Criminal law - Sentencing - State appeal against sentence - Respondent, with an intent to harm, did an act as a result of which bodily harm was caused to the victim, contrary to s 304 of the Criminal Code (WA) - Victim an off-duty police officer acting in the performance of a function of his office - Victim suffered severe injuries and significant ongoing disabilities - Sentence of 3 years and 4 months' imprisonment manifestly inadequate - Sentencing judge erred in making sentence on a count of unlawful assault on another off-duty police officer wholly concurrent with the sentence on the offence against s 304

Criminal law - Sentencing - State appeal against sentence - Sentencing principles - Proper construction and application of s 3 of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) - Proper construction and application of cl 3A of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) - Effect of the repeal of the 'truth in sentencing' legislation

Criminal law - Appeal against conviction - Prejudicial media publicity during trial - Trial judge refused to discharge jury - Directions of trial judge in summing up adequate to ensure a fair trial - Prosecution witnesses gave differing accounts in relation to a crucial part of the State's case - Prosecution's obligation to call witnesses - Whether verdict of guilty unsafe or unsatisfactory - Verdict not unreasonable - Verdict supported by the evidence

Criminal Appeals Act 2004 (WA), s 30(3), s 31(3), s 31(4), s 31(5), s 41(4)

Prisons Act 1981 (WA), s 29

Sentencing (Consequential Provisions) Act 1995 (WA), s 110

Sentencing Act 1995 (WA), s 6(1), s 6(2), s 7(1), s 7(2), s 8(1), s 10, s 93(1)

Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), s 3, s 4

Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 22, sch 1 cl 2 (repealed), sch 1 cl 3A

Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562

Barnes v The State of Western Australia [2004] WASCA 258

Bensegger v The Queen [1979] WAR 65

Byfield v The Queen [2002] WASCA 260; (2002) 133 A Crim R 307

Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1

Carroll v The Queen [2009] HCA 13

Chan (1989) 38 A Crim R 337

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Dragon v The State of Western Australia [2008] WASCA 252

Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285

Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295

Farmer v The State of Western Australia [2008] WASC 115

Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293

Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348

Holden v The State of Western Australia [2009] WASCA 50

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

Jarvis v The Queen (1993) 20 WAR 201

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439

Kilner v The Queen [1999] WASCA 189

Kirby v The Queen [2003] WASCA 239

Lewis-Harrison v The Queen (Unreported, WASCA, Library No 930291, 27 May 1993)

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Maric v The Queen (1978) 52 ALJR 631

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

McGarry v The State of Western Australia [2005] WASCA 252

McMaster v The Queen [2004] WASCA 52; (2004) 144 A Crim R 428

MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Mourish v The State of Western Australia [2006] WASCA 257

Narrier v The State of Western Australia [2008] WASCA 191

Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305

Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Pepper v The State of Western Australia [2005] WASCA 177; (2005) 30 WAR 447

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Power v The Queen [1974] HCA 26; (1974) 131 CLR 623

R v Abboud [2005] NSWCCA 251

R v George (1987) 9 NSWLR 527

R v Morgan (1993) 70 A Crim R 368

R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1

R v Zakaria (1984) 12 A Crim R 386

R v Zammit [1999] NSWCCA 65; (1999) 107 A Crim R 489

R v Zampaglione (1981) 6 A Crim R 287

RH McL v The Queen [2000] HCA 46; (2000) 203 CLR 452

Stephens v The State of Western Australia [2005] WASCA 98

Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319

Stingel v Clark [2006] HCA 37; (2006) 226 CLR 442

The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165

The State of Western Australia v Camilleri [2008] WASCA 217

The State of Western Australia v Redman [2009] WASCA 1

The State of Western Australia v Richards [2008] WASCA 134

The State of Western Australia v Wallam [2008] WASCA 117

The State of Western Australia v Wallam [2008] WASCA 117(S)

Vagh v The State of Western Australia [2007] WASCA 17

Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465

Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)

WCW v The State of Western Australia [2008] WASCA 232

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

Williams v Smith [1960] HCA 22; (1960) 103 CLR 539

Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

Yates v The State of Western Australia [2008] WASCA 144

1 OWEN JA: I agree with Wheeler and Pullin JJA.

2 WHEELER & PULLIN JJA: We have had the advantage of reading in draft the reasons for decision of Buss JA. We agree that, for the reasons given by his Honour, the appeal against conviction should be dismissed, in relation to each count. We also agree that, for the reasons given by his Honour, grounds 1 and 3, but not ground 2, of the State's appeal against sentence, are made out.

3 As to the resentencing of BLM, our view of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) (the Amendment Act) differs from that expressed by his Honour. We set out below our conclusions concerning the Amendment Act, and concerning the appropriate sentences to be imposed in this case.

4 The Amendment Act in its operative provisions reads:

Before Schedule 1 clause 3 insert:

3A. Provisions relating to deletion of clause 2

(1) In this clause -

clause 2 means clause 2 of this Schedule as in force immediately before the relevant commencement;

minimum custodial period of a fixed term, is the amount of the fixed term required to be served in custody before the offender would be, or was or would have been, eligible or entitled to be released, whether on parole or on being discharged from the sentence;

relevant commencement means the commencement of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008.

(2) After the relevant commencement, clause 2 does not apply to the sentencing of an offender for an offence -

(a) even if the offence was committed before the relevant commencement; and

(b) even if the offender was convicted before the relevant commencement; and

(c) even if the sentencing is as a result of an appeal against a sentence imposed before the relevant commencement,

despite any written or unwritten law to the contrary.

(3) A court sentencing an offender to a fixed term can have regard to the minimum custodial period of the fixed term to be imposed and the minimum custodial periods of fixed terms imposed before the relevant commencement, whether or not clause 2 applied to their imposition.

(4) A court sentencing an offender to a fixed term can impose a penalty up to the statutory penalty for the offence.

(5) This clause expires 3 years after the relevant commencement.

5 The effect of s 3 is to repeal what were commonly known as the "transitional provisions" (Sentencing Legislation Amendment and Repeal Act 2003 (WA)). The questions which arise in the present case relate to the proper construction of the new cl 3A(3) and (4). So far as cl 3A(3) is concerned, it is necessary to consider whether the word "can" grants the court a discretion and, if so, by reference to what criteria the discretion falls to be exercised. It is necessary to consider for what purpose the court might have regard to the minimum custodial period of fixed terms imposed both before and after the commencement of the transitional provisions; in particular, it is necessary to consider whether the purpose, or a primary purpose, of doing so is to ensure consistency of minimum custodial periods as between sentences imposed prior to and after the commencement of the Amendment Act. If the court is to ensure consistency, the question then arises as to whether it should endeavour to do so in all cases.

6 Buss JA, in his reasons, has concluded that the Amendment Act is intended to give effect to a legislative intention that there should be, in general, some increase in the length of sentences in most cases falling between the worst case and the least serious case, with no increase, or a very modest increase, in the least serious cases and the imposition of either the maximum penalty, or something close to it, for offending falling in the worst category of offending [238] - [239]. His Honour has explained at [244] - [246] the way in which, consistently with that view, sentencing judges should proceed under the Amendment Act. We agree with Buss JA's proposition (a) in [239]. As to propositions (b) and (c), however, the view expressed by Buss JA is, it seems to us, one of two possible views which may be taken of the effect of the Amendment Act.

7 While we acknowledge the force of the considerations which have led his Honour to his conclusions, we would prefer an alternative construction. The construction we prefer sees the effect of the Amendment Act as requiring a sentencing judge, where there was an established sentencing range in respect of a particular offence prior to the enactment of the Amendment Act, to have regard to the minimum custodial periods of the sentences established by that range, for the purpose of ensuring that comparable minimum custodial periods are established for those who offend in a comparable way subsequent to the Amendment Act. However, in the case of offending falling within the worst category of offending, and in relation to offending of that type only, the effect of the Amendment Act is that a sentencing judge may impose the statutory maximum penalty, or a penalty close to the maximum, notwithstanding that the effect of doing so would be to require the offender to serve a substantially increased minimum custodial period. Our reasons for preferring that construction are as follows.

8 There are a number of principles of statutory construction which are relevant. In addition to consideration of the words used in their statutory context, it is well settled that, at common law, courts may have regard to materials which demonstrate what is the mischief, if any, which a statute is intended to cure. The context of the statute is to be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and "context" in this sense includes such things as the existing state of the law and the mischief which a statute was intended to remedy (CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ). The Interpretation Act 1984 (WA), s 18, is similar in its effect to those common law principles, in directing the court to prefer a construction which would promote the purpose underlying a statute "whether that purpose ... is expressly stated in the written law or not". Consideration of context and of "mischief" are ways in which a legislative purpose may be discerned where (as here) the Act in question has no section setting out its objects. In addition, however, s 19 of the Interpretation Act 1984 permits the court to consider extrinsic materials, such as Parliamentary Debates, in determining the meaning of a provision which is "obscure" in its meaning (s 19(1)(b)(i), s 19(2)(f), (h)). We consider that the Amendment Act is "obscure" in the sense that nothing in the text expressly answers the questions referred to in [5].

9 In order to ascertain the relevant statutory context and the mischief at which the Amendment Act may have been directed, we will briefly summarise the history of remission and parole provisions in Western Australia. Much is set out in the reasons of Buss JA, but we repeat it here in an attempt to ensure coherence in these reasons. We then turn to consider the Parliamentary Debates concerning the Amendment Act.

10 The relevant history is conveniently to be found in three reports. The first was A Report on Parole, Prison Accommodation and Leave From Prison in Western Australia dated February 1979 by K H Parker QC, as His Excellency then was (the Parker Report). The next was the Report of the Committee of Inquiry into the Rate of Imprisonment (the Dixon Report) of 1981, and the third was the Report of the Review of Remission and Parole (the Hammond Report) of March 1998.

11 To the extent that public perceptions may be seen to be a part of the "mischief" at which the Amendment Act was directed, it is relevant to note that both the Dixon and Hammond Reports were compiled after invitations to the public at large to make submissions, consultations with those who were seen as experts in the field, and an examination of some systems in operation in comparable jurisdictions. The consensus view of those reports was that a system of remission and parole, which resulted in a prisoner potentially serving a sentence of imprisonment shorter than that pronounced by a sentencing judge, was potentially of benefit to the public in ways discussed in those reports. Further, those reports saw no advantage, and some possible disadvantage, to the public, in an overall increase in average times in custody. We refer to this issue in more detail below.

12 Some form of administrative remission of sentence, or of conditional liberty, is to be found in England at least as far back as the late 18th century; at that time, convicts found unfit for transportation were released unconditionally from the Hulks after serving a little over half of their nominal sentence. The system of remissions varied over time, and by 1891 it was suggested that judges did not often know the exact effect of the sentences which they passed because, although "Circulars containing tables of remission [had] been issued several times by the Home Office the Circulars got lost and the tables [were] too complex for anyone to bear in mind" (Dixon Report, page 206). The justification for remissions seems to have varied over time. In part, it seems to have been a response to unacceptable prison overcrowding; in part, an element in maintaining discipline within the prison system; and, in part, an incentive to reform. Parole, by contrast, was a concept intended more explicitly to assist in the rehabilitation of offenders.

13 So far as Western Australia was concerned, there was, at the time of the Parker Report, and until 1988, a system of sentencing by which a judge would fix both a maximum term, or head sentence, and a minimum term prior to which a prisoner could not be released on parole. There was also, concurrently, a system of earned remissions in operation. There were both practical and conceptual difficulties with that system. The Parker Report pointed out that in the three years to June 1978, in 11% of cases the minimum sentence imposed was less than one-quarter of the maximum, and in 40% the minimum was one-third or less. That was said to give rise to a community concern that the deterrent effect of sentencing was weakened and that prisoners were not sufficiently punished. The Parker Report considered whether a system of parole should be retained at all, but suggested that there were, at least potentially, advantages to the community from the supervision provided to prisoners who were in the process of reintegrating into the community. It further pointed out that, in any event, the costs of imprisonment (at that time $225 per prisoner per week; now over $225 per day: Report on Government Services 2008, Chapter 8, fig 8.12) and of parole (at that time less than $9 a week; now around $19 per day: Report on Government Services, Table 8A.50) were so vastly different that there would be an enormous cost to the community if parole were simply abolished, and that within six months there would not be enough prison accommodation available to hold the increase in prison population.

14 The conceptual difficulty with judges setting both a minimum and a maximum term is illustrated by the discussion of the criteria by reference to which the minimum should be set, in Power v The Queen [1974] HCA 26; (1974) 131 CLR 623. The High Court in that case considered that a judge sentencing a prisoner, in fixing a non-parole period, should "determine that minimum period for which in his judgment, according to accepted principles of sentencing, the prisoner should be imprisoned" (at 627). It pointed out that confinement in prison serves the same purposes whether before or after the expiration of a non-parole period, being punishment directed towards reformation (at 628).

15 In effect, the sentencing judge was required to perform the rather odd feat of fixing two different terms of imprisonment by reference to essentially the same criteria. If the minimum term was that which was required by accepted principles of sentencing for the purposes of punishment and reformation, it is difficult to see what might justify fixing a term longer than the minimum, giving rise to an obvious difficulty in setting the maximum. The position is, of course, different if the sentencing judge fixes but one sentence by reference to considerations of retribution, denunciation, deterrence, rehabilitation, and protection of the community, and then the executive, or a body appointed by it (or, in some jurisdictions, a court), determines, at a later time, whether an offender has in fact made substantial steps towards rehabilitation, and whether in fact there is likely to be any risk to the community from his or her release. (See McGarry v The State of Western Australia [2005] WASCA 252 at [34] - [36].)

16 The Dixon Report recommended the abolition of the system by which the court fixed both a maximum and a minimum sentence. It suggested that courts return to the practice of simply imposing a finite sentence. However, it recognised that there was then a real possibility that, in many cases, the finite sentence would be longer than the minimum sentence which would have been imposed under the then existing regime. That would have caused an increase in the rate of imprisonment. The committee therefore recommended that the general rate of remission on sentences be increased to one-third of the sentence (from the one-quarter which, in general terms, was then the position). That would bring the rate of remission into line with that prevailing both in the United Kingdom and in most other Australian States. It also suggested, in relation to parole, that while parole could be useful, it tended to be self-defeating if parole terms were too long, and that probably a term of parole of the order of 2 years was the longest which was likely to be useful.

17 The Hammond Committee recommended that parole be retained, as a system of parole facilitated community reintegration and protected the community by lessening the risk of recidivism. It recommended, however, the abolition of remission of sentence, which, by then, was virtually automatic, in order to address community concern that sentences imposed appeared to bear little relationship to sentences actually served. However, it also noted that in New South Wales the adoption of "truth in sentencing" provisions had resulted in a large and unintended increase in the prison population. In Victoria, by contrast, that consequence of truth in sentencing reforms had been avoided. The committee recommended, therefore, that, as in Victoria, the sentencing court be required by statute to adjust the sentence which it imposed so that the actual time served was no greater than that which would have been served if the existing provisions relating to remission and parole still applied.

18 For technical reasons to do with the calculation of remission and parole, a requirement that the sentencing court adjust its sentences in the manner recommended by the Hammond Committee was replaced, in the transitional provisions, by a mathematical one-third reduction. That followed the recommendation (without dissent) of the Legislative Council's Standing Committee on Legislation, a body which drew its membership from all sides of politics (Report 18 May 2003).

19 In summary, the historical context of the Amendment Act is that for a very long time, by reason of a system of legislative and administrative measures, sometimes automatic and sometimes discretionary, the actual sentence likely to be served, at least by a prisoner who made some effort towards rehabilitation, was less - often very significantly less - than the actual sentence pronounced by the court. In Western Australia, for more than 30 years, because of a combination at different times of minimum sentences, remissions, parole, and discretionary prison leave regimes (the last of which it is unnecessary to discuss in these reasons) the actual time in custody spent by the majority of prisoners appears to have been between one-third and, at most, two-thirds of the sentence actually pronounced by the court.

20 It is important to note the factual context against which each of the reports discussed above, and the resulting legislation, was concerned to avoid an increase in the rate of imprisonment in Western Australia. It is briefly and simply illustrated by the tables in Appendix 1 to these reasons. To summarise, this State has long had a rate of imprisonment very significantly higher than that of other States, a rate exceeded in Australia only by the Northern Territory (Report on Government Services, 2008, Table 8A.5). It is very much higher than the rate in comparable countries, such as the United Kingdom, Canada and the Irish Republic (Victoria, Sentencing Advisory Council, Sentencing Statistics). Public perceptions do not, overall, reflect that reality; the general public tends to believe that crime is increasing even when it is stable or decreasing; underestimates the severity of existing sentencing practices; and overestimates the percentage of offenders who reoffend (Weatherburn & Indermaur, Public Perceptions of Crime Trends in NSW and WA (2004), NSW Bureau of Crime Statistics and Research; Gelb, More Myths and Misconceptions, (2008) Sentencing Advisory Council Victoria). Parliament, presumably, is more accurately informed than the community at large in these respects. However, members of the public do appear to recognise that money spent on increasing imprisonment is not necessarily well spent (even in comparison with expenditure on rehabilitation, let alone in comparison with expenditure on matters such as policing or healthcare) (Gelb).

21 From the reports discussed above, and from the factual context which we have briefly sketched, we draw a conclusion about the "mischief" at which the Amendment Act was not aimed. It is most unlikely that it was intended to increase, to any significant extent, an already very high rate of imprisonment. We discuss shortly the aims at which it appears to us the Amendment Act was directed.

22 Another aspect of the background to the Amendment Act is that the courts have not generally been able to have regard to the minimum term likely to be served, in imposing sentence, so that once the courts lost power to fix a minimum term, they have not been able to impose a sentence designed to ensure that an offender serves any particular length of minimum term: Jarvis v The Queen (1993) 20 WAR 201 at 208 (Ipp J), 214 (Murray J); Kirby v The Queen [2003] WASCA 239 at [26]. This principle was subject to some exceptions which arose from statute (eg, s 88(4) Sentencing Act 1995 (WA)) or which were seen as necessary to avoid inconsistency and injustice (eg, Lewis-Harrison v The Queen (Unreported, WASCA, Library No 930291, 27 May 1993) at 13 - 14). However, until the enactment of the transitional provisions, consistency of sentencing between prisoners sentenced under different remission and parole regimes has generally been achieved by adjusting the remission and parole components, administratively or legislatively.

23 At the time of enactment of the transitional provisions, there was a significant alteration to the remission and parole regime, the result of which would have been a very substantial increase in the minimum custodial term, had it not been for the mandatory one-third reduction required by those provisions. The attached table (Appendix 2) illustrates the difference which would have resulted. As we have noted, in order to ensure consistency in relation to offenders sentenced before and after the enactment of the transitional provisions, the mandatory one-third reduction was provided for. However, pursuant to these provisions, the courts were required to make the adjustment, and the adjustment regime was expressed to be "transitional".

24 That brings us to the Amendment Act and to cl 3A(3). As was noted in Holden v The State of Western Australia [2009] WASCA 50 at [57], a sentencing judge must have regard to the range of sentences customarily imposed in respect of the type of offence for which the sentencing judge comes to sentence an offender. That is because it is a matter of sentencing principle that there should not be any unjustifiable disparity in sentence between comparable offences (that is, offences of comparable seriousness committed by offenders in comparable circumstances). Disparity of sentencing standards is considered to be a very serious deficiency in a system of criminal justice, and as tending to undermine public confidence (Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 326 per Jacobs J, and see Barwick CJ at 310; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 300 (Brennan, Deane, Dawson, Gaudron JJ), at 306 (McHugh J)). The underlying principle is that of equal justice, which is "a fundamental element in any rational and fair system of criminal justice" (Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610 (Mason J); also Gibbs CJ at 610, Wilson J at 616, Dawson J at 623 - 624; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 301 (Dawson and Gaudron JJ), at 333 (Kirby J)).

25 Against that background, it seems to us that the obvious construction of cl 3A(3) is one which sees it as a requirement that, for the purpose of considering questions of comparability of sentence, the court have regard to the minimum custodial period which the offender will be required to serve before being eligible for release. That is, rather than mandating a mathematical one-third reduction, Parliament was requiring the court to compare minimum custodial periods, both before and after the enactment of the transitional provisions, in order to arrive at an appropriate minimum custodial period for an offender sentenced after the Amendment Act, and to impose a head sentence which would have that result.

26 Of course, it does not follow that offenders with identical minimum custodial periods will in fact spend identical periods in custody. An offender is not automatically released upon the expiry of the minimum term. A variety of factors, many within the offender's control, such as different approaches to participation in rehabilitative programmes, will lead to offenders with the same minimum in fact serving differing terms. That, because the disparity is not arbitrary, cannot be described as "unjustifiable disparity", and is not relevant for present purposes.

27 The construction referred to above is reinforced by two aspects of the Amendment Act. One is that cl 3A(3) permits the court to have regard to a minimum custodial period "whether or not" the transitional provisions had applied to the term of which it formed part. That tends to suggest that Parliament was concerned with consistency over time, and considered minimum terms imposed under the transitional provisions to be appropriate comparators, as well as minimum terms prior to the transitional provisions. The other is that cl 3A(2)(c) applies the Amendment Act to sentences imposed after an appeal. It is unlikely that Parliament intended that every offender exercising his or her right of appeal would potentially be penalised for doing so, by being exposed to the possibility of a significantly higher minimum custodial period.

