Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Indictment charging counts of robbery and alleging circumstances of aggravation - Plea of guilty to robbery - Denial of circumstance of aggravation - Existence of circumstance of aggravation tried by judge without application under s118 of the Criminal Procedure Act 2004 - Whether any error of law - Whether any substantial miscarried of justice

Criminal law - Sentencing - Multiple property offences - Whether manifestly excessive - Parity principle - Double punishment

Criminal Appeals Act 2004 (WA), s 30

Criminal Code (WA), s 3, s 5, s 391, s 392, s 401

Criminal Injuries Compensation Act 2003 (WA), s 3, s 14

Criminal Procedure Act 2004 (WA), s 3, s 23, s 59, s 84, s 85, s 91, s 92, s 113, s 118, s 124, s 126

Customs Act 1901 (Cth)

Interpretation Act 1984 (WA), s 67

Sentencing Act 1995(WA), s 6, s 7, s 146

Leave to appeal on grounds 2, 3, 4 and 6 of appeal against sentence dismissed

Leave to appeal on ground 5 of appeal against sentence granted

Sentence of 6 months imprisonment for stealing (charge 6102) quashed

Ashworth v The State of Western Australia [2006] WASCA 36

Barry v The State of Western Australia [2012] WASCA 175

Benter v The State of Western Australia [2005] WASCA 245

Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291

Burke v Corruption and Crime Commission [2012] WASCA 49

Caporn v The State of Western Australia [No 2] [2008] WASCA 26; (2008) 36 WAR 294

Carney v The State of Western Australia [2010] WASCA 90

Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Drake v The State of Western Australia [2006] WASCA 209

Grierson v The Queen [1938] HCA 45; (1928) 60 CLR 431

JKL v The State of Western Australia [2012] WASCA 215

Johnston v The State of Western Australia [2010] WASCA 121

Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

Moody-Jackamarra v The State of Western Australia [2007] WASCA 7

Nannup v The State of Western Australia [2011] WASCA 257

Nguyen v The State of Western Australia [2007] WASCA 114

Nicolaides v The State of Western Australia [2012] WASCA 199

Papertalk v The State of Western Australia [2011] WASCA 229

Penny v The State of Western Australia [2006] WASCA 173

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Bright [1916] 2 KB 441

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

R v Hietanen (1989) 51 SASR 510

R v Kayal [1979] 2 NSWLR 117

R v Meaton [1986] HCA 27; (1986) 160 CLR 359

R v Pryor [2001] QCA 341

R v Sawyer [1967] VicRp 87; [1967] VR 725

R v Soma [2003] HCA 13; (2003) 212 CLR 299

R v Taudevin [1996] VICSC 7; [1996] 2 VR 402

Ricciardo v The State of Western Australia [2010] WASCA 116

Royer v The State of Western Australia [2009] WASCA 139

The State of Western Australia v Majok [2005] WASC 13; (2005) 152 A Crim R 25

The State of Western Australia v Munda [2012] WASCA 164

Tomov v The Queen [2011] WASCA 189

Vagh v The State of Western Australia [2007] WASCA 17

Wade v The Queen [2001] WASCA 252

Wright v The State of Western Australia [2010] WASCA 199

Zimmerman v The State of Western Australia [2009] WASCA 211

1 Randolph Eric Gillespie appeals from his conviction of robbery committed while armed and in other circumstances of aggravation. The only ground of appeal against that conviction arises from a difference of opinion between judges of this court with respect to the precise mechanism by which the question of whether a substantive offence was committed in circumstances of aggravation can be tried by a judge sitting alone. Mr Gillespie, through his counsel, was aware of the differences of opinion and consented to and encouraged the procedural course which was adopted. The procedural course which Mr Gillespie, through the same counsel, now contends should have been followed would have made no difference at all to the conduct of the hearing or its outcome, nor upon the sentence actually imposed. In those circumstances, any procedural irregularity cannot have occasioned a miscarriage of justice and Mr Gillespie's appeal against conviction should be dismissed. In any event, the procedure which was followed was in fact proper, and accords with the relevant statutory provisions.

2 Mr Gillespie also appeals against various aspects of the total effective sentence of 8 years imprisonment imposed upon him following his conviction for the robbery, and various other offences committed in company with others in the course of an extraordinary rampage across various suburbs of Perth. At the time Mr Gillespie was also on bail, and the offences constituted a breach of a number of community-based orders imposed upon him as a consequence of prior offences of some seriousness, and for which he was resentenced. In this context, and for the reasons which follow, the sentences imposed upon Mr Gillespie were well within the range available to the sentencing judge in the exercise of his discretionary judgment, and were not disparate to the sentences imposed upon a co-offender. Leave to appeal from those sentences should be refused, with the exception of an appeal from one sentence which should be allowed and the sentence quashed because it amounts to double punishment. The quashing of that sentence will have no effect upon the total effective sentence imposed.

3 The indictment presented against Mr Gillespie contained ten counts, although one count (count 7) was discontinued. For the purposes of the appeal against sentence, it will be necessary to consider all nine remaining counts. However, for the purposes of the appeal against conviction, only counts 1 and 2 are relevant. They are in the following terms:

1. On or about 24 September 2010 at Como, Randolph Eric Gillespie entered or was within the place of [name omitted] without his consent, with intent to commit an offence therein

And that Randolph Eric Gillespie was in the company of others

And that immediately before the commission of the offence, Randolph Eric Gillespie knew or ought to have known that there was another person in the place

And that the place was ordinarily used for human habitation

1. On the same date and at the same place as in count (1) Randolph Eric Gillespie stole from Ms L [name omitted] with violence, keys and other items the property of Ms L.

And that Randolph Eric Gillespie was armed with an offensive instrument, namely a set of gardening secateurs

And that Randolph Eric Gillespie was in company with others

And that Randolph Eric Gillespie did bodily harm to Ms L.

4 At a very early stage in the proceedings, through his counsel, Mr Gillespie indicated a willingness to enter a plea of guilty in respect of count 1, and further indicated that he admitted committing the robbery the subject of count 2 in company with others. However, he did not admit that he was armed with an offensive instrument or that he caused bodily harm to Ms L.

5 On his first appearance in the Supreme Court, through his counsel, Mr Gillespie proposed that the issues of whether or not he was armed with an offensive instrument and whether or not he had caused bodily harm to Ms L should be tried by a judge alone, rather than by a judge sitting with a jury. That position never changed. The only question which was ventilated prior to the trial of those issues by a judge sitting alone was the question of how that result might be achieved procedurally. Before relating the procedural course which was in fact followed, it is appropriate to first identify the legal principles applicable to the procedural issue, starting with a consideration of the nature of the charge the subject of count 2.

6 Count 2 alleges the commission of the offence of robbery created by s 392 of the Criminal Code (the Code). That section provides:

A person who steals a thing and, immediately before or at the time of or immediately after doing so, uses or threatens to use violence to any person or property in order -

(a) to obtain the thing stolen; or

(b) to prevent or overcome resistance to its being stolen,

(c) if immediately before or at or immediately after the commission of the offence the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed, to imprisonment for life; or

(d) if the offence is committed in circumstances of aggravation, to imprisonment for 20 years; or

(e) in any other case, to imprisonment for 14 years.

7 There is only one offence created by s 392, being the offence of robbery. The maximum penalty for that offence is 14 years imprisonment. However, if the offence is committed in circumstances of aggravation, the applicable maximum penalty increases to 20 years. If immediately before or after the commission of the offence of robbery the offender is armed with any dangerous or offensive weapon, or pretends to be so armed, the applicable maximum penalty increases to life imprisonment. The expression 'circumstances of aggravation' is defined for the purposes of s 392 of the Code by s 391 which provides:

In sections 392 and 393 -

circumstances of aggravation means circumstances in which -

(a) immediately before or at or immediately after the commission of the offence -

(i) the offender is in company with another person or persons; or

(ii) the offender does bodily harm to any person; or

(iii) the offender threatens to kill any person;

or

(b) the person to whom violence is used or threatened is of or over the age of 60 years.

8 It should be noted that s 392 does not create a separate offence of armed robbery, in the sense that being armed is an additional element which distinguishes such an offence from the offence of robbery. Rather, the effect of the section is to provide that if the offence of robbery is committed in a particular circumstance, being the circumstance defined in s 392(c), the maximum penalty that may be imposed is life imprisonment.

9 Put another way, although in ordinary parlance it is common to refer to 'robbery', 'aggravated robbery', 'armed robbery' and 'aggravated armed robbery' in terms which might suggest that they are distinct offences, there is but one offence created by the section, although the maximum penalty applicable to that offence is dependent upon the circumstances of its commission.

10 It is also of some significance that each of being in company and causing bodily harm are circumstances of aggravation, as that term is defined by s 391 of the Code. As I have indicated, Mr Gillespie admitted that he committed the offence of robbery in company, and by virtue of that admission was liable to a maximum penalty of 20 years imprisonment, in accordance with s 392(d) of the Code. Accordingly, although he denied causing bodily harm to Ms L, the resolution of that question had no impact or effect upon the maximum penalty to which Mr Gillespie was liable.

11 This is, of course, not to say that the resolution of that question was irrelevant to the sentencing process - far from it. If Mr Gillespie caused bodily harm to Ms L, that would be an aggravating factor for the purposes of the sentence properly imposed upon him for that offence. However because he admitted committing the offence in company, it would not increase the maximum penalty to which he was liable. This distinction between an aggravating factor which operates to increase the sentence properly imposed, and a circumstance which increases the maximum penalty to which the offender is liable is evident in the Sentencing Act 1995 (WA) (Sentencing Act) to which I will now turn.

Sentencing Act 1995 (WA)

12 Section 6 of the Sentencing Act sets out the principles which are to be applied by a court when passing sentence. The first principle specified in the section is to the effect that the sentence imposed must be commensurate with the seriousness of the offence (s 6(1)). Secondly, s 6(2) sets out that the seriousness of the offence is to be determined by taking into account a number of factors, including 'any aggravating factors'.

13 Meaning is given to the expression 'aggravating factor' by s 7 of the Sentencing Act which relevantly provides:

(1) Aggravating factors are factors which, in the court's opinion, increase the culpability of the offender.

(3) If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then -

(a) an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and

(b) whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.

14 So, s 7(3) of the Sentencing Act distinguishes between an aggravating factor and a circumstance of aggravation. An aggravating factor is a factor which, if present, increases the culpability of the offender, causing the court to evaluate the offence more seriously and which may therefore increase the penalty properly imposed. A circumstance of aggravation is a circumstance which, if present, renders the offender liable to an increased maximum penalty. The effect of the section is that an offender is not liable to the increased maximum penalty unless he or she has been charged and convicted of committing the offence in the relevant aggravating circumstance. However, if the offender has not been charged and convicted of committing the offence in such a circumstance, and is therefore not liable to the increased maximum penalty, the circumstance, if established, may nevertheless be taken into account by the court when assessing the seriousness of the offence and the penalty properly imposed for that offence.

15 In the present case, as Mr Gillespie admitted that he committed the offence of robbery in a circumstance of aggravation - namely, being in company with others. Therefore, on the basis of that admission he was liable to a maximum of 20 years imprisonment. Pursuant to s 7(3)(b) of the Sentencing Act, if it were established that Mr Gillespie had caused bodily harm to Ms L, that fact could be taken into account as an aggravating factor for the purposes of sentence irrespective of whether or not Mr Gillespie had been charged and convicted of committing the offence of robbery in such a circumstance. Similarly, if it were established that Mr Gillespie had committed the offence of robbery in the circumstance defined in s 392(c) of the Code, that fact could be taken into account as an aggravating factor for the purposes of sentence irrespective of whether or not Mr Gillespie had been charged and convicted of committing the offence while armed. However, as explained, he would not be liable to the maximum penalty of life imprisonment.

16 Given this legal structure, it is significant to note that the sentence actually imposed upon Mr Gillespie in respect of count 2 on the indictment was 5 years imprisonment. Obviously, that sentence did not exceed or even approach the maximum penalty available for the offence of robbery committed without any circumstances of aggravation. Equally obviously, that sentence did not exceed or even approach the maximum penalty available for the offence of robbery committed with circumstances of aggravation. That is significant because the argument advanced in support of the proposition that the procedure adopted was irregular depends upon s 7(3)(a) of the Sentencing Act, which is only concerned with the maximum penalty to which an offender is liable. But in this case, the maximum penalty to which Mr Gillespie was liable in respect of count 2 made little or no practical difference to the penalty actually imposed. That penalty depended upon the presence of the aggravating factors which increased Mr Gillespie's culpability, and which, pursuant to s 7(3)(b), could be taken into account whether or not Mr Gillespie was charged and convicted of them. This is relevant to the question of whether the procedural irregularity alleged has occasioned a miscarriage of justice.

17 Before leaving the Sentencing Act, s 146 should be noticed. It provides:

In proceedings under this Act before a superior court, any question of fact is to be determined by a judge and not by a verdict of a jury.

Thus, the presence or absence of aggravating factors within the meaning of s 7(3)(b) of the Sentencing Act is, on any view, a matter to be determined by a judge alone. Whether the presence or absence of a circumstance of aggravation can also be tried by a judge alone is the contentious issue.

Criminal Procedure Act 2004 (WA)

18 Section 126 of the Criminal Procedure Act 2004 (WA) (Criminal Procedure Act) specifies the pleas which an accused may enter to a charge. It provides:

(1) If under this Act an accused may or must plead to a charge, the accused may -

(a) plead that the court does not have jurisdiction to deal with the accused or the charge;

(b) plead that the offence charged is not an offence under any of the provisions referred to in the Criminal Code Act 1913 section 4;

(c) plead that the accused has a defence to the charge under The Criminal Code section 17;

(d) plead not guilty of the charge on account of unsoundness of mind under The Criminal Code section 27;

(e) plead not guilty to the charge;

(f) plead guilty to the charge or, with the prosecutor's consent, to some other offence of which the accused might be convicted instead of the charge.

(2) An accused may enter a plea under subsection (1)(b) to a charge at any time before a judgment on the charge is entered against the accused under section 147.

(3) For the purposes of entering a plea under subsection (1)(c), it is sufficient for the accused to describe the offence of which the accused has been convicted or acquitted in any way in which it is commonly known.

(4) Unless the accused pleads guilty, 2 or more of the pleas in subsection (1) may be made together.

(5) If an accused, on being required by a court to plead to a charge -

(a) enters a plea other than one permitted by subsection (1);

(b) does not plead in accordance with subsection (4); or

(c) does not plead,

the court must enter a plea of not guilty on behalf of the accused, unless -

(d) the court, under section 99(4) or (5), enters a plea on behalf of the accused; or

(e) the accused is not mentally fit to stand trial under the Criminal Law (Mentally Impaired Accused) Act 1996.

(6) A plea entered by a court under this Act on behalf of an accused has the same effect as if it had been entered by the accused.

19 The term 'charge' is defined by s 3 of the Criminal Procedure Act to mean 'a written allegation in a prosecution notice or indictment that a person has committed an offence'.

20 Section 92 of the Criminal Procedure Act specifies the consequence of the entry of a plea of not guilty to 'a charge'. It provides:

92. Plea of not guilty, consequences of

If an accused pleads not guilty to a charge, or such a plea is entered by a superior court on behalf of the accused, then unless -

(a) the accused's plea is not accepted under section 99; or

(b) an order is made under section 118 that the trial of the charge be by a judge alone without a jury,

the accused is entitled to have the issues of fact raised by the plea tried by a judge and jury.

21 No express provision is made in the Criminal Procedure Act for the entry of a plea to the effect that the offender is guilty of an offence, but not guilty to committing that offence in the circumstances of aggravation alleged. On one view there is no need for an express provision to that effect, because the plea is entered in relation to 'the charge' - which is the offence alleged, not to the presence or absence of circumstances of aggravation. On that view, once a conviction has been entered in respect of the offence charged, as the presence or absence of circumstances of aggravation goes only to sentence, that is an issue which can be tried in the same way as other issues going only to sentence - namely, by a judge alone under s 146 of the Sentencing Act. The contrary view is that such an approach is difficult to reconcile with s 7(3)(a) of the Sentencing Act which refers to an offender being charged and convicted of committing the offence in circumstances of aggravation. On this view, before the increased maximum penalty is available, the offender must be convicted of having committed the offence in the relevant circumstance of aggravation either on the offender's plea, or after trial by jury, or by judge alone if an order to that effect is made pursuant to s 118 of the Criminal Procedure Act. It is this division of view which has bedevilled this case and given rise to Mr Gillespie's appeal against conviction.

22 Relevantly, s 118 of the Criminal Procedure Act provides:

1. Trial by judge alone without a jury may be ordered

(1) If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury.

(2) Any such application must be made before the identity of the trial judge is known to the parties.

(3) On such an application, the court may inform itself in any way it thinks fit.

(4) On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.

(5) Without limiting subsection (4), the court may make the order if it considers -

(a) that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or

(b) that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury.

(6) Without limiting subsection (4), the court may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

(7) If an accused is charged with 2 or more charges that are to be tried together, the court must not make such an order in respect of one of the charges unless the court also makes such an order in respect of each other charge.

(8) If 2 or more accused are to be tried together, the court must not make such an order in respect of one of the accused unless the court also makes such an order in respect of each other accused.

(9) If such an order is made, the court cannot cancel the order after the identity of the trial judge is known to the parties.

23 Section 124 of the Criminal Procedure Act empowers a superior court to make 'rules of court' regulating the practice and procedure to be followed in that court in cases involving the court's criminal jurisdiction. The Criminal Procedure Rules 2005 (Criminal Procedure Rules) have been promulgated in the exercise of that power. Rule 28 of those rules provides:

1. Trial by judge alone, application for (CPA s. 118)

An application for an order under the CPA section 118 must be supported by an affidavit that -

(a) identifies the charge which the applicant wants to be tried by a judge alone; and

(b) identifies all accused who are jointly charged with the charge and, if known, says whether each such accused will consent to being tried on the charge by a judge alone; and

(c) says that the applicant does not know the identity of the trial judge; and

(d) if the applicant is the accused, says that the accused intends to plead not guilty to that charge.

24 Finally, s 113 of the Criminal Procedure Act is relevant to the circumstances in which a jury may be entrusted with determining whether or not an offence was committed in circumstances of aggravation. It provides:

113. Special verdict may be required

(1) If in a trial the question arises whether, under The Criminal Code section 27, the accused was not criminally responsible for an act or omission on account of unsoundness of mind, the judge must direct the jury that if it finds the accused not guilty of the charge on account of unsoundness of mind, it must return a special verdict to that effect.

(2) If the judge is of the opinion that the proper sentence or order to be imposed -

(a) on an accused if convicted; or

(b) on an accused if found not guilty on account of unsoundness of mind,

may depend upon a specific fact, the judge may require the jury to give its verdict on that fact specifically.

25 The division of judicial opinion to which I have referred is evident in the cases on the subject.

26 In Wade v The Queen [2001] WASCA 252, after setting out s 7 of the Sentencing Act, McKechnie J (Malcolm CJ and Anderson J agreeing), referred to the distinction which I have drawn between an aggravating factor and a circumstance of aggravation which increases the maximum penalty to which the offender is liable:

Section 7 makes a distinction between factors and circumstances. The reference to circumstances is a reference to the provisions of the Criminal Code.

Aggravating factors under the Sentencing Act are to be distinguished from circumstances of aggravation under the Criminal Code.

The Criminal Code defines circumstances of aggravation:

'The term "circumstance of aggravation" means and includes any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance.'

The offence with which the applicant was charged was that of burglary under s 401 of the Criminal Code. Section 401 provides that a person guilty of the crime is liable:

'(a) if the offence is committed in circumstances of aggravation, to imprisonment for 20 years;'

Section 400(1) defines the circumstances of aggravation for the purposes of Chapter XXXIX - Offences in or in respect of buildings etc as follows:

'(1) In this chapter -

"circumstances of aggravation" means circumstances in which -

(a) immediately before or during or immediately after the commission of the offence the offender -

(i) is or pretends to be armed with a dangerous or offensive weapon or instrument;

(ii) is or pretends to be in possession of an explosive substance;

(iii) is in company with another person or other persons;

(iv) does bodily harm to any person;

(v) threatens to kill or injure any person; or

(vi) detains any person (within the meaning of section 332(1));

or

(b) immediately before the commission of the offence the offender knew or ought to have known that there was another person (other than a co-offender) in the place;'

The indictment in this case charged the circumstances of aggravation under s 400(1)(a)(i) but did not charge the circumstance of aggravation under s 400(1)(a)(iv). The fact was that the applicant entered the house because he thought the complainant was inside. It was the whole purpose of his attending the house in the first place.

It would be artificial in the extreme for the trial Judge to ignore that fact notwithstanding it did not form part of the pleaded issue in the indictment. The Sentencing Act allows the Judge to take the fact that the applicant knew the complainant was in the house into account as an aggravating factor. If there were no other circumstance of aggravation pleaded, although the Judge could take the fact into account, he could not increase the sentence beyond a maximum of 18 years. I have used this example to explain the difference between aggravating factors and circumstances of aggravation. A circumstance of aggravation is always an aggravating factor. An aggravating factor is not always a circumstance of aggravation.

The difference is highlighted within the Sentencing Act 1995 s 7(3). Under the Sentencing Act the responsibility for determining aggravating factors is that of the court, in reality the sentencing judicial authority. Under the Criminal Code the responsibility for determining whether circumstances of aggravation are proved, in the absence of a plea to that effect, is that of the jury. The word 'liable' in the definition of circumstances of aggravation means liable on conviction of [sic on] indictment [37] - [45].

