KITTO -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 161 (25 October 2019)

1. The appeal against conviction is, in substance, on the basis that prejudicial material, to the effect that Mr Kitto was in custody, was erroneously placed before the jury. The prejudicial material involved audio evidence of a telephone call made by the co‑accused, Mr Balestra, from prison on 23 November 2016. The telephone call was to a woman referred to as 'JS' in which Mr Balestra made a statement from which an inference could likely be drawn that Mr Kitto was in custody at that time. The trial judge had directed this part of the recording to be edited out of the version to be played to the jury. Inadvertently, a recording without the edit was played to the jury.
2. The question which arises in this appeal is whether that mistake involved a 'miscarriage of justice' within the meaning of s 30(3)(c) of the Criminal Appeals Act 2004 (WA). It will have constituted a miscarriage of justice if it constituted a departure from a trial according to law or if it resulted in an unfair trial.
3. The trial against Mr Kitto did not involve any departure from a trial according to law. Mr Balestra's recorded telephone call was never part of the evidence against Mr Kitto, and the jury was so instructed from the outset. The playing of that recording as part of the State's case against Mr Balestra did not involve any departure from the rules of evidence or procedure in Mr Kitto's trial. It did not involve Mr Kitto being tried otherwise than according to law.
4. The statement in the recorded telephone call which indicated that Mr Kitto was in prison had the potential to make the trial unfair to Mr Kitto. That risk of unfairness was a potential miscarriage of justice. That risk was addressed by the trial judge's directions and other steps taken in the trial. The taking of those steps in the circumstances of this case meant that there was no perceptible risk that the jury's verdicts might have been affected by the inadvertent playing of that part of the recording. Such risk having been removed, there was no miscarriage of justice resulting from unfairness in the trial.

1. The appeal against sentence is to the effect that the total effective sentence of 7 years 8 months' imprisonment infringed the first limb of the totality principle.
2. While the total effective sentence was high, it can properly be regarded as reflecting the total criminality involved in all of the offending having regard to all of the circumstances, including those personal to Mr Kitto. The sentence imposed by the trial judge was not unreasonable or plainly unjust. Error cannot be inferred from the outcome of the exercise of the sentencing discretion.

1. Accordingly, for the reasons explained below and summarised above, none of the grounds of appeal is established. The appeals should be dismissed.

1. The judge, in his sentencing remarks, made the following findings.[2]
2. Sometime shortly prior to 11 August 2016, Mr Kitto, Mr O'Brien and Mr Balestra (collectively the accused), together with Mr Clarke, formed a plan to commit a ram‑raid offence at a shopping centre, for the purpose of stealing an ANZ automatic teller machine (ATM) situated inside the shopping centre. As part of the plan, a decision was made to steal a motor vehicle to use in the commission of the ram‑raid. On Wednesday, 10 August 2016 and Thursday, 11 August 2016, one or more of the accused attended a caryard in Wangara, and an attempt was made to steal a Nissan Navara vehicle. The attempt was unsuccessful. However, the accused turned their attention to another Nissan Navara vehicle (the Nissan). The Nissan was successfully started by hotwiring the ignition, and was driven out of the yard. The Nissan had a bull bar affixed to its front.
3. At trial, the State accepted that it was unable to prove which of the accused actually attended the caryard to steal the Nissan. The State's case at trial was that each of the accused stole the Nissan by unlawfully using it without the consent of the owner in the commission of the ram‑raid offence. Each of the accused was convicted on one offence of stealing the Nissan (count 1).
4. On 11 August 2016 at around 7.30 am, the accused (with Mr Clarke) attended the shopping centre. They entered the shopping centre ostensibly to buy something to eat and drink from the bakery store inside, but the real purpose was to have a close‑up look at the ATM that they were planning to steal. That is particularly what Mr Kitto and Mr O'Brien did.
5. As part of the plan to commit the ram‑raid, the accused decided that they should obtain a trailer that could be used to load the stolen ATM onto after removing it from the shopping centre. Accordingly, late in the evening on 11 August 2016, Mr Balestra drove his father's Toyota LandCruiser (the LandCruiser) to an address in Joondalup, in the front yard of which was an enclosed trailer. The trailer was owned by Kennards Hire. The trailer was being rented by the occupier at the address in Joondalup. He was not at home. The trailer was loaded with furniture and other items. Mr Balestra attached the trailer to the LandCruiser and towed it away. The trailer was then taken to an unknown location. The furniture and other items on the trailer were unloaded and disposed of, and those items were never recovered.
6. Mr Balestra was convicted of stealing the trailer, in the manner described above, and using it in the commission of the ram‑raid offence in a manner inconsistent with the rights of the owner of the trailer, with the intention of permanently depriving the owner of the trailer, and thereby stole the trailer by fraudulently converting it to his use (count 2).
7. Mr Kitto and Mr O'Brien, by their conduct in using the trailer in the commission of the ram‑raid offence, also committed a fraudulent conversion of the trailer, and were convicted on that basis (also count 2).
8. Shortly after midnight (ie, in the early hours of 12 August 2016), the accused and Mr Clarke drove to the shopping centre in the Nissan and in the LandCruiser. The LandCruiser was used to tow the trailer. The accused dressed in ways designed to conceal their identities.
9. Once in the shopping centre, one of the accused (most likely Mr Kitto, but it was unnecessary to make a finding on that point) drove the Nissan through the glass front of a vacant shop next to the entrance to the shopping centre, then into the shopping centre itself. The damage caused to the shopping centre formed the basis of the offence the subject of count 3, of which all the accused were convicted.
10. Once inside the shopping centre, the Nissan was driven to the ATM and was used to ram the ATM until it was finally forced from its foundations. Once forced from its foundations, the accused and Mr Clarke used snatch straps to attach the ATM to the towbar of the Nissan, and the Nissan was then used to drag the ATM out of the shopping centre. Once outside, it was loaded onto the trailer. The Nissan was used to push the ATM up the trailer's ramp and onto the trailer. The accused then drove away. The ATM had $275,100 in its safe compartment.
11. The entry into the shopping centre and the theft of the ATM constituted the burglary offence the subject of count 4. The theft of the money inside the ATM constituted the stealing offence the subject of count 5.
12. The Nissan and the LandCruiser, with the trailer attached, were driven from the shopping centre in convoy. The Nissan was driven a short distance from the shopping centre and set alight. It was destroyed by the fire. It was set on fire to remove the possibility of any forensic evidence being discovered. Each of the accused was convicted of setting fire to the Nissan, or at least assisting or encouraging one or more of the accused to set the Nissan on fire. That constituted the offence the subject of count 6.
13. Having set the Nissan on fire, the accused and Mr Clarke got into the LandCruiser and drove to an unknown location. The safe was removed from the outer shell of the ATM and subsequently opened. The cash inside was removed and distributed amongst the accused and Mr Clarke.
14. Once the ATM had been removed and the safe extracted from it, Mr Balestra and Mr Clarke used the LandCruiser to tow the trailer to some bushland in Neerabup. Mr Balestra and Mr Clarke then set fire to the trailer, which was destroyed by the fire. This was the offence the subject of count 7, for which Mr Balestra was convicted.
15. The purpose of setting the trailer on fire was to destroy any forensic evidence. As it transpired, those endeavours were unsuccessful. The fingerprints of Mr Balestra and Mr Clarke were found on the outside of the trailer ramp. The judge was satisfied beyond reasonable doubt that certain pieces of an ANZ ATM found at the scene of the burnt‑out trailer were from the ATM stolen from the shopping centre that night.
16. Each of the accused was arrested on 16 November 2016. Mr O'Brien and Mr Balestra answered some questions asked by the police during the execution of the search warrants, but neither participated in any formal interview.
17. Mr Kitto participated in a formal interview, and denied his involvement in the commission of the offences.

1. The trial ran from 15 ‑ 19 October, 22 ‑ 26 October and 29 October ‑ 2 November 2018.

1. On 22 October 2018, the State foreshadowed the tender of recordings of certain telephone calls made by Mr Balestra from Hakea Prison on 23 November 2016. Part of the evidence proposed to be tendered included a record of Mr Balestra's telephone discussion with a person described as 'JS'. It included the following:[3]
   1. Um, no, I need to ask you about Andrew Clark.
   2. What about Andrew Clark?
   3. Um, I, I think he's in with, um - - -
   4. Gazza?
   5. - - - um your sister's boyfriend.
   6. Hey?
   7. Yeah.
   8. Well - - -
   9. Has he, has he got six‑oh-two-five, um, tattooed on his knuckles?
   10. No. Don't know.
   11. And he's got a brother Michael that just died?
   12. I don't know. I'll, I'll go speak to Darryl now and find out.
   13. Okay. If you can find out that, ah - - -
   14. [indistinct]
   15. - - - otherwise he's in the same shit, he's in the same, um, like area as him.
   16. Oh.
2. In an exchange in the absence of with the jury, there was an objection by Mr Kitto's counsel to the tender of that evidence insofar as it contained the italicised words. Counsel for Mr Kitto said, in effect, that the jury would likely infer it to be a reference to Mr Kitto being in custody, and said:[4]

I would submit that the prejudicial effect of including that in there is something that is going to be very difficult to cure by direction, that once the jury hears these comments that there's things in relation to my client that they might see that there's something that's occurred that's not being - there's no further evidence in relation to that. And as I said, it's just simply something that it would be very difficult to cure by a direction and that the minds of the jury would be affected by reading these particular comments[.]

1. The judge asked counsel for the State whether the relevance of it was 'the association between [Mr Balestra] and [Mr Kitto]'.[5] There was then the following exchange:[6]

[COUNSEL FOR THE STATE]: Yes, and that they're trying to work out why they're there, who has provided the police with names.

DERRICK J: Yes, but that's only admissible, though, but that can only be admissible against Mr Balestra, can't it?

[COUNSEL FOR THE STATE]: That's correct.

DERRICK J: And there's other evidence, isn't there, that shows the association between Mr Balestra and Mr Kitto?

[COUNSEL FOR THE STATE]: Yes.

DERRICK J: Is there other material, leaving aside the other objected to portion which I'll come to in a moment, is there other material that shows a connection between Mr Balestra and Mr Kitto?

[COUNSEL FOR THE STATE]: Yes, yes.

1. The judge then made the following ruling on 22 October 2018:[7]

DERRICK J: Yes, well, in those circumstances my view is that while I can see there is some marginal relevance to that exchange it seems to me that it's a clear indication that [Mr Kitto] is in custody as well. My view is that the relevance of that exchange is outweighed by its potential prejudicial effect. So my ruling is that that exchange is inadmissible and should come out of the recording.

1. On 25 October 2018, Detective Talbert gave evidence that Mr Balestra had been arrested on 16 November 2016, and that Mr Balestra remained in custody for at least the duration of November 2016.[8]
2. Detective Talbert was then asked about the telephone calls made by Mr Balestra from Hakea Prison:[9]

Okay. Did you request, from Hakea Prison, prison calls made by Mr Balestra for the month of November 2016?---I did.

