HISHMEH -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 14 (21 January 2025)

Possession of stolen or unlawfully obtained property (a trailer)

Section 32 notice

1. His Honour ordered that the sentence for count 5 be served cumulatively upon the sentence for count 1 and that the other sentences of imprisonment be served concurrently with each other and concurrently with the sentence for count 1. The total effective sentence on the counts in the indictment was therefore 14 months' immediate imprisonment. The total effective sentence began on the date that it was imposed (that is, on 27 September 2024). A parole eligibility order was made.
2. The appellant relies upon five grounds of appeal.
3. Ground 1 alleges, in essence, that the primary judge erred in his application of the totality principle by failing to take into account time the appellant had previously spent in custody.
4. Ground 2 alleges, in essence, that his Honour erred in fact by finding that the appellant's pleas of guilty were 'late' pleas.
5. Ground 3 alleges, in essence, that his Honour erred by finding that the offences of stealing motor vehicles were aggravated by:

(a) the length of time the victims were without their vehicles; and

(b) the vulnerability of vehicle owners.

1. Ground 4 alleges, in essence, that the total effective sentence of 14 months' immediate imprisonment infringed the first limb of the totality principle.
2. Ground 5 alleges, in essence, that each of the individual sentences was manifestly excessive.
3. I agree with Vaughan and Hall JJA that an extension of time to appeal should be granted; leave to appeal on ground 1 should be granted; leave to appeal on grounds 2, 3, 4 and 5 should be refused; and the appeal must be dismissed. I agree with their Honours' reasons for granting an extension of time and for refusing leave to appeal on grounds 2, 3, 4 and 5. I will state my own reasons on ground 1.

The appellant's sentencing in the Magistrates Court

1. On 14 May 2024, the appellant was sentenced in the Magistrates Court for numerous offences, including various offences for which he was arrested and charged on 3 August 2023.
2. The offences comprised five charges of possessing a prohibited weapon; two charges of possessing cannabis; one charge of possessing methylamphetamine; and two charges of driving under suspension.
3. The magistrate sentenced the appellant to a 7‑month community based order (including a supervision and programme requirement) for the offences of possessing a prohibited weapon and the offence of possessing methylamphetamine. Her Honour imposed fines for the other offences. Her Honour also imposed a driver's licence suspension for each of the traffic offences.
4. The magistrate said that in imposing this sentence she had taken into account the time (which the magistrate had been informed by defence counsel comprised 214 days) that the appellant had spent in custody.

The facts and circumstances of the offending for which the appellant was sentenced by the primary judge; the facts and circumstances of the offending for which the appellant was sentenced by the magistrate; the primary judge's sentencing remarks; the magistrate's sentencing remarks; the relevant time the appellant had spent in custody and on bail; the appellant's personal circumstances and antecedents; and the submissions of the parties in the appeal

1. The reasons of Vaughan and Hall JJA set out details of:

(a) the facts and circumstances of the offending for which the appellant was sentenced by the primary judge;

(b) the facts and circumstances of the offending for which the appellant was sentenced by the magistrate;

(c) the primary judge's sentencing remarks;

(d) the magistrate's sentencing remarks;

(e) the relevant time the appellant had spent in custody and on bail;

(f) the appellant's personal circumstances and antecedents; and

(g) the submissions of the parties in the appeal.

1. I will not repeat any of those details except to the extent necessary to explain my reasons.

Overview of the relevant time the appellant had spent in custody and on bail

1. An overview of the relevant time the appellant had spent in custody and on bail is as follows:

(a) 4 August 2022: arrested.

(b) 4 August 2022 to 19 August 2022 (16 days): on remand.

(c) 19 August 2022 to 7 December 2022: home detention bail.

(d) 7 December 2022 to 3 August 2023: on bail without the home detention condition.

(e) 3 August 2023: arrested.

(f) 3 August 2023 to 15 February 2024 (197 days): on remand.

(g) 15 February 2024 to 18 April 2024: home detention bail.

(h) 18 April 2024: on bail without the home detention condition.

1. The appellant's total time in custody was 213 days and his total time on home detention bail was 175 days.

Ground 1: s 87 of the Sentencing Act

1. Section 87 of the Sentencing Act provides:

(1) If when an offender is being sentenced to imprisonment for an offence -

(a) the offender has previously spent time -

(i) in custody in respect of the offence for which the offender is being sentenced; or

(ii) in custody in respect of another offence, while on bail for the offence for which the offender is being sentenced;

(b) the sentencing court decides that that time should be taken into account,

(c) if it imposes a fixed term, by reducing that term by an appropriate period; or

(d) by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence.

(2) Subsection (1)(a)(i) does not apply if the time in custody has already been taken into account in sentencing for another offence under subsection (1)(a)(ii).

1. The proper construction and application of s 87 was considered by this court in Narkle v Hamilton.[1]
2. In Narkle [30] ‑ [31], [40], Steytler P, McLure JA and I made, in essence, the following observations about s 87:

(a) Section 87 is not the source of the court's power (which it has long had) to take into account, if appropriate when sentencing an offender, time spent in custody on remand.

(b) Section 87 sets out the means by which a sentence of imprisonment can be reduced or backdated where the court has determined, in the exercise of its non‑statutory power and as contemplated by s 87(1)(b), that it will take into account, when sentencing an offender to imprisonment, time spent in custody on remand.

(c) Section 87 contains no express or implied limitation on the court's non‑statutory power to take into account, if appropriate when sentencing an offender, time spent in custody, including on remand.

(d) Prior to the enactment of s 87, it was not open to the court to backdate a sentence.

(e) Consequently, s 87 was facilitative and was not intended to limit the court's non-statutory power to take into account, if appropriate when sentencing an offender, time spent in custody on remand.

(f) The court always has a discretion, when considering time spent in custody, to decide whether it will make an allowance for that time, and if so, how much of an allowance it will make. Even where the time was spent in custody in respect of the offence for which the offender is being sentenced, and for no other reason, the court does not have to give credit for the whole of that time. The manner in which the discretion is exercised will depend upon the individual circumstances of each case.

1. Although s 87 has been amended since Narkle was decided, the observations about s 87 which I have set out at [23] above remain applicable to s 87 in its current form.
2. Section 87(1) empowers a court, when sentencing an offender to imprisonment for an offence, to take into account time previously spent in custody in these circumstances:

(a) if the offender was in custody in respect of the offence for which he or she is being sentenced (s 87(1)(a)(i)); or

(b) if the offender was in custody in respect of another offence while the offender was on bail for the offence for which he or she is being sentenced (s 87(1)(a)(ii)).

1. The phrase 'on bail for the offence' for which the offender is being sentenced, in s 87(1)(a)(ii), refers to the offender having been granted bail for that offence but having been in custody for another offence.
2. Section 87(2) avoids double‑counting of time that an offender has previously spent in custody by providing that s 87(1)(a)(i) does not apply if the time in custody has already been taken into account in sentencing for another offence under s 87(1)(a)(ii).
3. When sentencing an offender, the court can give credit for time the offender has previously spent in custody by mechanisms other than backdating a sentence of imprisonment or reducing the length of a sentence of imprisonment. For example, the time previously spent in custody can be taken into account in deciding whether, and if so, to what extent, sentences for multiple offences should be served cumulatively or concurrently. See Gullello v The State of Western Australia;[2] Sami v The State of Western Australia;[3] Jacomb v The State of Western Australia.[4]
4. Section 87(1) applies only when a court is sentencing an offender to imprisonment for an offence. Section 87(1) does not apply when the court is not sentencing an offender to imprisonment for an offence, even if the offender has previously spent time in custody in respect of the offence.
5. However, when sentencing an offender a court can, in the exercise of its non‑statutory power, take into account time previously spent in custody by using a sentencing option specified in s 39(2)(a) to (e) of the Sentencing Act instead of imposing suspended imprisonment, conditionally suspended imprisonment or immediate imprisonment.

1. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
2. The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia.[5] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia;[6] Gaskell v The State of Western Australia.[7]
3. The totality principle has been applied where a previous sentence has been imposed by a court of a different State. See Mill v The Queen.[8]
4. The totality principle requires that a court, in deciding upon the appropriate sentence for an offence, take into account any sentence that the offender is then serving for another offence. See Mills v The State of Western Australia.[9]
5. The totality principle has been applied, either directly or by analogy, where a court is sentencing an offender and the offender is serving a sentence for another offence, even if he or she has been released on parole in respect of the sentence for the other offence. See Barnes v The State of Western Australia;[10] Fletcher v The State of Western Australia.[11]
6. The totality principle has also been applied by analogy, in some circumstances, where a sentence for a previous offence has been completed. See Merritt v The State of Western Australia;[12] MYB v The State of Western Australia;[13] Fitzgerald v The State of Western Australia.[14]
7. In Labrook v The State of Western Australia,[15] the salient facts were these. On 13 August 2015, the appellant was sentenced to a total effective sentence of 4 years 10 months' immediate imprisonment for drug offences. Between committing and being sentenced for those drug offences, the appellant was sentenced to 17 months' immediate imprisonment for driving offences. The appellant completed the 17‑month sentence about 10 months before he was sentenced for the drug offences. The appellant was serving the sentence for the driving offences when he was charged with the drug offences.
8. The question in Labrook was whether the judge who sentenced the appellant for the drug offences was required to have regard to the 17‑month sentence for the driving offences in applying the totality principle. This court held that the judge erred in failing to have regard to the 17‑month sentence when he applied the totality principle. However, after having regard to the 17 month sentence and all other relevant circumstances, this court was of the opinion that no different sentence should have been imposed for the drug offences. Accordingly, the appeal was dismissed. Mitchell J (McLure P and Mazza JA agreeing) referred to a number of decisions in relation to the totality principle, including Mill; Barnes; Mills and Fletcher. His Honour then said [40]:

It is not necessary in the present case to identify the precise limits of the circumstances in which the totality principle requires account to be taken of sentences imposed at an earlier time. Clearly, the totality principle does not require a sentencing court to make allowance for sentences served prior to the commission of the relevant offence. It may be necessary that the offender has at least been charged with the later offences while serving the sentence which is to be taken into account for totality purposes. Wherever the line is to be drawn, I am satisfied that, in the present case, the delay between completion of service of the 17‑month sentence and the imposition of the sentence for the Drug Charges was not so great as to make the earlier sentence irrelevant for totality purposes.

1. In LYN v The State of Western Australia,[16] the appellant had been sentenced to 4 years' immediate imprisonment in 2005 for sexual offences committed against his daughter, AP. In 2017, the appellant was sentenced to 10 years 3 months' imprisonment for sexual offences committed against two other daughters, GL and AJ. All of the offending against AP, GL and AJ occurred during the same period. The appellant appealed against the sentence of 10 years 3 months' imprisonment. This court accepted that the first limb of the totality principle applied in the sentencing of the appellant for the offences against GL and AJ. Consequently, the sentencing judge was obliged to take into account the sentence of 4 years' immediate imprisonment imposed for the offences against AP. This court held that the total effective sentence of 14 years 3 months' imprisonment infringed the first limb of the totality principle.
2. In Curry v The State of Western Australia,[17] Mitchell and Beech JJA and I noted that:

(a) it is well established that, in some circumstances, a sentence that has been completed may properly be taken into account in applying the totality principle [55]; and

(b) one category in which a sentence that has been completed may properly be taken into account in applying the totality principle is where multiple offences are committed and, after the commission of all of those offences, the offender is sentenced for some of them and, following the completion of that sentence, the offender is sentenced for some or all of the remaining offences [56].

1. Mitchell and Beech JJA and I then said that the category referred to at [40(b)] above is not exhaustive of the circumstances in which the totality principle is applicable, either directly or by analogy, when a sentence has been completed [57].
2. In Fitzgerald, the appellant was sentenced in the Magistrates Court to 9 months' immediate imprisonment on 28 June 2022. On 26 May 2023, the appellant was sentenced in the District Court to 6 years 6 months' imprisonment. The appellant committed the offences for which he was sentenced in the Magistrates Court less than two weeks before he committed the offences for which he was sentenced in the District Court. The District Court judge backdated the sentence of 6 years 6 months' imprisonment to 2 July 2022, being the date immediately after the appellant had completed the sentence imposed in the Magistrates Court, to take account of time the appellant had spent in custody on remand. The District Court judge referred to the Magistrates Court sentences for the purpose of determining the date to which the District Court sentences should be backdated, but the judge did not consider the Magistrates Court sentences in applying the totality principle. Mitchell JA and I held that the totality principle was capable of being applied, at least by analogy, in relation to the combination of offences for which the appellant was sentenced on 28 June 2022 and 26 May 2023 [67].
3. The rationale for applying the totality principle, either directly or by analogy, where the offender is serving or has completed a sentence for another offence, is that the court, in deciding upon the appropriate sentence, may perceive or assume that the offender has made progress towards rehabilitation while serving the subsisting sentence and that there is a diminished requirement for retribution because the offender has already suffered loss of liberty and an emphatic denunciation of his or her criminal conduct and attitude. See Vlek v The Queen;[18] Barnes [37]; Roffey [26].
4. In The State of Western Australia v Doodson,[19] Mazza, Mitchell and Vaughan JJA made these observations about the rationale for the totality principle [50] ‑ [52]:

As was noted in Roffey v The State of Western Australia, a rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. So too there may be assumed to be a lesser demand for personal deterrence. However, the commission of further offences while on parole may negate an assumption that rehabilitation has been achieved. Where an offence is committed towards the end of a sentence already being served, the partial service of an earlier sentence may do little to reduce demand for retribution for later serious offending and the need for personal deterrence.

Considerations of general deterrence may also be relevant. It should not be thought that a person serving a significant sentence can act with impunity in the expectation that any sentence for further offences will be served wholly or largely concurrently.

The above considerations may, depending on all the circumstances, lead to a conclusion that subsequent offending adds to the offender's overall criminality to a greater extent than would be the case if all offending occurred before a sentence was imposed for any of the offending. (footnote omitted)

1. More recently, in Le v The State of Western Australia,[20] Mazza, Vaughan and Hall JJA suggested that there were three possible rationales for the totality principle taking into account prior completed sentences. First, the offending for which the offender is being sentenced may be part of the same course of conduct as previous offending and consequently the total criminality should be reflected in the combined sentences [91]. Secondly, there may have been some rehabilitation of the offender as a result of the first sentence which could justify a reduced second sentence [92]. Thirdly, there may be a proper basis for concluding that the offender will become institutionalised if returned to prison for a lengthy period shortly after his or her release [93].

Ground 1: the magistrate's relevant sentencing remarks

1. In the present case, during the sentencing hearing in the Magistrates Court on 14 May 2024, defence counsel informed the magistrate that:

(a) the appellant had spent 214 [sic] days in custody and that the time in custody could be taken into account by her Honour in sentencing the appellant (ts 8); and

(b) the appellant did not '[want the time in custody] for the [pending] District Court matters' because those matters were 'less serious than' the matters for which the appellant was to be sentenced by her Honour (ts 8).

1. The magistrate spoke to the appellant in her sentencing remarks as follows (ts 13 ‑ 14):

[Your sentencing] does seem to be a little bit more complicated because you've spent a long time in custody, but these are offences that the court and the community find to be serious generally and there's an importance for both general and personal deterrence in sentencing somebody for offences like these that are before me.

Particularly in relation to the possession of the methylamphetamine which is a significant amount of methylamphetamine which the Court of Appeal has previously said can attract, albeit that it's only for personal possession, a term of imprisonment suspended or otherwise. I have to balance that against the fact that you've spen[t] all of this time in custody, and you are making some significant efforts to put yourself back on track and to remain on track.

And you're to get the benefit for that by way of taking into ... consideration ... both that time in custody and your participation in the programs. I accept that there has been negotiations on these matters that has probably been complex, and I give you credit for your pleas being in an earliest possible opportunity as well. I am going to deal with some of the matters by fines, but in relation to some of the other charges I am going to impose a community‑based order.

The reason for that is that whilst you have independently taken steps to make sure that you continue on the track that you started whilst you were in prison ... I do consider that the charges are serious and that you should be afforded some further supervision in the community just to ensure your ongoing compliance with the program that you have.

