RANGER -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2026] WASC 49 (24 February 2026)

1. On 31 January 2025 the appellant was sentenced by the Magistrates Court at Karratha to a total effective sentence of 3 years' immediate imprisonment, backdated to 2 November 2024. The sentence was comprised of:

(a) 1 year and 6 months' imprisonment (head sentence), for being armed or pretending to be armed in a way that may cause fear (KH 3323/2024);

(b) 1 year and 6 months' imprisonment (cumulative) for being armed or pretending to be armed in a way that may cause fear (PE 61330/2024);

(c) 1 year imprisonment (concurrent) for having carried an article with intent to cause fear that someone will be injured or disabled (KH 3481/2024);

(d) 6 months' imprisonment (concurrent) for criminal damage or destruction of property (PE 61331/2024);

(e) 3 months' imprisonment (concurrent) for without lawful excuse having trespassed on a place (KH 3325/2024);

(f) 3 months' imprisonment (concurrent) for without lawful excuse having trespassed on a place (PE 61329/2024); and

(g) 3 months' imprisonment (concurrent) for obstructing public officers (KH 3324/2024).

1. The appellant appeals his sentence on two grounds, that:
   1. the total sentence of 3 years' imprisonment infringed the first limb of the totality principle in that the aggregate sentence does not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances (ground 1); and
   2. the sentence of 18 months' imprisonment for charges of being armed in a way that may cause fear, numbers KH 3323/2024 and PE 61330/2024, are manifestly excessive in the light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of offending, and the personal circumstances of the offender (ground 2).

1. The facts of the offending were read out by the prosecutor on 31 January 2025. The appellant took no issue with the facts as read during sentencing or in this appeal. In the submissions filed on behalf of the appellant in advance of the appeal, the facts of the offending were summarised,[1] which summary was acknowledged by the respondent as being accurate.[2]
2. Reproduced below are the facts for each offence in summarised form based on the sentencing transcript,[3] in language consistent with the appellant's summary.
3. As was recorded on behalf of the respondent, the majority of charges arose from two separate incidents which both involved the appellant climbing onto the roof of residential properties he was not associated with. On each occasion, the appellant was armed - the first time with a metal pole around 1.5 metres in length, and the second time with two knives that were taped together and a small hammer. Police intervention was required at each incident. On both occasions the appellant was aggressive and threatening to those who attempted to persuade him to come down.[4] A final charge of carrying an article with intent to cause fear arose after the appellant, while riding his bicycle, was stopped by police who located on his person two knives with blade lengths of 20.5 and 15 centimetres, respectively.[5]
4. As the offending the subject of the final charge occurred first in time, the facts of that offending is summarised below, then the two separate incidents from which the majority of charges arose.

KH 3481/2024 - Carried or possessed an article with intent to cause fear

1. On 27 October 2024 at 2.30 pm, the appellant was riding a bicycle on Broadhurst Road near Dampier Highway in Millars Well. Police on patrol stopped the appellant in order to conduct a search under the Misuse of Drugs Act 1981 (WA). Prior to conducting that search, the appellant advised police that he was in possession of two knives. Police located a kitchen knife approximately 33 centimetres in length with a 20.5 centimetre blade in the waistband of the appellant's shorts on his right side with the handle poking out of the top of his shorts. Another kitchen knife approximately 27 centimetres in length with a 15 centimetre blade was located in the appellant's right pocket with the blade sticking out.
2. The appellant told police that he used the knives to cut meat at his relative's house while smoking cannabis, and that there would be traces of meat on the blades. It is known to police that the appellant's relative is in prison and that house is abandoned. Further, the blades of the knives showed no traces of meat. The knives were seized and the appellant was summonsed.

KH 3323/2024 - Being armed in a way that may cause fear; KH 3324/2024 - Obstructing public officers; KH 3325/2024 - Without lawful excuse trespassed on a place; PE 61331/2024 - Criminal damage or destruction of property (Nickol offending)

1. On 27 October 2024 at approximately 6.50 pm, the appellant was observed on the roof of a residence located in Nickol by a neighbour of the property. Police attended the property at about 7.45 pm and the appellant was still on the roof, standing on top of a solar hot water unit holding a metal pole approximately 1.5 metres in length.
2. The appellant was threatening to kill and hurt anyone that might come up onto the roof. The appellant was asked on numerous occasions to put the pole down, which at times he complied with, however after a short period he would pick up the pole again.
3. While the appellant was on the roof, standing on the top of the hot water solar system holding onto a metal pole, the appellant broke off the antenna from the roof in order to arm himself. The appellant then broke off a smaller metal pole from the antenna and tucked it into his pants.
4. There were numerous resources present at the scene, including the Department of Fire and Emergency services. The appellant remained on the roof for approximately seven hours, despite numerous requests to get off.
5. On 28 October 2024 at about 2 am, the appellant left the pole on the roof and came down from the roof after being convinced to do so by a police negotiator. The appellant was then conveyed to the police station, where no explanation was offered.
6. On 31 October 2024 the victim (the occupier of the property) returned home from Perth and located the remainder of the antenna on the ground near his carport. He contacted police and advised that the antenna had not been broken when he left his house on 21 October 2024. The estimated cost of repairs for the broken antenna was $500.

PE 61329/2024 - Without lawful excuse trespassed on a place; PE 61330/2024 - Being armed in a way that may cause fear (Millars Well offending)

1. On 2 November 2024 at approximately 5 am, the accused was at a residence in Millars Well. The victim and his family were inside the address at the time. The victim heard banging on the roof of his house and checked his CCTV cameras and saw the appellant, who was not known to him, approach his carport, climb up the fence and climb onto the roof. The victim contacted his father in law who attended the address to help, and contacted police.
2. The father in law advised the appellant to get off the roof and leave, but the appellant refused to do so. The father in law then climbed onto the roof to continue speaking with the appellant.
3. The father in law approached the appellant and attempted to get him to climb down, and was within one metre of the appellant when he saw that he was holding a double-edged knife in his right hand. The appellant asked the father in law if he wanted to 'smash'. The father in law quickly got off the roof as he was fearful that the appellant might use the knives. The victim saw the appellant holding two knives in his hands and was fearful of his father in law's safety.
4. Police attended shortly after and spoke with the appellant and convinced him to get off the roof. The appellant was searched, and no knives were located on him. Police searched the roof and located two knives that were taped together approximately 30 centimetres in length and a small hammer with a knife taped to the end, approximately 30 centimetres in length.
5. The appellant was arrested at around 5.30 am in relation to another matter, and was conveyed to the Karratha Health campus for a mental health assessment and then to the police station.

The appellant's personal circumstances and matters raised in mitigation

1. The appellant was 38 years old at the time of the offending. He has an extensive criminal history, having consistently offended from the age of 12. As was observed on behalf of the respondent, his convictions mainly comprised convictions for breaches of community based dispositions, possession of weapons, violence, burglaries, stealing, and other nuisance related offending.[6]
2. In the course of the sentencing hearing, the learned Magistrate and the police prosecutor referred to the respondent's previous offending and noted that it included similar offending to the Nickol and Millars Well offending, that is, the appellant had been armed in a way that may cause fear, exposing the public to risk and criminal damage, having climbed onto a roof and having refused to come down.[7]
3. As was noted by counsel for the appellant, in mitigation the following information was put before the Magistrate:[8]

(a) the appellant had had a difficult life, including a difficult childhood with his father being abusive;

(b) the appellant's adult life had consisted of multiple periods of incarceration which had affected his ability to adjust back into society;

(c) the appellant has undiagnosed mental health issues, including paranoid beliefs of being chased. When those paranoid beliefs manifest, the appellant believes that the safest course is to get on the roof of a house and request police involvement; and

(d) the appellant pleaded guilty at an early opportunity.

1. Before the Magistrate, it was acknowledged that the appellant's mental health issues may be as a result of substance abuse, or that they may be aggravated by it.[9] It was also noted that the appellant had been in custody since 2 November 2024,[10] and that he had pleaded guilty at the earliest opportunity after he had had a conversation with his lawyer.[11]

1. The Magistrate had before him an Adult Community Corrections pre‑sentence report dated 28 January 2025, and a psychological report dated 25 January 2025. The reports are summarised below (although the following is not intended to be a comprehensive recitation of the contents of the reports).

1. Daniel Maloney is a Community Corrections Officer within Rockingham Adult Community Corrections Centre, and was the author of the pre-sentence report, which was endorsed by Brooke Lee (a team leader). The report was prepared from information gathered from various disclosed sources which included Departmental records and an interview with the appellant on 24 January 2025.
2. In the report Mr Maloney addressed the appellant's offending history; the appellant's account the latest offences relevant to this appeal; the appellant's previous response to supervision; certain background information; the appellant's family and social relationships; the appellant's education, employment and financial situation; and the appellant's health and history of substance use.
3. Among other things, Mr Maloney recorded that the appellant had disclosed that he was under the influence of cannabis at the time of the relevant offending;[12] had disclosed an extensive history of methamphetamine and cannabis use since the age of 14;[13] and had failed to comply with all previous periods of community supervision, including parole.[14]
4. Mr Maloney made a number of observations, which appeared to ground the final recommendation which was expressed as follows:[15]
   • At this juncture he is deemed unsuitable for a further period of community supervision.

1. Bart Wszola is a clinical and counselling psychologist contractor to the Department of Justice, and author of the psychological report prepared for sentencing purposes in relation to the offences relevant to this sentencing appeal. In his report, Mr Wszola recorded his sources of information, which included an interview with the appellant on 17 January 2025; an email communication with Mr Maloney on 20 January 2025; the statements of material facts for the relevant offences; the appellant's Western Australian court history; the appellant's prison medical records as at 21 January 2025; and various reports concerning the appellant, including psychiatric reports, treatment completion reports, an earlier pre-sentence report and parole assessment report.
2. Mr Wszola used two tools to assess the respondent, the Historical Clinical Risk Management - 20 version 3 (HCR-20 v 3) (a 20 item checklist used to assess the risk for future violent behaviour and risk management strategies in criminal and psychiatric populations);[16] and the Millon Clinical Multiaxial Inventory, 4th ed (MCMI-IV) (a self‑report questionnaire used to assess personality traits and emotional adjustment as well as screen for the presence of psychological and clinical issues).[17]
3. As to his findings, Mr Wszola addressed the appellant's presentation; developmental history; substance use; personality and diagnostic assessment; health and psychological functioning; forensic history; and 'index' offences (that is, the offences relevant to this sentencing appeal). He expressed opinions as to the psychological formulation of the appellant's offending, and the risk posed by the appellant. He also recorded recommendations for treatment and management.
4. Mr Wszola recorded that the appellant had reported that as an adult he had been 'in and out of prison', and that his other comments indicated that the appellant had led an unstructured lifestyle that had involved substance abuse and criminal activity.[18] It was also recorded that the appellant had reported that he was sentenced for a 5 year prison term in 2018, and had completed the Pathways program and the Violent Offending Treatment program in that time.[19]
5. As to the appellant's substance use, Mr Wszola recorded that the appellant had estimated that he had started smoking cannabis when he was 12 or 13 years old and had continued to smoke it on a regular basis throughout his life. While the appellant had consumed alcohol during his mid-teens in a binge pattern, consistent with his earlier reports, the appellant reported that he was not now a big drinker of alcohol. The appellant also reported that he had commenced using methylamphetamine in 2018, although Mr Wszola noted that court records indicated that the appellant was convicted of possession of methylamphetamine in 2013, and possession with intent to sell/supply in 2014.[20] Mr Wszola also recorded as follows:[21]

Mr Ranger commented that 'being locked up for so long scrambled [his] head' and following his release back into the community in 2023, he was feeling paranoid, 'hearing voices' and his eyes would 'play tricks on [him]'. Although he was initially unclear about this, his later comments indicated that he returned to abusing methamphetamine soon after he was released from prison in 2023. Mr Ranger explained that he would 'use meth to stay awake and alert' to keep himself safe, however acknowledged that 'meth made it worse' in terms of making him more paranoid. Despite this, Mr Ranger claimed that he had periods when he was not using methamphetamine and at those times would assist his niece with looking after her children, as she had to periodically attend dialysis treatment. Mr Ranger advised that he had support in the community from various extended family members, although the quality of their support was not clear.