And did you receive from - was that done under an order to produce?---That's correct, yes.

And did Hakea Prison provide you with a disc containing telephone calls?---Correct.

And did they also provide you with a log showing the numbers that had been called and the date of the call?---That's correct. Similar to the last one.

Same as the - your Honour, what I'm going to do is play - there's a number of calls.

DERRICK J: Yes.

[COUNSEL FOR THE STATE]: I'm going to play them, provide the members of the jury with an edited transcript.

DERRICK J: Yes.

1. Counsel for the State informed the court that the calls had been edited with the agreement of defence counsel. There was a request by counsel for Mr O'Brien that the court provide a warning to the jury as to how the evidence was to be used before the calls were played.[10]
2. The judge then indicated that he would give directions about this topic at the end of the trial as well, but in the meantime, directed the jury to the effect that out of court statements, and in particular what was said by Mr Balestra in the recorded telephone calls, was only evidence against him and it could not be used in deciding whether the State had proved its case against (relevantly) Mr Kitto.[11]
3. An audio recording of the telephone calls of Mr Balestra was then played at around 3.00 pm on 25 October 2018.[12] An edited transcript of the telephone calls was provided to the jury members.[13]
4. It was evident to counsel for the prosecution that the audio recording of the telephone calls of Mr Balestra included that part of the telephone call referred to in [30] above, in which Mr Balestra said, 'I don't know. I'll, I'll go speak to Darryl now an[14]find out'.14 Counsel for the prosecution apologised. The jury was th[15] sent out.15
5. The edited transcript, provided to the jury, did not contain those words.[16]

Mr Kitto's application to abort the trial and the judge's ruling

1. There followed an application by counsel for Mr Kitto, at about 3.48 pm on 25 October 2018 in the absence of the jury, to 'abort the trial'.[17]
2. The judge dealt with the application at about 4.00 pm in the absence of the jury. The judge referred to his earlier ruling (see [33] abov[18] and said:18

I confess to having had some marginal difficulty following precisely the basis for that submission, but as I understand it, the submission is really put on two bases: first, it is said that an irremediable prejudice has occurred, because what the jury has heard may cause them to conclude, or speculate, or think that in fact what occurred was that Mr Balestra did go and speak to Mr Kitto about the man, Mr Clarke, to ascertain if the man with the numbers 6025 on his knuckles was Mr Clarke.

However, I've already directed the jury in strong terms immediately before this recording was played that what Mr Balestra says - or said in the phone conversations is not evidence that can in any way be used in considering whether the State has proved its case against Mr Kitto. I will give that direction again at the end of the trial.

It must in my view be assumed - and, in fact, consistently with the Court of Appeal decisions it must be assumed that the jury will faithfully follow the directions of law that I give to them.

In those circumstances I do not see the first limb of the prejudice which I understand is being identified on Mr Kitto's behalf as being a prejudice that actually arises, or that in any event will not be - has not already been dealt with by the direction that I've given and will not again be dealt with by the direction I will give at the end of the trial.

The second basis on which it is put that Mr Kitto is irremediably prejudiced by the evidence that the jury have heard is that the jury will now know that Mr Kitto is in custody, because Mr Balestra says he'll go and speak to Mr Kitto and the jury know that Mr Balestra is in custody.

I don't think that that prejudice is one that cannot be adequately remedied. The jury know that Mr Kitto was arrested on 16 August - 16 November, I should say. This conversation occurred on 23 November. In any event, I'm going to have to give the direction to the jury at some point that they must not draw any inference adverse to Mr Balestra because he is in custody.

I will now give a similar direction in respect of Mr Kitto. And in my view that direction will adequately cure any prejudice that might flow to Mr Kitto by reason of the jury having now heard that he was in custody at the same time as Mr Balestra.

If necessary, and if counsel submit that I should, I can actually as part of my directions make specific reference to the fact that what Mr Balestra said is not evidence that goes to prove against Mr Kitto that Mr Balestra did actually go and speak to him to ascertain if the man with the number 6025 on his knuckles was Mr Clarke.

So at the end of the day, the question for me is whether the fact that the evidence has been adduced contrary to my ruling is of such - so prejudicial that it will now prevent Mr Kitto having a fair trial. And for the reasons that I've stated, I do not think it will. I think it can be adequately dealt with by a direction. And so the application for the trial to be aborted in respect of Mr Kitto is refused. (emphasis added)

1. At 4.20 pm on 25 October 2018, the jury returned and the judge said:[19]

DERRICK J: Thank you again for your patience, ladies and gentlemen. Can I say this to you? I realise today and the last couple of days have been quite disruptive. You have been asked to go into the jury room a number of occasions. Unfortunately that just sometimes happens in criminal trials.

Remember I explained to you at the beginning of the trial that you are the judges of the facts and I am the judge of the law and I have to deal with legal issues sometimes. And it does take some time. It's important though that you don't spend time speculating about what's happening when I'm dealing with legal issues. It just doesn't need to concern you.

You're going to have enough work to do focusing on the evidence and the facts. So don't speculate about what might or might not be occurring every time I ask you to go to the jury room. They're just matters of law. I need to deal with them and when I've dealt with them I'll bring you back into court.

I've dealt with the issue. But obviously it's too late to keep going now. So I'm going to let you go for the day. I was initially going to push my luck and ask you to start at 9.30 tomorrow. And I say push my luck because I'm hesitant to ask you to start early when I keep having to send you out of court. (emphasis added)

1. Subsequently, the judge invited counsel to consider a direction that he proposed to give to the jury about the matter:[20]

DERRICK J: Thank you, counsel. I just wanted to take that opportunity in case we move straight to the recording before any further break. I propose to say to the jury this after the recording - no, before the recording is commenced to be played.

I'll say to the jury that, 'Yesterday the State commenced to play the recording of a phone call made by Mr Balestra from prison on 23 November 2016. As I told you, the recording had been edited to remove irrelevant material. As the recording was being played, counsel realised that the editing had not been done properly.

This morning the correctly edited version of the recording will be played. It is this version that is the evidence and will be tendered. It is this version that is the evidence. You should therefore disregard the recording you heard played yesterday. You should not have regard to that recording in your deliberations. You should not speculate about what has been edited from the recording.

As I told you yesterday, the material edited is irrelevant material and has been removed by agreement between the parties. And you must draw no adverse inference against any of the parties by reason of the editing having occurred ...

[COUNSEL FOR THE STATE]: Yes. I respectfully agree, your Honour.

DERRICK J: Mr Fort [counsel for Mr Kitto]?

[COUNSEL FOR MR KITTO]: Yes, your Honour. I think the most important aspect of that is that last comment that they're not to draw any adverse inferences. Thank you. (emphasis added)

1. When evidence resumed at about 12.20 pm on 26 October 2018, the judge gave the following direction to the jury:[21]

Just before that starts then. So, members of the jury, you will remember that yesterday afternoon the State commenced to play the recording of a phone call that was made by Mr Balestra while he was in custody, that phone call having been made on 12 November 2016 [sic].

You'll remember before that process started I told you that the recordings of the phone calls had been edited by agreement to remove irrelevant material. As that recording was being played yesterday, counsel realised that it had not been edited properly; that is, some of the irrelevant material that the parties had agreed should be edited out of the recording had not, in fact, been edited.

So what is going to happen now is that the correctly edited version of the recording is about to be played to you. And, members of the jury, it is that version, the correctly edited version that is about to be played to you this morning that is going to be the evidence. It is that recording that is going to be tendered as an exhibit. So it's that recording you will have in the jury room with you, and it's that recording that you are permitted to take into account when ultimately you come to consider your verdicts.

You'll hear as it's played that the vast majority of what you've already heard is going to be repeated. It just got to a certain point yesterday where counsel - all counsel realised that some of the material hadn't been edited. So when you start listening to it, you may not even realise that there is any difference.

It follows from what I've said that you must disregard - if, in fact, you can remember what you heard yesterday, you must disregard what was played to you yesterday. You should not have regard to the recording as it was played to you yesterday as part of your deliberations. So, as I've said, the evidence is what is about to be played now.

And I also want to say to you again don't waste your time speculating about the nature of any material that has been edited from the recordings. As I've told you, it is irrelevant material. So you shouldn't be wondering or worrying about what it might have been. It's irrelevant. Don't concern yourself with that. Don't speculate about it.

And again I want to repeat what I said to you yesterday, is that this editing of recordings of interviews and recordings of phone calls is a routine procedure. It happens very routinely in criminal trials, and it's done by agreement between the parties, as I've said to you. And therefore it is important that you remember that you mustn't draw any inference adverse to any of the accused men, or for that matter the State by reason of the fact that that routine process has been adopted in this case. (emphasis added)

1. Other matters arose in the course of the trial which the State in this appeal contends are relevant to the question raised by the appeal against conviction. The State refers to:[22]
   1. Evidence in Mr Kitto's record of interview to the effect that he had vehicles seized by police.[23]
   2. Evidence that Mr Kitto had given a false name to police when a vehicle he was in was stopped in the early hours of 9 August 2016, the acceptance of that the evidence was false by Mr Kitto's counsel, and the reference to it in the judge's summing up.[24]
   3. Counsel for Mr Kitto's address to the jury, which included:[25]

We don't have cars seized and steal - seized and released by the police in the way that Mr Kitto appears to have done. It's probably no surprise to any of you members of the jury, if I say to you that Mr Kitto is not an angel. He is not the boy next door.

1. Counsel for Mr Kitto's address to the jury to the effect that Mr Kitto had had cars impounded on multiple occasions,[26] and had 'committed a criminal offence' by putting 'number plates on a car that shouldn't have been on there'.[27]
2. Counsel for Mr Kitto's comments in a similar vein addressing the jury when he said:[28]

He might have given a false name to police. He might have had cars seized on multiple occasions. Yes, he might do these strange things like borrowing vehicles, motorcycles, and having $8,000 deposits and things and being worried about people coming back and taking things from his house. That's not what you're judging him on.

1. The evidence that emerged in counsel for Mr Kitto's cross‑examination of Senior Constable Emanuele to the effect that police had listened to calls made by Mr Kitto whilst he was in prison.[29]
2. Evidence that Mr Kitto was arrested on the same day as Mr Balestra, 16 November 2016, and had items seized by police, including his phone.[30]

1. The judge said, in his summing up to the jury on the afternoon of 1 November 2018:[31]

You also have before you the evidence of the recording of a number of phone calls that took place between Mr Balestra and others during the period 23 November 2016 to 27 November 2016. At the time of the phone calls Mr Balestra was being held in prison which is the reason why the calls were recorded. Again the recording is an exhibit. It will be in the jury room with you.

