miscarriage of a sound exercise of the sentencing discretion in relation to a particular offence. Nor does a sentencing range in comparable cases fix a sound sentencing range in a particular case.[20]
21. There is no established tariff for offences of being armed in a manner that may cause fear given that an offence of this kind may be committed in a wide range of circumstances which makes comparison to other cases difficult.[21]
22. In the appellant's case, I accept that the offending was very serious. There was a significant need for personal deterrence given the appellant's criminal history, the fact that the appellant was subject to the SIO when he committed the Binningup armed to cause fear offence and that the SIO was imposed for offences which included breaches of the PSSO. The appellant was driving a stolen vehicle which would have made it more difficult for the police to identify the appellant. The offending took place shortly after the appellant had committed the offence of stealing from the service station. The appellant caused the victims fear by brandishing the axe. The offence occurred at night and at a place where the victims did not have assistance at hand.
23. The most significant mitigating factor was the appellant's plea of guilty for which he was afforded a 25% discount. The appellant's alcohol and drug use are not mitigating factors. However, they do explain the appellant's offending and if he is able to continue to abstain from the use of alcohol and illicit substances after his release from prison, this will reduce his risk of reoffending.
24. The appellant did not have the mitigating factor of being of prior good character. He had a number of prior convictions for aggravated robbery, aggravated home burglary, robbery and aggravated armed robbery. While the appellant's prior convictions are not an aggravating factor, they do emphasise the importance of personal deterrence and the protection of the community as sentencing considerations.
25. The learned magistrate did not make any finding in relation to the intention of the appellant in brandishing the axe, other than to say that the offending 'would have been beyond frightening for those staff members'.[22] While the appellant did in fact cause fear to the service station staff, the staff were behind locked doors when he did so. For these reasons, it is my view that the Binningup armed to cause fear offence, while serious, was not as serious as the offending in Cleminson. However, I do consider that it was more serious than the offending in King and Hume, given the circumstances in which the appellant's offending took place as I have outlined and that a significant sentencing consideration was personal deterrence and protection of the community.
26. In all of the circumstances, having regard to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of this type, and the offender's personal circumstances, I consider that the sentence of 2 years immediate imprisonment imposed in relation to the Binningup armed to cause fear offence was manifestly excessive. I would allow ground 1 of the appeal.
27. In relation to ground 2 of the appeal, the appellant submits that the total effective sentence of 3 years and 3 months is manifestly excessive because it breaches the first limb of the totality principle. I have already detailed the uncertainty surrounding the total effective sentence that was in fact imposed by the learned magistrate and my view that, in fact, the total effective sentence imposed was 2 years and 3 months.
28. The totality principle was described in Roffey v The State of Western Australia [2007] WASCA 246. It comprises two limbs. The first limb provides that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb requires that the total effective sentence not be crushing. The appellant relies only upon the first limb.
29. By applying the totality principle the goal is to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. It can be given effect to either by reducing individual sentences or making some sentences concurrent, or both.
30. Given that I have found that the total effective sentence imposed by the learned magistrate was 2 years and 3 months, I do not consider that the total effective sentence is manifestly excessive as it bears a proper relationship to overall criminality involved in all of the offences. I would therefore grant leave to appeal on ground 2, but dismiss the appeal on ground 2.

1. As error on the part of the learned magistrate has been established under ground 1, the sentence imposed by the learned magistrate on the Binningup armed to cause fear offence should be set aside and the appellant resentenced.
2. This court has the necessary material to resentence the appellant and it is appropriate that it do so.
3. When an appellant is sentenced for multiple offences and one of those sentences is varied, it does not automatically follow that the total effective sentence will be varied. Section 41(2) of the CA Act provides:

If under this Act an appeal court varies or sets aside a sentence (sentence A), it may vary any other sentence -

(a) that was imposed at or after the time when sentence A was imposed; and

(b) that took into account sentence A.