Mr Ranger disclosed that after he served a term of imprisonment that started in 2023, he used methamphetamine on the day that he was released from prison in late 2024. His comments indicated that he committed the current offences soon after he returned to the community.

...

In the current interview, Mr Ranger advised that he continued to abuse methamphetamine during his periods in the community in 2023 and in 2024. As stated above, he admitted that he used this drug on the day that he was released from prison in late 2024, although he claimed that he was using 'less than before'.

...

Mr Ranger acknowledged that his use of methamphetamine was problematic, and he verbalised some degree of motivation to cease using this drug, although was not clear as to how he would achieve this goal. Mr Ranger completed the Pathways program in 2020, which is a 100-hour structured program that provides treatment to individuals who have a history of offending behaviour and substance use problems. As stated above, Mr Ranger advised that by the time he was released back into the community in 2023, the program content 'wasn't fresh in [his] mind'. Despite this, it does not appear that Mr Ranger took any significant steps to improve his ability to abstain from drug use when he returned to the community.

1. Mr Wszola recorded that a personality assessment of the appellant was undertaken using the MCMI-IV which, among other things, indicated elevated anxiety and post-traumatic stress symptoms, and that the appellant's responses were also consistent with his significant history of substance abuse. Mr Wszola also recorded that the appellant's responses were also indicative of salient paranoid thinking patterns; that these appeared to relate to persistent worry as well as mistrust and anticipation of criticism and deception from other people; that the appellant also endorsed items that were consistent with people who were prone to experiencing delusional and disordered thinking; and that it was not clear if this was reflective of the appellant's vulnerability to experiencing drug induced psychotic symptoms or of a more persistent psychotic illness.[22]
2. Mr Wszola further recorded that with regard to personality traits and features, the appellant's test results were congruent with individuals who had well-established antisocial personality features, if not an antisocial personality disorder. Mr Wszola described how this meant that the appellant was likely to be impulsive and act with little regard for the consequences of his actions on himself or others, which was compatible with the appellant's offending history.[23]
3. In his report Mr Wszola recorded the psychotic symptoms that the appellant's had described.[24] Among other things he noted that it was possible that the appellant was not totally honest about the extent of his psychotic symptoms, and that the psychiatric assessments administered had difficulty establishing with certainty if the appellant's psychotic symptoms were drug induced or due to an underlying psychotic illness.[25]
4. While Mr Wszola expressed hesitancy in commenting about this area, he noted that there seemed to be decrease in the severity of the psychotic symptoms reported by the appellant in his assessment of him relative to those recorded in previous psychiatric reports. With this in mind, he further noted that the appellant's comments suggested that what appeared to be drug induced psychotic symptoms played a role in his current offending behaviour.[26] In the context of his account of his previous use of methylamphetamine, it was recorded that the appellant had acknowledged that his use of methylamphetamine made his feelings of paranoia worse.[27]
5. At paragraphs 8.1 to 8.6 of his report, Mr Wszola recorded his opinion as to the psychological formulation of the appellant's offending, which is reproduced below:[28]

The available information indicated that Mr Ranger's early development was adversely impacted by exposure to his father's family violence towards his mother, and it appears that he may have been a victim of this as well. It seems that the subsequent lack of safety and stability at home played a role in Mr Ranger beginning to associate with antisocial peers and in engaging in problem behaviours. The latter included his involvement in criminal activity and misuse of cannabis and alcohol, which started during his early teens and continued into his adulthood, and have resulted in numerous terms of imprisonment as an adult. It was likely that Mr Ranger's unsafe and, most probably traumatic, early experiences played a role in him developing a view that he lived in an unsafe 'dog eat dog' world. This would have been reinforced by his association with other antisocial and disenfranchised peers, and would have subsequently served to normalise the presence of antisocial ways of thinking and behaving. Mr Ranger's ongoing criminal activity would have resulted in this becoming entrenched within his cognitive and behavioural repertoire, and seems to have developed into an antisocial personality disorder.

Mr Ranger's lifestyle as an adult seems to have centred on the abuse of substances and the commission of crime to support his unstructured lifestyle, which seemed devoid of employment and other meaningful activities. This would have hindered Mr Ranger from growing psychologically through the process of maturation and in starting to overcome his developmental vulnerabilities. This would have also limited his opportunities to develop better self (planning, problem-solving, consequential thinking), relationship (communication, conflict resolution), and emotional management skills. The consequence of this was a psychologically immature man, relative to his age, who lacked the psychological resilience and adaptive skills that would support him in being able to lead a more stable and prosocial life. It was also possible that Mr Ranger's psychological development was adversely affected by the presence of unresolved trauma symptoms, which he has subsequently self-medicated with substance abuse.

The above described lifestyle and associated psychological vulnerabilities could have made Mr Ranger highly likely to develop drug induced psychotic symptoms, when he started to abuse methamphetamine. While it was not clear whether Mr Ranger's psychotic symptoms were drug induced or were due to an underlying psychotic illness, there was some indication that his use of this drug has led to a change in his offending behaviour. As was noted in section 6.3, after Mr Ranger's first convictions for methamphetamine possession in 2013 and 2014, he started to commit weapon related offences and there was an increase in his violent offending behaviour. A prior psychiatric report stated that he committed various offences in around 2018 while he was 'experiencing an episode of psychosis in the context of amphetamine use' (Bala, 2019).

Mr Ranger's comments indicated that after his release back into the community in 2023 and again in 2024, he returned to abusing methamphetamine, and continued to be troubled by psychotic symptoms. A review of a recent Parole report (Thompson, 2024) suggested that Mr Ranger was imprisoned in late 2023 after committing offences, which seemed to be influenced by his paranoid state of mind. Mr Ranger's description of the index offences indicated that he was paranoid and possibly experiencing other psychotic symptoms when he committed the offences on 27/10/2024 and on 02/11/2024.

As such Mr Ranger's current offending behaviour appeared to reflect him acting in an erratic and impulsive manner, due to experiencing some degree of methamphetamine induced psychotic symptoms. Mr Ranger's abuse of this drug, on the day he was released from prison was seen as a highly relevant contributing factor to his current offending behaviour. Other factors such as the presence of entrenched antisocial attitudes and behaviour patterns, as well as the skill deficits suggested in section 8.2, were seen as playing a salient role in his drug abuse and antisocial lifestyle.

Whether Mr Ranger sense of paranoia, which centred on him feeling unsafe, was drug induced or due to an underlying psychotic illness, he identified that he used methamphetamine to stay away so that he could stay vigilant and safe.[29] Mr Ranger acknowledged that this was a problematic strategy, which resulted in his psychotic symptoms worsening. He agreed that he could benefit from using antipsychotic medication to help him manage his sense of paranoia and to support his reported desire to abstain from methamphetamine use. Mr Ranger's comments indicated that he had not been interested in using such medications during his two recent periods in the community.

1. Mr Wszola opined that the appellant was a high risk of violent reoffending due to the presence of numerous risk factors, in particular those related to his mental health issues;[30] and that the appellant's most significant treatment need appeared to be his methylamphetamine abuse issues.[31]

1. The maximum penalty for being armed or pretending to be armed in a way that may cause fear contrary to s 68(1) of the Criminal Code is imprisonment for 7 years, with the summary conviction penalty being imprisonment for 3 years and a fine of $36,000.
2. The maximum penalty for having carried an article with intent to cause fear that someone will be injured or disabled contrary to s 8(1)(b) of the Weapons Act is imprisonment for 2 years and a fine of $24,000.
3. The maximum penalty for criminal damage or destruction of property contrary to s 444(1)(b) of the Criminal Code is imprisonment for 10 years, with the summary conviction penalty being imprisonment for 3 years and a fine of $36,000.
4. The maximum penalty for without lawful excuse having trespassed on a place contrary to s 70A(2) of the Criminal Code is imprisonment for 12 months and a fine of $12,000.
5. The maximum penalty for obstructing a public officer contrary to s 172(2) of the Criminal Code is imprisonment for 3 years, with the summary conviction penalty being imprisonment for 18 months and a fine of $18,000.
6. After noting the maximum penalties for the various offences, the Magistrate noted that, as had been accepted on behalf of the appellant, there was no penalty which could be imposed apart from a term of imprisonment when regard was had to the appellant's record and the nature of the offending.[32]
7. The appellant was sentenced to a total effective sentence of 3 years' immediate imprisonment, backdated to 2 November 2024, on the basis of the individual sentences as described at [2] of these reasons.
8. The Magistrate recorded that the sentences were arrived at after allowing a 25% discount on each sentence individually,[33] and acknowledged that pleas of guilty were entered at an early opportunity.[34]
9. It was also noted that the appellant had offended in exactly the same way on a previous occasion, and that the Magistrate had sentenced the appellant to imprisonment for a term of 2 years 'in relation to being armed in a way that may cause fear and criminal damage, which involved a similar incident in which [the appellant] went on the roof and behaved in an identical manner.'[35]
10. It was also noted that a psychological and pre-sentence report had been ordered, which reports indicated that the appellant presented with an entrenched offending cycle. The Magistrate observed that the appellant has poorly self-managed mental health, and addressed the appellant as follows:[36]

...any mental health issues you have are exacerbated by substance use, and the psychologist indicated that you have mental health symptoms due to drug-induced psychosis or an underlying psychotic illness such as schizophrenia. But it is not clear whether or not the paranoid schizophrenia, the symptoms that you are suffering from, are a result of drug use or predate your first drug use, which has to be said it occurred at a very early stage at around the age of 14.

1. As to the appellant's personal circumstances, the Magistrate stated:[37]

The reports indicate that you had a particularly difficult and disadvantaged life. The previous reports indicated that you - that your parents' relationship was volatile was characterised by physical violence and substance use. Apparently you were a challenging adolescent who was physically disciplined by your father and mother, and you were frequently truanting from school and running away from home. That there was violence against you by your father. That you witnessed domestic violence against your mother, and that your father drank to excess and used illicit substances. You relocated to Hedland about the age of 14 and became involved in offending, and since then have effectively spent your life in and out of custody.

1. The Magistrate noted the appellant's use of methylamphetamine immediately following his release from prison in late 2024, by reference to paragraph 2.7 of Mr Wszola's psychological report.[38]
2. As to the appellant's disadvantaged life, it was noted that:[39]

it seems to me you did - certainly came from a disadvantaged background, and it seems to me the factors in Fernando and Bugmy apply specifically to you as a result of that history of disadvantage, and that is disadvantage that continues to affect you throughout your life.