And I know that you've got personal reasons for wanting to stay clean and stay on that program, but this also provides some personal deterrence for you as well to ensure that compliance. I will say that I had considered terms, suspended terms, of imprisonment for some of these matters, but I'm reducing it because of that time that you spent in custody. But I just want to ensure that you've got some continued compliance. (emphasis added)

1. Her Honour did not expressly state that she had taken into account the whole of the 213 days in custody in sentencing the appellant.
2. However, that is the proper inference to be drawn having regard to:

(a) a fair reading of the magistrate's sentencing remarks as a whole;

(b) the seriousness of the offences for which the appellant was being sentenced; and

(c) the fact that, absent the time which the appellant had previously spent in custody, it would have been appropriate to impose a total effective sentence of imprisonment for some of the charges in excess of 213 days.

Ground 1: the primary judge's relevant sentencing remarks

1. In his sentencing remarks on 27 September 2024, the primary judge referred to the time the appellant had previously spent in custody as follows (ts 166):

Previously in your counsel's submissions to me, [counsel] referred to the fact that you had spent a considerable period of time in custody. That was an amount of 214 [sic] days as at 31 July 2024. But ... I was informed that that period of time in custody had already been taken into account by the magistrate in sentencing you on 14 May and that is apparent from her [sentencing] remarks ...

I must not take into account that time in custody in a way so that there is any overlap of that ... as a mitigating or otherwise sentencing factor ... and I approach things in that way today. [S]o I do not regard that fact of being in custody as affecting, in particular, the type of penalty or the length of any term of imprisonment to be imposed upon you today. (emphasis added)

1. It is apparent, on a fair reading of that passage in the context of his Honour's sentencing remarks as a whole, that his Honour decided that he must not take into account any of the 213 days the appellant had previously spent in custody in deciding upon the length of the sentences of imprisonment his Honour proposed to impose or any backdating of those sentences.
2. The primary judge made these comments about the totality principle in the context of the sentences imposed by the magistrate (ts 169 ‑ 170):

In determining the sentences that I need to ultimately impose upon you, I must consider whether those terms should be served cumulatively or concurrently, and consider, as part of that, the issue of totality. That mean[s] that I must impose a sentence which bears a proper relationship to the overall criminality of your offending, viewed in its entirety and having regard to the circumstances of the case, including those referable to you personally.

In doing so I have regard to the sentencing by you in the Magistrates Court that I've referred to on 24 May 2024. I've read the statement of material facts relative to that offending and a transcript of the sentencing before Magistrate Myers. However, though, the offending and the sentences imposed there were not sentences of imprisonment, so they do not, to that extent, reflect upon the length of the terms of imprisonment or the structure of the terms of imprisonment that should be imposed. (emphasis added)

1. His Honour then made these comments about the totality principle in the context of the individual terms of imprisonment that his Honour considered were appropriate for the counts on which he was imposing sentence (ts 170):

Your counsel made a submission that the [offences] before this court are not as serious as the driving offences which were committed by you. However, I do not accept that submission, and in particular, in relation to the stealing of the motor vehicles. ...

So having undertaken those exercises, in my opinion a total effective sentence of 14 months' imprisonment is the total sentence that should be imposed.

That will be imposed in the following way with respect to the counts in the indictment. With respect to count 1 on the indictment, you'll be sentenced to 12 months' imprisonment. With respect to count 2 on the indictment, you'll be sentenced to 12 months' imprisonment. With respect to counts 3, 4 and 5, you'll be sentenced to the terms of imprisonment that I've already indicated to be appropriate of six months' imprisonment, two months' imprisonment and two months' imprisonment.

However, to give effect [to] the totality principle, and only for that reason, I structure the sentences in this way or I impose sentences and then structure them in this way. With respect to count 1, by reference to the totality principle, I reduce that sentence to one of 12 months' imprisonment. With respect to count 5 on the indictment, in relation to the possession of the trailer, reasonably suspected to have been stolen, the sentence of two months' imprisonment will be cumulative upon the 12 months of imprisonment imposed in relation to count 1.

In relation to the sentences of 12 months, six months and two months, to be imposed for counts 2, 3 and 4 on the indictment, they will all be concurrent on each other and to be served concurrently with the other two sentences that I have then imposed; so in that way the total of 14 months is effected.

1. It is apparent, on a fair reading of the passages I have set out at [52] ‑ [53] above in the context of the primary judge's sentencing remarks as a whole, that his Honour disregarded the 213 days the appellant had previously spent in custody in applying the totality principle.

1. Section 87(1) of the Sentencing Act did not apply to the magistrate's sentencing of the appellant on 14 May 2024 because her Honour did not sentence him to imprisonment. However, her Honour was entitled, in the exercise of her non‑statutory power, to take into account the 213 days which the appellant had spent in custody by imposing a community based order instead of suspended terms of imprisonment. As I have mentioned, I am satisfied that her Honour took into account the whole of the 213 days in custody in sentencing the appellant.
2. Section 87(2) of the Sentencing Act did not prohibit the primary judge from taking the 213 days into account because s 87(2) only operates if the time in custody has already been taken into account in sentencing for another offence under s 87(1)(a)(ii). The magistrate did not take the 213 days into account under s 87(1)(a)(ii). Rather, as I have mentioned, the magistrate took the 213 days into account in the exercise of her non‑statutory power. Subject to and separately from the totality principle, his Honour exercised the sentencing discretion appropriately by not taking the 213 days into account on the basis that the magistrate had already given the appellant credit for the whole of that time.
3. However, in my opinion, his Honour did err by disregarding the 213 days in applying the totality principle.
4. On 4 August 2022, the appellant was arrested and charged with the five counts in the indictment. On 27 September 2024, the primary judge sentenced the appellant for those counts. On 3 August 2023, the appellant was arrested and charged with the offences that were dealt with in the Magistrates Court. On 14 May 2024, the magistrate imposed the community based order and the fines. The 213 days which the appellant had spent in custody on remand accrued between 4 August 2022 and 19 August 2022 and between 3 August 2023 and 15 February 2024.
5. I am satisfied that:

(a) in the circumstances that I have described at [58] above;

(b) having regard to Labrook; LYN; Merritt; Curry; MYB; and Fitzgerald; and

(c) having regard to the rationale for the totality principle as explained in the case law,

the totality principle was applicable, by analogy, in relation to the 213 days when his Honour sentenced the appellant.

1. The totality principle was not rendered inapplicable in relation to the 213 days because the magistrate took the whole of the 213 days into account in sentencing the appellant or because her Honour did not impose a term of immediate imprisonment.
2. Section 31(4)(a) of the Criminal Appeals Act 2004 (WA) provides that this court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed. In the present case, I am of the opinion that, notwithstanding the primary judge's error in relation to the totality principle, a different sentence should not have been imposed. I am of that opinion for the reasons given by Vaughan and Hall JJA on that point.

1. An extension of time to appeal should be granted. Leave to appeal on ground 1 should be granted. Leave to appeal on grounds 2, 3, 4 and 5 should be refused. The appeal must be dismissed.

1. On 26 February 2024, the appellant was convicted on his pleas of guilty of five counts on an indictment. Those counts consisted of two counts of stealing a motor vehicle, contrary to s 371A of the Criminal Code (WA) (Code) (counts 1 and 2), and three counts of possession of stolen or unlawfully obtained property, contrary to s 417(1) of the Code (counts 3, 4 and 5). The appellant also pleaded guilty to a pending charge of simple possession of a prohibited drug, namely methylamphetamine, that was included on a list pursuant to s 32 of the Sentencing Act 1995 (WA).[21]
2. On 27 September 2024, the appellant was sentenced to 12 months' imprisonment on each of counts 1 and 2, 6 months' imprisonment on count 3, and 2 months' imprisonment on each of counts 4 and 5. A fine of $1,000 was imposed for the offence of possession of methylamphetamine. The sentences on counts 1 and 5 were ordered to be served cumulatively, and the sentences on counts 2, 3 and 4 were ordered to be served concurrently. Accordingly, the total effective sentence was 14 months' immediate imprisonment. The sentence commenced on the date of sentencing and an order was made that the appellant be eligible for parole.[22]
3. On 30 October 2024, the appellant filed a notice of appeal seeking leave to appeal against his sentence.[23] That notice was approximately one week after the time for appealing expired, and an application for an extension of time has been filed. The appellant's counsel has sworn an affidavit, stating that he was only formally instructed to act on the appeal on 23 October 2024. The delay is relatively short and we would grant the extension of time.
4. The appellant's case was filed on 19 November 2024.[24] It contains five grounds of appeal. The first ground contends that the sentencing judge erred in the application of the totality principle by failing to take into account time the appellant had spent in custody. The second ground contends that the sentencing judge erred by finding that the appellant's guilty pleas were late. The third ground contends that the sentencing judge erred by finding that the offences of stealing motor vehicles were aggravated by the length of time that the owners of the vehicles were deprived of them and the vulnerability of car owners generally. The fourth ground contends that the aggregate sentence breached the first limb of the totality principle. The fifth ground contends that each of the individual sentences of imprisonment was manifestly excessive.[25]
5. The appellant filed an application for bail, or alternatively for an urgent appeal order. Having regard to the shortness of the sentence, the State conceded that an urgent appeal order should be made. An urgent appeal order was made on 4 December 2024.
6. For the reasons that follow, we would grant leave to appeal on ground 1, refuse leave to appeal on the other grounds and dismiss the appeal.