28 An objection, as a matter of logic, to the construction which we have suggested might be that it would mean no alteration, practically, in the majority of sentences imposed before and after the transitional provisions. Parliament, in enacting the Amendment Act, presumably wished to address a "mischief" of some kind, and the question arises as to what that mischief might be, if it was not intended to alter the sentence likely to be imposed in at least the majority of cases.

29 It seems to us that Parliament may have intended to deal with a number of possible mischiefs, without intending that there be a general alteration in the range of sentences customarily imposed. One such "mischief" is that the transitional provisions necessarily had a tendency to inhibit the development of sentencing practices which would respond to changing conditions, such as increased prevalence of offences. By, in effect, requiring the court to look back to what had been the appropriate regime prior to the transitional provisions and make a mathematical adjustment, notwithstanding that there were certain exceptions to that requirement, there was potentially a stultifying effect upon sentencing practice. As was pointed out in Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 at [73] - [77], there was a potential difficulty in ascertaining whether the "transitional provisions" had ceased to have effect, and when a "new range" of sentencing had become established, so that the court was no longer required to perform the calculation which the transitional provisions required. Another "mischief" was that, because of the way the transitional provisions were expressed, they had been held to apply even to offences the creation of which post-dated their enactment, which tended to suggest that they were permanent, rather than "transitional": Yates v The State of Western Australia [2008] WASCA 144. Finally, there was the fact that, since the court was required to deduct one-third from the figure which it had fixed as the appropriate sentence, the statutory maximum penalty, which Parliament presumably intended to be imposed in the worst case, could, in fact, never be imposed.

30 So far as the difficulty with the statutory maximum is concerned, it appears to us that cl 3A(4) of the Amendment Act makes it clear that the inability ever to impose a maximum sentence, or one very close to the maximum, was one of the matters which Parliament was concerned to correct. That view is confirmed when one turns to the relevant Parliamentary Debates.

31 The focus in the debates upon what members appeared to regard as "worst cases" provides, in our respectful view, one possible answer to the suggestion made by Buss JA that Parliament was unlikely to wish to alter the relativities of sentences imposed in worst cases compared with other cases. It is, in our view, possible that Parliament, while not wishing significantly to alter sentencing patterns overall, was concerned to ensure that the relatively few offenders falling within the most serious category of offending were more severely dealt with.

32 A significant portion of the Second Reading Speech of the Hon the Attorney-General was concerned with the inability of sentencing judges to impose the maximum penalty, or a sentence very close to it, by reference to the example of a "most serious category" of manslaughter case (Farmer v The State of Western Australia [2008] WASC 115). The clear suggestion was that the effect of the Amendment Act was to permit the maximum term to be imposed in such a case (Parliamentary Debates, 26 November 2008, Legislative Assembly, 498 - 499). The Hon the Attorney-General returned to this theme in his concluding comments in the Second Reading Speech debate, saying that it was his view that "this legislation will achieve what it sets out to do; that is, for the first time in a long time in this jurisdiction, make the legislated statutory maximum sentence available" (Parliamentary Debates, Legislative Assembly, 3 December 2008, 871). Similar comments were made by the Hon J McGinty (Parliamentary Debates, Legislative Assembly, 3 December 2008, 851 - 852) and the Hon Giz Watson. The latter said "[i]f we agree on one thing, it is that the intention of this bill is that it is correct to seek to make adjustments for some of the more serious offences to allow for increased sentences" (Parliamentary Debates, Legislative Council, 9 December 2008, 1049). The whole of the debates concerned with what became cl 3A(4) took it for granted that it was appropriate that the maximum penalty should be available in the worst category of case; views differed only about whether it was necessary to insert cl 3A(4) in order to achieve that objective, or whether cl 3A, without that subsection, would have been sufficient.

33 A need for greater clarity and transparency in sentencing and a need to ensure that a "transitional" regime did not continue forever, was also referred to in a number of debates and, in particular, in the Hon the Attorney-General's Second Reading Speech introducing the Bill for the Amendment Act (Parliamentary Debates, Legislative Assembly, 26 November 2008, 494, 498). Remarks expressing dissatisfaction with the position reached in Yates are found in other speeches (eg the Hon J McGinty, 3 December 2008, 849, Mr B S Wyatt, 3 December 2008, 855).

34 To the extent so far discussed, the Parliamentary Debates support a construction of cl 3A which would see it as requiring consistency in minimum custodial terms both before and after the abolition of the transitional provisions, save in the case of the worst categories of offending. In those categories, the effect would be to increase the minimum custodial term by allowing the imposition of either the statutory maximum, or something close to it.

35 It must be accepted, however, that a sentencing court should have regard to the statutory maximum not only in the worst category of offending, but in fixing an appropriate sentence in respect of all offending, since the statutory maximum serves to indicate how seriously the legislature regards an offence of a particular kind, relative to other offences. When Parliament increases the maximum penalty for an offence, it is, in effect, requiring courts to regard offences of that kind more seriously in future. It might therefore be suggested that in effectively increasing the penalties available across the board, by permitting the courts to impose the statutory maximum, Parliament was intending, as Buss JA suggests, that sentences should increase overall in all categories of offending, and not only in relation to what might be regarded as worst cases.

36 In considering that possible view, it is necessary, however, to have regard to two matters. One is a principle of statutory interpretation, recently described by Gleeson CJ as "a principle of legality" in the following terms:

In exercising their judicial function, courts seek to give effect to the will of parliament by declaring the meaning of what parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this court in recent cases. It is not new. In 1908, in this court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that '[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness'.

A statement concerning the improbability that parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by parliament. Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [19] - [20].

37 Although his Honour was in dissent in the result, the principle which he enunciated was not controversial. It had earlier been restated by the High Court in these terms in Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437:

In Bropho v Western Australia, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ pointed out that the rationale against the presumption against the modification or abrogation of fundamental rights is to be found in the assumption that it is:

... 'in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law [emphasis supplied], without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used'.

38 Neither remission nor parole can, as a matter of law, be described as a "fundamental right" (see McGarry at [72] - [76]). Rather, both have historically been a matter of executive administrative discretion, to a greater or lesser degree formalised in legislation. However, the principle of consistency of sentencing is part of the general system of law, departure from which one would expect Parliament to signal only by unmistakably clear language. It seems to us, against those principles, that it is not open to attribute to the Parliament an intention that, while retaining the existing statutory maximum sentences unaltered, retaining the system of parole unaltered, and expressly permitting the courts to have regard to the minimum custodial terms, Parliament nevertheless intended some unspecified and undefined increase in sentence for all offenders, without expressly saying so.

39 The other matter to be considered, in evaluating a possible legislative intention to increase sentences generally, is the factual context discussed at [12] - [21] above. As we have noted, it is unlikely that Parliament intended to impose a substantial financial burden on the community by increasing an already extremely high rate of imprisonment. None of the speakers during the debates suggested that there was any good reason for taking such a course.

40 There is some support in some portions of the Parliamentary Debates for the view that at least some individual members of Parliament may have considered that a consequence of the Amendment Act may, ultimately, be a degree of increase in the length of sentences overall. As a practical matter, in the very long term, that anticipation may prove to be correct, simply because over the longer term the imposition of the statutory maximum, or a term close to it, in the very worst category of cases is likely to lead to an increase in the sentence imposed on those offenders who fall just outside the worst category, for reasons of sentencing relativity. However, it is one thing to predict that a consequence may flow over time, and another to accept it as a matter of sentencing principle which the Amendment Act requires to be applied. For the reasons which we have endeavoured to articulate, it seems to us there is no new sentencing principle of that kind.

41 We would add that we draw no assistance, in construing the Amendment Act, from the "sunset clause" cl 3A(5). It may be that Parliament had some expectation about what patterns of sentencing might be established in three years. It is equally likely that Parliament was simply concerned to ensure that the effect of the Amendment Act was subject to prompt and thorough review, so that it could be extended, or altered if required, and chose this device to ensure that end. This is particularly so in light of the fact that the Amendment Act sought to repeal a provision expressly described as "transitional", and in the light of the concern expressed in debate about the effect of the decision in Yates.

42 In our view, therefore, the effect of the Amendment Act is simply this: in the general run of cases, sentences imposed subsequent to the Amendment Act must be imposed in a way which ensures consistency between the minimum custodial period to be served under a sentence following the Amendment Act with the minimum custodial period in respect of an offender committing a comparable offence before the Amendment Act, either under the transitional provisions, or under the regime preceding the transitional provisions. In the worst category of cases, the Amendment Act permits the court to impose a sentence at, or close to, the maximum term available, without adjustment so as to ensure comparability with previous minimum custodial terms. Whether, in any particular "worst category" case, a sentencing judge will be required to impose a penalty at or near the statutory maximum will depend not upon the Amendment Act, but upon established sentencing principle. "Worst category" is, of course, to be understood as Mason CJ, Brennan, Dawson and Toohey JJ described it in Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 478:

... the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen [(1987) [1987] HCA 46; 163 CLR 447 at 451 - 452]. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category.

43 In summary, the Amendment Act has, in our view, the following effects:

(1) In cases falling within the "worst category" it enables the imposition of the statutory maximum penalty, or something approaching it. Whether, in any particular "worst category" case, a sentencing judge will be required to impose a penalty at or near the statutory maximum will depend not upon the Amendment Act, but upon established sentencing principle.

(2) In cases not falling within the worst category, and where there is an established range of sentences capable of affording comparison, it requires a sentencing judge to have regard to the minimum terms which would have been required to have been served under that range of sentences, and to tailor the sentence to be imposed so as to avoid unjustifiable disparity in respect of the minimum custodial period.

(3) It facilitates the development of sentencing ranges which change over time, by reason of factors such as prevalence or other relevant matters.

(4) Where new offences are created, it makes it clear that the court is not to discount sentences imposed in respect of those offences by one-third.

This list may not be exhaustive, but it is sufficient for the purposes of the present case.

44 Finally, we turn to apply those principles to this case. It is, in our view, a serious case for the reasons articulated by Buss JA, but does not fall into the "worst category". The attack on Mr Marklew was a very serious offence because there was a degree of premeditation, because there was a weapon used, because the attack involved more than one blow, because Mr Marklew suffered severe injuries and significant ongoing disabilities, and because the assault on him appears to have been by way of revenge for his having earlier performed a function of his office as a police officer. This last factor is particularly significant because, while all citizens are equally deserving of protection from attack, a premeditated and wholly unjustified attack on a police officer as a result of that officer carrying out his duties is in a real sense an attack on the community as a whole, as members of the community rely upon the police to protect them from criminal conduct and to maintain the peace. Deterrence looms large in dealing with such attacks.

45 However, the learned sentencing judge found merely an "intent to harm" Mr Marklew. She did not make any finding as to the nature or extent of the harm intended. In those circumstances, it was accepted by the parties that the only proper basis for sentencing was that the respondent had an intent to cause bodily harm and not, for example, the more serious intent to endanger Mr Marklew's life. Her Honour found that the respondent's actions could have endangered Mr Marklew's life, but not that his life was, in fact, endangered. There was premeditation, but for a short period only. While there was more than one blow, the attack lasted a relatively short time. That takes the offending out of the relatively rare "worst category" which would demand either the maximum statutory penalty, or something close to it. Although there was generally little to be said for the respondent by way of mitigation, there was also in his favour the circumstance of his apparently real rehabilitation during his most recent period of imprisonment; the references produced to the sentencing judge suggested that he had, for the first time, made a real effort to turn his life around and, in our view, that circumstance requires significant weight.

46 The only cases in which this court has previously considered s 304 are Yates, The State of Western Australia v Wallam [2008] WASCA 117 and The State of Western Australia v Redman [2009] WASCA 1. All of those cases involved offences which were significantly less grave, and/or offenders whose antecedents were better, than in the present case, and all involved pleas of guilty. The range of sentences of 3 years (18-month minimum custodial period); 3 years (18-month minimum custodial period) and 1 year and 4 months respectively are therefore not appropriate as directly comparable sentences. They do, however, assist in establishing a range within which to place this offending.

47 Some limited assistance is afforded by considering offences of intentionally causing grievous bodily harm pursuant to s 294 which have been the subject of review on appeal, but in those cases, as a rule, the offender's intention was more culpable, and the attacks were often more intense or prolonged. Perhaps the closest would be Byfield v The Queen [2002] WASCA 260 (retaliation for an alleged earlier assault, premeditated attack with piece of wood and also ran over complainant with vehicle; young offender; plea of guilty; effective term of 12 years, equivalent to 6 years minimum custodial period) and McMaster v The Queen [2004] WASCA 52 (altercation in a nightclub, followed by the offender firing at complainants; imprisonment would be a particular burden on McMaster because of a medical condition; effective sentence of 9 years, equivalent to 4 years minimum custodial period).

48 In light of those cases, despite the apparent recent rehabilitation of the respondent, the sentence which should have been imposed for the assault on Mr Marklew would, in our view, have been one which required the respondent to serve a minimum custodial term of the order of 4 years' imprisonment, equating to a "head sentence" of 6 years. In accordance with the views we have expressed earlier, we have reached that conclusion substantially for the reason that, under the regime which applied prior to the transitional provisions, a person sentenced to a term of 9 years' imprisonment (6 years after the transitional provisions) would have been required to serve a minimum custodial term of 4 years. We would therefore fix a sentence of 6 years for count 1.

49 In our view, there should be an additional penalty for the assault on Mr Lowe, for the reasons given by Buss JA. We agree with Buss JA that the additional criminality of that offence would be appropriately recognised by a further 6 months' immediate imprisonment. In our view, it would be appropriate, therefore, to quash the sentences imposed by the learned sentencing judge and substitute for them the following sentences:

Count 4: 6 months' immediate imprisonment, cumulative on count 1

50 We would order the sentence for count 1 to commence on 22 February 2008, and we would order eligibility for parole.

51 BUSS JA: On 29 May 2008, Brian Laurence Mallard was convicted, after a trial before O'Brien DCJ and a jury, on counts 1 and 4 in an indictment.

52 Count 1 alleged that on 4 February 2006 at Carnarvon, Mr Mallard, with intent to harm Jeremy Allan Marklew, did an act as a result of which bodily harm was caused to Mr Marklew, contrary to s 304(2) of the Criminal Code (WA). Count 2 was in the alternative to count 1, and count 3 was in the alternative to counts 1 and 2. Count 4 alleged that on the same date and at the same place alleged in count 1, Mr Mallard unlawfully assaulted Jayden Kenneth Lowe and thereby did him bodily harm, contrary to s 317(1) of the Criminal Code.

53 At all material times, Mr Marklew and Mr Lowe were police officers.

54 On 5 August 2008, the learned judge sentenced Mr Mallard to 3 years and 4 months' immediate imprisonment on count 1, and 12 months' immediate imprisonment on count 4 (in each case, after the application of the transitional provisions in cl 2 of sch 1 to the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (2003 Sentencing Amendment Act)). The sentences were ordered to be served concurrently, and backdated to commence on 22 February 2008 (to give credit for time previously spent in custody solely in respect of counts 1 and 4). A parole eligibility order was made.

55 Mr Mallard has appealed against his conviction on each of counts 1 and 4. The State has appealed against the sentencing decision.

56 I will consider, first, Mr Mallard's appeal against conviction and then the State's appeal against sentence.

57 Mr Mallard relies on two grounds of appeal. Ground 1, which applies to counts 1 and 4, alleges that the learned judge 'erred in refusing to abort the trial following the publication of adverse, prejudicial and inadmissible material during the course of the trial'. Ground 2, which applies to count 4 only, alleges that the jury's verdict is 'unfair and unsatisfactory and cannot be supported having regard to the evidence at the trial'. Particulars of ground 2 have been given. They read:

1. There were 3 witnesses who gave evidence at the trial regarding an assault on the Complainant Lowe.
2. Paul Anthony Dickson [sic] and Jayden Kenneth Lowe each gave evidence that [Mr Mallard] had assaulted Lowe.
3. The evidence of Dickson [sic] was that he saw [Mr Mallard] come from his (Dickson's) [sic] left and hit Constable Lowe in the head. He said Mr Mallard was running in a northerly direction coming from the south.
4. The evidence of Constable Lowe was that he did not observe [Mr Mallard] immediately before the assault, he felt someone strike him with a fist from his right hand side and then looked to his right and saw [Mr Mallard].
5. The evidence of Kayleen Susan Oakley, which was not challenged at the trial, was that Constable Lowe was struck by another male by the name of Les Cook.

58 On 13 November 2008, Wheeler JA granted Mr Mallard leave to appeal on ground 1 and ordered that the application for leave to appeal on ground 2 be heard together with the appeal.

Appeal against conviction: the elements of counts 1 and 4 that were in issue at the trial

59 The trial was held at Carnarvon. It occupied 4 days from 26 - 29 May 2008. Mr Mallard did not give sworn evidence in his own defence at trial.

60 On the morning of 27 May 2008, Mr Mallard's trial counsel made some admissions in relation to counts 1 and 4, in the presence of Mr Mallard and the jury, as follows:

In relation to count 1 it is admitted that on 4 February 2006 at Carnarvon, Brian Laurence Mallard did an act as a result of which bodily harm was caused to Jeremy Allan Marklew. The words in that count which are not admitted are the words 'with intent to harm Jeremy Allan Marklew', and as far as count 1 is concerned the main thrust of your decision will be whether you are satisfied on the evidence that he, that is Mr Mallard, did have such an intention at the time of doing the act.

...

In respect of count 4 it is admitted that someone unlawfully assaulted Jayden Kenneth Lowe and thereby did him bodily harm. What is not admitted is that the person who did that is Brian Laurence Mallard, and you will have to consider on the evidence whether you are satisfied beyond a reasonable doubt that Brian Laurence Mallard was the person who assaulted Mr Lowe and caused him those injuries. If you are not so satisfied, then you will acquit Brian Mallard of that count and if you are so satisfied then you will convict him (ts 60).

61 Accordingly, the elements of counts 1 and 4 that were in issue at the trial were:

(a) as to count 1, whether Mr Mallard intended to harm Mr Marklew when he did the act as a result of which bodily harm was caused to Mr Marklew; and

(b) as to count 4, whether Mr Mallard was the person who unlawfully assaulted Mr Lowe and thereby did him bodily harm.

Appeal against conviction: ground 1: the injuries suffered by Mr Marklew

62 The nature and extent of the bodily harm which Mr Mallard caused to Mr Marklew was as follows. He suffered a fractured right cheekbone, fractured left and right eye sockets, fractured right jaw, fractured left sinus, a 4.5 cm laceration to the right cheek, a 2 cm laceration to the upper lip, a 5 cm laceration to the scalp, and a laceration on the inside of the mouth. All of these injuries required sutures. Also, he sustained bruising to the right eye, right elbow, right ribs and the chest. Further, a number of teeth were loosened. Evidence was given that Mr Marklew was required to spend 7 days in hospital.

63 Ten photographs of Mr Marklew's injuries were tendered in evidence at the trial, and were with the jury when they deliberated on their verdicts. These photographs were taken 4 days after Mr Marklew was injured. He is shown standing, without assistance. They depict various bruises, scars and sutures.

Appeal against conviction: ground 1: the relevant published material

64 On 28 May 2008, after the third day of the trial, WIN Television published, in its 6.30 pm news bulletin, photographs of Mr Marklew which had not been (and were not subsequently) tendered in evidence at the trial. These photographs, evidently taken upon or shortly after Mr Marklew's admission to hospital, show him in a hospital bed, apparently unconscious, with blood on his face. They seem to have been taken before Mr Marklew's cuts and bruises, and the consequential bleeding, were cleaned and treated by hospital staff. The news bulletin was shown on free-to-air television in Carnarvon.

Appeal against conviction: ground 1: the application to the learned judge and her ruling

65 On the morning on 29 May 2008, Mr Mallard's trial counsel made application to the learned judge for the trial to be aborted and the jury discharged, without verdict, as a result of WIN Television having published the photographs. Counsel said, relevantly:

They are images which are very graphic in nature and they are images which had the state intended to call, I would have objected to their admissibility on the basis that their probative value given, amongst other factors, bodily harm was admitted, and the image photos taken a few days later are in evidence. Their probative value was virtually nil and their potential prejudicial effect would be, in my submission, extreme.

It's my submission that given the publication of these images some three hours after the jury has dispersed on a television news show as one of the lead items on that news bulletin, that the potential for prejudice to the trial is so great that the only way in which your Honour can prevent against that prejudice would be to discharge the jury and abort the trial (ts 213).

66 The learned judge dismissed the application. Her Honour gave these reasons:

Well, I'm not going to discharge the jury. Whilst it is regrettable that the media hasn't taken a responsible course notwithstanding my strong warning during the course of the trial and chose to publish photographs which I had ruled to be inadmissible as evidence given their prejudicial value, it's my view that I can warn the jury not to pay any attention to media reports and I won't do so in the context of drawing their attention to the particular reports because I think that just focuses attention on it but I will give them a direction about that. I might say, if I did have the power to prohibit publication of those images then I would have made that order. I just consider it irresponsible of the media to publish those photographs but I don't control the media (ts 214).

Appeal against conviction: ground 1: Mr Mallard's submissions

67 Counsel for Mr Mallard submitted that the photographs published by WIN Television were highly prejudicial to Mr Mallard and likely to incite sympathy for Mr Marklew. It was further submitted that the nature and impact of the photographs was unlikely to have dissipated before the jury commenced their deliberations. According to counsel, the learned judge should have aborted the trial and ordered a retrial before a new jury in that:

(b) the photographs featured prominently in the WIN Television news bulletin;

(c) her Honour had indicated earlier in the proceedings that if she had had power to prohibit the publication of the photographs, she would have done so; and

(d) Carnarvon is a small country town, the news bulletin was broadcast on free-to-air television, and the jury were not sequestered when the broadcast occurred.

