MACKEY -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 120 (12 August 2025)

Count 4: Stealing the complainant's Holden motor vehicle, contrary to s 378 read with s 371A of the Code.

1. All of the offenders were convicted of counts 1, 2 and 3 after trial by jury. The appellant and Mr Jones were convicted of count 4 after trial by jury. Mr French and Mr Thorne were convicted of count 4 on their pleas of guilty entered at the commencement of the trial.
2. On 12 December 2022, the trial judge imposed the following sentences of immediate imprisonment on the offenders (which were to be served concurrently with each other unless otherwise stated):

1 year 2 months (cumulative, reduced from 3 years 3 months for totality)

1 year 6 months (cumulative, reduced from 2 years 6 months for totality)

1 year 6 months (cumulative, reduced from 2 years 6 months for totality)

1 year 6 months (cumulative, reduced from 2 years 6 months for totality)

1. Each of the offenders were made eligible for parole.
2. The sentences of Mr French, Mr Thorne and the appellant were backdated to take account of time which they had spent in custody on remand. In the appellant's case, the sentences were backdated to 18 August 2022.
3. At the time of being sentenced for the offences charged on the current indictment, Mr Jones was serving a sentence of 5 years' immediate imprisonment which had been imposed on 18 March 2022 for the offence of unlawfully doing grievous bodily harm. The trial judge ordered the sentences imposed on the current indictment to be served cumulatively upon that 5‑year sentence, resulting in an overall total effective sentence of 13 years 9 months' imprisonment for Mr Jones.
4. On 26 September 2024, this court allowed an appeal by Mr Jones against his sentences on the current indictment.[1] In doing so, the court rejected a ground of appeal which contended that the individual sentence imposed on Mr Jones for count 1 was manifestly excessive. The court also rejected a ground of appeal that Mr Jones' total effective sentence of 8 years 9 months' imprisonment for the offences charged in the current indictment infringed the first limb of the totality principle. However, the court found the overall total effective sentence of 13 years 9 months' imprisonment for all of Mr Jones' offending to infringe the first limb of the totality principle. The court substituted an overall total effective sentence of 11 years 6 months' imprisonment. The court did this by imposing the following sentences on the current indictment, which were to be served concurrently with each other but cumulatively upon the 5‑year sentence imposed for the grievous bodily harm offence:

6 years 6 months (head sentence, reduced from 7 years 6 months for totality)

1. On 3 October 2024, the appellant instituted the current appeal against his sentences. As the current appeal was instituted well out of time, the appellant requires an extension of time in which to appeal.
2. The appellant's grounds of appeal in substance contend that:
   1. The appellant's total effective sentence of 7 years 2 months' imprisonment infringes the first limb of the totality principle (ground 1(b)).
   2. The disparity between the substituted sentences imposed by this court on Mr Jones on the current indictment and the sentences imposed on the appellant by the trial judge infringes the parity principle (ground 1(a)).
   3. The lack of disparity between the sentences imposed on the appellant and Mr French and Mr Thorne infringes the parity principle (ground 2).
3. The appellant's appeal is largely a response to this court's decision in Mr Jones' appeal and was instituted promptly after the determination of Mr Jones' appeal. In these circumstances, we would grant the appellant's application for an extension of time in which to appeal.
4. However, in our view none of the appellant's grounds of appeal are established. The total effective sentence imposed on the appellant is not unreasonable or plainly unjust. The disparity between the sentences imposed on the appellant and Mr Jones is explained by the fact that Mr Jones' sentences on the current indictment are to be served cumulatively upon the 5-year sentence for the grievous bodily harm offence. The lack of disparity between the sentences imposed on the appellant and the sentences imposed on Mr French and Mr Thorne reflect the equivalent criminality involved in the offending of each of those offenders. We would refuse leave to appeal on all grounds and dismiss the appeal.