The position so far as these calls are concerned is exactly the same as the position in relation to the recording of Mr O'Brien's call. So what Mr Balestra said during the phone calls is part of the evidence that you are to consider in this case in deciding whether or not the State has proved a charge against him beyond reasonable doubt. What Mr Balestra said during the phone calls is not part of the evidence that you are to consider in deciding the case against Mr Kitto or Mr O'Brien. Statements made by Mr Balestra during his phone conversations are not evidence that is admissible against Mr Kitto or Mr O'Brien.

Statements made by Mr Balestra during his phone calls are not evidence that can be taken into account by you in deciding if the State has proved the charge against Mr Kitto or Mr O'Brien. You must disregard anything said by Mr Balestra during his phone conversations in deciding if the State has proved a charge or charges against Mr Kitto or Mr O'Brien beyond a reasonable doubt.

The recordings of the phone calls engaged in by Mr O'Brien - I should say the recording of the phone call engaged in by Mr O'Brien and the phone calls engaged in by Mr Balestra have been edited to remove irrelevant material. As you heard during the trial that was done by agreement between the State and the two accused men. That is a routine procedure. You must not draw any inference against the State, Mr O'Brien or Mr Balestra from the removal of the irrelevant material in that routine way.

You have been provided with transcripts of the recordings of the phone calls to which I've just referred involving Mr O'Brien and Mr Balestra. The transcripts are not evidence. They are not independent evidence of the telephone conversations. The evidence of the telephone conversations are the recordings of the conversations contained on the discs.

The State only provide the transcripts of the conversations to you with the agreement of the defence and with my permission to assist you in your perception and understanding of the evidence of the conversations comprised of the recording. You cannot use the transcripts as a substitute for the recordings of the conversations. You must not rely on the transcript of the recording of a conversation or a portion of it if you are not satisfied that the transcript or the portion of the transcript correctly sets out what you heard in the recording. (emphasis added)

Members of the jury, as I've already pointed out, at the time of the telephone conversations involving Mr Balestra to which I have referred Mr Balestra was being held in custody, in prison. In addition, in the course of giving his evidence Detective Emanuele, in responding to some questions asked of him in cross-examination by [counsel for Mr Kitto], made some passing references to prison calls made by Mr Kitto. Therefore it would appear from this evidence that Mr Kitto was at some point in time after his arrest held in custody.

You know on the evidence that all three accused were arrested on 16 November 2016. You also know that the first of the phone calls involving Mr Balestra occurred on 23 November 2016, that is, shortly after the arrest of each of the accused. Members of the jury, you should not reason that because Mr Balestra and Mr Kitto were in custody either of them was likely to have committed any of the offences with which he's charged or that he is the kind of person who is likely to have committed any of the offences with which he's charged.

You should not guess or speculate about the reason why Mr Balestra and Mr Kitto were in custody. There may be any number of reasons why an accused, after being charged with an offence, is remanded in custody without bail. You will appreciate that there are cases where an accused does not have bail before trial and is ultimately found not guilty of the charge or the charges he faces.

Accordingly, and perhaps at the risk of stating the obvious to you, you must not draw any inference adverse to Mr Balestra or Mr Kitto or any inference as to their guilt by reason of the fact that each of them was in custody for a period of time following their arrest. The fact that an accused person has been arrested and placed in custody following his arrest says absolutely nothing about the person's guilt or innocence for an offence with which they have been charged. It is irrelevant to your determination of whether the State has proved that the accused is guilty of any offence with which he is charged. (emphasis added)

1. The grounds of appeal against conviction are:
   1. The judge erred when he determined not to discharge the jury once prejudicial material, namely a reference to the appellant being in gaol, was erroneously placed before the jury.

1A. Prejudicial material, namely a reference to the appellant being in gaol, was erroneously placed before the jury when an Arunta call was played, contrary to his Honour's ruling, resulting in a miscarriage of justice.

1. The appeal against sentence comprised one ground of appeal to the effect that the total sentence imposed infringed the first limb of the principle of totality when regard is had to the circumstances of the offending and matters referable to the appellant, in particular the fact that the appellant was already a serving prisoner at the time of sentencing.

The appeal against conviction Mr Kitto's submissions

1. Mr Kitto refers to the observations of Dixon CJ in Hall v Braybrook,[33] to the effect that as a general rule, a tribunal of fact responsible for determining the guilt or innocence of an accused should not be informed of his or her criminal record, bad character or antecedents before the tribunal pronounces a finding of guilt. Dixon CJ said that all concerned in the criminal law were highly sensitive to any infringement of this principle because of the 'prejudice to the issue of guilt which is thought inevitably to ensue'.[34]
2. Mr Kitto also refers to the observations in R v Edelsten,[35] where the court said that 'relevant prejudice is prejudice consisting of something other than a tendency to show guilt of the crime charged'.[36]
3. Mr Kitto also submits that evidence is unfairly prejudicial if the jury is likely to give it more weight than it deserves, or when it may inflame the jury, or divert the jury from its task.[37]
4. Mr Kitto submits that there was a real danger that the jury would have placed undue weight on the inadmissible evidence in assessing Mr Kitto's character when reaching their guilty verdict. Mr Kitto refers in particular to:
   1. The circumstantial nature of the case he faced.
   2. The manner in which the recording came to be played, that is contrary to an earlier ruling by the judge.
   3. The significant prejudicial weight of the impugned evidence - evidence to the effect that he had been incarcerated - notably outweighed its probative value for the purposes of determining his criminal liability in respect of the offences for which he was charged.
   4. The fact that the evidence had been ruled inadmissible, but was then played to the jury, with the error apparent to the jury, which resulted in a substantial miscarriage of justice that could not be cured by direction.

1. The State submits that the central issue is whether the decision of the trial judge to refuse the application by Mr Kitto's counsel on 25 October 2018 to discharge the jury was a wrong decision on a question of law. It submits that Mr Kitto cannot demonstrate that he suffered a miscarriage of justice unless he establishes that the decision not to discharge the jury was wrong.[38]
2. The State submits that the principles to be applied are those referred to by Mazza JA, with Hall J agreeing, in Rankins v The State of Western Australia.[39] The State submits that the onus is on Mr Kitto to establish that the judge's dismissal of the application to discharge the jury was a wrong decision, in the sense that there was a perceptible risk that the jury would have taken the relevant portion of the recorded telephone call into account in its deliberations, and that that evidence showed that Mr Kitto may be a person of bad character.
3. The State submits that there was no perceptible risk that the jury would have taken into account in its deliberations the inadmissible portion of the recording that Mr Kitto had been in custody because:
   1. The inadmissible portion of the telephone call had a lesser degree of prejudice than, eg, the impugned evidence in Rankins.[40] Here, unlike in Rankins, there was nothing to indicate that Mr Kitto may have been in custody for a different offence.
   2. The inadmissible statement was brief. It was heard by the jury on the afternoon of the ninth day of trial, in a trial that went for 15 days and involved the tender of 119 exhibits. It was not heard shortly before the jury retired to consider their verdict. As the judge noted, 'It's only a very small piece of evidence in the scheme of the trial'.[41] The degree of prejudice was readily able to be dealt with by an explanation that Mr Kitto was in custody on remand for the charges the subject of the indictment, which was the approach the judge took when summing up.[42]
   3. There was evidence before the jury of conduct by Mr Kitto which the jury might reasonably have regarded as discreditable. This served to emphasise the lesser degree of prejudice of the inadmissible part of the evidence.
   4. Mr Kitto did not, at trial, or on the appeal, criticise the content of the judge's directions to the jury in relation to the inadmissible portion of the evidence. The directions given by the trial judge were appropriate and included a specific focus upon the potential prejudice by way of bad character and propensity arising from the inadmissible portion of the recording (and the cross‑examination of Constable Emanuele).[43]
   5. A criminal trial on indictment proceeds on the assumption that as a general rule, the jurors are true to their oath or affirmation and they understand and obey the trial judge's directions.[44]
   6. Because of the directions that were given, both before and after the inadmissible passage of evidence was played, in substance the rules of evidence were observed and there was no departure from a trial according to law. The judge's directions negated any perceptible risk that the inadmissible portion of the telephone call would have been taken into account by the jury in evaluating the credibility of Mr Kitto's denials in his recorded interview, or in considering whether the prosecution had proved its case beyond reasonable doubt.
4. The State also submits that if there were a wrong decision on a question of law (which it denies) or the court formed the opinion that the jury should have been discharged and Mr Kitto retried without the inadmissible portion of the Arunta telephone call being heard, then the court should dismiss the appeal on the basis that no substantial miscarriage of justice occurred within the meaning of the proviso in s 30(4) of the Criminal Appeals Act.[45]
5. The State submits that the nature of the asserted wrong decision means that it would have had no significance in determining the verdict. There was a lesser degree of prejudice relative to that in Rankins, and the judge's directions included a specific focus upon the potential prejudice by way of bad character and propensity. Further, all the other evidence would have proved beyond reasonable doubt Mr Kitto's guilt. Mr Kitto does not assert that the verdicts were unreasonable or cannot be supported by the evidence. Also, the trial was not unfair as a result of the inadmissible passage of evidence, and no substantial miscarriage of justice has occurred.

1. In R v Wood,[46] Malcolm CJ observed that in a joint trial of two or more accused, when evidence is admissible against one but not another, it is necessary for the trial judge to point this out to the jury when the evidence is given, or during the summing up, or preferably on both occasions.[47]
2. The record of the Arunta call made by Mr Balestra was not admissible evidence against Mr Kitto. It was only ever admissible against Mr Balestra. The record of the Arunta call was the subject of directions by the trial judge both when the evidence was given and during the summing up.
3. In addition, the judge made a ruling in the exercise of his power or discretion[48] to reject the impugned part of the Arunta call evidence on the basis that its potential prejudicial effect (on Mr Kitto) was greater than its probative value (in the State's case against Mr Balestra).[49] The purpose of such a power or discretion is to guard against a miscarriage of justice.[50] If appellate review were called for in relation to the exercise of such a power or discretion to exclude admissible evidence based on its prejudicial effect (which in this appeal it is not), error of the kind in House v The King[51] would need to be identified.[52] However, in such cases, even if no House error is disclosed, it may be that a trial judge's decision to exercise the discretion not to exclude the evidence might be seen, in retrospect in all the circumstances, to have occasioned a miscarriage of justice. In that event, the proper ground of appeal would be on the basis of an alleged miscarriage of justice.[53]
4. As events transpired, the impugned passage was mistakenly played to the jury as part of the Arunta call evidence, contrary to the judge's ruling.
5. Mr Kitto's counsel then brought an application to 'abort the trial'.[54] Although not in terms, in substance, it was an application to discharge the jury pursuant to s 116(2) of the Criminal Procedure Act 2004 (WA). Section 116(2) of that Act provides that a judge may discharge the jury from giving its verdict on a charge if the judge is satisfied that it is 'in the interests of justice' to do so.
6. The phrase 'in the interests of justice' in s 116(2) has been given a broad connotation. In Eric v The State of Western Australia,[55] Buss P and Mazza JA said:[56]

The phrase 'in the interests of justice' is not defined in s 116 or elsewhere in the Criminal Procedure Act. Those words have a broad connotation. In Herron v Attorney-General for New South Wales, Kirby P said, in construing a provision of the Coroners Act 1980 (NSW), that the words 'in the interests of justice' are 'plainly words of the widest possible reference' and, indeed, 'there could scarcely be a wider judicial remit'. The phrase 'in the interests of justice' in s 116 takes colour from the context in which it is used.