1. The admitted facts are as follows.
2. On 4 August 2022, police executed a search warrant at the appellant's home in Gosnells. In a spare room of the house was a safe, which the appellant unlocked. Police located the keys to a Mercedes vehicle in the safe. The appellant's driver's licence and Medicare card were also in the safe. The car keys operated a Mercedes found in a shed on the property, which police inquiries established had been stolen in April 2022. The original registration plates on the car had been removed and replaced.[26]
3. A number of other stolen items were also located in the shed. In particular, a Husqvarna motorbike, a chainsaw, and a trailer. The motorbike had been stolen in September 2020. The trailer had its serial number removed and its original registration plates had been removed and replaced.[27]
4. During the search of the shed, police also located a gun case, inside which was a clipseal bag containing 9.94 g of methylamphetamine with a purity of 86%. The drugs had been left in the shed by another man, who had allowed the appellant to use the drugs. The State accepted that the appellant was in joint possession of the drugs and that they were for his personal use. A firearm and ammunition were also located.[28]
5. The appellant made police aware of another safe in the kitchen of the house. He unlocked the safe and police found $7,000 in cash that was reasonably suspected of having been unlawfully obtained.[29]
6. The appellant was arrested but declined to participate in a recorded interview. He was charged with stealing the Mercedes vehicle and the motorbike and being in possession of the chainsaw, trailer and cash, which were items reasonably suspected of having been stolen or unlawfully obtained. Those were the charges to which he ultimately pleaded guilty.
7. The appellant was also originally charged with possessing the methylamphetamine with intent to sell or supply it to another and with possessing an unlicensed firearm and ammunition. Those charges were later either amended or discontinued.[30]

1. The appellant was committed for trial to the District Court on 17 May 2023. The charges were set down for a trial between 4 and 8 March 2024.[31]
2. In February 2024, a negotiated plea agreement was reached whereby the State would discontinue the firearm and ammunition charges and reduce the drug charge to one of simple possession, on the basis that the appellant would plead guilty to the remaining charges and to the simple possession charge. In accordance with that agreement, pleas of guilty were entered by the appellant on 26 February 2024 and the trial dates were vacated.[32]
3. For reasons which are not presently relevant, sentencing was adjourned on a number of occasions before finally taking place on 27 September 2024.
4. In the meantime, the appellant had been dealt with in the Magistrates Court for other charges, some of which arose from the same incident as the District Court charges. When dealt with in the Magistrate Court, a period of 214 days that the appellant had spent in custody on remand was taken into account in determining the appropriate sentence.[33] It was accepted that no further specific allowance for that time spent in custody was appropriate in respect of the matters to be dealt with in the District Court.[34]

1. On 14 May 2024, the appellant was sentenced in the Magistrates Court following pleas of guilty to 10 charges. Those charges consisted of five charges of possessing a prohibited weapon contrary to s 6(1)(b) of the Weapons Act 1999 (WA), two charges of driving whilst disqualified contrary to s 49(1)(a) and s 49(3)(b) of the Road Traffic Act 1974 (WA), two charges of possessing a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) and one charge of possessing a prohibited drug, namely methylamphetamine, contrary to s 6(2) of the Misuse of Drugs Act. The facts in relation to those charges were as follows.[35]
2. On 4 August 2022, police executed the search warrant at the appellant's home referred to earlier. In addition to the items already mentioned, police located 0.54 g of cannabis and a number of other weapons. The weapons were a knuckle knife, an extendable baton, a taser, and a BB gun.[36]
3. During the search on 4 August 2022, police also seized a CCTV hard drive. When the data from that hard drive was extracted, it was found to include footage from 29 July 2022 showing the appellant driving from his house in a Mercedes car. He was disqualified from driving at that time. There was also footage showing him driving on 1, 2, and 3 August 2022, though only a charge relating to 29 July 2022 was preferred.[37]
4. On 5 May 2023, the appellant was observed by police leaving his house and getting into a car. He drove the car to an address in Maddington. He was arrested by police and charged with a further offence of driving whilst disqualified. On the same day, police executed a search warrant at the appellant's home and located a small extendable baton. The appellant claimed that this weapon had been left by police on the last occasion they came to the house.[38]
5. On the morning of 3 August 2023, police attended at the appellant's home in Gosnells to execute an arrest warrant. Police entered the property through the laundry door. The appellant was found inside on a couch. On a coffee table near the appellant, police observed several clipseal bags that had been broken open. Some of the contents, which appeared to be crystals, had spilled onto the carpet. Police used an analyser to identify the crystals as methylamphetamine. The total weight of methylamphetamine was 2.4 g. A large cannabis bud with some leaves was also found on the coffee table. The weight of that cannabis was approximately 2 g.[39]
6. Counsel who appeared for the appellant in the Magistrates Court said that one of the factors relevant to sentencing was that the appellant had spent 214 days in custody on remand. The magistrate then asked:[40]

HER HONOUR: And you're not wanting that for the District Court matters?

[COUNSEL]: No.

HER HONOUR: No.

[COUNSEL]: The District Court matters are, quite frankly, less serious than these matters.

1. The magistrate noted that the offences were serious and that general and personal deterrence were important considerations. She said that possession of methylamphetamine, even for personal use, could attract a term of imprisonment. Her Honour said that, but for the time that the appellant had spent in custody, she would have considered a term of imprisonment for the driving offences and a suspended sentence of imprisonment for the methylamphetamine charge.[41]
2. The magistrate also took into account that the appellant had made efforts to put his life back on track by undertaking drug counselling. Her Honour noted that the pleas of guilty to the charges were the result of negotiations and that she would treat them as having been entered at the earliest reasonable opportunity. Her Honour considered that a community‑based order was appropriate to ensure that the appellant was supervised in the community and maintained ongoing compliance with counselling.[42]
3. The magistrate imposed a 7‑month community‑based order, with program and supervision conditions, on each of the possession of a prohibited weapon charges and the charge of possessing methylamphetamine. She fined the appellant $200 on each of the two possession of cannabis charges. On the two charges of driving whilst disqualified, the appellant was fined $1,000 on each charge and a further 9 months' driver's licence disqualification was imposed on each charge. These disqualifications were to be served cumulatively.[43]

1. The history of the appellant's time in custody and on bail is as follows:[44]
   1. On 4 August 2022, the appellant was arrested and charged with a number of offences, including those which ultimately appeared on the indictment, and was remanded in custody.
   2. The appellant remained in custody until 19 August 2022 (16 days), when he was released on home detention bail.[45]
   3. On 7 December 2022, the home detention condition was removed from his bail.
   4. On 3 August 2023, police executed the arrest warrant. As a result, the appellant was charged with a number of offences that were later dealt with in the Magistrates Court. He was remanded in custody.[46]
   5. The appellant remained in custody until 15 February 2024 (197 days), when he was again released on bail with a home detention condition.
   6. On 26 February 2024, the offences of possession with intent to sell or supply and possession of a firearm and ammunition were discontinued on the District Court indictment, and the appellant pleaded guilty to the remaining counts on that indictment. His bail was extended on the existing terms.[47]
   7. The home detention bail condition was again removed on 18 April 2024.[48]
   8. On 14 May 2024, the appellant was sentenced in the Magistrates Court.
   9. On 27 September 2024, the appellant was sentenced in the District Court.
2. In summary, the appellant served a total of approximately 7 months in custody in two periods, 4 August 2022 - 19 August 2022, and 3 August 2023 - 15 February 2024. That time in custody was taken into account in the Magistrates Court sentencing on 14 May 2024.[49]