1. The trial judge made the following unchallenged findings as to the circumstances of the offending charged in the current indictment.
2. On 5 April 2020, the 28-year-old complainant was living at a property in Upper Swan. The building on the property was divided into two separate residences. The complainant's mother and her daughter (the complainant's half-sister) resided in the main house, while the complainant and his father resided in an extension built onto the main house. The complainant's niece (the child of the complainant's full sister) was staying at the main house that night, but the complainant's full sister was not.[2]
3. Mr Jones had been in a relationship with the complainant's full sister and was the father of the complainant's niece. The complainant had met Mr Jones on a handful of occasions. Mr Jones had previously visited the main house on the Upper Swan property for the purposes of having contact with his daughter. Mr Jones had not previously been inside the extension area of the property.[3]
4. On 5 April 2020, Mr Jones, Mr French and Mr Thorne were at the home of Reanna Hunstock (who was also charged on the current indictment but acquitted of all offences). They had been drinking and socialising together for some hours. Also present at Ms Hunstock's house was an unidentified co-offender who was referred to at trial as the 'young man'. Shortly after 10.00 pm, they decided to attend the Upper Swan property for the purpose of seeking to forcibly recover property of some kind.[4]
5. For this purpose, the group travelled to a service station in Upper Swan. Mr Jones and Mr French travelled on their motorcycles. Mr Thorne and the young man travelled in a car driven by Ms Hunstock. Mr Thorne telephoned the appellant and woke him from his sleep. The appellant then received the following text message from Mr Thorne:

Boys, say if you want to put some work in and shine, be at the Shell, Great Northern Highway, Upper Swan in 15.

The appellant understood the reference to the 'boys' to be a reference to Mr Jones and Mr French.[5]

1. The appellant met Mr Jones, Mr French, Mr Thorne, the young man and Ms Hunstock at the Shell service station less than 20 minutes before the offending. The appellant knew all five people. The group then travelled to the Upper Swan property. The appellant travelled in Ms Hunstock's car with Mr Thorne and the young man. Mr Jones and Mr French travelled on their motorcycles. A baseball bat and a home‑made wooden baton were transported to the Upper Swan property in Ms Hunstock's vehicle.[6]
2. The group arrived at the Upper Swan property shortly prior to 11.00 pm.[7] Mr Jones and the young man retrieved the baseball bat and baton from Ms Hunstock's vehicle. Windows to the house were broken prior to Mr Jones entering the house. During the course of the visit, likely prior to entry onto the premises, damage was caused to the rear window of the complainant's mother's Suzuki vehicle. The damage to the Suzuki vehicle was the subject of count 3 on the indictment.[8]
3. The complainant, who had gone to bed at around 9.00 pm, was awoken by the sound of the approaching motorcycles. The complainant got out of bed, walked into the living area of the house, switched on the lights and went to the glass sliding entry door to his home. He stood in the doorway with the front security screen door partially opened. He saw two motorcycles parked near the front gate of the property.[9]
4. Shortly after this, the complainant saw Mr Jones, who he recognised, pacing towards him from an area just past the paving. Mr Jones was carrying a baseball bat. Mr Jones shouted:

Where the fuck's your sister? I want my shit back.

When Mr Jones got to the sliding door, he kicked the security screen door, causing it to fall out of its tracks onto the paving. The complainant backpedalled into the house and came to stand in front of the couch. Mr Jones followed him in. Once inside the extension, Mr Jones stood about a metre and a half from the complainant and continued to shout at him.[10]

