INDICH -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 68 (9 May 2025)

1. The appellant confirmed in the hearing of the appeal that the ground of appeal is intended to allege that the total effective sentence infringed the first limb of the totality principle.
2. The first limb of the totality principle relevantly 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 the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.[3]
3. The general sentencing principles applicable to such a ground of appeal are well established.[4]

1. Sometime before 3.10 am on 21 January 2022, the appellant and his two co‑accused stole a Nissan Pathfinder from a house in Westminster (count 1, stealing a motor vehicle). The keys to that car had been stolen from inside the house (although none of the three co‑accused were charged in relation to the burglary).
2. The three co‑accused and others drove the stolen Nissan Pathfinder to a house in Ellenbrook. They arrived at the Ellenbrook house at approximately 3.10 am on 21 January 2022. Two of them forced entry into the house and stole a set of Ford Falcon car keys. The owner of the Ford Falcon was in the house at the time (count 2, aggravated home burglary and commit an offence).
3. The group stole the Ford Falcon (count 3, stealing a motor vehicle) and drove it and the Nissan Pathfinder in convoy, arriving at the Alexander Heights Shopping Centre at about 3.50 am. The appellant drove the Nissan Pathfinder into the windows between the entrance doors to gain entry into the shopping centre. Damage of approximately $30,000 was caused to the windows and surrounding structures. When inside the shopping centre, the group caused further damage by throwing debris and kicking roller doors in an attempt to break into other parts of the shopping centre. After managing to open the roller door to a jewellery store, they entered the store and stole a till containing $5 cash and some jewellery (count 4, aggravated burglary and commit an offence).
4. The group then left the Alexander Heights Shopping Centre in the Ford Falcon and drove to a house in Kingsley. They arrived at the house in Kingsley at approximately 5.00 am.
5. Two sets of car keys were stolen from inside the house. The keys were used to steal a Hyundai Tucson and another car parked in the driveway. The group abandoned the Ford Falcon (in which they had arrived) nearby.
6. In relation to these events in Kingsley, the appellant was only charged with stealing the Hyundai Tucson (count 8). Later that morning, the appellant and another abandoned the Hyundai Tucson in Ashfield, a suburb approximately 25 minutes away from Kingsley.
7. Between 12.00 am and 12.41 am on 27 January 2022, keys to three vehicles were stolen from inside a house in High Wycombe. The keys were used to steal a Holden Commodore and another car in the carport. In relation to these events, the appellant was only charged with stealing the Holden Commodore (count 12).
8. Between 11.00 pm on 28 January 2022 and 5.00 am on 29 January 2022, the appellant and others broke into a house in Waikiki through the back door. While in the house, they stole four sets of car keys from the kitchen bench. There were people asleep inside the house at the time (count 13, aggravated home burglary and commit an offence). They used one set of stolen keys to steal a Ford Falcon ute (count 14, stealing a motor vehicle).
9. Between 11.00 pm on 29 January 2022 and 4.40 am on 30 January 2022, the group attended a house in Cooloongup and entered the house through an unlocked door. A wallet and some car keys were taken from the kitchen bench. The occupant was home and asleep (count 15, aggravated home burglary and commit an offence). They used the keys to steal a Subaru Impreza (count 16, stealing a motor vehicle).
10. The group drove the stolen Subaru Impreza to a house in Waikiki. At about 4.40 am on 30 January 2022, the group entered the house through a sliding door. They stole car keys from the kitchen bench. The occupants were sleeping but one person woke up to hear the sliding door close (count 17, aggravated home burglary and commit an offence). The group used the keys to steal a Holden Caprice (count 18, stealing a motor vehicle).
11. The group drove the stolen Holden Caprice to a house in Swan View. They arrived at approximately 6.45 am. They entered the house by smashing a window. They ransacked the house looking for items to steal, but were scared away by a security alarm activating (count 19, aggravated home burglary with intent).
12. At about 1.40 am on 31 January 2022, the appellant and others drove the stolen Holden Caprice to a house in Ellenbrook. The appellant acted as a lookout while one or more of the group entered the house and stole car keys. The occupant was asleep in the house at the time (count 20, aggravated home burglary and commit an offence). The group used the stolen keys to steal a Holden Commodore in the driveway (count 21, stealing a motor vehicle).
13. The group drove the stolen Holden Commodore to a house in High Wycombe. At about 2.00 am on 1 February 2022, they forced entry into the house through a side gate. The group stole several sets of car keys from the kitchen bench and a wallet with bank and personal identification cards and $200 from a bedroom. Four people were home and asleep. Two of them woke up while the offenders were in the house. One saw three males in his bedroom, one of whom was holding a shovel (count 22, aggravated home burglary and commit an offence).
14. The group then drove the stolen Holden Commodore to a house in Lesmurdie. At about 2.10 am, they entered the house through a back door into the garage (count 23, aggravated home burglary with intent). They attempted to steal a vintage Ford GT XY (count 24, attempted stealing a motor vehicle). The key was in the ignition, but the car was not driveable. They started to push the car out of the garage but were disturbed when one of the people in the house woke up and shouted at them. They ran away from the house and drove away in the stolen Holden Commodore.
15. They drove to a BP service station in the same suburb. One of the group filled the car up with $69.20 worth of petrol. They drove off without paying (count 25, stealing).
16. They drove the stolen Holden Commodore to a house in Orange Grove and arrived at about 2.42 am. Three people in the group accessed the garage, which was attached to the main house, while the fourth person waited outside. The occupants were asleep in the house. Once inside the garage, the group stole two off‑road motorcycles, a Honda CRF 450R and a Yamaha 450 (counts 26, 27 and 28, aggravated home burglary and commit an offence, and two stealing of motor vehicles). The appellant left the Orange Grove house in the stolen Holden Commodore, while two of the others rode the stolen motorcycles away.
17. Not long afterwards, at about 3.50 am, the group arrived at a house in Byford. They entered the house through a locked sliding door and stole two motorcycle keys. The occupants were home and asleep, although one woke up just after the group left (count 29, aggravated home burglary and commit an offence). The group used the keys to steal a Kawasaki motorcycle parked in the garage (count 30, stealing a motor vehicle).
18. The appellant and others drove the stolen Holden Commodore to another house in Byford, arriving at 4.16 am. They wanted to enter the house to steal a motorcycle that had been advertised on Gumtree. They damaged the garage door in order to enter the garage. They left when someone inside the house woke up and opened the garage door and turned on the front lights (count 31, attempted aggravated home burglary).
19. The appellant was arrested on 3 February 2022 and made admissions.
20. He was indicted with others on a 31‑count indictment. He pleaded guilty to the 25 counts alleged against him. He was sentenced to a total effective sentence of 6 years 2 months' imprisonment.