1. The appellant was 40 years of age at the time of the offences and was 42 years of age at the time of sentencing.
2. There was limited information regarding the appellant's background, other than a letter that he provided to the court. In that letter, he says that he is the oldest of 10 siblings, and that he has six nieces and nephews who he enjoys spending time with. He attended Armadale High School and finished at that school in year 11.[50]
3. The appellant has a long history of substance abuse and claims to have been using methylamphetamine at the time of the offences. He described his life as chaotic at the time of the offences and said that there were three people living at his house who would often leave property there. He denied stealing the car, motorbike, chainsaw, and trailer, but accepted that he was in possession of them and that he 'knew something dodgy was going on'.[51]
4. In his letter, the appellant said that he had taken part in drug counselling to get his 'life in order'. He believed that the counselling had helped him. He said that he had plans to start a sand-blasting business and had acquired some machinery. He hoped to get an extraordinary driver's licence in order to work.[52]
5. A letter from the Whitehaven Clinic dated 9 January 2024 stated that the appellant had participated in an Addiction Recovery Process Program whilst in Hakea Prison. This is an individualised full fee‑paying program which seeks to address drug addiction which contributes to offending behaviour. Sessions are of 90 minutes duration and the program runs for 12 ‑ 14 weeks. As at the date of the letter the appellant had completed 14 sessions, equating to 21 hours of one‑on‑one counselling. He had asked to continue until completion of the program. The report states that the appellant wanted to understand the underlying root cause of his addictive behaviours and how he could make long‑term changes.[53] There was no evidence of any further participation after 9 January 2024, though at a hearing in the District Court on 31 July 2024 defence counsel said that the appellant continued the program after his release from prison and that it had 'now finished'.[54] There was no completion report.
6. The appellant has a lengthy criminal record. His adult record extends from March 2001 to May 2024. It includes multiple offences of driving without a driver's licence and driving whilst disqualified. He has been imprisoned on a number of occasions, for that and other offending. He also has prior convictions for possessing prohibited weapons, possessing stolen or unlawfully obtained property, stealing and possession of prohibited drugs. He was first imprisoned in 2010 for an offence of aggravated assault occasioning bodily harm. In 2015, he received a sentence of imprisonment for multiple offences of driving whilst disqualified. He received further such sentences for the same type of offence in 2016, 2018 and 2020.[55]

1. It is not necessary for present purposes to summarise the whole of the sentencing judge's remarks. Relevantly to the grounds of appeal, his Honour noted that the time in custody had been taken into account in the Magistrates Court. He also said that he had considered the disposition in the Magistrates Court in regard to the issue of totality, though he noted that the sentence imposed in that court was not one of imprisonment.
2. The sentencing judge said:[56]

Previously in your counsel's submissions to me, it was referred to the fact that you had spent a considerable period of time in custody. That was an amount of 214 [sic] days as at 31 July 2024. But I had been - but I was informed that that period of time in custody had already been taken into account by the magistrate in sentencing you on 14 May and that is apparent from her remarks at page 14.

I must not take into account that time in custody in a way so that there is any overlap of that significance as a mitigating or otherwise sentencing factor and I do not approach things - and I approach things in that way today. [S]o I do not regard that fact of being in custody as affecting, in particular, the type of penalty or the length of any term of imprisonment to be imposed upon you today. (emphasis added)

1. Later in his remarks, his Honour said:[57]

In determining the sentences that I need to ultimately impose upon you, I must consider whether those terms should be served cumulatively or concurrently, and consider, as part of that, the issue of totality. That [means] that I must impose a sentence which bears a proper relationship to the overall criminality of your offending, viewed in its entirety and having regard to the circumstances of the case, including those referable to you personally.

In doing so I have regard to the sentencing [of] you in the Magistrates Court that I've referred to on 24 May 2024. I've read the statement of material facts relative to that offending and a transcript of the sentencing before Magistrate Myers. However, though, the offending and the sentences imposed there were not sentences of imprisonment, so they do not, to that extent, reflect upon the length of the terms of imprisonment or the structure of the terms of imprisonment that should be imposed.

Your counsel made a submission that the sentences before this court are not as serious as the driving offences which were committed by you. However, I do not accept that submission, and in particular, in relation to the stealing of the motor vehicles. I accept the submissions of the State in that regard which were articulated in the hearing on 31 July at pages 148 and 149 of the transcript.

So having undertaken those exercises, in my opinion a total effective sentence of 14 months' imprisonment is the total sentence that should be imposed. (emphasis added)

1. The sentencing judge said that he had been informed that the pleas were entered a week prior to the trial. He accepted that the pleas had nonetheless saved the prosecution a trial and spared the witnesses the need to give evidence. He described the pleas as late and allowed a discount of 5% under s 9AA of the Sentencing Act. In reaching this conclusion, his Honour recognised that the pleas of guilty had been the result of negotiations. His Honour said:[58]

I was informed by the State that you entered a plea of guilty to the indictable charges a week before the trial. The matter was then resolved by way of the State discontinuing a charge of possession with intent to sell or supply a prohibited drug and firearms and ammunition charges. However, the five charges on the current indictment remain the same since you were charged. With respect to the section 32 offence, you pleaded guilty to that on the first occasion that it was before this court.

In relation to the pleas of guilty in relation to the indictable [matters], the State accepts that it should contribute in a mitigatory way to the sentencing of you, even though it was late pleas of guilty. I accept that characterisation. Under section 9AA of the Sentencing Act, I am entitled to discount [the] length of the sentence which would be imposed upon you if you were sentenced to a term of imprisonment, and I should otherwise have regard to your pleas of guilty in assessing the nature or type of sentence that should be imposed.

In my opinion, if you are to be sentenced to a term of imprisonment, the appropriate reduction is one of 5 per cent from the sentence that would be imposed if you were otherwise to proceed to trial and [be] convicted after trial, and there were no other mitigating factors.

In taking into account this fact as a mitigating circumstance, I have regard to the fact that because of your pleas of guilty, you've saved the State and the police some time in preparation for and participation in the trial that would have otherwise occurred. It has also meant that the victims have not required - been required to come to court and give evidence and there has been [a] saving of some resources for the court. As I have said, I think the appropriate discount is one of 5 per cent if I am to impose a sentence of imprisonment upon you.

1. The sentencing judge said that the appellant's offending in respect of counts 1 and 2 prolonged the period that the owners were deprived of their vehicles. His Honour said:[59]

In terms of looking at factors that aggravate to some extent your offending, I note that there were a number of offences committed by you at the same or a similar time, that they are premeditated to the extent that you were involved in the possession of the motor vehicles and you continued to be so, or if that not be an apt description, you at least prolonged the amount of time by the fact of having your - having the vehicles in your possession. The period during which the owners of the vehicles were out of their possession of a property that was rightfully theirs.

In relation to the victims of the offences, there's no victim impact statement before me, but people are vulnerable to the fact that these types of items can be stolen in relation to vehicles and rely upon them for work and activities outside of work. People park their cars and other vehicles, not expecting that they will be stolen, but people are vulnerable to this type of offending.

So I take into account the effects upon victims that can be inferred as an important consideration in sentencing and as I have said, I take into account the amount of time that the victims were out of possession of the vehicles, in particular. It is also relevant to note, at this stage, that general deterrence and personal deterrence have been specified by the Court of Appeal as being important considerations in sentences for stealing.