1. At this point, the complainant noticed four other men inside his unit, who he did not recognise. The young man was standing about a metre and a half to the complainant's left and was holding the wooden baton (which the complainant described as a metal bar). The other three men (the appellant, Mr French and Mr Thorne) were standing inside near the door.[11]
2. Very shortly after the complainant noticed the four men, the young man struck him on the head with the wooden baton. This caused an injury that immediately began to bleed profusely. Once the young man struck the complainant, Mr Jones began to strike the complainant to the head, body and back with the baseball bat. The young man also continued his assault. As Mr Jones and the young man repeatedly struck the complainant, he tried to get away and/or to protect himself. The complainant moved towards the back of the living room and was at one point crouched on the ground against the back wall, near to some couches that were stacked up along that wall. All the while he was being struck. Ultimately, the complainant came to be sitting on the couch that he had originally been standing in front of when he was first hit.[12] The above conduct was the assault of the complainant, while in the place of the complainant without his consent, charged in count 1 of the indictment.
3. At this point, Mr Jones stood in front of the complainant and demanded that the complainant give Mr Jones the complainant's car keys. As he did this, Mr Jones swung the baseball bat at the complainant's legs. The bat contacted the complainant's legs after striking the couch. Mr Jones struck the complainant several times before the complainant told Mr Jones that the keys were in the bedroom door lock. Once the complainant provided this information, the five men left, taking his car keys with them.[13] This conduct was the use of violence by Mr Jones in order to steal the complainant's car keys charged in count 2 of the indictment.
4. Shortly after this, the complainant heard his Commodore utility start. He went outside. He saw someone getting into the passenger seat of the utility and Mr Jones standing talking to someone in the driver's seat. The complainant asked for his wallet, which was in the Commodore utility. His request was ignored. The utility drove off. As it did so, the complainant noticed there was another vehicle parked outside the house. The car and the two motorcycles drove off. Mr Thorne drove the Commodore utility from the Upper Swan property. Less than a minute later, the two motorcycles drove back past the house.[14] The stealing of the Commodore utility was the subject of count 4 on the indictment.
5. The complainant then sat on a milk crate outside his home, whilst his father tried to tend to his injuries and his mother called an ambulance. Both parents had also been roused from their sleep and had made their way to the living room of the extension, where they each saw their son being assaulted.[15]
6. Following these events, the appellant returned to the Shell service station where he recovered his vehicle and returned home. The rest of the offenders travelled back to Ms Hunstock's home where the complainant's Commodore utility was parked in the street, up the road from her house, and the motorcycles were left parked in her garage.[16]
7. The complainant suffered multiple injuries. He sustained a 9 cm by 2 cm laceration to the right posterior parietal surface of his scalp (the top back of the head) which required stitches. He sustained fractures to three different parts of the area around and beneath his left lower eye, swelling and bruising to his right ear and bruising to his left ear. There were also linear marks and bruising to the complainant's back. This was the bodily harm relied on as a circumstance of aggravation in respect of the burglary offence.[17]
8. In addition, the complainant had bruising and red marks to his legs. This was the bodily harm relied on as a circumstance of aggravation in respect of the offence of assault with intent to rob.[18]
9. The complainant also sustained swelling and tenderness to the right palmar surfaces of the wrist and left palmar surface of the forearm. As a result of his injuries, the complainant was taken to the hospital where he remained until morning when he was released. It was the opinion of the treating medical practitioners that the above injuries interfered with his health and comfort.
10. The trial judge was satisfied that each of Mr Jones, Mr French and Mr Thorne attended the complainant's premises with the common intention of assaulting and threatening someone, if necessary. The appellant had joined in this common intention by the time he entered the complainant's premises. Mr Jones was the instigator of the enterprise, he escalated the violence by forcibly kicking the security door and entering the complainant's home, was involved in physically assaulting the complainant and demanded the complainant's car keys while striking him across the legs. Mr French, Mr Thorne and the appellant were willing participants in this enterprise. Each was knowingly and willingly present inside the complainant's residence, offering encouragement to Mr Jones and the young man. They were in the complainant's residence from the time shortly prior to the first blow struck by the young man until the complainant revealed the location of the keys to his utility. Mr French, Mr Thorne and the appellant were willing and able to assist Mr Jones and the young man in the assault on the complainant if required and/or to overcome resistance of others or to prevent the complainant from leaving. Each of them in the same way aided in the assault with intent to rob. Mr French and the appellant assisted in the stealing of the motor vehicle in the same way. While the trial judge could not find who damaged the Suzuki vehicle, that damage was a probable consequence of the unlawful common purpose for which each of the offenders were equally responsible.[19]
11. The trial judge made the following specific findings about the appellant's knowledge and participation in the offending:[20]

[Y]ou were a willing participant in this enterprise. You were not party to any discussions that occurred prior to your attendance at the Shell Service Station in Upper Swan, but you were willing to do Mr Jones' bidding, even though you were already in bed asleep when you received the call, and needed to get up very early in the morning for work.

Further, the electronic communications reveal that you went to the service station, knowing little about what would be required of you.

...

However, you had time to ascertain what was to be done when you met at the service station, and certainly by the time you were entering the property, you joined the common purpose to assault and threaten if required. You could not have failed to see the baseball bat, or the baton being carried by two of your companions, even in the unlikely event you did not see them being removed from Ms Hunstock's car, particularly if they were in the boot.

You, like Mr French and Mr Thorne, knew that weapons were to be involved in this offending, and in that knowledge, went into the house. You placed yourself in a position where you could assist Mr Jones and the young man, should you be required.

Likewise, you were in a position to prevent [the complainant] from leaving and/or restraining anyone who interfered. You did not, as you allege, leave the room at any time prior to the keys of the car being obtained.

Given your participation and your willingness to be involved, your criminal culpability is high, although not as high as Mr Jones, who instigated this matter and who was personally involved in the physical assault on [the complainant]. I accept you may not have been aware that there was an intention to steal a car, but when the demands were made, you continued with your support.