Appeal against conviction: ground 1: its merits

68 The critical issue for a trial judge, in the context of an application to discharge a jury as a result of prejudicial publicity in the course of a criminal trial, is whether, having regard to the atmosphere of the trial and the nature and extent of the publicity, it is necessary to grant the application in the interests of ensuring a fair trial. See R v George (1987) 9 NSWLR 527, 532 - 533 (Street CJ, Yeldham & Finlay JJ agreeing).

69 Where an accused is convicted and appeals against the conviction on the ground that the trial judge's discretion miscarried when he or she refused to discharge the jury without verdict, the appeal is not against the failure to discharge the jury, but against the conviction. See Maric v The Queen (1978) 52 ALJR 631, 634 (Gibbs ACJ, Mason & Jacobs JJ agreeing). The appeal will only succeed if the appellant can demonstrate that the trial judge's exercise of discretion was vitiated by an error of law (see s 30(3)(b) of the Criminal Appeals Act 2004 (WA); House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ)) or that a miscarriage of justice has occurred (see s 30(3)(c) of the Criminal Appeals Act). See also Narrier v The State of Western Australia [2008] WASCA 191 [31] (Buss JA, Martin CJ & Wheeler JA agreeing).

70 In R v Smith (Unreported, NSWCCA, 7 October 1982), the Court of Criminal Appeal of New South Wales said:

It is a commonly encountered ground of appeal that a trial judge has refused in the exercise of his discretion to discharge a jury when there has been some prejudicial media publicity. It is a ground that has rarely succeeded. This Court has repeatedly emphasised that the decision to discharge or not is essentially one within the discretion of the trial judge, being a decision to be made in the awareness of contemporary atmosphere and the likelihood of material prejudice being occasioned to the accused person. Moreover, trial judges should not be encouraged to discharge juries merely upon the ground of some prejudicial material having been published if appropriate directions can cure the situation.

In this instance, Judge Goran was anxiously aware of the necessity of protecting the appellant from unfavourable inferences arising out of the publicity given to him and his trial. His Honour gave some directions to the jury and, in the exercise of his discretion, felt that the trial could satisfactorily proceed. I see no justification for this Court holding that his Honour's discretionary evaluation was wrong and should be overruled (17 - 18).

This passage was cited with approval in George (533 - 534). See also R v Zampaglione (1981) 6 A Crim R 287, 298 - 300 (Young CJ & Murray J).

71 In R v Zammit [1999] NSWCCA 65; (1999) 107 A Crim R 489, the appellant was convicted, following a trial before a judge and jury, of armed robbery and murder. The identification of the offender was a crucial issue at trial. On appeal, the appellant submitted that photographs of the victim's wounds were prejudicial and should not have been admitted into evidence. The Court of Criminal Appeal of New South Wales held that the photographs were admitted to prove the state of mind of the offender and to show how close his face must have been to a witness at the time of the shooting. In the circumstances, the probative value of the photographs outweighed any prejudicial effect they may have had. In any event, any prejudice arising from the photographs was insignificant. Wood CJ at CL (Ireland & Kirby JJ agreeing) said:

The sensitivity of jurors to photographs can too easily be overstated. I can see no reason why a degree of robustness should not be extended in this regard. Nor can I see why the tender of selected photographs, so long as they have a probative value (O'Sullivan and Mackie (1975) 13 SASR 68 at 74 - 75) should be regarded as other than another step in the course of a trial in which the fact of violent death is patent for all: Green [1939] HCA 4; (1939) 61 CLR 167 at 172; Jeffrey [1967] VicRp 51; [1967] VR 467 at 473 and Ames [1964] NSWR 1489 [156].

72 In the present case, the learned judge, in her summing up, directed the jury, relevantly, as follows:

You are only to focus on the evidence that was called at this trial, what the witnesses have said about the matter and the exhibits, and that's it. Anything, any gossip you might have heard around town, anything you might have seen on TV on the news or any other program on TV, anything you might have read in the newspaper, is not evidence. Put it out of your mind. Only concentrate on the evidence that was given at this trial.

...

These sorts of trials - in fact what I'm going to say really applies to all criminal trials, but particularly where somebody is injured and you have photographs of the injuries it is natural for you to feel a degree of sympathy for the person who was injured, particularly you may think for Mr Marklew who suffered severe injuries as a result of the assault on him. These feelings of sympathy are natural, all of us have them, and they just spring to mind without you even thinking about them, but sympathy plays no part in a criminal trial.

You don't base your verdict on sympathy, on feeling sorry for anybody; whether it is Mr Marklew, whether it is Mr Mallard doesn't matter. Feelings of sympathy are natural human feelings and it is okay to have them but not when you are a juror and you are considering whether a person is guilty or not guilty, so put any feelings of sympathy you may have out of your mind (ts 222).

73 In my opinion, these directions were adequate to ensure a fair trial. They protected Mr Mallard from any prejudice that may have arisen as a result of any members of the jury having seen the photographs published by WIN Television in its news bulletin. There is no reason to doubt that the jury would have acted faithfully in accordance with her Honour's directions. Further, although the photographs in question were graphic, they could not reasonably be described as gruesome or shocking to an adult of ordinary robustness. There is no reason to suppose that any members of the jury who had seen the photographs would have experienced any difficulty in disregarding them. In addition, there was substantial oral evidence before the jury (admitted without objection) as to the nature and extent of the injuries suffered by Mr Marklew, the manner in which the injuries were inflicted, and Mr Marklew's appearance shortly after Mr Mallard had finished assaulting him. See ts 120 - 123, 135 - 136, 200 - 202. That evidence was likely to have produced a mental image for the jury of Mr Marklew's physical condition at the material time. I doubt that any such mental image would have been materially different from the images captured in the photographs.

74 The learned judge's decision, in the exercise of her discretion to refuse to discharge the jury, was not vitiated by any material error, and her decision did not occasion a miscarriage of justice. Ground 1 fails.

75 Evidence was given by three prosecution witnesses (Paul Anthony Dixon, Mr Lowe and Kayleen Susan Oakley) as to the identity of the person who assaulted Mr Lowe.

76 Mr Dixon was the owner and licensee of the Sandhurst Tavern. During his evidence, he referred to Mr Mallard from time to time by his nicknames 'Sunsun' and 'Ice Cream'. Mr Dixon's evidence-in-chief in relation to the identity of the person who struck Mr Lowe was this:

At about the same time Mr Lowe was coming out of the carpark area and into a gap and then I saw Ice Cream come from the - from his left as he's walking to me and hit him in the head.

How did he do that?---With a fist, yeah.

...

After you saw Mr Mallard punch Mr Lowe, did you notice anything about Mr Lowe's appearance?---He was dazed.

Where did you go to next?---After that, Mr Lowe and myself started back towards the entrance of the tavern and we got to the drive-through bit.

...

Okay?---So we were out the front of the drive-through and Ice Cream approached me and, you know, was obviously pretty aggressive. There was probably 15 or 20 other Aboriginal people around. We were just backing back. Ice Cream came forward and struck me on the left cheek.

What did he do that with?---His fist.

Okay?---Yeah. I just said to him, 'What are you doing Ice Cream?' He just was replying, 'I'm gonna kill ya, I'm gonna kill ya.' About that time, Les Cook picked up a long stick that was probably about a metre long, 40 millimetres round and it was round, pretty light in colour. He was yelling and waving the stick. I was pretty apprehensive at that stage and I didn't know where Mr Lowe was, he had gone. At about the same time, a person came from my left side and struck me again and then Ice Cream struck me again in the left side again. I was just saying to him - walking back saying, 'Settle down, settle down.' As I was walking back or getting back to the entrance of the Tavern, I saw the police car rock up or attend.

Mm'hm?---In the headlights of the police car, I could see Mr Lowe struggling or wrestling with another Aboriginal gentleman. Then the police got out of the car and were appearing to try and settle everything down. A little bit after that, the lights came back on. So we have got floodlights in the carpark there.

Yes?---People started to disperse then (ts 70 - 71).

77 During cross-examination, Mr Mallard's trial counsel suggested to Mr Dixon that he could not be sure it was Mr Mallard who had hit Mr Lowe. Mr Dixon rejected this suggestion. He said he had no doubt that it was Mr Mallard (ts 84). The cross-examination on this issue was, relevantly, as follows:

When you saw Mr Lowe get punched, Mr Lowe was in front of you also?---From me to you away.

So about four, five metres maybe?---Yep.

The only source of light at the time was ?---Headlights.

...

When you saw Mr Lowe get punched ?---Yep.

The person who punched Mr Lowe came in from Mr Lowe's left?---Yep.

...

You have described a person called Les Cook. Did you see Les Cook involved in an altercation with Mr Lowe at all?---No, no.

Did you recognise the person who was involved in the wrestling with Mr Lowe?---No, I hadn't.

Could you describe that person at all?---No.

Did you know if it was more than one person---I saw Mr Lowe wrestling with a person.

...

When you saw Mr Lowe get punched he didn't fall to the ground or anything like that from the punch?---No, no.

...

Was the person who hit Mr Lowe running?---Yes, he was.

He was running?---Yes, he was.

He was running across or towards you?---He wasn't running towards me. He was running towards Mr Lowe.

...

After you saw Mr Mallard hit Mr Lowe, where did Mr Mallard go?---He hit him and then moved off.

In the same direction that he was already running?---That's right.

So he would only have been in your field of vision for a few seconds?---A couple of seconds.

The next time you saw him was when he was punching you?---Confronting me.

Confronting you?---Yeah.

Were you throwing punches at him as well?---No.

I put it to you that given the poor light and only catching a glimpse of him for a couple of seconds, you couldn't be sure that it was Mr Mallard who hit Mr Lowe?---I've no doubt it was Mr Mallard that hit Mr Lowe.

But it definitely wasn't Mr Mallard who was then wrestling with Mr Lowe afterwards.

O'BRIEN DCJ: I missed that.

ARNDT, MR: It was definitely not Mr Mallard who was wrestling with Mr Lowe?---I don't know who Mr Lowe was wrestling with. It may have been Mr Mallard; it may not.

How long did you see that wrestling for?---Same, a couple of seconds, and that was a fair way away. That was probably 25 metres away (ts 78, 79, 80, 84).

78 In re-examination, Mr Dixon confirmed that the wrestling incident between Mr Lowe and another person occurred after he had seen Mr Mallard hit Mr Lowe (ts 85).

79 Mr Lowe described, in evidence-in-chief, a wrestling incident with Les Cook (Mr Mallard's uncle) and the incident in which Mr Lowe said he was struck by Mr Mallard:

Where did you head to?---I sort of headed straight out into the carpark and I suppose I was heading towards the light. A person I know as Les Cook basically jumped into my path and shoved me as hard as he could in the chest. It sort of took the wind out of me and made me stop, basically.

Did you say anything to Mr Cook?---Not at that stage. He sort of took hold of me and then he started saying things to me like, 'Just let them have a fair fight. Just let them have a fair fight.' At that stage I didn't really know what he was talking about. Then I sort of looked to my left. That's when I saw the accused standing over Constable Marklew.

What was Mr Mallard doing, if anything?---He had in his hands a large piece of what I'd call either a long baseball bat or an axe handle, something like that, and he was basically striking Constable Marklew around the head area and the face, the top of the head, repeatedly, just again and again.

What did you do?---I just tried to get away from Cook. I sort of wrestled with him and he just kept saying, 'Let them have a fair fight,' and I just said, 'How is that a fair fight? He's got a bat.' Eventually I was able to break free and I sort of ran over as quick as I could and at that stage I saw Constable Looby. She was trying to pull Mallard away from Constable Marklew. I sort of jumped in between her and Constable Marklew and I sort of got Mallard out of the way. I don't know if I bumped him or pushed him, but I sort of moved him away from both of them.

Did you see what Mr Mallard did then?---I sort of looked to my left and tried to look for Jeremy and Alison and then I saw they were there, and then I looked to my right and Mallard was gone. It was like he just run off into the crowd. Then I looked back to my left to make sure Jeremy and Alison were okay and they were gone at that stage.

What did you do next?---I just kept looking for them and then all of a sudden from my right hand side I felt someone strike me with a fist. It got me just above my right eye and just on the bridge of my nose. It was a pretty hard hit. I felt quite a lot of blood come out of my forehead and my nose and I immediately looked to my right and the accused was standing there looking at me, basically pulling his right hand down, still shaping up. He was only a metre away. He was pretty well lit up because there was a car with headlights basically pointing directly at us.

What happened next?---He sort of stepped back, sort of backing away from me, and because I couldn't see where Constable Marklew or Constable Looby were I sort of disregarded them and I went after Mallard (ts 135 - 136).

80 During cross-examination of Mr Lowe, the following relevant evidence was elicited:

You didn't see the person who struck you before being struck, immediately before?---I turned basically as soon as he hit me and the accused was standing right there, shaping up to me.

Did blood start to pour from your injury as soon as you were struck?---I could feel it on my face around my mouth, because it came out of my nose. It was warm. It didn't really come out of the top there until afterwards. I could clearly see what was happening.

So there wasn't blood in your eyes?---No, there was no blood in my eyes.

When you saw Mr Mallard after being hit in the head, he wasn't armed at all?---No, he just had his fists up.

Did you come to be wrestling with anyone that evening?---Mr Cook first, and later on in the evening the police car arrived - I was spat on by someone else and I arrested him and he wrestled for a short period and then I put him in the police van.

...

Do you know where Les Cook was when you were struck in the face?---He would have been back behind me to my right where I had left him.

O'BRIEN DCJ: Well, did you see him? Don't make any assumptions or ?---No, he was seven or eight metres away.

ARNDT, MR: So seven or eight metres away from where - the last time you saw him before you got hit in the head?---Yeah.

He was seven or eight metres from the place you were when you got hit in the head. Is that right?---I saw him about a second before I got hit, and he was seven or eight metres away (ts 144 - 146).

82 On the evening in question, Ms Oakley, a youth worker, drove her cousins to the Sandhurst Tavern. Ms Oakley's cousins entered the tavern, but she remained in her motor vehicle in the car park. She gave evidence-in-chief to the effect that she saw Mr Mallard holding an axe handle or a long piece of wood (ts 167), that he appeared to her to be angry (ts 166 - 167), that he was 'very agitated' and 'like a madman' (ts 170) and that she saw him strike Mr Marklew with the axe handle or long piece of wood (ts 171 - 172). Ms Oakley also gave this evidence in relation to count 4 (the alleged assault on Mr Lowe):

What were they?---I seen Jay Lowe, Jayden Lowe.

Yes?---He was running too to help Jeremy [Marklew].

O'BRIEN DCJ: What was he doing?---He was running to help Jeremy.

BOOTS, MS: Did he get to Jeremy?---No, he was stopped.

Why was that?---Because Les Cook hit him.

What happened after Les Cook hit Jayden Lowe?

O'BRIEN DCJ: How did he hit him?---Hit him with his fist.

And whereabouts?---In the face.

Did you see exactly where?---Yep.

Whereabouts?---On his face.

Yes, but did you see exactly where on the face?---No, I just seen the head, yeah.

Okay?---Punched him in the face but not exactly which side (ts 172 - 173).

Ms Oakley did not say that she had seen Mr Lowe being struck by anyone else. In particular, she did not say that she had seen Mr Mallard strike Mr Lowe. Unsurprisingly, Ms Oakley was not cross-examined on this point.

Appeal against conviction: ground 2: the prosecutor's closing address to the jury

83 The prosecutor submitted, in her closing address to the jury, that Ms Oakley was mistaken in her evidence that she had seen Les Cook punch Mr Lowe in the face. She suggested that, in fact, Les Cook pushed Mr Lowe very forcefully in the chest, as described by Mr Lowe in his evidence, and that it was Mr Mallard (and not Les Cook) who had struck Mr Lowe.

84 It was not part of the State's case or Mr Mallard's case at trial that Mr Lowe had been struck more than once in the face.

Appeal against conviction: ground 2: Mr Mallard's submissions

85 Counsel for Mr Mallard submitted that it was not open to the prosecutor to submit that Ms Oakley was mistaken in her evidence. No such suggestion was put to her by the prosecutor or Mr Mallard's trial counsel, and no application was made to declare Ms Oakley a hostile witness.

86 It was submitted that 'a reasonable jury could not have been satisfied beyond a reasonable doubt that it was [Mr Mallard] who [had] assaulted [Mr] Lowe', given:

(a) the direct inconsistency between the accounts of Mr Dixon and Mr Lowe as to the direction from which Mr Lowe's assailant had come and was travelling;

(b) the direct inconsistency between the evidence of Mr Dixon and Mr Lowe as to what Mr Mallard did immediately after Mr Lowe was struck. If the jury accepted Mr Lowe's evidence that he observed Mr Mallard standing about one metre away from him 'shaping up', then the person observed by Mr Dixon to have struck Mr Lowe and moved away must not have been Mr Mallard; and

(c) the unchallenged evidence of Ms Oakley that the person who assaulted Mr Lowe was Les Cook.

87 Counsel for Mr Mallard advanced the proposition that if the State leads evidence which is inconsistent with guilt, then the jury cannot convict if the inconsistent evidence is not challenged. It was asserted that, in these circumstances, the jury must entertain a reasonable doubt as to the accused's guilt. Unsurprisingly, counsel was unable to cite any authority in support of his proposition.

Appeal against conviction: ground 2: applicable legal principles

88 By s 30(3)(a) of the Criminal Appeals Act, in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

89 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act), that although the phrase 'unsafe and unsatisfactory' does not appear in the statutory provision:

Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).

See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.

90 In M, McHugh J held that a 'miscarriage of justice' arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury, or the procedures that were followed raise a real doubt as to whether the conviction can be regarded as a safe or just conviction (523). In Jones, Gaudron, McHugh and Gummow JJ said that having regard to the statements in M, there can be no doubt that a 'miscarriage of justice' also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just (450).

91 In M, Mason CJ, Deane, Dawson and Toohey JJ held that the test for an unsafe or unsatisfactory verdict was whether the court thought that

upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (493).

[T]he court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (493).

Their Honours explained the application of the test:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 - 495). (footnotes omitted)

See also Jones, 450 - 451. The test formulated by the majority in M is the appropriate test for determining whether a verdict is unsafe or unsatisfactory: Jones, 452; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [25].

92 In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (with whom Gleeson CJ & Heydon J relevantly agreed) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is

whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)

See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).

Appeal against conviction: ground 2: its merits

93 In my opinion, Mr Mallard's conviction on count 4 is not unsafe or unsatisfactory. The conviction is capable of being supported, having regard to the evidence.

94 It was reasonably open for the jury to conclude that Ms Oakley's evidence was consistent with the evidence of Mr Dixon and Mr Lowe. Mr Dixon gave evidence that when he saw Mr Mallard punch Mr Lowe in the head, he (Mr Dixon) was about 4 metres away (ts 78, 81). Ms Oakley did not give any evidence as to the distance from the motor vehicle in which she was seated to the place where she observed Les Cook strike Mr Lowe. It was reasonably open to the jury to reason that what Ms Oakley in fact saw was the wrestling incident between Les Cook and Mr Lowe (as described by Mr Lowe), with Les Cook very forcefully pushing Mr Lowe in the chest (as described by Mr Lowe) rather than punching him in the face.

95 Mr Dixon's evidence to the effect that he saw Mr Mallard come from Mr Lowe's left side and strike Mr Lowe in the head, and Mr Mallard then 'moved off' (ts 73, 84) is not inherently inconsistent with Mr Lowe's evidence to the effect that after he was struck, he saw Mr Mallard to his right, about 1 metre away, 'shaping up' to him (ts 135, 144). The evidence reflects what each of Mr Dixon and Mr Lowe saw in the darkness of the car park, with the darkness being punctuated by the head lights of motor vehicles.

96 In any event, even if there was some inconsistency between the evidence of the prosecution's witnesses, the jury was, of course, entitled to accept part, but not all, of a witness's version of events. A jury, as the tribunal of fact, is entitled to 'work out for themselves a view of the case which [does] not exactly represent what either party [has] said': Williams v Smith [1960] HCA 22; (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto & Menzies JJ). That statement, made in the context of civil proceedings, has been applied to criminal trials. See Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319 [29]; WCW v The State of Western Australia [2008] WASCA 232 [14].

97 The ordinary rule is that the State should call all witnesses whose evidence is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, unless valid reason exists for refraining from calling a particular witness or witnesses. See Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 664 (Deane J); Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 [11] (Gaudron & Hayne JJ). As Gaudron and Hayne JJ noted in Dyers:

The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person [11].

98 The State acted properly in calling Ms Oakley as a witness. Her evidence related to counts 1 and 4. The record of the trial and the other material before this court do not disclose any basis on which the prosecutor might have applied to the learned judge for leave to cross-examine Ms Oakley or otherwise impugn her credit. For example, it was not submitted to this court that Ms Oakley had made a prior inconsistent statement as to her observation of events relevant to count 4.

99 The proposition advanced by Mr Mallard's counsel to the effect that if the State leads evidence which is inconsistent with guilt, then the jury cannot convict if the inconsistent evidence is not challenged, is fallacious. It ignores the requirement that the jury must examine the evidence as a whole; the State's obligation (subject to qualifications) to call all witnesses whose evidence is necessary for the presentation of the whole picture; the jury's entitlement to accept part, but not all, of a witness's version of events; and the jury's entitlement to work out for themselves a view of the case which does not exactly represent what any witness has said.

