Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : STATE OF WESTERN AUSTRALIA -v- WALLAM

Appeal - Prosecution appeal against sentence - Principles - Applicability of s 41(4)(b) of Criminal Appeals Act 2004 (WA) to prosecution appeals - Whether provision operates retrospectively - Whether section operates on any right or interest vested in respondent

Criminal law and procedure - Sentence - Doing bodily harm with intent to harm - Sentence imposed cumulatively upon sentence for armed robbery - Whether manifestly inadequate - Totality principle

Criminal Appeals Act 2004 (WA), s 41(4)(b)

Criminal Law and Evidence Amendment Act 2008 (WA), s 39

Interpretation Act 1984 (WA), s 37

Sentencing Act 1995 (WA), s 37

Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1 cl 2

1 McLURE JA: This is a State appeal against sentence. The respondent was convicted after pleading guilty to one count of armed robbery contrary to s 392 of the Criminal Code (WA) (Code) and one count of doing an act which caused bodily harm with an intent to harm contrary to s 304(2) of the Code.

2 The respondent was sentenced to 2 years and 6 months' imprisonment for the offence of armed robbery and 12 months' imprisonment for the offence of causing bodily harm with intent. In determining the sentences for both offences, the sentencing judge applied cl 2(1) of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (Sentencing Repeal Act). He ordered the sentences to be served cumulatively resulting in a total effective sentence of 3 years and 6 months. The appellant appeals on the single ground that the sentence of 12 months' imprisonment for the offence of causing bodily harm with intent is manifestly inadequate. The circumstances of the offences and of the offender are sufficiently set out in the reasons for judgment of Murray AJA and not repeated here.

3 Prior to the hearing of the appeal, the State made an application under s 37 of the Sentencing Act 1995 (WA) (Sentencing Act) to recall the order imposing the sentence for the offence of causing bodily harm with intent. Clause 37(1) provides:

If a court sentences an offender in a manner that is not in accordance with this Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is.

4 The State contended the sentencing judge erred in applying cl 2(1) of Sch 1 of the Sentencing Repeal Act to the sentence imposed for the offence of causing bodily harm with intent. Schedule 1 of the Sentencing Repeal Act contains transitional provisions. Clause 2(1) of Sch 1 requires that where the court proposes to impose a fixed term the court must impose a term that is two-thirds of the fixed term that it would have imposed under the 'old provisions', being a reference to inter alia the Sentencing Act as it stood prior to the commencement of the Sentencing Repeal Act on 31 August 2003.

5 Section 304 of the Code was inserted by the Criminal Code Amendment Act 2004 (WA) (the 2004 Code Amendment Act) which came into operation on 21 May 2004. The maximum penalty for a breach of s 304(2) is 20 years' imprisonment.

6 On the application under s 37(1) of the Sentencing Act, the sentencing judge accepted that cl 2(1) of the transitional provisions did not apply for the reasons given by the State. The trial judge encapsulated those reasons as follows:

Counsel for the state has therefore submitted in effect that as the intent to harm offence did not exist prior to the enactment of the transitional provisions no penalty could have been imposed prior to the Sentencing Act amendments which took effect on 31 August 2003.

Accordingly there was no need to give consideration to a notion of what was the sentence under the so-called old regime and no reduction of the sentence by one-third for the intent to harm offence should have been given.

7 There is no cross-appeal from the decision of the sentencing judge on this issue. However, it has been considered by Murray AJA who agrees with the sentencing judge that cl 2(1) has no application to the s 304(2) offence. I have a contrary view. As the issue is relevant to any re-sentencing by this court, the matter must be determined. Although the State did not make oral submissions on the subject, I have had regard to its written submissions in the appeal and the oral submissions to the sentencing judge on its s 37(1) application.

8 It is necessary to refer to relevant clauses of the transitional provisions.

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.

10 The term 'old provisions' is defined to mean the Sentencing Act and the Sentence Administration Act 1995 (WA) as they would have applied had the sentencing amendments not come into operation.

11 The 'sentencing amendments' referred to in the definition of old provisions means the amendments to the Sentencing Act effected by Pt 2 Div 4 of the Sentencing Repeal Act and the repeal of the Sentence Administration Act 1995.

12 The term 'new provisions' means the Sentencing Act as amended by the sentencing amendments and the Sentence Administration Act 2003 (WA).

13 Clause 2(4) and cl 2(5) identify the situations when a court does not have to apply cl 2(1). They materially provide:

(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.

14 The history and purpose of the transitional provisions of the Sentencing Repeal Act were considered in Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [57] - [71]. In essence, the effect of Pt 2 Div 4 of the Sentencing Repeal Act and the repeal of the Sentence Administration Act 1995 was to abolish the virtually automatic one-third remission on sentences. The purpose of cl 2(1) was to ensure that the abolition occurred without increasing the amount of time spent in custody by sentenced offenders.

15 The State and thus the sentencing judge focussed on the question of what penalty could have been imposed prior to the Sentencing Repeal Act coming into force on 31 August 2003. It is the case that the term 'old provisions' is a reference to the Sentencing Act and the Sentencing Administration Act as they were prior to the commencement of the Sentencing Repeal Act. However, the court must determine the sentence on the deemed basis that the old provisions continue to apply as at the date of sentencing. There is nothing in the language of cl 2(1) which excludes from its scope offences created after the commencement of the Sentencing Repeal Act.

16 The relevant former statutory provisions in respect of remission and parole were not taken into account in determining the length of the sentence of imprisonment: Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348; Jarvis v The Queen (1993) 20 WAR 201; Kirby v The Queen [2003] WASCA 239. For present purposes, the only relevant effect of applying the old provisions as at the date of sentencing is that the sentence would not be reduced by one-third pursuant to cl 2(1) of the transitional provisions.

17 In summary, the sentencing judge erred in focussing on the old provisions prior to the commencement date of the Sentencing Repeal Act at which time there was no offence of causing bodily harm with intent and thus no relevant penalty. Under cl 2(1) the old provisions are deemed to apply 'at the time of sentencing' when of course the s 304(2) offence was in existence.

18 Accordingly, the question is whether cl 2(5)(a) covers a new offence and associated penalty and, if not, whether there is an implied exclusion of new offences from cl 2(1). Clause 2(5)(a) refers to the amendment of the statutory penalty. Whether or not there is an 'amendment' is a matter of substance not form: Attorney General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545. If the material elements of the offence charged would have been an offence under the former provisions of the Code with a different penalty, cl 2(5)(a) of Sch 1 would apply.

19 Section 304 of the Code replaced a number of specific, narrowly formulated offences in the Code. Section 304(1) is equivalent to the former s 306 of the Code. However, there was no former offence equivalent to s 304(2). There being no such equivalent offence before the insertion of s 304(2), it cannot be said that the penalty for that offence has been amended since the new provisions commenced. Accordingly, cl 2(5)(a) has no application.

20 The purpose behind the exemption in cl 2(5)(a) is manifest. An amendment to the penalty would be an indication of the legislature's considered view that, having regard to the penalties imposed by the courts which incorporate the effect of cl 2(1), the existing maximum penalty is inappropriate and requires adjustment.

21 The same may not be true of the penalty for a new offence. Section 304(2) provides an excellent example. 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 which preceded the transitional provisions of the Sentencing Repeal Act. The second reading speech makes no express reference to the proposed penalty or to the application of cl 2(1) of Sch 1.

22 An offender is significantly disadvantaged if cl 2(1) does not apply. I see nothing in the language or purpose of the transitional provisions that expressly or impliedly indicates a legislative intent that cl 2(1) is not intended to apply to new offences that are created after the commencement of the new provisions. It is reasonable to expect the legislature to consider that issue at the time of its deliberations on an appropriate penalty for the new offence and expressly exclude cl 2(1) if that was its intention.

23 For these reasons, the sentencing judge erred in concluding that cl 2(1) of the transitional provisions does not apply to an offence under s 304(2) of the Code. However, if the sentencing judge had erred by wrongly applying cl 2(1) of the transitional provisions, such an error would enliven the discretion in s 37(1) of the Sentencing Act.

Scope and application of s 41(4)(b) of the Criminal Appeals Act.

24 Section 41(4) of the Criminal Appeals Act 2004 (WA) provides:

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.

25 Section 41(4) was inserted by the Criminal Law and Evidence Amendment Act 2008 (WA) (2008 Amendment Act) which came into operation on 27 April 2008. This appeal was commenced on 3 January 2008.

26 The State contended that the purpose and effect of s 41(4)(b) was to change the existing common law principles applicable to a State appeal against sentence. Those principles are conveniently summarised in The State of Western Australia v Collier [2007] WASCA 250 [18] - [23].

27 Section 41(4) applies where an appealable error has been established. The relevant aspect of the common law principle in this case is that when the court decides to re-sentence an offender on a State appeal, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance: Collier [20].

28 The bill for the Act which became the 2008 Amendment Act was amended during its passage through Parliament. The Attorney-General moved for the insertion of the provision which became s 41(4) and provided an explanation which leaves no room for doubt as to the legislative intention in enacting s 41(4)(b). The Attorney General said:

State appeals against sentences are invariably from sentences perceived to be inadequate in the sense of not being appropriately severe. In recent years appeal courts have asserted certain discretion to refuse to intervene in the sentencing process in a prosecution appeal, even when an error has been shown by the appeal. The courts exercise a discretion not to intervene, having regard to the so-called double jeopardy, and having the offenders stand the sentence twice. For the same reason, even if a re-sentencing takes place, the appellate court will often impose a lesser sentence than would otherwise have been appropriate. The government is concerned that this approach is now being taken regularly, with the result that sentences that have been shown to be inadequate remain uncorrected. The amendment to the Criminal Appeals Act 2004 prevents resort to double jeopardy as a basis of refusal to impose a different sentence when a prosecution appeal should otherwise have succeeded, and the discretion to impose a lesser sentence than would otherwise be appropriate on such appeals.

In other words, the courts appear reluctant to increase the sentence to an appropriate measure when a court has, in the first instance, imposed what is recognised to be an inadequate sentence based on what I thought was woolly thinking around the so-called double jeopardy principle that someone should not be exposed to different sentencing. I think that is a reluctance to do justice and it needs to be corrected. What is proposed to be inserted with this amendment is a direction to the court that, when dealing with an appeal against sentence, it should not place weight on the fact that this is an appeal against sentence, or any operation of the double jeopardy rule with respect to the person being sentenced twice for the same offence (Western Australia, Parliamentary Debates, Legislative Assembly, 2 November 2006, 8216).

29 This application of the double jeopardy principle to Crown appeals against sentence, suggested by the Attorney as being of recent origin and based on woolly thinking, has been part of the law of this State since the introduction of Crown appeals against sentence and is a principle endorsed by the High Court (Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293, 310; Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227, 234; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 340 - 341). The principle has never applied to an appeal by an offender against sentence. However, the language of s 41(4)(b) is clearly based on judicial statements of the principle and is intended to exclude the double jeopardy principle as a relevant consideration in the appeal court's determination of the sentence that should be imposed on a State appeal.

30 The next question is whether s 41(4)(b) applies to the determination of this appeal which was commenced prior to the commencement of the section. There is no relevant transitional provision in the 2008 Amendment Act. Where a written law repeals an enactment, s 37 of the Interpretation Act 1984 (WA) applies. That provision reflects the common law which also applies where a written law repeals common law rights or liabilities.