1. The Magistrate then considered the importance of community safety in the exercise of sentencing, recording that the appellant's actions:[40]

...have a substantial impact on the safety of other members of the community. Your decision to use methylamphetamine, your decision to continue to use it, even though you are aware that it exacerbates either underlying or drug-induced psychosis or schizophrenia type symptoms - your decision to continue to use that drug has a significant impact on the safety of the general public in Karratha, the safety of police officers who come into contact with you, and DFES members who are required during these incidents to encourage you to leave the roof.

I am satisfied that there is a real need for a sentence of personal deterrence as well as general deterrence to ensure the safety of the community. The safety of the community is also a significant factor in this sentencing exercise.

1. As to the sentences to be imposed, his Honour stated:[41]

In relation to the trespass there is a term of ... three months imprisonment. In relation to the carried an article, which is significant given the threat that you represent when you are armed, there is a term of one year imprisonment. It seems to me that both of these matters relate to the same day. In relation to 61329 there is a term of three months imprisonment. The being armed or pretending to be armed is subject to a section 68: there is a term of one year and six months. And in relation to 61[3]31, which is the criminal damage, which is the damage to the aerial, there is a term of six months imprisonment.

1. As to totality, his Honour recorded as follows:[42]

Going back over each of those sentences, which individually I have applied the discount of 25 per cent to, to require you to serve them in their totality, in my view, would be disproportionate to the offending and it would also result in a sentence which would, to some degree, be crushing. Having regards to the pleas of guilty which I have already mentioned I am satisfied that to achieve an appropriate sentence that 3323 ought be cumulative on 61330.

Which then results - with the remaining matters being concurrent, which then results in a term of three years imprisonment. I have taken into account all of the factors that I have mentioned in arriving at that term of three years, and I am positively satisfied, having ... revisited all factors, that that term of imprisonment must be immediately served. That term of imprisonment will be back dated to the day that you went into custody.

1. The appeal was commenced on 28 February 2025. The appellant was granted leave on 11 June 2025 to include a further ground of appeal,[43] and as is recorded at [3] of these reasons, appeals sentence on the following two grounds:
   1. the total sentence of 3 years' imprisonment infringed the first limb of the totality principle in that the aggregate sentence does not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances (ground 1); and
   2. the sentence of 18 months' imprisonment for charges of being armed in a way that may cause fear, numbers KH 3323/2024 and PE 61330/2024, are manifestly excessive in the light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of offending, and the personal circumstances of the offender (ground 2).

1. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA). The appellant requires leave to appeal.[44] The court 'must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding'.[45] That means that the ground must be judged to have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.[46] If leave to appeal is refused, the appeal is taken to be dismissed.[47]
2. It is appropriate that the appellant's application for leave to appeal be heard with the appeal, as was ordered by Registrar Hosking on 5 May 2025.[48]

Relevant legal principles - an appeal against sentence

1. The Criminal Appeals Act s 7(1) allows an aggrieved party to appeal to a single judge of this court in respect of a decision made by a court of summary jurisdiction. Pursuant to the Criminal Appeals Act s 8(1)(a)(iii), such appeal may be made on the ground that the court of summary jurisdiction imposed a sentence that was inadequate or excessive.
2. The principles governing an appeal alleging that a sentence is manifestly excessive or that the total effective sentence infringed the first limb of the totality principle are well established. They were summarised by the Court of Appeal in Kabambi v The State of Western Australia [2019] WASCA 44 at [21]:[49]

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

1. The ground that a sentence is manifestly excessive asserts implied error, often described as imposing a sentence that falls outside the range of sentences which could have been imposed if proper principles had been applied.[50]
2. As was observed on behalf of the respondent as to the use of comparable cases, comparison of the total effective sentence in one case with the facts of other cases said to be comparable to assess broad consistency or otherwise is of limited utility because a total effective sentence is not imposed for a single offence.[51]

1. Counsel for the appellant provided the court with an outline of written submissions in advance of the hearing and developed those submissions in the course of the hearing, addressing first the second ground of appeal.

Ground 2 - that the individual sentences imposed for KH 3323/2024 and PE 61330/2024 were manifestly excessive

1. It was submitted that the individual sentences imposed for KH 3323/2024 and PE 61330/2024 (being armed in a way that may cause fear) were manifestly excessive as the appellant's conduct was not as serious as other comparable cases, given the risk of harm that the appellant posed to the members of the public was remote and conditional. This was because on each occasion the appellant had climbed onto a roof and only threatened persons that sought to climb onto the roof with him.[52]
2. Two classes of comparable cases were referenced, and it was suggested that they demonstrate an appropriate range of 4 to 12 months' imprisonment for offending of similar criminality for an offence of being armed in a way that may cause fear.[53] It was submitted that as such, the imposition of terms of 18 months' imprisonment for being armed in a way that may cause fear was manifestly excessive, when particular regard was had to the appellant's early pleas of guilty and 25% discount, acceptance of responsibility and his personal circumstances, including his deprived background.[54]
3. As to the classes of comparable cases, by reference to the first class counsel for the appellant sought to distinguish the appellant's offending from offending where the offender had armed himself and had actively pursued members of the public.[55] By reference to the second class, counsel for the appellant sought to distinguish the appellant's offending from offending where the offender had armed himself in an attempt to commit further offences.[56]
4. The cases relied upon were described in the appellant's outline of submissions filed in advance of the appeal.[57] I summarise them later in these reasons.
5. At the hearing of the appeal, counsel for the appellant addressed what was understood to be the crux of the respondent's position - that is, that the sentence imposed upon the appellant had to be at the upper end to reflect specific deterrence and the need for the protection of the community.[58] While counsel for the appellant noted that the appellant 'makes some concession to that point', it was submitted on behalf of the appellant that there is a limit to how much a sentence can be elevated for the need for specific deterrence and the protection of the community; and that '[t]he need for specific deterrence does not simply reduce the sentencing exercise to simply imposing a sterner sentence than the one imposed previously because it did not deter the offender. The court, in imposing a sentence, must still ensure that the overall sentence is commensurate to the offender.'[59]
6. While it was accepted that the appellant's offending had been serious, it was the appellant's position that his sentences of 18 months' imprisonment for being armed in a way that may cause fear were manifestly excessive, when regard was had to the application that had been made of a full discount of 25% for the early plea (suggesting that the sentence before discount pursuant to s 9AA of the Sentencing Act 1995 (WA) would have been imprisonment for terms of 2 years), the appellant's acceptance of responsibility and his personal circumstances, including his deprived background.[60]

Ground 1 - that the total effective sentence imposed breached the totality principle

1. Noting that the total effective sentence imposed was 3 years' imprisonment, it was submitted that the total effective sentence breached the totality principle, particularly when regard was had to the appellant's pleas of guilty, his personal circumstances, and the Bugmy and Fernando factors.[61] It was submitted that the Magistrate erred when two 'upper end' sentences were made wholly cumulative upon each other, without reduction for totality purposes. In support of the same, counsel for the appellant referred to the cases referenced for the purposes of the second ground of appeal, and also Debono v Director of Public Prosecutions for Western Australia [2024] WASC 188.[62]

1. Counsel for the respondent also provided the court with an outline of written submissions in advance of the hearing, and made submissions at the hearing in respect of both grounds of appeal.
2. In summary, while it was acknowledged that the sentences imposed were near the upper end of the available range, both in terms of the individual sentences imposed and the total effective sentence, it was the position of the respondent that this was warranted in circumstances where the appellant's personal circumstances called for a firm response.[63]
3. The following preliminary or overarching submissions were made, said to be applicable to the assessment of both grounds of appeal.
4. First, it was submitted that the appellant's personal circumstances were such that the dual objectives of specific deterrence and public protection assumed particular importance in this case. It was noted that the appellant has a lengthy criminal history (which included previous convictions for offences involving weapons, criminal damage and trespass); and the offending that gave rise to the sentences under appeal comprised two markedly similar incidents, which appear characteristic of the appellant's offending behaviour.[64]
5. Secondly, it was submitted that the court ordered reports that were before the Magistrate provided further support for the proposition that the sentencing response in this case had to be firm. In this regard, it was noted that it remained unclear whether the appellant has an underlying, undiagnosed psychiatric illness such as schizophrenia, but the reality of the position before the court was that the appellant's persistent methylamphetamine abuse was either wholly causative or triggering of his psychotic symptoms; and that the result, in any event, was the same, that is, that the appellant poses a risk to the community.[65]
6. The respondent also noted that the appellant's voluntary use of illegal drugs was not a mitigating feature and did not reduce his culpability; and even if the appellant has an underlying psychiatric illness, his persistent use of methylamphetamine means that any such illness cannot be identified, let alone disentangled from the question of voluntary intoxication when assessing the issue of culpability. It was submitted that, put another way, the appellant's inability or unwillingness to address any underlying mental illness increases his risk profile. This is particularly so when the appellant's paranoid delusions lead to the appellant arming himself.[66]
7. The respondent also made submissions as to each of the grounds, addressing first the second ground of appeal.

Ground 2 - that the individual sentences imposed for KH 3323/2024 and PE 61330/2024 were manifestly excessive

1. It was submitted on behalf of the respondent that there were features of the appellant's offending which significantly increased the seriousness of each event. It was noted that both charges of being armed to cause fear arose in the course of a trespass on private, residential properties. On both occasions, threats were issued by the appellant. The first time, he threatened to hurt or kill anyone who might come onto the roof, and the second he asked the father in law of the home owner, while he held knives, if the latter wanted to 'smash'. It was observed that the appellant appeared to have been, during each incident, experiencing extreme paranoia, which increased the risk of serious harm to those he came into contact with.[67]
2. Despite the appellant's suggestion that the risk he posed was 'remote and conditional', and thus less serious than the offending in some other cases, counsel for the respondent recorded that it was not agreed that this truly mitigated the seriousness of the offending. It was noted that the appellant had placed himself in a position where others were required to intervene - for his own safety and for the safety of those who resided at the homes upon which he was trespassing. He was not leaving the scene of his own volition. Instead he engaged in a 'stand off' scenario, and his actions, therefore, directly placed members of the police force, emergency services and the public in danger.[68]
3. While submissions were also made on behalf of the respondent as to the various cases referenced by the appellant (which cases are discussed later in these reasons), counsel sought to emphasise that the use of comparable cases can be challenging when the individual sentences imposed in other cases involved numerous and often more serious or fundamentally different offences. It was noted that totality considerations, as well as a different focus in terms of the overall criminality at issue, may mean that an individual sentence does not always reflect the true seriousness of the offending when it is viewed in isolation.[69]

Ground 1 - that the total effective sentence imposed breached the totality principle

1. On behalf of the respondent, it was submitted that the total effective sentence that was imposed was required to reflect the overall criminality of the appellant's conduct. In particular, the need for specific deterrence and public protection.[70]
2. In opposing the appeal, counsel for the respondent addressed the additional authority relied upon by counsel for the appellant (that is, Debono v Director of Public Prosecutions for Western Australia, which is also discussed below).[71]
3. It was sought to be emphasised that while the sentences for two counts of being armed or pretending to be armed in a way that may cause fear contrary to s 68(1) of the Criminal Code (KH 3323/2024 and PE 61330/2024), were to be served cumulatively, the other sentences were made concurrent to comply with the totality principle. Furthermore, it was noted that a reduction for totality where two sentences are made cumulative is not automatic, but rather, regard is to be had to two factors.
4. First, where cumulative sentences are imposed but the aggregate sentence is richly deserved or does no more than meet the crimes committed, then a reduction will not result from applying the totality principle.[72]
5. Secondly, and related to the first, a sentencing court must take care when applying the totality principle so as to avoid the suggestion that what is in effect being offered is some kind of a discount for multiple offending.[73]
6. Counsel for the respondent submitted that because of the appellant's propensity to act in the alleged manner and his heightened risk, no discount was required. Similarly, while the appellant's deprived background was considered by the Magistrate, the impact of this depravation was plainly offset by other sentencing considerations, such that the mitigatory impact of this factor on the overall sentence must have been significantly reduced.[74]