100 None of the matters raised on behalf of Mr Mallard precluded the jury's finding that he was guilty beyond reasonable doubt on count 4. My examination of the trial record does not require the conclusion that the jury must have entertained a doubt about his guilt. I do not experience such a doubt. The verdict of the jury was not unreasonable, and it is a verdict which is supported by the evidence. Ground 2 is without merit, and I would refuse leave to appeal on that ground.

101 I would dismiss Mr Mallard's appeal against conviction.

102 The State's appeal relates to the sentence imposed on count 1 (3 years 4 months' immediate imprisonment), the sentence imposed on count 4 (12 months' immediate imprisonment) and the order that the sentence on count 4 be wholly concurrent with the sentence on count 1.

103 The State relies on three grounds of appeal. Ground 1 relates to the sentence on count 1, ground 2 to the sentence on count 4, and ground 3 to the order that the sentences be served concurrently. The grounds read:

1. The learned sentencing Judge was in error in that the sentence imposed in respect of Count 1:

(a) failed to adequately reflect the seriousness of the offence, and the circumstances in which it was committed;

(b) failed to reflect the need for specific and general deterrence;

(c) failed to adequately punish [Mr Mallard];

(d) reflected an undue regard for matters personal to [Mr Mallard];

(e) was in the circumstances so inadequate as to manifest error.

PARTICULARS

The sentence failed to adequately reflect:

1. the maximum penalty for this offence, being 20 years imprisonment;
2. the premeditated nature of the offending;
3. the deliberate nature of the offending;
4. the nature of the weapon used to commit this offence;
5. [Mr Mallard's] motive for his conduct being that of revenge against the complainant; and
6. the conduct of [Mr Mallard] subsequent to the offence.

1. The learned sentencing Judge was in error in that the sentence imposed in respect of Count 4:

(a) failed to adequately reflect the seriousness of the offence, and the circumstances in which it was committed;

(b) failed to reflect the need for specific and general deterrence;

(c) failed to adequately punish [Mr Mallard];

(d) reflected an undue regard for matters personal to [Mr Mallard];

(e) was in the circumstances so inadequate as to manifest error.

PARTICULARS

The sentence failed to adequately reflect:

1. the maximum penalty for this offence, being 5 years imprisonment;
2. that this offence occurred separately and independently of the offence in Count 1;
3. that this offence involved a different complainant;
4. [Mr Mallard's] motive for his conduct; and
5. the conduct of [Mr Mallard] subsequent to the offence.

1. The learned sentencing Judge was in error in making the sentence imposed in respect of count 4 wholly concurrent with the sentence imposed in respect of Count 1.

PARTICULARS

The sentence failed to adequately reflect:

1. the specific nature of each offence;
2. that Count 4 involved a different complainant to Count 1;
3. the deliberate nature of the offending in Count 4;
4. the force used to commit this offence in Count 4;
5. the conduct of [Mr Mallard] subsequent to the offence.

104 On 16 October 2008, Wheeler JA granted the State leave to appeal on all of its grounds.

Appeal against sentence: general principles of appellate review

105 An appellate court may intervene in a sentencing appeal if a material error of fact or law is apparent in the sentencing judge's reasons. Also, an appellate court may intervene if error may be inferred on the ground that the result is unreasonable or unjust; that is, the sentence imposed is manifestly excessive, manifestly inadequate or infringes the totality principle. An appellate court may not, however, substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing judge. The High Court has emphasised that there is no single correct sentence, and that sentencing judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the applicable statutory regime. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

Appeal against sentence: the nature of manifest inadequacy

106 A ground of appeal which alleges that a sentence is manifestly inadequate asserts the existence of an implicit error. It does not assert a specific error. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, where Gleeson CJ and Hayne J observed:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive [6].

And see Carroll v The Queen [2009] HCA 13 [7] - [8] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).

107 It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender. See Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ); Vagh v The State of Western Australia [2007] WASCA 17 [47] (Roberts-Smith JA).

Appeal against sentence: multiple offences: the 'one transaction' rule and the totality principle

108 As Steytler P noted in The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165, whether sentences for multiple offences should be made cumulative, partly concurrent or wholly concurrent arises at two of the three stages in the sentencing process. The orthodox approach is to decide upon the appropriate sentence for each offence, then to decide whether the sentences should be made cumulative, partly concurrent or wholly concurrent in accordance with established principle and, finally, to decide upon the net effective or total head sentence by reference to the totality principle [54].

109 In Amoore, Steytler P said, in relation to the second stage (that is, deciding whether the sentences should be made cumulative, partly concurrent or wholly concurrent):

At the second stage the relevant principle is what is variously described as the 'one transaction' or 'continuing episode' rule. This working rule is that when a number of offences arise out of the one transaction or continuing episode, any terms of imprisonment for the offences will usually be made concurrent: Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343 [11] - [12] (McLure J). See also Borbil v Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 and R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554. See also Dicker v Asherton (1974) 65 LSJS 150, 151 (Wells J) and LJM (A Child) v The State of Western Australia [2005] WASCA 172 [9]. In Johnson, Gleeson CJ [5] said when discussing an appeal against the decision to impose cumulative sentences that:

Ultimately, justice requires due consideration of whether, and to what extent, the appellant 'was truly engaged upon one multi-faceted course of criminal conduct', and whether the sentences imposed properly reflected the outcome of that consideration [55].

110 The totality principle usually applies where an offender is to be sentenced for more than one offence or where he or she is serving a term of imprisonment, at the time of sentencing, for another offence. The principle comprises two aspects. First, the total effective sentence imposed on the offender must bear 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 a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate). Secondly, the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. Generally see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308 (McHugh J); Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J); Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [21] - [22]; Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999), 12 (Anderson J); Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [6] (McLure JA), [66] (Buss JA).

111 Also, the totality principle may have application, in some limited circumstances, by way of analogy, where an offender has already served a term of imprisonment imposed for a prior offence. See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 66; Vlek, (10) (Anderson J); Barnes v The State of Western Australia [2004] WASCA 258 [15] (McKechnie J); Carr [7] (McLure JA).

112 It is plain, from the decision of the High Court in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, that where an offender is being sentenced for more than one offence, the sentencing judge must determine an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as the question of totality [45]. There is, however, some flexibility in the application of the principle enunciated in Pearce. See Johnson [26]; Markarian [27]; R v Abboud [2005] NSWCCA 251 [36] (Rothman J, Grove & Howie JJ agreeing).

Appeal against sentence: the learned judge's sentencing remarks including her findings of fact

113 The learned judge outlined the material facts in her sentencing remarks (sentencing ts 2 - 6). The substance of her Honour's findings as to the facts is as follows.

114 When the offences were committed, Mr Mallard was aged 27 years. Mr Marklew (the complainant in count 1) was, at the material time, an off-duty police officer aged 36 years. Mr Lowe (the complainant in count 4) was, at the material time, an off-duty police officer aged 25 years. Mr Mallard knew that Mr Marklew was a police officer.

115 On the night of 4 February 2006, Mr Mallard went to the Sandhurst Tavern. Mr Dixon refused Mr Mallard entry to the premises. Some months previously, Mr Dixon had banned Mr Mallard from entering the tavern as a result of a previous incident of violence involving Mr Mallard. There were pending criminal proceedings against Mr Mallard in respect of the incident.

116 When Mr Dixon refused Mr Mallard entry on the night of 4 February 2006, Mr Mallard became upset, and was angry and aggressive towards Mr Dixon. Mr Marklew and Mr Lowe were at the tavern, and went to assist Mr Dixon. Shortly afterwards, on-duty police officers arrived, removed Mr Mallard from the premises, and drove him home.

117 Shortly after he was driven to his home, Mr Mallard decided to return to the Sandhurst Tavern. Before arriving at the premises again, he armed himself with a large stick.

118 Shortly after Mr Mallard returned to the Sandhurst Tavern, the electricity supply to the premises failed. People who were in the tavern, including Mr Marklew and Mr Lowe, went outside and gathered in the tavern's car park.

119 In the car park, Mr Marklew made a call on his mobile telephone to arrange to be collected and taken home. While Mr Marklew was using his telephone, Mr Mallard approached him and, without warning, struck him on the leg with the large stick. Mr Mallard then struck Mr Marklew in the face and on the head and body with the stick. He was struck, in total, about eight times.

120 Mr Lowe saw that Mr Marklew was being assaulted. He went to assist him, but Les Cook (Mr Mallard's uncle) intervened and pushed Mr Lowe in the chest, preventing him from reaching Mr Marklew. Mr Mallard then approached Mr Lowe and, without warning, punched him in the face with a clenched fist.

122 A day or so after committing the assaults, Mr Mallard surrendered to the police and participated in a video-recorded interview. He told the police that he was affected by alcohol on the night in question, and that he wanted to 'square up' and 'get even' with those at the Sandhurst Tavern who had caused him difficulties. Mr Mallard said he did not think he had struck Mr Marklew, and recalled only hitting Mr Dixon.

123 The information before the learned judge included a pre-sentence report dated 24 June 2008, a victim impact statement dated 16 June 2008 from Mr Marklew, a victim impact statement dated 18 June 2008 from Mr Lowe, Mr Mallard's record of criminal convictions, and some correspondence from, amongst others, Mr Mallard's grandmother, partner and former employer.

124 The learned judge said, in her sentencing remarks, relevantly:

Mr Marklew was performing a function of his office that night, as far as my opinion is concerned. He was entitled, if not obliged by law, to intervene when he saw you behaving aggressively at the tavern door. In my view, this makes the offence more serious.

I do not find that you punched Mr Lowe because he had assisted Mr Marklew earlier, but because he just happened to be the one who was trying to help Mr Marklew. This was a spontaneous, unpremeditated reaction to Mr Lowe's legitimate and brave efforts to help Mr Marklew.

...

Assaults with weapons are potentially dangerous. This potential was realised in your attack on Mr Marklew. It is not over-dramatising the situation to say that you could have caused more serious injuries, if not death, by hitting him repeatedly in the face and head. A strong message needs to be sent to others that the community will not tolerate this sort of wanton violence.

In this case, this message must take the form of a prison sentence. People have a right to have a good night out without being attacked in this unprovoked and cowardly way. Police officers must uphold the law, and should not pay the price of doing a difficult job by being attacked in this way, and that comment relates only to Mr Marklew.

...

Turning to your personal circumstances, you're 29 years of age. You were 27 at the time of these offences. Your parents separated when you were about three years of age. You then went to live [with] your maternal grandmother and step-grandfather in South Hedland. You only saw your parents during school holidays. You are still unsure as to why you were sent away from your parents and this causes you some sadness. However, your grandparents were positive influences on you, encouraging your schooling and sporting activities. You now maintain a positive relationship though with both parents.

You have a tendency to use aggression to deal with difficult situations. In Carnarvon, there is some family feuding, and you feel pressured to become involved to settle disputes. The writer of the [pre-sentence report] is of the view that this normalising of aggression to deal with difficulties, encouraged by your peers and significant others, may have contributed to your own use of violent measures in dealing with problems.

You have a relationship of two years which seems to have survived your latest spell in prison, which I'll refer to in a moment. Although you have convictions for assaulting your former partner, which most recently resulted in a suspended imprisonment order, your present relationship is not violent.

Your record does you no credit. You have convictions for assault, it would seem, as I've said, involving your partner. You were sentenced to imprisonment for assault occasioning bodily harm on 19 May 2006, for an offence which occurred in October 2005. It is reported that since your release from prison in August 2007, you have changed dramatically.

You have matured, reduced your drinking, and have positive family experiences with your partner and her 11 and 15-year-old children. You are relatively well educated. You left school in year 10 and commenced, but did not finish, a boilermaker/welder apprenticeship. Your work has included work as a station hand, and a labourer for a local seafood company. Before you were remanded in custody, you were the full-time carer of your elderly, blind grandfather, and there's a lot of material which confirms that.

You acknowledge that, in the past, you have had trouble managing your emotions and this has led to your violent behaviour. You completed counselling during your last community based order, and the completion report indicated that that particular offence for which the community based order was made was an isolated incident, and no further counselling was required. When you were in prison, you completed the Indigenous Men Managing Anger and Substance Use Program. You found this has helped you to address your excessive use of alcohol and your problems with aggression.

You appear now to have insight into triggers for your violence and are able to articulate strategies for dealing with these. Since your release from prison, you have moderated your drinking, as I've said, and you attribute your change in behaviour to the need to give priority to your grandfather. Previously, you used cannabis, but you've stopped that since your release from prison. You are an avid football player and are committed to your club. You have positive leisure activities.

Despite these changes for the better, the seriousness of your offences, particularly the one involving Mr Marklew, mean that a sentence of imprisonment to be served immediately is the appropriate and just disposition.

By way of summary, count 1 involved you attacking an unarmed man with a weapon. It was pre-meditated, sustained, and cowardly. Mr Marklew suffered serious injuries and the offence has impacted significantly on the quality of his life, apart from the pain and suffering he endured from the immediate effects of the attack. Although you only punched Mr Lowe once, the potential effects of one punch are now notoriously well known. Fortunately, that potential was not realised in this case. Mr Lowe has also suffered pain and ongoing effects from this assault.

Punishment and general deterrence loom large as sentencing factors. However, I do take into account the positive changes you have made to your life, and the sentence should not operate to extinguish the gains you have made. To do so would potentially put the community at risk.

You accept responsibility for your actions and you are very sorry for what you have done. That responsibility and remorse are borne of the time that you have had to reflect on your life when last in prison, the counselling you have received, the positive relationship you now have, and the mature and caring way you have cared for your grandfather (sentencing ts 5 - 8).

Appeal against sentence: ground 1: Mr Mallard's submissions

125 Ground 1 asserts, in essence, that the sentence imposed by the learned judge in respect of count 1 was manifestly inadequate.

126 Counsel for Mr Mallard submitted that the sentence was well within the range of a sound exercise of judicial discretion. It was more severe than the sentences imposed in The State of Western Australia v Wallam [2008] WASCA 117 and Yates v The State of Western Australia [2008] WASCA 144 in respect of contraventions of s 304(2) of the Criminal Code. Counsel submitted that the offence committed by Mr Mallard was arguably less serious than the offence committed by the offender in Yates.

127 It was argued, on behalf of Mr Mallard, that there was some remorse shown by him in that he entered a plea of guilty to the alternative charge of assault occasioning bodily harm (count 3). Further, the admissions made at the commencement of the trial (see [60] above) were for the purpose of facilitating the trial process. They were not made to secure a forensic advantage or avoid a forensic disadvantage. Compare Stephens v The State of Western Australia [2005] WASCA 98 [15].

128 Finally, it was submitted on behalf of Mr Mallard that, in sentencing Mr Mallard for count 1, the learned judge had rightly acknowledged that '[p]unishment and general deterrence loom large as sentencing factors' (sentencing ts 8). According to counsel, there was no material error in the sentencing process or in the length of the sentence fixed by her Honour.

Appeal against sentence: ground 1: its merits

129 Section 304 of the Criminal Code was enacted by the Criminal Code Amendment Act 2004 (WA). It came into operation on 21 May 2004. Section 304(2) and (3) provide:

(2) If a person, with an intent to harm, omits to do any act that it is the person's duty to do, or does any act, as a result of which -

(a) bodily harm is caused to any person; or

(b) the life, health or safety of any person is or is likely to be endangered,

the person is guilty of a crime and is liable to imprisonment for 20 years.

(3) For the purposes of subsection (2) an intent to harm is an intent to -

(a) unlawfully cause bodily harm to any person;

(b) unlawfully endanger the life, health or safety of, any person;

(c) induce any person to deliver property to another person;

(d) gain a benefit, pecuniary or otherwise, for any person;

(e) cause a detriment, pecuniary or otherwise, to any person;

(f) prevent or hinder the doing of an act by a person who is lawfully entitled to do that act; or

(g) compel the doing of an act by a person who is lawfully entitled to abstain from doing that act.

The term 'bodily harm' is defined in s 1(1) to mean 'any bodily injury which interferes with health or comfort'.

130 Section 304(2) and (3) are to be compared to, and contrasted with, s 294 of the Criminal Code which provides, relevantly:

Any person who, with intent to maim, disfigure, or disable any person, or to do some grievous bodily harm to any person, or to resist or prevent the lawful arrest or detention of any person -

(1) unlawfully wounds or does any grievous bodily harm to any person by any means whatever; or

(2) unlawfully attempts in any manner to strike any person with any kind of projectile; or

(3) unlawfully causes any explosive substance to explode; or

(4) sends or delivers any explosive substance or other dangerous or noxious thing to any person; or

(5) causes any such substance or thing to be taken or received by any person; or

(6) puts any corrosive fluid or any destructive or explosive substance in any place; or

(7) unlawfully casts or throws any such fluid or substance at or upon any person, or otherwise applies any such fluid or substance to the person of any person; or

(8) does any act that is likely to result in a person having a serious disease;

is guilty of a crime, and is liable to imprisonment for 20 years.

The term 'grievous bodily harm' is defined in s 1(1) to mean 'any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health'.

131 Section 294 specifies s 304 as an 'alternative offence'. See Ch IIA of the Criminal Code in relation to alternative offences.

132 In Wallam, McLure JA referred to the genesis of s 304(2). Her Honour said:

The genesis of cl 304(2) of the Code is the General Review of the Criminal Code Report dated 1983 (the Murray Report). The Murray Report recommended the insertion of an offence in substantially similar terms to s 304(2) with a penalty of 20 years' imprisonment. That is the maximum penalty for a breach of s 304(2). As is apparent from the second reading speech for the 2004 Code Amendment Act, the legislature simply accepted the Murray Report recommendations [21].

133 The offence created by s 304(2) contains, relevantly, two elements. First, an accused must have had an 'intent to harm', as defined in s 304(3). Secondly, the accused must have, relevantly, done an act, as a result of which:

(b) the life, health or safety of any person is, or is likely to be, endangered.

In the present case, it is unnecessary to consider that part of s 304(2) which is concerned with an accused having omitted to do any act that it was his or her duty to do.

134 The first element of the offence has a very broad connotation. The expression 'intent to harm' includes, for example, an intent to unlawfully cause bodily harm to any person (par (a)); an intent to unlawfully endanger the life, health or safety of, any person (par (b)); an intent to gain a benefit, pecuniary or otherwise, for any person (par (d)); and an intent to cause a detriment, pecuniary or otherwise, to any person (par (e)). A remarkably diverse range of consequences or circumstances may constitute 'harm' within pars (a) - (g) of s 304(3). As a result, the nature and extent of the harm which an accused intends to cause to any person, and the seriousness of the relevant intent for sentencing purposes, will vary widely. Similarly, the nature and extent of the harm that an accused actually causes (as distinct from intends to cause) to any person, and the seriousness of the actual harm for sentencing purposes, will vary widely.

135 The second element of the offence also has a very broad connotation. On the one hand, the accused may have caused 'bodily harm' to a person. As I have mentioned, s 1(1) defines 'bodily harm' to mean 'any bodily injury which interferes with health or comfort'. The degree of seriousness of any 'bodily harm' suffered by a person, for the purposes of s 304(2), will, in practice, be variable. On the other hand, an accused may have caused 'the life, health or safety' of a person to be endangered or to have been likely to be endangered. Once again, the degree of seriousness of any actual or likely endangering of a person's life, health or safety will, in practice, be variable.

136 My review of the elements of s 304(2) demonstrates that the appropriate sentencing range for a particular offender who is convicted of an offence against s 304(2) will depend upon all of the circumstances of the case including, in particular, the nature and seriousness of the offender's 'intent to harm', and the nature and seriousness of the 'bodily harm' caused to the particular victim or the severity and other circumstances of the actual or likely endangering of the particular victim's life, health or safety, as the case may be. The potential (as distinct from the actual) consequences of the offender's conduct will also be relevant.

137 Where an accused has been found guilty of an offence against s 304(2), it is essential, for sentencing purposes, that the sentencing judge make proper findings of fact as to the offender's intent; that is, the nature and extent of the harm which the offender intended to cause. The issue of intent is, as I have mentioned, embodied in the first element of the offence. The sentencing judge must also make proper findings of fact as to the nature and extent of the 'bodily harm' which has been caused to the victim as a result of the offender's act or omission or, as the case may be, the nature and extent to which the life, health or safety of the victim was or was likely to be endangered.

138 In the present case, the indictment merely alleged, in relation to count 1, relevantly, that Mr Mallard, 'with intent to harm' Mr Marklew, did an act as a result of which 'bodily harm' was caused to Mr Marklew. No particulars of the 'intent to harm' were sought or given. The learned judge, in her sentencing remarks, merely found that Mr Mallard had 'an intent to harm' Mr Marklew (sentencing ts 5). Her Honour did not make any findings as to the nature or extent of the harm which Mr Mallard intended to inflict on Mr Marklew. In the absence of such findings, the only proper basis for sentencing Mr Mallard was that he had an intent to cause bodily harm, within s 304(2)(a). Her Honour appears to have proceeded on this basis, and not on the basis that he had a more serious intent, for example, to endanger Mr Marklew's life, within s 304(2)(b).