31 In the absence of a clear statement to the contrary, a statute will be assumed not to have retrospective operation: Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261; Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188, 194. However, the general rule that statutes are not to be given retrospective operation does not apply to statutory provisions that are concerned with matters of procedure only: Maxwell v Murphy (267).

32 The correct question is whether the provisions operation is merely procedural in the sense that it would not, if given unconfined operation, affect pre-existing substantive rights or liabilities: Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; (1995) 183 CLR 595, 615; Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, 518. As stated by Mason CJ in McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1, 26 - 27, rules which are directed to governing or regulating the mode or conduct of court proceedings are procedural and all other provisions or rules are to be classified as substantive. This statement was endorsed by the High Court in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503.

33 As the court explained in Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, 518:

The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation.

34 The question of what is an 'accrued right' for the purpose of the presumption against retrospectivity was considered by this court in Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88 [11] - [34]. I note in passing that obiter comments of the court on that subject in Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131; (2001) 25 WAR 1 were regarded as inconsistent with Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 and not followed in Barminco [33].

35 It is necessary to identify the relevant 'right' in question. Immediately prior to the commencement of s 41(4)(b), the State had, and had exercised, its right to appeal against the sentence imposed on the appellant (s24(1) of the Criminal Appeals Act). Both the State and the offender had a right to have the appeal against sentence determined in accordance with the substantive statutory and common law rules relating to the sentencing of offenders, both by the trial judge and, if the appeal is successful, by the appeal court. Until the commencement of s 41(4)(b), the principles relating to State appeals were mandatory relevant considerations which had a substantive effect on the sentence to be imposed. See Holyoak v The Queen (Unreported, WASCA, Library No 950465, 7 September 1995) (32); R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368. The right to be re-sentenced in accordance with existing sentencing principles had accrued, at the latest, by the commencement of the appeal. Section 41(4)(b) changed the law so that a mandatory relevant consideration to the offender's benefit became a mandatory irrelevant consideration.

36 Section 41(4)(b) is substantive not procedural and ought not be given a retrospective operation because it affects an accrued substantive right of the respondent. The usual principles relating to State appeals must be applied.

37 The sentencing judge at the initial sentencing hearing, applying cl 2(1) of the transitional provisions, imposed a term of 12 months (18 months under the old provisions) for the offence of causing bodily harm with intent. After considering totality, the sentencing judge ordered that the terms of imprisonment be served cumulatively resulting in a total sentence of 3 years and 6 months.

38 At the hearing of the s 37 application, the sentencing judge accepted that cl 2(1) of the transitional provisions did not apply in which event he erred in relying on the transitional provisions to reduce the sentence from 18 months to 12 months. However, applying the same totality principle he considered at the initial hearing, the sentencing judge concluded that a total effective sentence of 3 years and 6 months was appropriate and that was achieved by reducing the otherwise appropriate sentence of 18 months for the offence of causing bodily harm with intent to 12 months and ordering that sentence to be served cumulatively. It was not a ground of appeal that the sentencing judge used the totality principle as a means of neutralising cl 2(1) of the transitional provisions (see Hapke v The State of Western Australia [2006] WASCA 188 [4]).

39 It is accepted in this State that in order to determine whether a sentence is manifestly inadequate (or excessive) it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender.

40 Section 304(2) of the Code is unusually wide in its scope. It provides:

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.

41 The phrase 'intent to harm' is defined in s 304(3) which provides:

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.

42 As s 304(2) covers a wide variety of conduct, the seriousness of which may vary greatly, little can be drawn from the fact that the maximum penalty is 20 years' imprisonment. It is to be contrasted with s 294 of the Code which has a maximum penalty of 20 years for the offence of doing grievous bodily harm with intent to maim, disfigure or disable.

43 The State contended that s 304(2) creates an offence of causing bodily harm with intent to unlawfully endanger the life, health or safety of, any person. It is unnecessary to determine that question of construction. The sentencing judge in this case did not make a finding that the respondent had an intent to unlawfully endanger the life, health or safety of, any person. Indeed, the State did not press for such a finding. The State had originally charged the respondent with attempted murder contrary to s 283 of the Code but accepted a plea of the lesser and alternative offence under s 304(2) of the Code. In the absence of a finding by the sentencing judge as to the respondent's relevant intent, the parties accept that the respondent was sentenced, and should be sentenced, on the basis that he had an intent to cause bodily harm. Thus, the offence is substantially less serious than the offence of causing grievous bodily harm with intent to maim, disfigure or disable considered in Stephens v The State of Western Australia [2005] WASCA 98.

44 On the other hand, the circumstances of the s 304(2) offence are high on the scale of seriousness of crimes of the type. The respondent deliberately drove his vehicle at the complainant with the intention of causing bodily harm. The potential for more serious harm was manifest. The respondent engaged in a random, deliberate course of conduct intended to intimidate and inflict bodily harm on a person the respondent did not know and who had done nothing to justify or even reasonably explain the respondent's conduct. In addition, the respondent had a lengthy criminal record and no remorse for his victim or his conduct. The respondent's relative youth and plea of guilty are mitigatory. His seriously disadvantaged and deprived background may explain the man that he has become, but there is little to indicate that he aspires to anything different or has any insight into the gravity of his departure from accepted norms of civilised behaviour. By any measure, the sentence of 12 months (18 months under the old provisions) is manifestly inadequate. I would impose a sentence of 2 years and 4 months under the new provisions, being 3 years and 6 months under the old provisions. In reaching that determination, I have applied the principles relating to State appeals against sentence.

45 As the offence was separate and distinct from the armed robbery, prima facie the terms of imprisonment for both offences should be made cumulative. There remains the issue of totality.

46 Differing views were expressed by this court's predecessor, the Court of Criminal Appeal, as to the rationale and scope of the totality principle. Murray AJA continues to advance in this case the views he expressed in Jarvis v The Queen (1993) 20 WAR 201, 213. His views differ in material respects from those articulated by Anderson J in a number of cases, including Punch v The Queen (1993) 9 WAR 486, 502 - 503; Jarvis (215 - 216); Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999); Woods v The Queen (1994) 14 WAR 341. In particular, according to Anderson J (1) an aggregate sentence may breach the totality principle even if it cannot be described as crushing (Jarvis at 216); (2) there is a second limb of the totality principle relating to crushing sentences (Punch at 502); and (3) in determining whether the aggregate sentence is a just and appropriate measure of the total criminality, regard is had to the circumstances of the case, including those referrable to the offender personally (Woods at 352). These principles have been accepted as correct by the Court of Appeal. The principles were recently summarised in Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26]. This court has yet to resolve the conflict as to the rationale of the totality principle.

47 We are here concerned with the first limb of the totality principle which requires that the total effective sentence bear a proper relationship to the overall criminality of the conduct as a whole. The total criminality of the respondent's conduct requires that the sentences be served cumulatively. Accordingly, I would allow the appeal, set aside the sentence imposed by the sentencing judge for the offence of causing bodily harm with intent and in lieu thereof impose a term of 2 years and 4 months to be served cumulatively with the term of imprisonment imposed for the armed robbery. I would not interfere with the parole eligibility order.

48 MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of McLure JA and Murray AJA. I agree generally with the reasons of Murray AJA, save for some aspects of his Honour's analysis of s 41(4)(b) of the Criminal Appeals Act 2004 (WA). I agree that the sentence of 12 months' imprisonment imposed for the offence of doing bodily harm with intent should be set aside, and in lieu thereof a sentence of 3 years' imprisonment imposed. This should be served cumulatively upon the sentence of 2 1/2 years' imprisonment imposed for armed robbery, so that the respondent is required to serve an aggregate term of 5 1/2 years' imprisonment, backdated to 11 September 2006 and with an order for eligibility for parole.

The provisions of s 41(4)(b) of the Criminal Appeals Act (2004) (WA)

49 Murray AJA has traced the circumstances in which s 41(4)(b) was introduced into the Criminal Appeals Act by s 39 of the Criminal Law and Evidence Amendment Act 2008 (WA). This provision was proclaimed to commence on 27 April 2008, being a date prior to the hearing of this appeal.

50 Section 41(4) of the Criminal Appeals Act now reads:

(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.

Principles relating to Crown appeals generally

51 Prior to 27 April 2008, clear principles had been developed by the courts in relation to consideration of Crown appeals against sentence. In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Kirby J described these principles as being based in 'reasons of legal history and policy'. His Honour stated the principles in the follow terms:

For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time-honoured concepts' [Peel v The Queen [1971] HCA 59; (1971) 125 CLR 447 at 452] http://thomsonnxt4/links/Handler.aspx?tag=03f4bf24c02618d0a697d87d743152ff&product=clof the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a 'matter of principle' [Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 310]http://thomsonnxt4/links/Handler.aspx?tag=ef644cfd4031d2593e148d6a0a178040&product=cl, such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced [Whittaker v The King [1928] HCA 28; (1928) 41 CLR 230 at 248, per Isaacs J (diss); cf R v Tait (1979) 46 FLR 386 at 388-390; 24 ALR 473 at 476 - 477; Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 at 234; R v Grein [1989] WAR 178 at 180; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299]http://thomsonnxt4/links/Handler.aspx?tag=2d53920fc0880fdd90a7ec3c42e539b0&product=clhttp://thomsonnxt4/links/Handler.aspx?tag=f890dba15d5abdb6fe558c4f661d695f&product=flhttp://thomsonnxt4/links/Handler.aspx?tag=0809751aaa913690af14b4de4abf00cb&product=clhttp://thomsonnxt4/links/Handler.aspx?tag=77e7e1d72f9ef96e57ad4c91c3ff9b79&product=cl. The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences [A consideration acknowledged in the CCA judgment at 2 by reference to R v Peterson [1984] WAR 329 at 330-331; cf R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522]. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences. [62]

52 There are a number of statements of principle contained within this passage. The first is that Crown appeals should be a comparative rarity. The second is that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time. The third is that where the Crown reveals a sentence to be manifestly inadequate, it has been conventional for an appellate court to impose a substituted sentence towards the lower end of the range. In the end, these statements merge into one key principle, which is that because a Crown appeal puts a prisoner in jeopardy of punishment for a second time, there is an attitude or policy of restraint in relation to Crown appeals. They will not succeed as easily as a prisoner's appeal against sentence may.

53 These principles have since be restated in considerable detail by Steytler P [18] - [23] (McLure and Miller JJA concurring) in The State of Western Australia v Collier [2007] WASCA 250.

54 The principles have now changed by reason of the introduction into the Criminal Appeals Act of s 41(4)(b). I agree with McLure JA that s 41(4)(b) now excludes the double jeopardy principle as a relevant consideration in the appeal court's determination of the sentence that should be imposed on a State appeal.

55 Should it be necessary to have regard to Parliamentary Debates to assist in an understanding of the meaning of s 41(4)(b) (see Interpretation Act s 19), I would refer to the speech of the Hon Attorney-General Mr J A McGinty (Western Australia, Parliamentary Debates, Legislative Assembly, 2 November 2006, 8216), where the Attorney-General said:

State appeals against sentences are invariably from sentences perceived to be inadequate in the sense of not being appropriately severe. In recent years appeal courts have asserted certain discretion to refuse to intervene in the sentencing process in a prosecution appeal, even when an error has been shown by the appeal. The courts exercise a discretion not to intervene, having regard to the so-called double jeopardy, and having the offenders stand the sentence twice. For that same reason, even if a re-sentence takes place, the appellate court will often impose a lesser sentence than would otherwise have been appropriate. The government is concerned that this approach is now being taken regularly, with the result that sentences that have been shown to be inadequate remain uncorrected. The amendment to the Criminal Appeals Act 2004 prevents resort to double jeopardy as a basis of refusal to impose a different sentence when a prosecution appeal should otherwise have succeeded, and the discretion to impose a lesser sentence than would otherwise be appropriate on such appeals.

