Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentence - Application for leave to appeal - Whether sentence calculated by reference to non­parole period - Failure to give sufficient weight to matters personal to the applicant - Totality

Barnes v The State of Western Australia [2004] WASCA 258

Blair v Miller [1988] WAR 19

Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509

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

Farquhar v The State of Western Australia [2005] WASCA 49

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

House v The King [1936] HCA 40; (1936) 55 CLR 499

Jarvis v The Queen (1993) 20 WAR 201

Kirby v The Queen [2003] WASCA 164

Kirby v The Queen [2003] WASCA 239

Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mill v The Queen (1988) 166 CLR 59

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

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

R v Paparone [2000] WASCA 127; (2000) 112 A Crim R 190

R v Pieri [2001] WASCA 357

R v Shaw (1989) 39 A Crim R 343

Rauhina v The Queen [2002] WASCA 91

Skinner v The King [1913] HCA 32; (1913) 16 CLR 336

Snider v The State of Western Australia [2005] WASCA 61

Vlek v The Queen, unreported; SCt of WA; Library No 990153; 29 March 1999

Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442

Miller v The Queen [2004] WASCA 84

R v Dickens [2004] WASCA 179; (2004) 147 A Crim R 343

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554

R v Hunter, unreported; CCA SCt of WA; Library No 8990; 7 August 1991

R v Ruane (1979) 1 A Crim R 284

R v White [2002] WASCA 112

State of Western Australia v Anderson [2004] WASCA 157

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Roberts-Smith JA. I agree with those reasons and have nothing to add.

2 ROBERTS-SMITH JA: On 20 May 2005 at the conclusion of the submissions made on behalf of the applicant, the Court was unanimously of the view that the application for leave to appeal against sentence should be dismissed. These are my reasons for joining in those orders.

3 On 1 November 2004, the applicant was convicted following a trial by jury of one count of aggravated burglary, one count of unlawful wounding and one count of criminal damage.

4 On 2 December 2004, he was sentenced to 6 years imprisonment for the aggravated burglary (count 1) and 2 years imprisonment for each of the unlawful wounding (count 2) and criminal damage (count 3). The sentences for counts 2 and 3 were ordered to run concurrently with that for count 1 and the applicant was declared to be eligible for parole. An application for leave to appeal against sentence was filed on 21 December 2004.

5 During the evening of Friday 14 March and the early hours of the morning of Saturday 15 March 2003, members of the applicant's family attended at a buck's party in Gosnells. The complainant in counts 2 and 3, Glenn John Sullivan, also attended the party and was behaving very badly, assaulting fellow guests and abusing the host's dog. Due to what the learned sentencing Judge described as the applicant's reputation amongst his family as being "something of an enforcer", the applicant's uncle telephoned the applicant and accordingly, he went in search of Sullivan.

6 He first attended at the party, by which time Sullivan had already left. The applicant then went to the Huntingdale house Sullivan occupied with his de facto wife, Kelly Louise Stone, and their two children. Sullivan had arrived home at about 2.30 am and was speaking with Stone in the lounge room when they saw two vehicles stop on the road outside the house. Both went outside and approached one of the vehicles, a utility, the driver of which was the applicant. Stone and Sullivan both told the applicant to leave, which he did.

7 Sullivan later left the house to use a nearby public telephone, during which time the applicant returned. Believing Sullivan to be inside, the applicant forced his way into the house, breaking the door handle and

making threats towards Sullivan. Once inside, he followed Stone into the lounge room and used an axe handle to smash the telephone. Another man had entered the house with the applicant, but stayed in the hallway entrance. Failing to find Sullivan inside, both men left the house. As he left, the applicant smashed four windows of Sullivan's panel van.

8 The applicant and some others went in search of Sullivan and found him down the street where they set upon him with weapons. Sullivan sustained a number of serious injuries, including a large laceration to the head and a subdural haematoma.