139 Numerous facts, as found by the learned judge, demonstrate the seriousness of Mr Mallard's offending in respect of count 1. In particular:

(a) Mr Mallard was not only banned from the Sandhurst Tavern, but was asked to leave on the night in question and became upset, and angry and aggressive towards Mr Marklew, an off-duty police officer (sentencing ts 3);

(b) Mr Mallard's actions on the night were premeditated, as evidenced by his returning to the tavern with a weapon (sentencing ts 3);

(c) Mr Mallard's precise weapon of choice was unclear, but was a large stick of some description (sentencing ts 3);

(d) Mr Mallard operated in a clandestine manner (sentencing ts 3);

(e) Mr Mallard struck Mr Marklew from behind; it was an unprovoked, vicious, cowardly and dangerous act, and he repeatedly hit Mr Marklew to his head and body (sentencing ts 3, 4 and 6);

(f) Mr Mallard hit Mr Marklew about eight times with the weapon (sentencing ts 4);

(g) Mr Mallard continued to strike Mr Marklew even though he was unarmed and unable to defend himself (sentencing ts 4);

(h) Mr Mallard returned to the tavern primarily because of his grievance with Mr Dixon (sentencing ts 3), but also to 'square up' with the off-duty police officers (sentencing ts 4);

(i) Mr Marklew was performing a function of his office, and this aggravated the seriousness of the offence (sentencing ts 5);

(j) Mr Marklew suffered significant injuries. See [62] - [63] above. He continues to suffer from regular migraines and short-term memory loss, has facial and head scars, numbness in his face, paralysis in his left hand, a calcium deposit on the back of his skull, and an indent on the top of his skull. Also, Mr Marklew continues to suffer from poor concentration and depression. He lacks confidence and is fearful (sentencing ts 5 and Mr Marklew's victim impact statement);

(k) Mr Mallard's conduct could have caused more serious and life-threatening injuries, if not death, by the repeated blows to Mr Marklew's face and head (sentencing ts 6);

(l) It would be difficult to identify a more serious case of bodily harm; this is a very serious example of the infliction of bodily harm, coupled with an intent to cause bodily harm and Mr Mallard's statements to the police that he wanted to 'even the score' (sentencing submissions, 25 June 2008, ts 16);

(m) Mr Mallard was on bail for a charge of assault occasioning bodily harm when he committed the offences against Mr Marklew and Mr Lowe (sentencing submissions, 25 June 2008, ts 12).

140 When counsel were making submissions to the learned judge in relation to sentence, her Honour said that she was not satisfied, on the basis of the evidence, that Mr Marklew's injuries actually endangered his life (sentencing submissions, 25 June 2008, ts 5).

141 The only mitigating factors were Mr Mallard's rehabilitation during his most recent term of imprisonment and his family circumstances.

142 When Mr Mallard was sentenced, cl 2 of sch 1 of the 2003 Sentencing Amendment Act was in force. It came into operation on 31 August 2003. Clause 2(1) required that a court which had decided to sentence an offender to a fixed term of imprisonment must impose a fixed term that was two-thirds of the fixed term that would have been imposed under the law as it stood prior to the 2003 Sentencing Amendment Act. So, for example, although the maximum penalty for the offence the subject of count 1 was imprisonment for 20 years, the maximum sentence which could, in practice, have been imposed when Mr Mallard was sentenced by the learned judge was 13 years and 4 months.

143 In my opinion, the length of the sentence imposed by the learned judge for count 1 (namely, 3 years and 4 months) was outside the range of a sound exercise of the sentencing discretion. The sentence was manifestly inadequate. I am of that opinion for several reasons.

144 First, it was necessary that the sentence imposed on Mr Mallard be commensurate with the seriousness of the offence. See s 6(1) and (2) of the Sentencing Act 1995 (WA) (Sentencing Act). The seriousness of count 1 was reflected primarily in Mr Mallard's premeditated intent to unlawfully cause bodily harm to Mr Marklew; Mr Mallard having inflicted the bodily harm with a weapon; Mr Mallard having operated in a clandestine manner; the assault on Mr Marklew having been unprovoked, vicious, cowardly and sustained; Mr Marklew having acted in the performance of a function of his office; Mr Marklew having suffered severe injuries and significant ongoing disabilities; and Mr Mallard's conduct having had the potential to have caused more serious and life-threatening injuries, if not death.

145 Secondly, the predominant sentencing considerations in the present case were punishment, personal deterrence and general deterrence. The learned judge made reference to personal and general deterrence, but she did not accord to these considerations the weight and emphasis which the circumstances of the offending demanded.

146 Thirdly, although the learned judge acknowledged, correctly, that it would be difficult to identify a more serious case of bodily harm, that the present offence was a very serious example of the infliction of bodily harm coupled with an intent to cause bodily harm and Mr Mallard's statements to the police that he wanted to 'even the score', the sentence imposed did not reflect the seriousness of the offence. The maximum penalty for an offence against s 304(2) is imprisonment for 20 years (in practice, 13 years and 4 months under the transitional provisions).

147 Fourthly, it is not apparent that Mr Mallard accepted real responsibility or showed genuine remorse, to any material extent. He did, of course, facilitate the trial process by making some admissions of fact. Mr Mallard therefore deserved credit for co-operating with the administration of justice. But he denied any intent to cause Mr Marklew bodily harm and he denied having assaulted Mr Lowe. In the circumstances, the learned judge accorded Mr Mallard undue credit for his claimed acceptance of responsibility for his actions and for his claimed remorse.

148 Fifthly, although the mitigatory factors (namely, Mr Mallard's rehabilitation during his most recent term of imprisonment and his family circumstances) should have been given weight, the learned judge appears to have given them materially greater weight than they deserved, having regard to the seriousness of his offending.

149 There is no 'tariff' or usual sentencing range for offences against s 304(2). As I have mentioned, the nature and seriousness of such offences will vary significantly. The particular circumstances of an offence and an offender, including the particular offender's intent and the injury or damage suffered by the particular victim, will be critical to the sentencing process.

150 It is true that Mr Mallard appears to have been sentenced, correctly, on the basis of an intent 'merely' to cause unlawful bodily harm (within s 304(3)(a)) and not an intent to unlawfully endanger Mr Marklew's life (within s 304(3)(b)). However, on any reasonable view, his offending required a sentence of immediate imprisonment at slightly less than the median of the available penalty, before the application of a modest discount for the mitigating factors.

Appeal against sentence: ground 1: the sentencing dispositions in Wallam and Yates

151 As I have mentioned, counsel for Mr Mallard submitted that the sentence imposed on Mr Mallard for count 1 was more severe than the sentences imposed in Wallam and Yates. It was contended that this disparity indicated that the sentence which Mr Mallard received for count 1 was well within the range of a sound exercise of the sentencing discretion.

152 In Wallam, the offender was convicted, on his plea of guilty, of one count of armed robbery contrary to s 392 of the Criminal Code and one count of doing an act which caused bodily harm with an intent to harm, contrary to s 304(2). He was sentenced to 2 years and 6 months' immediate imprisonment for the armed robbery, and 12 months' immediate imprisonment for the offence against s 304(2). The State's appeal against the sentence imposed for the s 304(2) offence was allowed. The majority re-sentenced the offender to 3 years' immediate imprisonment on that count and ordered that this sentence be served cumulatively upon the sentence of 2 years and 6 months for the armed robbery. The offender was required to serve, in total, 5 years and 6 months' immediate imprisonment. A parole eligibility order was made.

153 Murray AJA described the circumstances of the offence against s 304(2):

The respondent drove his car to the drive-through facility attached to the Northam Tavern at about 9 pm on 31 July 2006. His partner and two sons, one aged two and the other a baby of six months, were passengers in the vehicle. The respondent was substantially affected by alcohol, as was his de facto wife. While making his purchases at the tavern he saw two men, one of whom was the victim of the offence. It seems that the respondent knew who these people were because they were members of a family with whom the respondent's family had previously been in some form of conflict. The court was told that there was a 'background of disputation' between the two families.

Whatever the history was, it seems that the respondent became angry when he saw the victim and the other man also purchasing alcohol at the tavern. The respondent asked the victim if he was 'Choco' Narrier. Narrier said he was (apparently he did not know who the respondent was). The respondent, according to Narrier, then said, 'I'm killing you, dog.' An employee of the tavern heard the respondent say, 'I'm going to fucking get you, you cunt.' Perhaps both things were said, perhaps only one, but in any event it is clear, as the sentencing judge found, that some such threat was uttered by the respondent without any provocation being offered by the victim.

The respondent was by that time driving in a street. He went a little way up the street before he made a U-turn and accelerated back towards the victim and drove past him. As the car went past, the victim threw a can at it. It hit the car. The judge said it was unclear where.

The respondent drove a little further down the road before again making a U-turn and driving back towards where the victim was, by this time at least clearly understanding that he was in danger. He was on the footpath near a street tree, endeavouring to pull a metal stake out of the ground. The respondent deliberately drove the car directly at the victim, striking him with the left front of the car and then driving away without stopping. There was some uncertainty about the speed of the vehicle, but it was clearly being driven quite quickly in the circumstances [78] - [81].

154 The sentencing judge did not make a finding as to the nature and extent of the harm intended by the offender. The parties and this court accepted that the offender should be sentenced on the basis that he had an intent to cause bodily harm.

155 The bodily harm suffered by the victim comprised a laceration to the right forehead which required sutures, torn ligaments in his knees (the right knee had to be immobilised in a splint), a tear to the left Achilles tendon, injuries to his spine and extensive bruising. He spent 4 days in hospital. Fortunately, the victim did not suffer any permanent injury.

156 In Yates, the offender was convicted after trial of, relevantly, doing an act which caused bodily harm with an intent to harm, contrary to s 304(2). He was sentenced to 6 years' immediate imprisonment. The relevant facts, as found by the sentencing judge, were set out by McLure JA in her reasons:

The appellant had been in a relationship with 'T'. The relationship began in Karratha and later both moved to Perth. T was involved in a battle with her former de facto husband for custody of their young daughter. At one stage T's daughter stayed with the appellant and T for a short time. The daughter was unwell and upset and the appellant did not cope well with the situation. T and her daughter moved out and shortly after they returned to Karratha. The appellant considered the relationship with T to be ongoing on a long distance basis. However, T commenced a relationship with the appellant's former good friend, the complainant. T did not inform the appellant of her relationship with the complainant and actively misled him into believing she was still in Karratha pursuing the custody of her daughter when in fact she had returned to Perth.

Kelly Syme was a friend of the appellant. On 6 March 2005, the appellant telephoned T on her mobile. Ms Syme answered one of his calls. He knew Ms Syme lived in Perth and concluded that T must also be in Perth. The appellant drove to the house of Kelly and Shane Syme and saw the complainant's motor vehicle out the front. The appellant drew the (correct) inference that T and the complainant were in a relationship. The appellant used a hammer to smash the windows and panels of the complainant's car which he loved. That was the count of criminal damage. The appellant also sent a series of threatening text messages to a number of people including the complainant. The sentencing judge accepted that the complainant also threatened the appellant.

Very early the next morning the appellant drove to the front of the Syme house and began yelling loudly. He then drove around to the back of the house which abutted Burns Beach Road. The yelling continued. The complainant mounted the back wall and exchanged verbal abuse with the appellant. Meanwhile, Mr Syme got into his car and drove around to the back of the house. The appellant drove off. Mr Syme collected the complainant and followed the appellant. The trial judge said:

I accept that those two men pursued you in their car. Whether they were hoping for a physical or a verbal confrontation of some sort, or hoping to chase you off and ensure you didn't come back doesn't make a great deal of difference to you. They did pursue you. You were heading north on Marmion Avenue, and you then did a U-turn across the median strip, stalled the car momentarily on the strip before then coming to a stationary position on the south bound inside lane (ts 715).

Mr Syme drove his car onto the median strip and parked some distance from the appellant's car. The complainant got out of Mr Syme's car wielding a 6 ft crowbar and took up a position on the road, not intending to let the appellant drive south in the direction of Mr Syme's home. The sentencing judge rejected the appellant's evidence that the complainant attacked the front driver's side of the appellant's car with the crowbar causing the appellant to duck below the dashboard and that he did not know he had hit the complainant [63] - [66].

157 The offender appealed against the sentence. McLure JA (Steytler P & Buss JA agreeing) upheld the offender's challenge to various adverse findings made by the sentencing judge. Her Honour said:

The appellant's evidence was that he did not stop in the south-bound lanes after he entered from the median strip (ts 585). The complainant's evidence is consistent with that of the appellant (ts 365). Mr Syme was the only witness who gave evidence that the appellant stopped on the south-bound lanes of Marmion Avenue (ts 447, ts 448 and ts 474).

A finding that the appellant stopped his motor vehicle in the south-bound lanes of Marmion Avenue is not required by the jury's guilty verdict. Further, it is inconsistent with the evidence of the complainant who was in a better or at least as good a position as Mr Syme to observe whether the appellant's car was stationary. The trial judge's finding that the appellant stopped, which must be established beyond reasonable doubt, is not open on the evidence.

Moreover, the evidence as a whole does not justify rejection of the appellant's evidence that he did a U-turn to get into the south-bound lanes of Marmion Avenue in order to get away from those in the pursuing vehicle. It was open on the evidence to conclude that once the complainant, armed with the crowbar, had positioned himself on the roadway, the appellant's intention changed. That being so, the trial judge's findings as to the appellant's motive are unsafe.

I am satisfied that the challenged findings are adverse to the appellant, are not open on the evidence and ought not to have been taken into account in sentencing. I would uphold grounds 1 and 2 [74] - [77].

158 The majority in Yates also held that the sentencing judge had erred in failing to apply the transitional provisions in cl 2(1) of sch 1 of the 2003 Sentencing Amendment Act. Those provisions had the effect of reducing the sentencing judge's sentence by one-third to 4 years. The offender's appeal was allowed. The majority set aside the sentence of 6 years for the offence under s 304(2) and in lieu thereof imposed a term of 3 years.

159 In my opinion, the circumstances of the offending in the present case are not relevantly comparable to the circumstances of the offending in Wallam and Yates. For example:

(a) Mr Marklew had performed a function of his office as a police officer and the attack on him was motivated by a desire to exact revenge.

(b) Mr Mallard's assault on Mr Marklew involved a sustained attack.

(c) Mr Marklew suffered severe injuries and significant ongoing disabilities.

(d) The victim in Wallam did not suffer any permanent injury.

(e) In Yates, the offender had performed a U-turn with his motor vehicle into the south-bound lanes of Marmion Avenue in order to get away from those who were pursuing him. It was once the victim, armed with a crowbar, had positioned himself on the roadway, that the offender's intention changed.

(f) The offender in Yates had only a minor criminal record and was remorseful. His offending resulted from the justifiable hurt and sense of betrayal arising from the conduct of his former partner and former friend.

160 Counsel for Mr Mallard did not refer to The State of Western Australia v Redman [2009] WASCA 1, another decision which has considered s 304. However, the circumstances (and degree of seriousness) of the offending and the personal antecedents of the offender in Redman are distinguishable from the circumstances (and degree of seriousness) of Mr Mallard's offending and his personal antecedents. The cases are not comparable.

Appeal against sentence: ground 1: conclusion

161 Ground 1 of the State's appeal has been made out.

Appeal against sentence: ground 2: the State's submissions

162 The learned judge found that Mr Mallard punched Mr Lowe in the face with a clenched fist when Mr Lowe went to Mr Marklew's assistance (sentencing ts 4). Her Honour also found that Mr Mallard had not acted against Mr Lowe with premeditation, but had reacted to Mr Lowe's legitimate and brave efforts to assist Mr Marklew (sentencing ts 5).

163 Mr Lowe suffered a 4 mm superficial laceration in the mid forehead to the right side of the bridge of his nose, and a crack fracture through the bridge of his nose. The laceration has caused scarring. Mr Lowe required medical attention for his injuries. After the assault, Mr Lowe suffered a breakdown in his relationship with his partner. He felt fearful and unsafe, to the extent that he ceased living and working in Carnarvon (sentencing ts 6 and Mr Lowe's victim impact statement).

164 The punch to Mr Lowe's face was forceful. He was taken by surprise and unable to defend himself against it.

165 Counsel for the State submitted that the learned judge made the barest reference to the principles of personal and general deterrence, and then moved to take account of matters personal to Mr Mallard. It was submitted that, as a result, the sentence imposed for count 4 failed adequately to reflect the requirements of personal and general deterrence. The sentence was manifestly inadequate.

Appeal against sentence: ground 2: its merits

166 Section 317(1) of the Criminal Code provides, relevantly:

Any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime, and is liable -

1. if the offence is committed in circumstances of aggravation, to imprisonment for 7 years; or

(b) in any other case, to imprisonment for 5 years.

167 In the present case, no circumstances of aggravation were alleged against Mr Mallard. The maximum penalty was therefore imprisonment for 5 years, but, in practice, 3 years and 4 months under the transitional provisions.

168 In Mourish v The State of Western Australia [2006] WASCA 257, McLure JA (Steytler P & Wheeler JA agreeing) summarised the sentencing dispositions in various cases relating to the offence of assault occasioning bodily harm contrary to s 317(1). Where the case was decided before the commencement of the transitional provisions, her Honour converted the sentences to post-transitional sentences and recorded the pre-transitional sentence in brackets. The relevant cases, as set out by her Honour, were these:

Johnson v Hayter [2001] WASCA 118 - the offender was sentenced on his plea of guilty to 8 months (1 year) for an unprovoked assault of a deputy principal that fractured his jaw and resulted in psychological consequences. The offender had no relevant prior convictions and was of previous good character.

Mitchell v The Queen [2001] WASCA 255 - the offender was sentenced on his plea of guilty to 1 year and 4 months (2 years) on two counts. The offender was involved in a brawl at a hotel where he knocked out two men, stomped on them and struck them with a bar stool. He had no prior record and was remorseful.

Mical v Ward [2003] WASCA 149 - the offender was sentenced on his plea of guilty to 6 months' imprisonment (9 months), suspended on appeal for 6 months, for striking the complainant a number of times causing bruising to his nose, a cut to his eyebrow and a black eye. The offender had no relevant prior record and a good work record.

Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264 - the offender was sentenced on appeal to 1 year and 4 months' imprisonment (2 years) for a single punch to the complainant's head which caused him to fall backwards and strike his head. The original sentence was 2 years (3 years) which was imposed after trial. Although the complainant subsequently died, the appellant was found not to be criminally liable for the death. For the purposes of sentencing, the relevant bodily harm was taken to be a minor kind of injury such as bruising or a split lip which could ordinarily be expected to be caused by a single punch to the face. The appellant was a first offender who displayed concern for the victim after the assault.

Harvey v Ingles [2004] WASCA 30; (2004) 40 MVR 398 - the offender was sentenced on a late plea of guilty to 12 months' imprisonment for striking the complainant with a clenched fist which caused a split lip, chipped teeth, black eye and swollen jaw. The offender was a drug addict on parole.

Poletti v Adams [2005] WASC 66 - the offender was sentenced on a plea of guilty to 12 months' imprisonment, suspended on appeal for 12 months, for punching his mother's partner in the face and while he was on the ground. The appellant was a first offender.

The State of Western Australia v Anderson [2004] WASCA 157 - the offender was sentenced on a plea of guilty to 18 months' imprisonment without parole for the offence of assault occasioning bodily harm and threat to kill. On appeal, the sentences were increased to 2 years' imprisonment without parole for a violent sustained assault involving repeated use of a metal stake. The offender had a long criminal history. The double jeopardy principle applied.

Robinson v Smith [2005] WASC 99 - the offender was sentenced after trial to 12 months and 1 day's imprisonment for striking the complainant on the neck leaving a lump in his throat. The offender had a history of offending [12].

The appeals in Robinson, Poletti, Mical, Harvey and Johnson were from decisions of magistrates who were unable to impose a term of imprisonment exceeding 2 years. Also, those cases (apart from Robinson) and the cases of Mitchell and Anderson involved pleas of guilty.

169 More recently, in The State of Western Australia v Camilleri [2008] WASCA 217, the respondent pleaded guilty to an indictment containing two counts of assault occasioning bodily harm contrary to s 317(1) and one count of doing grievous bodily harm contrary to s 297(1) of the Criminal Code. The State appealed against the sentences imposed on the respondent. It was asserted, on behalf of the State, that the 'range' of sentences for assault occasioning bodily harm contrary to s 317(1), after the coming into operation of the transitional provisions, had generally been between 6 and 18 months' imprisonment. Counsel for the State cited Mourish [12] in support of that submission. However, as Wheeler JA (McLure & Buss JJA agreeing) noted, McLure JA did not, in Mourish, assert that that was the 'range' of sentences. Rather, her Honour merely examined several cases dealing with offences against s 317(1), for the purpose of determining whether the particular sentence imposed on the offender in Mourish was manifestly excessive.

170 It is difficult to discern any 'tariff' or usual sentencing range for assault occasioning bodily harm. See Kilner v The Queen [1999] WASCA 189 [21] (Ipp J). In Camilleri, Wheeler JA said:

The cases considered in Kilner demonstrated a range of penalties from 8 months to 2 years' imprisonment, prior to the transitional provisions, which would equate to a range of just over 5 months to 1 year 4 months. Further, it should be noted that the cases surveyed in Kilner were generally of a very serious nature, involving the use of implements or weapons of some kind and some of them involving a degree of persistence [16].

171 The review of the authorities carried out by Ipp J in Kilner was as follows:

In Tan v The Queen unreported; CCA, SCt of WA; Library No 960188; 1 April 1996 the applicant was found guilty of assault occasioning bodily harm (and other offences) after a trial in the Supreme Court. The assault followed a transaction whereby the applicant purchased drugs from the complainant which he later discovered were without value. The applicant, while in the company of others, attacked the complainant with a spanner and struck him on the wrist causing a fracture that required the insertion of a plate. He was sentenced to 2 years' imprisonment for this offence (which was ordered to be served concurrently with a longer term of imprisonment for a related offence), and this was upheld on appeal.