1. The sentencing judge found the following.
2. The appellant was 19 years old at the time of the offending. This was an error - the appellant was 18 years old at the time.
3. The appellant was 20 years old at the time of sentence.
4. Up until the appellant was 8 years old, he lived with his parents and siblings. During that time, his upbringing was dysfunctional, and was marred by family violence and substance use.[5] Both of his parents were heavy alcohol and methylamphetamine users. The appellant reported that he was frequently exposed to domestic violence in his early childhood and that the police were often called to the family home.
5. The appellant's parents separated when he was 8 years old, and he and his siblings went to live with their grandparents. The appellant reported that his grandparents were good but strict, and that they kept him away from drugs.
6. When the appellant was 11 years old, he started using cannabis and alcohol.[6]
7. The appellant experienced learning difficulties in school, and did not do well. He was suspended on a number of occasions and left school after year 10. He then went to 'Youth Futures' where he continued learning mathematics and literacy.
8. When the appellant was 14 years old, he was diagnosed with foetal alcohol spectrum disorder (FASD).
9. The appellant has never been employed and relies on Centrelink payments. He is single, and has no children.
10. The sentencing judge noted that the appellant had a 'not insignificant' juvenile criminal history and some minor convictions as an adult.[7] His Honour further noted that previous sentences had not deterred the appellant from re‑offending.
11. The sentencing judge found that the appellant's risk of re‑offending was moderate, and 'more so' if he did not take steps to get treatment for his underlying issues.[8] His Honour noted that, although the appellant had family support, he clearly needed treatment for his alcohol, drug and behavioural issues.[9] The sentencing judge noted that the author of the pre‑sentence report had said that the appellant conveyed limited motivation to engage with treatment.
12. The appellant reported to the author of a psychological report that he was in a 'rough headspace' at the time of the offending and was arguing with his father. At the time of the offending, the appellant was bingeing on methylamphetamine.