1. The complainant provided a victim impact statement in which he described the initial pain of his injuries, his embarrassment at being seen in public with obvious injuries to his face and the distress he felt seeing his father cry for the first time. While the physical injuries healed, the complainant has been left feeling fearful. The sound of vehicles pulling up at the house, of dogs barking, or of a motorcycle cause him to become stressed and worried about an attack. He worries about his safety when the offenders are released from prison. The trial judge described the consequences for the complainant as significant.[21]

1. The trial judge made the following unchallenged findings as to the offenders' personal circumstances.

1. The appellant was 27 years old at the time of the offending. He was born and raised in rural communities in Western Australia, the middle of three children born to his parents who remained supportive of him. The appellant was diagnosed with ADHD at the age of 10 and was medicated to the age of 20. He left school part way through year 10, and obtained a boilermaker apprenticeship. He had been employed since that time, predominantly as a welder. The appellant was married and has a 5‑year‑old son, with whom he had a close relationship. The trial judge received many references from the appellant's family and friends, which indicated that he had been a hardworking and contributing member of the community.[22]
2. In relation to the appellant's criminal record, the trial judge observed:[23]

You too have a criminal record which, whilst not extensive and comprises predominantly of traffic matters, does involve an occasion when you were convicted of a number of wilful damage and trespass offences. You have only though ever received modest fines, and I will not give your record any real weight, save to say that you do not come before me as a person of prior good character.

1. Mr Jones was 31 years old at the time of the offending. Mr Jones was one of four children born to his parents who were taken from his mother's care when Mr Jones was about 6 years old. He then suffered abuse as a child. He was diagnosed with ADHD when he was 6 years old, which affected his concentration at school and for which he received medication. He left school at year 10 and obtained various trade qualifications principally in sheet metal fabrication and as a fitter machinist. Mr Jones had worked continuously in these areas since leaving school and at times ran his own fabrication business. There will be work for Mr Jones in his father's business on his release. Mr Jones has four children to three different women, including a 9‑year‑old boy with a serious neurological condition and his eldest son who is in State care.[24]
2. Mr Jones had used drugs from a young age. He began experimenting with cannabis at the age of 11 and was a daily user of that drug by the time he was 16 years old. He ceased regular use of cannabis at the age of 20 but continued heavy consumption of alcohol. Mr Jones began inhaling cocaine when he was 25 and was using the drug daily from the age of about 29 years. This continued until Mr Jones was remanded in custody about two and a half years prior to sentencing.[25]
3. Mr Jones had a criminal record which, while not particularly long, involved two relevant and significant prior convictions:[26]
   1. In February 2020, Mr Jones was convicted of being armed to cause fear, when he brandished what the trial judge described as a jack handle at a man whom he encountered and had a verbal argument with at the Coles Express in Upper Swan.
   2. On 18 March 2022, Mr Jones was sentenced to 5 years' immediate imprisonment, backdated to 6 April 2020, for causing grievous bodily harm to a person he encountered at a service station. Mr Jones struck the victim of that offence from behind with his arm that was then in a cast. The victim was knocked unconscious, and he fell forward onto the ground, causing a very serious injury to his neck. The assault was deliberate and, whilst the victim who was very drunk may well have been a nuisance, he had not been behaving aggressively, nor was he threatening Mr Jones or his companions. Mr Jones showed little remorse for that offending and any remorse he did show was found to be tempered by the fact that he downplayed the seriousness of his offending.

Mr Jones was on bail when he committed the offences which are the subject of the current indictment.

1. While in custody, Mr Jones was well behaved and used his time productively, including by undertaking rehabilitation and educational courses, to attempt to address issues identified by a psychiatrist.[27]

1. Mr French was 26 years old at the time of the offending. He was born and raised in Western Australia and was the youngest child of his parents who separated when Mr French was 2 years old. Mr French's father died in a car accident when Mr French was 11 years old. Mr French maintained a good relationship with his mother but a strained relationship with his stepfather.[28]
2. Mr French attended several primary schools and was a good student but was diagnosed with ADHD and placed on medication. When Mr French was in year 9, his family relocated to Karratha, which Mr French found difficult. At about this time, Mr French stopped taking his ADHD medication and started using cannabis, which he was smoking daily by the time he was 15 years old. He left school halfway through year 11 and obtained work as a tyre fitter.[29]
3. Mr French met his first partner when he was about 17 years old, and they were together for about seven years. They have a son who has autism and who was about 6 years old at the time of sentencing. After the relationship ended, the partner relocated to the eastern states. Mr French met his current wife in 2018, and they have a child who was 2 years old at the time of sentencing.[30]
4. Mr French had a criminal record, largely as a juvenile. His adult record includes a conviction for assault occasioning bodily harm, committed in July 2018. On 4 January 2021, he was sentenced to 8 months' imprisonment, suspended for 12 months, for that offence. Mr French had also been convicted of possessing a controlled weapon in January 2018.[31]