27 It should be noted that the relevant statutory provisions were, at that time, contained in the Criminal Code, as the case was decided prior to the passage of the Criminal Procedure Act. Although his Honour asserts that the word 'liable' in the definition of 'circumstances of aggravation' then contained within the Criminal Code means 'liable on conviction of [sic on] indictment', no process of reasoning to that conclusion is elucidated by his Honour or apparent on the face of the terminology then used in the Code. Section 622 of the Criminal Code, as it then was, made provision for trial by jury in the event of any plea other than a plea of not guilty, or a plea to the jurisdiction of the court. However, the section and, as far as I can see, the Code generally were silent on the question of whether the accused was required to plead only to the substantive offence charged, or to the offence charged in the circumstances of aggravation alleged. This distinction will be further considered below.

28 The question which arises in this case arose for determination in The State of Western Australia v Majok [2005] WASC 13; (2005) 152 A Crim R 25. In that case, the indictment upon which the accused was presented at trial contained three counts of robbery and a count of unlawful detention. The indictment asserted that each count of robbery had been committed in circumstances of aggravation, including, in each case, that it was committed in company, and in two out of three cases, that the offender had caused bodily harm to the victim of the alleged robbery. Further, in each case it was alleged in the indictment that each robbery was committed while the offender was either armed or pretending to be armed.

29 When the offender was arraigned, he was directed to enter a plea to each substantive charge of robbery before entering a plea in relation to each alleged circumstance of aggravation. In each case, a plea of guilty was entered to the offence of robbery, and all circumstances of aggravation were admitted save that in each case the offender denied being armed or pretending to be armed. A plea of not guilty was entered in relation to the count of unlawful detention, which was then tried by a jury which was empanelled.

30 The question presented to Murray J was whether the jury which had been empanelled should also try the question of whether the offender committed the offences of robbery while armed or pretending to be armed, or whether that issue should be tried by the judge sitting alone. His Honour concluded that those issues should be tried by him sitting without a jury, and later published his reasons for that view.

31 His Honour observed, as I have, that s 392 of the Code creates only one offence of robbery, and that the circumstances which increase the maximum penalty to which an offender is liable are not elements of that offence [8]. His Honour then went on to consider relevant provisions of the Criminal Code (as it then was) relating to criminal procedure, as the Criminal Procedure Act had not then come into force. In his Honour's view, the effect of those provisions of the Code was to provide that where a plea of not guilty to the substantive offence was entered, the question of whether the offence was committed in circumstances of aggravation was to be determined by the jury empanelled to try the substantive offence, utilising the mechanism of the special verdict available under s 642 of the Code (the relevant provision is now s 113(2) of the Criminal Procedure Act). However, in his Honour's view, if a plea of guilty was entered to the substantive offence and a conviction thereby recorded, there was no remaining function for a jury to perform and the question of whether the offence was committed in circumstances of aggravation was a matter for the judge sitting alone. His Honour drew support for that conclusion from observations made by members of the High Court in Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264, admittedly in a somewhat different context.

32 After referring to s 7(3) of the Sentencing Act, his Honour observed:

The requirement that the greater maximum penalty will only apply if the offender has been charged and convicted of the offence in the circumstance of aggravation might suggest that the existence of that circumstance is to be tried by a jury, but in my opinion that view is not open, having regard to the express provisions of the Code to which I have adverted.

In a case where a circumstance of aggravation is pleaded so as to inflate the maximum penalty available upon conviction and where a plea of not guilty is made, the jury's task and statutory capacity to try the case is at an end when it returns a verdict of guilty of the offence charged. Unless they are asked for a special verdict in relation to the existence of a circumstance of aggravation under s 642, as is the practice on a trial by jury, the jury would have no power to find any such circumstance. A fortiori in a case where there is a plea of guilty to the offence charged, a jury may not be empanelled to find the existence of a circumstance of aggravation, which is relevant to sentence only and the available penalty in respect of which the judge's discretion is to be exercised.

Consistently with that view, that matters concerning sentence are the province of the judge, subject only to the requirement where there has been a trial by jury that the findings made by the judge must not be inconsistent with the verdict of the jury, s 146 of the Sentencing Act provides:

'In proceedings under this Act before a superior court, any question of fact is to be determined by a judge and not by the verdict of a jury.'

It is clear, of course, that where the judge is required to try the issue of fact concerning the existence of a circumstance of aggravation, that fact would not be found unless the judge was satisfied of its existence beyond reasonable doubt: Langridge v The Queen (1996) 17 WAR 346; 87 A Crim R 1 [30] - [33].

Caporn v The State of Western Australia (No 2)

33 Caporn v The State of Western Australia (No 2) [2008] WASCA 26 was another case involving an indictment alleging the offence of robbery, committed in circumstances of aggravation, and a separate charge for the offence of stealing a motor vehicle in circumstances of aggravation. A plea of not guilty was entered to both charges, and the matter was tried by a jury. When the jury returned after deliberating, instead of following the conventional course and taking first a verdict in relation to the substantive offence of robbery, and then, in the event of a guilty verdict, taking a specific verdict in relation to each alleged circumstance of aggravation, the trial judge directed that the jury would first be asked whether the offender was guilty of the offence committed with all circumstances of aggravation. In the event of a verdict of not guilty, the jury would then be asked for a verdict in respect of the offence with one of the circumstances of aggravation omitted. This process would be continued, systematically alternating and then stripping away each circumstance of aggravation until either a guilty verdict was delivered, or a verdict of not guilty without any circumstance of aggravation was delivered. A similar direction was given in relation to the second charge. As it happened, the first verdict given by the jury, in relation to the substantive offence of robbery and all circumstances of aggravation was that of guilty. An appeal was brought from that conviction.

34 Two members of the court (Pullin JA and Beech AJA) concluded that although it would have been preferable for the trial judge to have followed the conventional procedure when taking the verdict of the jury, he had not erred in law by taking the course which he followed. Miller JA was of the view that the judge had erred in law, but would nevertheless have dismissed the appeal against conviction on the ground that the error did not give rise to any miscarriage of justice.

35 It should be noted that the question at issue in Caporn was whether the course taken by the trial judge at the time of taking the verdict constituted an error of law which occasioned a miscarriage of justice. It follows that observations made by the members of the court which go beyond that question are necessarily obiter and not binding. It is also worthy of note that in Caporn, the accused entered a plea of not guilty to the substantive offence of robbery, so that the question which arose in this case, and in Majok - namely, as to the course to be followed when the accused enters a plea of guilty to the substantive offence did not arise. Rather, the issue before the court related to the procedure to be followed when a plea of not guilty to the substantive offence was entered.

36 In that context, Beech AJA (with whom Pullin JA agreed) observed:

Miller JA has reached the conclusion that a pleaded circumstance of aggravation is put to the jury by way of a special verdict under s 113(2) of the Criminal Procedure Act 2004 (WA). (The terms of the section are set out in Miller JA's reasons). From that, his Honour has concluded that the jury should be asked for its verdict on the substantive charge and then for a special verdict on any circumstances of aggravation.

I respectfully differ from Miller JA as to the first of those propositions. To my mind, a circumstance of aggravation pleaded in an indictment does not give rise to an occasion for the exercise, by the trial judge, of power under s 113(2) of the Criminal Procedure Act 2004. That subsection is engaged when the judge forms the opinion that the proper sentence may depend upon a specific fact. Such a conclusion does not seem to me to be apposite to a pleaded circumstance of aggravation which, by definition, alters the maximum penalty.

I read the subsection as applying when a specific fact not pleaded in the indictment may, in the judge's opinion, influence the proper sentence. When that is so, the judge is given a power (not a duty) to require the jury to give a special verdict in relation to the identified specific fact.

By contrast, when a circumstance of aggravation is pleaded in an indictment, in my opinion the trial judge is required, not merely empowered, to obtain the verdict of the jury in relation to the pleaded circumstance of aggravation. That is so, it seems to me, by force of the presence of the circumstance of aggravation in the indictment.

Section 7(3) of the Sentencing Act 1995 provides as follows:

(3) If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then -

(a) an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and

(b) whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.

In my opinion an offender is only 'convicted' of committing the offence in the circumstances of aggravation, within the meaning of s 7(3)(a), if (in a jury trial), the jury convicts the offender of committing the offence in the circumstances of aggravation.

That was the conclusion reached by McKechnie J (with whom Malcolm CJ and Anderson J agreed) in Wade v The Queen [45].

In my opinion, when a circumstance of aggravation is pleaded in the indictment the trial judge must obtain the verdict of the jury in relation to that circumstance of aggravation, otherwise, the offender would not, by force of s 7(3)(a) of the Sentencing Act 1995, be liable to the greater statutory penalty.

In The State of Western Australia v Majok [2005] WASC 13; (2005) 152 A Crim R 25, Murray J held that when an accused pleaded guilty to the offence of robbery, denying a pleaded circumstance of aggravation, the alleged disputed circumstance of aggravation was to be tried by him, rather than by a jury. (Compare the practice in South Australia, as to which see R v Hietanen (1989) 51 SASR 510, 514.) The appeal against the sentence imposed by his Honour did not raise any issue as to whether the disputed circumstance of aggravation was to be tried by the judge or by the jury; see Majok v The State of Western Australia [2006] WASCA 140.

In The State of Western Australia v Majok, Murray J expressed the obiter opinion that, in the event of a plea of not guilty, a pleaded circumstance of aggravation gives rise to a power, on the part of a trial judge, to seek a special verdict under s 642 of the Criminal Code (substantially the predecessor to s 113(2) of the Criminal Procedure Act 2004), and that only if and when the trial judge exercised that power did the jury have any role to play in determining whether the pleaded circumstance of aggravation had been established. I have, with respect, come to a different conclusion, as is set out earlier in these reasons. I note that the decision in Wade v The Queen was not cited to his Honour.

In my view neither the applicable statutory provisions nor any rule of criminal law or procedure precludes the taking of a jury's verdict, first, on the charge including the pleaded circumstance(s) of aggravation. For these reasons, I am not satisfied that the course adopted by the trial judge, albeit unconventional, involved any error of law. Accordingly, I would dismiss the appeal [128] - [139].

37 It is of some significance that the observations made by his Honour with respect to the operation of s 7(3)(a) are conditioned by the premise that there is a trial by jury. Further, his Honour's disagreement with the views expressed by Murray J in Majok appears to be limited to the proposition advanced by Murray J in that case to the effect that when a plea of not guilty was entered, it was open to the trial judge to take special verdicts from the jury in relation to each alleged circumstance of aggravation. The reasons of Beech AJA do not appear to deal directly with the particular circumstance which arose in Majok, and in this case, in which a plea of guilty is entered to the substantive offence, but a circumstance which would increase the maximum penalty to which the offender is liable is denied.

38 Miller JA agreed with the views expressed by Murray J in Majok in relation to the taking of a special verdict in relation to circumstances of aggravation. Miller JA considered Majok in light of the enactment of the Criminal Procedure Act and the repeal of the procedural provisions of the Criminal Code. In his view, s 113(2) of the Criminal Procedure Act provided a similar procedure to that previously provided by s 642 of the Criminal Code, and enabled a judge to require a jury to deliver a special verdict. In his view, that provision corresponded with, and complemented, s 7(3)(a) of the Sentencing Act, so that in a case in which circumstances of aggravation were alleged in the indictment, if a plea of not guilty to the offence was entered, a special verdict could be required in relation to each alleged circumstances of aggravation, thereby enabling satisfaction of the requirement of s 7(3)(a) to the effect that the offender be charged and convicted of such a circumstance.

39 In Zimmerman v The State of Western Australia [2009] WASCA 211, the appellant was tried on two counts of sexual penetration without consent, alleged to have been committed in circumstances of aggravation, namely, that the victim was between 13 and 16 years of age, and that bodily harm was caused.

40 On the morning of the first day of the trial, in the absence of the jury, the appellant indicated through counsel that he intended to plead guilty to the substantive offence of sexual penetration without consent, but deny the circumstances of aggravation. He was then arraigned and entered pleas of guilty to the counts of sexual penetration, and pleas of not guilty to each of the circumstances of aggravation alleged in each count. Following entry of those pleas, in the absence of the jury, submissions were made with respect to the procedure which should be followed. It was resolved that the jury should determine whether the circumstances of aggravation pleaded in the indictment were established to the requisite standard. Following the trial, the jury returned a verdict to the effect that neither of the circumstances of aggravation pleaded in respect of the first count had been proven, and in respect of the second count, concluded that one circumstance of aggravation had been proven beyond reasonable doubt - namely, that bodily harm had been caused.

41 No appeal was brought against the appellant's conviction. The only appeal brought related to the sentence imposed. In that context, Pullin JA noted:

The appellant contends, and the respondent agrees, that the procedure adopted was irregular. The appellant's contention was that the only pleas that were available to the appellant were those set out in s 126(1) of the Criminal Procedure Act 2004 (WA). Further, s 126(4) of the Act does not allow two or more pleas to be entered in circumstances in which one of the pleas entered is a plea of guilty. The course which should have been followed is that pleas of not guilty to the charges should have been entered pursuant to s 126(1)(e) of the Act. It would then have been open to the appellant to make a formal admission pursuant to s 32 of the Evidence Act 1906 (WA) that he did not dispute that he had sexually penetrated the victim without her consent as alleged in each count in the indictment. At the conclusion of the trial, the jury should then have been directed about the availability of the statutorily alternative offence of sexual penetration without consent contrary to s 325 of the Criminal Code (WA) if they were not satisfied beyond reasonable doubt that the prosecution had proven each of the circumstances of aggravation beyond reasonable doubt.

Although the procedure was said by the parties to be irregular, no claim is made that the procedural irregularity warrants interference with the appellant's sentence. As a result, it is not necessary for this court to express an opinion about the parties' view regarding the correctness of the procedure followed [53] - [54].

42 In this passage, Pullin JA was recording the position adopted by the parties in relation to the asserted irregularity of the procedure which had been followed and expressing the view that it was unnecessary for the court to express any view on the correctness of the position asserted by the parties.

43 Further, Pullin JA went on to observe that by contrast to Caporn, in Zimmerman the circumstances of aggravation were in fact elements of the offence, with the result that s 7(3) of the Sentencing Act had no application [65]. McLure P and Owen JA each agreed with that conclusion. Put another way, the course followed in Zimmerman is entirely explicable by the fact that, unlike this case, the circumstances alleged were elements which, if present, resulted in the accused being convicted of a difference offence. This may well explain the position of the parties with respect to the irregularity of the procedure which was followed. The fact that the relevant circumstances in Zimmerman were accepted by all members of the court to be elements of the offence is an important point of distinction from this case.

On the morning of the first day of the trial, the appellant was permitted to enter pleas of guilty to two counts of having sexually penetrated the complainant without her consent. He was also permitted to enter pleas of not guilty to each of the circumstances of aggravation alleged in the two counts. There was a trial of those issues before a jury. As explained by Pullin JA, the course permitted by the trial judge is not in accordance with the Criminal Procedure Act 2004 (WA), s 126 [4].

45 Although it is true that Pullin JA explained the position adopted by the parties with respect to s 126 of the Criminal Procedure Act, it is significant that he expressly refrained from expressing any view with respect to the position which the parties had adopted. It may be that her Honour's view that the procedure was irregular was based on the fact that the circumstances were elements of the offence, with the result that the accused was required to plead to the entire offence alleged, and not part of the offence.

46 The substantive issue which arose in Zimmerman was whether the trial judge erred by taking into account the fact that the victim was 14 years of age at the time the offences were committed, when the jury had found that, in respect of each count, the circumstance of aggravation with respect to the victim's age had not been made out, presumably on the basis that the offender believed, on reasonable grounds, that the victim was over the age of 16. That question is far removed from the question in this case. That is another reason why any expressions of view with respect to the procedure followed in Zimmerman are necessarily obiter and not binding.

47 The only case which bears squarely upon the question which arises in this case is the decision of Murray J in Majok. However, that case turned to a significant extent upon his Honour's view of the construction and effect of provisions of the Criminal Code which have now been repealed. A similar observation may be made with respect to the decision in Wade, with the further observation that the reasoning in that case is, with respect, somewhat obscure. In each of Wade and Caporn, pleas of not guilty were entered in respect of the substantive offence charged, and a jury was empanelled to try that question. On my reading of the observations made by Beech J in Caporn, they go only so far as to suggest that in such a circumstance, the verdict of the jury should be taken in relation to the circumstances of aggravation if they have the effect of increasing the maximum penalty to which the offender is liable. The observations made in Caporn do not appear to deal with the circumstance in which a plea of guilty is entered in respect of the substantive offence.

48 Zimmerman was an appeal against sentence which turned upon a very different issue. Two members of the court (Pullin and Owen JJA) declined to express any view on the correctness or otherwise of the procedure that had been followed. McLure P expressed the view, obiter, that the procedure followed in that case was irregular based upon s 126 of the Sentencing Act, although the precise basis for that view is not clear. The fact that in Zimmerman the relevant circumstances were all elements of the offence (unlike this case) may well explain the position adopted by the parties and the views expressed by the court.

49 For the reasons which follow, it would be possible to resolve this appeal solely on the basis that even if there was an irregularity in the procedure adopted, the irregularity did not occasion any miscarriage of justice. However, given the uncertainty with respect to the procedure properly followed in a case such as this, it is appropriate for this court to determine that issue. Before I express my views on that question, it is appropriate to set out the course which was followed in this case, and to explain why this appeal should be dismissed whatever view is taken with respect to the regularity of the procedure adopted.

50 Mr Gillespie first appeared in the Supreme Court at a status conference on 11 April 2011, following his committal from the Stirling Gardens Magistrates Court. In that court he had entered pleas of guilty to most charges brought against him, save for one charge of motor vehicle theft (to which I will later refer) and the charge of robbery which became the subject of count 2 on the indictment. In relation to the latter charge, he had indicated in the Magistrates Court, through his counsel, that the only issue was whether he was the one who had entered the house carrying garden secateurs and thrown those secateurs at the victim, causing her injury.

51 During the status conference, counsel for Mr Gillespie (Mr Gabriel) addressed the question of the procedure to be adopted to resolve the issue of whether it was Mr Gillespie, or one of his accomplices, who threw the garden secateurs during the course of the robbery. In that context, the following interchange took place (Ms Andretich represented the State of Western Australia (State)):

GABRIEL, MR: My concern is that if the allegation of being armed is a particular of law included in the indictment, I think that my client cannot plead to that particular other than by denying it in a relevant sense. However, if it's a particular of fact said to aggravate the circumstances of an aggravated robbery, then it can be dealt with on the basis of a disputed fact type situation. I'm really in the state's hands. As I said to the state, it's really how they prepare the indictment at the end of the day. I certainly would have - - -

JENKINS J: Well, I understand that the offence is robbery.

GABRIEL, MR: Yes.

JENKINS J: And that the allegation of being armed is a circumstance of aggravation which affects the question of sentence.

GABRIEL, MR: Yes.

JENKINS, J: Now, looked at that way, I can't see why a judge can't decide that on sentence after a plea of guilty to robbery.

GABRIEL, MR: Yes. The aggravated robbery in company as well.

JENKINS, J: Well, yes, but he would plead guilty to robbery and then not guilty to whatever circumstances of aggravation were alleged - if he wanted to plead not guilty or guilty to others, if that was his wish, but I know that there are contrary views.

GABRIEL, MR: As I say, it really is in the state's hand. I concur with your Honour. If it's pleaded as an aggravated robbery with a particular of fact being that he was armed at the time, then that particular of fact is a matter of dispute that can be tried. If it's pleaded as aggravated armed robbery as a particular of law, then I think there's a difficulty arising. It's really a matter for the state though.

JENKINS J: But if it's pleaded as an element of the offence, then he has to plead not guilty to the offence.

GABRIEL, MR: Yes.

JENKINS J: Whereas I think, arguably, if it's pleaded as a circumstance of aggravation, it can be decided by the judge.

GABRIEL, MR: If it's an aggravating circumstance, factually, then the onus is borne by the state to prove it. It's a matter of disputed facts.

JENKINS J: Yes.

GABRIEL, MR: So I don't have a difficulty with that. I have no difficulty with the general concept of how this matter should proceed.

JENKINS J: What I will do is I will adjourn it for a status conference, and I think the state has to perhaps look at the issue more carefully and make sure that the correct approach is taken when the matter comes for the status conference, so it can either be listed for a jury trial, a short trial, or - - -

ANDRETICH, MS: I hear what your Honour's saying. I think the point my learned friend is making is probably a valid point, that what brings it into the jurisdiction, as your Honour is aware, of this court is the fact that it's an armed robbery as opposed to a robbery.

JENKINS J: I see, yes.

ANDRETICH, MS: And in those circumstances there is a differing view, and I think perhaps if we do go through to a status conference, then perhaps we can liaise with the court ahead of time if it can be dealt with by way of a one-day trial of the issues; if not, set it for trial, if that's what the state determines need be done.

JENKINS J: And I think even some judges take differing views, but that's another issue.

ANDRETICH, MS: Yes.

JENKINS J: It's a pity that the Code or the Criminal Procedure Act doesn't just say - - -

ANDRETICH, MS: No, it doesn't.

JENKINS J: - - - how circumstances of aggravation can be tried.

ANDRETICH, MS: Also logistically within our office I think the other matters can't really be sentenced on, your Honour, until this is resolved.

JENKINS J: No.

ANDRETICH, MS: Because it was a string of offences and I think that needs to be taken into account (ts 4 - 6).

52 Although the observations made by Mr Gabriel are not pellucidly clear, it is a fair inference that he was referring somewhat obliquely to the tension between the position adopted by Murray J in Majok, and expressed by Beech J in Caporn. At all events, it is relatively clear that he indicated on behalf of Mr Gillespie that he did not oppose adopting a course by which the question of whether it was Mr Gillespie who was armed and threw the secateurs at the victim would be resolved by a judge sitting alone trying issues of fact following entry of a plea of guilty.