1. Before the sentencing judge was a FASD report prepared collectively by a paediatrician, neuropsychologist and speech pathologist in March 2018. This report was prepared to conduct an assessment on a possible diagnosis of FASD before the appellant was sentenced in the Children's Court for offences he committed when he was 14 years old. The appellant was diagnosed with FASD, and a possible diagnosis of PTSD was also recorded.
2. The sentencing judge noted that the authors said that, as a result of his FASD, the appellant may lack the ability to sufficiently control his behaviours, may lack awareness of the consequences of certain behaviours, may be vulnerable to re‑offending in the company of others, will have difficulty absorbing and remembering information, and may do things which place him at risk of participating in behaviour without fully understanding the nature and consequences of that participation or those behaviours.[10]
3. In the report, the authors said that the implications of the appellant's FASD were, among other things:[11]
   • Deon's self‑regulation difficulties suggests he may lack ability to sufficiently control his emotional and subsequent behaviours. He may also lack awareness of the consequences of certain behaviours.
   • Deon ... may be vulnerable to reoffend in the company of others, especially if those others are engaging in antisocial and/or criminal activities.
   • Deon will likely struggle to remember information, even if it is presented repeatedly. This means that he will require assistance and reminders for any conditions or counselling appointments.
   • ...
   • Deon's alleged substance use places him at risk of substance- or alcohol‑fuelled antisocial behaviour, and/or participat[ing] in such behaviours without an adequate level of awareness.
   • Deon has significant receptive language impairment. He may agree to things even if he does not completely understand [them], which places him at risk of participating in behaviours without understanding the nature and consequences of them.
4. Also before the sentencing judge was a psychological report prepared by Dr Dylan Galloghly, a psychologist engaged by the Department of Justice, dated 18 April 2024.
5. Dr Galloghly noted that he had not been able to access medical records (including the FASD report) or prison reports.[12]
6. Dr Galloghly reported that the appellant's score on the Montreal Cognitive Assessment was just below the normal range,[13] indicating possible cognitive functioning/impairment issues. He said that the appellant displayed weakness in a mathematical attentional task and a short‑term memory task.
7. Dr Galloghly said that the background factors associated with the offending included the appellant's experience of trauma and neglect as a child, including early exposure to substance abuse and violence. Further, his FASD 'most likely impairs his learning, attentional and intellectual functioning'.[14] Dr Galloghly said that the appellant's reported history of being easily led by others with non‑assertive and acquiescent behaviour was likely due to his FASD.
8. Dr Galloghly said that the appellant's risk of re‑offending was moderate.