The concept of 'in the interests of justice', in s 116, includes not only the interests of the accused but also the public interest. The public interest in this context includes the proper functioning, and the protection of the integrity, of the criminal justice system as administered in the trial of an accused before a judge and jury.

It is in the interests of the accused, and also in the public interest, that the accused receive a fair trial according to law. That is the fundamental (but not the only) issue with which s 116 is concerned. For example, it will be 'in the interests of justice', within s 116(2), for a judge to discharge a jury from giving its verdict on a charge if the judge is satisfied that there is a real and substantial (as distinct from a remote) risk that in the proceedings the accused will not receive a fair trial, according to law, in respect of the charge.

The power which s 116(2) confers upon a judge is discretionary in character. It will be necessary for a judge, who is considering whether to exercise the power, to take into account and balance all relevant factors by reference to the facts and circumstances of the particular case. The relevant factors may point in different directions. Some may favour the discharge of the jury and others may not. See, in the context of a power to order a new trial of an appellant whose conviction has been quashed, Reid v The Queen. The facts and circumstances of the particular case are of central importance in applying the phrase 'in the interests of justice' within s 116(2). See, generally, Dietrich v The Queen. By a process of evaluation a judge will determine whether he or she is satisfied that 'it is in the interests of justice' to discharge the jury from giving its verdict on a charge. (emphasis added) (footnotes omitted)

1. The inadvertent reception of inadmissible evidence of a prior conviction, which is plainly prejudicial to the accused, does not, in and of itself, necessarily require the trial judge to discharge the jury on the basis that a fair trial is no longer possible.[57] In R v Glennon,[58] Mason CJ and Toohey J said:

Reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of our criminal law. And the wrongful reception or transmission of such evidence by or to the jury is calculated to set the prospect of a fair trial at risk. It is then for the trial judge to decide whether it is necessary to discharge the jury in the interests of securing a fair trial and, if the trial proceeds and results in a conviction, for a court of criminal appeal to decide whether the accused has been deprived of a fair trial. (emphasis added) (footnotes omitted)

1. Thus, where there is an inadvertent reception of inadmissible, prejudicial evidence, the trial judge has a discretion as to whether to discharge the jury or allow the trial to continue, with or without directions.[59] The techniques for dealing with such prejudicial evidence, apart from discharging the jury, include (1) telling the jury to ignore the evidence, and (2) telling the jury to treat the case as if the evidence had not been given.[60] Directions in this context are an aspect of the general law's requirement that a warning should be given whenever a warning is necessary 'to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case'.[61] The 'possibility of a miscarriage of justice' is both the occasion for giving a warning to the jury and the determinant of its content.[62]
2. The majority in Crofts v The Queen[63] observed:

No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript. (emphasis added)[64]

1. The question for the judge on the appellant's application to 'abort' the trial was, having regard to the statutory language of s 116(2) of the Criminal Procedure Act, whether it was 'in the interests of justice' to do so. This required his Honour to consider whether there was a real and substantial (as distinct from a remote) risk that the appellant would not receive a fair trial according to law by reason of the jury having heard by inadvertence the evidence his Honour had earlier excluded. In doing so, it was necessary for his Honour to bear in mind the techniques for dealing with such circumstances referred to above, including any remedial directions that may be given to the jury. As already described, his Honour decided not to discharge the jury and thereby 'abort' the trial.
2. Ground 1, in effect, seeks to appeal against the trial judge's decision not to abort the trial. This ground is misconceived. In a case such as this, when a trial judge refuses an application to discharge a jury and the accused is convicted, an appeal by the accused is against the conviction and not against the exercise of the trial judge's discretion not to discharge the jury.[65] Thus, the issue for this court is the one raised by ground 1A, that is, whether the appellant has established a miscarriage of justice for the purpose of s 30(3)(c) of the Criminal Appeals Act.
3. The High Court's decision in Weiss v The Queen[66] established that any departure from a trial according to law will be a miscarriage of justice, regardless of the nature and importance of that departure. A miscarriage of justice will occur if, for example, the rules of evidence or procedure are not observed, or the relevant law is not correctly explained to the jury.[67]
4. Further, even when a trial is conducted according to law, there will be a miscarriage of justice when the accused person has not received a fair trial.[68]
5. The term 'irregularity' has been applied in different ways in describing a miscarriage of justice. For example, in Weiss, the court observed:[69]

By hypothesis, when the proviso falls for consideration, the appellate court has decided that there was some irregularity at trial. If there was not, there is no occasion to consider the proviso.

In this passage the term 'irregularity' is used to describe a wrong decision on a question of law or a miscarriage of justice which may lead to the application of the proviso.

1. In Kalbasi v The State of Western Australia,[70] the majority described the effect of Weiss, relevantly in the following terms:

Consistently with the long tradition of the criminal law, any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice within the third limb of the common form provision (here s 30(3)(c)). (footnote omitted)

1. The majority in Kalbasi referred to the following part of Fullagar J's judgment in Mraz v The Queen:[71]

It is very well established that the proviso ... ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed.

1. It appears that in Kalbasi, the court used the term 'irregularity' as a synonym for departure from a trial according to law, in the sense explained in Weiss.
2. By contrast, in Filippou v The Queen,[72] the majority used the term 'irregularity' in a narrower sense. The majority said that the reference to a miscarriage of justice in the common form appeal against conviction provision:

covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial. (emphasis added) (footnotes omitted)

1. None of the above references to an 'irregularity' comprehends any mistake which may be made in the course of a criminal trial. As is illustrated by the recent decision of this court in YBG v The State of Western Australia,[73] not every mistake made in the course of a trial will necessarily constitute a miscarriage of justice. In YBG, the mistaken provision of a transcript to the jury was found not to constitute a miscarriage of justice. Although the transcript was provided unintentionally to the jury, it did not involve any breach of the rules of evidence or procedure or, in any other respect, a departure from a trial according to law.[74]
2. The term 'irregularity' can have different shades of meaning in different contexts. However, the test for a 'miscarriage of justice' is not whether an event which occurred at trial may be described as an 'irregularity' in the sense that a mistake was made. The criteria for a 'miscarriage of justice' identified in the above cases is whether there has been a departure from a trial according to law or the accused person has not received a fair trial.
3. In Rankins, referred to by both parties, the offender was convicted of one count of armed robbery. In that case, the offender participated in a police interview, which was recorded and played for the jury at trial. The electronic record of interview was not properly edited and included a statement made by the police officer to the offender that 'we've spoken to you previously about ... a burglary offence'.[75] The trial judge stopped the recording shortly after the impugned passage and spoke to counsel about the error in the absence of the jury. Before adjourning for the day, the trial judge gave the jury a direction to the effect that it is standard practice for records of police interviews to be edited to remove irrelevant and unnecessarily repetitive information, with the consent of both parties, such that relevant material is heard but irrelevant material is removed.[76]
4. On the morning of the next day of the trial, in the absence of the jury, the prosecutor told the judge that the electronic record of interview had been edited overnight, deleting the impugned passage. Defence counsel asked the judge to direct the jury that 'some matters which required editing which, due to some extraneous reason were not edited [have] now been edited out', but defence counsel did not want to draw attention to anything the jury might have heard the day before. Defence counsel agreed with the judge that the correct approach was for her Honour to tell the jury that there had been 'some editing' overnight and that the jury were to have regard 'to the interview as it now is, and as will now be played to them'. Defence counsel did not make an application for the judge to discharge the jury.[77]
5. The judge then directed the jury that:[78]

[C]ounsel have advised me that there were some irrelevant matters in the interview, so it has been further edited.

...

[Y]ou are to have regard to the interview as you hear it and, obviously, if there has been any editing about matters you've already heard, you are to have regard to what's in the interview now as opposed to what you may have heard yesterday.

...

[W]hat I have required is that we go back over some of what we've already heard... to ensure that you remember ... where we're at in the interview, so to speak, and that you can pick up easily, then, the material as you hear it.

1. No comment thereafter was made to the jury by the judge, or by the prosecutor, defence counsel or any witness, about the impugned passage of evidence or the burglary.[79]
2. The accused was convicted. He appealed on the basis that there had been a miscarriage of justice within the meaning of s 30(3)(c) of the Criminal Appeals Act.[80] (Unlike this case, there was no ground of appeal alleging error on the basis of the judge's failure to discharge the jury, because no application to discharge had been made but, as noted in [70] above, the relevant question for an appellate court in these circumstances is whether there has been a miscarriage of justice.)
3. In Rankins, Mazza JA (Hall J agreeing) found that there was no miscarriage of justice for the purposes of s 30(3)(c) of the Criminal Appeals Act.[81] Mazza JA said:[82]

Thus, the expression 'miscarriage of justice' as it appears in s 30(3)(c) of the Criminal Appeals Act is to be construed as being 'any departure from trial according to law regardless of the nature or importance of that departure'.

...

It is for the appellant to demonstrate that there was a miscarriage of justice in his or her trial. Whether there was a miscarriage of justice requires this court to objectively assess all of the relevant circumstances. This court must be satisfied that a miscarriage of justice actually occurred in the trial.

In the present case, whether a miscarriage of justice actually occurred requires a consideration of not just the fact that the evidence was inadvertently adduced, but whether there is any perceptible risk that the jury would have taken the evidence into account in its deliberations. If there was no perceptible risk, I am unable to see how there has been any departure from trial according to law or that there has been any infringement of the appellant's legal right to the observance of the rules of evidence.

An analysis of all the surrounding circumstances in the present case reveals, in my opinion, that there is no perceptible risk that the jury would have taken into account in its deliberations the inadmissible evidence.