53 At the next status conference on 2 June 2011, Mr Gabriel made his client's position unequivocally clear: that he would prefer to plead guilty to the robbery, and to have a trial of the issues in relation to the circumstance of aggravation. At that status conference, referring to the charge the subject of count 2, Mr Gabriel made the following remark to Justice Jenkins:

GABRIEL, MR: My view is that if the matter from Como that is contentious is drafted in the same way, there may be scope for him to plead to the matter with an issue being as a trial of issues as opposed to a trial on the matter. We accept that there was a robbery. He was in company. There are two further particulars that will be alleged. They may be contentious and they can be resolved. We think it would be desirable if the matter could be resolved on that basis rather than having a trial on a not guilty plea (ts 16).

54 Mr Gillespie more fully elucidated his position at the first status conference held following presentation of the indictment. On that occasion (30 June 2011), the following exchange took place:

JENKINS J: Thank you, Mr Gabriel. Please take a seat, Mr Gabriel. Now, we have an - actually, you can probably remain standing because we have an indictment dated 28 June. I understand the proposal is that he be arraigned on the indictment. From what I read, in respect of count 2, it is asked that the circumstances of aggravation be put separately and he will plead guilty to being armed and in company but not guilty to the bodily harm, is that - - -

GABRIEL, HR: No.

JENKINS J: No.

GABRIEL, MR: Can I just put it on record.

JENKINS J: Yes.

GABRIEL, MR: Look, the various allegations in the materials before the court that have been filed by the officer from the state are largely non contentious. We have pleaded to the prosecution notice. The only issue on the prosecution notice was the pleading of the particulars of law and in relation to the robbery matters to count 2 from the Como incident issues arise as to whether my client was aware of anyone being armed and whether he was aware that bodily harm was caused. It was reasonably foreseeable on my instructions and he understands that, that the allegation is that he was armed and that he used the weapon that he had armed himself with to cause bodily harm. He disputes being armed. He disputed causing the bodily harm and he denies knowing that anyone had armed themselves. There was a pair of secateurs that were picked up.

There was a further statement available from the complainant. The position we take at this end of the bar table is that if your Honour is content to take a plea with those provisos, we would be happy with a trial of issues about the matter. We are not going to be happy about it - it's embarrassing and unfortunate. Our account is there were others involved in the incident. They have not been charged. Another person was present. He was charged with some related offending and has been dealt with as a sentenced prisoner but he has appealed against the orders that were made in relation to sentence. We can see this is going to take perhaps a day of the court's time to resolve.

JENKINS J: What pleas do you think Mr Gillespie will enter in respect of count 2?

GABRIEL, Mr: I think it will be a plea of guilty but it was a dispute as to the issues that I've raised with your Honour.

JENKINS J: So there is really no need to put the separate allegations to him.

GABRIEL, Mr: No; issues of fact that will be disputed.

JENKINS J: He will plead guilty to the offence as charged but seek a trial of the issues of fact.

GABRIEL, Mr: We would suggest that if your Honour is content with that course I've suggested. We don't want to see at this end of the bar table a plea of not guilty being directed by the court with a jury trial which could take two days, I would have thought - at least.

JENKINS J: I had a look at it after I received the correspondence. I agree it's not altogether clear, but I have to say I came to the view that if someone does not perhaps, Mr Gillespie, you can take a seat whilst we discuss this issue. The way, I think, the word 'offence' is defined - I can't now - I've printed off the relevant provisions, but, of course, didn't bring them into court with me, did I. But the way the word 'offence' is defined, I think, in the Sentencing Act - 'offence' means any offence under a written law - maybe it was in the Criminal Code - it's unfortunate because now I can't find the provision which determined it, but what I came down to was that a circumstance of aggravation is an allegation of fact which renders someone liable to punishment and that an accused is entitled to a trial by jury in respect to any such matter.

I thought the way to resolve that if an accused did not admit a circumstance of aggressive [sic aggravation] was simply for the defence and the prosecution to agree that the matter could be tried by judge alone and then the judge would hold - - -

GABRIEL, MR: I have no difficulty with that approach. My position is that if there is an additional penalty following on from the matter of aggravation, then that is a pleading of law that causes difficulties. So if your Honour wishes to direct a plea of not guilty to take the position that it can be dealt with as a trial by judge alone, I would not seek to be further heard.

I have explained to my client that there is an arguable proposition that he is entitled to a trial by jury. His instructions are that as consistent with what has occurred from the outset when he was approached by the police. He does not wish to cause any inconvenience of any relevant nature. He has always acknowledged involvement in what has occurred and has given a clear and cogent account of events subsequent to being first confronted with the matter.

He was cooperative with the police. He gave them a statement that could have been used against the principal offenders, those who initiated this unfortunate sequence of very serious offending. He absolutely understands that, but he does not wish to see - and for the purposes of otherwise putting it on record, we have always maintained that this honourable court would have more than sufficient sentencing powers with the charges that we see would be available and open.

If there was a need for an issue to resolve the role of various participants in the matters, that may change the position on sentence in some respects, but it could be dealt with as a trial of issues. The maximum penalties for burglaries on dwellings in circumstance of aggravation are condign. The increase that is associated with an armed robbery, whilst having a jurisdictional issue for this court, we are not a person who fortunately is so bad that he is going to attract the maximum penalties. He is still capable of and is indeed showing considerable propensity and capacity for rehabilitation.

JENKINS J: Just let me try and work out how I got to this view again.

GABRIEL, MR: I don't know if my learned friend - I appreciate my learned friend is only acting on instructions from Mr Nicholls. I was going to suggest if there is a need for the court to be properly assisted, your Honour could request submissions. We could set a date provisionally to move things ahead and my learned friend, Mr Nicholls, and I could assist the court with some clarification so that everyone is clear on the issue.

As I say, this was the reason, in effective terms, why my client wasn't dealt with the co-accused as I would understand it. We have always had a problem about this first incident.

JENKINS J: You see, I think it came down to this. In section 7 of the - look, I follow the reasoning that a circumstance of aggravation was not a separate offence and therefore the provisions in the Criminal Procedure Act which say that if someone pleads not guilty to a charge, which is basically an offence, then you have a trial; so that didn't seem to include a circumstance of aggravation attached to an offence, but then when I looked at section 7 of the Sentencing Act it says this, subsection (2):

If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances -

so that's clearly a circumstance of aggravation, then:

(a) an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances.

So you have to be actually convicted of committing the offence with those circumstances in order to be viable to the greater penalty. It then goes on to say:

And whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.

That is the distinction. I could have a trial of the issues if, say, he pleaded not guilty - start again. If he pleaded guilty to the offence but did not admit those circumstances of aggravation, then a judge could hold a trial of the issues in respect of whether the aggravating factors existed and sentence whether the trial judge came to the view they did or did not, but he would not be liable to the greater punishment that is provided for under the statute if he had been convicted of the offence with those circumstances of aggravation. Is counsel following?

GABRIEL, Mr: I'm at ad idem with your Honour.

JENKINS J: That is one version, but basically the state would then have to be happy for the matter to proceed without him being liable to the greater punishment provided for; so the maximum penalty would be different. On the other hand, if the state wants to have him sentenced on the basis that he is liable to the greater statutory penalty, then he has to be charged and convicted of committing the offence in those circumstances, so that would seem to me then, he can't be convicted in those circumstances either - well, unless he either pleads guilty with the circumstances of aggravation, or is found guilty by a jury, or he consents to trial by judge alone on those issues.

GABRIEL, Mr: Yes.

JENKINS J: Dr Barber, do you follow that?

BARBER, DR: From the state's perspective, your Honour, the state is seeking to pursue those issues of fact for the purpose of a greater penalty if they are established.

JENKINS J: But it's a question of whether you want simply a greater penalty because they are established as a matter of fact on a trial of the issues, or whether you want him liable to the maximum penalty of life imprisonment as opposed to 14 years. Do you see the distinction?

BARBER, DR: Yes, your Honour.

JENKINS J: I mean, really - well, it's a matter for the state, I suppose.

GABRIEL, Mr: May I just approach my client? I just need to talk to him very briefly.

JENKINS J: Yes.

BARBER, DR: The instructions I have, your Honour, are that the matter can be dealt with, and I accept what your Honour says about this issue, but still it can be dealt with by way of a trial of the issues.

JENKINS J: Well, I'm just not quite sure. I mean section 7 subsection (3) (a) is explicit: 'An offender is not liable to the greatest statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances.'

BARBER, DR: Yes.

JENKINS J: Now, if he was to plead guilty to the offence as charged, we could have a trial of the issues, but that doesn't really seem to make sense if he doesn't in fact admit the circumstances.

BARBER, DR: Yes, I understand, your Honour.

JENKINS J: If he doesn't admit to the circumstances, he has to plead not guilty. I mean if he is only disputing - say in respect of the issue of whether it was committed in circumstances of aggravation that he was armed, now if the only issue is as to who was holding the weapon, then he could plead guilty to the offence in those circumstances of aggravation and we could have a trial of the issue as to who was holding the weapon, but if he says no-one had a weapon, he can't plead guilty to the circumstance of aggravation; he would have to plead not guilty and there would have to be a proper determination as to whether he should be convicted of committing the offence in the circumstance of being armed.

BARBER, DR: Yes, your Honour.

JENKINS J: Counsel is saying, 'Yes, yes,' but I'm really not sure that they understand the points I'm trying to make. Do the parties need some time to consider the position?

GABRIEL, MR: I am mainly concerned for my learned friend who is acting on the brief, but I absolutely understand what your Honour is saying in relation to section 7 subsection (2) that if as a matter of law the state wishes to establish the higher sentencing, then there has to be a trial.

If the state is happy to take a plea to a lesser charge but to argue particulars of fact that would be aggravating factors for what I think is section 8 of the Sentencing Act where the onus is borne by the state to prove aggravating factors, just as defence has to establish mitigating factors, then that would be a different issue; it would be a trial of issues.

JENKINS J: Yes.

GABRIEL, MR: And I have just confirmed with my client, because I said to him my thoughts on this are such your Honour has now effectively indicated that is how you see the law, and I have confirmed with him he does not with [sic wish] to inconvenience a jury. If there is a need for a trial of issues to advance this matter on the basis that the state want to prove, as a matter of law, he is guilty of all those matters in aggravation so that the record would show that he was a party to the matters or was a principal offender in relation to those matters, then there can be a trial by judge alone; so that I think assists us one way or the other.

The position I see is that that may well be, as your Honour has indicated at the outset, a way of just avoiding these issues. I don't know whether the state wants to have a trial with a jury and all that involves, but that's a matter for the state.

JENKINS J: I would then perhaps suggest that he be arraigned. If, as per your instructions, he pleads guilty to the offence simplicita or only with one circumstance of aggravation, then the state will then have to advise me whether it pursues those or whether it accepts the plea in satisfaction of the charge.

GABRIEL, MR: Just so it's clear for my client, with the greatest respect to him, he is not a very sophisticated person at times, it's a situation of he accepts it was a robbery and it was aggravated by being in company.

JENKINS J: Dr Barber, do you wish to obtain some further instructions before I proceed to arraign the accused?

BARBER, DR: I think that may be the preferable course, your Honour, in the circumstances where - I'm not sure that the file manager's understanding is as you have indicated this morning.

JENKINS J: I don't think the file manager had considered section 7 subsection (2) of the Sentencing Act, and it seems to me that that really is the nub of it.

BARBER, DR: In those circumstances, your Honour, perhaps it would be appropriate for me to seek an adjournment of these matters, although I appreciate that there have been a number of adjournments in the past (ts 21 - 27).

55 I have set out the interchange at some length, because Mr Gabriel contested the proper characterisation of the position which he had adopted on behalf of his client during the course of argument on the appeal. It is clear from the transcript that Mr Gabriel indicated to the court, on behalf of his client, that he was willing to enter a plea of guilty to the charge of robbery, and that he admitted that the robbery was committed in a circumstance of aggravation, namely, being in company. Further, it is clear that Mr Gillespie, through his counsel, consented to the question of whether he was the person who was armed and caused bodily injury to the victim being tried by a judge alone, as the trial of an issue following a plea of guilty. When the court raised an issue as to whether that course could be followed, consistently with the provisions of s 7 of the Sentencing Act, and after taking instructions from Mr Gillespie, Mr Gabriel indicated to the court that Mr Gillespie would consent to the issue of whether Mr Gillespie was guilty of armed robbery being tried by a judge alone (implicitly pursuant to s 118 of the Criminal Procedure Act).

56 The status conference was adjourned until 4 July 2011, in order that the State could take instructions on the question of the procedure to be followed. On that occasion the State was represented by different counsel. Jenkins J commenced the hearing by summarising the view she had previously expressed, in the following terms:

JENKINS J: I expressed the view that if the state wished to have Mr Gillespie sentenced on the basis of the maximum penalty for armed robbery, then there would have to be a trial, either by judge or jury, that is, if being armed was not admitted, and I was told by Mr Gabriel it wasn't admitted (ts 17).

57 Mr Gabriel, on behalf of Mr Gillespie, then advised the court that if arraigned, Mr Gillespie would plead guilty to the offence of robbery and guilty to the circumstance of aggravation that he was in company, but would enter pleas of not guilty to the allegation that he was armed and that he caused bodily harm.

58 Counsel for the State then referred the court to the decisions in Wade, Zimmerman and Majok. After counsel's reference to the observations made by McKechnie J in Wade, the following interchange took place:

JENKINS J: That's right, and that's what I have said, and he makes the distinction, a helpful one, between aggravating factors, which are matters of fact which the judge can take into account or can determine, and circumstances of aggravation, which only a jury can determine, but there would be one step on from there, wouldn't there, to say that the accused can elect to have a judge alone try the circumstances of aggravation?

NICHOLLS, MR: Yes.

JENKINS J: And, as I understand it, that is what is going to be proposed here if he pleads not guilty to the circumstances of aggravation. Mr Gabriel?

GABRIEL, Mr: I had understood the state would make the application. I have sent correspondence and indicated that we would consent to it.

JENKINS J: All right.

GABRIEL, Mr: I have also adverted my learned friend to the case of Edwards from last year, of Heenan J - I apologise, I don't have the citation or a copy available suggesting that there may be some difficulties with that application.

JENKINS J: And why would that be?

GABRIEL, MR: To some level the issues here are going to be matters of what was reasonable in the circumstances, and the issues might well just be purely matters that would normally be left for a jury. I don't have the provisions in front of me. I apologise, your Honour.

NICHOLLS, Mr: What we really need to know, your Honour, is whether or not the accused consents to the procedure of trial by judge alone in those circumstances.

GABRIEL, Mr: We have indicated previously that if the state makes the application we don't want to be heard. I have pointed out to my learned friend that we think that there may be some difficulties, but that's a matter for the state. I'm not instructed to make an application, and I haven't done that.

JENKINS J: So you weren't proposing to make the application.

GABRIEL, Mr: I haven't done an affidavit, and I can see some issues in the legislation, but it's a matter for the state and the court.

JENKINS J: But if the state makes the application, you would consent to it? Let's get down to tin tacks.

GABRIEL, Mr: I would have to advise my client carefully, but I think he would say that we wouldn't want to be heard.

JENKINS J: You might have to go further than that I think if an application is made.

GABRIEL, Mr: Sorry, I apologise.

JENKINS J: You would have to make a decision as to whether you object to it or not.

GABRIEL, Mr: The legislation does require that the accused has to consent to an application by the state.

JENKINS J: We're getting ahead of ourselves I suppose. I didn't think there was any issue about that.

GABRIEL, Mr: No, there's no issue in a relevant sense (ts 21 - 22).

59 I have set out the text of this interchange in full because, again, the characterisation of what took place was contested by Mr Gabriel during the course of argument on the appeal. It is, however, clear that Mr Gabriel indicated, on behalf of Mr Gillespie, at the commencement of the interchange that he had advised the State that if an application was made for trial by judge alone, Mr Gillespie would consent to that application. Despite some coyness in the discussion which followed, there was no departure from that position, and the interchange concluded with counsel advising the court that there was no issue in relation to Mr Gillespie's consent to trial by judge alone.

60 Counsel for the State then referred the court to Zimmerman, and in particular, the passage from the reasons of Pullin JA which I have set out above. Counsel for the State put submissions to the court on the basis that, in that passage, Pullin JA was expressing a view as to the effect of s 126 of the Criminal Procedure Act when, in fact, as I have pointed out, Pullin JA was simply reciting the position adopted by the parties. Nor was the court's attention drawn to the fact that in Zimmerman, all members of the court proceeded on the basis that the relevant circumstances were elements of the offence. Jenkins J then relied on that inadequate submission to conclude that the decision in Zimmerman precluded her from following the procedure of requiring Mr Gillespie to plead to the substantive offence of robbery alleged by count 2 on the indictment, and then to plead separately to each of the alleged circumstances aggravating penalty. Following the expression of that view by her Honour, Mr Gillespie was arraigned. Prior to the arraignment, Mr Gabriel stated:

[W]hat I would propose, when count 2 is put to him, I anticipate that he would plead not guilty to that, but then I can put before the court that he would, in the alternative, plead to aggravated robbery by being in company, but the state does not accept that, so it's a matter of just to put it on the record if it's necessary (ts 25).

61 When Mr Gillespie was arraigned, he entered a plea of not guilty in respect of count 2 on the indictment. Following the arraignment, Mr Gabriel stated:

In relation to count 2, as I indicated before, my client would plead guilty to the charge of aggravated robbery by being in company, but we understand that the state will not accept that (ts 28).

62 Thereafter, the following interchange took place:

JENKINS J: Take a seat, Mr Gillespie. We have then pleas of not guilty to counts 2 and count 7. What is the state's application in respect of those counts? I suspect, looking at the provisions about trial by judge alone - not that I suspect, I say it more strongly than that - I think it is appropriate in the circumstances that the state, if it wishes to make an application for trial by judge alone, that it does so in writing, supported by an affidavit, for the same of formality.

NICHOLLS, Mr: I am inclined to pursue that application, your Honour, but I will only pursue it if the accused consents to the procedure, and I seem to have some different answers in that regard. I think on Thursday it was stated that it would be consented to. I just want that position to be unequivocal before I make that application.

GABRIEL, Mr: May I approach my client?

JENKINS J: I think that it's a decision best made out of court rather than in the heat of the battle, so I will leave it for the parties to liaise about that. What I will direct, Mr Nicholls, is that if the state intends to make an application that it file it within the next fortnight, it will then be listed and it should come back before me for determination seeing I'm familiar with the issues. Otherwise I would put Mr Gillespie off to a status conference, sooner rather than later, so that trial dates can be set. Any opposition to that proposal, Mr Nicholls?

NICHOLLS, Mr: No, your Honour. I don't know how long my learned friend requires to take instructions from his client as to the trial by judge alone issue, but if it is a no, then certainly the state would be in a position to list for a jury trial today.

JENKINS J: We could list it provisionally today.

GABRIEL, Mr: Can I just say is all I'm looking for is the materials. My client will consent. My only concern is whether there is a proper basis for the application as an officer of the court. That's the issue. As I say, my client's position is he should be able to see the supporting materials and to assess the affidavit that has to be filed under the Criminal Procedure Regulations (ts 29 - 30).

63 Again, during argument on the appeal, Mr Gabriel contested the proper characterisation of the position which he had adopted on behalf of his client. It is, however, clear from his last observation to the court that Mr Gillespie would consent to any application for trial by judge alone, consistently with the position he had always adopted.

64 Mr Gabriel indicated a desire to assess the affidavit to be filed in support of the application pursuant to 'the Criminal Procedure Regulations', which no doubt should be taken to be a reference to rule 28 of the Criminal Procedure Rules, which I have set out above [23]. When consideration is given to the terms of that rule, it is difficult to identify any rational basis upon which Mr Gabriel would have wanted to review the affidavit. The rule relevantly requires that the affidavit identify the charge the subject of the application, identify the position adopted by any co-accused, and assert that the applicant did not know the identity of the trial judge. All those matters were well known to all parties and to Mr Gabriel.

65 The matter was adjourned to a further status conference to be held on 25 August 2011. Prior to that hearing, no application was made by the State for trial by judge alone. The matter came before Murray J, when the following interchange took place (Ms Mattocks representing the State):

MURRAY J: Mr Gabriel will confirm, but as I understand it, Mr Gabriel, from the note that was made for me of previous proceedings, is that the accused would plead guilty - at the moment he's pleaded to count 2.

GABRIEL, MR: Yes, sir.

MURRAY J: That's right. He would plead guilty to the robbery and that he was in company but he would deny the circumstances of aggravation that he was armed with the secateurs and that he did bodily harm to Ms L.

GABRIEL, MR: Yes, your Honour.

MURRAY J: Okay. Now, what's the state's position then in relation to that, Ms Mattocks?

MATTOCKS, MS: Your Honour, I understand it is being looked at, the options of that proceeding. It's anticipated that the disputes will take two days to hear at a jury trial, your Honour. I understand that's the preferred cause of action.

MURRAY J: So you are not proposing to abandon - you are not instructed that the prosecution will abandon those allegations in relation to count 2?

MATTOCKS, MS: No, your Honour, the dispute will have to proceed to a trial as far as the state is concerned.

MURRAY J: So you want a trial of that issue.

MATTOCKS, MS: Yes.

MURRAY J: All right. It won't be a jury trial.

GABRIEL, MR: Might I assist?

MURRAY J: Yes, Mr Gabriel.

GABRIEL, MR: Her Honour, Jenkins J, looked very carefully at this issue and we certainly don't want to cause any inconvenience to the state, the courts or the community, but her Honour took the decided view that because those allegations were particularised on the indictment then the matter would require, if sentence was to be passed under the Sentencing Act, I think section 7, it would have to involve a trial.

The proposition we put to the state was that we could have those particulars excluded from the indictment and that the issues of fact, ie the involvement of the weapon and my client's alleged use of it, could be resolved for sentencing purposes as a hearing of issues without the need for a jury. Now, I understand the state considered that position very carefully, and in light of her Honour's ruling have determined at this stage at least, unfortunately as far as we are concerned, it's entirely within their parameters, to do so it needs a jury trial.

