PUNTIGAM -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 46 (29 March 2023)

[2023] WASCA 46

Court of Appeal (WA)|2023-03-29|Before: Buss P

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Source facts

Court

Court of Appeal (WA)

Decision date

2023-03-29

Before

Buss P

Source

Original judgment source is linked above.

Judgment (64 paragraphs)

[1]

For the reasons given in respect of Puntigam's sentence appeal, these were serious offences that entirely justified the imposition of cumulative sentences of imprisonment. Bacich had some relevant mitigating factors, but not the history of childhood trauma and deprivation that was present in the case of Puntigam.
Neither of the two cases referred to by Bacich are truly comparable. They involved different groupings of offences and the circumstances of the offending are not even broadly similar to that of the appellant. In both of those cases the offenders pleaded guilty and received discounts for doing so - a factor not present here. In Mamkin the offender had the significant mitigating factor of youth - a factor not present here. In any event, the purpose of referring to comparable cases is to ensure that there is consistency in the application of sentencing principles. No benefit is derived from reference to a sample of only two cases in which appeals against sentence were dismissed.
As with Puntigam, the sentencing judge reduced the appellant's sentence on count 1 for totality reasons. That reduction had the effect of ensuring that the total effective sentence properly reflected the overall criminality.
Having regard to the circumstances of the offences, the maximum penalties, the standards of sentences customarily imposed for offences of these types and the personal circumstances of the appellant, the total effective sentence imposed on Bacich was not unreasonable or unjust.
There is no merit in this ground of appeal. Leave in respect of it should be refused.

[2]

Legislation Cited (6)

Criminal Code Act 1899(Qld)

Criminal Code Act 1902(WA)

Criminal Code Act 1913(WA)

Criminal Law Amendment Act 1986(WA)

Compilation Act 1913(WA)

Criminal Code Act 1924(Tas)

Cases Cited (22)

[I]t may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground: see Robinson v Canadian Pacific Railway Co ([1892] AC 481, at p 487), cited in R v Scarth ([1945] St R Qd 38, at p 44). If the Code is to be thought of as 'written on a palimpsest, with the old writing still discernible behind' (to use the expressive metaphor of Windeyer J in Vallance v The Queen ([1961] [1961] HCA 42; 108 CLR 56, at p 76)), it should be remembered that the first duty of the interpreter of its provisions is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance.

The purpose of s 8 is to extend the criminal responsibility of the parties to a common purpose to an offence other than that which was intended to be committed. The section limits the extension of that responsibility by requiring that the nature of the offence committed be such as to be a probable consequence of the common purpose. The test of probable consequence reflects the historical approach of the common law ... Responsibility does not depend upon the foresight of the parties to the common purpose. Although the common law has come to embrace such a test, the test in s 8 is an objective one (Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426 at 442 per Gibbs J, Menzies and Mason JJ agreeing).

(2009) 236 CLR 397

(1998) 194 CLR 355

(1973) 133 CLR 209

(1961) 108 CLR 56

(2007) 230 CLR 89

(1974) 134 CLR 426

(2016) 49 WAR 545

(1936) 55 CLR 253

(2020) 270 CLR 323

(2009) 239 CLR 27

(1997) 187 CLR 384

(2017) 262 CLR 362

(2018) 264 CLR 62

(2005) 224 CLR 300

(1997) 188 CLR 1

(2022) 403 ALR 200

(2006) 227 CLR 373

(1980) 143 CLR 108

(1986) 161 CLR 10

(1980) 144 CLR 319