9 It is to be noted that the application for leave to appeal states the applicant was declared to be eligible for parole after 4 years. That is inaccurate, because the order made by the Judge, in accordance with s 89 of the Sentencing Act 1995 (WA), was simply that the applicant be eligible for parole. The period of parole is not determined by a sentencing Judge but is statutorily prescribed by s 93 of the Sentencing Act. However the misconception was carried into the applicant's proposed grounds of appeal, which are that the Judge:

1. intended to give the applicant an effective sentence of 3 years but misread the Sentencing Act and effectively sentenced the applicant to a term of 4 years' imprisonment;

2. failed to attach sufficient significance to the fact that the applicant believed he had to "help his family", his dysfunctional childhood and assaults on the applicant leading to schizophrenia;

3. failed to attach sufficient significance to the totality principle. The applicant had previously been sentenced to a term of 12 months imprisonment on 6 November 2003 for attempting to pervert the course of justice in relation to these proceedings.

10 In sentencing the applicant, his Honour made the following comments (AB 35):

"I note that you have been in custody since the end of your trial and since your conviction on 1 November and your sentences will date from that date. In all of the circumstances, I think the indicative sentences for each of these crimes are as follows: on count 1, the aggravated burglary, nine years' imprisonment; on count 2, the unlawful wounding, three years' imprisonment, and on count 3, the wilful damage, three years' imprisonment.

However, the amendments to the Sentencing Act which were passed last year require me to reduce these by one-third and accordingly the sentences that I pass upon you, in respect of count 1, six years' imprisonment; in respect of count 2, two years' imprisonment; in respect of count 3, two years' imprisonment. Because these offences were committed as part of one continuous action, however, I direct that they should be served concurrently - that means at the same time - and so your total head sentence is six years' imprisonment.

The State argued that you should not be made eligible for parole, having regard to your record and other matter. One of the reasons I was interested in getting a pre-sentence report was to see how you went whilst on parole last time and the pre-sentence report clearly regards you as being a suitable candidate for parole, with which I agree, and accordingly I have determined to declare you eligible for parole. That means you will be eligible to be released into community supervision after serving three years of your sentence, backdated to 1 November. They are the sentences of the court."

11 Counsel for the applicant relies upon this exchange, which followed the above remarks (AB 36):

"Martin, Ms: Your Honour, there is only one matter in terms of giving effect perhaps to if your Honour had in mind a time when the offender was to be released on parole. With a six-year sentence he will be released after four years.

Nisbet DCJ: I beg your pardon. Sorry, that is my mistake. Yes, I should have said - I'm sorry to have misled you, Mr Harvey. Because of the provisions of the Sentencing Act, this sentence being greater than - - -

Martin, Ms: Four years.

Nisbet DCJ: - - - four years, it means that you are eligible for release to parole when you have served two years less than the sentence I have imposed on you. So you will be eligible for release to parole four years from November 1. I'm sorry for misleading you and perhaps giving you greater hope of an earlier release than the law otherwise provides. Yes, thanks for making that point now, Ms Martin."

12 The submission is that the Judge's initial reference to a 3 year non-parole period indicated that his Honour actually intended to impose an "effective" sentence of 3 years and that should now be substituted.

13 It is clear that in this State, time to be served before eligibility for parole is generally not a factor to be taken into account in sentencing. The issue was considered recently by this Court in Farquhar v The State of Western Australia [2005] WASCA 49 (per Pullin JA):

"80 During submissions the appellant referred to the time he would spend in prison before becoming eligible for parole compared with the time Yanko was due to spend in prison during his non-parole period. There are authorities in this State to the effect that sentencing courts should not take into account the time to be spent in prison by reference to the non-parole period. See Wicks v The Queen (1989) 3 WAR 372 at 391 where Wallace J said about the then Offenders Probation and Parole Act that "... the parole aspect of the statute is to operate administratively and at the direction of the Executive and affects no part of the sentencing process." See also Brinsden J at 394 where he quoted Malcolm CJ in Archibald v The Queen (1989) 40 A Crim R 228 at 330 where he said:

'The substance of the new scheme is that a statutory formula is laid down whereby the minimum term is fixed by the Act which will apply if an order is made under s 37A that an offender be eligible for parole. Thus, the question of eligibility for parole must be considered once the sentence of imprisonment appropriate to the gravity of the offence in the light of the antecedents of the offender has been determined.'