1. Mr Thorne was 26 years old at the time of the offending. He was born in Victoria and spent his childhood and adolescence in Queensland. His family relocated to Western Australia in 2008. Mr Thorne had a stable upbringing which he shared with his older sister. Mr Thorne completed year 12 and then a carpentry apprenticeship. He has worked predominantly in the mining industry since that time.[32]
2. In 2019, Mr Thorne sustained a serious ankle injury at work, which required multiple surgeries and protracted rehabilitation. Shortly before the ankle injury, the relationship between Mr Thorne and his former partner (which began when Mr Thorne was 18 years old) broke down. During this time Mr Thorne began drinking heavily, associating with negative peers and using drugs, notably cocaine.[33]
3. Mr Thorne had only a very minor criminal record, involving traffic matters for which he received fines.[34]

1. The offences charged in counts 1 and 2 of the present indictment involved various pleaded circumstances of aggravation which increased the applicable maximum penalties.
2. In the case of count 1, the offenders were armed with offensive instruments, were in company with each other, did bodily harm to the complainant, and knew or ought to have known that there was another person in the Upper Swan property which was ordinarily used for human habitation. The maximum penalty for this offence in the circumstances was 20 years' imprisonment.
3. In the case of count 2, the offenders were armed with offensive instruments, were in company with each other, and did bodily harm to the complainant. The maximum penalty for this offence in the circumstances was life imprisonment.
4. The maximum penalties for the offences charged in counts 3 and 4 were 10 years' imprisonment and 7 years' imprisonment respectively.

1. By ground 1(b), the appellant contends that the sentence imposed by the trial judge infringed the first limb of the totality principle by ordering the accumulation of the sentences imposed on counts 1 and 2 of the indictment.
2. The first limb of the totality principle was described in the following terms by this court in MYB v The State of Western Australia:[35]

As explained by the High Court in Mill v The Queen [[1988] HCA 70; [1988] HCA 70; (1988) 166 CLR 59, 62 - 63], the effect of the totality principle is to require a sentencing judge who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. This common law principle has also been acknowledged by statute in s 6(3)(b) of the Sentencing Act.

In Western Australia, it is well established that the totality principle comprises two limbs. In the present case, only the first limb of the totality principle is alleged to have been infringed. The first limb requires that the total effective sentence imposed by a sentencing judge must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to both the circumstances of the case, including those referable to the offender personally, and the desirability of keeping alive his or her wish to rehabilitate [Roffey v The State of Western Australia [2007] WASCA 246 [24], citing Woods v The Queen (1994) 14 WAR 341, 352].

The totality principle is applicable to cases other than where a single judge is sentencing an offender for more than one offence. The totality principle may apply, at least by way of analogy, even when the sentences for prior offences have been completed. [See Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [7] and, more generally, see Merrit v The State of Western Australia [2019] WASCA 203 [44] - [52]].

The rationale for the totality principle was explained by Anderson J (with whom Pidgeon & Ipp JJ agreed) in Vlek v The Queen [(Unreported, WASCA, Library No 990153C, 29 March 1999) 10], as follows:

'[W]hen a second sentencing court is considering the imposition of a cumulative sentence, there are mitigating factors arising out of that circumstance itself. When a sentence is to be cumulative on sentences already being served there is usually a discount, and the reasons for this include, no doubt, the instinctive acceptance by sentencing courts that a cumulative sentence is, in itself, a harsher sentence than one of the same length which is to take effect immediately ... Furthermore, ... the second sentencing court may see (or assume) that the prisoner has made progress towards rehabilitation during the term of the first sentence. In addition, there is not the same demand for retribution where the prisoner has already suffered loss of liberty and where there has already been an 'emphatic denunciation by the community' of his or her criminal behaviour and attitude ... Neither is there the same requirement in the second sentence for personal deterrence because that most likely will already have been achieved in large measure by the first sentence. In other words, not as much emphasis is required in passing the second sentence on matters such as prevention, denunciation, deterrence and reform as would otherwise be the case.'