In Garlett v Dillon, unreported; SCt of WA; Library No 960353; 5 July 1996, the appellant threw glasses and other objects at the complainant in a hotel in Northam. The appellant and an accomplice also punched and kicked the complainant about the head and body. The complainant was forced to take shelter under a table. He was attacked again, this time with bar stools. The assault lasted several minutes. The complainant suffered a displaced fracture to his left cheek ligament, damage to his left arm as well as severe bruising to his face, chest and back. He underwent plastic surgery to heal the fractured cheek. The appellant was charged summarily in the Court of Petty Sessions. The learned Magistrate sentenced him to imprisonment for a period of 18 months. Scott J dismissed the appeal saying 'the appellant was extremely fortunate to have been dealt with as leniently as he was'.

In The Queen v Brand, unreported; CCA, SCt of WA; Library No 980590; 9 October 1998 the Court was concerned with a Crown appeal in a case involving assaults of a very serious kind by two offenders. The victim was struck on the head, arms and back with various implements and received extensive lacerations to the head. Boiling water was poured over her. This caused extensive third degree burns and the victim was hospitalised for a period of four weeks. The offenders were both affected by alcohol at the relevant time. Murray J observed that 'it is difficult to imagine a more serious form of assault occasioning bodily harm'. There were however powerful mitigating circumstances. These included a fast track plea of guilty and the fact that the respondent and the victim were Aborigines and 'this was a pay-back situation'. The sentencing Judge sentenced the offenders to community based orders for a period of two years. The Court of Criminal Appeal upheld the Crown appeal against the sentences and substituted sentences of 2 years' imprisonment in regard to each of the offenders.

In Toomath v The Queen, unreported; CCA SCt of WA; Library No 990107; 9 February 1999 the applicant assaulted a householder by striking him on the head with metal knuckledusters. The victim received three stitches to the forehead, a pressure sore to his left eye and soreness to his jaw and head area generally. The applicant had pleaded guilty to the offence. The assault was apparently occasioned by jealousy, a person with whom the applicant had had a close relationship had 'taken up with the complainant'. The applicant was sentenced to a term of 18 months' imprisonment and the appeal against this sentence failed.

In Robertson v The Queen, unreported; CCA SCt of WA; Library No 990145; 23 March 1999 the appellant assaulted a 'crowd controller' at the bar of a hotel in Scarborough by spraying him in the left eye with a pepper spray. He was sentenced to a term of imprisonment of 8 months. He had not pleaded guilty but a submission was made that he should have been sentenced to pay a fine. In rejecting this argument, Malcolm CJ referred to 'the seriousness of this type of offence, the appellant's previous record and poor history of controlling his temper in respect of persons of authority'. The learned Chief Justice pointed out that 'in the circumstances a custodial sentence was virtually inevitable'.

In Casserley v The Queen, unreported; SCt of WA; Library No 990164; 31 March 1999 the appellant struck the complainant in the neck with a rusty screwdriver. She sustained an 8 cm scratch on her neck and soft tissue injury to her jaw. This was a first offence and took place in a context of difficulties in the personal relationship between the appellant and the complainant; it was another case of jealousy. The appellant had pleaded not guilty in the Court of Petty Sessions. He was sentenced to a term of 2 years' imprisonment. The sentence was upheld by Scott J as being within the learned Magistrate's discretion (albeit that it was the maximum term where a person is summarily charged) [22] - [27].

172 In Kilner itself, the offender was convicted, on his pleas of guilty, of two counts of assault occasioning bodily harm. He was sentenced to 8 months' immediate imprisonment on the first count and 16 months' immediate imprisonment on the second. The sentences were ordered to be served cumulatively. The assaults occurred at the Kwinana Lodge Hotel. Both the offender and the complainant were significantly affected by alcohol. As to the first count, the offender, without warning, punched the complainant in the mouth with his fist. The complainant did not fight back. The offender proceeded to knee the complainant in the groin, striking him multiple times in the head with his fist, and inflicting several headbutts. The assault the subject of the second count occurred about 10 minutes later. The offender approached the complainant and proceeded to punch him in the head with his fists. The complainant fell to the ground and offered no resistance. Nevertheless, the offender, who was wearing steel-capped boots, kicked him in the groin, head and side. The complainant became unconscious and was taken to hospital. He suffered two swollen black eyes, extensive bruising to the face, two chipped teeth and impaired vision in his right eye. He also suffered a laceration to his forehead, which required 15 sutures. The offender's appeal against sentence failed.

173 I am not persuaded that ground 2 of the State's appeal has merit. The assault on Mr Lowe comprised a single, but forceful, punch. The learned judge found that this assault was not premeditated. Mr Lowe suffered short-term physical injuries but no permanent physical disability. The psychological consequences for Mr Lowe were, however, serious. The maximum penalty for the offence is imprisonment for 5 years (in practice, 3 years and 4 months under the transitional provisions). In my opinion, in the particular circumstances of this case, the sentence of 12 months' imprisonment imposed on Mr Mallard for count 4 was not manifestly inadequate. The sentence was not beyond the sound exercise of the learned judge's discretion.

Appeal against sentence: ground 2: conclusion

175 The learned trial judge said that '[as] these offences arose out of the same circumstances, the sentences will be served concurrently' (sentencing ts 9).

176 Counsel for Mr Mallard submitted that it was appropriate for the sentences to be wholly concurrent in that:

(a) the assault on Mr Lowe was 'much less serious' than the offence against Mr Marklew;

(b) there was geographic and temporal proximity between the offences; in particular, Mr Mallard was, at all material times, involved in the melee and had not ceased his involvement before the assault on Mr Lowe; and

(c) the offences could be described as being part of a single transaction; that is, Mr Mallard returned to the tavern for the purpose of fighting or assaulting Mr Dixon and, in the course of prosecuting that purpose, committed the offences against Mr Marklew and Mr Lowe.

Appeal against sentence: ground 3: its merits

177 The mere fact that offences are committed soon after one another, or even simultaneously, does not necessarily mean they are part of a single transaction for sentencing purposes. See Pepper v The State of Western Australia [2005] WASCA 177; (2005) 30 WAR 447, [108] (Roberts-Smith JA).

178 The altercation between Mr Mallard and Mr Marklew had ended before Mr Mallard assaulted Mr Lowe. Mr Mallard moved away briefly from Mr Marklew and Mr Lowe. He then returned and punched Mr Lowe in the face without warning (ts 70, 135).

179 The assault on Mr Lowe did not occur while Mr Mallard was fighting his way out of a general melee. It was separate and distinct from the assault on Mr Marklew.

180 In my opinion, the learned judge erred in making the sentence on count 4 wholly concurrent with the sentence on count 1. Her Honour's failure to make the sentence for count 4 at least partly cumulative upon the sentence for count 1 resulted in the net effective head sentence failing adequately to reflect the overall criminality of Mr Mallard's offending.

Appeal against sentence: ground 3: conclusion

182 By s 31(3) and (4) of the Criminal Appeals Act, relevantly, this court may allow a prosecutor's appeal against sentence if, and only if, it is of the opinion that a different sentence should have been imposed. Otherwise, the appeal must be dismissed.

183 By s 31(5) of the Criminal Appeals Act, relevantly, if this court allows a prosecutor's appeal against sentence, it must set aside the sentence and:

(a) may instead impose a new sentence that is either more or less severe; or

(b) may send the charge back to the court that imposed the sentence to be dealt with further.

184 In my opinion, the manifest inadequacy of the sentence imposed on Mr Mallard in respect of count 1 and the failure of the net effective sentence to reflect the overall criminality of Mr Mallard's conduct in respect of counts 1 and 4, require that a different and more severe sentence be imposed. I would therefore allow the State's appeal.

185 This court has the materials necessary to re-sentence Mr Mallard according to law.

The re-sentencing of Mr Mallard: s 41(4) of the Criminal Appeals Act

186 Section 41(4)(b) of the Criminal Appeals Act was inserted by the Criminal Law and Evidence Amendment Act 2008 (WA). It came into operation on 27 April 2008.

(4) The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor) -

(a) may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard; but

(b) despite paragraph (a), must not take into account the fact that the court's decision may mean that the person is again sentenced for the offence.

188 Section 41(4) changed the common law principles applicable to a State appeal against sentence. In particular, it abolished the principle that, when the court re-sentences an offender upon a State appeal being allowed, it ordinarily recognises the element of double jeopardy involved (in the offender standing for sentence twice) by imposing a sentence somewhat less than the sentence which should have been imposed at first instance. See The State of Western Australia v Richards [2008] WASCA 134 [27] (Steytler P, McLure & Buss JJA agreeing). A majority of the court in Richards (Martin CJ, Steytler P, McLure & Buss JJA; Miller JA dissenting) held that s 41(4) did not have a retrospective operation.

189 In the present case, it is plain that s 41(4), as amended, applies to the State's appeal. As I have mentioned, s 41(4)(b) came into operation on 27 April 2008. The sentencing process before the learned judge occurred on 5 August 2008. Indeed, the trial was held and the convictions recorded after 27 April 2008.

The re-sentencing of Mr Mallard: the former legislative scheme for remission

190 Before 4 November 1996, s 29 of the Prisons Act 1981 (WA) (Prisons Act) provided that prisoners serving a term of imprisonment were entitled to a remission of one-third of their sentences. This remission could be lost in certain circumstances, primarily where the prisoner committed prison offences.

191 On 2 October 1996, the then Attorney General, the Hon Peter Foss QC, established a committee to examine and report on arrangements relating to remission and parole in Western Australia. The then Chief Judge of the District Court, the Hon Kevin Hammond, was appointed as the committee's chairman. In s 5.3 of the Hammond Committee's report entitled 'Report of the Review of Remission and Parole', published in March 1998, it was said:

Under the current provisions of the Prisons Act 1981, remission is granted automatically.

Although the report noted that remission might be lost as a result of a prisoner committing prison offences, it said:

In practice, most prisoners receive full, or close to full, remission.

See Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [60] - [61] (Pullin JA).

192 The Hammond Committee's recommendations, as set out in its report, included, relevantly:

1. The one-third remission of sentence be abolished.

Abolition of remission will address community concern that sentences imposed appear to bear little relationship to sentences actually served, but note Recommendation 12 below.

...

1. The sentencing court be required by statute to adjust sentences so that the actual time served is no greater than that which would have been served if the existing provisions relating to remission and parole still applied.

This approach appears to have been applied largely successfully in Victoria to prevent unintended prison population growth consequent upon sentencing changes. This recommendation has caused the Committee great concern in that it will be most difficult to implement but its inclusion is necessary under terms of Reference (d). Notwithstanding such perceived difficulty the Committee believes it is an attainable goal. (original emphasis)

193 Section 29 of the Prisons Act was repealed by s 110 of the Sentencing (Consequential Provisions) Act 1995 (WA). Section 110 came into operation on 4 November 1996. Section 29 was superseded by three provisions which, in combination, had the same effect as s 29. The system of remission under s 29 was, in substance, maintained, even though the new system was described as involving the 'discharge' or 'release' of a prisoner, rather than the remission of one-third of his or her sentence. See Worthington [57] - [64] (Pullin JA).

194 Accordingly, before the commencement of the 2003 Sentencing Amendment Act on 31 August 2003, offenders sentenced to a fixed term of immediate imprisonment received a virtually automatic one-third remission in the length of their sentences. In other words, offenders sentenced to a fixed term of immediate imprisonment actually served a maximum of two-thirds of the head sentences pronounced by the court. If the offenders were made eligible for parole, they could be released into the community at an earlier date.

195 Courts were not permitted to take into account, in determining the head sentence, the legislative scheme for remission. See Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348; Jarvis v The Queen (1993) 20 WAR 201.

The re-sentencing of Mr Mallard: the 'truth in sentencing' legislation

196 By the 2003 Sentencing Amendment Act and the Sentence Administration Act 2003 (WA), relevantly, Parliament abolished the scheme for remission.

197 The Attorney General said, in his Second Reading Speech relating to the Bill which, upon enactment, became the 2003 Sentencing Amendment Act:

Remission is proposed to be abolished. Under the current system, a one-third remission on sentence is virtually automatic and, as such, not only serves no purpose but also brings into disrepute the sentencing system and the courts.

(See Western Australia, Parliamentary Debates, Legislative Assembly, 15 August 2002, p 179.)

198 Although Parliament abolished the scheme for the virtual automatic one-third remission in the length of fixed terms of immediate imprisonment, it is beyond question that Parliament intended there should be no increase in the actual time offenders would be imprisoned. The Attorney General said, in his Second Reading Speech:

Critically important to the proposed regime is that sentences will be adjusted so that a person spends the same amount of time in jail under the proposed system as would have been the case had the offender been sentenced under the current system. If this were not done, by far the greatest risk is that there would be an across-the-board increase in sentences and an intolerably large increase in the prison population.

(See Western Australia, Parliamentary Debates, Legislative Assembly, 15 August 2002, p 180.)

199 Accordingly, in general, the so-called 'truth in sentencing' legislation embodied in the 2003 Sentencing Amendment Act had, and was intended by Parliament to have, relevantly, these effects:

(a) by express provision, courts imposing fixed terms of imprisonment must reduce the sentences by one-third to reflect the abolition of the virtually automatic legislative scheme for remission; and

(b) in practice, as a result of par (a) above, the statutory maximum term of imprisonment capable of being imposed on offenders was reduced by one-third.

The general principle was subject to some exceptions. It is unnecessary, however, to refer to them.

200 Part 2 of the 2003 Sentencing Amendment Act was headed 'Sentencing Act 1995 amended'. Division 4 of Pt 2 was headed 'Amendments about imprisonment'. Division 4 comprised ss 14 - 22. Section 22 was headed 'Transitional provisions', and provided:

Schedule 1 has effect in relation to the amendments effected by this Division.

201 Clause 2 of sch 1 to the 2003 Sentencing Amendment Act provided:

1. Sentencing courts to take into account the effect of the sentencing amendments

(1) If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing.

(2) For the purposes of subclause (1) -

(a) it does not matter that the court may be proposing to suspend the fixed term under Part 11 of the Sentencing Act 1995; and

(b) a reference to imposing a fixed term includes a reference to dealing with an offender under section 80 of the Sentencing Act 1995 in respect of a sentence of suspended imprisonment imposed under the old provisions.

(3) Despite subclause (1), if the sentence required by that subclause would contravene section 86 of the Sentencing Act 1995, if the court considers that a term of imprisonment is warranted in all the circumstances, the court may impose a term of more than 6 months.

(4) A court does not have to apply this clause if, in sentencing an offender, the court follows the practice of the court as established in accordance with the new provisions and this clause.

(5) This clause does not apply if -

(a) the statutory penalty for the offence for which the offender is being sentenced has been amended since the new provisions commenced;

(b) a guideline judgment given under section 143 of the Sentencing Act 1995 since the new provisions commenced applies to the offender or the offence for which the offender is being sentenced;

(c) the application of this clause would be inconsistent with or contrary to any other judgment given since the new provisions commenced that binds the sentencing court;

(d) a court is imposing a term under section 401(4) of The Criminal Code; or

(e) a court is sentencing an offender to a term that, under the old provisions, would have been a prescribed term within the meaning of section 85 of the Sentencing Act 1995.

202 Clause 1(1) of sch 1 defined the terms 'old provisions' and 'new provisions'. 'Old provisions' means the Sentencing Act and the Sentence Administration Act 1995 (WA), 'as they would have applied had the sentencing amendments not come into operation'. 'New provisions' means the Sentencing Act as amended by the 'sentencing amendments' and the Sentence Administration Act 2003 (WA). The term 'sentencing amendments' was defined to mean the amendments to the Sentencing Act effected by Pt 2 Div 4, and the repeal of the Sentence Administration Act 1995 effected by s 29(1) of the 2003 Sentencing Amendment Act.

203 Clause 2 and the other provisions of sch 1 to the 2003 Sentencing Amendment Act came into operation on 31 August 2003.

204 In Yates, the majority of this court (Steytler P, McLure & Buss JJA; Martin CJ & Miller JA dissenting) held that cl 2 applied to all offences in Western Australia including those offences created after 31 August 2003.

The re-sentencing of Mr Mallard: the 2008 Sentencing Amendment Act and the repeal of the 'truth in sentencing' legislation

205 Section 3 of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) (the 2008 Sentencing Amendment Act) deleted cl 2 of sch 1 to the 2003 Sentencing Amendment Act.

206 By s 4 of the 2008 Sentencing Amendment Act, a new cl 3A was inserted in sch 1 of the 2003 Sentencing Amendment Act. Clause 3A provides:

(1) In this clause -

clause 2 means clause 2 of this Schedule as in force immediately before the relevant commencement;

minimum custodial period of a fixed term, is the amount of the fixed term required to be served in custody before the offender would be, or was or would have been, eligible or entitled to be released, whether on parole or on being discharged from the sentence;

relevant commencement means the commencement of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008.

(2) After the relevant commencement, clause 2 does not apply to the sentencing of an offender for an offence -

(a) even if the offence was committed before the relevant commencement; and

(b) even if the offender was convicted before the relevant commencement; and

(c) even if the sentencing is as a result of an appeal against a sentence imposed before the relevant commencement,

despite any written or unwritten law to the contrary.

(3) A court sentencing an offender to a fixed term can have regard to the minimum custodial period of the fixed term to be imposed and the minimum custodial periods of fixed terms imposed before the relevant commencement, whether or not clause 2 applied to their imposition.

(4) A court sentencing an offender to a fixed term can impose a penalty up to the statutory penalty for the offence.

(5) This clause expires 3 years after the relevant commencement.

207 Clause 2 was deleted, and cl 3A was inserted, with effect from 14 January 2009.

The re-sentencing of Mr Mallard: the State's submissions on the 2008 Sentencing Amendment Act

208 After the 2008 Sentencing Amendment Act came into operation on 14 January 2009 and before the hearing of this appeal, counsel for the Director of Public Prosecutions filed identical written submissions in several sentencing appeals as to the effect of the 2008 Sentencing Amendment Act.

209 In those written submissions, it was contended by the Director that the effect of the repeal of the transitional provisions, read with the other provisions of the 2008 Sentencing Amendment Act, must be one of the following:

(a) all sentences of imprisonment imposed after the repeal are to be increased by 50% by simply reversing the mathematical formula applied before the repeal;

(b) all sentences of imprisonment, except those in cases falling within the worst category, will be the same as before the repeal, so as to continue the pattern of sentencing ranges established while the transitional provisions were operating; or

(c) courts imposing sentences of imprisonment after the repeal should sentence in accordance with established sentencing principles without being bound by either extreme.

210 The Director submitted that the third of these was the correct approach. It was argued that this approach was likely to result in an increase in sentences imposed after 14 January 2009, because courts will be obliged in sentencing to take into account the statutory penalty for the offence in accordance with s 6(1) and s 6(2)(a) of the Sentencing Act, and the repeal of the transitional provisions effectively increases statutory penalties by 50%. However, according to the Director, simply to review sentences imposed during the subsistence of the transitional provisions and add 50% to them would be as incorrect an approach as to arrive at an appropriate sentence, and then discount it to maintain conformity with the pattern of sentencing established when the transitional provisions were in operation. It was submitted that the correct approach is illustrated by the decision of the Court of Criminal Appeal of New South Wales in R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1. In that case, the court discussed the effect of the repeal of ss 16G and 19AG of the Crimes Act 1914 (Cth). Those sections had provided for reductions in sentences imposed for Commonwealth offences to take into account the effect of remissions available in some States, but not others. In Studenikin, Howie J (Newman A-J agreeing) said:

The court should determine the sentence for an offender by applying the appropriate statutory and common law principles, including due regard to the maximum sentence prescribed for the offence, and then consider whether the sentence is consistent with the established range, or whether it departs significantly from the range either towards severity or leniency. If the sentence does depart significantly from the range and there is no good reason on the facts of the particular matter or the application of principle to explain and justify the departure, the sentencing court should reconsider the chosen sentence in the light of the established range. By adopting this process the court both exercises a sentencing discretion, unfettered except by the appropriate facts and relevant sentencing principles, and attempts, so far as is appropriate, to conform with the approach adopted by other courts or as laid down in a guideline and, thereby, to achieve a measure of consistency in sentencing [52].

211 In the present case, during the hearing of the appeal, members of the court sought to debate with counsel for the State several aspects of the proper construction, effect and application of the 2008 Sentencing Amendment Act. Counsel sought refuge from the pressure of questioning by applying for leave to file additional written submissions. The court granted that leave to the State and also to Mr Mallard.

212 Counsel for the State filed additional written submissions on 12 March 2009. Those submissions contend, relevantly:

(a) When reviewing sentences imposed during the subsistence of the transitional provisions, the sentencing ranges applicable during that period are to be identified by reference to the 'pre-adjustment range' rather than the range after the application of the one-third reduction.

(b) The sentences imposed when the transitional provisions were in operation were, necessarily, a 'formulaic reduction' of the appropriate sentences.

(c) If the reduced sentences imposed during the subsistence of the transitional provisions (that is, after the application of the one-third discount) were to constitute the existing 'tariff' or basis for comparison, there would have been no purpose in the inclusion of cl 3A(3).

(d) The object of cl 3A(3) is to enable sentencing judges to maintain some consistency between minimum custodial periods for sentences imposed before and after 14 January 2009. The clause is empowering, but not mandatory. It operates 'as a safeguard to avoid gross inconsistency' in sentencing patterns before and after 14 January 2009. Clause 3A(3) permits a sentencing judge, after identifying what he or she considers to be an appropriate head sentence, to examine the minimum custodial period to ascertain whether the period to be served is 'too much (or too little)', and then to re-adjust the head sentence accordingly.