1. The following factors were taken into account by his Honour in concluding that there was no perceptible risk that the jury would have taken the impugned evidence into account in its deliberations:[83]
   1. After the impugned passage was played, the judge immediately stopped the proceedings and arrangements were made for the video‑recording to be edited to delete the impugned passage.
   2. The next morning, both counsel agreed that the edited version would be played together with a direction that if there were any difference in the version the jury were about to see (edited version) when compared with the version played the previous day, they were to have regard only to the edited version.
   3. When the jury returned to the courtroom the judge gave directions to the effect that some irrelevant matters had been played in the interview the previous day, that those irrelevant matters had now been edited out, and that it was important for the jury to have regard only to the edited version.
   4. The directions were clear and unequivocal and counsel for the defence took no exception to them.
   5. The edited version was played to the jury and nothing more was said about the impugned passage.
   6. Competent and highly experienced defence counsel did not apply to discharge the jury or seek further directions, and it was relevant to bear in mind counsel's conduct binds the client.
   7. There was no reason to doubt that the jury would have understood and followed the judge's directions and it was only that version of the interview that was admitted into evidence and available to the jury at the time of their deliberations.[84]
2. In this case, Mr Kitto's arguments 'boil[ed] down' to the central proposition that the evidence was so prejudicial that it could not be 'cured by directions'.[85] It should be observed at the outset that the trial according to law to which Mr Kitto was entitled was, by its nature, a joint trial, and the architecture of a joint trial is relevant to an assessment of the alleged miscarriage of justice.[86] In a joint trial, relevant evidence might be led by an accused tending to be exculpatory of the accused but prejudicial to a co‑accused. Also, probative evidence in the State's case against an accused might be received despite its prejudicial potential on a co‑accused. Indeed, in this case it may be inferred that the judge would not have ruled against the reception of the impugned part of the audio recording had it had greater probative value in the State's case against Mr Balestra.
3. In this context, the trial against Mr Kitto did not involve any departure from a trial according to law. Mr Balestra's recorded telephone call was never part of the evidence against Mr Kitto, and the jury was so instructed from the outset. The playing of that recording as part of the State's case against Mr Balestra did not involve any departure from the rules of evidence or procedure in Mr Kitto's trial. It did not involve Mr Kitto being tried otherwise than according to law.
4. Nor could it be said that Mr Kitto did not receive a fair trial. There was a risk of, or potential for, unfairness constituting a miscarriage of justice once the impugned part of the audio was played. The potential miscarriage in this case arose from the risk the jurors might think that Mr Kitto was more likely to be guilty of the offence with which he was charged because he had been in prison. But the risk or potential was effectively dealt with and addressed by appropriate directions in all the circumstances of the case. Directions were given 'to avoid a perceptible risk'[87] of a miscarriage of justice that otherwise could have arisen from the playing of the impugned passage. Putting it another way, insofar as there was an initial potential for unfairness in playing the impugned passage as part of the audio recording, the failure to discharge the jury on that account had not 'occasioned the risk'[88] of a miscarriage of justice, because the risk of miscarriage was entirely and appropriately addressed and foreclosed without the discharge of the jury in all the circumstances of the case. When viewed in all the relevant circumstances of this case, there was no perceptible risk that the jury would have taken the impugned passage into account and, more particularly, no perceptible risk that the jury would have taken it into account as evidence of bad character of Mr Kitto. The directions by the judge in the circumstances of this case meant that there was no perceptible risk that the jury's verdicts might have been affected by the inadvertent playing of the impugned part of the audio recording. Such risk having been removed, there was no miscarriage of justice resulting from unfairness in the trial.[89]
5. In this regard, the following matters are pertinent:
   1. The error in playing the audio was, it may be inferred, not deliberate (and counsel for Mr Kitto did not suggest otherwise).
   2. The impugned passage was a very minor part of the total audio recording.
   3. Whilst the trial judge accepted that the impugned passage could be construed as a 'clear indication'[90] that Mr Kitto was in custody, it was nevertheless a matter of inference rather than an explicit statement to that effect.
   4. It was not a necessary inference from the impugned passage that Mr Kitto was in custody for other offences. Insofar as the jury may have drawn any inference from the audio when it was first played, the inference was open that Mr Kitto was being held in custody at the time for the offences the subject of the trial. Moreover, that was the most likely inference to be drawn by the jury following the judge's summing up referred to in [48] above.
   5. The potential for the impugned passage to point to bad character also falls to be considered in the context of counsel for Mr Kitto's submissions to the jury, which were to the effect that Mr Kitto had had 'brushes with the law'[91] and was not an 'angel'.[92]
   6. Moreover, it was a case where other evidence (given in the course of cross‑examination of Senior Constable Emanuel by counsel for Mr Kitto) indicated that Mr Kitto had been in prison at some point in time. The judge, in his summing up, squarely confronted the topic of the evidence of Mr Kitto being in custody and told the jury in clear and emphatic terms to take no account of it.
   7. The error was detected immediately. The judge, having dismissed the application to discharge the jury, called the jury back in and explained, in effect, that a routine legal issue had arisen with which he was required to deal in their absence and, having resolved the issue, the jury must not speculate about it. The jury was told the next day that some irrelevant matters had been inadvertently included in the audio recording and that these had been edited out. The audio was edited appropriately. The audio, in its edited version, was then played to the jury afresh. It was the edited version that was available in the jury room for the jury's deliberations. The transcript of the audio provided to the jury never contained the impugned passage.
   8. In essence, the error was fleeting and the impugned passage received no prominence in the trial. It occurred in the second week of a three‑week trial. It could not be said that the impugned passage would have been 'left vividly etched on the mind of the jury' as they retired to consider their verdict,[93] or would have received more than, at most, 'passing notice'.[94] It was not a 'damning piece of independent evidence' central to the issue in the case which may have remained 'uppermost in [the jury's] minds' when they retired to consider their verdict.
6. It was open, indeed it was correct, for the trial judge to deal with the reception of the inadvertent evidence in the way that he did. There was no departure from a trial according to law and no unfairness actually resulted from the mistaken playing of part of the audio evidence indicating that Mr Kitto was in prison. The inadvertent playing of that part of the audio recording did not give rise to any miscarriage of justice in all the circumstances of this case. It is unnecessary to consider the potential application of the proviso in s 30(4) of the Criminal Appeals Act.
7. Neither of the alternative grounds of appeal in relation to the appeal against conviction has been established.

1. The judge, in summary, sentenced Mr Kitto on the basis that the overall criminality of the offending would warrant 5 years 9 months' imprisonment. His Honour reduced that figure by 4 months to account for the fact that Mr Kitto was already serving a significant term of imprisonment, taking the total sentence of imprisonment to 5 years 5 months. His Honour then reduced that figure by a further one month to take into account the time Mr Kitto was held in custody on remand for the current offending, giving a total effective sentence of 5 years 4 months' imprisonment.[97]

1. As noted earlier, the judge's sentencing remarks were published in The State of Western Australia v Kitto.
2. After referring to general sentencing considerations and maximum penalties, the judge made a number of findings about the circumstances and seriousness of the offences:[98]

The facts of your offences as I have stated them to a large extent speak for themselves so far as the seriousness of your conduct is concerned.

The course of pre-mediated [sic] and planned criminal conduct which you all embarked upon and engaged in, in committing your offences was obviously very serious. In committing your offences you stole and destroyed a car and trailer, caused very significant damage to the shopping centre (the repair costs being in the vicinity of $36,000), and managed to steal an expensive ATM and a very large amount of money none of which was recovered.

Your theft of the trailer impacted not only on the company that owned the trailer, but also on Ms Samantha Thompson. As is apparent from her victim impact statement, at the time of the theft of the trailer there were a variety of items in the trailer that belonged to her, including items that were of very significant emotional and sentimental value to her. The items were mementos of her daughter who had died as an infant and which are totally irreplaceable. She has obviously suffered a great deal of distress as a result of the loss of these items. This is an aggravating factor.

You committed your criminal damage by fire offences the subject of counts 6 and 7 in an attempt to avoid detection for your offending. This is an aggravating factor.

Further, your conduct in setting fire to the Nissan in a suburban residential street in the early hours of the morning, or at least aiding in this course of conduct, did carry with it the risk that other property would be damaged. I say this because there was clearly the risk of the fire spreading.

...

Mr Kitto and Mr Balestra, you both committed your offences while on bail for other offences. This is an aggravating factor.

So, as I have said, you each engaged in a very serious course of criminal conduct.

On the basis of the evidence adduced at trial I am not able to make a finding with the necessary degree of certainty as to which, if any of you, played a more major role in the planning of the offences.

Mr Kitto and Mr O'Brien, as is apparent from what I have already said, I am unable on the evidence to make a positive finding that the two of you were involved in the actual taking of the trailer from the address in Joondalup. I will therefore approach the matter on the basis that you were not involved. However, I do not consider the fact that you were not involved in the actual taking of the trailer from the address in Joondalup makes your conduct in committing your stealing offence the subject of count 2 any less serious than the conduct of Mr Balestra in committing the offence.

As to count 3, regardless of whether one of you or Mr Clarke was the driver of the Nissan (and I have already stated my view as to which of you is most likely to have been the driver) I do not consider that there is any distinction to be drawn between the seriousness of the conduct of the driver and the seriousness of the conduct of the three of you who were not the driver. You were all part of the plan to commit the ram raid offence by using the Nissan. You all knew what was about to occur. You all supported the course of action involving the use of the Nissan.

With respect to count 6, if one or more of you were not involved in the actual physical act of setting fire to the Nissan I do not consider that this makes your conduct any less serious than the conduct of the person or persons who did. Again, you were all part of the plan to burn the Nissan once it had been used in the ram raid offence. You all knew this was going to occur. Even if one or more of you did not actually set fire to the Nissan yourself, you actively encouraged this course of conduct.

In summary, so far as the objective seriousness of the conduct involved in the commission of the offences is concerned, I do not draw any distinction between the three of you. There is, in my view, no basis for doing so.

Mr Kitto, it is submitted on your behalf that I should find that Mr Clarke was the ring leader of the course of offending. I am not satisfied on the material before me that Mr Clarke was the ring leader. I do not make that finding.

1. The judge then made a number of findings about the personal circumstances and antecedents of Mr Kitto:[99]

You were born on 8 March 1980. You are therefore 38 years old.

Family background - upbringing

You were born and raised in Queensland.

Your biological father left your mother when she was pregnant with you. You have never met your biological father.

You have an older sister born to your mother and your biological father. She is seven years older than you.

After your biological father left your mother, she commenced a new relationship with your stepfather.

Your mother had three children to your stepfather, two daughters and a son.

You had a difficult childhood. Your stepfather was physically and mentally abusive towards your mother, yourself and your siblings. As a result of the abuse inflicted on you, you spent some time in the care of a government department. However, ultimately you left the care of this department and were cared for by your older sister.

You moved to this State in 2008 when you were about 28 years old following the breakdown of a relationship. However, you remained in contact with your family. On occasions members of your family would come and visit you.

Your mother unexpectedly passed away in 2015 after suffering a heart attack.

Education and employment

When you left school you worked in a variety of jobs, initially at a saw mill and then as a machinery operator.

You subsequently completed a mature age plumbing apprenticeship and worked on major projects in Queensland installing underground plumbing services.

After moving to this state you worked in the civil construction industry in a variety of jobs.

You purchased the property at 4 Swift Street in Greenwood that was referred to in the evidence adduced at trial. The property is currently empty due to your incarceration.

In the period leading up to 2015 you were working in a managerial role for a company called Leeway Group. Leeway Group is a Hydraulic Services Contractor. You were the manager of the business' plant and equipment.

As part of your employment with Leeway you worked on large scale land subdivisions in the Perth metropolitan area. You also spent some time working in the north of the state at the Roy Hill mine site.