1. The appellant's submissions in support on this ground focus on the fact that the appellant was not found to have engaged in any violence towards the complainant or to have been armed.[36] The appellant contends he was not proven to be liable under s 7(a) of the Code as a person who 'actually did' the acts which constituted the offences charged in counts 1 and 2 of the indictment. Rather, the appellant's criminal responsibility for the offences charged in counts 1 and 2 of the indictment arose:

(a) under s 7(b) and (c) of the Code, in that by his presence in the complainant's residence he aided, and did an act for the purpose of aiding, the assault on the complainant by the young man and Mr Jones referred to at [22] above and Mr Jones' use of violence for the purpose of stealing the car keys referred to at [23] above; and

(b) under s 8 of the Code, in that the assault on the complainant by the young man and Mr Jones referred to at [22] above and Mr Jones' use of violence referred to at [23] above were offences of such a nature that their commission was a probable consequence of the prosecution of the unlawful purpose of assaulting and threatening someone at the Upper Swan property, the appellant having formed the common intention of prosecuting this unlawful purpose with Mr Jones, Mr French, Mr Thorne and the young man.

1. The appellant submits that, in contrast to Mr Jones, the appellant engaged in no different or other conduct in relation to count 2 to that which made him liable on count 1. The appellant submits that, whether his liability depended on s 7 or s 8 of the Code, his conduct was the same single continuing course of conduct throughout. It involved being present in a manner which aided the commission of the offences which constituted aiding under s 7 and forming the common intention with his co-offenders to prosecute the unlawful purpose under s 8 of the Code. The appellant submits that, in the particular circumstances of this case, an aggregate sentence of 7 years 2 months' imprisonment for counts 1 and 2 is excessive to achieve relevant sentencing objectives in the case of the appellant and is disproportionate to the gravamen of his offending conduct.[37]
2. We do not accept the submission summarised in the previous paragraph. The appellant was charged with separate offences in counts 1 and 2, constituted by separate acts which occurred at separate times (albeit that the conduct charged in count 2 immediately followed from the conduct in count 1). It is relevant to the assessment of the overall criminality involved in all of the appellant's offending to note that his criminal responsibility arose under s 7(b), s 7(c) and s 8 of the Code rather than as the person who 'actually did' the acts which constituted the offences. However, no double punishment is involved in punishing the appellant for both offences for which he is criminally responsible in that manner. The assessment of the appellant's overall criminality properly took into account the two separate offences for which the appellant was criminally responsible. The fact that the appellant's criminal responsibility for those offences arose in the manner described at [53] above did not preclude some degree of accumulation of the sentences imposed on counts 1 and 2 of the indictment.
3. Further, as counsel for the respondent submits, the appellant willingly aided and supported Mr Jones, as his criminality moved from forcibly entering the dwelling and assaulting the complainant to using violence to steal the complainant's car keys. The appellant was, throughout, physically present, providing support, and willing to assist further if required. The appellant's ongoing support of Mr Jones' conduct the subject of count 2 involved criminality going beyond his support of the earlier conduct the subject of count 1.[38]
4. In addition, in determining the appropriate total effective sentence, the trial judge was required to assess the overall criminality involved in all of the appellant's offending. This included the offending charged in counts 3 and 4 of the indictment. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up.[39] The appellant's focus of the accumulation of the sentences imposed for counts 1 and 2, after a reduction of the length of the sentence imposed for count 2 for totality, is therefore inapt. The trial judge's conclusion that a total effective sentence of 7 years 2 months' imprisonment reflected the appellant's overall criminality for all of the offending charged in counts 1 - 4 of the indictment did not involve any error of principle and was not unreasonable or plainly unjust. Having properly reached that conclusion in the exercise of her Honour's sentencing discretion, it was open to the trial judge to give effect to the conclusion by reducing the sentence for count 2 which she would otherwise have imposed and ordering that sentence to be served cumulatively upon the sentence for count 1 while the sentences for counts 3 and 4 were to be served concurrently.
5. For these reasons, ground 1(b) is not established.

1. Ground 1(a) and ground 2 contend that the sentences imposed on the appellant infringed the parity principle. The appellant contends that an objectively justifiable sense of grievance arises from the fact that he received a longer sentence than what was ultimately imposed on Mr Jones for the offending the subject of the current indictment despite Mr Jones' criminality being significantly greater. He also contends that the lack of disparity between the sentences imposed on the appellant and the sentences imposed on Mr French and Mr Thorne gives rise to an objectively justifiable sense of grievance in circumstances where their criminality was greater than his.

1. It is common ground that the relevant general principles are those summarised by this court in Peagram v The State of Western Australia:[40]

The parity principle is an aspect of equal justice. Equal justice requires that like offenders should be treated alike but, if there are relevant differences, due allowance should be made for them. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done.

The parity principle requires that the sentences imposed upon co‑offenders be proportionate to the co‑offenders' respective degrees of culpability, to the aggravating and mitigating factors that apply to each of them and to their personal circumstances and antecedents. The sentences imposed upon co‑offenders must reflect any differences between them in relation to those matters.