Seriousness of offending (and aggravating factors)

1. The sentencing judge assessed the appellant's offending as being 'within the lower part of the highest range of offending',[15] describing it as 'extremely serious'.[16]
2. The sentencing judge identified several aggravating factors. The offending targeted residential properties, and was done at a time when the occupants could be expected to be home and asleep. Further, entry into the homes was often obtained by force. The appellant stole personal items of value such as keys and wallets. He was in company with others. He was also intoxicated, so the potential for someone to be harmed was significant.[17]

1. The sentencing judge next identified numerous mitigating factors.
2. The first was the appellant's pleas of guilty. His Honour reduced the individual sentences by 15% under s 9AA of the Sentencing Act 1995 (WA).
3. Further mitigating factors were the appellant's youth, his dysfunctional upbringing, his victim empathy and remorse, and his cooperation with police.
4. The final matter of mitigation was the appellant's FASD diagnosis, and how that had impacted the appellant's attentional and intellectual functioning and ability to control his behaviour. The sentencing judge said that the diagnosis significantly affected the appellant's moral culpability for the offending.[18] His Honour also found, in effect, that the appellant's FASD moderated the weight to be given to general and specific deterrence.[19]

1. A mandatory minimum penalty of 2 years' imprisonment applied to some of the counts by operation of the 'repeat offender' provisions of the Criminal Code Act Compilation Act 1913 (WA).[20] Counts 2 and 13 were the appellant's first and second convictions for home burglary as an adult. The mandatory minimum penalty applied to the third and subsequent counts of home burglary (counts 15, 17, 19, 20, 22, 23, 26, and 29).
2. The individual sentences imposed, and the maximum (and minimum) penalties, were as follows.[21]

1. The total effective sentence was 6 years 2 months' imprisonment. It was backdated to 23 December 2022 to take into account the time the appellant had spent in custody on remand. The appellant was made eligible for parole.