81 In Jarvis v The Queen (1993) 20 WAR 201, Ipp J said at 208:

'... it is not permissible, when considering whether or not two or more sentences have a crushing effect, to have regard to the possibility that because an applicant is eligible for parole he might serve a lesser term than the total imposed ... it was the intention of Parliament when enacting the system of parole and remissions under the Prisons Act and the Offenders Community Corrections Act to put in place an administrative procedure relating to the administration and governance of prisons and prisoners to which the courts, in determining the sentence to be imposed on an offender ... should have no regard.'

14 At [82], Pullin JA also made reference to the following passage in Kirby v The Queen [2003] WASCA 239 at [26] per Anderson and McLure JJ:

"Sentencing courts are not required to react to every anomaly that may arise from the provisions of the Sentencing Act concerned with the calculation of parole periods and release dates. As Roberts-Smith J pointed out in Kirby v The Queen [2003] WASCA 164 at [113] - [119] courts in this State were not directly concerned with parole period calculations. The primary if not the exclusive task of the courts under the Sentencing Act 1995 was to specify the fixed term proper to be imposed for the particular offence, stipulate its starting date and determine whether there should be an order for parole eligibility. It is not appropriate for the court to mould sentences with an eye on parole eligibility calculations or to make such calculations for itself before passing sentence: R v Gisbourne, unreported; CA; 14 March 1977 per Orr and Waller LJJ and Milmo J; Wilson v The Queen, unreported; CCA SCt of WA; Library No 7325; 20 October 1988; R v Archibald (1989) 40 A Crim R 228; R v Swain (1989) 41 A Crim R 214; Wicks v The Queen (1989) 3 WAR 372, 391). See also Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 especially at 356 - 357."

15 The submission in respect of this ground first suffers from a conceptual difficulty in referring to the non-parole period as the "effective" sentence. As demonstrated by the authorities above, it is clear that the period to be served before parole eligibility must not weigh as a factor on which the head sentence is determined, and it is the head sentence which is the (effective) sentence.

16 It is evident that had his Honour first considered the non-parole period to be served and then imposed a head sentence accordingly to achieve that, he would have been in error. However, there is nothing in the above passage to suggest that that is, in fact, what his Honour did. His Honour was merely seeking to explain the effect of the parole eligibility order to the applicant and in doing so, made an initial error in relation to the operation of s 93 of the Sentencing Act 1995 (WA), which was quickly corrected. In this respect, it is not apparent that the learned sentencing Judge made any error of law in sentencing the applicant . This ground must fail.

17 The applicant was 29 years of age at the time of sentencing and the father of two children. The author of the pre-sentence report noted that the applicant justified his actions by saying that he needed to help his family. The applicant has a significant Court history including drug, traffic and weapons offences and several assaults. He experienced a dysfunctional and abusive childhood, leaving the family home at 13 years of age and living on the streets for three years. He failed to complete his schooling and is consequently illiterate and innumerate. His mother manages his finances. He has an entrenched history of illicit substance use, particularly amphetamines and methamphetamines, although he tested negative to these substances whilst under previous community supervision. The applicant suffers from schizophrenia, which is managed by fortnightly injections.

18 The author of the pre-sentence report noted that the applicant had denied the aggravated burglary charge, claiming that he had attended the premises with the intent of confronting Sullivan, yet concluded that the applicant had "acknowledged the seriousness of the current offences". The report also said that the applicant had demonstrated a capacity to maintain a law-abiding lifestyle and abstain from illicit substance use while under community supervision. However, his Honour noted that he lacked contrition and insight into his offending behaviour.

19 Sentencing is an exercise of judicial discretion (Skinner v The King [1913] HCA 32; (1913) 16 CLR 336; House v The King [1936] HCA 40; (1936) 55 CLR 499; Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509). This ground is not a complaint that the Judge failed to have regard to the matters referred to, but only that he "failed to attach sufficient significance" to them. That is a very difficult argument to succeed on in an attack on the exercise of a discretion. How much weight to attach to those factors, in the context of the circumstances of the case and balanced against other and competing considerations, was very much a matter for the Judge. His Honour specifically mentioned these factors in a way which showed he had turned his mind to them.