Disposition Ground 2 - the individual sentences imposed for KH 3323/2024 and PE 61330/2024 were manifestly excessive

1. It is convenient to first consider whether the individual sentences for KH 3323/2024 and PE 61330/2024 were manifestly excessive. In this regard, I accept the well established principles set out above, and apply the same. I proceed on the basis that the ground is to be determined by examining the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type and the appellant's personal circumstances. I then must form a view as to whether the sentence imposed upon the appellant falls outside the range of sentences which could have been imposed if proper principles had been applied. I also proceed cognisant that the consistency which is sought to be achieved in sentencing arises from the application of relevant legal principles rather than seeking numerical equivalence from comparative cases.[75]

1. As is recorded above, the maximum penalty for being armed or pretending to be armed in a way that may cause fear contrary to s 68(1) of the Criminal Code, is 7 years' imprisonment, with the summary conviction penalty being 3 years' imprisonment and a fine of $36,000.
2. In assessing whether a sentence in manifestly excessive having regard to the seriousness of the offence, it is the statutory maximum penalty that falls to be considered, not the jurisdictional limit.[76]

1. In determining seriousness, I note that there were two counts of being armed or pretending to be armed in a way that may cause fear. While there were clear similarities in the circumstances of the offending, I was cognisant of the need to consider each offence. In considering the seriousness of the offences, I had regard to the following.
2. The appellant was experiencing psychosis and paranoia when he committed each offence. That psychosis and paranoia came about in circumstances where the appellant had used methylamphetamine, and his symptoms were either drug induced or the methylamphetamine use had triggered psychotic symptoms in circumstances where the appellant has some underlying undiagnosed psychiatric illness such as schizophrenia. He armed himself to protect himself from his paranoid delusions. His psychosis and paranoia increased the risk of serious harm to those which he encountered.
3. The appellant's intoxication with methylamphetamine was an aggravating factor. His symptoms were either drug induced or triggered by use of methylamphetamine, such that methylamphetamine use significantly increased the risk of harm to the public.[77]
4. In committing each offence, the appellant climbed onto a roof of a residential property in a state of psychosis and paranoia, which attracted both attention and engagement from the public.
5. In the case of the Millars Well offending, the appellant attracted the attention of the resident when he heard banging on the roof of his house and the resident checked his CCTV cameras and saw the appellant, who was not known to him, approach his carport, climb up the fence and climb onto the roof. Whereas in respect of the Nickol offending the appellant was observed on the roof of a residential property by a neighbour.
6. Further, in the course of the Millars Well offending the father in law of the resident climbed onto the roof to get the appellant to come down and was within one metre of the appellant when he saw that he was holding a double-edged knife in his right hand. While on the roof, the appellant brandished a knife and threatened the father in law.
7. With the exception of the father in law, I accept that there was some distance between the offender and others, and in the end he posed an immediate threat only to those who approached him. That said, it would be a mischaracterisation of the risk posed to others to describe it as being remote or conditional.
8. The conduct of the appellant on each occasion required intervention from the police and other emergency services to entice him down to safety. There were people in reasonably close proximity, and thus at risk of being harmed in both courses of offending. As was observed on behalf of the respondent, the appellant had placed himself in a position where others were required to intervene - for his own safety and for the safety of those who resided at the homes upon which he was trespassing.[78]
9. In the instance of the Nickol offending, the appellant remained on the roof from 6.50 pm, with the police attending at 7.45 pm, through to 2 am the following day. His offending continued for more than seven hours, most of which was spent at a stand off with police. The length of the offending makes it more serious, as it was a prolonged period where police and other emergency services in particular were exposed to a dangerous situation.
10. In the instance of the Millars Well offending, the appellant was armed with two knifes taped together approximately 30 centimetres in length and a small hammer with a knife taped to the end approximately 30 centimetres in length. They were capable of causing serious injury.
11. In the instance of the Nickol offending, the appellant was armed with a metal pole of approximately 1.5 meters in length. The appellant, during the course of being on the roof, broke off the antenna to further arm himself. Again, they were capable of causing serious injury to those who were engaged to entice him down.
12. These were significant factors in determining the objective seriousness of the offence and whether it was appropriate that a term of immediate imprisonment be imposed.
13. In the course of both offences, the appellant made threats to members of the public or emergency services. In the case of the Nickol offending, the appellant made threats to kill or hurt anyone who might come up on the roof. In the course of the Millars Well offending the appellant asked the father in law who was on the roof if he wanted to 'smash'.
14. In all the circumstances, the offending was serious. In the case of the Nickol offending, it was marked by a prolonged stand off with police of over seven hours with threats to kill or harm being made. In the case of the Millars Well offending, it was marked by the possession of modified weapons on residential roof with the family inside with an actual threat being made to a person who climbed onto the roof. Both courses of offending were of a serious nature.

1. Counsel for the appellant referred the court to several cases which he submitted provided a yardstick or reference to demonstrate that the sentence imposed was manifestly excessive.[79] Counsel for the respondent also addressed the same cases in some detail while submitting that the sentence imposed on the appellant was within the acceptable range, noting that some difficulty arose when comparison was made to the individual sentences imposed in other cases which involved numerous, and often times more serious or fundamentally different offences.[80] An overview of the cases is set out below.

1. King v The State of Western Australia [2013] WASCA 131 concerned an appeal against sentence. The appellant had pleaded guilty in the District Court to, among other things, one count of stealing a motor vehicle, contrary to s 371A read with s 378 of the Criminal Code, for which he was sentenced to 12 months' imprisonment, and one count of being armed with an offensive instrument in circumstances likely to cause fear, contrary to s 68(1) of the Criminal Code, for which he was sentenced to 2 years' imprisonment. The total effective sentence imposed on the appellant was 3 years' imprisonment. He appealed against each of those sentences on the grounds that they were manifestly excessive.[81]
2. The appellant stole a scooter which he rode to the carpark of a shopping centre. He entered a watch shop holding a hammer, which he used to smash a glass display cabinet and then take five watches to a value of $17,949. The appellant brandished the hammer in the direction of the shop owner and then ran from the store with the watches.[82]
3. The Court of Appeal considered several previous cases, where the sentencing outcomes ranged between 8 and 12 months' immediate imprisonment.[83] The Court found that the appellant's offending was not in the more serious category of offences of the kind, and in that connection, it was noted that the Court had had the benefit of viewing the CCTV footage of the relevant events. As to the seriousness of the offence, the following was observed:[84]

It is evident that the hammer was a small hammer or mallet, rather than the 'sledgehammer' described in the indictment. Whilst the appellant brandished the hammer in a threatening manner to the shop owner, the appellant was several metres from the shop owner and clearly about to flee the scene. The obvious intention was to deter pursuit rather than to threaten immediate harm. It failed to have the desired effect and, as it turned out, the appellant did not attempt to use the hammer as a weapon on his pursuers even when tackled to the ground.

1. It was also recorded that the appellant had pleaded guilty at the first opportunity and the sentencing judge had accepted that he was remorseful. While the appellant had a significant criminal record, much of it was more than 10 years old. His only convictions since 2001 were for traffic offences, apart from two convictions on 4 January 2011 for assaulting the appellant's mother and sister respectively. For each of those offences an intensive supervision order for 12 months had been imposed. (On 30 November 2011, the appellant was convicted of breaching those orders and fined $400.) As the sentencing judge noted, the penalties for the assault offences indicated that there may have been extenuating circumstances.[85]
2. The Court of Appeal found that the sentence of 2 years' imprisonment was manifestly excessive, resentencing the appellant to 12 months' imprisonment for the count of being armed with an offensive instrument in circumstances likely to cause fear.[86] While the appellant was resentenced for this offence, his total effective sentence was not changed.

1. In Cleminson v The State of Western Australia [2017] WASCA 58, the appellant applied for leave to appeal against a sentence of 2 years' imprisonment for being armed in a way that may cause fear on the ground that it was manifestly excessive and that the total effective sentence of 4 years and 2 months' imprisonment breached the first limb of the totality principle.[87]
2. As was recorded at [2] of the Court of Appeal's reasons for decision, the details of the offences and the sentences that were imposed were as follows:

1. In summary, the appellant was at home on an isolated farm house with his mother and step father when he became agitated and set fire to his belongings. He then began to terrorise the victims, shouting that he would kill them and walking around smashing items. The appellant then opened the gun safe, and then removed and loaded two rifles. He discharged one gun at a tin target. When the police attended the address, the appellant presented himself unarmed and was arrested. After being placed in the police van, the appellant spat blood and saliva in the eyes of a police officer.[88]
2. The appellant was 25 years of age. He had a fairly dysfunctional upbringing; a history of alcohol and drug abuse; self-identity problems and limited cognitive capacity, which resulted in antisocial and borderline personality traits which were the major driver in his offending; and a lengthy criminal record of mostly antisocial and traffic offences, including assault. The appellant had pleaded guilty and was afforded a 25% reduction in sentence.[89]
3. The Court of Appeal refused leave to appeal on both grounds. In doing so, the Court of Appeal noted that the offending was serious, with a need for both personal and general deterrence, and protection of the public.[90] The Court of Appeal also noted that the cases referred to in King v The State of Western Australia were small in number (five in total, including one single judge appeal) and did not establish an identifiable sentencing pattern.[91] It was found that the individual sentence of 2 years' imprisonment for being armed in a way that may cause fear was within the range of a sound sentencing discretion having regard to all of the relevant sentencing factors, and had no prospect of succeeding.[92]

1. Hume v Jefford [2018] WASC 272 concerned an appeal against a sentence of 7 months' imprisonment for the offence of being armed in circumstances that were likely to cause fear.[93] The appeal to a single judge proceeded on the grounds that the Magistrate:

(1) erred in law in failing to discount the sentence of imprisonment imposed to reflect the benefits to the State and any witness arising from the appellant's plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA) (Sentencing Act); and

(2) erred in law in failing to suspend the sentence imposed with the result that the sentence imposed was ... manifestly excessive.