1. The sentencing judge said that he was satisfied that the appellant was remorseful 'but not to a major degree'.[60] That conclusion was based on the late pleas of guilty, engagement with the Whitehaven program and cooperation with the police. As regards the Whitehaven program, his Honour acknowledged that the appellant had taken significant steps in trying to effect rehabilitation but said that 'there was a way to go' having regard to the 'entrenched behaviours' that have given rise to the appellant's criminal record. His Honour also noted that the appellant had breached the community-based order imposed in the Magistrates Court and this weighed against his efforts towards rehabilitation.[61]

1. The grounds of appeal are as follows:[62]
   1. The sentencing [j]udge erred in his application of the totality principle by expressly failing to take into account in any way the time the appellant spent in custody.
   2. The sentencing [j]udge erred in fact by finding that the appellant's plea of guilty was a 'late' plea.
   3. The sentencing [j]udge erred by finding the offences of steal motor vehicle were aggravated by:
      1. the length of time the victims were without their vehicles.
      2. the vulnerability of car owners.
   4. The sentencing [j]udge erred by imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the offender personally.
   5. The sentencing [j]udge erred by imposing individual sentences on each Count that were manifestly excessive in all the circumstances of the case.

1. the individual sentences on each [c]ounts 1, 2, 3, 4 and 5 were manifestly excessive as to type.
2. the individual sentences on [c]ounts 1, 2 and 3 were manifestly excessive as to both length and type.

1. The appellant submits that the sentencing judge made an express error by specifically declining to take into account the Magistrates Court sentence when considering the totality principle. The appellant submits that the sentencing judge ignored the fact that 'a component' of the sentence imposed in the Magistrates Court was the 7 months that the appellant had spent in custody prior to being sentenced.[63] In essence, it is said that the time spent in custody was a relevant consideration to the question of the appropriate aggregate sentence.[64]
2. The respondent notes that the appellant was not a serving prisoner at the time he came to be sentenced in the District Court. The respondent submits that the time spent in custody at an earlier time did not reduce the need for personal deterrence or reduce the risk of reoffending so as to warrant a reduction in the sentence on totality grounds.[65] Further, the appellant, at his own request, had been given credit for the time in custody when sentenced in the Magistrates Court.[66]

1. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referrable to the offender personally, all relevant sentencing factors and the total effective sentence imposed in comparable cases. The totality principle requires due proportionality between the total offending and the total punishment.
2. The totality principle generally applies where an offender is subject to more than one sentence; for example, where sentences are passed at the same time for a number of offences or where the offender being sentenced is still serving a sentence for another or other offences at the time of sentencing. The first limb of the totality principle requires the court to review the aggregate sentence to ensure that it is a just and appropriate measure of the total criminality involved in all of the offending.[67]
3. There are limited circumstances where the totality principle can apply, at least by way of analogy, notwithstanding that the sentences for prior offences have been completed. This may arise where there is a delay, as a result of matters beyond the offender's control, between the commission of the offence and the imposition of the sentence for that offence.[68] An example of this is where an offender commits several similar offences within a short time in different States and can only be dealt with in one State after completion of the sentence in the other State.[69] Another example is where an offender is dealt with for further historic offences after serving a term of imprisonment for similar offences.[70]
4. In Carr v The State of Western Australia, the offender committed an armed robbery whilst on parole for a prior armed robbery. He had been in prison for much of the previous seven years for various offences. By the time he came to be sentenced he had completed all sentences for prior offences. On appeal it was submitted that the totality principle should have been applied to reduce the sentence for the most recent offence, having regard to the sentences recently completed. McLure JA noted that the offender was not remorseful, had no desire to rehabilitate himself and was at high risk of reoffending.[71] In these circumstances, there was no reduction in the need for punishment, denunciation and deterrence and no factual foundation for the application of the first limb of the totality principle.[72]
5. The reasons why the totality principle may be applied by analogy in some limited cases where the earlier sentence has been completed was explained in Le v The State of Western Australia:[73]

There are several possible rationales for the totality principle to apply to take into account prior completed sentences. First, the offending being dealt with may be part of the same course of conduct as the previous offending and therefore the total criminality should be reflected in the combined sentences.

Secondly, there may have been some rehabilitative benefits as a result of the first sentence which could justify a lesser sentence being imposed. This is not so much an application of totality as an acceptance of the mitigatory value of rehabilitation. It might be particularly relevant where the new offences are historic offending that pre-date the recently completed sentence.

Thirdly, there may be a concern that the offender will become institutionalised if returned to prison for a lengthy period so soon after release. Again, this is not so much a totality question as a concern that a further sentence of imprisonment may make the risk of further offending in the future greater and imperil rehabilitation and the prospects of the appellant being successfully reintegrated into the community at the completion of his sentence. That is a factor that must be weighed against other considerations in sentencing for such serious matters. Those other factors include the importance of general and personal deterrence.

1. It is well established that the totality principle should be applied when imposing a sentence of imprisonment on an offender who is already serving such a sentence. In such circumstances, the sentencing judge is called upon to consider whether the total time the offender will serve is proportionate to the overall offending conduct.
2. In the present case, the appellant was not serving a sentence of imprisonment at the time he came to be sentenced in the District Court. In these circumstances, the totality principle had no strict application. However, there can be circumstances where the totality principle can be applied by analogy. Examples include where there has been delay that results in offences arising from the same incident being sentenced at different times, or where there has been significant rehabilitation.
3. The totality principle operates independently of s 87 of the Sentencing Act. Section 87 permits a court, when imposing a sentence of imprisonment, to take into account time spent in custody in respect of that offence by either reducing the term or backdating it. As this court said in Narkle v Hamilton,[74] the objective of s 87 is to facilitate backdating and it was not intended to limit the general discretion that the courts have to take time spent in custody on remand into account when appropriate.
4. In the present case, s 87 of the Sentencing Act had no application because the magistrate did not impose a sentence of imprisonment. Rather the magistrate used her general discretion to take the time in custody into account in determining that a sentence other than imprisonment could be imposed. There is no practical consequence in whether the time in custody was taken into account pursuant to s 87 or in the exercise of the general discretion. The result is the same - the time in custody was taken into account in the Magistrates Court.
5. As sentences of imprisonment were imposed in the District Court, it was open to consider whether credit should be given for the time in custody under s 87 of the Sentencing Act. However, that power is subject to the sentencing court deciding that the time should be taken into account. In circumstances where the time in custody had already been taken into account in the exercise of the general discretion, it would have been inappropriate to allow any credit under s 87. To the extent that that is what the sentencing judge meant when he said that he 'must not take into account that time in custody',[75] he was not in error. However, that did not exclude the totality principle.
6. The emphasised portions of the sentencing judge's remarks extracted at [36] and [37] indicate that his Honour concluded that, in regard to the sentences imposed in the Magistrates Court, the totality principle had no possible application. That conclusion appears to be based on the fact that a sentence of imprisonment was not imposed in the Magistrates Court. However, that fact did not necessarily render the time spent in custody irrelevant for the purposes of the totality principle, at least in the application of that principle by analogy.
7. It was relevant for the sentencing judge to take into account the aggregate sentence for the whole of the offending and consider whether it was proportionate to the overall criminality. The fact that the appellant had served 7 months' imprisonment on remand, had been sentenced to a 7‑month community based order, had served approximately 4 months of that order and that any sentence of imprisonment would bring the community based order to an end, were all relevant considerations. They were not considerations that the sentencing judge weighed or evaluated in determining the appropriate sentences.
8. The sentencing judge erred by concluding that the totality principle could have no application as regards the sentences imposed in the Magistrates Court. His Honour failed to have regard to the possible application of the totality principle by analogy and to considerations that were relevant to the application of that principle. However, the remaining question is whether any different sentence should have been imposed.
9. The appellant submits that had totality considerations been taken into account, non‑custodial penalties would have been imposed by the sentencing judge. There are several difficulties with the appellant's argument. First, the offences dealt with in the Magistrates Court did not all arise from the same incident as those dealt with in the District Court. In particular, the offences of driving whilst disqualified were unconnected to the District Court offending. Those offences would inevitably have attracted sentences of immediate imprisonment, but for the time spent in custody. The time in custody was at least equivalent to the sentences of imprisonment that could have been imposed for those offences.
10. Secondly, the appellant significantly underplays the seriousness of the offences dealt with on indictment. Those offences were of sufficient seriousness to justify sentences of imprisonment to be immediately served and of the length imposed. To suggest that those offences add so little to the overall criminality that no additional prison time was appropriate is plainly wrong.
11. Thirdly, this was not a case where the offender's efforts towards rehabilitation since being released from prison were such as to make otherwise appropriate sentences of imprisonment inappropriate. The report regarding drug counselling was eight months old at the time of sentencing. The assessment of the sentencing judge was that the appellant had entrenched behaviours and had some way to go before achieving his rehabilitation goals. Furthermore, the appellant had reoffended since his release and breached the community-based order, indicating that his rehabilitation was far from complete.
12. For the reasons given later regarding grounds 4 and 5, the individual sentences were well within the range for offences of this nature. When those sentences and the total effective sentence of 14 months' immediate imprisonment are viewed in the light of the sentences imposed in the Magistrates Court (including the time spent in custody), it is not apparent that there should have been any further reduction for totality reasons. In our view, no different sentences should have been imposed.
13. Whilst we would grant leave to appeal on this ground, it cannot succeed because the appellant has not established that any different sentences should have been imposed. Ground 1 fails.