The imposition of identical sentences upon co‑offenders whose respective conduct and antecedents warrant different sentences is unjust. Similarly, the imposition of different sentences upon co‑offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case. (citations omitted)

1. The parity principle is concerned with substance rather than form, and the manner in which the principle is to be applied will vary according to the facts and circumstances of the case. All factors relevant to the offenders, the offences they have committed and the sentences they have received must be evaluated and taken into account in determining whether the parity principle has been infringed. The relevant factors will vary according to the facts and circumstances of the case, but those factors will ordinarily include, for example:[41]

(a) the objective seriousness of each offence which each offender has committed;

(b) the culpability of each offender and the aggravating and mitigating factors in relation to each offence which he or she has committed;

(c) whether all of the offences are common to the offenders or whether some of the offences are separate or unrelated and were not committed by all of the offenders;

(d) each sentence imposed on each offender for each offence (both common offences and separate or unrelated offences) which he or she has committed;

(e) whether the sentences imposed on the offenders have been backdated or ordered to be served wholly concurrently, partly concurrently or cumulatively;

(f) the total effective sentence imposed on each offender for the common offences, the total effective sentence imposed on each offender for any separate or unrelated offences and the overall total effective sentence imposed on each offender;

(g) whether any of the offenders were serving terms of imprisonment for other offences when they began serving the sentences about which complaint is made;

(h) the non-parole period to be served by each offender; and

(i) the personal circumstances and antecedents of each offender.

1. In Higgins, Pritchard JA (Beech JA agreeing) noted that:[42]

In a case where one or more of the co‐offenders has been sentenced for multiple offences, a comparison of the sentence imposed on each co‑offender for the common offences alone may be of limited practical utility, especially if the sentence which was initially identified as commensurate with the criminality of the offending has been reduced for totality purposes. In a case of that kind, the total effective sentence, which will reflect the offender's overall criminality for all of the conduct for which he or she is sentenced, may be a more meaningful comparator for parity purposes in those circumstances.

1. A manifest disparity in any component of the punishment imposed on co-offenders (such as the sentence imposed in respect of an individual count), which is not explicable by differences in the circumstances of the co‐offenders, or by the application of sentencing principles (such as the totality principle), is liable to result in the appearance of injustice to an objective observer, and a justifiable sense of grievance for the co‑offender subjected to the greater punishment.[43]
2. In Higgins, Beech JA observed:[44]

Nor, in my view, are fundamental principles concerning parity consistent with a hard and fast rule that, in cases of co‐offenders in respect of whom only some offences are common, the only correct or relevant comparison is between the total effective sentences. Parity is founded on the norm of equal justice. That norm may be engaged by a marked disparity in the respective sentences imposed on co‐offenders in relation to a single common offence, or the respective total sentences imposed in relation to multiple common offences, even though one, or both, of the co‐offenders was sentenced for other offences. The basic notion underpinning parity as a distinct ground of appellate intervention is the desirability that 'persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence'.

...

In my view, it is open to an appellant to contend that the individual sentence imposed on a co‐offender in respect of a common offence, or that the total sentence imposed for the common offences, reveals or suggests an infringement of the parity principle, notwithstanding that either or both of the appellant and the co‐offender were also sentenced for other offences. In other words, parity analysis is not, in all cases, confined exclusively to a comparison of total effective sentences.

Disparity between the sentences imposed on the appellant and Mr Jones

1. As the trial judge appropriately recognised, the degree of criminality involved in Mr Jones' commission of the offences charged in the current indictment was greater than the appellant's. Mr Jones was the instigator of the offending and was one of the persons who assaulted the complainant. The appellant's antecedents were better than those of Mr Jones. Other things being equal, it would be expected that the appellant would receive a lower sentence than Mr Jones for the same offences in the current indictment of which they had both been convicted.
2. However, other things were not equal as between Mr Jones and the appellant. The significant difference was that Mr Jones was already serving a sentence of 5 years' immediate imprisonment when he was sentenced for the offences charged in the current indictment. The need to take account of that sentence in applying the totality principle was the reason why this court imposed a lower sentence on Mr Jones than had been imposed on the appellant. The application of the totality principle explains why Mr Jones received a lower sentence than the appellant for the offences charged in the current indictment.
3. The present case is one where the overall total effective sentences imposed on Mr Jones and the appellant provide a more meaningful comparator than the sentences for the offences charged in the current indictment. Mr Jones ultimately received an overall total effective sentence of 11 years 6 months' imprisonment, as compared to the appellant's total effective sentence of 7 years 2 months' imprisonment. The overall total effective sentence received by Mr Jones was 4 years 2 months longer than that received by the appellant. That difference appropriately reflects Mr Jones' commission of the grievous bodily harm offence, his greater criminality in committing the offences charged in the current indictment, his less favourable antecedents and the application of the totality principle.
4. Having regard to all of the circumstances of the case, the difference in the sentences imposed on Mr Jones and the appellant does not give rise to a legitimate or justifiable sense of grievance, nor give the appearance in the mind of an objective observer that justice has not been done.