In other words, the courts appear reluctant to increase the sentence to an appropriate measure when a court has, in the first instance, imposed what is recognised to be an inadequate sentence based on what I thought was woolly thinking around the so-called double jeopardy principle that someone should not be exposed to different sentencing. I think that is a reluctance to do justice and it needs to be corrected. What is proposed to be inserted with this amendment is a direction to the court that, when dealing with an appeal against sentence, it should not place weight on the fact that this is an appeal against sentence, or on any operation of the double jeopardy rule with respect to the person being sentenced twice for the same offence.

The interpretation that I have placed upon s 41(4)(b) is consistent with this expression of intention on the part of the Attorney-General.

Does the section have only a limited operation?

56 I am unable to agree with Murray AJA that s 41(4)(b) has a limited operation in relation to prosecution appeals, leaving substantially unaffected the general principle by which the court will be guided in its approach to an appeal against sentence by the prosecution [121]. In my opinion, the subsection means and has the effect that the attitude of restraint formerly applicable to Crown appeals because of the double jeopardy principle has gone and an appeal by the prosecution (now the State of Western Australia) is to be dealt with in accordance with the same principles as apply to appeals by sentenced persons.

Are the provisions of s 41(4)(b) retrospective in effect?

57 It is necessary to determine whether the established principles in relation to Crown appeals gave to the respondent prior to 27 April 2008 any right which the law had defined by reference to past events. That is because of the general rule of the common law that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events: Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 (Dixon CJ).

58 In Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515 the court (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) stated the general principle at 581 - 589 as follows:

The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations.

Where a period is limited by statute for the taking of proceedings and the period is subsequently abridged or extended by an amending statute, the amending statute should not, unless it is clearly intended, be given a retrospective operation to revive a cause of action which has become barred or to deprive a person of the opportunity of instituting an action which is within time. If it were given a retrospective operation, the amending legislation would operate so as to impair existing, substantive rights - either the right to be free of a claim or the right to bring a claim - and such an operation could not be said to be merely procedural. (518 - 519)

59 The court recognised that simple classification of a statute as 'either procedural or substantive' did not necessarily determine whether it may have a retrospective operation (at 519). They added:

But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by Dixon CJ in Maxwell v Murphy, that no one has a vested right in any form of procedure.

60 The general principle against retrospective application of amending legislation is also incorporated in s 37(1)(c) of the Interpretation Act 1984 (WA) which reads:

(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -

(a) ...

(b) ...

(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;

61 On 14 December 2007, Hasluck J sentenced the respondent to imprisonment for 12 months for the offence of causing bodily harm with intent to harm. This sentence was reconsidered by Hasluck J upon a subsequent application made pursuant to the provisions of s 37(1) of the Sentencing Act 1995 (WA), but there was no change in the sentence. It is unnecessary to deal with the circumstances in which Hasluck J resolved to leave the sentence as it was.

62 On 3 January 2008, the appellant lodged a notice of appeal against the adequacy of the sentence imposed by Hasluck J for the offence of causing bodily harm with intent to harm. At that time, the respondent was entitled to expect that upon the hearing of the appeal, the principles stated by Kirby J in Dinsdale would apply. He would, to some extent, be protected against the jeopardy of being punished for a second time. The question is whether that gave him a right which the law had defined by reference to past events. It is not so much a question whether the amendment to s 41(4) of the Criminal Appeals Act occasioned by s 39 of the Criminal Law and Evidence Amendment Act was procedural or substantive. The question is whether the amendment affected a right which by law had reposed in the respondent.

63 In my opinion, there was no such right. There was a body of law which called for restraint on the part of appellate courts in dealing with Crown appeals against sentence and, to that extent, the respondent was entitled to believe that ordinarily, on the hearing of the appeal which had been commenced by the appellant, he would be in a better position than would the Crown as respondent to an appellant's appeal. The reasons for this are contained within Kirby J's judgment in Dinsdale (at 62).

64 Whatever advantage the respondent may have enjoyed prior to 27 April 2008, by reason of the general attitude of restraint towards Crown appeals, it did not create for him any substantive right. He was not entitled on the hearing of an appeal to claim any particular right at all. He simply had an advantage that the Crown did not enjoy in appeals brought against it.

65 When s 41(4)(b) was introduced into the Criminal Appeals Act with effect from 27 April 2008, it did not affect any right which the law had defined for the respondent by reference to past events (Maxwell v Murphy per Dixon CJ at 267). It did not impair any existing substantive right (Rodway v The Queen at 519). It stated that when the appellant's appeal came to be heard, the appeal court must not take into account the fact that its decision might mean that the respondent was again sentenced for the offence. This was a shorthand way of saying that the restraint imposed upon Crown appeals because of the double jeopardy principle was inapplicable to the hearing of this appeal. The amendment abolished an advantage which the respondent may have enjoyed prior to 27 April 2008, but which he no longer did. Because, in my opinion, no substantive or no right which the law had defined by reference to past events was affected, the respondent's appeal, when it was heard on 14 May 2008, was to be conducted in accordance with the provisions of s 41(4)(b) and no account was to be taken of the 'double jeopardy principle'. The former restraint upon Crown appeals, based as it was on principles of legal history and policy, had been abolished.

66 The principles to be applied in a State appeal against sentence are the same as those to be applied in an appeal by a sentenced person. Those principles were stated as long ago as 1936 in House v The King [1936] HCA 40; (1936) 55 CLR 499 by Dixon, Evatt and McTiernan JJ in the following terms:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 504 - 505

67 The principles have been restated many times, including in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665:

[A] court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice. [15]

68 In the present case, the sentence for the offence of causing bodily harm with intent to harm was clearly unreasonable and manifestly inadequate for the reasons expressed by Murray AJA. The discretion was thus required to be exercised afresh by this court and, in my opinion, the sentence of 3 years' imprisonment properly addresses the unreasonableness of the sentence previously imposed.

70 The respondent was born in 1984. He was a young man of 22 years of age when, on 25 July 2006, he committed an offence of armed robbery by stealing a mobile telephone and a wallet, with violence, while pretending to be armed with a knife.

71 The matter ultimately came before this court, listed for a trial to commence on 5 December 2007. The respondent had been in custody awaiting trial in relation to that matter, and another matter, since 11 September 2006. On the morning of the trial he pleaded guilty.

72 On 14 December 2007 he was sentenced for this offence to imprisonment for 2 years and 6 months, backdated to 11 September 2006. It was a sentence arrived at by reducing by one-third the sentence of 3 years and 9 months imprisonment which the trial judge said he would have imposed were it not for the transitional provisions applicable under Sch 1, cl 2(1) of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).

73 That legislation is sufficiently referred to, for present purposes, by saying that it removed from the law the automatic remission of one-third of a sentence of a fixed term which formerly applied in certain circumstances. The consequent increase in prisoner numbers was avoided by requiring courts to reduce by one-third the term which they would otherwise have thought would be the sentence required for the proper punishment of the crime or crimes committed. The legislation has been described as 'truth in sentencing' legislation. The detail of its provisions need not be referred to at this stage.

74 The sentence for the robbery is not a subject of the present appeal, but it is necessary to refer briefly to the facts as found by the sentencing judge. The respondent, as I have said, was a young man aged 22. He was at the time subject to an intensive supervision order and a community based order imposed upon him for a period of 15 months, on 2 June 2005,

for a series of offences of dishonesty, notably an offence of aggravated burglary.

75 At about 10.15 pm on 25 July 2006, the victim, a young man, a student, was walking across a park, on his way home from a train station. He was observed by the respondent, who was standing in a group of people in the park adjacent to a house where he had been visiting the occupants. The respondent ran to the victim and demanded drugs. He assaulted the victim by punching him to the head. The respondent demanded the other man's mobile phone and his wallet. A struggle ensued, the result of which was the theft of the phone and the wallet, which contained about $40 and various credit cards. The theft was achieved when the respondent, by action and words, threatened to stab his victim with a knife. He did not have a knife, but as the sentencing judge observed, that mattered not at all because, from the conduct of the respondent, the victim thought he may have had a knife and submitted to his demands in fear.

76 Shortly after the commission of that offence, on 31 July 2006 the respondent was in Northam when he committed a further offence, again an offence of violence, this time under s 304(2)(a) of the Criminal Code, an offence of doing an act to cause bodily harm to another with intent to harm. The harm intended was not specifically found by the sentencing judge, but in my view the intention was to unlawfully cause bodily harm to the victim. This is brought within the concept of 'harm' for the purposes of the offence, by s 304(3)(a). Subsection (3) sets out a wide range of different types of harm, any of which will satisfy the requirement to establish an offence under the section. This is a serious crime, punishable by imprisonment for 20 years. It is an offence which was introduced into the Code for the first time by the Criminal Code Amendment Act 2004, operative from 21 May 2004.

77 The respondent was originally charged with the offence of attempted murder contrary to the Code, s 283, which prescribes a maximum penalty of life imprisonment. That is, of course, an offence of long standing in the Code. The respondent was indicted for attempted murder on 29 January 2007. Conviction of an offence defined in s 304 of the Code is an alternative open on that indictment. A plea of guilty to that alternative offence was first made in this court on 30 August 2007, following some negotiation with the prosecution as to the facts and the informal mediation process which now applies to all matters coming before this court. The plea was therefore more timely than was the case in relation to the earlier offence of armed robbery, but was still delayed.

78 Not only is the offence under s 304 serious in itself, but in my view, having regard to the facts as found by the sentencing judge, it was a grave offence in the circumstances of its commission. 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.

79 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.

80 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.

81 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.

82 When the respondent spoke about what had happened to a community corrections officer for the purpose of a pre-sentence report dated 30 November 2007, he admitted, in the words of the report, 'to having an anger management problem whilst drinking alcohol'. But he also attempted to justify his actions by saying that the victim was generally known as a 'trouble-maker'. He said that he had been provoked when the missile was thrown at the car and said that he did not intend to kill the victim, but merely wanted to hurt him. Therefore, he said, he was 'only' travelling at about 40 kph.

83 Neither to the community corrections officer, nor earlier to the police when he was interviewed, did the respondent express any remorse. Indeed, he told the police of various matters within his family which had resulted in animosity towards the complainant. When asked about the extent of that ill-feeling he said, 'I hope the cunt died.' When asked why he did not stop to see what injuries the victim had and if he needed help, he said, 'I don't give a fuck. That's why. Fuck him.'

84 The victim certainly suffered bodily harm. The sentencing judge found that his injuries were a laceration to the right forehead which required stitches, 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 was hospitalised for 4 days before he discharged himself against medical advice, although it seems the injuries took some time to heal and caused headache, pain and discomfort while that was happening. The victim was fortunate not to suffer any permanent injury.

85 After committing the offence, the respondent drove to the metropolitan area. At the Balcatta Primary School he set fire to the vehicle, apparently an attempt in some way to avoid detection, although the vehicle's registration number had been recorded by a witness. The respondent evaded arrest on 8 August 2006. He was ultimately arrested on 28 August 2006, at which time the videoed interview was conducted. The respondent was also sentenced for this offence on 14 December 2007.