20 An appellate court may not intervene merely because it would have exercised the sentencing discretion in a different manner to that of the sentencing Judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. This incudes setting aside a sentence on the ground that insufficient weight was given to relevant considerations, save for where the conduct amounts to a failure to exercise the sentencing discretion entrusted to the Court: Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 at 519; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

21 It is submitted on behalf of the applicant that particular weight ought to be given to the applicant's perceived need to assist his family. It is submitted that while the learned sentencing Judge described the applicant's reputation amongst his family as being that of an "enforcer", he was in fact in a position of performing "a type of rescue operation for the family" (t/s 4) in a "situation not of his own creating" (t/s 6). Further it is submitted that the applicant has effectively "taken the blame" for the others who also inflicted injuries upon the complainant - who were in all likelihood, as observed by the learned sentencing Judge, the complainant's victims from the buck's party.

22 This submission cannot be accepted. The violence perpetrated by the applicant was extreme and disproportionate to the violence that the complainant had perpetrated upon the guests at the party. Revenge, whether in response to an act perpetrated upon one's self or upon another, cannot be allowed to be a mitigating circumstance. The Judge's remarks in relation to this aspect of the offence were appropriate (AB 32-34):

"These actions of yours were clearly unprovoked and premeditated. Sullivan had done nothing to you and neither had Stone. Whilst some excuse for your actions against Sullivan could be made out, none could be made out for your actions against Ms Stone and in effect her children.

Your actions have had a considerable impact upon Ms Stone and whilst Mr Sullivan claims similarly to have suffered severely in consequence of the beating he received at your hands, I must say I don't particularly have a great deal of sympathy for him save in this regard: when he fought with two people at the buck's night he did so in the open in front of everybody else where each of the people he fought could have fought back and where others could have come to their aid.

Further, no-one was armed in those confrontations. When you set upon him, however, you did so in the dark, with others, in a violent and cowardly way. There is nothing in the facts which could mitigate their seriousness. Again I remark, whilst I don't have a great deal of sympathy for Mr Sullivan save for the matters I have just mentioned, the harm that was done him was clearly greater than any harm he did at the party, firstly, and secondly, it was just none of your business and you should have told these people to sort it out themselves or go to the police and have them sort it out, but instead you took the law into your own hands in the way in which I have described."

23 The pre-sentence report outlined further details of the applicant's dysfunctional childhood and history of schizophrenia. It should be noted that following conviction, counsel for the applicant was instructed not to request a psychiatric report, despite indications from the trial Judge that he would order such a report if requested (AB 14).

24 All counsel said as to this was that the applicant was categorised as schizophrenic, but was "on top of his problems", and was no longer taking illicit substances, so counsel did not see the necessity to burden the court with yet another report.

25 His Honour also made specific reference to those matters which he wished to take time to consider (AB 22):

"I will take into account your previous mental health problems and look carefully at how well you did on parole to see whether you should be declared eligible for parole and to see whether there should be any amelioration of sentence on account of your schizophrenia."

26 The law in relation to the mitigatory effect of a mental illness or condition was clarified by Murray J (with whom Kennedy J agreed) in R v Paparone [2000] WASCA 127; (2000) 112 A Crim R 190 at 198-199:

"Where it is advanced that an offender suffers from a condition or disability which should mitigate punishment, then as I have mentioned, it will be necessary to demonstrate a causal relationship between the offending and the condition, as I put it in CW, 'at least in the sense that as a result of the intellectual deficit the offender was not inhibited from committing the offence or offences in question'. In such a case the mitigation may be found in the conclusion that the offender's moral culpability, as opposed to his or her criminal responsibility, has been lessened so as to reduce the seriousness of the offending and the need for a denunciatory sentence."

27 The pre-sentence report notes that although the applicant denied being under the influence of any illicit substances at the time the offences were committed, he did admit to being three days late for his medication which controlled his schizophrenia. The applicant claimed that being late for his medication often resulted in him having difficulty controlling his temper.