Lack of disparity of appellant's, Mr French's and Mr Thorne's sentences

1. Ground 2 challenges the trial judge's conclusion that, 'when proper allowance is made for the points of distinction, there is no reason to impose different sentences on each' of the appellant, Mr French and Mr Thorne.[45]
2. We do not accept the appellant's submission to the effect that the criminality involved in his offending was less than that involved in the offending by Mr French and Mr Thorne. Those three men were found to have played the same role at the Upper Swan premises, joining with Mr Jones and the young man in the prosecution of the unlawful common purpose and by their presence aiding the commission of the offences by Mr Jones and the young man. As he was not at Ms Hunstock's residence at the time the common intention to prosecute the unlawful purpose was formed, the appellant joined in the common intention at a later time than his co-offenders. However, the trial judge found that the common intention was formed after 10.00 pm, less than an hour before the offenders' entry into the Upper Swan premises. Uncontroversial evidence at trial indicated that Mr Thorne telephoned the appellant at 10.18 pm and exchanged text messages with him from 10.20 pm to 10.27 pm. The appellant is first seen at the Shell service station shortly after 10.30 pm. The trial judge found that the appellant was aware that weapons were to be taken into the Upper Swan property before he entered the premises. Entry into the Upper Swan property was effected shortly prior to 11.00 pm. In the circumstances, we do not regard the appellant's later entry into the common purpose, or possible later appreciation that weapons would be used, as diminishing to any large degree the criminality of his conduct as compared to that of Mr French and Mr Thorne. The roles of each in the offending were the same, and each of Mr French, Mr Thorne and the appellant formed or joined in the unlawful common purpose less than an hour before the offending began.
3. The antecedents of the appellant, Mr French and Mr Thorne were broadly similar, and the relatively minor differences between them tended to cancel each other out. Mr French and Mr Thorne pleaded guilty to the stealing of the motor vehicle charged in count 4. Mr Thorne had a less serious criminal record than the appellant, while Mr French's criminal history was broadly similar to the appellant's. Each of Mr French and Mr Thorne had drug issues which the appellant did not. The differences in these offenders' antecedents did not demand that a different lesser sentence be imposed on the appellant.
4. Although it is not the subject of a ground of appeal, the appellant submits that the trial judge erred in concluding that the appellant did not come before the court as a person of good character in the passage quoted at [35] above. We do not accept that any error was involved in this orthodox statement as to the impact of the appellant's prior criminal record.
5. Having regard to all of the circumstances of the case, the lack of difference in the sentences imposed on the appellant and on Mr French and Mr Thorne does not give rise to a legitimate or justifiable sense of grievance, nor give the appearance in the mind of an objective observer that justice has not been done. Ground 2 is not established.

1. As noted above, we would grant the appellant an extension of time in which to appeal. However, as in our view neither of the appellant's grounds of appeal have a reasonable prospecting of succeeding, leave to appeal should be refused on all grounds and the appeal should be dismissed.
2. We would therefore make the following orders:
   1. The appellant's application for an extension of time in which to appeal is granted.
   2. Leave to appeal is refused on all grounds of appeal.
   3. The appeal is dismissed.

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

[1] Jones v The State of Western Australia [2024] WASCA 115.

[35] MYB v The State of Western Australia [2024] WASCA 53 [86] - [89].

[36] Appellant's submissions [30], [34] (White AB 18, 21).

[37] Appellant's submissions [37], [40], [43] (White AB 21, 22).

[38] Respondent's submissions [38] (White AB 43).

[39] Roffey v The State of Western Australia [2007] WASCA 246 [26].

[40] Peagram v The State of Western Australia [2024] WASCA 144 [54] - [56].

[41] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 [52] - [53], [184], applied in Garlett-Exell v The State of Western Australia [2020] WASCA 179 [49].

[42] Higgins [207], cited with approval in Garlett-Exell [50].

[43] Higgins [179], [200], [208], cited with approval in Garlett-Exell [51].

[44] Higgins [177], [182], cited with approval in Garlett-Exell [52].