Relationships

After you arrived in this state you formed a relationship with a woman named Bianca. The two of you had a daughter together who is now 7 years old. The relationship broke down after the passing of your mother. However, the two of you remained amicable, at least for a period of time, and you frequently spent time with your daughter.

1. The trial judge then referred to a number of tragic events affecting Mr Kitto's life in 2015 and thereafter:[100]

Events in 2015 and thereafter

Your life took a dramatic turn for the worse in 2015.

As I have already mentioned it was in this year that your mother passed away unexpectedly. Then, within three weeks of the passing of your mother, your stepfather had some sort of mental health breakdown and took the lives of one of your sisters who was heavily pregnant at the time and your sister's 7 year old son (that is, your nephew who had previously visited you with his mother). Having taken the lives of your sister and her son, your stepfather then took his own life.

A few days after this terrible tragedy one of your closest friends was killed in a traffic accident.

Unsurprisingly, the terrible tragedy involving your family members followed closely by the death of your close friend had a very significant adverse impact on you. You struggled to cope. You took stress leave from your employment with Leeway Group and thereafter did not return to permanent full time.

In the period following the tragedy involving your family members the lady Bianca prevented you from continuing to see your daughter because she was concerned about your apparent emotional instability. This added to your emotional distress.

At some point during the next few months you formed a relationship with a lady called Beth. Beth provided you with support during the difficult time that you were going through.

A number of months after you had commenced your relationship with Beth the two of you decided to go on a camping trip together. Tragically, while you were driving between Two Rocks and Yanchep Beth became unwell. You stopped the vehicle which you were driving. Beth deteriorated rapidly. She collapsed. You flagged down a passing vehicle. CPR was performed on her. She was taken to hospital. However, she died a few hours after arriving at hospital. Her cause of death, as determined by the Coroner, was a blood clot that began in her leg and moved to her heart.

The tragic and unfortunate sequence of events to which I have referred led to your life going into what can fairly be described as a downward spiral. You were introduced to methylamphetamine by a former workmate. In your emotionally distressed state you resorted to methylamphetamine use as a form of self‑medication. It was once you had started to use methylamphetamine and had become addicted to the drug that you met Andrew Clarke and embarked upon a course of criminal activity that culminated in the commission of the offences for which I am to deal with you.

Finally, on 5 September 2018, so not very long before the commencement of your trial before me, your younger sister, who was the person who had discovered the bodies of your sister, nephew and stepfather, took her own life.

The sequence of events that occurred in your life from 2015 and prior to the time that you committed your current offences are tragic. I am satisfied that they do at least partly explain why you embarked upon a course of drug use and criminal activity which ultimately culminated in your commission of the current offences. I am satisfied that there was a causal connection, albeit an indirect one, between the tragic course of events you experienced and your commission of the current offences. This causal connection does, in my view, mitigate to some extent your culpability for committing the offences.

In addition, the fact that you have had to deal with the loss of another of your sisters while in custody is something that I will take into account as a mitigatory factor.

1. The trial judge then referred to other matters:[101]

Substance use

As is apparent from what I have said, you have in recent times been a user of methylamphetamine. However, since being in custody you have not used any illicit drugs. This is to your credit.

Health

You have no significant physical health issues. You have not been diagnosed with any major mental illness.

Criminal record

You have a criminal record in Queensland and in this state.

In Queensland you were between 1993 and 1998 convicted of a number of offences as a juvenile, in the main dishonesty type offences. However, your juvenile record is of no particular relevance in the present context.

After you turned 18, so from 1998 up until 2007, which was shortly before you moved to this state, you were convicted of a number of traffic related offences as well as other offences.

On 8 November 1999 you were convicted of an offence of disposing of property that was reasonably suspected to have been stolen.

On 6 October 2000 you were convicted of an offence of wilful damage and an offence of stealing.

On 18 September 2007 you were convicted of offences of possessing a dangerous drug, obstructing a police officer, possessing drug related utensils, and possessing property suspected of having been used in connection with the commission of a drug offence. You were, it would appear, fined a total of $750 for these offences.

It is apparent from what I have said that there was a significant gap in your offending in Queensland between 2000 and 2007.

After you arrived in this state, and consistently with the history that I have recounted, you did not start committing offences until February 2016, save for one offence of driving without authority which you committed in January 2015. So you lived here for approximately 7 years without committing any serious offences.

Since 2015, however, you have been convicted of numerous driving and traffic related offences as well as other serious offences.

On 1 February 2016 you were convicted of an offence of possessing methylamphetamine.

On 18 April 2016 you were convicted of five offences of breaching a violence restraining order.

On 7 February 2017 you were convicted in the District Court of one offence of possessing cannabis with intent to sell or supply, two offences of possessing stolen or unlawfully obtained property, two offences of possessing a prohibited drug and one offence of giving false details to the police. Your possession of cannabis with intent offence involved over 8 kg of the drug. You committed these offences in March and April 2016, that is, a few months before you committed your current offences. You were sentenced to a total of 2 years imprisonment for these offences.

On 22 March 2017 you were convicted in the Magistrates Court of a string of offences, specifically one offence of burglary, one offence of giving false details to the police, three offences of possessing cannabis, three offences of possessing methylamphetamine, two offences of possessing drug paraphernalia and one offence of stealing. You committed these offences in August and September 2016. All of the offences were committed after your current offences save for the offence of giving false details to the police which you committed on 9 August 2016 and about which some evidence was adduced during your trial. You were fined for some of these offences and sentenced to a total of 4 months imprisonment for the remainder. The 4 month term was ordered to be served cumulatively on the 2 year term imposed on 7 February 2017.

You are currently serving the terms of imprisonment imposed on you by the District Court and the Magistrates Court, that is, the total term of 2 years and 4 months imprisonment. Your earliest date for release on the terms that you are currently serving is 3 June 2019.

It is apparent from what I have said that you were by no means a first offender at the time that you committed your current offences. Even putting to one side the numerous driving and traffic related offences that you had committed prior to August 2016, you had, before you committed your current offences, committed a number of offences in Queensland and in this state including the serious offences for which the District Court sentenced you on 7 February 2017.

Your criminal record is not an aggravating factor. It does not increase the seriousness of the offences of which you have now been convicted. However, the nature and extent of your record obviously means that you are not entitled to any leniency for good character.

Conduct in custody

It is apparent from the material before me that you have been a model prisoner during the time that you have been in custody at Casuarina Prison.

You reside in the self‑care unit.

You are employed as a Transitional Clerk. This is a trusted position vetted by prison security. In this position you work closely with the Transitional Manager in the Reintegration Hub assisting prisoners with their pre‑release planning. The Transitional Manager in a letter written on your behalf states that you are a hard worker and a valuable member of the Transitional Team.

You have undertaken a number of programs and courses, including programs directed at addressing your methylamphetamine problem.

Your conduct during your imprisonment to date is to your credit. It is something that I take into account.

Your plan, on your eventual release from prison, is to return to Queensland and to rebuild your relationship with your daughter.

Remorse

It is submitted on your behalf that you are ashamed of and disappointed by your actions and that you are remorseful. It is difficult to reconcile this submission with your decision to plead not guilty to the charges and to take the matter to trial. Nonetheless, I will accept that since being convicted of your offences you have, albeit belatedly, accepted responsibility for your offending and developed remorse for your conduct.

Character references

I have a number of character references before me written by people who you came to know in the course of your employment and people you have interacted with while in custody, including the Co‑ordinating Chaplain and the facilitator of the Pathways program which is one of the programs you have undertaken while in custody. It is clear from reading the references that you are a capable individual with a number of good characteristics who should, provided you can refrain from future use of illicit substances, be able to contribute to society and make a good life for yourself on your eventual release. (emphasis added)

1. The judge also referred to the fact that Mr Kitto (and the other accused) had pleaded not guilty. His Honour said that the plea of not guilty did not aggravate the seriousness of the offences, but meant that the accused did not attract the significant mitigatory benefit and associated reduction in sentence which would have come with guilty pleas. His Honour also gave a 'very small amount of credit' for making a formal admission relating to the ownership of the shopping centre.[102]
2. His Honour then made a number of remarks about general deterrence, including the following:[103]

The convenience provided by ATM machines [sic] is obvious. They are an integral part of everyday life. They necessarily hold large sums of money. Further, and as is demonstrated by the facts of this case, the commission of ram raid offences for the purpose of stealing an ATM will almost inevitably involve the use of a stolen vehicle and cause significant damage to the property of others. For all of these reasons I must, in determining the sentence to be imposed on each of you, give weight to the need to impose a sentence that is capable of deterring others who might be tempted to engage in the type of conduct that you three have engaged in from doing so.

A necessary consequence of giving effect to the sentencing consideration of general deterrence is that less weight must be given to mitigating circumstances that are personal to each of you. That is not to say that such mitigating circumstances are irrelevant. They are not irrelevant. However, they assume less weight than might otherwise be the case.

1. His Honour then dealt with parity. His Honour referred to Mr Clarke's guilty plea and sentencing. The judge also referred to the applicable principles relevant to parity.[104]
2. In relation to the sentencing of Mr Kitto, the judge said:[105]

I have decided, taking all of the matters that I have mentioned into account including the seriousness of your offences, your background and current personal circumstances, the indirect causal connection that I have found to exist between the tragic course of events which you experienced from 2015 onwards and your commission of the offences, your prior record, your conduct since you have been in custody, your belated remorse, the need for general deterrence and parity issues that only imprisonment can be justified. In my view imprisonment is the only appropriate disposition.

I am also, having revisited all of the factors that I have taken into account in deciding that imprisonment is the only appropriate disposition, positively satisfied that the option of suspending imprisonment is not appropriate. In my view the seriousness of your offences when viewed in the context of all of the factors that I have mentioned makes it obviously inappropriate to suspend any term of imprisonment.

It remains for me to fix appropriate sentences for each of your offences and to deal with questions of concurrency, cumulation and totality.

In my view the appropriate sentences of imprisonment for the offences of which you have been convicted, taking all of the factors that I have mentioned into account, are as follows:

Count 1 - 16 months

Count 2 - 8 months

Count 3 - 20 months

Count 4 - 2 years and 2 months

Count 5 - 20 months

Count 6 - 16 months

1. The judge then turned to consider the issue of totality:[106]

The totality principle requires that in sentencing you I must endeavour to ensure that the total sentence I impose on you is proportionate to your overall criminality having regard to all relevant circumstances including those referable to you personally. The totality principle also requires me to endeavour to ensure that the total sentence imposed is not crushing.

Further, in your case the totality principle also requires me to take account of the fact that you have been in custody since February 2017 as a result of you serving a sentence of 2 years and 4 months, for which your current earliest date for release is 3 June 2019, for offences which you committed in the months leading up to, and around the time of, your commission of the current offences. I must endeavour to ensure that the sentence I impose on you does not, by reason of the fact that you are already serving a term of imprisonment, result in a sentence that is disproportionate to your overall criminality in committing both of the offences or is crushing.