28 However, under the heading "Health", the author of the report notes that a telephone interview had been conducted with the applicant's community mental health nurse, Mr Roger Au. Mr Au reported that he had been treating the applicant for approximately two and a half years and described him as a compliant patient who was never aggressive towards him. He believed that the applicant was able to demonstrate insight into his offending behaviour and had the capacity to demonstrate self-control. It was also noted that Mr Au did not believe that the applicant's late medication was a contributing factor to the current offence and that while the applicant had previously been late for his medication on a number of occasions, Mr Au had not observed any changes in the applicant's behaviour on these occasions.

29 Further, under the heading "Summary", the author of the pre-sentence report notes that the applicant conceded that he still would have confronted the victim if he had been medicated.

30 In light of this admission and the information provided to the court by Mr Au, it cannot be said that the Judge gave insufficient weight to the applicant's schizophrenia, particularly given the limited information that was put before his Honour by the applicant. His Honour came to the conclusion that "now the schizophrenia appears to be reasonably well controlled by drugs" (AB 34) and no information was proffered to the contrary. Indeed, the applicant was unable to establish any causal connection between his illness and the commission of the offences, as required by Paparone, and hence, was not necessarily entitled to any mitigation in respect of his schizophrenia.

31 The pre-sentence report outlined the applicant's dysfunctional childhood in some detail, to which his Honour made specific reference at AB 34-35. While undisputedly relevant to the applicant's personal circumstances, his Honour was also obliged to weigh this in contrast with other relevant circumstances - the seriousness of the offences and the need to protect the community, the need for both specific and general deterrence, the applicant's lack of insight into his offending behaviour and his lack of remorse. In considering all of these factors, his Honour was correct to conclude that such personal matters of mitigation could have comparatively little weight.

32 There is nothing to suggest that the Judge did not sufficiently consider each relevant circumstance of the case. This ground also must fail.

33 On 6 November 2003, the applicant pleaded guilty in the District Court to one count of attempting to defeat the course of justice, as well as three summary offences. The indictable offence related to the proceedings that are the subject of this application and occurred approximately three months after the applicant was charged with those offences.

34 At about 7.10 pm on Thursday, 26 June 2003, the applicant went to an address in Gosnells and spoke with Mrs Phyllis Stone, the mother of Kelly Stone. The applicant told Mrs Stone to tell her daughter that "if she goes through with the court proceeding that the club is going to knock her" (AB 40). The applicant repeated this comment to Mrs Stone before departing in his vehicle. The applicant's threat was passed on to Kelly Stone, who understood it to mean that if she gave evidence at the applicant's trial, she would be threatened or killed by members of the Gypsy Jokers motorcycle club, with whom members of the applicant's family were involved.

35 The applicant was sentenced to a term of 12 months imprisonment for this offence, cumulatively upon sentences for the summary offences, which resulted in a total term of 16 months' imprisonment, backdated to 8 July 2003. The applicant was released to parole on 7 March 2004 and completed his parole on 7 November 2004.

36 The issue to be decided here is whether the learned sentencing Judge ought to, and in fact did, take into account the applicant's sentence for this offence when sentencing the applicant for the offences the subject of this application, particularly given that at the time of sentencing, the applicant had already completed serving his sentence for the offence of attempting to pervert the course of justice.

37 The submission advanced to the learned sentencing Judge on behalf of the applicant was as follows (AB 30-31):

"... it may be that the principle of concurrency might be applied to a situation where the offence should emanate from the same actions, as opposed to totality, but in this instance we would seek to rely on totality on the basis that enough is enough. He pleaded guilty to the attempt to pervert. The events are linked; they have a mild nexus, but he has spent a considerable amount of time in prison already for events surrounding those crimes and on that basis it's asked to be taken into account."

38 The State prosecutor submitted to the learned sentencing Judge that given the completely separate nature of the offence of attempting to pervert the course of justice, his Honour ought not to consider the time spent in custody for that offence in relation to totality. In response, his Honour referred to the decision of the Court of Criminal Appeal in Barnes v The State of Western Australia [2004] WASCA 258, in which a sentence imposed by his Honour was reduced for reasons of totality, amongst other factors. In that case, the applicant was convicted of three counts of possessing a prohibited drug and in July 2001, was sentenced to 5 years imprisonment and declared eligible for parole. This had occurred while he awaiting trial on a separate count of possessing methylamphetamine with intent to sell or supply. The initial trial for this offence had been aborted and there was a significant delay before the second trial commenced. By the time the second trial commenced in February 2004, the applicant had been released to parole and was due to complete his sentence in April 2004. The applicant was convicted at the second trial and sentenced to 7 years 4 months' imprisonment with eligibility for parole.