MURRAY J: It's a situation that has arisen before. The relevant decision is one of mind [sic mine], a case called Majok [2005] WASC 13. It went to the Court of Appeal in relation to sentences I passed but not in relation to this point. The reasons that I gave then dealt with exactly this situation where there is a plea to the robbery, a conviction can be recorded then in relation to the robbery, and the question which arises in relation to the circumstances of aggravation is a question relevant to the sentencing framework within which the court is to pass sentence.

At least relevantly in a robbery situation as you understand, the relevant sentencing framework can be affected, not by the addition of doing bodily harm but being armed. It's that circumstance of aggravation which takes the maximum penalty to life imprisonment. So they are questions which don't arise except if you are convicted of the offence. Now, if you are pleading not guilty and you go to trial, you go to trial for the robbery and they would prove the robbery and if you are convicted by the jury then the jury would be asked questions about and make separate findings about the circumstances of aggravation.

But the jury trial only gets to deal with the circumstances of aggravation because it is dealing with the question of the guilt or innocence of the robbery. If there is no issue about the guilt or innocence of the robbery, the proper course, if you want the trial of issues to take place, is to plead guilty to the robbery, deny the circumstances of aggravation that you wish to contest.

Evidence, if it's thought to be sufficiently important to proper sentencing for the case can then be led and the court can make a finding about the existence or otherwise of the circumstance of aggravation, depending upon whether the judge is satisfied of it beyond reasonable doubt necessarily because it is a circumstance of aggravation. So that's the process and if on the day you plead guilty to the robbery and admit one circumstance of aggravation and deny the other two, there would be no empanelment of a jury.

GABRIEL, MR: I'm obliged for your Honour's assistance in that regard.

MURRAY J: So what should I do? Send it off to the 10th on the basis that you might take that course, I suppose.

GABRIEL, MR: We have already indicated willingness to take that course.

MURRAY J: Yes.

GABRIEL, MR: I apologise to the court, I can't recall whether that case was cited in the previous discussions involving her Honour and I don't know whether it's been brought to my learned friend Mr Nicholls', who is the file manager, attention. We didn't seek to be heard in relation to the issue. It was an issue that her Honour raised, sought assistance from counsel as to and in the circumstances it was the direction previously made. If your Honour wishes to make a direction that the matter proceed as a trial of issues without a jury - - -

MURRAY J: I think there's no problem, and I would certainly propose to just send everything off to the 10th and then he can be arraigned and enter his pleas, but as to whether or not a jury is to be summoned for that date, it would be important, I think, to know in advance rather than to trouble these people, what course the defence proposed to take.

GABRIEL, MR: I have already indicated the position, your Honour, that we don't wish to be heard.

MURRAY J: Yes.

GABRIEL, MR: We are happy to be dealt with on any basis. We merely wish to refute those issues that have been alleged as aggravating factors.

MURRAY J: Mr Gabriel, I am obliged to you for making the position clear. Ms Mattocks, I think what I should do is adjourn this matter to the 10th on the basis that there will be pleas of guilty entered, but there will in all likelihood in relation to count 2, need to be a trial of issues of fact in relation to the existence or otherwise of the circumstances of aggravation as part of the sentencing process.

MATTOCKS, MS: Yes, your Honour. Just outlining from the history in relation to this matter, her Honour, Jenkins J, indicated that on 4 July 2011 that if the state were to make an application for a trial by judge alone should the accused enter the plea of guilty to the substantive charge and only a couple of the circumstances of aggravation be in dispute then the state was to do so within two weeks of that date.

MURRAY J: I'm afraid in relation to that, you see, I'm taking a different view.

MATTOCKS, MS: Yes, your Honour, I understand, and it's for that - the state decided not to make that application. Your Honour, I understand that Mr Nicholls, the file manager, is aware of your views in relation to whether it's a trial to proceed by way of trial by the issues, circumstances of aggravation, should proceed as a trial of the issues or whether it should proceed to be a jury trial. I understand that there is actually some divergence in the judicial opinions on this point do not, obviously with respect, to honour but there are other opinions and there is - - -

MURRAY J: I'm sure you are right.

MATTOCKS, MS: Yes, your Honour. There are opinions that it's for a jury to determine such matters. It was for that reason that the state thought we will leave it as a matter of course in - - -

MURRAY J: I think for better or worse I have cut the Gordian knot and the order I make is that it will go on to the 10th on the basis that there is a clear understanding that pleas will be entered and that when arraigned the accused would contest those two circumstances of aggravation and if they are to be relied on for sentencing purposes that there will be a trial of that issue (ts 38 - 42).

66 The matter was concluded on the following basis:

MURRAY J: All right. Then the only - I think it should therefore go through to 19 December on the basis that I have mentioned. Now, if there is going to be a trial of the question of the guilt or innocence of the robbery alleged in count 2, Mr Gabriel, the court would need to be advised so that a jury precept can be entered into and we can get a jury together for that.

GABRIEL, MR: I have no instructions. I think it should be set down for the two days with the anticipation there needs to be a trial. It can be the trial of issues that your Honour has indicated. I have no difficulty with your Honour making a direction in that terms.

67 There is no doubt that during the course of this interchange, consistently with the position which had always been adopted, Mr Gabriel on behalf of Mr Gillespie consented to the question of whether Mr Gillespie was armed and caused bodily harm to Ms L at the time of committing the robbery which he admitted, being tried by a judge alone. Further, during argument on the appeal, Mr Gabriel accepted (properly in my view), that there was an 'irresistible inference' that Murray J considered that trial of those issues by a judge sitting alone was in the interests of justice - that being the proper explanation for his intervention in the course otherwise proposed. Further, there is no suggestion that the parties were aware of the identity of the trial judge at the time of this hearing. It follows that all the requirements for an order for trial by judge alone under s 118 of the Criminal Procedure Act were met, other than the requirement that there be an application for such an order. That requirement was not met because of the view, unequivocally expressed by Murray J, to the effect that such an application was unnecessary (contrary to the view earlier expressed by Jenkins J).

68 I digress to observe that, viewed objectively, there is a rational forensic purpose which is capable of explaining the position consistently adopted by counsel on behalf of Mr Gillespie. As will be seen in the context of the appeal against sentence, the robbery which Mr Gillespie admitted committing in company with others, and which was the subject of count 2, was extremely serious. It was a home invasion committed at night in circumstances which would have been expected to strike terror into the hearts of the occupants of the home, and which resulted in a significant physical injury to one of those occupants. Counsel might have reasonably apprehended that the prejudicial view which a jury might have formed as a result of Mr Gillespie's admitted participation in that robbery might not have made them sympathetic to the issues which he wished to ventilate in relation to the circumstances in which the robbery was committed. Counsel might well have formed the view that a judge sitting alone would be more likely to dispassionately evaluate the evidence relating to those issues than a jury.

69 As it happens, the trial came on for hearing before Murray J on 19 December 2011, although as I have noted, there is no suggestion that the parties were aware of the identity of the trial judge at the time of the status conference on 25 August 2011. After appearances were taken, the following interchange occurred:

MURRAY J: ... Mr Gabriel, I think we finally got the procedural matters sorted, did we?

GABRIEL, MR: I think we're quite content.

MURRAY J: With the unfortunate aspect of some disagreement between her Honour Jenkins J and - - -

GABRIEL, MR: Not at all, your Honour. It is a very uncertain area, but for our purposes, we are quite content - - -

MURRAY J: I was looking at it over the weekend again. My view is that it remains perfectly clear under the legislation ... (ts 46).

70 This interchange reinforces the conclusion that Mr Gillespie, through his counsel, unequivocally consented, at all times, to the issues of whether he was the one who was armed with the garden secateurs and caused injury to Ms L, being tried and determined by a judge sitting alone.

71 Murray J then expressed the view that (Mr Nicholls appearing on behalf of the State):

MURRAY J: ... the accused should now be arraigned in respect of count 2 by having that count put to him, and as I understand it, his response would be, 'Guilty of robbery in company, but I do not admit that I was armed or did bodily harm to Ms L,' so that would raise the issues of fact which then, as I understand it, still need to be tried.

NICHOLLS, MR: Yes.

MURRAY J: All right.

NICHOLLS, MR: Just as I understand it, previously Mr Gillespie entered a plea of not guilty to the entirety of that offence before her Honour Jenkins J.

MURRAY J: Yes.

NICHOLLS, MR: But the procedure which I understand your Honour intends to follow as outlined in your Honour's previous decision of (indistinct) would allow Mr Gillespie to enter that particular anticipated plea.

MURRAY J: He can always change his plea. There is no problem with that. It arose in that way because of the exchange that occurred between counsel and me when I was involved in some case management hearing earlier during the year, and it became apparent then that Mr Gillespie wished to and had always wished to - and I think this is the significant aspect of it - enter a plea of guilty to count 2 as an offence, but he took issue with those two allegations of circumstances of aggravation; that he was armed and that he did bodily harm to Ms L. I think that is the position, and Mr Gabriel - - -

GABRIEL, MR: Your Honour has a possession [sic position] that I think is effectively correct ... (ts 46 - 47).

72 Following discussion between the judge and counsel as to the terms in which Mr Gillespie might plead, he was arraigned, count 2 on the indictment was read to him in full, and, after some confusion, he entered the plea of 'guilty of robbery in company only'. Counsel for the State did not indicate that a plea in those terms would be accepted in satisfaction of the count, nor did the trial judge direct entry of a conviction in those terms. The matter then proceeded to hearing.

73 After hearing evidence and argument, Murray J gave oral reasons for concluding that the State had established beyond reasonable doubt that Mr Gillespie was armed, and that he caused bodily harm to Ms L in the course of committing the robbery which was the subject of count 2. Following delivery of those reasons, his Honour pronounced:

[I] now convict him of the offence which is count 2 on the indictment in the circumstances of aggravation which are alleged and contained in the indictment; not only that he was in company with others, but that he was armed with the gardening secateurs as an offensive instrument and that he did bodily harm to [Ms L] in the way she described (judgment ts 11 - 12).

74 Although the transcript does not record his Honour directing the entry of a conviction in those terms, it can be inferred from the terms of his Honour's pronouncement, and the relevant records of the orders that a conviction was entered in those terms.

75 I digress to observe that if the procedural course proposed by Jenkins J had been followed, and an order had been made pursuant to s 118 of the Criminal Procedure Act for trial by judge alone, the course followed at such a trial would not have differed in any respect from the course which was in fact followed. Mr Gillespie would have been arraigned and would have indicated to the court that he accepted that he was guilty of the offence of robbery committed in a circumstance of aggravation - namely, being in company - but that he disputed the assertion that he was armed or that he caused bodily injury to Ms L. The State would have indicated to the court that it did not accept a plea in those terms in satisfaction of the count on the indictment, the hearing would have proceeded exactly as it did, and after the announcement of reasons, a conviction would have been recorded in respect of count 2 on the basis that all aggravated circumstances alleged in that count were present.

76 Put another way, Mr Gillespie received precisely the trial which he, through his counsel, had always indicated he wanted a trial by judge alone in which the only issue to be determined was whether it was Mr Gillespie who obtained the gardening secateurs and threw them at Ms L causing her bodily injury. Having obtained that trial by expressly consenting to the procedural course proposed by Murray J at the hearing held on 25 August 2011, and again at the commencement of the trial, and having been convicted after that trial on the basis that all alleged circumstances of aggravation were present, Mr Gillespie asks this court to set aside that conviction on the basis that the views expressed by Jenkins J are to be preferred, and the trial should have been preceded by an order under s 118 of the Criminal Procedure Act.

Section 30 of the Criminal Appeals Act

77 Leaving aside the prerogative remedies which may be available to quash a conviction entered as a result of jurisdictional error, there are no common law rights of appeal from a criminal conviction (Grierson v The Queen [1938] HCA 45; (1928) 60 CLR 431, 436 (Dixon J); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 277 (Deane J); The State of Western Australia v Munda [2012] WASCA 164 [147] (Buss JA)). Any right of appeal against conviction must be conferred by statute. In this State the rights of appeal from decisions made in criminal cases are defined by the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act). Mr Gillespie has exercised the rights conferred by that Act.

78 Section 30 of that Act defines the scope of an appeal against a conviction in a superior court. It relevantly provides:

(1) This section applies in the case of an appeal against a conviction by an offender.

(2) Unless under subsection (3) the Court of Appeal allows the appeal, it must dismiss the appeal.

(3) The Court of Appeal must allow the appeal if in its opinion -

(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;

(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or

(c) there was a miscarriage of justice.

(4) Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

79 The ground of appeal lodged on behalf of Mr Gillespie asserted that the procedural course which was followed, and to which he acquiesced and encouraged, had the result that his conviction 'was ultra vires the Criminal Procedure Act'. That is not a ground of appeal countenanced by s 30 of the Criminal Appeals Act. Accordingly, leave to appeal was granted on the basis that the ground of appeal was understood to contend that:

His Honour erred in law in deciding at a trial of the issues that the appellant had committed Count 2 in the circumstances of aggravation that he was armed and caused bodily harm when that decision could only have been made by a jury or by a judge sitting alone pursuant to an order under s 118 of the Criminal Procedure Act 2004 (WA).

80 The appeal was conducted on the basis that the ground should be understood in that way. No attempt has been made to commence proceedings to quash the conviction on the basis that it exceeded the jurisdiction conferred upon the court. Nor was it contended that the error gave rise to a miscarriage of justice within the meaning of s 30(3)(c) of the Criminal Appeals Act.

81 Understood in this way, in the context of s 30 of the Criminal Appeals Act, the appeal against conviction raises two issues:

(a) was there 'a wrong decision on a question of law';

(b) if there was a wrong decision on a question of law, should the appeal nevertheless be dismissed because no substantial miscarriage of justice occurred.

Was there a wrong decision on a question of law?

82 It is well established that an appellant can only establish that the judge made a wrong decision on a question of law if that question of law was posed for the determination of the judge, and the judge ruled erroneously upon it: Burke v Corruption and Crime Commission [2012] WASCA 49 [86] (Buss JA, Martin CJ & Mazza JA agreeing); Carney v The State of Western Australia [2010] WASCA 90 [40] (Pullin JA, Owen JA & Jenkins J agreeing); Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291 [45] (Buss JA, Steytler P & Pullin JA agreeing); R v Soma [2003] HCA 13; (2003) 212 CLR 299 [11] (Gleeson CJ, Gummow, Kirby and Hayne JJ), [79] (McHugh J). So, in an appeal against conviction on the basis that evidence was wrongly admitted at trial, if there was no objection to that evidence, it cannot be asserted that the trial judge made a wrong decision on a question of law by admitting the evidence.

83 Similarly, if an appeal against conviction is brought on the basis that the trial judge did not adequately direct the jury, or make a particular order, so as to occasion a wrong decision on a question of law, such an appeal cannot be brought on the ground of error of law unless that direction or order was sought during the course of the trial: Ricciardo v The State of Western Australia [2010] WASCA 116 [46] (Buss JA, McLure P & Mazza J agreeing); Carney v The State of Western Australia, [48] - [49] (Pullin JA, Owen JA & Jenkins J agreeing); Johnston v The State of Western Australia [2010] WASCA 121 [4] - [5] (Pullin JA); Wright v The State of Western Australia [2010] WASCA 199 [40] - [41] (McLure P, Buss JA agreeing). In each of these scenarios, the appeal must be brought on the ground specified in s 30(3)(c) of the Criminal Appeals Act - namely, that there was a miscarriage of justice.

84 The ground of appeal originally formulated by the appellant appears to assert that the erroneous decision on a question of law was made during the course of the hearing on 25 August 2011, when a direction was made for a trial of the issues by judge alone. The reformulation of the ground by the court at the time leave was granted rather suggests that the erroneous decision on a question of law might better be viewed as the decision made at the conclusion of the trial, to enter a conviction on the basis that all circumstances of aggravation alleged by the State were present without either Mr Gillespie having entered a plea to that effect, or a trial having occurred pursuant to an order, for trial by judge alone, under s 118 of the Criminal Procedure Act. For the reasons which follow, it makes no difference whether the wrong decision is said to have been made at the hearing on 25 August 2011, or at the trial held later that year.

85 That is essentially because on each occasion Mr Gillespie, through his counsel, expressly acquiesced in and consented to the procedural course proposed by Murray J. Mr Gillespie's consent to the course which was in fact followed was freely and unequivocally given during the hearing on 25 August 2011 and at the commencement of the trial on 19 December 2011. During each occasion, counsel representing Mr Gillespie was aware of the differing views which had been expressed by judges of this court with respect to the most appropriate procedural means by which a trial of the contentious issues by a judge alone could be achieved. During each occasion counsel made it clear, repeatedly, that he agreed with the course proposed by Murray J. That position achieved the objective which had always been advanced on behalf of Mr Gillespie a trial of the contentious issues by judge alone, and for which, objectively viewed, there was a rational forensic purpose.

86 In those circumstances, no question of law was posed for the determination of the judge at either hearing. To the contrary, far from contending that Murray J was in error in the course which he proposed, counsel for Mr Gillespie unequivocally and expressly endorsed that course, and indicated his client's consent to it. As no question of law was posed for the determination of Murray J either on 25 August 2011 or at the trial with respect to the proper procedure to be followed, it cannot be successfully contended that Murray J made a decision on such a question, or that he made a wrong decision on such a question. It follows that no ground of appeal falling within s 30(3) of the Criminal Appeals Act has been made out, and the appeal must be dismissed (s 30(2)).

87 However, for the sake of completeness, I will consider the second question posed under s 30 of the Criminal Appeals Act, whether even if a ground of appeal falling within s 30(3) had been made out, this court should nevertheless dismiss the appeal under s 30(4) on the basis that no substantial miscarriage has occurred (the proviso).

88 It is difficult to imagine a clearer case for the application of the proviso than this.

89 The following circumstances are relevant to the question of whether, even if there was a wrong decision on a question of law with respect to the procedure properly followed, there was nevertheless no substantial miscarriage of justice:

• It is clear from the portions of transcript which I have set out that from the very first occasion upon which Mr Gillespie appeared in the Supreme Court it was his objective to obtain a trial of the issues which he contested in relation to the charge which became count 2 on the indictment by judge alone, rather than by judge and jury;
• Viewed objectively, there was a rational forensic purpose to be served by the achievement of that objective;
• At no point in the procedural course which was followed did Mr Gillespie depart in any way from his pursuit of that objective;
• It is a fair inference that counsel appearing on his behalf was aware of the divergent views on the procedural question from the time of the first appearance in the Supreme Court, but in any event those divergent views were clearly enunciated in his presence in subsequent hearings before Jenkins J and in the hearing before Murray J on 25 August 2011;
• Counsel representing Mr Gillespie expressly consented to the procedural course proposed by Murray J at the hearing on 25 August 2011, and again at the commencement of the trial of the issues later that year;
• If, instead of following that course, an application had been made for an order that those issues be tried by a judge alone under s 118 of the Criminal Procedure Act, nothing would have been included in the papers filed in support of such an application which was not already known to Mr Gillespie and his counsel;
• All the pre-conditions for the making of such an order had been met, including Mr Gillespie's consent to the making of such an order, and it is accepted that there is 'an irresistible inference' that Murray J considered that it was in the interests of justice for the contentious issues of aggravation to be tried by a judge sitting alone;
• If the procedural course propounded by Jenkins J had been followed, there can be no doubt that an order for trial by judge alone would have been made; and
• The course followed at trial was exactly the same as the course which would have been followed if an order had been made for trial by judge alone under s 118 of the Criminal Procedure Act.

90 In relation to the last point, during argument on the appeal, counsel contended that Mr Gillespie was disadvantaged by the course which was followed because he was deprived of the opportunity of considering an affidavit lodged in support of an application for trial by judge alone, and therefore, of forming a considered view as to whether he should consent to such an application after receiving legal advice. This argument must be rejected. As I have pointed out, an affidavit complying with r 28 of the Criminal Procedure Rules would not have told either Mr Gillespie or his legal advisers anything they did not already know. Further, as I have also pointed out, at a number of points during the pre-trial process, counsel on behalf of Mr Gillespie indicated that he consented to an order for trial by judge alone under s 118 of the Criminal Procedure Act, consistently with the forensic objective which he initially enunciated and always maintained.

91 It is also significant that in this case, the distinction between a circumstance of aggravation increasing the maximum penalty to which Mr Gillespie was liable, and of which Mr Gillespie had to be tried and convicted, pursuant to s 7(3)(a) of the Sentencing Act, and an aggravating factor which could be taken into account by the court for the purposes of sentence whether or not Mr Gillespie was tried and convicted of it pursuant to s 7(3)(b) of the Sentencing Act, made no practical difference. As I have already noted, Mr Gillespie was sentenced to a term of 5 years imprisonment in respect of count 2 on the indictment. That term represents only 25% of the maximum penalty available for aggravated robbery, which Mr Gillespie admitted. As the penalty actually imposed upon Mr Gillespie was never likely to approach the maximum penalty available, in his case it made no practical difference whether the question of whether he was the one who was armed and caused bodily injury to Ms L was treated as a circumstance of aggravation or as an aggravating factor.

92 The substance of Mr Gillespie's position is clear. No doubt acting on the advice of his counsel, he consistently pursued a forensic objective which was considered to give him the greatest chance of avoiding a determination that the robbery which he admitted was committed in the circumstances alleged by the State and which he disputed. However, that strategy ultimately failed to achieve its objective, and he was found to have committed a robbery in the circumstances alleged by the State. He now comes to this court asking for that determination to be set aside on the basis that the trial in the form which he had always sought should have been achieved through another procedural means, being a means which, if followed, would have made no difference whatever to the course of the trial or its outcome.