86 When he passed sentence for both offences the judge had before him the pre-sentence report to which I have referred, and his Honour was fully informed about the respondent's personal circumstances. The judge noted that the respondent had a 'traumatic upbringing' in a dysfunctional family environment involving domestic violence, sexual abuse at home, and bullying and prejudice at school. For a time as a teenager the respondent lived on the streets and at the houses of various family members. He had a severely disturbed education and has no qualifications. Unsurprisingly, the respondent is described as having an antisocial personality disorder for which, during periods of juvenile detention, he has received psychological counselling without evidence of any marked success. For a considerable period the respondent had been involved in alcohol abuse, the use of cannabis and amphetamines, and sniffing aerosols and toluene, having been introduced to such substances by older peers and family members by the time he was about 12 years old.

87 When he came to be sentenced the respondent had an extensive criminal history, commencing when he was 13 and continuing unabated since then. There were numerous motor vehicle offences, particularly offences of stealing a motor vehicle and associated driving offences. There were many offences of dishonesty, particularly burglaries, and regular offences involving assaults on police officers and other violent acts. There were breaches of bail and of intensive supervision and other community based orders. Despite that history and his lack of contrition in relation to the offences currently before the court, the pre-sentence report recommended that the respondent was a suitable candidate for parole.

88 I have mentioned the sentence imposed for the armed robbery, backdated to the date upon which the respondent commenced to be in custody in relation to that offence. So far as the offence of doing bodily harm with intent was concerned, the sentencing judge said that he was prepared to accept that the actions of the respondent were impulsive and prompted, to some extent, by the background family dispute and the possibility that the victim was about to retaliate. Nevertheless, his Honour observed, the respondent acted without justification and with intent to cause harm. He caused significant injuries and he might have killed the victim. His Honour said he had regard to the mitigation to be found in the respondent's personal circumstances and the guilty plea, for which his Honour said he made an allowance of 20%.

89 Because this offence was entirely separate and distinct from the robbery, the judge said the sentence he would impose should be served cumulatively. His Honour thought a sentence of 18 months would have been the appropriate penalty 'under the old provisions'. Applying the transitional provisions to which I have referred, his Honour reduced that term to one of 12 months imprisonment. The aggregate term therefore became 3 1/2 years imprisonment backdated to 11 September 2006, with eligibility for parole, about which there is no complaint.

90 His Honour referred to the totality principle, observing that the key feature of its application was the need to take a last look at the effect of the sentencing process to ensure that the punishment inflicted was overall, in its totality, proportionate to the criminality involved in the offences committed. His Honour concluded that no further reduction of the sentence was required, nor was it necessary to interfere in any way with the decision that the 12 months term should be served cumulatively upon the other sentence.

91 In my view, the sentencing judge made one error in the process of fixing sentence, an error which was not drawn to his attention at the time, when he reduced by one-third the 18 month term which he would otherwise have imposed for the offence of doing bodily harm with intent. I have referred to cl 2(1) of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003, which may require a one-third reduction in fixing a term of imprisonment. I have mentioned that this was a transitional provision upon the making of extensive amendments to the Sentencing Act, and the repeal of the Sentence Administration Act 1995 and its re-enactment as the Sentence Administration Act 2003. The relevant portions of the amending legislation came into operation on 31 August 2003.

92 Clause 2(1) of Sch 1 of the amending legislation provides:

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.

By the 'old provisions', as cl 1(1) of the Schedule makes clear, is meant the provisions of the Sentencing Act 1995 and the repealed Sentence Administration Act as they would have applied had the sentencing amendments not come into operation. It is therefore my view, having regard to the terms of cl 2(1) alone, that it is only capable of applying to sentencing for an offence which existed as part of the old provisions and, as has been seen, that is not the case with the offences created by the newly enacted s 304(2) of the Code, which was introduced into the Code with effect from 21 May 2004.

93 The amending legislation, by which s 304(2) was enacted in substantially its present form, was the Criminal Code Amendment Act 2004, Pt 5 of which made a series of amendments to provisions of the Code which might be described as dealing with acts and omissions endangering life, health or safety. The sections in question offered partial coverage only of the field, and were concerned with particular acts and omissions, rather than with acts and omissions generally, having the effect of endangering the life, health or safety of any person, or which were intended to have that effect. Many of the sections dealing with particular matters were repealed and they were replaced with general provisions, particularly s 304. Before it was repealed in this process, s 304 provided an offence generally described as endangering the life or health of a child under the age of 7 years by abandonment or exposure.

94 I think it is clear that the transitional provision of cl 2(1) of Sch 1 to the Sentencing Legislation Amendment and Repeal Act 2003 could not apply to sentencing for an offence newly created by the re-enactment of s 304 of the Code, because no sentence for that offence could have been imposed under the old provisions, for the simple reason that the offence did not then exist. The closest the Code came to it was the offence of assault occasioning bodily harm under an earlier form of s 317 of the Code, which then had no provision for circumstances of aggravation and merely provided a crime punishable upon indictment by 5 years imprisonment.

95 After the sentence was imposed, the State made an application for its correction. The application was effectively to replace the sentence of 12 months imprisonment with a term of 18 months imprisonment for the offence in question, on the ground that the transitional provisions of the amending Act of 2003 had no application to a sentence imposed for an offence against s 304 of the Code. In support of that application, reliance was placed upon cl 2(5)(a) of Sch 1 to the 2003 Amendment Act by which it was provided:

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;

96 In my view, for the reasons I have already given, the application, grounded in that way, was misconceived. It was not a question of an amendment, since 31 August 2003, of the statutory penalty provided for an offence of doing bodily harm with intent, which offence, as I have said, simply did not exist at the time when the new provisions introduced by the amending legislation came into force.

97 Further, I doubt whether the application was open pursuant to s 37 of the Sentencing Act under which it was made. Relevantly, s 37(1) provides:

If a court sentences an offender in a manner that is not in accordance with this Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is.

There is nothing in the Sentencing Act or the Criminal Code to prevent the judge reducing a term of imprisonment, which he would otherwise have thought to be appropriate, by a third, although to do so may involve error in the exercise of the sentencing discretion. It was simply the case here that cl 2(1) of Sch 1 to the relevant legislation did not require that to be done.

98 However that may be it matters not, because although the judge accepted that he need not have made the reduction, he concluded that he was not prepared to make the change sought by the application. His Honour said that on giving further consideration to the applicability to the case of the totality principle, he remained of the view that the aggregate term of 3 1/2 years for the two offences was the appropriate proportionate outcome. Had his Honour not thought himself to be obliged to reduce the term of 18 months to a year by the application of the transitional provision, he would have thought it appropriate to do so by the application of the totality principle. In the result, no change was made.

99 It is from that sentence of 12 months, then, that the State now appeals by leave. The sole ground is the manifest inadequacy of the sentence which, it is said, failed to adequately reflect the total criminality of the offending behaviour by failing to adequately reflect the maximum penalty of 20 years imprisonment for the offence, the deliberate nature of the offending, the nature of the weapon (the car) used to commit the offence, the respondent's motive for his conduct, particularly given that he had never met the victim, and the respondent's conduct after the offence.

100 Prior to this case, there have been no cases brought before this court which require consideration of sentences imposed under s 304. There is no tariff for such offences. Nor, I think, could there be, because the circumstances attendant upon the commission of such offences will inevitably vary enormously, in relation to the way in which the crime was committed, the nature of the harm, if any, intended, and the circumstances personal to the offender. It follows that reference to other decided cases said to provide a guide in a particular case will rarely be useful.

101 In this case, the appellant relied in this way upon Stephens v The State of Western Australia [2005] WASCA 98. The judgment of the court was that of McLure JA, with whom Malcolm CJ and Roberts-Smith JA agreed. That was a case where the offender was convicted after trial of an offence of doing grievous bodily harm with intent, contrary to s 294 of the Code, an offence for which the maximum penalty was 20 years imprisonment. The court upheld a sentence of 6 years imprisonment, but the circumstances surrounding the commission of the offence, although it was committed by the use of a car, were so materially different from this case as to make the comparison useless.

The Principle Governing a Prosecution Appeal

102 Further, this is an appeal by the State, and as such may be subject to the well-recognised strictures attendant upon such appeals as a matter of principle. Under that principle this court will not be persuaded that a sentence different from that imposed by the judge at first instance should be substituted unless it is demonstrated that the exercise of sentencing discretion has miscarried, even if only demonstrated by the manifest inadequacy of the sentence imposed (as asserted in this case), with abundant clarity.

103 The reason for that is that a prosecution appeal against sentence has been thought to cut across time-honoured concepts of our criminal justice system, that an offender should be regarded as having met the demands of the law upon conviction and sentence and, generally speaking, should not be liable to a more punitive disposition thereafter, unless justice demands it. Such an appeal inevitably places in jeopardy, for a second time, the freedom of the convicted person. A prosecution appeal should therefore be the exception rather than the rule, and directed to establishing some point of principle, eg, the establishment and maintenance of proper sentencing standards, the correction of idiosyncratic views of individual judges, the maintenance of uniformity in sentencing, etc.

104 Because of this principle affecting a prosecution appeal, if the appellate court is persuaded to intervene it will bear firmly in mind that it is to exercise anew the sentencing discretion exercised by the sentencing judge, and it will do that with restraint by imposing a sentence at the lower end of what it regards as being the appropriate range of available sentences. Indeed, although persuaded of error, the court may decline to intervene if, in the particular case, it considers that it is not necessary or appropriate that a different sentence to that under appeal should be imposed. Within the present statutory framework, the Criminal Appeals Act 2004 (WA), s 31(4), gives the Court of Appeal a power, which is not mandatory, to allow the appeal if it thinks that a different sentence should have been imposed: Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48 per Buss JA at 67 [73].

105 A good statement of the relevant principle is that of Charles JA, with whom Winneke P and Hayne JA agreed, in R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522, and in the High Court, by Kirby J, in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 339 - 341 [57] - [62]. This principle has been applied by the Court of Criminal Appeal and by this court since the Crown was first provided with a right of appeal against sentence, in s 688(2) of the Criminal Code, in 1975: see, for example, R v Peterson [1984] WAR 329 per Burt CJ, Smith and Pidgeon JJ agreeing, at 330 - 331, and perhaps most recently in The State of Western Australia v Freemantle [2008] WASCA 98 by Miller JA at [33].

106 During the hearing of the appeal, the question arose whether there had been a recent statutory modification of the principle which might affect the way in which this court would approach the decision of this appeal and which might affect the re-sentencing exercise which would become necessary if the appeal were to succeed.

107 The Criminal Appeals Act, Pt 3, makes provision for appeals from a superior court, the Supreme Court and the District Court, by an offender against the sentence imposed on him or her: s 23(1)(b) and s 23(2)(b). Section 24(1) provides for an appeal against sentence by the prosecution. Leave to appeal is required: s 27.

108 Extensive amendments were made to sections in Pt 3 of the Criminal Appeals Act by the Criminal Law and Evidence Amendment Act 2008, Pt 4. This Act was proclaimed to come into operation on 27 April 2008 (Government Gazette 24 April 2008, p 1559). The amendments made therefore took effect after the respondent's conviction, after all the proceedings in relation to sentence, and after the appeal was instituted, but before it was heard. It would seem that the main purpose of the amendments was to give the prosecution a limited right of appeal against acquittal of accused persons after a trial by jury: s 24(2)(da), adding this right of appeal to that already afforded to the prosecution against a judgment of acquittal in a trial by judge alone or upon a no-case submission: s 24(2)(e). Other sections in this part of the Criminal Appeals Act were consequently amended.