(e) The word 'can' in cl 3A(3) is permissive, and implies that a sentencing judge is authorised to consider the 'practical impact' on an offender of a particular sentence of imprisonment, and to compare that practical effect with the practical effect of another sentence that has previously been imposed on a different offender. It is not a power 'only available at discretion', and hence it is not pertinent to seek to identify the circumstances in which the power should be exercised.

The more difficult issue is the development of criteria to guide sentencing judges of the consequences of the comparisons following an examination of the minimum custodial period to be served under the current legislation and under the repealed legislation, and in those where there is a difference, the extent, if any, to which the head sentence should be revisited. (original emphasis)

(No meaningful submissions were made to assist the court in the resolution of this 'more difficult' issue.)

(g) The purpose of the words 'whether or not cl 2 applied to their imposition', in cl 3A(3), is to allow a sentencing judge to have regard to all minimum custodial terms from sentencing regimes before 14 January 2009; that is, to ensure that the power exists to allow comparisons between sentences under all sentencing regimes, including those before 31 August 2003.

(h) Clause 3A(4) merely reflects the function of the maximum penalty in determining the appropriate sentence as articulated in s 6(2) of the Sentencing Act. The inclusion of cl 3A(4) is consistent with Parliament taking 'a belts and braces approach'.

(i) The sunset clause in cl 3A(5) confirms that all of the provisions of cl 3A are truly transitional.

The re-sentencing of Mr Mallard: counsel for Mr Mallard's submissions on the 2008 Sentencing Amendment Act

213 Counsel for Mr Mallard submitted, relevantly, as follows:

(a) It is incorrect to refer to the sentencing patterns before 31 August 2003 as the patterns which result in 'the appropriate terms' for the imposition of comparable sentences after 14 January 2009. The very fact that the transitional provisions mandated the imposition of terms which were two-thirds of the sentences that would have been imposed before 31 August 2003 indicates the Parliament considered that the continuing imposition, after the abolition of the system of remission, of the sentencing patterns applicable while that system was in operation, would result in excessive sentences.

(b) If, as the State submits, the purpose and effect of the 2008 Sentencing Amendment Act is to increase the maximum penalty for all offences, and thereby require the courts to increase the range of sentences imposed, then s 10 of the Sentencing Act applies to the sentencing of any offender convicted of an offence committed before 14 January 2009.

(c) Clause 3A(3) provides a basis upon which a sentencing judge may compare sentences imposed during different sentencing regimes. In order to maintain consistency in sentencing patterns, the sentencing judge may calculate the minimum custodial periods for the sentences with which any comparison is being drawn.

(d) The power conferred by cl 3A(3) is 'discretionary rather than mandatory'. The discretion to have regard to the minimum custodial period should be exercised where a sentencing judge needs to refer to sentences imposed before 14 January 2009 in order to achieve consistency in sentencing, and a comparison solely with the head sentences will result in a distortion of that comparison.

(e) The words 'whether or not cl 2 applied to their imposition', in cl 3A(3), ensure that, in carrying out any comparison of sentences for the purpose of ensuring consistency, a consistent benchmark (the minimum custodial period) is to be used.

(f) Clause 3A(4), which expressly permits a sentencing judge to impose the statutory penalty, indicates that there will be 'some inconsistency' between sentences before and after 14 January 2009. According to counsel:

The reason for this is that if one takes as a benchmark a pre-2003 amendment sentence equal to the statutory penalty, and assume no amendment to the statutory penalty, the maximum sentence that could be imposed to result in the same minimum custody period would be a sentence of two-thirds of the statutory penalty.

However, the 2008 Sentencing Amendment Act does not provide any guidance upon the extent of this inconsistency, or the circumstances in which it will arise.

(g) After the expiration of cl 3A pursuant to the 'sunset clause' in cl 3A(5), there will be no need to refer to earlier sentencing regimes in that future sentences will be consistent with the sentencing ranges established during the currency of cl 3A, which will themselves be consistent with the previous regimes.

(h) The general increase in sentences which the State submits should occur 'ignores the words, effect, and purpose of subclause 3A(3)'. As the purpose of cl 3A(3) is to provide 'a degree of consistency' across sentencing regimes, there must be cases in which there will be no increase in sentences.

(i) Apart from cl 3A(4), there is no indication within the 2008 Sentencing Amendment Act of any situation in which the result of the amendments must be an increase in sentences.

The re-sentencing of Mr Mallard: the proper construction, effect and application of the 2008 Sentencing Amendment Act

214 In Western Australia, the statutory sentencing principles are set out in Pt 2 of the Sentencing Act. By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.

215 The statutory principle that a sentence must be commensurate with the seriousness of the offence reflects the common law principle which requires that a sentence be proportional to the offence. See Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson & Toohey JJ), 486 (Wilson J), 491 (Deane J).

216 Another fundamental sentencing principle is that there should not be any unjustifiable disparity in sentence between comparable offences and offenders. This principle is derived from the notion of equal justice. In Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, McHugh J said:

Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes (306).

See also Everett, 300 (Brennan, Deane, Dawson & Gaudron JJ); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson & Gaudron JJ). And see Sir Rupert Cross, The English Sentencing System (2nd ed, 1975) 167, where it is said the principle of justice that 'like cases should be treated alike' is fundamental.

217 The principle that there should not be any unjustifiable disparity in sentence between comparable offences and offenders is sometimes expressed as a requirement that there be consistency in the punishment of different offenders with similar antecedents who have committed similar offences with comparable consequences. The principle against unjustifiable disparity or in favour of consistency is concerned with whether a particular sentence is within the appropriate range, and not with whether it is more or less severe than some other sentence (other than that of a co-offender) which merely forms part of the appropriate range. See R v Morgan (1993) 70 A Crim R 368, where Hunt CJ at CL (Allen J generally agreeing & Loveday AJ agreeing) said:

It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe [1984] HCA 46; (1984) 154 CLR 606 at 612; [1984] HCA 46; 12 A Crim R 408 at 411:

The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty (371). (original emphasis)

218 The maintenance of relativities is important in avoiding unjustified disparities. This aspect of the sentencing process was referred to by Crockett J (Gobbo J agreeing) in R v Zakaria (1984) 12 A Crim R 386:

Of course, no sentencing court should treat itself as having had placed upon its discretion a fetter composed of some supposed constraint constituted by the necessity to adhere rigidly to what is sometimes described as the 'going tariff' for a particular class of offence. On the other hand, it is proper, indeed necessary, to have regard to sentences that have been imposed in the past for similar offences as some guide to what should be imposed in the present. Were it otherwise, the risk would constantly be present that, due to judicial inexperience, adoption of a purely idiosyncratic approach or for some other reason, punishments for the same offence committed in substantially similar circumstances would attract widely fluctuating sentences. Such disparate sentences are, for obvious reasons, insupportable. As Potas in Sentencing Violent Offenders in New South Wales, p 7 has observed: 'One rule of fundamental importance in the administration of justice is that like cases should be decided alike (and unlike cases differently). This entails some knowledge of sentences imposed in previous cases. Prior sentences are not binding on courts but they do provide a yardstick against which a particular determination may be made. Indeed, earlier decisions provide a more reliable indication than the statutory maxima as to the appropriate sentence to be applied in a particular case. Ultimately, fair sentencing involves sentencing by analogy' (388).

219 Yet another fundamental sentencing principle is that the maximum penalty for an offence should be reserved for the worst example of the offence. The true rule in relation to the use of the maximum penalty for an offence was explained by Burt CJ in Bensegger v The Queen [1979] WAR 65:

A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with by it that can be imagined. If such were the case it could never be imposed as the addition of further non-existing but aggravating circumstances would never be beyond the reach of imagination. The true rule as I understand it is that the maximum sentence should be reserved for the worst type of case falling within the prohibition or, as it is expressed by Dwyer CJ in Reynolds v Wilkinson (1948) 51 WALR 17, at 18, 'for the worst cases of the sort'. That expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse than it was (68).

220 In The English Sentencing System, Sir Rupert Cross noted that maxima punishments are rarely imposed and, in some cases, never imposed. The learned author referred to this passage in Ch III of the Dove Wilson Report on Persistent Offenders (1932):

In order that there may be a proper grading of sentences to fit the many degrees of gravity presented by the various cases which fall within the same legal category, it is necessary that the maximum sentence authorised by law should be reserved for the rare offences which are exceptionally heinous, that sentences approaching the legal maximum should be reserved for offences falling within the next degree of gravity, - and so on, with the result that, for ordinary offences (such as form the great majority of cases coming before the Courts) the heaviest sentence which the Court feels justified in imposing is usually far below the maximum sentence authorised by law for the category of offence in question. It is the duty of the Court to take into consideration all the circumstances and consequences of the offence (36).

221 Sentencing patterns for a particular offence emerge over time as a result of the experience of the courts in sentencing offenders who have committed the offence in question with varying degrees of culpability. David Thomas, Principles of Sentencing (2nd ed, 1979) states in relation to the emergence of upper and lower sentencing limits for a particular offence:

[A] variety of typical factual situations will recur; with each of these typical factual situations there are associated upper and lower limits within which the sentence should normally fall, in the absence of exceptional circumstances in the offence and without regard to mitigating features peculiar to the offender himself. The difference between the upper and lower limits applicable to a particular typical situation constitutes the 'range', 'bracket', 'normal level' or 'pattern of sentence' for that variation of the offence. A sentence above the upper limit will be described as 'excessive', 'out of scale', 'beyond the range', and is normally reduced. A sentence which is within the limits will not be reduced on the ground of disproportion alone even though it is marginally more severe than the members of the Court might individually have passed (33). (footnotes omitted)

222 Clause 2(1) of sch 1 to the 2003 Sentencing Amendment Act was not a transitional provision in the ordinary sense. It applied to all offences whether created before or after the commencement of the 2003 Sentencing Amendment Act. See Yates [47] - [48] (Steytler P), [95] - [98] (McLure JA), [132] - [141] (Buss JA). In The State of Western Australia v Wallam [2008] WASCA 117(S), McLure JA explained that cl 2(1) modified the operation and scope of the Sentencing Act in the following way:

If regard is had solely to the express and implied powers and duties in the text of the Sentencing Act, the sentencing court would be obliged to impose the appropriate sentence without regard to the presence or absence of remission. Thus to sentence in accordance with the text of the Sentencing Act (without regard to cl 2(1)) would produce an error.

Like cl 2(1) of sch 1, s 41(4)(b) of the Criminal Appeals Act also modifies the operation and scope of the Sentencing Act. But for that section, the fact that an accused was being re-sentenced after a successful appeal would be a mandatory relevant consideration that decreased the extent to which the offender should be punished and is thus a mitigatory factor for the purpose of s 8(1) of the Sentencing Act. However, s 41(4)(b) directs that what was a mandatory relevant consideration is now a mandatory irrelevant consideration. Although the text of the Sentencing Act is not altered, the modifications have the same effect, being to change the operation and effect of that Act [29] - [30].

223 In my opinion, cl 2(1), to the extent that it required a sentencing judge merely to perform a mathematical calculation, was not a sentencing principle.

224 Clause 2(1) did, however, create a sentencing principle to the extent that it required a sentencing judge who proposed to impose a fixed term of imprisonment on an offender (with or without a parole eligibility order) to determine the fixed term that would have been imposed had the 'old provisions' (as defined in cl 1(1) of sch 1) been in operation at the time of sentencing. It was necessary for the sentencing judge to find the material facts, identify the relevant statutory and common law sentencing principles, and apply the relevant principles to the facts as found, for the purpose of determining the fixed term he or she would have imposed for each offence, had the 'old provisions' then been in operation.

225 The sentencing judge, after determining the sentence that would have been imposed for each offence in accordance with the 'old provisions', was then required by cl 2(1) to reduce the sentence for each offence by one-third.

226 Section 3 of the 2008 Sentencing Amendment Act deleted cl 2. The one-third reduction which a sentencing judge had been required to make, when sentencing an offender to a fixed term of imprisonment (with or without a parole eligibility order), was abolished.

227 By cl 3A(2), after 14 January 2009, cl 2 does not apply to the sentencing of an offender for an offence:

(a) even if the offence was committed before 14 January 2009; and

(b) even if the offender was convicted before that date; and

(c) even if the sentencing is as a result of an appeal against a sentence imposed before that date,

despite any written or unwritten law to the contrary.

228 It follows, from cl 3A(2), that cl 2 does not apply to the re-sentencing of Mr Mallard, even though he committed counts 1 and 4 before 14 January 2009, he was convicted before that date, and the re-sentencing by this court is as a result of the State's appeal against sentence being allowed.

229 Where an offender applies for leave to appeal or appeals with leave against sentence, and this court proposes to exercise the power under s 31(5) of the Criminal Appeals Act to pass a more severe sentence than the sentencing judge imposed, it should give notice to the offender of its contemplated approach and give the offender a reasonable opportunity to consider whether to abandon the application or appeal. See Dragon v The State of Western Australia [2008] WASCA 252 [70] (Buss JA, Wheeler JA agreeing); RH McL v The Queen [2000] HCA 46; (2000) 203 CLR 452; Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305. In the present case, it was unnecessary to give such notice because the appeal against sentence was brought by the State.

230 Clause 3A(3) provides that a court sentencing an offender to a fixed term 'can have regard' to the 'minimum custodial period' of the fixed term to be imposed, and to the minimum custodial periods of fixed terms imposed before 14 January 2009, whether or not cl 2 applied to their imposition. By cl 3A(1), 'minimum custodial period' of a fixed term means the amount of the fixed term required to be served in custody before the offender would be, or was or would have been, eligible or entitled to be released, whether on parole or on being discharged from the sentence.

231 The proper construction, effect and application of cl 3A(3) must be ascertained in the context of the pre-existing law that, when sentencing an offender, a sentencing judge was prohibited from taking into account the statutory provisions in respect of the system of remission, and the system of parole, in determining the length of the head sentence for an offence. See Worthington [18] (Steytler P), and the cases there cited.

232 In my opinion, the word 'can' in the phrase 'can have regard to the minimum custodial period of the fixed term to be imposed ... ', in cl 3A(3), is an empowering provision. It overrides the pre-existing sentencing principle that a sentencing judge must not take into account the statutory provisions in respect of remission or parole. The sentencing judge is empowered to have regard to the minimum custodial period applicable under the fixed term he or she proposes to impose on the particular offender, in addition to the minimum custodial periods in previous cases.

233 Clause 3A(4) provides that, when sentencing an offender to a fixed term of imprisonment, the sentencing judge 'can impose a penalty up to the statutory penalty for the offence'. It is an empowering provision. A sentencing judge may impose the maximum penalty for an offence or any penalty below the maximum. In my opinion, cl 3A(4) reinforces s 3 of the 2008 Sentencing Amendment Act. These provisions, read together, establish, beyond argument, that the one-third reduction under cl 2(1) has been abolished and a sentencing judge, when sentencing an offender to a fixed term of imprisonment, is empowered to impose the maximum penalty for the offence in question or any penalty less than the maximum, as appropriate and in accordance with sentencing principles. Clause 3A(4) did not appear in the original Bill. The subclause was inserted, after considerable debate in the Legislative Assembly and the Legislative Council, at the insistence of the Opposition.

234 By cl 3A(5), cl 3A expires three years after the relevant commencement; that is, three years after 14 January 2009. It appears the Parliament contemplated that the proper approach to sentencing (if not sentencing patterns) in accordance with cl 3A, and other statutory and common law sentencing principles, will have become established within three years after the commencement of cl 3A, and the continuing operation of cl 3A after that period will therefore be unnecessary.

235 The language and subject matter of cl 3A raise several issues for consideration. First, when a sentencing judge is reviewing the head sentences imposed for comparable offences or under any relevant sentencing range, whether before or after 31 August 2003, cl 3A does not expressly state whether the sentencing judge is to treat the head sentences imposed while the transitional provisions were in operation as being the head sentences that would have been imposed had the 'old provisions' (referred to in cl 2) been in operation or those head sentences less the one-third reduction. Secondly, cl 3A does not expressly state how a sentencing judge is to reconcile:

(a) the head sentences that were imposed for comparable offences before 14 January 2009, on the one hand; and

(b) the minimum custodial periods in respect of those head sentences for comparable offences, on the other,

in determining the appropriate sentencing range after 14 January 2009 for a particular offence. Thirdly, cl 3A(3) does not expressly state how the minimum custodial periods are to be taken into account or what weight is to be given to them in determining the head sentence to be imposed when a sentencing judge proposes to sentence an offender to a fixed term of imprisonment (with or without parole). Fourthly, although cl 3A(3) empowers a sentencing judge to have regard to minimum custodial periods, the provision does not expressly state whether the judge is merely entitled, or whether he or she is bound, in any case, to have regard to them.

236 These issues must be resolved on a proper construction of the language of cl 3A (see Stingel v Clark [2006] HCA 37; (2006) 226 CLR 442 [26]), in the context of the relevant statutory and common law sentencing principles as at 14 January 2009, the relevant legislative history and any admissible extrinsic material. The court should give cl 3A a meaning that will give effect to any purpose of the legislation that can be deduced from this context. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408; Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 112 - 113.

237 As to the first issue, it is to be inferred, in my opinion, from:

(a) the abolition of the one-third reduction under cl 2(1) combined with the empowering of a sentencing judge to impose up to the maximum penalty for an offence; and

(b) the empowering of a sentencing judge to take into account the minimum custodial periods of fixed terms imposed before 14 January 2009, whether or not cl 2 applied to their imposition,

that Parliament intended that a sentencing judge, in reviewing the head sentences imposed for comparable offences or under any relevant sentencing range before 14 January 2009, should, in relation to sentences imposed while the transitional provisions were in force, have regard to the head sentences that would have been imposed had the 'old provisions' (referred to in cl 2) been in operation. This will enable sentencing judges to make valid comparisons of the head sentences in relation to comparable offences or under any relevant sentencing range across the continuum of sentencing regimes, in circumstances where the one-third discount under both the legislative scheme for remission and the transitional provisions has ceased to apply.

238 As to the second and third issues, in my opinion, it is to be discerned from:

(a) the abolition of the one-third reduction under cl 2(1);

(b) the empowering of a sentencing judge to impose 'up to' the maximum penalty for an offence (that is, the maximum penalty or any penalty below the maximum);

(c) the fundamental sentencing principle, which is well-established and has not been abrogated by the 2008 Sentencing Amendment Act, that the length of sentences increases by degree across the spectrum and commensurately with the seriousness of offences and offending; and

(d) in the context of the matters referred to in pars (a), (b) and (c) above, the inherent unlikelihood that Parliament contemplated there should be a substantial and abrupt increase in sentences for offences classified as within the worst category, rather than a gradual increase in sentencing, reflecting the relative seriousness of offences and the circumstances of offending and offenders, across the sentencing spectrum,

that Parliament intended there should, in general, be some increase in the length of the sentences where fixed terms of imprisonment are to be imposed. Otherwise, there would be a significant and unjustified disparity between cases marginally within and cases marginally outside the worst category. The maintenance of relativities in the sentencing process would, to some extent, be jeopardised.

239 However, the empowering of a sentencing judge to have regard to the minimum custodial period of the fixed term to be imposed, and to the minimum custodial periods of fixed terms imposed before 14 January 2009, whether or not cl 2 applied to their imposition, indicates that Parliament did not intend that there should be an increase in the length of sentences in each and every case. It appears to have been intended that:

(a) a sentencing judge should be able to impose the maximum penalty or close to the maximum penalty for the worst case of offending or a case in the worst category of offending;

(b) there should, in general, be no increase or a very modest increase in the length of sentence in the least serious case or a case in the least serious category of offending; and

(c) there should, in general, be some increase in the length of sentences in most cases falling between the worst case and the least serious case, with the length of sentences increasing gradually across the spectrum and commensurately with the seriousness of offences and offending.

This apparent Parliamentary intention is consistent with the avoidance of the disparity, and the maintenance of relativities, to which I have referred at [216] - [218] above. It also reflects accepted sentencing patterns; that is, the length of sentences increases by degree across the spectrum and commensurately with the seriousness of offences and offending.

240 In my opinion, a sentencing judge who is sentencing an offender after 14 January 2009 to a fixed term of imprisonment (with or without a parole eligibility order) must reconcile two of the fundamental (and competing) sentencing principles I have mentioned.

241 The first principle is that the sentence imposed on the offender must be commensurate with the seriousness of the offence, and the seriousness must be determined by taking into account, relevantly, the statutory penalty for the offence (as well as the other factors set out in s 6(2) of the Sentencing Act). The application of this principle has been affected by s 3 of the 2008 Sentencing Amendment Act, read with cl 3A(4), as a result of which a sentencing judge, when sentencing an offender to a fixed term of imprisonment (with or without parole), is now empowered to impose up to the maximum penalty for an offence, and not merely up to the maximum penalty less one-third, as required by the transitional provisions.