39 At [15] McKechnie J (Templeman J agreeing) held that his Honour erred in failing to take full account of the exponential nature of the combined sentences effectively imposed in respect of similar criminal conduct. His Honour concluded that the combined sentence exceeded the exercise of a proper sentencing discretion to such an extent as to manifest error. The sentence was reduced to 5 years 10 months' imprisonment.

40 McLure J came to the same conclusion, but for different reasons. At [37] her Honour agreed that the totality principle is to apply in circumstances where a defendant is still serving a sentence for some other offence at the time of sentencing; yet her Honour acknowledged that the rationale behind this application was that the second sentencing court may see or assume that the offender has made progress towards rehabilitation during that term of the first sentence and that the demand for retribution is reduced where the offender has already suffered loss of liberty and denunciation of his or her criminal behaviour. Her Honour concluded that it was not necessary to decide whether the totality principle applied in the circumstances of the case - that is, where the applicant was not in prison at the time of the second sentencing, but was still completing the earlier sentence on parole. Her Honour concluded that it was proper to apply the totality principle by way of analogy, in that but for the delay, it was likely that the applicant would still have been serving the earlier sentence in prison when he came to be sentenced for the later offences.

41 In its outline of submissions, the State referred to Rauhina v The Queen [2002] WASCA 91, in which a sentence of 3 years' imprisonment (under the "old" sentencing regime) for a similar offence of attempting to pervert the course of justice was upheld by the Court of Criminal Appeal. That case goes more to the point that a sentence imposed for an offence of attempting to defeat the course of justice in relation to criminal proceedings should be considered entirely separately from other offences - that is, that the "one transaction" rule should not be applied. This does not relate to any of the applicant's grounds of appeal and it does not appear to me that the applicant has advanced any submission to the contrary in this case, as it is accepted that the totality principle can be applied to offences that are unrelated in time and nature: see Jarvis v The Queen (1993) 20 WAR 201.

42 The "totality principle" may operate in a number of ways. It has been explained as requiring a sentencing Judge who has passed a number of properly made sentences to review the aggregate sentence and consider whether that is "just and appropriate" to the totality of the criminal behaviour (Thomas, "Principles of Sentencing", 2nd ed, (1979) p 56, cited with approval in Mill v The Queen (1988) 166 CLR 59; and see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per McHugh J at [308]; Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 (per Malcolm CJ at [10] - [75], Anderson J at [140] - [149] and Miller J at [175]). In Kirby v The Queen [2003] WASCA 164 I summarised the effect of the principle at [163]:

"The purpose of the 'last look' at the overall effect of the sentences to be imposed therefore, may be seen to involve two considerations. The first is whether that aggregate sentence is appropriate (ie proportionate) to the total criminality involved. A sentence may offend the totality principle without being 'crushing' (Jarvis v The Queen (1993) 20 WAR 201 per Anderson J at 3). If the sentence is excessively disproportionate to the overall criminality, then some reduction will be required. If that is not so, it is still necessary to consider whether the total effect upon the offender in the particular circumstances is so overwhelming as to call for the 'merciful intervention of the court by way of reducing the total effect'. In my opinion neither aspect affords any basis for the intervention of this Court in this case."

43 The distinction between the avoidance of a "crushing" sentence and one which offends the totality principle because it is disproportionate to the overall criminal conduct, was explained by Anderson J in Vlek v The Queen, unreported; SCt of WA; Library No 990153; 29 March 1999 at 11 - 13.