109 Section 31 of the Act deals generally with the powers of the Court of Appeal upon an appeal against sentence by either the offender or the prosecution. I have referred earlier to s 31(4), which has not been amended. Formerly, s 31(2) provided that in deciding the appeal the court, 'may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard'. That subsection has been repealed. It was a provision of general application in relation to any appeal against sentence, whether by the offender or the prosecution.

110 Where this court is to sentence or re-sentence an offender following an appeal, whether against conviction or sentence, the relevant provisions are contained in s 41 of the Act. The intention is to provide the appellate court with full powers relative to its capacity to sentence or re-sentence an offender following an appeal. Section 41(4) has been repealed and re-enacted by s 39 of the amending Act. Prior to that, s 41(4) gave a limited power to the Court of Appeal in the same terms as generally conferred by s 31(2), exercisable when the court is not using the power to sentence or re-sentence as such, but is exercising the power conferred upon it to vary a sentence.

111 The re-enacted s 41(4) is in the following terms:

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.

It can be seen that s 41(4)(a) is now in terms which rather more expansively combine the provisions formerly in s 31(2) and s 41(4), making it clear in doing so, as was formerly the case, that the provision has application in both an appeal by the offender and by the prosecution against sentence. What is new is s 41(4)(b).

112 As it was not immediately clear to me what this subparagraph means, I sought to interpret the provision consistently with its underlying purpose or object by referring to the second reading speeches of the relevant Ministers, the Hon Attorney General in the Legislative Assembly and the Hon Leader of the House, Mr Chance in the Legislative Council: Interpretation Act 1984 (WA), ss 18 and 19. Neither speech makes any reference to this particular amendment or gives any clue as to the purpose it was designed to achieve: WA Parliamentary Debates of 22 June 2006, p 4211, and 23 November 2006, p 8705.

113 It appears that the reason why there was no reference to the amendment in the second reading speech of the Hon Attorney General is that the amendment had not then been introduced into the Bill. There appears to have been an amendment to the Bill introduced during its passage through the Committee stages of the Legislative Assembly to bring cl 41(4) to its present state. In moving the amendment (WA Parliamentary Debates of 2 November 2006, p 8216), the Attorney General said:

The amendment to the Criminal Appeals Act 2004 prevents resort to double jeopardy as a basis of refusal to impose a different sentence when a prosecution appeal should otherwise have succeeded, and the discretion to impose a lesser sentence than would otherwise be appropriate on such appeals. In other words, the courts appear reluctant to increase the sentence to an appropriate measure when a court has, in the first instance, imposed what is recognised to be an inadequate sentence, based on what I thought was woolly thinking around the so-called double jeopardy principle that someone should not be exposed to different sentencing. I think that is a reluctance to do justice and it needs to be corrected.

114 My puzzlement arises out of the fact that, despite that explanation, the provision is said to apply on an appeal against sentence by either the offender or the prosecution. But in the case of an appeal by an offender which succeeds or in any way requires the court to sentence the offender anew, to re-sentence him or her, or to vary a sentence imposed upon him or her, I can think of no circumstance when it would be appropriate for the Court of Appeal to take into account the fact that the court's decision 'may' (and no doubt inevitably would) mean that the offender was again to be sentenced.

115 It is one thing to have regard in an appropriate case to changes in circumstances between the time when a sentence was first imposed and when the appeal is heard. It would be quite a different matter to take into account as affecting the decision of the Court of Appeal the mere fact that a sentence was to be imposed or varied. Under s 31, the result of a successful appeal by the offender against sentence will be that the sentence imposed at first instance is set aside and a new sentence imposed, if the court does not send the matter back to the court of trial. Alternatively, the sentence may be varied, eg, by making a parole eligibility order when one has been denied, or by directing its suspension, with or without conditions.

116 In such a case I simply do not understand and can give no meaning to the proposition that, although in arriving at any such decision the court may take into account materially changed circumstances since the sentence was originally imposed, it may not take into account the very fact that its decision may mean that the person is again sentenced. The capacity to apply s 41(4)(b) in the case of an appeal against sentence by an offender entirely escapes me.

117 However, although s 41(4)(b) is ostensibly applicable in the case of an appeal against sentence by either the offender or the prosecution, it appears to be intended only to have application in the latter case, in which case it must mean that in dealing with a prosecution appeal the Court of Appeal is directed not to have regard to the fact that a prosecution appeal 'may' (but if the appeal succeeds inevitably will) mean that the offender has the sentence imposed on him or her, which is the subject of the appeal, set aside and will be re-sentenced.

118 There is, of course, much more to the general principles governing appeals by the prosecution as they have been developed at common law and laid down in decisions of the courts. They are concerned with fairness and a just outcome as the result of an appellate process which may disturb in relation to sentence, the finality and certainty generally attendant upon the decision of the court at first instance. They are concerned with the traditionally held view about the interest in the criminal process of the prosecution, that it should act with restraint and in a manner calculated to assist the court to achieve a just outcome.

119 I have set out the way in which those principles, which apply particularly to prosecution appeals against sentence, are formulated. There is no need to repeat them, but I note in passing that they appear to me to be consistent with the proviso which otherwise generally applies and now applies specifically in relation to the new right of appeal afforded to the prosecution against an acquittal by a jury, in s 33(2a), that even though a ground of appeal may be decided in favour of the appellant, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

120 Having regard to that context and the considerations to which I have adverted, I would conclude that in relation to an appeal by the prosecution against sentence, the new s 41(4)(b) must mean that, although the Court of Appeal may take into account all the matters which it would ordinarily take into account in deciding such an appeal, including material changes in circumstances after the sentence appealed against was imposed, it may not allow its judgment to be affected by the additional fact that a decision to allow the appeal, 'may mean that the person is again sentenced for the offence'.

121 To my mind, whatever value that interpretation may have in relation to the decision of such an appeal, it leaves substantially unaffected the general principle by which the court will be guided in its approach to an appeal against sentence by the prosecution, which may continue to have application to guide the court as to when the appeal should succeed and in relation to the re-sentencing exercise which will follow if it does.

122 I would add this. The amendment made by the enactment of the new s 41(4) was subject to no transitional provision. Further, the repeal of the former s 41(4) did not change the content of the law as expressed in that former provision. The enactment of s 41(4)(b) is entirely new. If I am wrong in my view of the proper interpretation of s 41(4)(b), then it must be taken to adversely affect the principle to be applied by which the Court of Appeal may determine a prosecution appeal against sentence. The relevant matter upon which the new provision will operate is the basis upon which, having heard the appeal, the Court of Appeal is to decide it.

123 That is something which may arise only at that time. The law constituted by s 41(4)(b) does not operate upon any right or interest vested in the respondent prior to that time. He or she can have no right or interest in the decision of the prosecution's appeal other than upon the basis of the law as it then stands: Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, 518, 522. In my opinion, s 37 of the Interpretation Act providing for the general savings on the repeal of legislation can have no application to prevent that outcome.

124 Rather would this be a case for the application of the general rule of the common law that no party to litigation has any vested right in the course of procedure, or right to complain that during the course of proceedings the procedural rules are changed. The classic statement of the rule is that of Dixon CJ in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law has defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and vested on events or transactions that were otherwise past and closed.

125 In my opinion, if s 41(4)(b) is to be applied so as to have the effect that upon its consideration of the appeal this court must not proceed in accordance with the hitherto accepted principles of the common law, then this is a procedural matter and the subsection will have that application in respect of this appeal. However, as I have said, in my view such a wide interpretation of the meaning and effect of s 41(4)(b) is not that to which this court must give effect.

126 Bearing that in mind, I am driven nonetheless to the conclusion that this court should intervene in this case. The ground is made out, in my opinion, and I consider that the sentence of 12 months imprisonment was so inadequate as to demonstrate a miscarriage of the sentencing discretion in this case.

127 The offence to which the respondent pleaded guilty, being punishable by 20 years imprisonment, is clearly an offence of a very serious kind. Further, it seems to me that the intentional infliction of bodily harm upon another is a serious form of the offence provided in s 304(2) of the Code. The manner in which the offence was committed and the circumstances surrounding its commission to my mind afforded no ground for leniency, but indeed aggravated the seriousness of the offence, which was only opportunistic because the respondent did not seek out his victim, but came upon him accidentally.

128 The car was driven at speed. It was driven so that it was aimed at the victim, who was a stationary target. The car was driven off the carriageway and onto the footpath. The respondent confessed that it was his intention to hurt the victim, as indeed he did, and both the respondent and the victim were lucky that more serious harm was not done. The motive for the offending appears to have been no more than a general animosity reflecting relationships between two family groups. The act of the victim in throwing the can at the car on its first pass provided no reasonable ground to provoke the respondent's retaliation.

129 Having committed the offence and obviously knowing that the victim must have been hurt, having regard to the force of the impact, the respondent did not stop to see if he could render aid. He drove off, apparently pleased with the outcome, and at no time thereafter has he displayed any remorse or contrition for his conduct.

130 The respondent's personal circumstances were dreadful. The violent background from which he comes no doubt explains his personality disorder and violent offending, but it does not excuse it, nor is there mitigation to be found in the fact that he was intoxicated when he committed the offence. The only mitigation of any substance was a somewhat tardy plea of guilty for which, in my view, the sentencing judge made an appropriate allowance.

131 I would set aside the sentence of imprisonment for 1 year, and in lieu of that sentence I would impose a term of 3 years, which might be compared with the 3 years and 9 months the sentencing judge said he would have imposed for the robbery before, as he was obliged by law, he reduced that term by a third.

132 The question which must finally be dealt with is whether, on totality grounds, this court should interfere with or modify in any way that view of the appropriate sentence or the direction that the sentence for the offence of doing bodily harm with intent should be served cumulatively upon the sentence imposed for the armed robbery. I think not.

133 To explain why I would reach that conclusion, it is necessary to refer to the totality principle and my understanding of the way it operates. It seems to have acquired more sophistication in the way it is stated as it has been considered in a long series of decided cases, but, in essence, the totality principle expresses a simple proposition endorsed by the Court of Criminal Appeal in the leading cases, Jarvis v The Queen (1993) 20 WAR 201 and Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330, where, at 334 - 354 [10] - [86], Malcolm CJ comprehensively reviewed the decided cases in this jurisdiction, the High Court and overseas, and various academic writings.

134 In Herbert, reference should also be made to the discussion of the principle by Anderson J at 364 - 366 [136] - [149]. In those paragraphs, Anderson J said, at 364 [140], that, 'the touchstone of the totality principle is proportionality'. At 366 [149] his Honour said that, 'the only question is whether a total aggregate sentence of 15 years imprisonment is disproportionate in its length to the overall criminality in the 33 offences for which the applicant comes to be punished'.

135 In the same case, at 372 [175], Miller J said (omitting citations):

The question which then arises is whether the sentence offended the totality principle. This principle ... is that the Court must look at the totality of the criminal behaviour committed by an offender and ask itself what is the appropriate sentence for all the offences ... . Another way of putting it is that the Court should take 'a last look' at the total imprisonment imposed to ensure that the sentence is not crushing and is proportionate to the degree of criminality involved ... .