In my view, taking into account all of the matters that I have mentioned, save for the fact that you are currently serving a sentence, a total sentence of 5 years and 9 months imprisonment would appropriately reflect your overall criminality in committing the offences having regard to all relevant circumstances including those referable to you personally.

As I have indicated, 5 years and 9 months is the sentence that I would arrive at without having regard to totality considerations arising from the fact that you are currently a sentenced prisoner. However, when I have regard to considerations of totality arising from the fact that you are already serving a significant term, it is my view that a total sentence of 5 years and 5 months to be served cumulatively on your existing term appropriately reflects your overall criminality having regard to all relevant circumstances including those referable to your personally.

From the sentence of 5 years and 5 months I would allow a further reduction of one month to take into account in a general way the 42 days that you spent in custody for the present offences during the period 16 November 2016 to 27 December 2016.

So I impose a total sentence of 5 years and 4 months imprisonment to be served cumulatively on the sentences that you are currently serving. I of course recognise that I have not given you credit of precisely 42 days for the time that you have spent in custody. However, in my view the sentence of 5 years and 4 months imprisonment to be served cumulatively on your current sentence is proportionate to your overall criminality having regard to all relevant circumstances including the time that you have spent in custody for your current offences.

In order to achieve this head sentence I will reduce the sentence of 20 months imprisonment that I would otherwise have imposed for count 5 to 18 months imprisonment and order that the sentences imposed for counts 3, 4 and 5 are to be served cumulatively on each other but concurrently with the remaining sentences, and that the remaining sentences are to be served concurrently with each other. This gives a head sentence of 5 years and 4 months imprisonment which, as I have stated, is to be served cumulatively on your current sentence.

I will make an order declaring that you are eligible for parole which means that you will be eligible for release after serving 3 years and 4 months of the total sentence that I have imposed. (emphasis added)

1. Mr Kitto submits that the offending by him was, broadly speaking, part of a single course of conduct to which the 'one transaction' rule applies.[107] Mr Kitto submits that in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences in relation to which the offender is currently serving a term of imprisonment. He submits that of particular significance is the principle of applying the issue of totality to a consideration of any sentence the offender is currently serving.[108] Reference was made to Reid v Quigg[109] and McLean v The Queen.[110]
2. Mr Kitto observed that he was serving a term of imprisonment of 2 years 4 months with an earliest release date of 3 June 2019, for offences including possession of cannabis with intent to sell or supply, at the time of the sentencing by trial judge. Mr Kitto submits, in substance, that having decided that the initial total sentence to be imposed was 5 years 9 months' imprisonment, the reduction of that term by 4 months to reflect Mr Kitto's existing term of imprisonment to impose a total term of 5 years 5 months' imprisonment, less one month to reflect the time Mr Kitto spent in custody on remand for the current offending, was plainly unjust and unreasonable when regard is had to the fact that the term of imprisonment was made wholly cumulative upon the sentence that Mr Kitto was already serving.[111]
3. Mr Kitto also contends, in effect, that the following comparable cases indicate an infringement of the totality principle by the trial judge. Mr Kitto refers to:
   1. Kolek v The State of Western Australia,[112] where the offender pleaded guilty, relevantly, to four counts of aggravated burglary and was sentenced to a total effective sentence of 6 years' imprisonment.
   2. Thompson v The State of Western Australia,[113] where an offender and co‑offender were convicted after trial of stealing a motor vehicle and using it to commit an aggravated burglary in a ram‑raid of an ATM in an attempt to steal cash. Each offender was sentenced to a total sentence of 4 years 4 months' imprisonment for the aggravated burglary and stealing of a motor vehicle.
   3. Taylor v The State of Western Australia,[114] where the offender was sentenced to 4 years' imprisonment following a late guilty plea resulting in a 10% discount, to one count of aggravated burglary. Mr Kitto submits that the offences in Taylor, albeit fewer in number than in Mr Kitto's case, occurred in company, the level of damage was considerable and the criminal conduct itself was relatively sophisticated and professional.
   4. Pryor v The State of Western Australia,[115] where after early guilty pleas, the offender was convicted on four counts of aggravated burglary, two counts of stealing a motor vehicle, and one count of aggravated armed robbery. He was sentenced to a total effective sentence of 6 years' imprisonment. Mr Kitto submits that even allowing for the fact that the offender pleaded guilty to the offence in that case, the sentence imposed by the trial judge can be seen as infringing the first limb of the totality principle when regard is primarily had to the fact that it was made cumulative on a sentence already being served.
   5. JKL v The State of Western Australia,[116] where the offender pleaded guilty to 11 charges, comprising four counts of aggravated burglary, one count of stealing, five counts of stealing a motor vehicle, and one count of criminal damage by fire. Eight of the charges were committed over four days, and the other three charges were committed when he was on bail. He was sentenced to a total of 4 years' imprisonment for all 11 charges. On appeal, the offender in JKL was resentenced to 3 years' imprisonment.
   6. Lesay v The State of Western Australia,[117] where the offender pleaded guilty to two counts of damaging an ATM, one count of destroying a vehicle by fire, and one count of fraud. The total effective sentence was 4 years 6 months' imprisonment. At the time, the maximum penalty for the arson offence was 14 years' imprisonment.
   7. Anderson v The State of Western Australia,[118] in which the offender pleaded guilty to and was sentenced to a total of 4 years' imprisonment for offending that relevantly involved the offender in company with another forcing entry into a house and stealing property and cash valued at $575,150. The offender also drove a motor vehicle from the scene of the burglary, knowing that the vehicle was stolen and knowing that she had never held a driver's licence. The offender and another also rode, on bicycles, through a Hungry Jacks 'drive-through' and forced open a sliding door and took money from the cash register. The offender had a history of substance abuse and was exposed to domestic violence from a young age.

1. The State contends, in effect, that the sentence of 5 years 4 months' imprisonment, cumulative on Mr Kitto's existing term of imprisonment, did not infringe the first limb of the totality principle. The State submits in effect that none of the cases referred to by Mr Kitto provides any real analogy to the offending and the particular circumstances of this case. In relation to Kolek, the State submits that Mr Kitto's submissions ignore the 25% discount for a plea of guilty in that case.[119]
2. In relation to Thompson, the State submits that the offending in that case involved the stealing of one car, and the significant damage caused to that car, an ATM and to the shop where the ATM was located, but that the offenders failed to take any money.
3. In this case, however, Mr Kitto's offending was serious and involved:

(a) stealing and burning a Nissan Navara valued at about $17,500;

(f) committing the offences while he was on bail, when he was an adult; and

(g) causing personal distress to the victim who had lost items that were in the stolen trailer.

1. Also, none of the property was ever recovered in this case, and he did not plead guilty.
2. In relation to JKL, the State submits that the offences there did not concern property offences as objectively serious as those involved in the ram‑raid in this case. Also in JKL, the offender had cooperated with the authorities, had made admissions to police, had assisted police to recover some property, and had the benefits of (1) an early plea of guilty, (2) youth, and (3) the lack of any material record.
3. In relation to Taylor, the State submits that the offending is objectively more serious in this case, and that the offender in Taylor had received a 10% discount by reason of a late plea of guilty.[120] In relation to Pryor, the State submits that the offender in that case had made a full and frank admission to police, and had pleaded guilty at the earliest possible opportunity.[121] The State also submits that although the aggravated robbery in that case was a serious example of that type of offence, when viewed overall the total criminality was less than in the present case.
4. In relation to Anderson, the State submits that the differences are that the present offending was, overall, objectively more serious as it involved a high degree of premeditation and planning. Also, the offending in this case included specific aggravating circumstances highlighted by the judge, including the distress to one of the victims, the burning of the Nissan to avoid detection, and the commission of the offences whilst on bail. Also, unlike in Anderson, the stolen property in this case was never recovered by police. Further, the offender in Anderson pleaded guilty at the earliest possible opportunity, and also had the benefit of youth - he was aged 18 years and 5 months at the time of the offences.
5. The State, by way of summary, submits that[122] (1) the sentencing judge gave careful consideration to all relevant matters, and (2) the term of 5 years 4 months' immediate imprisonment with eligibility for parole, whilst a significant sentence, was in all the circumstances appropriate, particularly when Mr Kitto did not have the benefit of such powerful mitigating factors such as pleas of guilty, youth or the absence of a criminal record. The State submits that no proper basis exists for inferring error.