44 The interaction between the "one transaction" rule and totality principle was outlined by this Court in the recent decision of Snider v The State of Western Australia [2005] WASCA 61 per McLure JA (Malcolm CJ and Roberts-Smith JA agreeing) at [27]:

"It is a general rule, or what has been described as a good working rule (R v Ruane (1979) 1 A Crim R 284), that when a number of offences arise out of the one transaction or continuing episode, any terms of imprisonment are usually made concurrent. However, a sentencing Judge must in each case consider whether the application of the general rule would result in an appropriate measure of the total criminality involved in the conduct: R v White [2002] WASCA 112. If not, then the appropriate result should be achieved, if practicable, by making the sentences wholly or partially cumulative rather than by adjusting the otherwise appropriate sentence: Mill v The Queen (1988) 166 CLR 59 at 63. Further, even if the one transaction rule does not apply, totality considerations may result in sentences being made concurrent in order to achieve a total sentence that is proportionate to a particular offender's level of culpability (Postiglione v The Queen at p 307 - 308)."

45 His Honour's comments in relation to Barnes - "... that is the law and I have to take account of it" - leave no doubt that he considered the issue of totality in sentencing the applicant. It should also be noted that the option of imposing a partially concurrent sentence to accommodate totality was not open to his Honour under s 88 of the Sentencing Act 1995 (WA), as the applicant was no longer serving a previously imposed fixed term at the time of sentencing. Hence, the only option available to his Honour was to adopt a lower head sentence and given his remark that is how he must have accommodated that consideration.

46 Although the attempt to pervert the course of justice offence was relevant to those for which his Honour was sentencing on 1 November 2004, the relationship was only that it was the course of justice in respect of the latter which the applicant was attempting to pervert. They were otherwise not related. As counsel for the applicant expressed it, there was "a mild nexus". It could not have been put higher than that. They were quite separate transgressions against the criminal law involving different legally protected interests (R v Shaw (1989) 39 A Crim R 343, 347; R v Pieri [2001] WASCA 357 per Roberts-Smith J at [14] - [17]). They were not part of the continuing course of conduct giving effect to a single scheme. They do not fall within the scope of the application of the "one transaction rule". Nor did the sentence imposed by his Honour result in any disproportion with the whole of the applicant's criminal conduct and certainly the effect of the sentence, even regarded against the background of that imposed and served by the applicant for attempting to pervert the course of justice offence, could not be regarded as "crushing" in any relevant sense.

47 His Honour clearly had regard to the principle of totality; the aggregation of sentences is a just and appropriate (that is, proportionate) measure of the total criminality involved and it cannot be said the overall term is crushing.

48 There is one final matter which was not raised on the application but which appears from the sentencing transcript. His Honour referred to the statutory maximum sentence in respect of count 2 as being 7 years' imprisonment. Section 301 of the Criminal Code as at March 2003 was relevantly in the following terms:

"Wounding and similar acts

Any person who -

(1) Unlawfully wounds another; ...

(2) ...

(a) if the person wounded is of or over the age of 60 years, to imprisonment for 7 years; or

(b) in any other case, to imprisonment for 5 years. ..."

49 The fact that the person wounded is of or over the age of 60 years is a circumstance of aggravation as defined in s 1(1) of the Code. It is a circumstance by reason of which 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 it.

50 There are two difficulties with this in the present case. The first is that no circumstance of aggravation was stated in the indictment with respect to count 2. In R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 it was held that if a circumstance of aggravation as defined (that is, one which increased the maximum sentence available) was intended to be relied upon, it had to be stated in the indictment. Unless that were done, the maximum sentence applicable was that which applied to the offence without the circumstance of aggravation. However, the decision in De Simoni turned on the fact that s 582 of the Code at the time provided that "if any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment". That provision was removed by the Acts Amendment (Criminal Penalties and Procedure) Act 1982 (WA) (No 20 of 1982, s 5). Nonetheless, as a matter of procedural fairness, if a circumstance is intended to be relied upon as increasing the maximum penalty available, it should be stated in the indictment. In Blair v Miller [1988] WAR 19, the Court was dealing with a summary prosecution upon complaint under the Justices Act 1902 (WA). The respondent had entered a plea of guilty to a charge of failing to render assistance to an injured person after a traffic accident. The penalty was a maximum fine of $500 unless in the opinion of the court the offender had shown "callous disregard" for the injured person, in which case there was a mandatory sentence of imprisonment of not more than 12 months. The complaint did not allege "callous disregard", but the prosecutor asked the Magistrate to make such a finding and impose sentence accordingly. The Magistrate refused. The prosecution appealed. The appeal was dismissed. On this point, Burt CJ said (at 22 - 23):