136 I respectfully agree. It seems to me to be clear that the question encompassed by the totality principle, where there are a number of sentences imposed on the same or different occasions by the same or different judges, which may have no connection or common element other than their service at the same time or consecutively by the same offender, is whether in its aggregate, the term of imprisonment to be served is proportionate to the total criminal behaviour involved, having regard also to the personal circumstances of the offender. It should be no longer than the reasonable exercise of sentencing discretion requires for all the purposes which the imposition of punishment is to serve.

137 Such a review comes at the end of the sentencing process. It is the final result which is under consideration. It may lead to an adjustment by reducing the aggregate term, even though individually the terms imposed are proportionate and within the exercise of sentencing discretion, and even though proper decisions are being made about whether they should be served cumulatively or concurrently. If an adjustment is to be made, it will preferably be by abandoning a degree of accumulation rather than by potentially distorting sentencing patterns for individual offences by reducing individual terms.

138 The reason why that will generally be the outcome, if the aggregate term is not to be maintained, is that the longer the term of imprisonment to be served the harsher it may be seen to be, and the severity increases exponentially with the length of the term, to adopt the phrase coined by Ipp J in Jarvis, at 207.

139 In my view, that is the ultimate aim of the application of the principle and, as I said in Jarvis at 213:

... when, as it is sometimes put, it is expressed in terms that what is to be avoided is the achievement of 'a crushing result', that is simply to refer broadly to one test by which it may be considered whether the aim of proportionality has been achieved or whether undue severity has been employed. What is to be considered is the impact of the total term having regard to the various ways in which it may be thought to have become unduly punitive and positively harmful to the achievement of the proper aims of the imposition of sentence.

That is not, I think, a consideration to be applied entirely subjectively, having regard to the particular position and circumstances of the offender before the Court. Rather, although the correlation of the sentences and their application to the particular offender are to be regarded, it is the objective consideration of their potential total effect by which the Court must ultimately be led to the conclusion that the totality principle has been properly served, or alternatively, infringed.

140 That, I think, is the way the matter has been approached by the High Court since the early (perhaps seminal) decision in Mill v The Queen (1988) 166 CLR 59, 62 - 63; and see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. At 341 in the latter case, Kirby J said that when the judge looked back at the product of the various calculations and discounts which had produced a final conclusion about the appropriate aggregate sentence:

... it may offend the totality principle because, looking at the prisoner's criminality as a whole, the outcome is, in its totality, not 'just and appropriate'. The last-mentioned conclusion will the more readily be reached where the judge comes to the conclusion that the outcome would be 'crushing' and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform.

141 I must say that I have some difficulty in the application of the totality principle with the notion that the principle has two limbs or parts because that implies that both must be satisfied if the principle is to be served and the proper outcome achieved. The first limb is often said to be the need to take a last look at the sentencing process to ensure that the aggregate term as it would finally be imposed in a case where there are multiple sentences for a number of offences resulting in individual terms of imprisonment which are to be served at the one time or consecutively by the offender before the court, is properly proportionate to the overall criminality in the offending, having regard not only to the nature of the offences and the circumstances of their commission, but also to the personal circumstances of the offender and any matters advanced in mitigation of punishment. All of these are, of course, matters which will have been considered when sentences were imposed for individual offences or groups of offences. They are now to be regarded in the overall context of the aggregate term which would result.

142 The second limb of the totality principle is often described by reference to the need to avoid an aggregate term which may destroy the reasonable expectation of a useful life upon release, may destroy hope for the future, or, because it is unduly punitive, may positively impede such prospects as there may be for the offender's rehabilitation. In this regard, as I have said, the authorities make it clear that to have regard to such considerations is a way of testing the proposition that there must be some downward adjustment in the individual sentences imposed or the extent of their accumulation, to achieve a properly proportionate outcome. Viewed in that light, the use of such terminology is uncontroversial.

143 Since the early days of the recognition of the totality principle the word 'crushing' has been used to describe a sentencing outcome which, although in respect of its component parts in fixing sentences to be imposed for individual offences and in deciding whether they should be served cumulatively or concurrently, no error may emerge, nonetheless the discretion will miscarry if the final outcome can be seen to exceed the capacity of the aggregate term to serve the sentencing principles of punishment, the denunciation of the offending behaviour, the deterrence of the offender and others, and ultimately the achievement of a degree of protection for the community against further offending upon the release of the offender.

144 Even viewing the fact of a 'crushing' result in the sense referred to above as a test for the proper application of the totality principle may create difficulty not only because views of individual judges about that may differ, but also to test the application of the totality principle in that way may, in a given case, set the bar too high. That is why, I think, in numerous cases where this terminology is used, one finds the court cautioning that the totality principle may be infringed even where the overall result may not be properly described as crushing.

145 Viewed in that light, it seems to me that the aggregate term of 5 1/2 years imprisonment with eligibility for parole in relation to the two offences of substantial seriousness committed in the circumstances described above, with very little mitigation available to the respondent, would remain proportionate to the criminality of the offending overall.

146 I would set aside the sentence of 12 months imprisonment imposed for the offence of doing bodily harm with intent and instead impose a sentence of 3 years imprisonment to be served cumulatively upon the sentence of 2 1/2 years imprisonment imposed for the armed robbery, which was backdated to 11 September 2006. I would not interfere with the order of eligibility for parole.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- WALLAM [2008] WASCA 117 (S)

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Appeal - Application to reopen appeal and amend effected orders made on original appeal - No inherent power to reopen - Extent of power under Sentencing Act 1995 (WA), s 37

Sentencing Act 1995 (WA), s 37

Sentencing Regulations 1996 (WA), reg 5

1 McLURE JA: By applications dated 15 July 2008 and 3 September 2008 the appellant applies to recall the orders made by the court in The State of Western Australia v Wallam [2008] WASCA 117 (Wallam) on 5 June 2008. In Wallam, the State of Western Australia (State) successfully appealed against a sentence of 12 months' imprisonment for the offence of causing bodily harm with intent contrary to s 304(2) of the Criminal Code (WA) (Code).

2 All members of the court in Wallam concluded that the sentence of 12 months was manifestly inadequate. For the purposes of re-sentencing, the court had to determine whether cl 2(1) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (Sentencing Amendment and Repeal Act), which requires the otherwise appropriate sentence to be reduced by one-third, applied to an offence under s 304(2) of the Code and whether s 41(4)(b) of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act) applied so as to exclude the operation of the common law principle giving recognition to the element of double jeopardy in re-sentencing following a successful appeal.

3 The majority (Miller JA and Murray AJA) held that cl 2(1) of sch 1 had no application to s 304(2) offences and that s 41(4)(b) applied to the re-sentencing of the respondent. The majority imposed a sentence of 3 years' imprisonment for the s 304(2) offence which they ordered to be served cumulatively with a sentence of 2 years and 6 months' imprisonment imposed for an offence of armed robbery. I concluded that cl 2(1) of sch 1 did apply to the re-sentencing. I also concluded that s 41(4)(b) of the Criminal Appeals Act was substantive, did not apply retrospectively and thus did not apply to the re-sentencing of the respondent. I would have imposed a term of 2 years and 4 months' imprisonment for the s 304(2) offence to be served cumulatively with the sentence of 2 years and 6 months for the armed robbery.

4 If the Court of Appeal varies a sentence it must send to various persons a memorandum setting out the result of the appeal (s 41(6) and s 42 of the Criminal Appeals Act). Rule 74(1) of the Criminal Procedure Rules 2005 (WA) imposes an obligation on the Registrar to issue a Certificate of conclusion of a criminal appeal which Certificate is stated in subrule 2 to be the formal record of the court and to form part of the Supreme Court's record. The Registrar issued a Certificate of conclusion dated 19 June 2008 which states the orders made by this court in Wallam.

5 On 17 June 2008 a coram of five members of this court determined that s 41(4)(b) of the Criminal Appeals Act was substantive and had no retrospective operation; Wallam was overruled in that respect: The State of Western Australia v Richards [2008] WASCA 134. On 10 July 2008 a coram of five members of this court also determined that cl 2 of sch 1 applies to contraventions of s 304(2) of the Code and that Wallam should be overruled in that respect: Yates v The State of Western Australia [2008] WASCA 144.

6 The primary issue in this application is whether this court has the power to reopen and reconsider the orders made in Wallam. The power of an intermediate appellate court to reopen its orders was recently considered by the High Court in Burrell v The Queen [2008] HCA 34; (2008) 82 ALJR 1221. The issue in Burrell was whether the New South Wales Court of Criminal Appeal (CCA) could reopen and reconsider orders it made dismissing appeals against the appellant's conviction and sentence. The formal recording of the orders had been made in accordance with r 51 and r 53 of the Criminal Appeal Rules 1952 (NSW). The procedure in Western Australia for the formal recording of orders is materially the same as in New South Wales. It was subsequently discovered that the CCA had made a number of substantial factual errors in its reasons leading to the dismissal of the appeals. The CCA reopened, reconsidered and confirmed its original orders. The High Court held that the CCA did not have power to reopen the appeals after its original orders had been formally recorded.

7 The High Court in Burrell reaffirmed what was held in Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 to the effect that the jurisdiction of the New South Wales CCA was statutory and that it had no jurisdiction to reopen an appeal which it had heard on the merits and finally determined. As stated by the majority in Burrell, the power to reopen the appellant's appeals and reconsider the orders it had made had to be found in 'the text of the governing statutes and any express or implied powers to be seen therein' [14], [22]. It is clear from Burrell that there is no inherent jurisdiction or power to do so. The court did not find it necessary to consider whether some forms of denial of procedural fairness could warrant drafting some exception upon the general rule stated in Grierson [26]. It is convenient to mention at this juncture that in the course of oral submissions, the appellant's counsel contended there had been a denial of procedural fairness in this case. The contention is entirely without merit. As noted by the majority in Burrell:

The parties to an appeal are given procedural fairness by allowing each a proper opportunity to make submissions before the court makes its decision. Once the court announces the decision it has made, any further hearing is exceptional. To hold that parties must be given a sufficient opportunity to consider whether to ask for a further hearing would convert the exception into the rule. That step should not be taken [28].

8 Of course, the outcomes in Grierson and Burrell relate specifically to the statutory regime in New South Wales. The question for this court is whether it has the statutory power (express or implied) to reopen and reconsider the orders made in Wallam. The power of the former Court of Criminal Appeal in this regard was considered in Mustafa v The Queen [2002] WASCA 357; (2002) 27 WAR 73. Although the question was obiter, Malcolm CJ concluded that the Court of Criminal Appeal had the jurisdiction or power to recall or reopen a sentence notwithstanding the perfection of the order. Murray J came to a contrary conclusion. Steytler J did not decide the question.

9 In reaching his conclusion in Mustafa Malcolm CJ relied on former provisions of the Code, in particular, s 687(3), s 689(3) and s 697. Section 687(3) provided that:

The Court of Criminal Appeal shall, for the purposes of and subject to the provisions of this chapter, have full power to determine, in accordance with this chapter, any questions necessary to be determined for the purpose of doing justice in the case before the Court.

10 We have to determine the issue in the new statutory framework relating to the establishment of the Court of Appeal. There is no provision equivalent to s 687(3) in the current legislative scheme. Section 689(3) gave the Court of Criminal Appeal the power to re-sentence following a successful appeal, a similar power to that in s 31(5) of the Criminal Appeals Act.