1. In summary, the facts of the offending were as follows. The appellant, while intoxicated, had attended a petrol station armed with a metal pole. He struck the glass shop front multiple times with the pole. He then chased a customer, causing the customer to flee in their vehicle. The appellant then left the service station and walked along the road, chasing vehicles and swinging the pole in their direction. The appellant approached a woman and child who were walking along the street and held the pole above his head in a threatening manner. The appellant dropped the pole and picked up a long wooden stake which he swung at passing vehicles.[94] At the time of the offending the appellant had run out of his alcohol inhibition medication, which caused him to relapse and become intoxicated.[95]
2. The appellant was 46 years of age; had convictions almost every year since 1989, including for threats and assault; and had been sentenced to suspended terms of imprisonment (some of which he breached) and terms of immediate imprisonment. The appellant had plead guilty.[96]
3. As was recorded by Fiannaca J in the context of his consideration of the second ground, counsel for the appellant had conceded that a term of imprisonment was appropriate, having regard to the seriousness of the offence. Further, it had been conceded that the term that had been imposed was at the lower end of the range of sentences of imprisonment that could be imposed for the offence.[97] In the end, leave to appeal on the basis of the second ground of appeal was refused.
4. His Honour also recorded that the respondent had conceded that the first ground of appeal had been established, and that the failure of the Magistrate to refer at all to s 9AA of the Sentencing Act, or to its substance, in terms of indicating that a reduction was being made, in circumstances where the appellant pleaded guilty at an early stage, was a material error of law, and the discretion of the Court to intervene was enlivened.[98]
5. Having allowed the appeal on the conceded ground, in resentencing the appellant, his Honour recorded that he considered that a sentence of 9 months' imprisonment would have been appropriate, having regard to the seriousness of the appellant's offending, if there were no mitigating factors.'[99] Taking into account the appellant's circumstances as he appeared at the hearing of the appeal, which included that the appellant had taken some significant steps towards his rehabilitation, the sentence imposed was imprisonment for 6 months and one day, suspended for 12 months on conditions with a supervision requirement and a programme requirement.[100]

1. In Crotty v Peck [2021] WASC 51, the appellant appealed to a single judge, among other things, the sentence imposed by a magistrate of 6 months' imprisonment for being armed in a way that may case fear on the ground that it was manifestly excessive, and then the total effective sentence imposed of 18 months' imprisonment on the ground that it infringed the first limb of the totality principle.[101]
2. In summary, the facts for the offence of being armed in a way to cause fear were as follows. The appellant went to an unlocked car and stole numerous items from inside. Later that afternoon, he approached a hotel patron outside the hotel for a cigarette, which was refused and he was asked to move on. The appellant became aggressive towards the patron and a fight broke out. The appellant after a short time walked out into the street, and while doing so, reached into his pocket and produced a knife. The appellant placed the knife to his throat and make a cutting gesture. Staff of the hotel who witnessed the incident called the police. The police located the appellant a short time later and he was searched. They located the knife and the items stolen from the parked car.[102]
3. The facts of the offences of assault occasioning bodily harm, threat to injure or harm, and stealing were in summary as follows. A few weeks after the incident at the hotel, the appellant woke up in a man's home after drinking with him. The appellant repeatedly punched the man in the face and chest, and continued to do so as the man attempted to escape. The man was disabled and was unable to defend himself. The appellant armed himself with a knife and threatened to kill the man. Before leaving the man's home the appellant stole watches and other goods from the man's home which had a combined value of $2,000.[103]
4. The appellant was 42 years of age; had a history of drug induced psychosis; had a history of substance abuse including amphetamines and cannabis; had a sizable record that included similar offences for being armed and assaults and threats; was subject to a community based order at the time of offending; had engaged in rehabilitation; and had entered pleas of guilty after negotiations with police for which he received a 25% discount.[104]
5. In the context of the appeal, Smith J considered that the appellant's offending for being armed in a way that may case fear was not at the lower end of the spectrum for offending of that type. This combined with the fact that the offending was committed while on a community based order meant that the sentence that had been imposed could not be said to be manifestly excessive.[105] However, Smith J allowed the appeal on the basis that the sentence of 18 months' imprisonment infringed the first limb of the totality principle. Because of the disconnect in time and factual circumstances between the offending, Smith J considered it appropriate to reduce the penalty imposed for being armed so as to cause fear to 4 months' imprisonment, for a total effective sentence of 16 months' imprisonment.[106]

1. In Garlett v Director of Public Prosecutions [2021] WASC 353, the appellant appealed his sentence to a single judge, among other things, on the ground that the sentence of 7 months' imprisonment for being armed in circumstances likely to cause fear was manifestly excessive.
2. The appellant, while under the influence of methylamphetamine, had walked down a highway armed with a pitchfork which resulted in multiple calls from the public to the police. When police attended, the appellant was initially aggressive; however subsequently became compliant.[107]
3. In considering whether the sentence imposed by the Magistrate was manifestly excessive, McGrath J considered the maximum penalty; the appellant's personal circumstances; the seriousness of the offence; the plea of guilty and remorse; and the range of sentences customarily imposed.
4. The appellant had a significant criminal record; had been released from imprisonment a week and a half prior to offending, which term had included a 6 month term for being armed or pretending to be armed in public to cause fear; and had pled guilty at the first reasonable opportunity receiving a 20% discount and was remorseful.[108]
5. McGrath J refused leave to appeal on all grounds, noting that:[109]

Contrary to the submissions of the appellant, his intoxication with methylamphetamine was an aggravating factor. The risk of harm to the public was significantly increased due to the appellant being intoxicated with methylamphetamine. The appellant, whilst not confronting any person whilst armed, did cause fear or at least real concern given that members of the public informed the authorities. Further, the appellant was initially aggressive to the police. Personal deterrence was a significant sentencing factor given that the appellant had only days prior to committing this offence been released from a term of imprisonment for similar offending.

The respondent correctly observed that the sentence imposed on the appellant was approaching the high end of an appropriate sentence. The imposition of an immediate term of imprisonment was within the discretion of the learned magistrate. The sentence is not unreasonable or plainly unjust in all the circumstances.

Donovan v Director of Public Prosecutions for Western Australia

1. In Donovan v Director of Public Prosecutions for Western Australia [2024] WASC 9, the appellant appealed to a single judge the sentence imposed by a magistrate of 2 years' imprisonment for being armed to cause fear on the ground that it was manifestly excessive, and the total effective sentence of 2 years and 3 months' imprisonment for having infringed the first limb of the totality principle.[110]
2. By way of background I note that the appellant had on 22 June 2022 been sentenced in the Magistrates Court in Armadale to 12 months' imprisonment suspended for 12 months (SIO) for five offences of breaching a post-sentence supervision order (PSSO) and one offence of possession of a prohibited drug (cannabis) with intent to sell or supply. On 1 August 2023 the appellant was sentenced in the Magistrates Court at Bunbury to a total term of 2 years and 3 months' imprisonment and fines of $2,450 for 16 offences and was ordered to serve the SIO of 12 months' imprisonment in full. The sentence of 2 years 3 months commenced on 9 September 2022 and the term of 12 months for the activation of the SIO commenced on 1 August 2023. The appellant was made eligible for parole.
3. The appellant's offending was in four tranches. The most pertinent offending relating to being armed in a way that may cause fear occurred on two occasions. The first was when the appellant was outside a bank in Beverly, where the appellant brandished an axe as four men were pursuing him who were brandishing weapons. The second (which was the sentence being appealed for being manifestly excessive) was then the appellant drove into a fuel station, where he stole numerous items from the store to a value of $182.80. The store staff confronted the appellant as he went to his car. The staff returned to the store and locked the door. The appellant returned to the store with an axe and tapped the axe of the glass window, showing the victim.[111]
4. The appellant had a significant criminal history, including being subject to a suspended imprisonment order at the time of offending; had pleaded guilty and was afforded a 25% discount on all counts but the appealed armed to cause fear offence for which 15% discount was received; and had issues with drugs and alcohol.[112]
5. Whitby J allowed the appeal on the ground that the sentence of 2 years' imprisonment for being armed to cause fear was manifestly excessive, resentencing the appellant to 14 months' imprisonment for a total effective sentence of 1 year, 10 months and 23 days' imprisonment. The appeal on the grounds of totality was consequentially refused.

1. I have read and considered the facts and sentencing dispositions in the cases that were referred to by counsel.
2. I accept that the appellant's offending did not involve actively pursuing members of the public while armed; and that he had not armed himself in an attempt to commit further offences. I do not accept however that it follows that the appellant's offending in this case was necessarily less serious.
3. I consider that the appellant's offending was less serious than Cleminson v The State of Western Australia. This was because in Cleminson there was a firearm present (which was actually discharged) and the threats made were more overt being directed at his family.
4. I consider that the appellant's offending was more serious than Crotty v Peck, where the offending was fleeting and relevantly concerned an offender having reached into his pocket and produced a knife, then placing the knife to his throat and making a cutting gesture. Further, in contrast to King v the State of Western Australia, in this case the appellant was not leaving the scene of his own volition, and his offending was not motivated by him seeking to deter pursuit.
5. There were differences in the appellant's offending when compared to the cases referred to. I accept that (as was observations on behalf of the respondent) Garlett v Director of Public Prosecutions did not involve overt threats to harm nor was the offending characterised by residential trespass; Hume v Jefford was not characterised by residential trespass and the appellant's actions (swinging a pole) were directed primarily at passing cars; and Donovan v Director of Public Prosecutions for Western Australia involved an implicit, rather than express threat, and the offending subject of the being armed charge was somewhat fleeting. Further, these cases did not involve the type of 'stand off' that the appellant's offending gave rise to (which as the respondent submitted, increased the seriousness of the appellant's offending as it gave rise to a situation of heightened risk that required delicate handling by members of the public and police).[113]
6. I proceed on the basis that there is no established tariff for offences of being armed in a manner that may cause fear given that an offence of this kind may be committed in a wide range of circumstances which makes comparison to other cases difficult.[114]
7. In any event, as was noted by Whitby J in Donovan v Director of Public Prosecutions for Western Australia, while comparable cases are often referred to by appellate courts in assessing the standards of sentencing customarily imposed with respect to an offence, the guidance afforded by those cases is flexible rather than rigid and the fact that a sentence is imposed which is outside the range of sentences for comparable cases, does not establish the miscarriage of a sound exercise of the sentencing discretion in relation to a particular offence. Nor does a sentencing range in comparable cases fix a sound sentencing range in a particular case.[115]

1. As the Magistrate acknowledged, the appellant is Aboriginal and has had a disadvantaged life, accordingly those factors from Bugmy v The Queen and R v Fernando apply. I proceed cognisant that these factors are not a sentencing discount, but rather legal principles which inform the exercise of the sentencing discretion.
2. The Court of Appeal in Peterson v The State of Western Australia [2019] WASCA 207 summarised the principles applicable from and in relation to Bugmy v The Queen in the following terms:

[52] In Munda v Western Australia, French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ distinguished between an offender's moral culpability, on the one hand, and the objective seriousness of his or her offending, on the other:

The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant's offending.

[53] In Veen v R [No 2], Mason CJ, Brennan, Dawson and Toohey JJ explained that a relevant sentencing factor (for example, a mental abnormality which makes an offender a danger to society when he or she is at large, but diminishes his or her moral culpability for a particular offence) has two countervailing effects: one which tends towards a longer custodial term of imprisonment and the other which tends towards a shorter term.

[54] The principles enunciated by the High Court in Bugmy, in the passage quoted at [47] above, are, relevantly, as follows:

(a) The effects of an offender's profound childhood deprivation do not diminish with the passage of time or repeated offending.

(b) The effects of an offender's profound childhood deprivation are to be given 'full weight' in every sentencing decision relating to the offender.

(c) However, the effects of an offender's profound childhood deprivation may point in different directions in relation to relevant sentencing factors; for example, those effects may diminish the offender's moral culpability for the offending, but may also increase the importance of protecting the community from the offender's criminal behaviour.

(d) Those conflicting purposes of punishment, in a sentencing context, must be weighed in the balance.

[55] In our opinion, the principles enunciated by the High Court in Bugmy do not apply solely to an offender whose upbringing has resulted in the offender suffering from alcohol addiction and mental illness. The principles are of broader application. They are relevant to an offender who, for whatever reason or combination of reasons, has experienced very significant childhood deprivation of a kind and to a degree which leaves its mark on the offender throughout their life, such as to impair the offender's capacity to mature and to learn from experience, and to reform. (footnotes omitted)

1. In R v Fernando, the New South Wales Supreme Court affirmed considerations which are applicable to Aboriginal offenders:[116]

That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.