1. The general principles relevant to inferred error, and the totality principle, have recently been outlined by this court in Jackamarra v The State of Western Australia.[123] The authorities relating to the application of the totality principle where an appellant had sentences imposed at an earlier time were considered by this court in Labrook v The State of Western Australia.[124]
2. At times, Mr Kitto's arguments appeared to suggest that the trial judge effectively wrongly 'deducted' (as it were) only 4 months from the sentence he would otherwise have imposed on account of Mr Kitto's existing term of imprisonment for other offences of which he had been convicted and sentenced in the District Court and the Magistrates Court.[125] However, it was accepted that the question for this court was whether a total sentence of 7 years 8 months' imprisonment was a proper reflection of the total criminality involved in all of the offending, including the offending for which he was convicted in the case under appeal as well as the other offending for which he had been sentenced.[126]
3. This court was provided, by agreement between the parties, with the sentencing remarks of Bowden DCJ, in relation to the other offending for which Mr Kitto was sentenced in the District Court on 7 February 2017, and the sentencing remarks of Magistrate Scaddan, in relation to other offending for which Mr Kitto was sentenced in the Magistrates Court on 22 March 2017.
4. In the District Court on 7 February 2017, Bowden DCJ sentenced Mr Kitto for the following offences to which Mr Kitto had pleaded guilty:[127]
   1. One count of possession of methamphetamine[128] on 17 March 2016.
   2. Two counts of possession of a motor vehicle registration plate reasonably suspected of having been stolen on 17 March 2016.
   3. One count of possession of cannabis[129] on 25 March 2016.
   4. One count of giving false details to a police officer on 8 April 2016.
   5. One count of possession of cannabis with intent to sell or supply on 8 April 2016.
5. The amount of cannabis in relation to the last‑mentioned offence (possession with intent to sell or supply) was 8.38 kg, although not all of it was of high quality.[130] The offence carried a maximum penalty of 10 years' imprisonment, or a fine of $20,000, or both.[131]
6. Bowden DCJ gave Mr Kitto a total effective sentence of 2 years' imprisonment with eligibility for parole (after 12 months).[132] The total effective sentence comprised (1) a head sentence of 2 years' imprisonment for the possession of cannabis with intent to sell or supply, and (2) 1 month's imprisonment for each of the other offences, to be served concurrently with the head sentence.[133] The sentence was backdated to commence on 2 February 2017.
7. In the Magistrates Court, Mr Kitto pleaded guilty to a number of offences committed in August to October 2016, including burglary, possession of cannabis, giving false details to a police office, driving without a licence and certain traffic offences.[134] The burglary offence involved forcible entry into a locker in a locker room downstairs in the car park of the Scarborough Beach Hotel, and involved a large amount of money - approximately $4,000.[135] The magistrate, cognisant of the sentence imposed by Bowden DCJ, imposed a sentence of 4 months imprisonment in respect of the burglary offence to be served cumulatively on the sentence imposed by Bowden DCJ. The magistrate imposed terms of imprisonment, suspensions of licence, or fines for the other offences, with the terms of imprisonment to be served concurrently with the head sentence of 4 months' imprisonment for burglary. The total effective sentence of 4 months was cumulative, on top of the 2 years' imprisonment imposed by Bowden DCJ.[136]
8. In this case, the trial judge (correctly) understood that the combined term of imprisonment of 2 years 4 months was to take effect from 2 February 2017, and that this combined term of imprisonment would cease (putting aside any question of parole) on 3 June 2019.[137]
9. Comparable cases have some, albeit ultimately limited, utility in determining inferred error in this context.[138] In this case, in Mr Kitto's oral submissions, counsel emphasised the tragic personal circumstances affecting Mr Kitto in 2015/2016, to which the judge referred in the sentencing remarks at [73] ‑ [83] (referred to in [97] above), and submitted that these matters were 'powerful mitigati[139]factors'.139
10. The offences of which Mr Kitto was convicted at trial occurred on 11 and 12 August 2016 (collectively 'the ram‑raid associated offences'). They were preceded, by several months, by the offences for which Mr Kitto was convicted and sentenced by Bowden DCJ. Those offences occurred in March and April 2016. The ram‑raid associated offences were, in large part, followed by the offences for which Mr Kitto was convicted and sentenced by Magistrate Scaddan. The tragic circumstances referred to by counsel for Mr Kitto were no doubt matters to be given appropriate mitigatory weight. On the other hand, the overall offending involved a sustained pattern of serious law‑breaking over about an eight‑month period, including possession of cannabis with intent to supply or sell, burglary and the ram‑raid associated offences. The ram‑raid associated offences were objectively serious, as the State has submitted (see [109] above). They occurred whilst Mr Kitto was an adult and on bail. There was no plea of guilty, and the property was never recovered.
11. The trial judge carefully examined, in great and indeed in meticulous detail, all of the factors relevant to the sentencing of Mr Kitto. There was no suggestion that the judge had omitted relevant factors or took into account irrelevant factors. The mitigatory factors relied on by Mr Kitto in this appeal were expressly taken into account and given weight by the judge. As the State effectively recognised,[140] the sentence imposed by the sentencing judge was high, and the submissions advanced on behalf of Mr Kitto in this appeal are reasonably arguable. Nevertheless, in all the circumstances, it cannot be said that a total sentence of 7 years 8 months' imprisonment was beyond what might properly be taken as a reflection of the total criminality involved in all of the offending. None of the cases referred to by counsel for Mr Kitto points to a different conclusion. Accordingly, the sentence imposed by the trial judge was not unreasonable or plainly unjust, so that error cannot be inferred from the outcome of the exercise of the sentencing discretion. The total effective sentence bore a proper relationship to the overall criminality involved in all of the offending, viewed in its entirety and having regard to the circumstances of the case, including those referable to Mr Kitto personally.
12. The error alleged in the appeal against sentence has not been established.

1. At the hearing of the appeal, counsel for the State provided the court with what was said to be a transcript of Mr Kitto's electronic record of interview with the police on 16 November 2016. The State submitted that the transcript of the record of interview in the combined Blue and Green Appeal Book[141] was the wrong version of the document. Counsel for the State applied, in effect, to substitute the document handed up, for the version in the combined Blue and Green Appeal Book. The court received the version handed up by counsel for the State as MFI1 in the appeal. Counsel for Mr Kitto subsequently confirmed, in writing on 23 September 2019, that MFI1 was the correct version of Mr Kitto's electronic record of interview to be considered by the court in this appeal. Accordingly, the document marked as MFI1 will be received as part of the combined Blue and Green Appeal Book in lieu of the document at pages 127 - 178.

1. In light of the foregoing, the orders in each appeal should be:

1. The document marked MFI1 titled as 'transcript of WA Police recording interview' between the appellant as interviewee and Detective Talbot and Detective Emanuel as interviewers, dated 16 November 2016, is received as part of the combined Blue and Green Appeal Book in lieu of the document at pages 127 ‑ 178 of the combined Blue and Green Appeal Book.
2. Leave to appeal is refused on each ground of appeal.
3. The appeal is dismissed.

1. Leave to appeal is granted on the sole ground of appeal.
2. 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 Justice Murphy and the Honourable Justice Mazza

[1] The State of Western Australia v Kitto [2018] WASCSR 231.

[2] See sentencing remarks [1] - [28].

[22] Respondent's written submissions, pars 7 - 9, 15, 19; WB 25 - 26, 28 - 29.

[23] Reference is made to the transcript of the record of interview at 36.2, 47.2; BB 162, 173; though these portions of the transcript are blacked out in the BB, MFI 1 in the appeal shows those portions of the transcript without being blacked out.

[24] ts 1785 - 1792, 3036, 3038, 3103; transcript of the record of interview at 46.6; BB 172.

[33] Hall v Braybrook [1956] HCA 30; (1956) 95 CLR 620, 627 ‑ 628.

[34] See also Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1; Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45; Seymour v The Queen [2006] NSWCCA 206; (2006) 162 A Crim R 576; Rankins v The State of Western Australia [2018] WASCA 138 [29].

[35] R v Edelsten (1990) 21 NSWLR 542; (1990) 51 A Crim R 397.

[37] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593.

[38] The State refers to Mansfield v The State of Western Australia [2017] WASCA 178; (2017) 52 WAR 233 [111] by way of analogy.

[39] Rankins v The State of Western Australia [2018] WASCA 138 [134] ‑ [135], [141].

[43] Reference was made to ts 3108.7 - 3109.5.

[45] Reference is made to Nuhana v The State of Western Australia [2018] WASCA 79 [80], [82].

[46] R v Wood [2000] WASC 64.

[48] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [52].

[49] Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 541.

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

[52] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [195]; R v Gallagher [1998] 2 VR 671, 680, 686 ‑ 687, 699.

[55] Eric v The State of Western Australia [2019] WASCA 101.

[57] Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531 [67]; R v FAU [2019] QCA 126 [41].

[58] R v Glennon [1992] HCA 16; (1992) 173 CLR 592, 604.

[59] R v Webb (1992) 59 SASR 563, 578, referred to with approval in Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 80, 90. See also FAU [42] ‑ [44]. It has been observed that in some circumstances, directions are not appropriate because they might only draw attention to the inadmissible evidence giving it a prominence which it would otherwise not have received: R v Fraser [2001] QCA 187 [45]; R v Bricola [2017] QCA 51 [60] ‑ [62].

[60] BBH v The Queen [2012] HCA 9; (2012) 245 CLR 499 [94], and the cases therein cited.

[61] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (emphasis added).

[62] Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315, 325 (emphasis added).

[63] Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, 440 - 441. See also Winning v The Queen [2003] WASCA 245 [84]; R v Hortis [2004] VSCA 143 [18] ‑ [19]; R v Scott [2014] SASCFC 27.

[64] In Crofts, the majority went on to consider the potential application of the common form proviso and concluded that it could not apply in the circumstances: Crofts (441 - 442).

[65] Patel [67]; Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161 [31].

[66] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18]; see also King v The Queen [2012] HCA 24; (2012) 245 CLR 588 [53].

[68] Craig v The Queen [2018] HCA 13; (2018) 92 ALJR 390 [32].

[70] Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62 [12].

[71] Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493, 514.

[72] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [14].

[73] YBG v The State of Western Australia [2019] WASCA 126.

[80] In Rankins, Mazza JA (Hall J agreeing) also said that if there had been a miscarriage of justice within the meaning of s 30(3)(c), in the circumstances no substantial miscarriage of justice occurred for the purposes of s 30(4) of the Criminal Appeals Act. Buss P decided the case on the basis that there was no substantial miscarriage of justice within the meaning of the proviso.

[82] Rankins [132], [134] ‑ [136].

[84] Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13].

[86] See generally Santos v The Queen [1987] HCA 55; (1987) 61 ALJR 668, 672.

[87] Adopting the language in Longman, referred to in [67] above.

[90] See [33] above.

[91] Adopting and adapting the language of King CJ in Webb v The Queen (1992) 59 SASR 563, 578.

[92] See [46.3] above; cf MJS v The State of Western Australia [2011] WASCA 112 [154].

[94] R v Miller (1980) 25 SASR 170, 211.

[96] Gilbert [13]; Mansfield [110]; Webb v The Queen (53), (76 - 77); I v The State of Western Australia [2006] WASCA 204; (2006) 165 A Crim R 420 [14]; Lane v The Queen [2018] HCA 28; (2018) 357 ALR 1 [42]; Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, 22.

[97] Sentencing remarks [242] - [243].

[98] Sentencing remarks [41] - [54].

[99] Sentencing remarks [57] - [72].

[100] Sentencing remarks [73] - [83].

[101] Sentencing remarks [84] - [198].

[102] Sentencing remarks [199] - [201].

[103] Sentencing remarks [203] - [204].

[104] Sentencing remarks [217] - [220].

[105] Sentencing remarks [234] - [237].

[106] Sentencing remarks [239] - [246].

[107] Appellant's written submissions, pars 45 - 47; WB 51.

[108] Appellant's written submissions, pars 48 - 49; WB 51.

[109] Reid v Quigg [2007] WASC 35 [38].

[110] McLean v The Queen [1999] WASCA 209.

[111] Appellant's written submissions, pars 6 - 8, 51 - 53; WB 47, 51 - 52.

[112] Kolek v The State of Western Australia [2017] WASCA 180.

[113] Thompson v The State of Western Australia [2013] WASCA 1.

[114] Taylor v The State of Western Australia [2016] WASCA 38.

[115] Pryor v The State of Western Australia [2014] WASCA 143.

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

[117] Lesay v The State of Western Australia [2011] WASCA 154.

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

[122] Respondent's written submissions, par 37.

[123] Jackamarra v The State of Western Australia [2019] WASCA 150 [63] ‑ [64].

[124] Labrook v The State of Western Australia [2016] WASCA 127 [34] ‑ [40].

[127] District Court transcript in IND 1308 of 2016, 7 February 2017 (District Court Transcript), pages 8 - 9, 13, 20 ‑ 21.

[134] Magistrates Court transcript charges in JO 11561 ‑ 11563, 12215 ‑ 12217, 13286 ‑ 13291 and 13329 of 2016, MH 4566 ‑ 4568 of 2016 and PE 55028, 55029 and 58626 of 2016, 22 March 2017 (Magistrates Court transcript).

[135] Magistrates Court transcript 11, 13.

[136] Magistrates Court transcript 14 - 15.

[140] See [114] above.

[141] Combined Blue and Green Appeal Book 127 - 178.