11 Section 697 of the Code materially provided that the Court of Criminal Appeal may, if they think it necessary or expedient in the interests of justice:

... exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals in civil matters, and issue any warrants necessary for enforcing the orders or sentences of the Court ...

12 The current equivalent provision is s 40(1) of the Criminal Appeals Act which provides that for the purpose of dealing with an appeal, an appeal court may 'exercise any power that the Supreme Court may exercise in a civil case'. Malcolm CJ had earlier concluded in Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400, 407 that the former Full Court had power in a civil case to reopen and reconsider its orders after they had been perfected, relying on Gould v Vaggelas [1984] HCA 68; (1985) 157 CLR 215.

13 The Chief Justice in Mustafa also relied on s 16(1) of the Supreme Court Act 1935 (WA) which he said invested the Supreme Court with the same inherent jurisdiction as the various courts at Westminster had at the commencement of the Supreme Court Ordinance 1861. He concluded:

In my opinion, the effect of the various provisions to which I have referred, coupled with the inherent jurisdiction of the court, is that the Court of Criminal Appeal does have jurisdiction or power to recall or reopen a sentence passed by the court and re-sentence the appellant, notwithstanding the perfection of the order imposing the sentence ... [39].

14 In my respectful opinion, Malcolm CJ's conclusions in Mustafa and Esther Investments are contrary to the position consistently taken by the High Court in a number of cases including Grierson, Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, Gamser v The Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145, DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 and Burrell.

15 The High Court in DJL v The Central Authority noted that it is important to bear in mind that the position respecting a revision of orders of superior courts of record at Westminster was of limited analogy because those courts did not exercise appellate jurisdiction. Further, it was of no assistance when considering the position of other courts to have regard to that of the High Court in the exercise of its entrenched jurisdiction as a court of final appeal or with respect to the Privy Council or the House of Lords: DJL [43]. Moreover, the decision in Esther Investments is inconsistent with subsequent appellate decisions in this State: Marshall v The Honourable MacTiernan MLA Minister for Planning and Infrastructure (2003) 128 LGERA 231 [29] - [31]; Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217.

16 My understanding of the law is that, in the absence of a statutory provision to the contrary and subject to certain narrow exceptions that do not apply in this case, a formally recorded order made by an intermediate appellate court cannot be reopened or reconsidered.

17 There is no general power, express or implied, given to the Court of Appeal in the Supreme Court Act, the Criminal Appeals Act, the rules of court or any other statute to which we were referred to reopen and reconsider perfected orders, civil or criminal. The respondent relied on s 58(1)(m) of the Supreme Court Act. That gives the Court of Appeal jurisdiction to hear and determine all proceedings required by any State or Federal Act or the rules of the Supreme Court to be heard or determined by the Court of Appeal. That provision alone is of no assistance to the respondent.

18 However, s 37 of the Sentencing Act 1995 (WA) (the Sentencing Act) contains an express power to reopen and reconsider a sentence. The section provides:

(1) If a court sentences an offender in a manner that is not in accordance with this Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is.

(2) The powers in subsection (1) may be exercised by a court on its own initiative or on an application by the offender or the prosecutor made in accordance with the regulations, but in any event the court must give all parties the opportunity to be heard.

(3) If a court's order imposing a sentence contains a clerical mistake or an error arising from an accidental slip or omission, the court may correct it at any time on its own initiative without recalling the order, but the court must ensure that all parties and relevant authorities are notified of the correction.

(3a) A sentence imposed or corrected under this section has effect from the time at which the recalled or incorrect sentence had effect, unless the court orders otherwise.

(4) This section does not affect any right of appeal against a sentence.

sentence includes an order in addition to sentence.

19 The first issue of construction is the meaning of the term 'court' in s 37. It is not defined. In its context it must be intended to cover all courts in this State with lawful authority to sentence an offender.

20 The Court of Appeal has authority to sentence an offender if it upholds an appeal. The Court of Appeal may only allow an appeal against sentence if a different sentence should have been imposed: s 31(4)(a) of the Criminal Appeals Act. Under s 31(5), if the Court of Appeal allows an appeal 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.

21 The Court of Appeal in Wallam exercised the power in s 31(5)(a) to impose a new sentence. The Court of Appeal's powers and duties when sentencing under s 31(5) are contained in s 41 of the Criminal Appeals Act. Section 41(10) provides:

This section is in addition to and does not affect the operation of the Sentencing Act 1995 except as expressly stated.

22 Thus, unless expressly excluded, the powers and duties imposed on courts in the Sentencing Act apply to the Court of Appeal when exercising its power under s 31(5)(a) of the Criminal Appeals Act. That includes s 37 of the Sentencing Act. This conclusion is consistent with the outcome in Liddington v The State of Western Australia [2005] WASCA 60 (S).

23 The State also contends that the errors made by the majority in Wallam are incapable of being corrected under s 37 because the nature of the errors are such that it has not been established that the sentence is 'not in accordance with this Act or the written law under which the offence is committed'. The argument is as follows. The reference in s 37(1) to 'this Act' is a reference to the Sentencing Act 1995 and any subsidiary legislation made under the Sentencing Act. A reference to 'written law under which the offence is committed' is, in the circumstances of this case, a reference to the Code. As the errors in Wallam did not involve a departure from the provisions of the Sentencing Act or the Code, s 37 does not apply.

24 It is necessary to begin by considering the scheme and scope of the Sentencing Act. It provides an overarching framework within which courts are empowered and required to sentence. It does not purport to be an exclusive code in relation to sentencing matters. It is to be implied as a matter of construction of the Sentencing Act as a whole that common law sentencing principles are intended by the legislature to continue to apply unless expressly or impliedly excluded. That continuation of common law principles is preserved by the Sentencing Act. One such common law principle not expressly or impliedly excluded by the text of the Sentencing Act is that in determining the appropriate sentence under s 6 of the Sentencing Act, the availability of remission and/or parole are irrelevant sentencing considerations. Another common law principle not expressly or impliedly excluded by the text of the Sentencing Act is the double jeopardy principles in relation to re-sentencing.

25 I turn now to the State's submissions, starting with the failure by the majority to apply cl 2(1) of sch 1. Clause 2(1) of sch 1 requires that where the court proposes to impose a fixed term it must impose a term that is two-thirds of the fixed term that it would have imposed under the 'old provisions' being a reference, among other things, to the Sentencing Act 1995 (WA) as it stood prior to the commencement of the Sentencing Amendment and Repeal Act in August 2003.

26 Schedule 1 is contained in the Sentencing Amendment and Repeal Act. The primary purpose of the Sentencing Amendment and Repeal Act was to amend the Sentencing Act. Section 22 of the Sentencing Amendment and Repeal Act provides:

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

27 This division in s 22 is a reference to div 4 which deals with the amendments to the Sentencing Act on the subject of imprisonment. By s 29(1) of the Sentencing Amendment and Repeal Act, the Sentence Administration Act 1995 (WA) was repealed. Section 29(2) provided that sch 1 has effect in relation to the repeal effected by subsection 1. The effect of div 4 of the Sentence Administration and Repeal Act was to abolish the virtually automatic one-third remission on sentences. The purpose of cl 2(1) of sch 1 was to ensure the abolition occurred without increasing the time spent in custody.

28 As explained in Yates, the effect of cl 2(1) of sch 1 is not transitional in the ordinary sense. Clause 2(1) applies to offences committed both before and after the commencement of the Sentencing Amendment and Repeal Act. Its continuing relevance is reflected in the fact that sch 1 of the Sentencing Amendment and Repeal Act is set out in full in footnote 8 to the Sentencing Act. However, footnotes and endnotes are solely for the convenience of the reader and are not part of the Act: Interpretation Act 1984 (WA), s 32(2).

29 However, cl 2(1) of sch 1 modifies the operation and scope of the Sentencing Act. It does so 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.

30 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.

31 Amendments to an Act may be made directly by textual change to the principal Act or indirectly by what is described as the referential system: see Pearce DC and Geddes R, Statutory Interpretation in Australia (6th ed, 2006) [1.38], [7.1], [7.26]. The latter occurs where a later Act changes the way in which an existing Act is to operate. It is manifest in this case that the legislature intended cl 2(1) of sch 1 and s 41(1)(b) to be read as one with the Sentencing Act; the express and implied provisions of the Sentencing Act are subject to those provisions. Thus the question is whether the statutory reference in s 37(1) 'to this Act' is to the Sentencing Act as amended, directly and indirectly, from time to time. In my view it is. Accordingly, the errors enliven this court's jurisdiction under s 37.

32 The word 'may' in s 37 preserves to the sentencing court a discretion whether or not to recall the order: Traegar v Pires de Albuquerque (1997) 18 WAR 432. This court has determined that Wallam was wrong on the two grounds forming the basis of the s 37 application, and there is no suggestion it should decline to exercise its discretion if it is enlivened. Moreover, this case does not raise for determination the question whether the power in s 37 is limited to the correction of the particular error/s enlivening the discretion. Conflicting views have been expressed in New South Wales on that issue: Tolmie (1994) 72 A Crim R 416, 420, 421; Ho v Director of Public Prosecutions (1995) 37 NSWLR 393, 402 - 403.

33 I would recall the orders made by the court in Wallam. As the orders I foreshadowed in Wallam were in accordance with the law, I would make those orders which in substance were that: (1) the appeal be allowed; (2) the sentence for the s 304(2) offence be set aside; (3) in lieu thereof, a sentence of 2 years and 4 months' imprisonment be imposed to be served cumulatively with the sentence imposed for the armed robbery; and (4) the appellant be eligible for parole.

34 MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Murray AJA. I agree with those reasons and I agree that the application should be dismissed.

35 I would only add that the provisions of reg 5 of the Sentencing Regulations 1996 (WA), which are headed 'Correction of Sentence' (s 37) support the conclusion that s 37 of the Sentencing Act 1995 (WA) deals with the sentencing process in a court of first instance, not the Court of Appeal. Regulations 5(4) and (6) make reference to 'the offender and the prosecutor' and 'an offender or a prosecutor' respectively and I consider that the deliberate use of the words 'the prosecutor' is an indication that the provisions of s 37 are intended to apply only to courts of first instance. The word 'prosecutor' is not defined in either the Sentencing Act 1995 or the Sentencing Regulations 1996, but it has a particular meaning in criminal proceedings, applying to the person who prosecutes the accused person in the court of first instance.

36 MURRAY AJA: On 5 June 2008, this court allowed the appellant's appeal against a sentence of 12 months imprisonment for an offence of causing bodily harm with intent to harm, contrary to s 304(2)(a) of the Criminal Code. That sentence had been ordered to be served cumulatively upon a sentence of 2 1/2 years imprisonment imposed for an offence of armed robbery. The sentence for the offence of robbery was not the subject of the appeal. As to the sentence which was the subject of the appeal, the court, by majority, Miller JA and Murray AJA, allowed the appeal and substituted for the sentence of imprisonment for 1 year, a sentence of imprisonment for 3 years, again to be served cumulatively upon the sentence of 2 1/2 years imprisonment imposed for the armed robbery.

37 McLure JA agreed that the appeal should be allowed, and her Honour would have imposed a term of 3 1/2 years imprisonment but, applying the one-third reduction mandated by cl 2(1) of Sch 1, the transitional provisions to the Sentencing Legislation Amendment and Repeal Act 2003 (WA), her Honour would have reduced that term to one

of 2 years and 4 months imprisonment. The majority had concluded that, on the proper interpretation of cl 2(1), it had no application to the case before the court, shortly put, because the offence defined by s 304 of the Criminal Code did not exist in the form charged at the time when the transitional provisions came into effect.