1. The question whether the Bugmy principles have been properly applied in sentencing is one of substance rather than form.[117] Taking into account the seriousness of the offending, the importance of community protection, and the extent of methylamphetamine consumption will not necessarily indicate a failure to take into account or give 'full weight' in the relevant sense to the Bugmy principles.[118]
2. In this case, the appellant had a significantly disadvantaged childhood, and that this must be given full weight. As is recorded above, the Magistrate had regard to this and additional matters personal to the appellant.
3. As is also recorded above, the appellant was experiencing psychosis and paranoia when he committed each offence. That psychosis and paranoia came about in circumstances where the appellant was using methylamphetamine, and his symptoms were either drug induced or the methylamphetamine use had triggered psychotic symptoms in circumstances where the appellant has some underlying undiagnosed psychiatric illness such as schizophrenia.
4. The Magistrate had before him a number of reports, including the psychological report of Mr Wszola, who among other things opined that it was possible that the appellant's psychological development was adversely affected by the presence of unresolved trauma symptoms, which he had subsequently self-medicated with substance abuse.[119]
5. It is well established that where an offender's mental illness or psychological difficulties have not been self-induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is a relevant factor in the sentencing process.[120]
6. The effect of mental illness or psychological difficulties (falling short of insanity) on the kind or length of sentence to be imposed has been considered on numerous occasions.[121] The effect of mental illness or psychological difficulties (falling short of insanity) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms.[122] An offender who seeks to rely on mental illness or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour.[123]
7. In R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [254], it was explained that the rationale for the sentencing principle that if an offender suffers from a mental disorder or abnormality (that has not been self-induced), general deterrence should ordinarily be given relatively less weight:[124]

The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice.

1. In The State of Western Australia v Malone [2015] WASCA 188 at [74], it was said that:

However, although a mental disorder, intellectual disability or psychological difficulties (falling short of insanity and which have not been self-induced) will often tend to diminish moral blameworthiness or culpability and, consequently, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects. For example, the existence of a causal connection between the mental disorder, intellectual disability or psychological difficulties, on the one hand, and the offending behaviour, on the other, might reduce the importance of general deterrence but increase the importance of personal deterrence or the need to protect the public.

1. Ultimately, in the application of these principles, 'it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise'.[125]
2. These principles only apply in the case of a mental illness which is not self-induced. Where the illness has been caused by the conduct of the offender, different principles apply.
3. In Damiani v Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358 the following was stated:

[2] Intoxication, whether by alcohol or drugs may explain an offence, but ordinarily will not mitigate penalty, save where the original addiction did not involve a free choice. An offender generally cannot expect a reduction in sentence because they committed the offence whilst intoxicated: R v Rosenberger [1994] QCA 488; (1994) 76 A Crim R 1.

[3] Self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice: R v Henry (1999) 46 NSWLR 346 at 383; Douglas v R (1995) 56 FCR 465 at 470; Talbot v R [1992] FCA 54; (1992) 34 FCR 100 at 105-106; Hinchliffe v R [2001] WASCA 15). Intoxication or addiction will be weighed against the other relevant mitigating and aggravating circumstances, such as danger to the community and prospects of rehabilitation (Channon v R (1978) 20 ALR 1, per Brennan J at 5 and Deane J at 21; Veen v R (No 2) (1987) 164 CLR 465 at 476).

[4] Circumstances which wholly or partly excuse the taking of alcohol or drugs, or the addiction, may go to mitigation insofar as they are properly seen to lessen the moral culpability of the offender (R v Redenbach (1991) 52 A Crim R 95 at 99). Likewise, drug induced psychosis is not of itself a mitigating factor and so will not necessarily result in any mitigation in sentencing. The courts will evaluate moral culpability in such cases according to the offender's particular circumstances and the nature of the offence.

1. The appellant has not been formally diagnosed with a psychiatric illness. There is however some evidence to suggest that the appellant might have an underlying psychotic condition.[126] In his psychological report Mr Wszola referred to a previous report prepared by Dr Steve Patchett dated 2 September 2019, where Dr Patchett opined that it was:[127]

not possible to definitively answer the Court's questions regarding diagnosis ...

[the appellant] has what appears to be a complex psychotic disorder but I am of the view that it is most likely that he has Paranoid Schizophrenic illness, with a psychosis in the background accentuated by substance abuse, particularly methylamphetamine.

1. There was also evidence before the Magistrate that the appellant used methylamphetamine at the time of offending, and that his use of methylamphetamine either triggered or made his psychosis worse. In this regard, Mr Wszola opined that:[128]

While it was not clear whether Mr Ranger's psychotic symptoms were drug induced or were due to an underlying psychotic illness, there was some indication that his use of this drug has led to a change in his offending behaviour. As was noted in section 6.3, after Mr Ranger's first convictions for methamphetamine possession in 2013 and 2014, he started to commit weapon related offences and there was an increase in his violent offending behaviour. A prior psychiatric report stated that he committed various offences in around 2018 while he was 'experiencing an episode of psychosis in the context of amphetamine use'.

1. The relationship between the appellant's traumatic childhood, his use of methylamphetamine and his offending may be significant to the evaluation of moral culpability. As put by Mr Wszola:[129]

lifestyle and associated psychological vulnerabilities could have made [the appellant] highly likely to develop drug induced psychotic symptoms, when he started to abuse methamphetamine.

1. It was not open to the Magistrate on the evidence to find that the appellant has a diagnosed mental health condition. That said, giving due regard to the appellant's disadvantaged upbringing, and his mental health issues which were either caused or triggered by drug use, which drug use may have some link to his disadvantaged childhood, there may reasonably be a lessening of the appellant's moral culpability for the offending.
2. But in noting that the offender has these mental health and drug use issues (and the context in which they arose), I must also accept that there is a need for the protection of the community and specific deterrence.
3. The evidence of Mr Wszola was that the appellant presents with a high risk of violent reoffending due to the presence of risk factors, particularly due to his mental health issues.[130] The risk that the appellant poses, in particular from his use of methylamphetamine, is compounded by concerns Mr Wszola has surrounding his willingness to participate in ongoing treatment and his questionable personal supports.[131] I accept Mr Wszola's evidence that the appellant is a high risk of violent reoffending, and consequentially a serious risk to the community.
4. A particular risk that the appellant poses is due to his use of methylamphetamine in the community. The appellant acknowledged that he used methylamphetamine to stay vigilant and safe, but that this was a problematic strategy as it made his psychotic symptoms worse.[132] This is concerning as it reveals that the appellant is to some extent conscious of the decision he makes to take drugs and the consequence of exacerbating his underlying mental health conditions or causing drug induced psychosis. The appellant was released into the community in October 2024. He relatively quickly used methylamphetamine and offended on 27 and 28 October 2024 and on 2 November 2024. This rapid rate of recidivism is serious and is a distinguishing feature of the appellant's offending.
5. The appellant has continued to use methylamphetamine and must take personal responsibility for its continued use. His paranoia and psychosis are either caused or triggered by his use of methylamphetamine. Given the role of methylamphetamine in his psychosis, paranoia and offending, this is not a case where the presence of paranoia and psychosis does not depend upon any element of choice on the appellant's part.
6. It is evident from the appellant's criminal history that the appellant has an extensive record of offending. Mr Wszola observed that from a review of the appellant's criminal history, there appeared to be a change in offending in 2013. Since that date the appellant's offending has increased in violence, which the appellant explained was because he carried weapons for protection which he acknowledged he needed to stop doing.[133] Mr Wszola suggested that the appellant commenced using methylamphetamine in 2013.[134] As opined by Mr Wszola there was some indication that his use of this drug has led to a change in his offending behaviour. The offending which occurred in 2018 and 2023 were both linked to episodes of psychosis in the context of amphetamine use.[135] Lacking the genuine drive from the appellant to stop using methylamphetamine and address his underlying psychiatric issues, a stern sentence was required given the risk to the community and the need to be deterred from future offending.
7. The Magistrate had sentenced the appellant to a term of 1 year imprisonment previously for one count of being armed in a way that may cause fear on 7 December 2023, for a total effective sentence of two years' imprisonment. As counsel for the respondent identified, the sentence imposed must be within the acceptable range for this offending and this offending alone, which can give reference to previous offending particularly as an indication of risk.[136] What is impermissible is being punished again for the earlier offending. As was observed by Smith J in Crotty v Peck at [70]:

Relevantly, s 7(2)(b) and (c) of the Sentencing Act provide that an offence is not aggravated by the fact that the offender has a criminal record or a previous sentence has not achieved the purpose for which it was imposed. However, a lengthy criminal record results in no mitigation for good character. Further, his criminal history was indicative of the need for personal deterrence. This is because he has history of prior convictions for similar offences and has a lengthy criminal history of violent offences.

1. I consider that the fact that the appellant offended in the same way again on two separate occasions following his release means that there is an increased need for personal deterrence and to protect the community.
2. In weighing up the appellant's personal circumstances, this is a case where childhood deprivation has led to a challenging life and persistent interactions with the criminal justice system. The consequence of the appellant's deprivation may have manifested into substance misuse and the development of what might be schizophrenia. While I accept that there may be some diminishment of the appellant's moral culpability, given the lack of treatment or positive steps towards managing these underlying issues, and the need for personal deterrence and community protection, the appellant required a stern sentence.

1. After a 25% discount, the appellant was sentenced to two cumulative terms of 18 months' imprisonment for each offence of being armed or pretending to be armed in a way that may cause fear contrary to s 68(1) of the Criminal Code, where the maximum sentence prescribed by law for such offence was considerably higher.
2. In all the circumstances, I considered the offending to be serious. I do not accept that comparative cases demonstrate that a range of 4 to 12 months' imprisonment for offending of similar criminality to the appellant's offending for an offence of being armed in a way that may cause fear to be appropriate. As set out above, there are differences in the circumstances of the offending when compared to the cases referenced, and elements which make the appellant's offending more serious than described in some of the cases cited.
3. In this case, the appellant is an Aboriginal offender who had a disadvantaged childhood. The Magistrate considered this and additional matters personal to the appellant. The appellant has had a disadvantaged life, and I accept that this may have contributed to the development of psychosis. That said, it was the appellant's continued use of methamphetamine which either triggered or caused his psychosis and paranoia. After using methamphetamine and in a paranoid and psychotic state, the appellant posed an unacceptable risk to the public.
4. He has a lengthy criminal record which results in no mitigation for good character. Further, his criminal history was indicative of the need for personal deterrence. This is because he has history of prior convictions for similar offences.
5. Having given due weight to the maximum sentence prescribed by law, the standards of sentencing customarily imposed with respect to the crime, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type and the appellant's personal circumstances, I did not consider the sentences imposed upon the appellant to have fallen outside the range of sentences which could have been imposed if proper principles had been applied.
6. There was no miscarriage of a sound exercise of the sentencing discretion. On their own the length of each term of imprisonment was not manifestly excessive. In considering whether the sentences of imprisonment for the offences of being armed in public so as to cause fear were manifestly excessive, it is also appropriate to take into account the place of that sentence in the total effective sentence. While the sentences imposed were to be served cumulatively, I consider this was appropriate given they were separate offences, having given due regard to all of the circumstances and sentencing considerations.
7. As was properly conceded on behalf of the appellant, there was a need in this case to impose a sentence which lay towards the upper end of the available range to reflect specific deterrence and the need for the protection of the community.[137]
8. I also accept the submission made on behalf of the appellant that there cannot simply be a reduction of the sentencing exercise to imposing a sterner sentence than the one imposed previously because it did not deter the offender.[138] However, that did not occur in this case.
9. The offending in this case was serious enough to distinguish it from the other comparative cases, notwithstanding consideration of the appellant's personal circumstances.
10. The sentences imposed on the appellant approached the high end of an appropriate sentence when regard was had particularly to the place that the criminal conduct occupies in the scale of seriousness of crimes of that type. In the circumstances, the sentences imposed were within the range of sentences open to the sentencing Magistrate, and no error is demonstrated. I am not satisfied that the individual sentences for KH 3323/2024 and PE 61330/2024 were manifestly excessive. Accordingly, leave is refused on this ground as it has no reasonable prospects of success.