93 In these circumstances, allowing Mr Gillespie's appeal against conviction would be the antithesis of justice. It would be the triumph of form over substance, of technical procedure over substantive merit. Accordingly, even if I had concluded that the ground of appeal against conviction had been made out, I would nevertheless have dismissed the appeal on the ground that there was no substantial miscarriage of justice.

94 As I have outlined, there are two reasons why Mr Gillespie's appeal against conviction should be dismissed even if it is concluded that the procedure followed by Murray J was irregular. However, if it is concluded that the procedure followed by Murray J was in accordance with the law, that conclusion would provide an additional reason why Mr Gillespie's appeal should be dismissed. Given the tension arising from the prior decisions on this topic, and the impact which the uncertainty arising from those decisions might have upon criminal procedure in this State (at least until the uncertainty is resolved by the legislature - a course which may be desirable), it is appropriate to now address that question.

95 With one exception, the criminal law of Western Australia is entirely statutory (ss 4 and 7 Criminal Code Act 1913 (WA)). Further, at least in relation to this matter, the relevant law with respect to the correct procedure to be followed may be found within the statutory provisions already outlined. It follows that the question of whether the proper procedure was followed in this case is to be resolved entirely by a process of statutory construction. The relevant statutes are all State laws. Their construction is not affected by considerations of the kind which arguably arise when the proper construction of Commonwealth law is under consideration, as a consequence of s 80 of the Australian Constitution (Constitution), which requires that the trial on indictment of any offence against any law of the Commonwealth must be by jury.

96 The relevant statutory provisions are to be found in the Sentencing Act, and in the Criminal Procedure Act and related statutes which were enacted alongside it in 2004. For reasons which I will develop, application of the natural and ordinary meaning of the relevant statutory provisions provides an harmonious scheme in which the relevant provisions complement each other, and combine to create a regime which accords with sound public policy. Although that conclusion is essentially the consequence of the language used in the relevant statutory provisions, it is reinforced by the consideration of a series of cases which preceded the enactment of the relevant legislation. Those cases reveal a series of judicial controversies, the resolution of which was a purpose for which the relevant legislation was enacted, and can be taken into account (see R v Pryor [2001] QCA 341 [8] (Williams JA)).

97 In R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, Mr De Simoni pleaded guilty to an indictment which alleged that he stole money with actual violence from his victim. After being convicted on that plea, the prosecutor stated the material facts upon which the Crown relied. They included an allegation that during the robbery, Mr De Simoni struck his victim on the back of the head, inflicting a wound to her scalp. That assertion was not disputed by counsel for Mr De Simoni. At that time, s 393 of the Criminal Code (WA) provided that if an offender wounded any person immediately before or after a robbery, the maximum penalty for that robbery rose from 14 years to life imprisonment.

98 Also at that time, s 582 of the Criminal Code (WA) contained a number of provisions relating to the form of indictments. Included amongst those provisions was the stipulation that:

If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment.

99 The expression 'circumstance of aggravation' was defined by s 1 of the Code to mean and include:

Any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance. (cf s 7(3)(a) of the Sentencing Act 1995 (WA))

100 As I have noted, the allegation of wounding was not included in the indictment. After referring to the fact that the inclusion of such an allegation in the indictment would have rendered Mr De Simoni liable to life imprisonment, the trial judge observed:

The Crown has seen fit not to add the aggravating feature and of course you come before me on the basis that the maximum penalty which can be imposed is 14 years (386).

101 In the course of his sentencing remarks, the trial judge referred to the fact that Mr De Simoni had struck his victim to the head, causing a wound. He was sentenced to 7 years imprisonment with a direction that he serve a minimum of 4 years imprisonment before being eligible for parole. Mr De Simoni appealed against that sentence. During the hearing of the appeal, the Court of Criminal Appeal, of its own volition, raised the question of whether, having regard to s 582 of the Code, it was permissible for the sentencing judge to take account of the wounding when it had not been alleged in the indictment. The appeal was allowed on that ground, and the sentence reduced to 3 years imprisonment with a minimum of 12 months to be served before eligibility for parole. The Crown applied for special leave to appeal to the High Court.

102 Gibbs CJ (with whom Mason and Murphy JJ agreed) drew a distinction between elements of the offence charged, and a circumstance of aggravation. In that context he observed that:

The wounding is purely a circumstance of aggravation and not an element of robbery simpliciter (394).

Wilson and Brennan JJ expressed similar views. Although the provisions of the Criminal Code specifying the maximum penalty applicable to the offence of robbery committed in differing circumstances of aggravation were then in somewhat different terms, De Simoni is a unanimous decision of the High Court to the effect that the Code creates a single offence of robbery, which has a number of elements. It establishes that circumstances which go only to the question of the maximum penalty applicable to the offence do not constitute elements of the offence, and do not create more than one offence.

103 The majority (Gibbs CJ, Mason and Murphy JJ concurring) agreed with the construction which the Court of Criminal Appeal had placed on s 582 of the Code which was to the effect that the section precluded a sentencing judge from taking into account a circumstance not charged in the indictment, where that circumstance, if present, would have increased the maximum penalty to which the offender was liable on conviction. However, as Gibbs CJ pointed out in his reasons, the use of violence is an element of the offence of robbery and was charged in the indictment against Mr De Simoni. Accordingly, the sentencing judge was entitled to take into account the fact that Mr De Simoni had struck his victim on the head (392). On the majority view, while s 582 of the Code prevented the sentencing judge from taking into account the fact that the blow had caused a wound to the scalp of the victim, their Honours were not persuaded that this aspect of the offence had in fact been taken into account by the sentencing judge, having regard to the remarks that he made at the time of passing sentence (394). Accordingly, the majority concluded that the Court of Criminal Appeal was wrong to allow Mr De Simoni's appeal on that ground, and the matter was remitted to the court in order that consideration could be given to the grounds of appeal raised by Mr De Simoni (394).

104 Wilson and Brennan JJ disagreed with the majority view of the effect of s 582 of the Code, albeit for somewhat different reasons. However, as I have noted, each agreed with the majority that the Code created only one offence of robbery, and that the structure of the relevant provisions of the Code did not support the conclusion that there were a series of separate offences created, depending upon which circumstances of aggravation were established. In the words of Wilson J:

[T]he Code creates only one offence of robbery, namely the offence constituted by s 391. The presence of a 'circumstance of aggravation', being a circumstance which if charged in the indictment and proved exposes the offender to liability to a greater maximum period of imprisonment, does not make the offence a different offence; it remains the crime of robbery, that is to say, conduct contrary to s 391, notwithstanding the somewhat strange wording of that section. Section 393 is concerned only with punishment; it does not create a more serious offence of 'aggravated robbery' (396).

105 In relation to the procedure to be followed, Wilson J, who was, of course, a very experienced prosecutor in this State prior to his appointment to the High Court, observed:

If, following a plea of guilty, the prisoner disputes the truth of any of the circumstances alleged to constitute the offence, then with respect I think it is for the judge to resolve that disputation; he will do this either by disregarding the allegation if it is of little consequence, or by receiving evidence to establish the facts to his satisfaction: cf Bright (1916) 2 KB 441. I would not draw any distinction at this point between the general facts surrounding the offence and a 'circumstance of aggravation'. In short, as I understand the relevant provisions of the Code, if a circumstance of aggravation is not charged in the indictment, then no special significance can thereafter attach to it. Thenceforth it will simply form part of the total circumstances surrounding an offence, to be established to the judge's satisfaction and to be invested with such weight as he thinks fit in deciding upon an appropriate sentence (399). (emphasis added)

106 Brennan J also distinguished between an element of the offence created by s 391 of the Code, and a circumstance of aggravation for the purposes of the maximum penalty applicable under s 393 (403). Brennan J drew a further distinction between circumstances of aggravation which increased the maximum penalty to which the offender was liable, which had to be included within the indictment if the Crown sought a penalty up to that maximum, and an aggravating circumstance which was relevant only to the sentencing discretion (an aggravating factor, in the taxonomy of the Sentencing Act). In the former case, where the aggravating circumstance was included within the indictment, Brennan J observed:

If the accused person by his plea admits what is alleged against him, the extent of his liability is established according to the tenor of his plea. If the accused person does not admit what the indictment alleges against him, his liability to punishment and the extent of that liability must be determined by the verdict returned after a trial upon the indictment. Once an offender's liability to punishment is determined by plea or verdict, the effect of the indictment is spent. I do not construe s 582 as affecting the imposition of sentence in accordance with the liability so determined (406).

107 However, Brennan J went on to refer to a rule of sentencing practice which he described in the following terms:

It is a rule of sentencing practice that an allegation made but not admitted or otherwise proved against an offender cannot be taken into account in passing sentence upon him. Ordinarily, a contest upon an issue of fact is resolved by the sentencing judge after hearing evidence relating to that fact if the fact has not been determined by a jury verdict and if the fact is of sufficient importance to justify a hearing. Where statute provides that a particular issue is susceptible of resolution by the verdict of a jury, a sentencing judge cannot deny an offender his right to a jury trial of that issue, and himself assume the function of finding the facts. Where there is a contest as to a circumstance of aggravation which might have been alleged in an indictment and submitted to a jury's determination, but which was not so determined, the judge cannot impose sentence on the footing that the circumstance of aggravation has been established (406).

108 It can thus be seen that the minority members of the court disagreed amongst themselves as to the procedure to be followed in the event of a dispute as to the existence of a 'circumstance of aggravation' following a plea of guilty to the substantive offence. However, it is significant to note that even on the view taken by Brennan J, the question is whether the 'statute provides that a particular issue is susceptible of resolution by the verdict of a jury'.

109 It is significant that following the decision in De Simoni, the Criminal Code was amended to delete that part of s 582 upon which the majority had relied, thereby effecting a legislative reversal of the decision of the Court of Criminal Appeal and the majority view expressed in the High Court (see: Western Australia, Parliamentary Debates, Legislative Assembly, 5 May 1982, 1399 (Mr C E Rushton, Deputy Premier)). It is a fair inference that the legislature then intended the consequence now specified in s 7(3) of the Sentencing Act, to the effect that a circumstance of aggravation must be charged in the indictment if the prosecution wishes to rely upon that circumstance to increase the maximum penalty to which the offender is liable, but if the circumstance is not charged in the indictment, it may, nevertheless, be taken into account as an aggravating factor when the sentencing discretion is exercised. That inference is confirmed by the Parliamentary Debates at the time the legislation was amended.

110 In this way, the decision in De Simoni informs the provisions currently found in s 7(3) of the Sentencing Act 1995. For the reasons which follow, it is also of significance that the decision authoritatively establishes that the Code creates only one offence of robbery, and that circumstances of aggravation which increase the maximum penalty to which the offender is liable are not to be equated with elements of the offence.

111 Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264, was the first of a series of cases in the High Court concerning the procedural consequences of the provisions of the Customs Act 1901 (Cth) (Customs Act) relating to the importation of narcotics. At the time of those cases, s 233B of the Customs Act created the offence of conspiring with another to import narcotic goods and further provided that a person guilty of the offence was liable to punishment as provided by s 235 of that Act. That section contained a number of provisions specifying differing maximum penalties depending upon the quantity of goods to be imported, and depending upon whether or not the accused had a prior conviction for a similar offence.

112 Mr Kingswell was convicted of the offence of conspiracy to import heroin following trial by jury. He had previously been convicted of another offence against s 233B - namely, possession of a prohibited import, being 20 kgs of cannabis. The indictment on which he was tried did not aver that the quantity of narcotic goods involved was of a quantity such as to give rise to a higher penalty, or that Mr Kingswell had been previously convicted of an offence contrary to s 233B. Accordingly, those matters were not before the jury, nor was any special verdict taken from the jury on those issues. However, the sentencing judge took them to have been established by the evidence or by the fact that they were not in dispute, and proceeded to sentence on the basis that the higher penalty was applicable.

113 An appeal was brought against that sentence on the basis that the maximum penalty applicable was the lower penalty, because the quantity of the drugs involved and Mr Kingswell's prior conviction had not included in the charge of which he was found guilty of by a jury, and could only be found against Mr Kingswell by the verdict of the jury. Alternatively, it was submitted that if, on its proper construction, the Customs Act permitted those issues to be decided by the judge sitting alone, those provisions infringed s 80 of the Constitution and were, to that extent, invalid.

114 All members of the court (other than Deane J) were of the view that the Customs Act should not be construed as giving rise to a number of distinct offences of conspiracy to import narcotics, the elements of which were to be found partly in s 233B and partly in s 235. Further, all members of the court were of the view that when s 235 referred to the satisfaction of 'the court' as to the presence or absence of a circumstance of aggravation defining the maximum liability to which the offender was liable, the reference to 'the court' should be taken to identify the judge passing sentence, and not a jury. However, the plurality (Gibbs CJ, Wilson and Dawson JJ) proposed a rule of practice to the effect that where the prosecution proposed to rely upon circumstances of aggravation, they should be included in the indictment. In support of that rule of practice, the plurality relied upon a provision in the Criminal Code (Qld) which was relevantly identical to the provision in s 582 of the Criminal Code (WA), the subject of the decision in De Simoni (and which by then had been repealed). The Queensland provision was said to replicate the rule of practice laid down in R v Bright [1916] 2 KB 441, 444 - 445. The plurality observed:

The rule of practice laid down in R v Bright is consistent with the fundamental principle that questions of fact affecting the liability of the accused to punishment should be decided by the jury when the trial is on indictment. The position is different when the circumstances said to aggravate the offence are relevant only to the exercise of the sentencing discretion of the judge. Although it would be an exaggeration to say that the rule of practice in R v Bright has been generally applied in cases where the circumstances of aggravation increase the maximum punishment but do not change the offence, it is a beneficial rule and ought generally to be followed.

115 By the last portion of those observations, the plurality acknowledged that practice in Australia was far from uniform. For example, they referred to R v Sawyer [1967] VicRp 87; [1967] VR 725, in which it was held that the question of whether the maximum penalty for dangerous driving was increased because the driving had resulted in death or bodily injury was a matter for determination by the judge alone, and not by the jury (726).

116 The proposition that circumstances of aggravation which, if present, would increase the maximum penalty to which the offender was liable should be included in the indictment was expressly described by the plurality as a rule of practice. The nature of the rule, as a rule of practice only, is reinforced by the fact that the appeal against sentence was dismissed, notwithstanding that the rule had not been followed.

117 On the subject of procedural issues, the plurality expressed the view that because of the prejudicial effect of an assertion of a prior conviction for a similar offence, in the case of a not guilty plea, the indictment should first be put to the jury for its determination without reference to that averment and if a verdict of guilt was returned, the jury would then be requested to determine the question of whether the offender had the prior conviction alleged, if that fact was contentious.

118 Mason J was firmly of the view that the question of whether the existence of the aggravating circumstances should be proved to a judge or jury was answered by the terms of the statute itself (282). In his view, s 235 clearly established that those questions were to be determined by a judge alone. In that context his Honour observed:

Because the question before this court is resolved by construction of the Act, it is not necessary to determine in this application whether the existence of facts relevant to sentencing but not to conviction should in some circumstances be decided by the jury rather than by the judge, or to decide whether some distinction should be drawn for these purposes between facts relating to the offence, facts relating to the offender and other facts which may be relevant to their sentencing discretion. However, there is strong support for the view that a jury, once it has returned a verdict, has discharged its duties and has no further function to perform: R v Larkin (1943) KB 174; R v Warner (1967) 1 WLR 1209; R v Gardner (1981) Qd R 409. The finding of facts relevant to the proper exercise of the sentencing discretion would then fall within the province of the trial judge, subject to the qualification that the view he adopts must be consistent with the verdict or plea ... (283).

119 The position adopted by Mason J was reinforced by his view that there was no practical distinction between the finding of facts which altered the range of penalties available, and facts which determined the appropriate sentence to be imposed within a given range. He cited with approval the observations of Street CJ in R v Kayal [1979] 2 NSWLR 117, in which his Honour said of s 235 of the Customs Act:

There is no relevant distinction between, on the one hand, determining the factual elements which locate the offence in that statutory scale; and, on the other hand, determining any other disputed question of fact touching the question of sentence. Such facts are decided by the sentencing judge, and not by the jury affecting, as they do, only the quantum of the sentence and not the essence of the offence (121).

The determination of facts relevant to the sentencing of an offender is a routine function of judges in the administration of criminal justice. The determination of the aggravating circumstances in s 235(2)(c)(ii), relating as they do to the existence and gravity of prior convictions, is no different in kind from the determination of the class of matters commonly dealt with by trial judges exercising a sentencing discretion. There is no reason why the jury rather than the trial judge should determine these issues, and indeed convenience indicates that it is the judge who should undertake the function (284).

121 For these reasons, Mason J did not support the rule of practice proposed by the plurality.

122 Brennan J agreed with Mason J that, on the proper construction of the Customs Act, the role of determining whether or not circumstances of aggravation were present for the purpose of increasing the maximum penalty to which an offender was liable under s 235 of the Act was vested solely in the sentencing judge, and was not within the province of the jury. Accordingly, he agreed with Mason J that it was not appropriate to include averments with respect to those circumstances within indictments. However, in the view of Brennan J, the statutory scheme infringed s 80 of the Constitution and was, to that extent invalid. Because s 80 of the Constitution is of no relevance to the question which arises in this case, it is unnecessary to analyse the process of reasoning adopted by Brennan J in this respect.

123 As I have noted, Deane J, alone, was of the view that s 235, as a matter of substance, created a series of separate offences, of which the circumstances of aggravation were elements. Because he shared the view of all other members of the court to the effect that s 235 vested the role of determining the presence or absence of those factors in the judge passing sentence, it followed that in his view s 80 of the Constitution was infringed and the statutory scheme was invalid.

124 The question arose again in R v Meaton [1986] HCA 27; (1986) 160 CLR 359. In that case, as in Kingswell, the offender was arraigned on an indictment which did not allege the quantity and value of narcotic goods said to have been imported. After the offender pleaded guilty to the charge, evidence was led by the prosecution on that subject, over the objection of counsel for Mr Meaton. The objection was lodged on the basis that the evidence did not go to a fact averred in the indictment. The objection was overruled, the evidence received, and the sentencing judge determined that the relevant circumstance of aggravation, giving rise to a higher maximum sentence, was present, and sentenced accordingly.

125 Prior to Mr Meaton's appeal against sentence, the decision of the High Court in Kingswell was published. The Court of Criminal Appeal took the decision in Kingswell to compel the conclusion that the maximum penalty to which Mr Meaton was liable was the penalty applicable to the offence without the circumstances of aggravation, because those circumstances had not been included within the indictment.

126 The same three judges who comprised the plurality in Kingswell again provided joint reasons, unsurprisingly reinforcing the desirability of the rule of practice which they had propounded in Kingswell. In their view:

The inclusion in the indictment of matters of fact, which, although not elements of the offence, render the accused liable to a greater maximum punishment, serves the double purpose of informing the accused of a very important feature of the case made against him and of enabling the jury (in the event of a trial by jury) to decide questions of fact which may very materially affect the maximum punishment to which the accused is exposed. Where a jury determines the guilt of the accused the satisfaction of the court for the purposes of s 235(2) should be consistent with the finding of the jury (363 - 364).

127 Their Honours went on to confirm that although the preferable course is for the prosecution to lay one charge which includes all circumstances of aggravation relied upon, where one of those circumstances is a prior conviction for a similar offence, the accused should first be arraigned on a form of the indictment which makes no reference to the alleged earlier conviction. According to the plurality:

If he pleads not guilty or the court orders a plea of not guilty to be entered, the jury should be charged in the first instance to inquire only regarding those matters. If the accused is convicted the jury will, if the accused does not admit the previous conviction, be asked to find if he was previously convicted of the earlier offence alleged ... In the event of an accused pleading guilty to the offence as charged but then disputing an alleged previous conviction, since no jury will have been empanelled the judge will proceed to determine that issue. Furthermore, if an accused person pleads guilty only to the offence as defined by s 233B, any matters of aggravation that may be in dispute will fall to be determined in accordance with the practice prevailing in the State concerned (364).

128 In summary, the plurality were of the view that in the event of a plea of not guilty to the substantive offence of importation, all circumstances of aggravation should be put to, and determined by the jury, although in the case of an averment of a prior conviction, only after all other issues have been determined by the jury. In the event of the accused pleading guilty to the substantive offence, if the only circumstance of aggravation to be determined was the existence of a prior conviction, in their Honours view it should be determined by the judge alone. According to their Honours, other circumstances of aggravation which were contentious should, in the event of a plea of guilty to the substantive offence, be determined 'in accordance with the practice prevailing in the State concerned'.

129 The plurality went on to emphasise that because the rule which they had propounded in Kingswell was only a rule of practice, departure from that rule would not constitute an error of law, and would only result in a successful appeal against sentence if it had resulted in a miscarriage of justice (365). In their Honours' view, it was doubtful whether, in the circumstances of Mr Meaton's case, a miscarriage of justice would have occurred if the sentence had been allowed to stand. However, because he had been resentenced by the Court of Criminal Appeal and had been released from prison following his completion of that sentence which could not, of itself, be said to be manifestly inadequate, it was determined that the decision of the Court of Criminal Appeal should be allowed to stand (365).

130 Joint reasons were provided by Brennan and Deane JJ, who it will be recalled, were in dissent in Kingswell. Their Honours summarised the decision in that case in these terms:

The judgments in Kingswell are unanimous in holding that the term 'Court' in s 235(2) of the Customs Act means the judge or the magistrate presiding at a hearing and not the jury. The majority held that s 233B(1) creates the relevant offences and that the matters prescribed by s 235(2) are not elements of an offence but merely matters affecting sentence. It follows that, in a trial on indictment for an offence against s 233B(1), the elements of the offence defined by that sub-section fall for determination by the jury and s 235 matters fall for determination by the judge (366).