38 That view of the law was corrected in the case of Yates v The State of Western Australia [2008] WASCA 144, in which case the majority, Steytler P, McLure and Buss JJA, Martin CJ and Miller JA dissenting, held that in a case concerned with the offence defined in s 304(2) of the Code, cl 2(1) does have application, so that a court passing sentence for that offence, whether a single judge or the Court of Appeal re-sentencing an offender upon a successful appeal against sentence pursuant to the Criminal Appeals Act 2004 (WA), s 31(5), would be bound to reduce by one-third the sentence which it otherwise would have imposed. In this case, as has been seen, the majority decision merely set aside the sentence originally imposed and imposed a new sentence of 3 years imprisonment which was not the subject of that mandatory reduction.

39 Upon making that variation to the sentence originally imposed, the Court of Appeal was required by s 41(6) and s 42 to send a memorandum of its decision to the Chief Executive Officer of the Corrective Services Department and to the lower court, advising the result. That picture is completed by r 62 of the Supreme Court (Court of Appeal) Rules 2005. Upon the conclusion of a criminal appeal the registrar is to issue a Form 17, entitled 'Certificate of Conclusion of Criminal Appeal'. Under r 62(3), this constitutes 'the formal record of the Court of Appeal and forms part of the Supreme Court's record'. It must be sent to various officials who may need to know the result. If a warrant is issued, as was the case here, to enforce the order of the court, a copy of the Form 17 is to be sent with the warrant to those to whom the warrant is directed. Again, in this case, the Form 17 was attached to the warrant of commitment. The Form 17 Certificate of Conclusion is dated 19 June 2008.

40 If the order of the court by which the sentence was imposed was not perfected when judgment was given on 5 June 2008, it was certainly perfected by the issue of the Certificate of Conclusion on 19 June 2008.

41 On 15 July 2008, the respondent applied to recall so much of the judgment of the court as was inconsistent with the decision in Yates. The application did not say what the respondent thought ought to be done and it was, in any event, imperfectly supported in relation to the court's jurisdiction by written submissions. There was a hearing on 20 August, as a result of which the respondent expanded his application to seek an order under s 37(1) of the Sentencing Act 1995 (WA). It is that application which is presently before the court.

42 I respectfully agree with McLure JA that this court has no general inherent power or jurisdiction to reopen concluded proceedings, as these are, once the final orders have become a matter of record. There have been a number of cases where that proposition has been considered. The most recent decision, which, in my respectful opinion, settles all controversy in relation to the question, is the decision of the High Court in Burrell v The Queen [2008] HCA 34; (2008) 82 ALJR 1221. Any power to reopen and reconsider concluded proceedings of a court of record must be conferred by statute.

43 I note in passing that Burrell would settle the disagreement in this court which arose out of the contrary views expressed by Malcolm CJ and me (Steytler J not deciding) in Mustafa v The Queen [2002] WASCA 357; (2002) 27 WAR 73. That also was a case where the appellate court, the Court of Criminal Appeal, had been invited to recall a lawful sentence it had imposed within power, but which involved a mathematical error in reaching the term of the sentence ultimately imposed when a discount of 25% from a nominated starting point was made to provide the offender with a credit for a plea of guilty. There the appeal was to an inherent power in the court to reopen and resentence. It was not put that there was any statutory power pursuant to s 37(1) of the Sentencing Act.

(1) If a court sentences an offender in a manner that is not in accordance with this Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is.

(2) The powers in subsection (1) may be exercised by a court on its own initiative or on an application by the offender or the prosecutor made in accordance with the regulations, but in any event the court must give all parties the opportunity to be heard.

(3) If a court's order imposing a sentence contains a clerical mistake or an error arising from an accidental slip or omission, the court may correct it at any time on its own initiative without recalling the order, but the court must ensure that all parties and relevant authorities are notified of the correction.

(3a) A sentence imposed or corrected under this section has effect from the time at which the recalled or incorrect sentence had effect, unless the court orders otherwise.

(4) This section does not affect any right of appeal against a sentence.

(5) In this section -

sentence includes an order in addition to sentence.

45 The first question is whether s 37 confers power on the Court of Criminal Appeal when it sentences an offender anew or by way of varying a sentence imposed by the court below. With respect for the contrary view, in my opinion it does not.

46 Section 37 is one of a number of provisions in Part 4 of the Sentencing Act dealing with 'the sentencing process'. Section 37(1) applies, 'if a court sentences an offender'. In my opinion, the power to recall a sentence and to resentence which, under s 37(2), may be exercised by the court on its own initiative or upon an application by the offender or the prosecutor, 'made in accordance with the regulations' is intended to be an expeditious, less costly process by which errors of the kind identified in s 37(1) may be corrected without the need for an appeal. Section 37(4) makes that clear by expressly preserving rights of appeal, the alternative process by which such errors may be corrected.

47 Where an application to correct a sentence is made by an offender or prosecutor it must be made pursuant to Part 3 of the Sentencing Regulations 1996 (WA). Regulation 5(2) requires that the application be lodged with the court that imposed the sentence. Other procedural provisions are made, designed to comply with the obligation to give the parties the opportunity to be heard. Regulation 5(6) provides that the court need not be constituted by the judicial officer who imposed the original sentence.

48 In my view, the above interpretation of s 37 is consistent with the interpretation which ought to be given to s 37A. That section deals with the case of an offender who is sentenced upon the basis of an undertaking to assist law enforcement authorities and who subsequently fails, wholly or partly, to fulfil the undertaking. Then the court may recall the order imposing the sentence and impose a different sentence. Again, any application must be made in accordance with the regulations and regs 5A and 5B provide the procedure. Section 37A(3) provides that the court's power to resentence may be exercised even if a reduced sentence has been varied on appeal, and under s 37A(4), a sentence imposed under the section may itself be appealed. Again, therefore, one sees that this is a provision dealing with the sentencing process in a court of first instance, and the provision deals with the interface between the exercise of that power and rights of appeal.

49 Further, it is unnecessary to rely on s 37(3) of the Sentencing Act as the source of the slip rule insofar as it may be available to the Court of Appeal. In my view, it would have a broader power of that description, not applicable merely to sentences imposed by the court, derived from the general power provided in s 40(1)(l) that in dealing with an appeal, an appeal court may 'exercise any power that the Supreme Court may exercise in a civil case'.

50 Of course, I arrive at the conclusion to which I have come, that s 37 of the Sentencing Act has no application to the Court of Appeal, by a process of interpretation of s 37(1) in the statutory context in which it is to be found. There are no authorities of which I am aware which illuminate the point. It may have arisen in the recent case, WCW v The State of Western Australia [2008] WASCA 232 in the context of a resentencing exercise made necessary when the court allowed an appeal against conviction in part, quashing two convictions, but leaving others unaffected by the appeal, for which offences the appellant had been sentenced to imprisonment. In the course of that process the sentencing judge had made a mathematical error in the calculation of a term of imprisonment. Encouraged by the court, the appellant had the sentencing judge correct the error before the matter was returned to the Court of Appeal for resentencing.

51 The second question which arises upon the respondent's application, in the event that the court has jurisdiction to deal with the application under s 37(1) on its merits, is the question whether the majority decision to impose a sentence of 3 years imprisonment upon the respondent was to sentence the respondent, 'in a manner that is not in accordance with [the Sentencing Act] or the written law under which the offence is committed'.

52 To deal with the latter aspect first, s 304(2) of the Code provides that a person who commits the offence defined by that subsection, 'is guilty of a crime and is liable to imprisonment for 20 years'. It is obvious that a sentence of 3 years imprisonment is not a sentence which is, 'not in accordance with ... the written law under which the offence is committed'.

53 I turn then to the question whether the failure of the majority in this case to give effect to cl 2(1) of Sch 1, the transitional provisions, enacted by s 22 of the Sentencing Legislation Amendment and Repeal Act 2001, was to sentence the respondent 'in a manner that is not in accordance with' the Sentencing Act. Again, with respect to the contrary view, I think that is not the case.

54 The Sentencing Amendment Act 2003 relevantly altered the statutory framework provided by the Sentencing Act in respect of the operation of sentences of imprisonment. Formerly, they attracted an automatic remission of one-third of the term imposed, whether or not they were parole terms. The transitional provisions were intended to make provision for the impact of that sweeping legislative change upon existing and newly imposed terms of imprisonment.

55 Clause 2(1) has its effect in relation to sentences of imprisonment imposed, with or without parole eligibility, after the amendments came into operation. The court was directed to, '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'. The purpose is clear. It was to prevent a sentence now imposed without the benefit of the automatic one-third remission being suddenly 50% more severe than would formerly have been the case.

56 But it is noteworthy that the clause operates upon a sentence which would have been imposed under the old provisions, ie, a sentence fixed by the ordinary process of the exercise of discretion having regard to the multitude of factors which affect that process. Clause 2(1) does not, of itself, amend the Sentencing Act or, by reference, any Act under which the sentence was imposed, or any available sentencing power. It does not render unlawful or beyond power a sentence which had formerly been within power.

57 A failure to apply cl 2(1) where it is required to be applied, as the majority in this case did, is not to impose a sentence beyond the power of the court, having regard to any provision of the Sentencing Act as amended in 2003. It was to commit an error, adversely affecting the exercise of discretion, which might be corrected on appeal if, in the final result, the exercise of sentencing discretion, having regard to all the circumstances of this case, might be seen to have miscarried, a proposition which would appear at best to be open to argument.

58 In Traegar v Pires de Albuquerque (1997) 18 WAR 432, the respondents had been sentenced in the Court of Petty Sessions for offences upon the basis that they had no prior convictions. In fact, each respondent had at least one relevant prior conviction which made him liable to a statutory minimum penalty exceeding the penalty actually imposed. Steytler J, with whom Kennedy and Heenan JJ agreed, held that the power of the court to recall an order imposing a sentence which was conferred by s 37 of the Sentencing Act, arose where the sentence imposed, although in accordance with the relevant legislation on the facts known at the time of sentencing, was one which could not have been imposed, but a different sentence would have been required as a matter of law, had the true facts been known.

59 Consistently with that view, it seems to me that the discretion conferred by s 37(1) arises where a court sentences an offender in a manner that is not in accordance with the law in the sense that the sentence imposed is not one which could lawfully be imposed under the Sentencing Act or the law under which the offence was committed. Part 5 and subsequent parts of the Sentencing Act are devoted in the main to provisions which govern what may be done by way of sentence in particular cases. The available sentencing options are specified with some particularity, depending on the circumstances of the case and the terms of the statute defining the offence and providing for the punishment of the offender.

60 For these reasons, in my view the decision of the majority in this case by reason of the failure to apply cl 2(1) of the transitional provisions cannot be said to have resulted in the respondent being sentenced in a manner which is not in accordance with, in the sense that it is contrary to or not empowered by, any provision of the Sentencing Act.

61 I would therefore dismiss the application, but in parting with the case I would note that by s 137 of the Sentencing Act no provision of the Sentencing Act affects or limits the exercise of the Royal Prerogative of Mercy. A petition for the exercise of executive clemency would be one way in which the merits of the application now advanced by the respondent might be considered.