1. In his written submissions, the appellant refers to the facts and sentences of eight cases by way of comparison: Eldridge v The State of Western Australia;[22] Kickett v The State of Western Australia;[23] Jackamarra v The State of Western Australia;[24] The State of Western Australia v Quartermaine;[25] The State of Western Australia v Richards;[26] The State of Western Australia v Wilkins;[27] Robson v The State of Western Australia;[28] and Panicciari v The State of Western Australia.[29] In those cases, the sentences ranged from 2 years 3 months' imprisonment to 6 years' immediate imprisonment.
2. Four of the cases involved a sentence for a single offence, and are therefore not of any value in considering whether the total sentence imposed on the appellant for 25 offences committed over a 12‑day period infringed the totality principle.
3. The case of Wilkins involved an aggravated home burglary and attempted aggravated armed robbery committed at the same time against the same victim. It also is of no value in considering whether the total sentence imposed on the appellant for 25 offences committed over a 12‑day period infringed the totality principle.
4. In Richards, the offender was sentenced for three offences, including one aggravated home burglary, which arose from a single series of events, and for an offence of possession of methylamphetamine with intent to sell or supply. The total effective sentence imposed on him was 3 years 4 months' imprisonment, which included a term of 2 years' imprisonment for the aggravated home burglary. This court allowed a State appeal against that individual sentence, on the grounds it was manifestly inadequate. The court substituted a term of 4 years 6 months' imprisonment for the aggravated home burglary, and substituted a total effective sentence of 5 years 10 months' imprisonment.
5. The offender in Quartermaine was sentenced for six offences, including three home burglaries. While he did not offend in company, each burglary was aggravated by the occupants being home. In the first burglary, he stole a shoulder bag and car keys (count 1), and then stole the car (count 2). In the second burglary (count 3), he was disturbed by an occupant, with whom he engaged in a scuffle and assaulted (count 4, assault occasioning bodily harm). In the third burglary (count 5), he stole car keys (count 6). He was disturbed by an occupant and ran away.
6. Mr Quartermaine was a 'repeat offender' for the third burglary, and so was subject to a mandatory 2‑year minimum sentence for that offence. He had a significant criminal record for offences which included burglary offences. He was 22 years old at the time of the offending, was remorseful and had had a difficult upbringing, marred by domestic violence and substance abuse. He pleaded guilty at the first reasonable opportunity and received a discount of 25%. For the three burglary offences, he was sentenced to 2 years, 2 years 6 months, and 2 years' immediate imprisonment respectively. The total effective sentence was 3 years' immediate imprisonment. The State appealed on the grounds that the individual sentences for the burglaries, and the total effective sentence, were manifestly inadequate. The court was satisfied that the sentences imposed for the second and third burglaries, and the total effective sentence, were manifestly inadequate. In resentencing Mr Quartermaine, the court imposed a sentence of 12 months' immediate imprisonment (discounted from 2 years 8 months' immediate imprisonment for totality) in relation to the first burglary, 4 years' immediate imprisonment for the second burglary, and 3 years 6 months' immediate imprisonment for the third burglary. The total effective sentence imposed by the court was 5 years' immediate imprisonment.
7. The offender in Jackamarra was convicted of six home burglary offences, two of which were aggravated by being committed in company. He was sentenced to a total effective sentence of 6 years' imprisonment. The burglary offences involved him breaking into houses and stealing items of value. At the time of committing five of the burglary offences (all but the first), he was on a community‑based order. He was on bail, or at large having breached his bail, when he committed five of the burglaries (all but the second).
8. Mr Jackamarra had an extensive criminal history in the Children's Court, which included a number of aggravated home burglaries, but he had not previously been sentenced to imprisonment. He was 22 years old at the date of sentence and grew up in a home where alcohol and physical violence were prevalent. He received a 25% discount for his early plea and was remorseful. The sentencing judge found him to have good prospects of rehabilitation. Mr Jackamarra was a 'repeat offender' and subject to mandatory minimum penalties for some of the offences. The court said that, while not in the 'worst category', a number of the burglaries were very serious. The court upheld the sentence imposed by the sentencing judge. It said that, having regard to the mitigating circumstances, the total effective sentence of 6 years' imprisonment was high, but was not unreasonable or plainly unjust.
9. The circumstances of the offending and the mitigating factors in Richards, Quartermaine and Jackamarra were very different to this case. In any event, the sentences imposed in those cases do not suggest that the sentence in this case of 6 years 2 months' imprisonment, imposed on the appellant for 25 offences (including 10 aggravated home burglaries and one attempted aggravated home burglary), breached the totality principle.
10. The respondent referred to a further five cases: Cameron v The State of Western Australia;[30] Anderson v The State of Western Australia;[31] Worthington v The State of Western Australia;[32] Burrows v The State of Western Australia;[33] and Pennetta v The State of Western Australia.[34] In those cases, the sentences ranged from 4 years' immediate imprisonment to 7 years' imprisonment. Only two of the cases involved a similar level of offending to this case - Worthington and Pennetta. In those two cases, the court dismissed the offender's appeal against sentence. While the offenders in those two cases had less by way of mitigation than the appellant, the total effective sentences upheld were 6 years 6 months' imprisonment, and 7 years' imprisonment respectively.
11. The cases cited by the parties illustrate that there remains no tariff for home burglary. This is not surprising given the wide variation of circumstances in which such offences are committed and of the personal circumstances of those who commit them.