131 In their Honours' view, as all members of the court had unanimously held that s 235 of the Act vested the role of determining whether the circumstances of aggravation were present in the judge, not the jury, and the majority had held the Act constitutionally valid, no rule of practice of the kind propounded by the plurality should be allowed to undermine the substantive law by encouraging the jury to find whether the alleged circumstances of aggravation were present or not (369). Further, their Honours were unable to see how sentencing in accordance with the Act as construed by all members of the court could ever constitute a miscarriage of justice (368 - 369).

132 In the result, the court was divided 3:2 on the desirability of continuing the practice propounded in Kingswell.

133 These issues were considered in a different statutory context by the Full Court of the Supreme Court of South Australia in R v Hietanen (1989) 51 SASR 510. Like R v Sawyer, the case concerned the offence of dangerous driving, the maximum penalty for which was affected by the extent of the damage caused by the driving, and by the question of whether the offender had a previous conviction for a similar offence. Pleas of guilty were entered in respect of two offences of dangerous driving, and the presence or absence of the circumstances of aggravation, in this instance, whether grievous bodily harm was caused, was determined by the judge sitting alone. An appeal against sentence was brought on grounds which included an assertion that the procedure propounded in Kingswell and Meaton had not been followed.

134 All members of the court agreed that the appeal against sentence should be allowed, but disagreed on the question of whether there had been a departure from appropriate procedure. All were of the view that the relevant provisions created only one offence, and that the relevant circumstances of aggravation were not elements of the offence. In the view of King CJ (with whom Mohr J agreed), if the accused indicated a desire to plead guilty to the substantive offence, but to deny any of the circumstances of aggravation, because the issue was joined on a circumstance of aggravation alleged in the indictment, the issue had to be tried by a jury. However, in the view of Prior J, in that circumstance, the proper course, consistent with practice in South Australia was for the presence or absence of the relevant circumstance of aggravation to be determined by the sentencing judge without a jury. He drew particular attention to the observations in Meaton to the effect that, where a plea of guilty was entered, the procedure to be followed depended upon the practice in the particular jurisdiction, and expressed the firm view that in South Australia, the established practice was, in the event of a plea of guilty, for the presence or absence of circumstances of aggravations to be determined by a judge sitting alone (520). In his view:

To use the combined weight of the decisions in Kingswell and Meaton, to call for a jury to determine a question of aggravation is to translate a rule of practice into a rule of law (521).

135 King CJ went on to consider whether departure from the rule of practice had resulted in a miscarriage of justice. Somewhat curiously, he considered that a miscarriage of justice had been established in respect of one of the charges but not in respect of the other, on the basis of his view that in one of the cases, the evidence with respect to the occurrence of grievous bodily harm was contentious and might have been determined by a jury differently to the manner in which it was determined by the judge sitting alone.

136 I digress to observe that if the law is as enunciated in Hietanen, it is unsatisfactory. The law as enunciated in that case involves a rule of practice, not a substantive law, departure from which can sometimes, but not always, occasion a miscarriage of justice, depending upon the court's evaluation of the extent of contention in relation to the relevant issue. Further, in the case of a plea of guilty, the rule depends upon an assessment of what the established practice in the relevant jurisdiction is. As Hietanen indicates, that may not always be easy. The line of cases in this State to which I have referred suggests that similar uncertainty as to established practice exists here. Happily, for reasons which I will shortly develop, the legislature of Western Australia has now prescribed a procedural regime which, properly construed and applied, is not beset with these difficulties.

137 Before doing so, however, I will refer briefly to the last in the series of High Court cases which considered this issue in the context of the Customs Act - Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248. It is sufficient to note that in Cheng, an attempt to reopen the decision in Kingswell was rejected for a number of reasons, including the fact that the case was an inappropriate vehicle for that contention, given that the applicants entered pleas of guilty to the offences with which they were charged, and did not dispute any of the facts alleged in the indictment. It is, however, of interest that the plurality (Gleeson CJ, Gummow and Hayne JJ) described the decision of the plurality in Kingswell in the following terms:

[W]here a prosecutor relies upon circumstances of aggravation of the kind set out in s 235(2), they should be alleged in the indictment, and, if there is a dispute, they should be resolved by a jury, at least where there has been a plea of not guilty and a jury has been empanelled [45].

138 The qualification based upon entry of a plea of not guilty is of particular interest to the present case, where, of course, Mr Gillespie indicated at all times that he wished to enter a plea of guilty to the substantive offence of robbery, and no jury was empanelled.

139 Callinan J agreed with the plurality that the decision in Kingswell should not be reopened. McHugh J expressed the view that Kingswell was properly decided.

140 Gaudron J departed from the view expressed in Meaton, and concluded that s 233 and s 235 of the Customs Act created a number of distinct offences, depending on the relevant quantity of narcotic goods imported. On this basis, she found that there was no infringement of s 80 of the Constitution; she determined that if s 233 was interpreted as creating only one offence, that interpretation would give rise to constitutional invalidity, and in accordance with the presumption against imputing an intention to the legislature to create a constitutionally invalid provision she was bound to interpret s 233 in this light [102]. Kirby J, however, found that the structure adopted in the Customs Act did infringe s 80 of the Constitution [235].

141 I would extract the following conclusions from this review of some of the cases decided prior to the enactment of the relevant legislation in Western Australia.

142 First, issues with respect to the proper procedure to be followed in the event of contention with respect to the presence of a circumstance of aggravation (as opposed to an element of an offence) had been well and truly ventilated on a number of occasions at the highest level, including in the case of De Simoni which was an appeal from Western Australia. It is reasonable to infer that these issues, and the respective contentions relating to them, would have been known to the legislative drafter (R v Pryor [8]).

143 Second, the decision in De Simoni authoritatively establishes that the Criminal Code (WA) creates only one offence of robbery, and that the circumstances of aggravation which determine the maximum penalty to which an offender is liable are not elements of that offence.

144 Third, issues with respect to the procedure to be followed in cases in which the presence of circumstances of aggravation is contentious are to be resolved by a process of statutory construction augmented by rules of practice which are consistent with the statutory provisions.

145 Fourth, the majority decision in Kingswell, as explained in Meaton, establishes a rule of practice which, if applied, has the result that where a plea of not guilty is entered, the presence or absence of circumstances of aggravation will be determined by the jury empanelled to determine the guilt or innocence of the accused. The observations of the plurality and Callinan J in Cheng are consistent with this view.

146 Fifth, in Meaton, the plurality expressly left open the question of the procedure to be followed in the event that the accused entered a plea of guilty to the substantive offence, acknowledging at least one circumstance in which a circumstance of aggravation should be determined by a judge sitting alone (prior conviction), and leaving other circumstances of aggravation to be determined in accordance with established practice in the particular jurisdiction. The observations of the plurality in Cheng are also consistent with this view.

147 Brief reference has been made to the statutory provisions contained within the Code before and after the decision of the High Court in De Simoni, and to those in force at the time of the decision in Wade. It is unnecessary to evaluate the historical development of the relevant provisions any further, given the substantial changes which occurred in relation to the legislation governing criminal procedure in this State in 2004, associated with the enactment of the Criminal Procedure Act.

Criminal Procedure - The Structural Context

148 It is appropriate to set the context for a consideration of the particular provisions which bear upon the issues arising in this case with a consideration of the general structure of criminal procedure in this State. Prior to the changes made in 2004, offences were of three kinds - namely, crimes, misdemeanours and simple offences. The first two categories of offence combined to make up the class of indictable offences (s 3, Criminal Code, as it was in 2003). As part of the package of reforms enacted in 2004, the classification of offences was removed from the Code and placed in the Interpretation Act 1984 (WA) (Criminal Code Amendment Act 2004 (WA) s 28; sch 3, cl 17). Section 67 of that Act provides that offences are of two kinds: indictable offences and simple offences, and that offences designated as either a crime or as a misdemeanour are indictable offences. The section further provides that offences not otherwise designated are simple offences. In fact, very few, if any, offences are today designated as misdemeanours. According to my researches, the term is only found in the Criminal Injuries Compensation Act 2003 (WA) ss 3, 14, and in the Crimes at Sea Act 2000 (WA) s 5(6).

149 Section 67 of the Interpretation Act also provides that the procedure for prosecuting and dealing with offences is set out in the Criminal Procedure Act. This is, however, not to say that provisions with respect to criminal procedure are only to be found in the Criminal Procedure Act. For example, s 3 of the Code provides that an indictable offence is triable only on indictment, unless the Code or another written law expressly provides otherwise. The same section provides that a person may be convicted and punished for an offence on indictment notwithstanding that the person might have been convicted of and punished for that offence summarily.

150 Further, s 5 of the Code makes provision for what have come to be known as 'either way charges'. The section applies if a provision of the Code, or another written law, provides a summary conviction penalty for an indictable offence and a person has been charged before a court of summary jurisdiction with committing the offence in circumstances where the summary conviction penalty applies. In those circumstances, the section provides that the court is to try the charge summarily unless the court determines otherwise on an application by either the prosecutor or the accused, or the Code or another written law expressly provides to the contrary. The Code contains many examples of 'either way' offences. The invariable practice is for the Code to describe the offender as guilty of a crime, and to specify the maximum penalty for the offence, after which a summary conviction penalty will also be specified, which in some cases is only applicable if the offence is committed in certain specified circumstances.

151 As might be expected, the Criminal Procedure Act has a similar taxonomy of offences. Section 3 of that Act defines 'offence' to mean an indictable offence or a simple offence. The same section describes an indictable offence to mean a crime or any other offence described by a written law as an indictable offence, irrespective of whether in some circumstances it may be dealt with summarily. Section 3 also defines the expression 'simple offence' to mean an offence that is not an indictable offence, and the expression 'either way charge' to mean an indictable charge that by virtue of s 5 of the Code, or any other written law, may be tried either on indictment or summarily.

152 So, while there are two categories of offence under Western Australian law - namely, indictable offences or simple offences, in a practical sense there is a third category of 'either way' offences which can in some circumstances be tried only on indictment, but in other circumstances, or sometimes generally, can be tried summarily.

153 The classification of the offence in accordance with this taxonomy determines the court in which proceedings alleging commission of the offence can be instituted and the manner in which the trial proceeds (ie whether summarily or by judge and jury). A prosecution for an indictable offence may be commenced in any superior court that has jurisdiction to determine a charge of that offence (Criminal Procedure Act s 84). The expression 'superior court' is defined by the Criminal Procedure Act to mean the Supreme Court or the District Court (s 3). Prosecutions may, however, be commenced in any court that has jurisdiction over the person, which includes courts of summary jurisdiction (such as the Magistrates Court). If the offence charged is a simple offence, a court of summary jurisdiction will have jurisdiction to determine that charge. If the offence charged is an indictable offence, unless it is an either way offence prosecuted summarily pursuant to s 5 of the Code, the charge must be dealt with on indictment in a superior court with relevant jurisdiction. If a person is convicted on an either way offence tried summarily in a court of summary jurisdiction, the conviction is to be regarded as a conviction of a simple offence only (Code s 3(5)). This analysis applies only to charges brought against adults. It is unnecessary for present purposes to analyse the different regime which applies to charges brought against children.

154 The criminal process is commenced by the laying of a charge. The Criminal Procedure Act defines a 'charge' to mean a written allegation in a prosecution notice or indictment that a person has committed an offence (s 3). As that definition implies, there are two forms of initiating process under the Criminal Procedure Act. A 'prosecution notice' is defined to mean a document that contains one or more charges, complies with s 23(2) of the Act and which is lodged with a court of summary jurisdiction. An 'indictment' is defined to mean a document that contains one or more indictable charges, complies with s 85(2), and is lodged with a superior court.

155 Sections 23(2) and 85(2) require that a prosecution notice, and an indictment respectively, must comply with div 2 of sch 1 of the Criminal Procedure Act. Clause 2(3), which is contained within that division, provides that a prosecution notice or indictment must contain one charge only, unless cl 7 or another written law permits otherwise. Clause 2(4) provides that a charge must allege one offence only, unless cl 8 of another written law permits otherwise. Clauses 7 and 8 of div 2 specify the circumstances in which a prosecution notice or indictment may charge two or more offences and/or two or more persons with an offence or offences, and the circumstances in which multiple offences may be charged as one respectively. Neither clause makes any reference to the inclusion of a circumstance of aggravation within a prosecution notice or indictment. The only references to the inclusion of circumstances of aggravation within a prosecution notice or indictment in div 2 of the Criminal Procedure Act (or indeed in the Criminal Procedure Act generally) are to be found in cl 6(5) and cl 6(6) which provide that it is unnecessary to allege the value of property or to describe the nature of a place in a charge unless, inter alia, it is relevant to the statutory penalty for the offence.

156 Those clauses do not, of course, cover the field of all circumstances of aggravation which might increase the statutory maximum penalty for an offence charged in a prosecution notice or indictment. Nor do those clauses sustain the inference that these are the only circumstances of aggravation that can be included within a prosecution notice or indictment. That is because the clauses identify circumstances in which it is unnecessary to include certain particulars within a prosecution notice or indictment, and do not purport to exhaustively prescribe the particulars which must be provided. The clauses do, however, support an inference that it is permissible to include within a prosecution notice or indictment averments that are not elements of the offence but which are relevant to the statutory maximum penalty for the offence, consistently with the rule of practice endorsed in Kingswell and Meaton and the terms of s 7(3) of the Sentencing Act.

157 Different provision is made in the Criminal Procedure Act for pleading to a charge, depending upon whether the charge has been brought in a court of summary jurisdiction, or in a superior court on indictment. In the former case, div 5 of pt 3 makes provision for entry of written pleas, and div 6 specifies the procedure to be followed in the event that a written plea has not been received. Included within div 6 is s 59, which obliges the court to require an accused to plead to the charge. In the case of a charge brought on indictment, s 91 of the Criminal Procedure Act provides that a court may require an accused to plead to a charge in an indictment at any time after the indictment is lodged with the court.

158 Division 2 of pt 5 of the Criminal Procedure Act is applicable both to charges being tried summarily and to charges brought on indictment. Section 126(1), which I have set out above at [18], is contained within that division and specifies the pleas which may be entered 'to a charge'. Those pleas include 'not guilty to the charge' and 'guilty to the charge', and various other special pleas. Section 126(5) provides that if an accused, on being required to plead to a charge, enters a plea other than a plea permitted by s 126(1) or does not plead, the court must enter a plea of not guilty on behalf of the accused except in specific circumstances not presently relevant.

159 Section 126(4) provides that:

Unless the accused pleads guilty, 2 or more of the pleas in subsection (1) may be made together.

This provision is the source of the argument recited by Pullin JA in Zimmerman which I have set out above at [41]. The argument has the following steps:

1. Section 126(4) prevents two or more pleas being entered where one of the pleas is a plea of guilty; and
2. The section therefore prohibits an accused person from pleading guilty to the offence charged, while at the same time denying that the offence charged was committed in a circumstance of aggravation which would increase the maximum statutory penalty.

160 The argument should be rejected for a number of reasons. First, s 126(4) does not prohibit anything. To the contrary, it specifically authorises the entry of two or more pleas specified in s 126(1). The reason that authorisation does not extend to a circumstance in which there is a plea of guilty is obvious from the nature of the pleas specified within s 126(1)), because all other pleas are fundamentally inconsistent with a plea of guilty.

161 Second, all of the provisions of the Criminal Procedure Act which oblige or empower a court to require an accused person to enter a plea specify that the accused must 'plead to the (or a) charge' (see, for example, s 59, s 91). Consistently with this language, s 126 only applies if 'an accused may or must plead to a charge'. As I have noted, the term 'charge' is defined to mean a written allegation that a person has committed an offence. Using Mr Gillespie's case as an example, the relevant 'charge' to which he was required to plead was the allegation that he had committed the offence of robbery. For the reasons I have given, the circumstances of aggravation are neither elements of the offence with which Mr Gillespie was charged, nor do they give rise to a separate or distinct offence or offences. Under the Criminal Procedure Act, Mr Gillespie was required to enter a plea to the charge of robbery, and could only enter one or other of the pleas specified in s 126(1). However, neither that provision nor s 126(4) have anything to say about the circumstances of aggravation alleged within the indictment. They are not part of the 'charge' as defined by the Criminal Procedure Act, because they are not part of the written allegation in the indictment that he committed the offence of robbery.

162 If s 126(4) were to be construed as having the effect contended in argument in Zimmerman, it would have effected a significant change in criminal procedure. The various cases to which I have referred specifically countenance the circumstance in which an accused person may enter a plea of guilty to the offence with which he or she is charged, but deny committing the offence in a circumstance of aggravation. While the cases differ on the consequences which flow from the adoption of such a position by an accused, none of the cases deny the capacity of the accused to adopt such a position. Nothing in the language of s 126(4) suggests that it was intended to effect such a change. The evident purpose of the section is to authorise the entry of more than one plea 'to a charge'. It should not be construed as achieving a significant change in procedure in relation to circumstances of aggravation, where that purpose is not manifest in the text of the section.

163 It follows from the plain and ordinary meaning of the language used in the Criminal Procedure Act that when an accused person is required to plead to a charge, the plea that is required is to the substantive offence and must be one or other of the pleas specified in s 126(1). If the plea entered is one or more of the special pleas specified in s 126(1)(a) - (d), a procedure appropriate to the resolution of that plea will be followed. If the plea entered is a plea of guilty, and the prosecution notice or indictment contains averments to the effect that the charged offence was committed in circumstances of aggravation which, if present, would alter the maximum penalty to which the offender is liable, the offender should then be asked whether the circumstances of aggravation alleged are admitted. If they are admitted, it is clear from all the authorities that the offender can then be sentenced accordingly, and there is nothing in either the Criminal Procedure Act or the Sentencing Act to the contrary.

164 This leaves two procedural issues to be addressed in cases in which the prosecution notice or indictment contains an averment to the effect that the offence alleged was committed in circumstances which would increase the maximum penalty to which the accused is liable in the event of conviction. The first question concerns the procedure to be followed in the event of a plea of not guilty, and the second concerns the procedure to be followed in the circumstance which occurred in this case - namely, where there was a plea of guilty to the substantive offence charged accompanied with a denial that the offence was committed in a circumstance or circumstances of aggravation. Of course, in cases being tried summarily, these issues will not be contentious because in all cases any disputed issues will be tried by a magistrate. In the case of trials on indictment, the answers to these questions are provided by the Criminal Procedure Act in the case of a plea of not guilty, and by the Sentencing Act in the case of a plea of guilty.

165 Section 92 of Criminal Procedure Act provides:

Plea of not guilty, consequences of

If an accused pleads not guilty to a charge, or such a plea is entered by a superior court on behalf of the accused, then unless -

(a) the accused's plea is not accepted under section 99; or

(b) an order is made under section 118 that the trial of the charge be by a judge alone without a jury,

the accused is entitled to have the issues of fact raised by the plea tried by a judge and jury.

166 In a case in which an indictment alleges that an offence was committed in circumstances of aggravation, 'the issues of fact raised by the plea' of not guilty of the offence readily encompass, within the natural and ordinary meaning of that expression, not only the issues of fact which bear directly upon guilt or innocence, but also the issues of fact which concern the circumstances in which the alleged offence was committed. Accordingly, when a plea of not guilty is entered, s 92 of the Criminal Procedure Act provides that the accused is entitled to have all issues of fact raised by that plea, including issues relating to alleged circumstances of aggravation, tried by a jury unless an order is made for trial by judge alone pursuant to s 118 of the Criminal Procedure Act. This construction of the Criminal Procedure Act is consistent with the rule of practice propounded by the High Court in Kingswell, and endorsed in Meaton and Cheng.

Plea of guilty but denial of alleged circumstance of aggravation

167 As I have noted, s 7(3) of the Sentencing Act provides that in cases in which the maximum penalty is greater if an offence is committed in certain circumstances, an offender is not liable to the higher maximum penalty unless he or she has been charged and convicted of committing the offence in those circumstances.

168 The language of the section is consistent with the distinction drawn by all the cases to which I have referred between the substantive offence charged, and its elements, and circumstances of aggravation which, if present, increase the maximum penalty to which the offender is liable.

169 In a case in which the offender pleads guilty to the substantive offence charged and admits the alleged circumstance of aggravation, it is consistent with the language of s 7(3) to describe the offender has having been charged and convicted of committing the offence in the admitted circumstances.

170 In a case in which the offender pleads not guilty, the language of the section is consistent with my analysis of the Criminal Procedure Act. In a case in which the accused enters a plea of not guilty to the offence charged, s 92 of the Criminal Procedure Act requires the question of whether the offence was committed, and if so, whether it was committed in the alleged circumstances of aggravation, to be tried by a jury. Following such a trial, if the jury convicts the accused and determines that the offence was committed in the alleged circumstances of aggravation, the accused can properly be said to have been charged and convicted of committing the offence in those circumstances (consistently with the views expressed by Beech J in Caporn, and McKechnie J in Wade).

171 It probably does not matter whether the source of the power to take the verdict of the jury on the presence or absence of the alleged circumstances of aggravation is s 92 of the Criminal Procedure Act, or the rule of practice propounded by the High Court in Kingswell, or the power to take a special verdict expressly conferred by s 113(2) of the Criminal Procedure Act. However, with respect to views expressed on this topic by Beech J in Caporn, I see no reason to read down the scope of s 113(2) in the manner he proposed. In my respectful view, the presence or absence of a circumstance of aggravation falls readily within the notion of a 'specific fact' upon which 'the proper sentence to be imposed' 'may depend'. There will be many cases, and this is one, in which it will make no practical difference whether the particular circumstance alleged is a 'circumstance of aggravation' or an 'aggravating factor' as those terms are used in s 7 of the Sentencing Act (see the observations of Street CJ in R v Kayal, cited with approval by Mason J in Kingswell at [119] above). On the issue of the scope of s 113(2) of the Criminal Procedure Act, the views expressed by Murray J in Majok, and by Miller J in Caporn are to be preferred.