Ground 1 - the total effective sentence imposed breaches the totality principle

1. I turn to consider if the total effective sentence of 3 years' imprisonment breaches the first limb of the totality principle.
2. As is recorded above, the first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
3. The facts of the offending are set out at [8] to [20] above. As is there noted, the majority of charges arose from two separate incidents which both involved the appellant climbing onto the roof of residential properties he was not associated with. I have addressed seriousness of the Nickol offending and the Millars Well offending and the personal circumstances of the appellant in the context of ground 2 of the appeal.
4. The Nickol offending gave rise to charges in addition to that of being armed in a way that may cause fear. That is, obstructing public officers; without lawful excuse trespassing on a place; and criminal damage or destruction of property. The sentences imposed for these additional offences was 3 months' imprisonment (concurrent); 3 months' imprisonment (concurrent); and 6 months' imprisonment (concurrent), respectively.
5. The Millars Well offending also gave rise to a charge in addition to that of being armed in a way that may cause fear. That is, without lawful excuse trespassing on a place, for which the appellant was sentenced to 3 months' imprisonment (concurrent).
6. A final charge of carrying an article with intent to cause fear arose after the appellant, while riding his bicycle, was stopped by police who located on his person two knives with blade lengths of 20.5 and 15 centimetres, respectively. With respect to that offence he was sentenced to 1 year imprisonment (concurrent).
7. There was no ground or submission to the effect that any one of the additional sentences imposed was manifestly excessive.
8. The appellant relies on the cases summarised above to support the contention that total effective sentence of 3 years' imprisonment is in breach of the first limb of the totality principle.[139] I have had regard to the same.
9. Counsel for the appellant also relies on Debono v Director of Public Prosecutions for Western Australia [2024] WASC 188, an appeal from the decision of a magistrate to a single judge of this court.
10. In Debono v Director of Public Prosecutions for Western Australia the appellant entered pleas of guilty to 21 charges and was sentenced to custodial sentences for seven of the offences (four counts of being armed in a way that may cause fear and three counts of stealing). The remainder of the offences were dealt with by way of fines. He received a total effective sentence of 2 years' imprisonment, backdated for time already spent in custody, and was made eligible for a parole.[140]
11. The appeal only concerned the custodial sentences imposed. The three grounds concerned whether the Magistrate erred in his application of s 9AA of the Sentencing Act (in failing to grant the appellant a full 25% reduction on his sentence attributable to a plea of guilty); the Magistrate erred in imposing a total effective sentence that infringed the first limb of the totality principle; and a miscarriage of justice arose from the fact that medical information relating to the appellant was not before the Magistrate.
12. As to the stealing offences, in summary the appellant stole goods, including power tools, from motor vehicles and also from a detached shed located at a residential property. In relation to being armed in a way that may cause fear, in short, on the first occasion the appellant was armed with a metal pole in the company of another, walking down Albany Highway. The appellant was swinging it in an erratic manner and swearing loudly. One victim crossed the road when the appellant approached describing feeling terrified, another victim was in a car and described feeling afraid. On the second occasion the appellant was holding a wooden table leg and was yelling and screaming, while swinging the wooden leg at cars. On the third occasion the appellant approached the victim on a train platform and said 'Do you want to go on one?', and when the victim retreated, produced a meat cleaver and waved it in the air. He then hit a post at the train station with the cleaver. Other members of the public were present on the train station platform when this occurred. On the fourth occasion the appellant was holding a 23 centimetre kitchen knife while walking along Murray Street in the Perth Central Business District. The appellant used the knife in a manner which caused fear to several members of the public, including shouting offensive remarks and making lunging motions.
13. With respect to the second ground of appeal, the appellant contended that when considering both his personal circumstances and the relevant authorities, the total effective sentence of 2 years' imprisonment was in breach of the first limb of the totality principle.[141] As was recorded by Howard J, the appellant's submissions referred to Garlett v Director of Public Prosecutions; Donovan v Director of Public Prosecutions for Western Australia; Jackman v Director of Public Prosecutions for Western Australia [2023] WASC 63 (which concerned an appeal of sentence for criminal damage and stealing); Caruana v Director of Public Prosecutions for Western Australia [2024] WASC 27 (where the appellant was convicted of two offences, being armed with an intention to cause fear; and a threat to kill).
14. As was recorded by Howard J, in Caruana v Director of Public Prosecutions for Western Australia the appellant was in a public place, where he pulled out a knife and threatened the victim who was unknown to him. For the weapon offence the appellant was initially sentence to 9 months' imprisonment, which on appeal was reduced to 7 months' on the basis of an error of law by the Magistrate. The total effective sentence imposed on the appellant was 15 months. On appeal, no finding was made as to the totality of the initial sentence imposed by the Magistrate.[142]
15. In addition to the cases referred to by the appellant, Howard J considered the maximum sentence for each of the offences of stealing and being armed in a way that may cause fear. His Honour also noted that the appellant had a significant criminal record including previous sentences of imprisonment; and that he was not youthful nor of prior good character. His Honour further considered the personal circumstances of the appellant, noting that the appellant relied on multiple identified past traumatic events which had had a serious impact upon him.
16. In the end, Howard J dismissing the appeal noted that considering all the factors it could not be said that no reasonable sentencing officer could have imposed the total effective sentence of 2 years' imprisonment.
17. It is the appellant's position that Mr Debono's offending was far more serious than the appellant's offending but received a lesser total sentence.[143] It was submitted that in this case, the Magistrate erred when two 'upper end' sentences were made wholly cumulative upon each other, without reduction for totality purposes.
18. The respondent says that Debono v Director of Public Prosecutions for Western Australia does not demonstrate that the total effective sentence imposed on the appellant was disproportionate with regard had to all the circumstances. The respondent says that the calculus of personal mitigation and the assessment of risk was significantly different in Mr Debono's case which consequentially resulted in a different outcome.[144]
19. In considering this ground I have considered the cases referenced and the importance of broad consistency in sentences. I also proceed cognisant of the comments of the Court of Appeal in UGN v The State of Western Australia at [54] (footnotes omitted):[145]

When, in cases such as the present, an infringement of the first limb of the totality principle is alleged, an exercise of comparison with the total effective sentence under challenge and the facts and circumstances of cases said to be comparable is of limited utility. As Hall J noted in Pennetta v The State of Western Australia:

Where, however, it is only claimed that there has been a breach of the totality principle and no challenge is made to the individual sentences the utility in comparing the total effective sentence with total sentences in other cases is more limited. This is because the total effective sentence is not one imposed for a single offence. It is often difficult enough to compare sentences imposed in different cases with different factual circumstances and different personal circumstances where the offences relates only to a single offence. The fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult. Nonetheless it is important to ensure that there is broad consistency in sentences. (authorities omitted)

1. In this case, the appellant's offending occurred in different circumstances than the offending described in Debono v Director of Public Prosecutions for Western Australia.[146] While the appellant in that case was charged with more offences, the appellant's personal circumstances were not the same (among other things, Mr Debono having been himself the victim of very serious crimes).
2. As identified by counsel for the respondent, the appellant's conduct involved two separate but markedly similar instances of offending, characterised by the appellant's unauthorised presence at residential dwellings, express threats and a heightened risk to those members of the police force and the public who were required to deal with the appellant.[147] However, there were in fact three courses of offending. The Nickol offending and the Millars Well offending marked by the climbing on roofs carrying weapons, but also the offence (KH 3481/2024) on 27 October 2024 at 2.30 pm, which is earlier in the day prior to the Nickol offending, when the appellant was stopped by police and found to be in possession of two knives.
3. I accept the submission made on behalf of the respondent that this is repeat offending, not only in relation to the offences the subject of the present appeal, but also with regard had to the appellant's previous convictions for 'very similar offending'.[148]
4. I proceed cognisant of those principles which apply to cases where reduction is applied by making certain sentences cumulative. In this regard, I note two considerations identified by the respondent.[149] First, that where cumulative sentences are imposed but the aggregate sentence is richly deserved or does no more than meet the crimes committed, then a reduction will not result from applying the totality principle.[150] Secondly, care must be taken when applying the totality principle to avoid the suggestion that what is in effect being offered is some kind of discount for multiple offending.[151]
5. This ground asserts an implied error, and it is well settled that an appellate court (including a single judge on appeal) is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge or magistrate.[152]
6. I have carefully considered all relevant facts and circumstances in relation to the offending, including the appellant's personal factors, all relevant sentencing factors and the total effective sentences imposed in comparable cases. I am not satisfied that the total effective sentence imposed of 3 years' imprisonment breached the first limb of the totality principle. The total effective sentence imposed was not one that no reasonable sentencing officer would have imposed.
7. After a 25% discount, the appellant was sentenced to terms of imprisonment for each offence, where the maximum sentence prescribed by law for each of the offences was considerably higher.
8. As identified above when I considered ground 2, the Millars Well and Nickol offending were serious, and the appellant has repeatedly offended in the same manner. The need for personal deterrence and community protection was significant.
9. It was also submitted on behalf of the appellant that the Magistrate failed to reduce any sentence for totality reasons. While the Magistrate did not reduce any individual sentence, the Magistrate ordered all sentences save for charge PE 61330/2024 to be concurrent with the head sentence. A reduction for totality can be achieved by ordering concurrency.[153]
10. In this case, the Magistrate imposed two cumulative sentences, with the remainder to be served concurrently in circumstances where there had been three distinct occasions of offending. The combination of the cumulation of two upper end sentences, and otherwise the imposition of concurrent sentences allowed the total effective sentence imposed to bear a proper relationship to the overall criminality involved in all of the offences. The total sentence impose was neither unreasonable nor plainly unjust.
11. I consider this ground of appeal to be more finely balanced than the second ground. This is because the cumulation of two 18 month sentences of imprisonment for being armed in circumstances likely to cause fear (each sentence being in the upper range of individual sentences for the type of offending), resulted in a total effective sentence which lay at the very upper end of the range of what could be considered to be an appropriate total sentence in this case. That said, for these reasons, I consider that a sentence of 3 years' imprisonment is nonetheless within the acceptable range, and it does bear proper relationship to the offending. While the grant of leave to appeal on this ground is appropriate, the appeal will be dismissed.

1. For these reasons, I will make orders in the following terms:
   1. Leave to appeal is granted on ground 1;
   2. Leave to appeal is refused on ground 2; and
   3. The appeal be dismissed.

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

[1] Appellant's outline of submissions filed 12 June 2025, par 5.

[2] Respondent's outline of submissions filed 8 July 2025, par 4.

[4] Respondent's outline of submissions filed 8 July 2025, par 5.