1. The appellant submits that his pleas should not have been considered to be late, as described by the sentencing judge. It is said that there would have been a forensic prejudice in pleading guilty at an earlier stage. The prejudice is said to be that if pleas had been made earlier the prosecution would have used those convictions as evidence in respect of other charges that were later withdrawn or downgraded. In effect, the appellant submits that it was not reasonable for him to have entered pleas of guilty prior to the completion of the negotiations which resulted in the downgrading of the drug charge and the discontinuation of the firearms charges. Although the pleas were entered at a later stage of proceedings, the appellant submits that they should not have been considered 'late' and that it is open to this court on any resentencing to find that they were entered at the first reasonable opportunity.[76]
2. The respondent submits that the position now adopted by the appellant is inconsistent with that adopted at sentencing. In written submissions at sentencing, the appellant's counsel described the pleas as having been entered at 'a later stage'. No information was provided to the sentencing judge as to the stage that negotiations were commenced, and no submissions were made to the effect that negotiations were commenced at an earlier stage. Nor was it submitted that there would have been a forensic prejudice to pleas being entered any earlier than they were. The respondent submits that it is difficult to see how the appellant would have been prejudiced by earlier pleas.[77]

1. Section 9AA of the Sentencing Act provides:

fixed term has the meaning given in section 85(1);

head sentence, for an offence, means the sentence that a court would have imposed for the offence if -

(a) the offender had been found guilty after a plea of not guilty; and

(b) there were no mitigating factors;

victim has the meaning given in section 13.

(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.

(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.

(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -

(a) by more than 25%; or

(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.

(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.

(6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.

1. Section 9AA(2) confines the availability of the discount under s 9AA for a guilty plea to the recognition of 'the benefits to the State, and to any victim of or any witness to the offence, resulting from the plea'. Subjective factors relating to the offender are not relevant in determining any discount to be given under s 9AA. However, s 9AA(6) provides that the section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
2. The maximum discount for a plea of guilty under s 9AA is 25%.[78] However, a discount of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at 'the first reasonable opportunity'.[79] The making, or the indication, of a plea at the first reasonable opportunity enlivens the power to grant the maximum discount. If the power is enlivened, the sentencing judge is not bound to give a 25% discount.
3. The phrase 'the first reasonable opportunity' in s 9AA is not defined in the Sentencing Act. In Rossi v The State of Western Australia,[80] this court considered the proper construction and effect of the phrase. McLure P (with whose reasons Mazza & Hall JJA agreed) noted that the opportunities to plead guilty to a charge for an offence are governed by the Criminal Procedure Act 2004 (WA). Her Honour concluded that the first opportunity for an accused to plead guilty to a charge for an indictable offence is after the initial disclosure obligations under the Criminal Procedure Act have been complied with.[81] A plea entered at this stage is known as a 'fast‑track plea'. Her Honour then said:[82]

However, the first opportunity is not necessarily the first reasonable opportunity to enter a plea of guilty. Whether or not it is requires an objective assessment, having regard to all relevant circumstances in the particular case, as to whether it would have been reasonable for the accused to have pleaded guilty on an earlier occasion.

1. The fact that it may be beneficial to an accused person to delay pleading guilty does not mean that it is unreasonable to enter a plea at an earlier stage. Any decision to plead guilty is likely to involve a weighing up of the relative advantages and disadvantages of doing so.
2. The purpose of s 9AA is to encourage early pleas of guilty, not to reward late pleas because it may be in the interests of the accused to delay their pleas. If an accused person wishes to delay their pleas they can do so, but they cannot reasonably expect that late pleas will still be rewarded with the maximum discount. It would incentivise delay if an accused person was eligible to receive the maximum discount where they had deferred pleading guilty in order to improve or preserve their position in plea negotiations. That would be contrary to public policy and to the policy underpinning s 9AA. Furthermore, it would, in effect, allow an accused person to benefit twice; first by negotiating a favourable outcome in plea negotiations and, secondly, by obtaining the maximum possible discount for pleading guilty.

1. The appellant was charged with the offences on the indictment on 4 August 2022. He indicated his pleas of guilty to those charges in February 2024 and entered the pleas on 26 February 2024. The trial was due to commence on 4 March 2024. The charges to which the appellant pleaded guilty were not amended at any stage. The only charge that was amended was the drug offence, which did not attract a sentence of imprisonment. As a matter of fact, it was open to the appellant to have pleaded guilty to the charges on the indictment at a much earlier stage. Even if there was some dispute about the facts, pleas could be entered on the basis that a trial of issues would be held. In particular, it would have been open to the appellant to have pleaded guilty to possession of the drugs and to have sought to prove that he did not have an intent to sell or supply the drugs.
2. The delay in pleading guilty is not justified by any forensic disadvantage. It is not apparent that earlier pleas could have been used to strengthen the prosecution case on other counts that were later amended or discontinued. This was not a claim made in the sentencing proceedings and the appellant did not seek to discharge the onus on him to establish that the pleas were entered at the first reasonable opportunity.
3. In any event, negotiations appear to have only commenced in February 2024, some 18 months after the charges were first laid and a month prior to trial. There is no evidence to suggest that an indication of the pleas was made any earlier. It was plainly in the appellant's interests to delay pleading guilty and the negotiations produced a favourable result for him.
4. The sentencing judge's assessment that the pleas of guilty were entered late was not inaccurate. The discount of 5% was appropriate in the circumstances.
5. There is no merit in this ground of appeal. It has no reasonable prospect of success and leave in respect of it should be refused.

1. The appellant submits that the sentencing judge erred by taking into account the impact that deprivation of the vehicles was likely to have had on the owners and that owners of vehicles are vulnerable to theft. The appellant submits that the stealing counts were dealt with on the basis that he possessed the vehicles, rather than being involved in the taking of them. There was no evidence as to how long the appellant had possessed the vehicles. The appellant submits that it was not open to find that the length of time the owners were without their vehicles, or that they were vulnerable, were aggravating factors.[83]
2. The respondent submits that, by having the vehicles in his possession, the appellant effectively prevented their return to their owners. In any event, the appellant, by his conduct, either provided assistance to those who stole the vehicles by allowing them to be kept at his house, or himself benefitted from their theft through his use of the vehicles. The owners were identified, and the appellant's conduct must have affected them in the manner described by the sentencing judge.[84]

1. The sentencing judge said that the number of offences committed at the same or a similar time was an aggravating factor. He also said that the offences were premeditated to the extent that the appellant was in possession of the vehicles and continued to be so, or he at least prolonged the time that the owners were deprived of possession of them. He said that vehicle owners are vulnerable to theft because they often rely on their vehicles for work and other activities and that cars are often parked in public areas.
2. The sentencing judge did not state, nor did he imply, that the appellant had been responsible for the initial taking of the vehicles. He did not state, nor imply, that the appellant had been in possession of the vehicles since they were first stolen. All his Honour said was that the appellant had 'at least prolonged' the deprivation of the owners. For whatever period the appellant had possessed the cars, it could not be gainsaid that he thereby prolonged the period that the owners were without their vehicles. Nor can it be disputed that by possessing the cars he was facilitating the continued theft of them. The references to the vulnerability of cars to theft was plainly a reference to the seriousness of offences of this type generally.
3. There is no merit in this ground of appeal. Leave in respect of it should be refused.