172 The last remaining question to be addressed is the procedure to be followed in cases like this, in which a plea of guilty to the substantive offence is entered, but the offender denies that the offence was committed in a circumstance of aggravation which, if present, would increase the maximum penalty to which he or she is liable. More particularly, the remaining question is what procedure would result in a determination that the offender had been 'charged and convicted' of committing the substantive offence in the alleged circumstances of aggravation, so as to bring the matter within s 7(3)(a) of the Sentencing Act. The answer to that question is conveniently provided by s 146 of the Sentencing Act, which provides:

In proceedings under this Act before a superior court, any question of fact is to be determined by a judge and not by the verdict of a jury.

173 Once an accused person has entered a plea of guilty to the substantive offence charged, the question of whether or not the offence was committed in a circumstance of aggravation is a question of fact which bears only upon the question of whether the offender is liable to the greater statutory maximum penalty pursuant to s 7(3)(a) of the Sentencing Act. Determination of that question is therefore a 'proceeding under' the Sentencing Act. By s 146 of the Act, that question is to be determined by a judge and not by the verdict of a jury.

174 The conclusions which I have drawn from this process of statutory analysis can be summarised in the following propositions.

1. If the factual circumstance alleged in the indictment is an element of the offence, the presence or absence of that factual circumstance must be tried in the same way as all other elements of the offence (Zimmerman).
2. Aggravating factors established either by the verdict of the jury or the determination of the judge may be taken into account when exercising the sentencing discretion whether or not the prosecution notice or indictment alleges the presence of those factors (Sentencing Act s 7(3)(b) - reversing the decision in De Simoni).
3. In a trial on indictment in which it is alleged that the offence was committed in circumstances which, if present, would increase the maximum penalty to which the offender is liable in the event of conviction, if a plea of not guilty is entered, and the jury returns a verdict of guilty, the verdict of the jury in relation to the presence or absence of the alleged circumstances of aggravation should also be taken in accordance with the procedure described in Caporn (s 92 of the Criminal Procedure Act, Kingswell and s 113(2) Criminal Procedure Act).
4. In a trial on indictment, if an accused enters a plea of guilty to the substantive offence, and admits that the offence was committed in the circumstances of aggravation alleged in the indictment, the court should proceed to sentence on that basis (Sentencing Act s 7(3)(a)).
5. In a trial on indictment, if the accused pleads guilty to the substantive offence charged, but denies that the offence was committed in one or more of the circumstances of aggravation alleged in the indictment, the question of whether or not the offence was committed in those circumstances should be tried by a judge alone (Sentencing Act ss 7(3)(a), 146).

175 These conclusions flow readily from the natural and ordinary meaning of the language used in the legislation enacted in 2004, read in conjunction with the Sentencing Act. There is no reason to suppose that they are not conclusions intended by the legislature, as they appear to accord with sound public policy. Further, as it happens, they are consistent with, and generally reconcile the decisions in the previous cases in this State to which I have referred, including Majok, Caporn and Zimmerman.

176 The procedure adopted in this case is consistent with these conclusions (see point 5 above). This is an additional reason why the appeal against conviction should be dismissed.

177 Mr Gillespie was arraigned on an indictment which contained 10 counts. He entered pleas of guilty in relation to nine of those counts (including count 2, which is the subject of the appeal against conviction). His plea of not guilty in relation to the remaining count (count 7) was accepted by the State, which lodged a notice of discontinuance in relation to that count. The circumstances in which the offences were committed were not contentious, other than the aspects of count 2 which resulted in the trial before Murray J and which resulted in findings adverse to Mr Gillespie.

178 I have set out counts 1 and 2 above. They may be loosely described as counts of aggravated burglary and aggravated armed robbery. Count 3 involved the theft of a motor vehicle committed at the same time and place as counts 1 and 2. The circumstances of these three counts were as follows.

179 At around midnight on 24 September 2010, Mr Gillespie and three others were in a street in Como. They formed a common intention to burgle a home and steal a car. Two of the group approached a unit in which some lights were on. There was a car parked at the front of the unit. Mr Gillespie and another member of the group entered the backyard of the unit. Mr Gillespie picked up a pair of gardening secateurs. Some kind of an implement was used to gain entry to the unit by prying open the back door. Two laptop computers were located by Mr Gillespie and his accomplice. However, they were startled by the occupants of the unit and fled, taking the computers with them. The male occupant of the unit observed Mr Gillespie and others standing at the front of the unit. He gave pursuit. However, the group chased the male back into the unit where Ms L was. When confronted by the group, she endeavoured to escape through the rear door of the unit. At that time Mr Gillespie threw the secateurs at her, striking her in the wrist. This caused a serious injury for which Ms L was advised she required surgery. The muscles were detached from the bone in Ms L's arm which caused ongoing loss of function which was still present at the time sentence was passed. Mr Gillespie and some of his accomplices then proceeded to ransack the unit, stealing various other items of property. One of the items stolen was the keys to the motor vehicle parked at the front of the house, which was a Honda Civic sedan. Mr Gillespie and the other three members of the group then stole the vehicle (count 3), leaving with property stolen from the unit.

180 The sentencing judge described the crime of robbery as a crime of the utmost seriousness, and described the violence used by Mr Gillespie towards Ms L as 'one of the worst examples that one can imagine'. Those characterisations of Mr Gillespie's criminal conduct have not been contested on appeal.

181 Counts 4 to 6 were, like counts 1 to 3, counts of aggravated burglary, aggravated armed robbery and stealing a motor vehicle. The circumstances of those offences were as follows.

182 About 30 minutes after leaving the unit in Como in the vehicle which they had stolen, Mr Gillespie and his accomplices abandoned the vehicle in a street in Nedlands. They noticed two valuable cars parked in front of the property in that street. They entered the rear yard of the property. One of Mr Gillespie's co-offenders unlocked the back door of the house by gaining access through a small dog flap. All four then entered the dwelling. They started searching the house for items of value.

183 The two occupants of the house were two sisters in their late teens or early twenties. They were present when Mr Gillespie and his co-offenders burgled the house. They sought refuge from the invading group in a bedroom of the house.

184 The group, including Mr Gillespie, entered the bedroom. One member of the group had armed himself with a knife and another had armed himself with a golf club. The group threatened the women, demanding cash and car keys. One member of the group said, 'Just kill them. Slit their throats. Just kill them'. Understandably, the victims were terrified. They handed over a laptop computer and a mobile phone to the value of $2,000. The group located the keys to the cars parked at the front of the house in due course.

185 The group left the house with various items of stolen property. Mr Gillespie and another used the keys to gain entry to a BMW vehicle valued at approximately $70,000. The other two offenders used keys to gain entry to a Subaru Impreza vehicle valued at approximately $40,000. However, before they could depart, another car pulled into the driveway of the home, blocking their departure.

186 One of the group approached the obstructing vehicle and smashed the passenger side window of that vehicle using a golf club which he had taken from the house. The driver of that vehicle quickly reversed his car into the street. He suffered minor cuts to the side of his face and to his hand. The offenders, including Mr Gillespie, then used the vehicles which they stole to leave the area and head towards the Kwinana Freeway.

187 Count 8 alleged aggravated burglary, and count 9 alleged the theft of a motor vehicle. The circumstances of those offences were that between 1 and 2 am that same morning, the group travelled from Nedlands to Lakelands, where one of the group spotted a Holden HSV Club Sport motor vehicle parked at the front of the house. The Subaru and BMW were abandoned. Mr Gillespie and a co-offender went to the rear of the property adjacent to the Holden and gained access to the premises via a sliding door. After gaining entry, Mr Gillespie and his accomplice located the keys to the Holden vehicle and about $450 in cash. The cash was stolen, and the keys were taken to gain access to the Holden vehicle, which was then used by Mr Gillespie and his accomplices to flee the scene.

188 Count 10 alleged the offence of burglary. That offence was committed two or three hours later that same morning, at about 4.40 am, after Mr Gillespie and his co-offenders had used the Holden vehicle to travel to the carpark of the Albion Hotel on Stirling Highway, Cottesloe. Mr Gillespie and another gained entry to the bottle shop at the hotel by smashing a glass panel near the front door. They entered the bottle shop and stole numerous bottles of various spirits and pre-mixed drinks to the value of approximately $2,000. The stolen property was placed in the Holden vehicle which was used to flee the scene. Police located the stolen Holden at about 8.30 am that morning in a street in Willagee. An hour and a half later, Mr Gillespie and one of his accomplices, Mr Nannup, were apprehended by police. Each were conveyed to Fremantle police station where they were interviewed by police. During a second interview later that day, Mr Gillespie admitted his involvement in the offences and named some of his accomplices. Ultimately, the information which he provided assisted police to identify and then locate and arrest the other two offenders. However, his cooperation did not extend to an offer to give evidence against his co-offenders.

189 The commission of these offences by Mr Gillespie constituted breaches of a six-month community-based order imposed upon him on 8 July 2010 in the Fremantle Children's Court, and a 12-month community-based order imposed upon him on 9 July 2010 in the Fremantle Magistrates Court. Consequently, it was necessary for the sentencing judge to resentence Mr Gillespie in respect of those offences. The circumstances of those offences were as follows.

Obstructing a public officer and stealing (charges 6701 - 6703)

190 At about 7 pm on Thursday, 29 October 2009, Mr Gillespie stole a charcoal-coloured rucksack containing swimming gear and cosmetics from a female passenger as he alighted from a bus. Mr Gillespie and a co-accused fled from the bus with other members of a group and ran towards a shopping centre. At the shopping centre they were approached by a security officer. The security officer turned to walk away, but Mr Gillespie called out to him. When he turned to face Mr Gillespie, Mr Gillespie punched him in the right eye, breaking his glasses. Police attended and attempted to arrest Mr Gillespie. He strenuously resisted arrest. In the course of the struggle, one of the police officers received an injury to his right knee. Ultimately, Mr Gillespie was overcome and restrained with handcuffs.

Charges of common assault and stealing (charges 4465 and 4466)

191 At about 6.35 pm on Saturday, 6 March 2010, Mr Gillespie and a co-offender entered a liquor store on Hampton Road, South Fremantle. They selected various bottles of spirits valued at $311 and then ran from the store without making any payment. The staff of the liquor store gave chase. The co-offender fell to the ground, smashing the bottles which he had stolen. Mr Gillespie turned towards the staff members who had given chase, and who were about 20 metres from him, and threatened to throw bottles at them so as to facilitate the escape of his co-offender. Mr Gillespie and his co-offender made good their escape, but their actions inside the store had been captured on closed-circuit television.

Obstructing a public officer and possessing stolen property (charges 4256 and 4257)

192 At about 2 am on the morning of Sunday, 7 March 2010, being the morning following the theft from the liquor store, Mr Gillespie became involved in an altercation with another male in South Terrace, Fremantle. Police approached Mr Gillespie, who jumped over a wall and ran off. Police gave chase and managed to grab hold of Mr Gillespie, who freed himself by slipping out of his jumper. As he ran away, along Norfolk Street, he threw away an iPad and a motor driver's licence. He was apprehended by police further down the street, where he threw punches at police which resulted in him being tasered and restrained.

Aggravated burglary and stealing (charges 6101 and 6102)

193 At about 11 pm on Wednesday, 5 May 2010, Mr Gillespie and a co-offender entered the rear yard of an occupied dwelling in Brentwood. The pair used a screwdriver to crack a hole in the glass panel of a bathroom window, and then gained entry to the house by sliding the window open. They entered the house. Mr Gillespie stole various items of jewellery, two laptop computers, a mobile phone and three computer modems. Those items were placed into a green bag found in the house. Mr Gillespie also stole three bottles of alcoholic spirits which he placed into another bag. Mr Gillespie and his co-offender left the house, taking with them the bags containing the stolen items.

4 years imprisonment (to commence after serving 2 years of the term imposed on count 2)

195 All terms of imprisonment were ordered to be served concurrently, other than the terms imposed in respect of counts 5 and 9 which were cumulative in the manner indicated above.

3 months (cumulative on 6703 but concurrent with other sentences)

196 All terms of imprisonment were ordered to be served concurrently with each other and with the terms imposed in respect of the counts on the indictment, other than the term imposed in respect of charge 6101, which was ordered to be cumulative on the other sentences imposed.

197 The net result was that Mr Gillespie was sentenced to a total effective term of imprisonment of 8 years, made up as to 5 years in respect of count 2, one additional year in respect of count 5, another year in respect of count 9 and another year in respect of charge 6101. Mr Gillespie was made eligible for parole.

198 Little was said in the course of the sentencing process, or on appeal, in relation to Mr Gillespie's personal circumstances. His criminal record as a juvenile was not insignificant, and included convictions for burglaries which took place in 2007 and early 2009. He was on bail in respect of other offences at the time he committed the offences the subject of the indictment. He was 19 years of age at the time he was sentenced by Murray J. He had a partner and a young child. He does not appear to have been in regular employment. He had taken some steps toward rehabilitation between arrest and sentence by participating in the Halo programme.

199 There are six grounds of appeal against sentence. The first ground alleges that the head sentence of 8 years imprisonment was manifestly excessive because it breached the totality principle. Leave to appeal has been granted in respect of that ground.

200 The second ground of appeal is related to the first ground, in that it asserts that the three sentences which resulted in cumulative additions to the sentence of 5 years imprisonment imposed in respect of count 2 were manifestly excessive to the extent that they were cumulative upon the sentence imposed in respect of that count.

201 Grounds 3 and 4 raise issues of parity in relation to sentences imposed upon a co-offender, Mr Nannup.

202 Grounds 5 and 6 raise particular issues in relation to the sentences imposed for stealing as a result of Mr Gillespie's breach of the community-based orders which had been imposed in respect of those offences.

203 The application for leave to appeal in respect of grounds 2 - 6 was referred to the hearing of the appeal.

204 Ground 1 is obscurely expressed. It asserts that the head sentence breached the totality principle and was manifestly excessive. An assertion of manifest excess is, of course, an assertion of implied error, derived from the fact that the sentence exceeds the range reasonably available to the sentencing judge in the exercise of a sound discretionary judgment: Vagh v The State of Western Australia [2007] WASCA 17 [47] (Roberts -Smith JA, McLure & Pullin JJA agreeing); JKL v The State of Western Australia [2012] WASCA 215 [21] (Buss JA); The State of Western Australia v Munda [2012] WASCA 164 [18] (McLure P, Mazza JA agreeing); Royer v The State of Western Australia [2009] WASCA 139 [126] (Buss JA); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ & Hayne J). It is to be distinguished from a ground of appeal which asserts an express error identifiable in the course of the sentencing process.

205 Confusingly, while ground 1 asserts manifest excess in breach of the totality principle, it is supported by particulars which assert that the sentencing judge made express errors in the course of the sentencing process. The confusion is exacerbated by the written submissions lodged in support of the appeal against sentence, which make only oblique reference to the totality principle, and which fail to identify any comparable cases which could be said to establish a range appropriate to this case. The written submissions appear to focus predominantly on allegations of disparity, which are the subject of grounds 3 and 4.

206 The oral submissions did not materially advance Mr Gillespie's cause in relation to this ground of appeal. At one point reference was made to totality in terms which suggested that the first limit of the totality principle was being relied upon - namely, an assertion that the total effective sentence did not bear a proper relationship to the overall criminality involved in all the offences. However, apart from referring the court to the decision of the Court of Appeal in respect of Mr Gillespie's co-offender, Mr Nannup (Nannup v The State of Western Australia [2011] WASCA 257), and one other case involving an offence of aggravated home burglary committed in quite different circumstances to the spree of offending committed by Mr Gillespie (Papertalk v The State of Western Australia [2011] WASCA 229), no attempt was made in argument to establish an appropriate range of sentences by reference to comparable cases.

207 Comments made at another point in the course of oral argument suggested that reliance may be being placed on the second limb of the totality principle, to the effect that the total effective sentence should not have a crushing effect - that is, by destroying any reasonable expectation of a useful life after release. However, no attempt was made to develop that argument or to explain how that argument might possibly apply to a total effective sentence of 8 years imprisonment imposed on a relatively young man, with eligibility for parole. Given that Mr Gillespie will be around 26 years of age when he becomes eligible for parole, and around 28 years of age when he has completed his sentence, it is impossible to see how the second limb of the totality principle can have any meaningful application.

208 Notwithstanding the lack of any meaningful attempt to develop a structured argument in support of this ground of appeal, it is nevertheless appropriate to consider whether it could be said that the total effective sentence was manifestly excessive, having regard to the maximum sentences prescribed by law for the various offences committed by Mr Gillespie, the standards of sentencing customarily observed with respect to those offences, the place which the criminal conduct committed by Mr Gillespie occupies in the scale of seriousness of offences of that type, and having regard to the personal circumstances of the offender.

209 Dealing firstly with the maximum penalties available in respect of the offences committed by Mr Gillespie, and which were the subject of the counts on the indictment, those maxima range between 7 years and life imprisonment. Four of the offences which he committed carry a maximum penalty of 20 years imprisonment, and of course, he was liable to life imprisonment in respect of counts 2 and 5. The total effective sentence of 8 years imprisonment has to be viewed in that context.

210 The circumstances of the offences committed by Mr Gillespie during the rampage of crime which resulted in the various counts on the indictment can only be described as extremely serious. They involved two home invasions, each of an extremely serious character. Each must have been terrifying to the occupants of the homes which Mr Gillespie and his co-offenders invaded. On each occasion the homes were ransacked and various items of property stolen. During the home invasion in Como, each of the occupants of the home was challenged and Ms L was attacked with a heavy weapon - a pair of garden secateurs, which resulted in a significant injury. During the Nedlands home invasion, each of the young women who were bailed up in the bedroom in which they had taken refuge were threatened with murder, in circumstances which must have caused them to take that threat seriously.

211 The first two home invasions were followed by another burglary and car theft in a southern suburb, which was in turn followed by the burglary of a hotel, following a forceful breaking in.

212 When offences of this seriousness are committed, there is a temptation to engage hyperbolic adjectives like 'egregious', 'abhorrent', 'shocking', appalling', 'outrageous', 'horrendous' and so on. I will endeavour to resist that temptation, notwithstanding that descriptions of that kind could be aptly applied to Mr Gillespie's conduct. It is sufficient to observe that the seriousness of the offences committed by Mr Gillespie requires the court to impose a total effective sentence which sends a clear and unequivocal message to the offender, and others who might be minded to commit similar offences, that conviction for such offences will inevitably result in a substantial term of imprisonment, thereby giving effect to community expectations with respect to the punishment which should be imposed upon offenders who behave with such flagrant disregard for the standards of behaviour demanded by any civilised community.

213 The seriousness of Mr Gillespie's offending behaviour is aggravated by the fact that he was on bail at the time these offences were committed, and by the fact that the commission of the offences constituted a breach of the conditions attached to more lenient sentences imposed upon him in the past.

214 At one point in the course of oral submissions, counsel for Mr Gillespie suggested that the total effective sentence imposed was manifestly excessive because of Mr Gillespie's antecedents. The submission was not developed at any length, and it must be rejected. Although Mr Gillespie's relatively young age must be taken into account, and has a mitigating effect, he was an adult at the time the offences were committed, and bore all the responsibilities which go with adulthood. He is not entitled to any mitigation as a consequence of previously having been of good behaviour, as he has a criminal record which is not insignificant. He was given an opportunity to demonstrate his capacity to realise the error of his ways and become a law-abiding citizen when he was placed on community-based orders, which he abused by embarking on a spree of serious offences.

215 It is clear that the totality principle was taken into account by the sentencing judge. That is apparent from the fact that the sentence imposed in respect of count 5, which was a very serious offence of home invasion, was made only partly cumulative on count 2, and from the fact that the sentence imposed in respect of count 10, being the count relating to the burglary at the hotel, was made entirely concurrent, notwithstanding that it was a completely separate and distinct offence.

216 Mr Gillespie was entitled to the benefit of the entry of a plea of guilty at the earliest reasonable opportunity in respect of all counts, notwithstanding that he disputed the circumstances of aggravation relating to count 2. He was also entitled to benefit from his cooperation with police, including by the provision of information which assisted police to identify two of his co-offenders, notwithstanding that Mr Gillespie did not go so far as to formally offer to assist by giving evidence against those co-offenders. It was also relevant that he had participated in the Halo programme between arrest and sentence. All these matters were specifically taken into account by the sentencing Judge.

217 It was not submitted, nor could it be seriously contended, that the individual sentences imposed in respect of the various offences which Mr Gillespie committed were outside the range which would be derived taking into account the circumstances of the offending behaviour, the standards of sentencing customarily observed with respect to the various offences involved, and all relevant mitigating factors. Those factors are, as I have noted, Mr Gillespie's relative youth, his early plea of guilty, his cooperation with police, and the steps he had taken towards his own rehabilitation prior to sentence.

218 The sentences which he received for the various offences of aggravated burglary were each terms of 3 years imprisonment, save for the term of 1 year imprisonment imposed in respect of the burglary committed in Brentwood, May 2010 (charge 6101) for which Mr Gillespie was resentenced as a result of his breach of the community-based order. For the offence of burglary at the hotel, Mr Gillespie was sentenced to a term of 2 years imprisonment. Each of these sentences is well within the relevant range - see Ashworth v The State of Western Australia [2006] WASCA 36; Drake v The State of Western Australia [2006] WASCA 209; Nguyen v The State of Western Australia [2007] WASCA 114. In recent years, the sentencing range for offences involving home burglaries of the kind committed by Mr Gillespie have been firmed up in the recognition of the prevalence of those offences, and the impact which they have upon the occupants of the burgled homes. In such cases, the primary sentencing considerations are personal and general deterrence - see Moody-Jackamarra v The State of Western Australia [2007] WASCA 7 [14].