"The Justices Act 1902 contains no provision such as was in the Criminal Code prior to the amendment made to it by the Acts Amendment (Criminal Penalties and Procedure) Act 1982, s 5, whereby 'if any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment'. From this it would seem to me to follow that there is no requirement of the positive law that in sentencing a person convicted in Petty Sessions of an offence tried summarily, a magistrate cannot have regard to a circumstance of aggravation in the sense that it is beyond his power to do so unless that circumstance is charged in the complaint. I so held in Caratti v Slater (unreported, Supreme Court (WA), 19 April 1983), and I see no reason to change the opinion which I expressed in those reasons: see, too, King v Dorsett (1951) 53 WALR 39.

On the other hand, proceedings before justices are adversary proceedings and should it be the case that the prosecution intends to prove before the magistrate a circumstance of aggravation then it seems to me to be essentially unfair that the defendant should not be so advised before his plea is taken. That unfairness can be illustrated on the facts of this case, it being one thing to plead guilty to a charge attracting a monetary penalty and altogether another thing to plead guilty to a charge which will result in a mandatory sentence of imprisonment."

A circumstance of aggravation unless established in the course of a hearing following upon a plea of not guilty, as was the case in Caratti (supra), must, if not admitted, be proved by evidence. Proof cannot arise out of a plea of guilty to a complaint which does not allege it. And if the circumstance of aggravation is not alleged and is not admitted it cannot be proved simply by the prosecuting sergeant after conviction reading a statement of relevant facts to the court."

"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: s 1 of the Criminal Code. Whilst the need to set out such a circumstance of aggravation has been removed from s 582 of the Criminal Code by Acts Amendment (Criminal Penalties and Procedures) Act 1982 that does not mean that by all sense of fairness and authority such a circumstance should not be the subject of an averment both upon indictment and complaint: see Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264; Crack v Post; Ex parte Crack (supra); Brinsden J in Streets v Thorpe (supra); Caratti v Slater 1983 (unreported, Supreme Court (WA), 19 April 1983)."

"Whilst it is not the fact that Brinsden J in Streets v Thorpe was of the opinion that such circumstances of aggravation were required as a matter of law to be the subject of averment his Honour did recommend that such a practice as existed in Queensland in the manner set out in Crack v Post; Ex parte Crack [1984] 2 Qd R 311 at 324 should be followed and I would add my voice to that recommendation. In my opinion an allegation of the existence of callous disregard in the manner of driving referred to in s 54(6) of the Act is a circumstance of aggravation as defined in the Criminal Code, s 1 and should be the subject of averment in all complaints if it is the prosecution's intention to rely upon its effect. Surely the citizen is entitled to know the full implication of all charges brought against him so that when a plea of guilty is taken it can properly be said to establish not only the elements of the charge but the liability of the respondent to increased punishment."

54 The evidentiary point gives rise to the second difficulty in the present case. It does not appear to have been alleged or proved that Sullivan was of or over the age of 60 years.

55 It follows that his Honour was in error in his understanding that the statutory maximum sentence applicable to the offence of unlawful wounding was 7 years' imprisonment; in fact it was 5 years' imprisonment.

56 However, an appeal against sentence may be allowed only if this Court concludes that a different sentence than that which was, should have been passed (s 689(3) of the Criminal Code; s 32(4)(a) of the Criminal Appeals Act 2004 (WA)). Notwithstanding the error made by the Judge, I am not persuaded that a different sentence should have been passed for that offence.

57 It follows that the learned sentencing Judge's discretion has not been shown to have miscarried in any way. The sentences imposed were commensurate with the seriousness of the offences and the circumstances

of the case. That is why I agreed that leave to appeal against sentence should be refused.

58 PULLIN JA: I have read the draft reasons prepared by Roberts-Smith JA. I agree with those reasons and having nothing further to add.

• Background
• Ground 1: Effective sentence
• Ground 2: Mitigating circumstances
• Ground 3: Totality