242 The second principle is that there should not be any unjustifiable disparity in sentence between comparable offences and offenders. The application of this principle has been affected by cl 3A(3), as a result of which a sentencing judge, when sentencing an offender to a fixed term of imprisonment, is now empowered to take into account the minimum custodial period of the fixed term to be imposed, and the minimum custodial periods of fixed terms imposed before 14 January 2009, whether or not cl 2 applied to their imposition. In my opinion, the words 'whether or not clause 2 applied to their imposition' make plain that a sentencing judge may have regard to minimum custodial periods imposed during the operation of the transitional provisions and also to minimum custodial periods imposed before the commencement of those provisions. A curious feature of cl 3A(3), read with the definition of 'minimum custodial period', is that when a sentencing judge takes into account the minimum custodial period of the fixed term to be imposed, and the minimum custodial periods of fixed terms imposed before 14 January 2009, it appears to be necessary to assume that the offender being sentenced will in fact be released on parole at or about the time when he or she becomes eligible for release. Plainly, however, this assumption will be falsified in some cases. For example, an offender who has committed sex offences will not, under current practice, be released on parole if he or she denies having committed the offences in question and refuses to participate in sex offender treatment programmes. Clause 3A does not contemplate that a sentencing judge will endeavour to make some assessment as to the prospects of a particular offender being released on parole or the approximate date of his or her actual release.

243 The two competing and fundamental sentencing principles I have mentioned should be reconciled, in each case, as follows.

244 A sentencing judge who proposes to impose a fixed term of imprisonment on an offender (with or without a parole eligibility order) should, first and provisionally, determine the head sentence in the conventional manner; that is, by reference to the relevant facts and circumstances of the offence and the offender, and the relevant statutory and common law sentencing principles, including the statutory penalty for the offence in question, any comparable sentences imposed previously and any relevant sentencing patterns. The comparable sentences imposed previously and the relevant sentencing patterns are to be ascertained from the head sentences imposed:

(b) during the subsistence of the transitional provisions, but without the one-third reduction; and

245 It will then be necessary to consider the minimum custodial period of the head sentence calculated provisionally as set out in [244] above, and also the minimum custodial periods of fixed terms imposed for any comparable offences and under any relevant sentencing patterns, both before and after 31 August 2003. For the purposes of comparison, the minimum custodial period of a fixed term imposed while the transitional provisions were in force will be the minimum custodial period after the one-third reduction in the head sentence. Similarly, for comparison purposes, in considering the minimum custodial period of a fixed term imposed before 31 August 2003, account must be taken of the fact that there was a one-third remission of the head sentence pursuant to the legislative scheme for remission which was then in force.

246 The sentencing judge must endeavour, on the basis of all the relevant facts and circumstances of the particular offence and offender and the relevant statutory and common law sentencing principles, to arrive finally at a head sentence (with or without a parole eligibility order, as appropriate) which is commensurate with the seriousness of the offence and gives recognition to the evident Parliamentary intention that there should, in general, be some increase in the length of sentences where fixed terms of imprisonment are to be imposed. See [238] - [239] above. But any increase in a particular case must not be so great as to produce a result which is, in the particular circumstances, unjust after having regard to the minimum custodial term that the offender would have to serve, and the minimum custodial terms imposed for any comparable offences or under any relevant sentencing range (whether before or after 31 August 2003).

247 No doubt, new sentencing ranges and patterns will gradually emerge.

248 As to the fourth issue, it follows, in my opinion, from my analysis of the second and third issues, that a sentencing judge is bound, in every case, to have regard to minimum custodial periods imposed for any comparable offences or under any relevant sentencing range, whether before or after 31 August 2003, in finally arriving at the head sentence to be imposed when he or she proposes to sentence an offender to a fixed term of imprisonment (with or without parole).

249 The necessity for a sentencing judge to have regard to minimum custodial periods is underscored by the different effect on the length of head sentences and minimum custodial periods if, for example, all head sentences generally, or all head sentences for particular classes of offending, imposed after 14 January 2009 had been increased by 50% as a result of the abolition of the one-third reduction under cl 2(1). Under this scenario, the length of the head sentences would have been increased by 50%. However, an increase in the length of the head sentences by 50% would have resulted in the minimum custodial periods being increased, in most cases, by more than 50% and, in some cases, by 100%. This difference would have arisen because the period for which an offender may be on parole cannot exceed 2 years. See s 93(1) of the Sentencing Act which provides that, subject to s 94, a prisoner serving a parole term is eligible to be released on parole:

(a) if the term served is 4 years or less - when he or she has served one-half of the term; or

(b) if the term served is more than 4 years - when he or she has served 2 years less than the term.

For example, a head sentence of 4 years under the transitional provisions (having been reduced by one-third from 6 years), with a parole eligibility order, required the offender to serve 2 years in custody before becoming eligible for release on parole. If the head sentence of 4 years were to be increased to 6 years (a 50% increase) with parole, the offender would be required to serve 4 years in custody (an increase of 100%) before becoming eligible for release on parole. By way of further example, a head sentence of 8 years under the transitional provisions (having been reduced by one-third from 12 years) with a parole eligibility order required the offender to serve 6 years in custody before becoming eligible for release on parole. If the head sentence of 8 years were to be increased to 12 years (a 50% increase) with parole, the offender would be required to serve 10 years in custody (an increase of 66.6%) before becoming eligible for release on parole.

250 Section 93(1) of the Sentencing Act, in its current form, was inserted by the 2003 Sentencing Amendment Act. Like the transitional provisions, it came into operation on 31 August 2003. The previous s 93(1), in combination with the legislative scheme for remission, was not different in effect from the current s 93(1).

251 The approach to sentencing adopted by Howie J in Studenikin is not, with respect, apposite to sentencing in accordance with the 2008 Sentencing Amendment Act. The statutory text considered in Studenikin is materially different from the Western Australian provisions.

The proper approach to sentencing in accordance with the 2008 Sentencing Amendment Act

252 The proper approach to sentencing an offender to a fixed term of imprisonment for an offence, in accordance with the 2008 Sentencing Amendment Act, is as I have explained at [244] - [246] above.

253 Any increase in the sentencing ranges for offences will not be confined to the circumstance where an offender is sentenced to a fixed term of imprisonment for a single offence. It will necessarily be reflected in the imposition of fixed terms of imprisonment on offenders who commit multiple offences as a result of the conventional application of the 'one transaction' rule and the totality principle.

The re-sentencing of Mr Mallard: s 10 of the Sentencing Act

254 In my opinion, s 10 of the Sentencing Act does not apply to the re-sentencing of Mr Mallard by this court. Section 10 provides that if the statutory penalty for an offence changes between the time when the offender committed it and the time when the offender is sentenced for it, the lesser statutory penalty applies for the purposes of sentencing the offender. By s 4(1), the term 'statutory penalty' is defined, in relation to an offence, to mean the penalty specified by a written law for the offence. The 2008 Sentencing Amendment Act did not change the 'statutory penalty' for the offence created by s 304(2) of the Criminal Code or the offence created by s 317(1) of the Criminal Code. At all material times, the offence created by s 304(2) has carried a statutory penalty of imprisonment for 20 years and the particular offence committed by Mr Mallard against s 317(1) has carried a statutory penalty of 5 years' imprisonment. The 2008 Sentencing Amendment Act abolished the one-third reduction under cl 2(1) but did not increase the 'statutory penalty', as defined in s 4(1) of the Sentencing Act, for the offences in question.

The re-sentencing of Mr Mallard: this court's sentencing decision

255 The sentences imposed by the learned judge (including the order that the sentences be served concurrently) should be set aside.

256 The head sentence for count 1 must be commensurate with the seriousness of the offence; reflect the predominant sentencing considerations of punishment, personal deterrence and general deterrence; recognise that the offence is in the worst category of cases where a person, with intent to unlawfully cause bodily harm to any person, does any act as a result of which bodily harm is caused to that person, within s 304(2) and (3); reflect Mr Mallard's apparent failure to accept real responsibility for, or show genuine remorse, to any material extent (although he did, as I have mentioned, facilitate the trial process by making some admissions of fact); and accord some, but limited, weight to the mitigatory factors (namely, his rehabilitation during his most recent term of imprisonment and his family circumstances).

257 As I have mentioned, there is no 'tariff' or usual sentencing range for offences against s 304(2). The circumstances of the offending in Wallam, Yates and Redman are not relevantly comparable to the circumstances of Mr Mallard's offending.

258 My provisional view, before turning to cl 3A(3), is that a head sentence of 8 years' immediate imprisonment for count 1 would reflect the considerations I have summarised at [256] above.

259 A head sentence of 8 years for count 1, with a parole eligibility order, would require Mr Mallard to serve 6 years in custody before becoming eligible for release on parole. Although there is no 'tariff' or usual sentencing range for offences against s 304(2), and the sentencing dispositions in Wallam, Yates and Redman are not relevantly comparable, I consider that, after having regard to the period in custody that Mr Mallard would have to serve before becoming eligible for parole, a just sentencing outcome, in the present case, requires some reduction in the provisional head sentence for count 1.

260 After taking into account cl 3A (in particular, cl 3A(3) and (4)) and the circumstances of the offence and Mr Mallard, including aggravating and mitigating features, I would impose a term of immediate imprisonment of 7 years for count 1.

261 In my opinion, a total effective head sentence of 7 years and 6 months' immediate imprisonment is required properly to reflect the overall criminality involved in counts 1 and 4. I would achieve that result by reducing the sentence on count 4 from 1 year to 6 months, and ordering the sentence on count 4 to be served cumulatively on count 1.

262 Like the learned judge, I would order that the sentence on count 1 commence on 22 February 2008. A parole eligibility order should be made.

263 I would refuse Mr Mallard's application for leave to appeal against conviction on ground 2, and order that his appeal be dismissed.

264 I would allow the State's appeal against sentence, quash the sentences imposed by the learned judge, and substitute for them sentences as follows:

265 The sentence for count 4 is to be served cumulatively on the sentence for count 1. The sentence for count 1 is to commence on 22 February 2008. The total effective sentence is therefore 7 years and 6 months' immediate imprisonment. Mr Mallard is to be eligible for parole. He must serve 5 years and 6 months' imprisonment, calculated from 22 February 2008, before he becomes eligible to be considered for release on parole.

Postscript: the reasons of Owen, Wheeler and Pullin JJA in relation to the 2008 Sentencing Amendment Act and the survival, in substance, of 'truth in sentencing'

266 Since I have written the reasons set out above, I have received and read the proposed reasons for judgment of Wheeler and Pullin JJA, with whom Owen JA agrees. Also, I have received and read the proposed reasons of Miller JA, who agrees with me.

267 Although Owen, Wheeler and Pullin JJA agree with me and Miller JA that the State's appeal against sentence should be allowed, the sentences imposed by the learned judge should be set aside, and Mr Mallard should be re-sentenced by this court, this unanimity must not obscure the fundamental disagreement between Owen, Wheeler and Pullin JJA on the one hand, and Miller JA and I on the other, in relation to the important issue of principle in this appeal, namely, the proper construction, effect and application of the 2008 Sentencing Amendment Act.

(a) in the 'worst category' of cases, the 2008 Sentencing Amendment Act permits a sentencing judge to impose a sentence at, or close to, the maximum term available, without adjustment to ensure comparability of minimum custodial period (but, significantly, have not held that, in the 'worst category' of cases, the Amendment Act requires the sentencing judge to impose a sentence at or close to the maximum term);

(b) however, in all other cases (that is, in every case which is not within the 'worst category'), a sentencing judge must impose a sentence which will ensure consistency between the minimum custodial period to be served by the offender in question and the minimum custodial period that would have been served under the 'truth in sentencing' legislation embodied in the 2003 Sentencing Amendment Act or under the preceding sentencing legislation with the virtually automatic legislative scheme for remission.

269 On the reasoning and conclusions of Owen, Wheeler and Pullin JJA, the 2008 Sentencing Amendment Act does not require, and will not result in, any increase in the length of fixed terms of imprisonment for any offenders or offences, with the exception that where an offender has committed an offence in the 'worst category', the sentencing judge is now permitted to impose a sentence at, or close to, the maximum term. Their Honours merely acknowledge the possibility 'in the very long term' of 'a degree of increase in the length of sentences overall' as a consequence of the 2008 Sentencing Amendment Act.

270 Accordingly, even though s 3 of the 2008 Sentencing Amendment Act expressly repealed the 'truth in sentencing' legislation by deleting cl 2 of sch 1 to the 2003 Sentencing Amendment Act and cl 3A(4) expressly empowers a sentencing judge to impose a penalty up to the maximum penalty for an offence, Owen, Wheeler and Pullin JJA have ascribed to the Parliament an intention that the sentencing patterns (in particular, the length of sentences) established under the 'truth in sentencing' legislation are to continue and be applied where a sentencing judge is to impose a fixed term of imprisonment, with the exception that where the offending is in the 'worst category', the sentencing judge now has the discretionary power to impose a sentence at, or close to, the maximum term.

271 Criminal cases which fall within the 'worst category', for sentencing purposes, are rare. The approach mandated by Owen, Wheeler and Pullin JJA in relation to the sentencing patterns (in particular, the length of sentences) established under the 'truth in sentencing' legislation will therefore apply in the vast majority of cases.

272 The determination of the proper construction, effect and application of the 2008 Sentencing Amendment Act requires careful analysis, but the provisions are neither ambiguous nor obscure. In my opinion, and with respect to those who think differently, I am unable to accept that the Parliament can have intended that the sentencing patterns (in particular, the length of sentences) established under the 'truth in sentencing' legislation should continue to apply in the vast majority of cases. The existence of such an intention, notwithstanding the express repeal of the 'truth in sentencing' legislation combined with the empowering of a sentencing judge to impose the maximum penalty for an offence or any penalty below the maximum, would be remarkable, if not perverse.

273 In my respectful opinion, Owen, Wheeler and Pullin JJA have placed undue emphasis on the Parker Report (1979), the Dixon Report (1981) and the Hammond Report (1998), academic writings and the principle against unjustifiable disparity or in favour of consistency in sentencing. They have, with respect, placed insufficient emphasis on the critical source material, namely the statutory text of the 2008 Sentencing Amendment Act including cl 3A (which, of course, has primacy), and have given inadequate weight to the statutory sentencing principles set out in s 6(1) and (2) of the Sentencing Act and the well-established sentencing principle that the length of sentences increases by degree across the spectrum and commensurately with the seriousness of offences and offending.

274 In the present case, Owen, Wheeler and Pullin JJA have decided that Mr Mallard's offending against Mr Marklew was a 'serious case', but not in the 'worst category' of offences against s 304(2). By deciding that Mr Mallard should be re-sentenced on count 1 (that is, the offence against s 304(2)) to 6 years' immediate imprisonment, Owen, Wheeler and Pullin JJA must necessarily be of the view that this would have been an appropriate sentence under the 'truth in sentencing' legislation. They have referred to Byfield v The Queen [2002] WASCA 260; (2002) 133 A Crim R 307 and McMaster v The Queen [2004] WASCA 52; (2004) 144 A Crim R 428 as 'perhaps the closest' comparable cases. However, in my respectful opinion, these cases are distinguishable.

275 In Byfield, the appellant was convicted of attempted murder. He was sentenced to imprisonment for 12 years, reduced from 16 years on account of his plea of guilty at the earliest opportunity. A parole eligibility order was made. The 12-year sentence was equivalent to a sentence of 8 years' imprisonment under the 'truth in sentencing' legislation. The minimum custodial period he was required to serve was 6 years. The salient facts of the offending were these. The appellant and an accomplice saw the victim at an oval. They went to the appellant's house and obtained a piece of wood similar to an axe handle. They returned to the oval with the intention of assaulting the victim as retaliation for an alleged earlier incident. The appellant and his accomplice stopped their motor vehicle in front of the victim. They alighted and the accomplice struck the victim on the head with the piece of wood. He fell to the ground unconscious. The accomplice then struck the victim again with the piece of wood. One of these blows caused the victim to suffer a fractured skull. The appellant and his accomplice returned to their vehicle. The accomplice then deliberately drove the vehicle over the victim who was lying unconscious on the ground. This action fractured the victim's legs. The accomplice then drove the vehicle a short distance and there was a discussion between the two offenders. They decided to return to the oval to make sure the victim was dead. On their return, the victim was lying on the ground, not moving and discharging a large amount of blood. The accomplice then deliberately drove over the victim again at a speed of about 60 km per hour. The appellant and the accomplice left the area without taking any steps to seek assistance for the victim. The victim was extremely fortunate to have survived. He was in a coma at the Royal Perth Hospital for two months on life support. He underwent surgical repair for his severe and extensive injuries. Three months after the incident, the victim's left arm remained moderately weakened and reduced in function. He displayed significant residual cognitive impairments affecting his concentration span, short-term memory, judgment and insight. The victim was left with a significant cosmetic disfigurement due to his extensive facial fractures. He had limited movements of his right eye due to multiple cranial nerve lesions. The appellant's application for leave to appeal against sentence was dismissed. On any view, the offending in Byfield was significantly more serious than Mr Mallard's offending against Mr Marklew. In Byfield, the appellant intended to kill the victim, the maximum penalty for attempted murder is life imprisonment and the victim suffered massive injuries, which required hospitalisation for some months, and he was left with serious residual disabilities. By contrast, Mr Mallard intended 'merely' to cause Mr Marklew bodily harm, the maximum penalty for an offence against s 304(2) is 20 years' imprisonment and the injuries caused to Mr Marklew were materially less serious than those caused to the victim in Byfield. The offending in Byfield was, unquestionably, substantially more serious and the offender in that case deserved a much longer sentence.

276 In McMaster, the appellant was convicted, after a trial, of two counts of unlawfully doing grievous bodily harm to another with intent to do so. He had been acquitted of two counts of attempted murder. After an argument and some pushing and shoving between the appellant and some of his friends on the one hand, and the two victims on the other, in a night club, the appellant pulled out a concealed, loaded 22-calibre semi-automatic hand gun, deliberately pointed it at the victims and fired at them no less than five times. Two of the bullets hit the victims. One was shot in the right lower abdomen. The other was shot in the upper abdomen region just below his chest. The appellant was no more than 2 or 3 metres from the victims when he shot at them. The other shots

were intended to hit them. The fact that each was hit only once was attributable to the handgun being notoriously inaccurate even at close range. A young lady in the vicinity was struck in the neck by a small bullet fragment. Each of the victims could have died from their wounds if they had not been given medical treatment. The appellant was sentenced to 7 years' imprisonment for each offence. The sentences were equivalent to 4 years and 8 months under the 'truth in sentencing' legislation. The sentencing judge partly accumulated the two sentences to make a total of 9 years' imprisonment, which was equivalent to 6 years under the 'truth in sentencing' legislation. A parole eligibility order was made. Accordingly, the minimum custodial period required to be served by the appellant in respect of the total effective sentence imposed for both offences was 4 years. The offending in McMaster was more serious than the offending in the present case in that the offender in McMaster caused, and intended to cause, grievous bodily harm to the two victims, whereas Mr Mallard caused and intended to cause 'merely' bodily harm to Mr Marklew. The minimum custodial period required to be served by the appellant in McMaster (4 years) was less than the minimum custodial period which Miller JA and I would impose on Mr Mallard in relation to the offence against Mr Marklew (5 years), but identical to the minimum custodial period that Owen, Wheeler and Pullin JJA have decided to impose on that count.

277 As I have mentioned, Owen, Wheeler and Pullin JJA have decided that Mr Mallard's offending, while 'serious', was not in the 'worst category' of cases. On their reasoning and conclusions in relation to the proper construction, effect and application of the 2008 Sentencing Amendment Act, Owen, Wheeler and Pullin JJA must therefore have re-sentenced him on the basis of the sentencing principles applicable under the 'truth in sentencing' legislation.

278 In the circumstances, it appears to me, with respect, that, on the basis of such reasoning and conclusions, the sentence for count 1 and the total effective head sentence which Owen, Wheeler and Pullin JJA would impose are a little excessive. The 'truth in sentencing' legislation would have produced a sentence for count 1 in the order of 5 years and 4 months and a total effective head sentence in the order of 5 years and 10 months.

279 MILLER JA: I have had the opportunity of reading in draft the comprehensive judgment of Buss JA. I agree with that judgment in every respect, including (a) the proposed substitution of an effective sentence of 7 1/2 years' immediate imprisonment with eligibility for parole, and (b)

the approach to sentencing in accordance with the 2008 Sentencing Amendment Act.

280 I have had the opportunity of reading in draft the judgment of Wheeler and Pullin JJA, with which Owen JA agrees. I regret that I am in fundamental disagreement with Owen, Wheeler and Pullin JJA's view of the effect of the 2008 Sentencing Amendment Act. For the reasons that Buss JA has given, I consider that the proper approach to sentencing in accordance with that Act is that set out at [244] - [246].

281 The view of Owen, Wheeler and Pullin JJA seems to me to perpetuate the myth of 'truth in sentencing' which the 2008 Sentencing Amendment Act was intended to dispel. The practical result of their Honours' approach is that in all but cases that fall into the worst category, the approach to sentencing which existed prior to the enactment of the 2008 Sentencing Amendment Act is likely to prevail. Sentences will continue to be artificially low in all but the worst cases. There will also be a substantial (and, in my view, unacceptable) gap between sentences imposed in all but the worst category of cases and those imposed in the worst category. There will effectively be two sentencing regimes: one for the majority of cases and one for those which fall into the worst category. In my opinion, Parliament did not intend that this gap in sentencing would result. It is contrary to the principles of sentencing which generally result in a gradual increase in sentencing reflecting the relevant seriousness of offences and the circumstances of offending and offenders across the sentencing spectrum (see Buss JA at [239]). Parliament could not have contemplated a 'substantial and abrupt increase' in sentences for offences classified within the worst category rather than a gradual increase in sentencing.

Post 31 August 2003, without reduction by transitional provisions

Maximum head sentence served (two-thirds of head sentence s 95)