219 For the two offences of robbery, Mr Gillespie was sentenced to terms of 5 years and 4 years imprisonment respectively. The maximum penalty for those offences was life imprisonment. It has been observed that the range of sentences commonly imposed for single offences of armed robbery is 4 to 6 years imprisonment, expressed in terms of the transitional provisions then in force, and without taking into account matters of mitigation (Nannup v The State of Western Australia [2011] WASCA 257 [72] (Buss JA)). However, the offences committed by Mr Gillespie were particularly serious. The offence committed in Como involved actual violence and significant injury to the victim. The offence committed in Nedlands involved a confrontation which must have been terrifying to the vulnerable female occupants of the house, who were threatened with murder by armed intruders. In Nannup, following a successful appeal against conviction, one of Mr Gillespie's co-offenders was sentenced in this court to a term of 4 years and 4 months imprisonment in respect of the Nedlands offence. As the Como offence can be regarded as more serious, having regard to the degree of violence actually used, it is clear that the sentences imposed upon Mr Gillespie for armed robbery are well within the range indicated by the sentence imposed by this court in Nannup.

220 In relation to the three offences of stealing a motor vehicle, Mr Gillespie was sentenced to 18 months imprisonment in respect of two of those offences, and 1 year imprisonment in respect of the third. Given that the maximum penalty for those offences was 7 years, it could not be suggested that they fell outside the range of sentences properly available to the sentencing judge - see Penny v The State of Western Australia [2006] WASCA 173 [19] (McLure JA).

221 As the individual sentences imposed in respect of each offence was each well within the range available to the sentencing judge, the only remaining question is whether the orders which were made for concurrence and accumulation which had the effect of producing a total effective sentence of 8 years imprisonment breached the totality principle, on the ground that it did not bear a proper relationship to the overall culpability reflected in the offending behaviour. In my view, when proper account is taken of the culpability of Mr Gillespie's offending behaviour, a total effective sentence of 8 years imprisonment is, if anything, at the lower end of the range of sentences which would appropriately reflect that culpability. As I have noted, a sentence of 5 years imprisonment for the armed robbery committed in Como was well within the applicable range, having regard to its seriousness. In terms of total effective sentence, Mr Gillespie received only one additional year as a consequence of his commission of the Nedlands armed robbery. Further, in terms of total effective sentence, Mr Gillespie received only one further year in respect of both the Lakelands aggravated burglary and motor vehicle theft, and the burglary on the hotel in Cottesloe. Again viewed in terms of total effective sentence, Mr Gillespie received only one further year in respect of the eight offences for which he was resentenced as a result of his breach of the community-based orders, including the serious offence of aggravated burglary.

222 Viewed in these terms, the total effective sentence imposed upon Mr Gillespie was, in my view, lenient. Ground 1 of the appeal against sentence should be dismissed.

223 Ground 2 asserts that because the sentence imposed in respect of count 5 on the indictment (the Nedlands armed robbery) was partly cumulative, and the sentences imposed for the theft of the Holden motor vehicle and the aggravated burglary committed in Brentwood in May 2010 were also cumulative, they were manifestly excessive. These propositions add nothing to ground 1. Leave to appeal on ground 2 should be refused for the reasons I have given in relation to ground 1.

224 Ground 3 and 4 assert that the sentences imposed upon Mr Gillespie are out of parity with the sentences imposed upon the co-offender Mr Nannup after he was resentenced in this court. Using the count numbers on the indictment brought against Mr Gillespie, those sentences were:

225 The court ordered that the sentence for the theft of the motor vehicle in Como should be served cumulatively on the sentence imposed for the Nedlands armed robbery, and all other sentences served concurrently, giving rise to a total effective sentence of 5 years 4 months imprisonment.

226 If the individual sentences imposed upon Mr Nannup are compared with those imposed upon Mr Gillespie, it will be seen that the sentence imposed upon Mr Nannup for the aggravated burglary and the armed robbery committed in Nedlands, and for the aggravated burglary committed in Lakelands exceeded the sentences imposed upon Mr Gillespie by 4 months in each case. The sentence imposed in respect of the Cottesloe burglary was one year less than that imposed upon Mr Gillespie. The sentences imposed upon Mr Nannup for motor vehicle theft were, in two out of the three cases, six months less than those imposed upon Mr Gillespie.

227 It is trite to observe that the principles which underpin parity of sentencing are not infringed merely because of a lack of exact mathematical correspondence between sentences imposed upon co-offenders. Those principles are only infringed if the sentence imposed upon one offender, when compared to that imposed upon another, gives rise to a justifiable sense of grievance on the part of an offender who can be seen to have been the subject of harsher penalties: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 - 610 (Gibbs CJ); Nicolaides v The State of Western Australia [2012] WASCA 199 [102] (Buss JA, Mazza JA agreeing); Tomov v The Queen [2011] WASCA 189 [98] (Buss JA, Newnes JA & Hall J agreeing); Barry v The State of Western Australia [2012] WASCA 175 [55] - [57] (Mazza JA, Buss JA agreeing); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 302 - 303 (Dawson & Gaudron JJ); R v Taudevin [1996] VICSC 7; [1996] 2 VR 402, 404 (Callaway JA). Given that the total effective sentence imposed upon each of Mr Nannup and Mr Gillespie was significantly influenced by the totality principle, the relatively small differences in the individual sentences imposed, and which, very generally speaking, balance each other out, cannot give rise to any justifiable sense of grievance on the part of Mr Gillespie.

228 It is necessary to assess whether the total effective sentence imposed upon Mr Gillespie is disparate to that imposed upon Mr Nannup. As I have mentioned, the relative total effective terms were 8 years (Mr Gillespie) and 5 years and 4 months imprisonment (Mr Nannup).

229 There is no material difference in the mitigatory factors properly taken into account in respect of each offender. Each was a relatively young adult at the time the offences were committed, each pleaded guilty at the earliest reasonable opportunity, and each cooperated with police in the identification of their co-offenders without going further and offering to give evidence against those co-offenders.

230 Counsel for Mr Gillespie suggested that a significant distinction between the two cases arose from the fact that Mr Nannup had a significantly more extensive prior record than Mr Gillespie. This submission misconceives the effect of a prior record upon the sentencing process. Prior offending is not an aggravating factor. However, prior offending precludes the offender from obtaining any benefit from mitigation as a result of prior good behaviour: Benter v The State of Western Australia [2005] WASCA 245 [30] (McLure JA); Sentencing Act s 7(2). For the reasons I have given, Mr Gillespie could not be said to have been of prior good behaviour, or to be entitled to any mitigatory benefit as a result of his prior record. It follows that the distinction between the prior records of the two offenders has no effect upon the sentences properly imposed upon each.

231 Most significantly, Mr Nannup did not commit either the aggravated burglary or the armed robbery in Como which were committed by Mr Gillespie. These were the most serious offences Mr Gillespie committed. Further, unlike Mr Nannup, Mr Gillespie was sentenced on eight further offences as a consequence of his breaches of the community-based orders to which he was subject. In the way in which Mr Gillespie's total effective sentence was structured, as compared to Mr Nannup he received a greater penalty of 1 year and 8 months imprisonment by reason of the offences he committed in Como, and a further 12 months imprisonment in respect of the eight offences for which he was resentenced. Those increases in effective sentence are entirely justified by the culpability of the offending conduct involved. Grounds 3 and 4 are without substance. Leave to appeal should be refused.

232 Ground 5 draws attention to the fact that Mr Gillespie was sentenced to a term of 6 months imprisonment for the offence of stealing which formed an element of the offence of aggravated burglary which he committed in May 2010, and for which he was sentenced to a term of 1 year imprisonment. The ground points out, correctly, that the imposition of a sentence for the offence of stealing in those circumstances amounts to double punishment contrary to s 11 of the Sentencing Act. The State properly concedes this ground. Leave to appeal should be granted, the ground allowed, and the sentence imposed for the offence of stealing (charge 6102) quashed. As the term imposed in respect of that offence was directed to be served concurrently with the other terms imposed, this will have no impact upon the total effective sentence.

233 Ground 6 challenges the sentences of 3 months imprisonment which were imposed in respect of the two other offences of stealing for which Mr Gillespie was resentenced (charges 4465 and 6703). It is submitted that the penalties imposed exceed the maximum penalty available following a summary conviction for stealing, which is a fine of $6,000 where the value of the property stolen is less than $1,000 (Code s 426(4)(b)). However, when the stealing offence is dealt with by way of indictment, the maximum penalty is 7 years imprisonment.

234 Pursuant to s 130(1)(b) of the Sentencing Act, when a court resentences an offender as a result of breach of a community-based order, the court may sentence 'in any manner the court could if it had just convicted the person of (the) offence'. If the Supreme Court had convicted Mr Gillespie of stealing, he would have been presented to that court on an indictment. It follows that he was liable to be sentenced in any manner available to the Supreme Court as if presented on indictment, with the consequence that the maximum penalty applicable in the event of summary conviction did not apply. Accordingly, leave to appeal on this ground should be refused. Further and in any event, it should be noted that, as the sentences imposed in respect of these offences were ordered to be served concurrently, they had no impact upon the total effective sentence imposed.

235 The appeal against conviction should be dismissed. Ground 1 of the appeal against sentence should be dismissed. Leave to appeal on grounds 2 - 4 and ground 6 of the appeal against sentence should be refused. Leave to appeal should be granted in respect of ground 5, that ground allowed, and the sentence of 6 months imprisonment imposed for the offence of stealing (charge 6102) quashed.

236 PULLIN JA: I agree with the orders proposed by the Chief Justice concerning the sentence appeal for the reasons given by the Chief Justice.

237 I agree also that the conviction appeal should be dismissed. These are my reasons.

238 The appellant was guilty of a serious case of home invasion. The charge on the indictment read:

[On or about 24 September 2010] at [Como he] stole from [the victim], with violence, keys and other items the property of [the victim] and that [he] was armed with an offensive instrument, namely a set of gardening secateurs, and that [he] was in company with others and that [he] did bodily harm to [the victim].

239 When the indictment was put to the appellant, he answered 'I'm guilty for robbery only'. When asked to clarify this he said that he was 'guilty of robbery in company only' (ts 50 - 51). In other words, he was indicating that he admitted all elements of the offence except for the allegation that he was armed with the secateurs.

240 The appellant was represented by counsel. The appellant, over a number of earlier hearings, indicated that he did not want a trial by jury. He wanted a trial by judge alone. On 19 December 2011, there was a hearing before Murray J sitting alone. During the hearing, witnesses were called who proved that the accused was armed with the secateurs. At the end of the hearing, Murray J gave reasons for his decision. The reasons read:

[T]he offender is guilty and I now convict him of the offence which is count 2 on the indictment in the circumstances of aggravation which are alleged and contained in the indictment; not only that he was in company with others, but that he was armed with the gardening secateurs as an offensive instrument and that he did bodily harm to [the victim] ...

242 The appellant now contends that there was a technical deficiency with the process. He goes so far as to contend in the particulars to the grounds of appeal that he was 'deprived of his right to a trial by a judge and a jury'. However, s 118 of the Criminal Procedure Act 2004 (WA) (CP Act) allows for a trial by a judge alone without a jury, and that was what the parties wanted. In terms of s 118, the prosecutor expressed an intention to apply for an order that the trial should be by judge alone, and the appellant expressed his intention to consent to such an order. This was clear before the trial and at a time where the identity of the judge to conduct the hearing was not known to the parties. Murray J did not make an order because his Honour expressed the view that the appropriate course was to determine the issue about whether the appellant was armed with secateurs as a sentencing issue (ts 49).

243 No matter what Murray J's views were about the process to be followed, the fact is that the process followed was the process which would have been followed if an order had been made under s 118 of the CP Act. If Murray J had truly conducted a hearing to resolve a sentencing issue about the secateurs, then the hearing would have been preceded by a verdict of guilty and a judgment of conviction. That did not happen. Instead, Murray J conducted a trial, heard evidence and made findings not just about the circumstances of aggravation, including whether or not the appellant was armed with the secateurs, but that the offences had been proved. His Honour found the appellant guilty and then entered a judgment of conviction. His Honour's view and belief that the proceedings on 19 December 2011 were proceedings about a single sentencing issue, is not consistent with what happened. The verdict of guilty and the judgment of conviction only occurred on 20 December 2011 following and in consequence of the trial.

244 It is true that no order was made under s 118, but the parties had intended that there should be such an order and the conditions for the making of the order existed. The hearing was conducted in the manner that a trial would have been conducted had an order been made. The standard of proof applied was the standard of proof necessary to return a verdict of guilty. I agree with the Chief Justice that there was no wrong decision on a question of law. Insofar as the conduct of a trial before a judge without a jury constituted a miscarriage of justice, there was no substantial miscarriage of justice for the reasons given by the Chief Justice.

245 The appeal against conviction should be dismissed.

246 As a result of the reasons set out above, it is not necessary to discuss the correct procedure to follow when the offender is charged with robbery in the circumstances provided for in s 392(c) or (d). However, the subject is discussed by the other two members of the court. I agree with Mazza JA's reasons on that point.

247 MAZZA JA: I have had the advantage of reading the draft reasons of Martin CJ. I join with him in dismissing the appeal against conviction and allowing the appeal against sentence but only to the extent of allowing ground 5 and quashing the sentence on the stealing charge No 6102.

248 With respect to the appeal against conviction, for the reasons given by Martin CJ, I agree that, in the particular circumstances of this case, his Honour did not make a wrong decision on a question of law as alleged by the appellant. I also agree, for the reasons given by Martin CJ, that even if his Honour made an error, no substantial miscarriage of justice occurred. The appellant always wanted a trial by judge alone with respect to the circumstance of aggravation. Through his counsel, he eschewed the possibility of a jury trial. The proceedings conducted by Murray J were, as it turned out, no different in substance to a trial by judge sitting alone.

249 However, I respectfully differ from Martin CJ's conclusion that the procedure followed by Murray J was correct. My reasons for arriving at this conclusion are as follows.

250 The questions which arise are these: what is the correct procedure when an offender is charged with robbery in the circumstances provided for in s 392(c) or (d) and wishes to admit the robbery but dispute one or more of the circumstances of aggravation? Do the disputed circumstances have to be tried by a jury (or a judge sitting alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA)) or can they be tried by the sentencing judge in a trial of issues?

251 There are conflicting authorities in this State on these questions.

252 In the present case, Murray J applied his earlier decision in The State of Western Australia v Majok [2005] WASC 13; (2005) 152 A Crim R 25, which was decided prior to the commencement of the Criminal Procedure Act. There, his Honour ruled that when an offender pleads guilty to robbery but disputes a pleaded circumstance of aggravation, the dispute was to be resolved not by a jury but by the sentencing judge in a trial of issues. As I understand his Honour's reasons, they depend

substantially on provisions in the Criminal Code (WA) that have since been repealed.

253 However, in Caporn v The State of Western Australia [No 2] [2008] WASCA 26; (2008) 36 WAR 294, Beech AJA, with whom Pullin JA agreed, held that when a circumstance of aggravation is pleaded in an indictment and disputed by an accused, a trial judge is required to obtain the verdict of a jury in respect of that circumstance: [132] - [136].

254 Since Caporn [No 2], the general practice in this State is for a disputed circumstance of aggravation to be tried by a jury or by a judge sitting alone, pursuant to s 118 of the Criminal Procedure Act.

255 The answers to the questions that I have posed are matters of statutory interpretation. The relevant provisions are contained in the Criminal Code, the Criminal Procedure Act and the Sentencing Act 1995 (WA). They should be interpreted harmoniously.

256 The starting point is s 392 of the Criminal Code. That section provides:

A person who steals a thing and, immediately before or at the time of or immediately after doing so, uses or threatens to use violence to any person or property in order -

(a) to obtain the thing stolen; or

(b) to prevent or overcome resistance to its being stolen,

is guilty of a crime and is liable -

(c) if immediately before or at or immediately after the commission of the offence the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed, to imprisonment for life; or

(d) if the offence is committed in circumstances of aggravation, to imprisonment for 20 years; or

(e) in any other case, to imprisonment for 14 years.

257 The circumstances of aggravation referred to in s 392(d) are set out in s 391 of the Criminal Code as follows:

circumstances of aggravation means circumstances in which -

(a) immediately before or at or immediately after the commission of the offence -

(i) the offender is in company with another person or persons; or

(ii) the offender does bodily harm to any person; or

(iii) the offender threatens to kill any person;

(b) the person to whom violence is used or threatened is of or over the age of 60 years.

258 The structure and text of s 392 of the Criminal Code are clear. The section creates one offence of robbery. The elements of that offence are described in the first part of the section concluding with the words 'is guilty of a crime'. What follows is the statement of the maximum penalty to which an offender is liable in the event that his or her guilt is established. The maximum penalty varies according to the circumstances in which the offence is committed. The circumstances in s 392(c) and (d) do not alter the nature of the offence of robbery and do not create a series of distinct robbery offences. I acknowledge that there exists in common speech a taxonomy of robbery offences. Descriptions such as 'simple robbery', 'aggravated robbery', 'robbery in company', 'armed robbery' and 'aggravated armed robbery' are regularly used. These descriptions conveniently, in a shorthand way, categorise the circumstances of a robbery so that the offence can be related to the relevant maximum penalty. However, these descriptions do not alter the fact that s 391 creates one offence.

259 To commence a prosecution in a superior court, a duly authorised officer must lodge an indictment that alleges an indictable offence: s 83(1) and (2) of the Criminal Procedure Act. The formal requirements of an indictment are found in s 85 and sch 1 of the Criminal Procedure Act. Clause 5(1) of sch 1 requires a charge in an indictment to inform an accused of the alleged offence in enough detail to enable the accused to understand and defend the charge. The word 'charge' is defined in s 3 as a written allegation in an indictment that a person has committed an offence. 'Offence' is defined in the same section to mean relevantly 'an indictable offence'. It seems to me that, in light of these provisions, a charge in an indictment alleging an offence of robbery said to have been committed in the circumstances provided for in s 392(c) and (d) must plead the relevant circumstance or circumstances.

260 The position is made clear by s 7(3) of the Sentencing Act which provides:

If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then -

(a) an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and

(b) whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors. (emphasis added)

261 The meaning of this subsection is obvious. It requires that the charge written in the indictment includes not just the statement of the offence, but also the circumstance or circumstances which make the offender liable to the greater penalty. The effect of s 7(3)(a) is that unless this occurs, an offender is not liable upon conviction to the greater maximum penalty.

262 Therefore, before a person is liable to the statutory maximum provided for in s 392(c) or (d) of the Criminal Code, that person must be first charged with committing a robbery in the circumstances set out in those subsections, and second, the offender must be convicted of committing the robbery in those circumstances.

263 The requirement in s 7(3)(a) of the Sentencing Act that an offender be 'convicted' of committing the offence in the circumstances said to give rise to the greater maximum penalty is important to the present discussion. In order to be liable for the greater maximum penalty, an offender must be convicted of the offence, in the circumstance or circumstances which make the offender liable to the greater penalty.

264 To be convicted of something requires a finding of guilt. Where a person pleads not guilty, guilt may only be established after trial. If a person is charged with an indictable offence, s 92 of the Criminal Procedure Act applies so that the accused is entitled to have the issues of fact raised by the plea tried by a judge and jury or, pursuant to s 118 of the Criminal Procedure Act, by judge alone.

265 Where an offender pleads guilty to a charge on indictment which contains a statement of the offence including the circumstances said to give rise to the greater maximum penalty and that plea is accepted by the court, the offender is convicted of the offence including the circumstances which give rise to the greater penalty.

266 For myself, I have considerable doubt as to whether an offender can, in relation to a charge which alleges the commission of an offence in circumstances which give rise to a greater maximum penalty, plead guilty to the offence and not guilty to the circumstances said to give rise to the greater penalty. This doubt arises due to s 126(4) of the Criminal Procedure Act, which does not allow a person to enter two or more pleas in circumstances in which one of the pleas is entered as a plea of guilty: see Zimmerman v The State of Western Australia [2009] WASCA 211. However, for the purposes of the present analysis I will assume that it is possible for an offender to plead guilty to the offence of robbery and not guilty to any alleged circumstances said to make the offender liable to a greater maximum penalty.

267 Where an offender enters a plea of guilty to robbery and not guilty to the circumstances said to give rise to the greater penalty, there must be, in my view, a trial either by jury or pursuant to an order made under s 118 of the Criminal Procedure Act. This is because of the requirement in s 7(3) of the Sentencing Act that the offender be convicted of the offence in the circumstances giving rise to the greater penalty.

268 With great respect, I do not agree with Martin CJ's conclusion that s 146 of the Sentencing Act allows a judge to determine, after a plea of guilty is entered to robbery, whether there exists circumstances which render the offender liable to a greater maximum penalty. Section 146 of the Sentencing Act reads:

In proceedings under this Act before a superior court, any question of fact is to be determined by a judge and not by the verdict of a jury.

269 Section 146 of the Sentencing Act refers to the resolution of disputed facts in proceedings 'under this Act'. The Sentencing Act 'applies to' all persons 'convicted' of an offence (s 3(1)). Section 146 applies to a trial of issues. In other words, proceedings before a sentencing judge who must determine facts relevant to the exercise of the sentencing discretion within the prescribed range and which need not be pleaded in the indictment: R v Hietanen (1989) 51 SASR 510, 514. The determination by a judge of a fact at a trial of the issues is not in any sense a conviction. A trial of issues occurs after a conviction is recorded.

270 In my opinion, when a circumstance of aggravation is pleaded in an indictment, superior courts at first instance should obtain the verdict of a jury or, in the case of a trial by judge alone, of that judge, in respect of that circumstance. The matter should not be resolved by a trial of issues.

271 I accept that this result may, in some cases, be inconvenient. The most obvious alternative is for an accused to seek, as the appellant did in substance in the present case, a judge alone trial pursuant to s 118 of the Criminal Procedure Act. It is also a matter which might readily be addressed by legislative amendment.

272 With respect to the appeal against sentence, I agree with the Chief Justice's reasons.