[5] Respondent's outline of submissions filed 8 July 2025, par 6.

[6] Respondent's outline of submissions filed 8 July 2025, par 7; pre-sentence report by D Maloney dated 28 January 2025, pages 1 - 2.

[7] ts 7, 9 (31 January 2025). See also ts 4, 7, 8 (29 July 2025), and the respondent's outline of submissions filed 8 July 2025, pars 13, 33.

[8] Appellant's outline of submissions filed 12 June 2025, par 6; ts 5 - 6, 7 (31 January 2025).

[12] Pre-sentence report by D Maloney dated 28 January 2025, page 2.

[13] Pre-sentence report by D Maloney dated 28 January 2025, page 3.

[14] Pre-sentence report by D Maloney dated 28 January 2025, page 2.

[15] Pre-sentence report by D Maloney dated 28 January 2025, page 1.

[16] Psychological report by B Wszola dated 25 January 2025, appendix B. See also Freckelton I, Expert Evidence: Law, Practice, Procedure and Advocacy (7th ed, 2024) 962, and Freckelton I, Expert Evidence (at 10 February 2026) [10.40.140].

[17] Psychological report by B Wszola dated 25 January 2025, footnote 2. See also Freckelton I, Expert Evidence (at 10 February 2026) [60.6530].

[18] Psychological report by B Wszola dated 25 January 2025, par 2.3.

[19] Psychological report by B Wszola dated 25 January 2025, par 2.5.

[20] Psychological report by B Wszola dated 25 January 2025, pars 3.1 - 3.2.

[21] Psychological report by B Wszola dated 25 January 2025, pars 2.6, 2.7, 3.2, 3.3.

[22] Psychological report by B Wszola dated 25 January 2025, pars 4.1 - 4.3.

[23] Psychological report by B Wszola dated 25 January 2025, par 4.4.

[24] Psychological report by B Wszola dated 25 January 2025, pars 5.2 - 5.3.

[25] Psychological report by B Wszola dated 25 January 2025, par 5.3. See also par 5.1.

[26] Psychological report by B Wszola dated 25 January 2025, par 5.3.

[27] Psychological report by B Wszola dated 25 January 2025, par 2.6.

[28] Psychological report by B Wszola dated 25 January 2025, pars 8.1 - 8.6.

[29] In context, the words 'stay away' appear likely to be a typographical error.

[30] Psychological report by B Wszola dated 25 January 2025, par 9.3.

[31] Psychological report by B Wszola dated 25 January 2025, par 10.2.

[39] ts 10 (31 January 2025), referring to the decisions of Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; and R v Fernando [1992] 76 A Crim R 58.

[43] Order 1 of the order made on 11 June 2025.

[44] Criminal Appeals Act s 9(1).

[45] Criminal Appeals Act s 9(2).

[46] Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[47] Criminal Appeals Act s 9(3).

[48] Order 1 of the orders made by Registrar Hosking on 5 May 2025.

[49] Taken from the judgments of the court in Salkilld v The State of Western Australia [2017] WASCA 168 [48] and Trajkoski v The State of Western Australia [2018] WASCA 176 [30].

[50] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [26].

[51] Respondent's outline of submissions filed 8 July 2025, par 31, citing The State of Western Australia v PJW [2015] WASCA 113 and UGN v The State of Western Australia [2021] WASCA 10 [54] - [55].

[52] Appellant's outline of submissions filed 12 June 2025, pars 26 - 27.

[53] Appellant's outline of submissions filed 12 June 2025, pars 28 - 30. The appellant also referred to Crotty v Peck [2021] WASC 51, however did not identify that case within the two classes. See also ts 3 (29 July 2025).

[54] Appellant's outline of submissions filed 12 June 2025, par 30.

[55] Appellant's outline of submissions filed 12 June 2025, par 28, referring to Hume v Jefford [2018] WASC 272, Garlett v Director of Public Prosecutions [2021] WASC 353 and Donovan v Director of Public Prosecutions for Western Australia [2024] WASC 9.

[56] Appellant's outline of submissions filed 12 June 2025, par 29, referring to Donovan v Director of Public Prosecutions for Western Australia, King v The State of Western Australia [2013] WASCA 131 and Cleminson v The State of Western Australia [2017] WASCA 58.

[57] Appellant's outline of submissions filed 12 June 2025, pars 11 - 25.

[60] Appellant's outline of submissions filed 12 June 2025, par 30; ts 3 - 4 (29 July 2025).

[61] Referring to the principles enunciated in Bugmy v The Queen and R v Fernando, which are discussed below.

[62] Appellant's outline of submissions filed 12 June 2025, pars 31 - 38; ts 4 (29 July 2025).

[63] Respondent's outline of submissions filed 8 July 2025, par 3; ts 4 (29 July 2025).

[64] Respondent's outline of submissions filed 8 July 2025, par 13.

[65] Respondent's outline of submissions filed 8 July 2025, par 14. See also ts 4 (29 July 2025).

[66] Respondent's outline of submissions filed 8 July 2025, pars 15 - 16.

[67] Respondent's outline of submissions filed 8 July 2025, par 18.

[68] Respondent's outline of submissions filed 8 July 2025, par 19; ts 5 (29 July 2025).

[69] Respondent's outline of submissions filed 8 July 2025, par 20.

[70] Respondent's outline of submissions filed 8 July 2025, par 33.

[71] Respondent's outline of submissions filed 8 July 2025, par 32.

[72] Respondent's outline of submissions filed 8 July 2025, par 35, citing Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 62 - 63; Jarvis v The Queen (1993) 20 WAR 201, 205 - 207, 211 - 214, 215 - 217.

[73] Respondent's outline of submissions filed 8 July 2025, par 35, citing R v Knight [2005] NSWCCA 253; (2005) 155 A Crim R 252 [112], cited in Mallard v Director of Public Prosecutions for Western Australia [2023] WASC 473 [81].

[74] Respondent's outline of submissions filed 8 July 2025, par 36.

[75] Nguyen v The State of Western Australia [2017] WASCA 35 [25] - [26].

[76] Corpus v Roseveare [2015] WASC 165 [49].

[77] Which was consistent with the reasoning applied in Garlett v The Director of Public Prosecutions at [34].

[78] Respondent's outline of submissions filed 8 July 2025, par 19.

[79] Appellant's outline of submissions filed 12 June 2025, pars 11 - 25.

[80] Respondent's outline of written submissions filed 8 July 2025, pars 17 - 28.

[81] King v The State of Western Australia [1].

[82] King v The State of Western Australia [3].

[83] King v The State of Western Australia [14] - [18], summarised in Hayward v Martin [2014] WASC 309 [48].

[84] King v The State of Western Australia [19].

[85] King v The State of Western Australia [20].

[86] King v The State of Western Australia [26], [32] - [34].

[87] Cleminson v The State of Western Australia [3].

[88] Cleminson v The State of Western Australia [5].

[89] Cleminson v The State of Western Australia [6] - [9], [25].

[90] Cleminson v The State of Western Australia [22], [26].

[91] Cleminson v The State of Western Australia [29] - [30], discussed in Crotty v Peck [66].

[92] Cleminson v The State of Western Australia [31].

[96] Hume v Jefford [15] - [18], [23].

[106] Crotty v Peck [107] - [113].

[107] Garlett v Director of Public Prosecutions [7].

[108] Garlett v Director of Public Prosecutions [27], [29].

[109] Garlett v Director of Public Prosecutions [34] - [35].

[110] Donovan v Director of Public Prosecutions for Western Australia [8].

[111] Donovan v Director of Public Prosecutions for Western Australia [19] - [20].

[112] Donovan v Director of Public Prosecutions for Western Australia [25], [68] - [71].

[113] Respondent's outline of submissions filed 8 July 2025, par 27.

[114] The State of Western Australia v PJW [36] - [37]; UGN v The State of Western Australia [54] - [55]; applied by Whitby J in Donovan v Director of Public Prosecutions for Western Australia [67].

[115] Donovan v Director of Public Prosecutions for Western Australia [66], citing The State of Western Australia v PJW [36] - [37].

[117] Kelly v The State of Western Australia [2024] WASCA 116 [223], citing Dellow v The Queen [2020] NSWCCA 301 [45] (Leeming JA; Bellew & Wright JJ agreeing).

[118] See by way of example, Kelly v the State of Western Australia [225].

[119] Psychological report by B Wszola dated 25 January 2025, par 8.2; see [39] above.

[120] Suleiman v The State of Western Australia [2017] WASCA 26 [58].

[121] Suleiman v The State of Western Australia [59], citing Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442; Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; Krijestorac v The State of Western Australia [2010] WASCA 35; Wheeler v The Queen [No 2] [2010] WASCA 105; Smith v The State of Western Australia [2010] WASCA 176; The State of Western Australia v Khasay [2014] WASCA 58; IEB v The State of Western Australia [2015] WASCA 207.

[122] Suleiman v The State of Western Australia [60], citing R v Verdins [2007] VSCA 102; (2007) 16 VR 269 [25]; Wheeler v R [No 2] [9].

[123] Suleiman v The State of Western Australia [60], citing Wheeler v R [No 2] [10]; Smith v The State of Western Australia [72]; Phillips v The State of Western Australia [2011] WASCA 69 [48].

[124] Suleiman v The State of Western Australia [61].

[125] Suleiman v The State of Western Australia [63], quoting R v Letteri (Unreported, NSWCCA, 18 March 1993).

[126] Psychological report by B Wszola dated 25 January 2025, par 5.1.

[127] Psychological report by B Wszola dated 25 January 2025, par 5.1.

[128] Psychological report by B Wszola dated 25 January 2025, par 8.3.

[129] Psychological report by B Wszola dated 25 January 2025, par 8.3.

[130] Psychological report by B Wszola dated 25 January 2025, par 9.3.

[131] Psychological report by B Wszola dated 25 January 2025, par 9.3.

[132] Psychological report by B Wszola dated 25 January 2025, par 8.6.

[133] Psychological report by B Wszola dated 25 January 2025, par 6.3.

[134] Psychological report by B Wszola dated 25 January 2025, par 3.2.

[135] Psychological report by B Wszola dated 25 January 2025, pars 6.3 - 6.5, 8.3 - 8.4.

[139] Appellant's outline of submissions filed 12 June 2025, par 32.

[140] Debono v Director of Public Prosecutions for Western Australia [1] - [2], [4].

[141] Debono v Director of Public Prosecutions for Western Australia [30].

[142] Debono v Director of Public Prosecutions for Western Australia [39].

[143] Appellant's outline of submissions filed 12 June 2025, par 35.

[144] Respondent's outline of submissions filed 8 July 2025, par 32.

[145] See also The State of Western Australia v PJW [37].

[146] Respondent's outline of written submissions filed 8 July 2025, par 32.

[147] Respondent's outline of written submissions filed 8 July 2025, par 33.

[148] Respondent's outline of written submissions filed 8 July 2025, par 33; ts 4 (29 July 2025).

[149] Respondent's outline of written submissions filed 8 July 2025, par 35.

[150] Mill v The Queen (62 - 63); Jarvis v The Queen (205 - 207) (lpp J), (211 - 214) (Murray J), (215 ‑ 217) (Anderson J).

[151] Mallard v Director of Public Prosecutions for Western Australia [81], emphasising R v Knight [112].

[152] Kabambi v The State of Western Australia [21].

[153] Kabambi v The State of Western Australia [28], quoting Giglia v The State of Western Australia [2010] WASCA 9 [40].