1. A consequence of this provision is that, in appropriate circumstances, other sentences imposed at the same time as an erroneous sentence which took into account that erroneous sentence may be varied. The result may be that the total effective sentence is not disturbed.
2. The expression 'any other sentence' in s 41(2) of the CA Act includes any orders as to cumulation or concurrency made in respect of the other sentence.
3. The appellant's offending in relation to the Binningup armed to cause fear offence was serious in that he was subject to the SIO when he committed the offence. He was driving a stolen vehicle which made it more difficult to identify him and the offence occurred at night in a remote place. The appellant caused the victims to be fearful. Personal deterrence and protection of the community are paramount sentencing considerations in the appellant's case.
4. The victims were behind locked doors when the offence was committed and there was no imminent threat of harm to the victims. For the reasons I have outlined, it is my view that the Binningup armed to cause fear offence was more serious than the offending in King and Hume, but less serious offending in Cleminson.
5. The appellant pleaded guilty on the first day of trial but after negotiations which resulted in the discontinuance of some charges and is entitled to a 15% discount on his sentence.
6. The appellant's personal circumstances are as follows:

(1) the appellant is 28 years old;

(2) he has a close relationship with his mother and intends to live with her in Perth upon his release from prison;

(3) his father passed away in 2018 while the appellant was in custody;

(4) the appellant is in an on and off again relationship with his partner who has a 12 year daughter that the appellant considers as his own child;

(5) the appellant does not have any biological children;

(6) the appellant left home in his mid-teens and is a brick layer by trade;

(7) the appellant intends to work in hospitality upon his release in a job his mother is able to secure for him;

(8) the appellant has previously participated in rehabilitation programs whilst in custody (not for these offences), including the Whitehaven program; and

(9) the appellant received one on one counselling on a fortnightly basis while in custody for these offences.

1. Having regard to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of this type and the appellant's personal circumstances, I consider that an appropriate sentence for the Binningup armed to cause fear offence is a term of 14 months immediate imprisonment.
2. This is the 'head sentence' (as defined in s 9 AA(1) of the Sentencing Act) and I note that it has been reduced by 15% to reflect the appellant's plea of guilty.
3. I consider that it is appropriate to activate the term of imprisonment imposed for the SIO Offences and so the sentence of 12 months immediate imprisonment imposed for the SIO Offences will not be set aside.
4. I also consider that the sentence imposed for the Beverley armed to cause fear offence of 3 months imprisonment is appropriate and that it should be served cumulatively on the head sentence. This sentence will not be set aside.
5. It is appropriate that the other sentences imposed by the learned magistrate, ordered to be served concurrently, should not be set aside.
6. The result is that the appellant is sentenced to a total effective sentence of 1 year and 10 months and 23 days. I consider that this bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the appellant personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.
7. The total effective sentence of 1 year 10 months and 23 days is made up as follows:

Possession of a prohibited drug with intent to sell or supply *triggered SIO

1. I make the following orders:
   1. The appellant is granted an extension of time within which to appeal.
   2. The appellant is granted leave, pursuant to s 41(4)(a) of the Criminal Appeals Act (CA Act), to adduce the affidavit of Natalie Rae Sinton affirmed on 3 January 2024.
   3. The application for leave to appeal on grounds 1 and 2 is allowed.
   4. The appeal on ground 1 is allowed.
   5. The appeal on ground 2 is refused.
   6. The sentence imposed by Magistrate Harries on 1 August 2023 for the offence the subject of charge PE 38798/2022 be set aside.
   7. The appellant is sentenced to a term of 14 months imprisonment for the offence the subject of charge PE 38798/2022.
   8. The total effective sentence imposed on the appellant is 1 year 10 months and 23 days backdated to commence on 9 September 2022.
   9. The sentence for the PE 53160/21, PE 53161/21, PE 53162/21, PE 53163/21, AR 1714/22 and AR 1719/22 commences on 1 August 2023 and runs partially concurrent with the sentences imposed for PE 31985/22, PE 38793/22 and PE 38798/22.
   10. The appellant is eligible for release on parole. The earliest date for release on parole is when the appellant has served 50% of his sentence for PE 53160/21, PE 53161/21, PE 53162/21, PE 53163/21, AR 1714/22 and AR 1719/22, that being 1 February 2024.

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

[2] Hayward v Martin [2014] WASC 309.

[3] Hayter v Thomson [2020] WASC 194 [39].

[10] Samuels v The State of Western Australia [2005] WASCA 193.

[11] House v R [1936] HCA 40; (1936) 55 CLR 499.

[13] Kambabi v The State of Western Australia [2019] WASCA 44 [21].

[14] Corpus v Roseveare [2015] WASC 165 [49].

[15] King v State of Western Australia [2013] WASCA 131.

[16] Cleminson v The State of Western Australia [2017] WASCA 58.

[17] Hume v Jefford [2018] WASC 272.

[18] Crotty v Peck [2021] WASC 51.

[19] Garlett v Director of Public Prosecutions [2021] WASC 353.

[20] The State of Western Australia v PJW [2015] WASCA 113 [36] - [37].