The sentence did not infringe the totality principle

1. The sentence imposed upon the appellant in this case did not infringe the first limb of the totality principle.
2. There were significant mitigating factors in this case. In particular, the pleas of guilty, the appellant's youth, and the impact of his mental health issues and deprived childhood.
3. The appellant concedes that both mental health and a deprived childhood may be 'double‑edged swords'. On the one hand, they may indicate that a lower sentence should be imposed because, for example, the offender's moral culpability was reduced. On the other hand, they may indicate that there is an increased risk that the offender will offend again, and that greater weight should be given to the need to protect the community from that risk.[35]
4. The appellant's deprived childhood and mental health issues were mitigating. The sentencing judge found, in effect, that they had impaired the appellant's ability to control himself, his capacity to understand consequences, and had made him vulnerable to being led by others.[36] His Honour found that, as a result, the appellant's moral culpability for the offending was reduced, as was the weight to be given to personal and general deterrence.
5. However, the sentencing judge also found, in effect, that the nature of the appellant's impairments was such that there was an increased risk that he would offend again. The sentencing judge found that the appellant's risk of re‑offending was moderate, and 'more so' if he did not take steps to get treatment for his drug and behavioural issues.[37]
6. Accordingly, while the appellant's deprived childhood and mental health issues were mitigating, they increased the significance of community protection as a sentencing consideration.
7. Further, the maximum penalties, and the mandatory minimum penalties that applied to eight of the aggravated home burglaries, demonstrate Parliament's view of the gravity of these offences. Given the unchallenged finding of the sentencing judge that the appellant's risk of re‑offending was moderate, and 'more so' if he did not take steps to get treatment, the need to protect the community from that risk is to be accorded significant weight.
8. The sentencing judge assessed the appellant's offending as being 'within the lower part of the highest range of offending',[38] describing it as 'extremely serious'.[39] The offending included 10 aggravated home burglaries and one attempted aggravated burglary. The appellant was in company and knew, or ought to have known, that someone was home at the time.
9. The appellant is very young. He had a deprived childhood and has FASD, through no fault of his own. Regrettably, however, the nature of the offending and the need to protect the community renders inappropriate any sentence other than a substantial term of immediate imprisonment. The offending was serious and sustained, and eight of the aggravated home burglaries required a minimum of 2 years' immediate imprisonment to be imposed.
10. Having regard to all relevant facts and circumstances, all relevant sentencing factors and the total effective sentences imposed in the cases said to be comparable, the total effective sentence bore a proper relationship to the overall criminality involved in all the offences, viewed in their entirety. The total effective sentence was within the range reasonably open to the sentencing judge on a proper exercise of the sentencing discretion. Error should not be implied or inferred from the sentencing outcome in relation to the total effective sentence. The first limb of the totality principle was not infringed.
11. While we would grant leave to appeal, we would dismiss the appeal.

1. For the above reasons, we would make the following orders:
   1. Leave to appeal is granted.
   2. The appeal is dismissed.

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

[1] Description of the sentencing judge - WAB 74.

[3] Kabambi v The State of Western Australia [2019] WASCA 44 [21.3].

[6] This finding was made by the sentencing judge (WAB 77), and is not challenged (see the appellant's submissions on appeal, WAB 10). We note that there was other material in which the appellant had said it began when he was 13 years old, coinciding with the time the family moved to Perth.

[11] PATCHES Multidisciplinary Foetal Alcohol Spectrum Disorder (FASD) Assessment Report dated 19 March 2018 (FASD report) [5.3].

[12] Psychological Report for Court dated 18 April 2024 (Galloghly report), 2 (Limitations to the Assessment), 4 [12].

[13] The appellant scored 25/30. The normal range is 26 ‑ 30.

[21] Although the sentencing judge made errors in describing some of the offences, the appellant does not suggest any errors were material.

[22] Eldridge v The State of Western Australia [2020] WASCA 66.

[23] Kickett v The State of Western Australia [2019] WASCA 147.

[24] Jackamarra v The State of Western Australia [2019] WASCA 150.

[25] The State of Western Australia v Quartermaine [2021] WASCA 145.

[26] The State of Western Australia v Richards [2020] WASCA 129.

[27] The State of Western Australia v Wilkins [2020] WASCA 149.

[28] Robson v The State of Western Australia [2020] WASCA 153.

[29] Panicciari v The State of Western Australia [2020] WASCA 154.

[30] Cameron v The State of Western Australia [2023] WASCA 149.

[31] Anderson v The State of Western Australia [2014] WASCA 167.

[32] Worthington v The State of Western Australia [2016] WASCA 57.

[33] Burrows v The State of Western Australia [2014] WASCA 147.

[34] Pennetta v The State of Western Australia [2013] WASCA 234.

[35] See Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 472, 476 ‑ 477; SKL v The State of Western Australia [2024] WASCA 32 [24] ‑ [29]; Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [45].