1. The appellant submits that the total sentence of 14 months' immediate imprisonment is manifestly excessive when the 7 months he had spent in custody and the time spent on home detention bail are taken into account. The appellant submits that the total effective sentence for all of the offending is the equivalent of a sentence of 28 months' imprisonment. This is calculated by treating the 7 months on remand as the equivalent of a 14‑month sentence and adding that figure to the sentence imposed by the sentencing judge. The appellant submits that such a total sentence does not bear a proper relationship to the overall criminality of the appellant's conduct.[85]
2. In respect of the individual sentences, the appellant repeats his submissions regarding the total effective sentence. He also refers to cases that he suggests are comparable in regard to stealing a motor vehicle, being Glasgow v Krarup[86] and Chirimumimba v Smrcek.[87] In regard to the offence of possession of stolen or unlawfully obtained property, the appellant refers to The State of Western Australia v Zhuang.[88] In regard to driving whilst disqualified, the appellant refers to Jackman v Davidson.[89]
3. The respondent distinguishes the comparable cases referred to by the appellant and notes the recent case of Apathy v The Director of Public Prosecutions[90] in regard to sentences for stealing a motor vehicle. The respondent submits that the appellant has attempted to minimise his offending. The respondent says that the reality is that the appellant committed a number of serious dishonesty offences and, whilst on bail for those offences, reoffended by possessing drugs and weapons, and driving whilst disqualified. There was a need for personal deterrence in the sentence imposed.[91]

1. The legal principles that apply in respect of an allegation that an individual sentence is manifestly excessive or that a total effective sentence infringes the totality principle are well known. They were discussed by this court in Kabambi v The State of Western Australia.[92] Those principles have been restated on many occasions and it is unnecessary to repeat them. The question is not what sentence this court would have imposed, but whether the sentence imposed was so unreasonable or plainly unjust that error in the exercise of sentencing discretion can be inferred.
2. The maximum statutory penalty for stealing a motor vehicle is 7 years' imprisonment. The maximum penalty for possessing stolen or unlawfully obtained property is 7 years' imprisonment. The maximum penalty for simple possession of a prohibited drug (methylamphetamine) is 2 years' imprisonment.
3. The cases referred to are not truly comparable and it is not necessary to refer to them in any detail. Furthermore, sentencing standards are established by the decisions of this court and not by first instance sentencing decisions or the decisions of single judges hearing appeals from magistrates. It is sufficient to note that the sentences of 12 months' imprisonment for each of the stealing motor vehicle counts are within the usual range for offences of this type. Sentences of that order are consistent with the sentence imposed in Reid v The State of Western Australia.[93] Sentences for offences of possession of stolen or unlawfully obtained property vary widely, but the sentences here are unremarkable having regard to the facts and the maximum penalty.
4. The offending was serious having regard to the fact that this was not a single offence but a number of offences that indicated a course of conduct. The appellant was in possession of two motor vehicles that he knew were stolen. By admitting to stealing them he was, at least, accepting that he had unlawfully used those vehicles without the consent of the owners.[94] He also possessed cash, a chainsaw and a trailer that had been stolen or unlawfully obtained. All the indications were that the appellant was involved in a criminal enterprise dealing in stolen property. General and personal deterrence are important sentencing factors in respect of such offending.
5. The appellant did not have the benefit of youth or prior good character. Indeed, his criminal record, whilst not aggravating, supported the conclusion that previous sentences had been ineffective, and that personal deterrence was a significant consideration.[95] The appellant's incomplete efforts towards rehabilitation, limited remorse and late pleas of guilty were the only mitigating factors. Those factors did not justify a non-custodial sentence in this case.
6. For the reasons referred to in respect of ground 1, the time spent in custody had been taken into account in the Magistrates Court. Had the appellant not spent that time in custody, he would inevitably have received at least equivalent sentences of imprisonment for the offences of driving whilst disqualified. Even if that fact is taken into account, the sentences imposed in the District Court are not unreasonable or plainly unjust. The sentences imposed are a proper reflection of the seriousness of the offences.
7. In our view, grounds 4 and 5 have no reasonable prospects of success. We would refuse leave in respect of them.

1. We would grant leave in respect of ground 1. We would refuse leave in respect of the other grounds. The appeal should be dismissed.

1. An extension of time is granted.
2. Leave to appeal on ground 1 is granted.
3. Leave to appeal on grounds 2, 3, 4 and 5 is refused.
4. The appeal is dismissed.

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

Research Associate to the Honourable President Buss

[1] Narkle v Hamilton [2008] WASCA 31.

[2] Gullello v The State of Western Australia [2011] WASCA 261 [14] ‑ [22] (McLure P; Buss & Murphy JJA agreeing).

[3] Sami v The State of Western Australia [2011] WASCA 274 [9] (McLure P; Mazza JA agreeing).

[4] Jacomb v The State of Western Australia [2021] WASCA 81 [87] (Mazza, Mitchell & Beech JJA).

[5] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).

[6] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).

[7] Gaskell v The State of Western Australia [2018] WASCA 8 [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).

[8] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 ‑ 67 (Wilson, Deane, Dawson, Toohey & Gaudron JJ).

[9] Mills v The State of Western Australia [2007] WASCA 118 [9] (McLure JA; Steytler P agreeing).

[10] Barnes v The State of Western Australia [2004] WASCA 258 [38] (McLure J).

[11] Fletcher v The State of Western Australia [2014] WASCA 219 [38] (McLure P; Newnes JA agreeing & Mazza JA relevantly agreeing).

[12] Merritt v The State of Western Australia [2019] WASCA 203 [49] ‑ [51] (Buss P & Mazza JA).

[13] MYB v The State of Western Australia [2024] WASCA 53 [88] (Mazza, Mitchell & Vandongen JJA).

[14] Fitzgerald v The State of Western Australia [2024] WASCA 58 [66] (Buss P & Mitchell JA).

[15] Labrook v The State of Western Australia [2016] WASCA 127.

[16] LYN v The State of Western Australia [2019] WASCA 45.

[17] Curry v The State of Western Australia [2022] WASCA 36.

[18] Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999) 10 (Anderson J).

[19] The State of Western Australia v Doodson [2021] WASCA 148.

[20] Le v The State of Western Australia [2022] WASCA 163.

[36] ts, Armadale Magistrates Court, 14 May 2024, 3 - 5.

[37] ts, Armadale Magistrates Court, 14 May 2024, 7.

[38] ts, Armadale Magistrates Court, 14 May 2024, 3.

[39] ts, Armadale Magistrates Court, 14 May 2024, 3.

[40] ts, Armadale Magistrates Court, 14 May 2024, 8.

[41] ts, Armadale Magistrates Court, 14 May 2024, 13.

[42] ts, Armadale Magistrates Court, 14 May 2024, 13 - 14.

[43] ts, Armadale Magistrates Court, 14 May 2024, 14.

[46] ts, Armadale Magistrates Court, 14 May 2024, 2.

[48] ts, Armadale Magistrates Court, 14 May 2024, 8.

[49] ts, Armadale Magistrates Court, 14 May 2024, 13.

[67] LNV v The State of Western Australia [2021] WASCA 203 [49].

[68] Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; Barnes v The State of Western Australia [2004] WASCA 258.

[70] LYN v The State of Western Australia [2019] WASCA 45.

[72] Carr [8] (McLure JA), [74] (Buss JA); Labrook v The State of Western Australia [2016] WASCA 127 [40] (Mitchell J, McLure P & Mazza JA agreeing).

[73] Le v The State of Western Australia [2022] WASCA 163 [91] ‑ [93].

[74] Narkle v Hamilton [2008] WASCA 31 [31] - [32].

[78] Sentencing Act, s 9AA(4)(a).

[79] Sentencing Act, s 9AA(4)(b).

[80] Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508.

[86] Glasgow v Krarup [2016] WASC 418.

[87] Chirimumimba v Smrcek [2018] WASC 302.

[88] The State of Western Australia v Zhuang [2021] WASCA 56.

[89] Jackman v Davidson [2019] WASC 364; 90 MVR 11.

[90] Apathy v The Director of Public Prosecutions [2024] WASC 448.

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

[93] Reid v The State of Western Australia [2010] WASCA 70.