Criminal law - Appeal against sentence - Appellant convicted after trial of one count of unlawful assault occasioning bodily harm and two counts of unlawfully doing grievous bodily harm with intent to maim, disfigure, disable or do some grievous bodily harm - Offending occurred in company - Total effective sentence of 6 years 4 months' imprisonment - Totality principle

Sentencing Act 1995 (WA), s 6, s 7, s 8

Application for an extension of time to appeal dismissed

Abfahr v The State of Western Australia [2013] WASCA 87

Ali v The State of Western Australia [2013] WASCA 55

Allen v The State of Western Australia [2017] WASCA 203

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

Black v The State of Western Australia [No 2] [2010] WASCA 145

Carrick v The State of Western Australia [2017] WASCA 175

Clarke v The State of Western Australia [No 2] [2013] WASCA 197

Eriha v The State of Western Australia [2011] WASCA 167

Gaskell v The State of Western Australia [2018] WASCA 8

Giglia v The State of Western Australia [2010] WASCA 9

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

Kennedy v The State of Western Australia [2008] WASCA 185

Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368

McCormack v The Queen [2000] WASCA 139

McKenzie v The State of Western Australia [2015] WASCA 163

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

Merlo v The State of Western Australia [2018] WASCA 71

Minhaj v The Queen [2000] WASCA 52

Moore v The State of Western Australia [2019] WASCA 35

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

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

Oxenham v The State of Western Australia [2015] WASCA 30

Petrelis v The State of Western Australia [2012] WASCA 235

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

Rolfe v The State of Western Australia [2012] WASCA 169

Spirovski v The State of Western Australia [2017] WASCA 230

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

The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394

The State of Western Australia v Cheeseman [2011] WASCA 15

The State of Western Australia v Doyle [2017] WASCA 207

The State of Western Australia v Jeffries [2007] WASCA 255

The State of Western Australia v Khasay [2014] WASCA 58

The State of Western Australia v Legge [2014] WASCA 47

The State of Western Australia v Naumoski [2013] WASCA 215; (2013) 234 A Crim R 566

Wells v The State of Western Australia [2013] WASCA 124

Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326

Zhang v The State of Western Australia [2013] WASCA 121

1. The appellant has applied for an extension of time to appeal and for leave to appeal against sentence.
2. On 19 September 2017, the appellant was convicted, after a trial in the District Court before Goetze DCJ and a jury, of three counts in an indictment.
3. The indictment pleaded that on 11 June 2016, at Ravenswood:

(a) the appellant, Corey Carlin Cadman and Paul Joseph Tamainu unlawfully assaulted Daniel Lee Harris and thereby did him bodily harm, contrary to s 317(1) of the Criminal Code (WA) (the Code) (count 1);

(b) the appellant, Mr Cadman and Mr Tamainu, with intent to maim, disfigure, disable or do some grievous bodily harm to Mark Steven Hayes, unlawfully did grievous bodily harm to Mr Hayes, contrary to s 294(1) of the Code (count 2); and

(c) the appellant, Mr Cadman and Mr Tamainu, with intent to maim, disfigure, disable or do some grievous bodily harm to Darren Michael Dion Layton, unlawfully wounded Mr Layton, contrary to s 294(1) of the Code (count 3).

1. On 21 September 2017, the trial judge imposed individual sentences of immediate imprisonment as follows:

1. His Honour ordered that the sentence for count 3 be served cumulatively upon the sentence for count 2 and that the sentence for count 1 be served concurrently with the sentence for count 2. The total effective sentence was therefore 6 years 4 months' imprisonment. The total effective sentence was backdated to 25 September 2016. A parole eligibility order was made.
2. The last date for appealing against sentence was 12 October 2017. The appellant did not file his appeal notice until 25 May 2018. The application for an extension of time to appeal is supported by an affidavit of the appellant's lawyer, Abigail Sian Rogers, sworn 24 May 2018. On 5 August 2018, Mazza JA referred the application for an extension of time to the hearing of the appeal.
3. We would dismiss the application for an extension of time to appeal and refuse leave to appeal. Our reasons are as follows.

The facts and circumstances of the offending

1. The facts and circumstances of the offending, as found by the trial judge, were in essence as follows.
2. The appellant's co-offender, Mr Cadman, knew Shelly Sinnot. She sold Mr Cadman a washing machine and Mr Cadman paid for it with prohibited drugs. Ms Sinnot was a drug user. Ordinarily, she purchased her drugs from Mr Harris (the victim in count 1). Ms Sinnot thought she might benefit as a drug user if she introduced Mr Cadman to Mr Harris. She arranged for them to meet on 11 June 2016 in a room (room 11) she had booked at the Ravenswood Hotel. The purpose of the meeting was to enable Mr Cadman and Mr Harris to discuss a drug deal.
3. Mr Cadman retained the appellant to drive him to the Ravenswood Hotel. The appellant told the police after his arrest that he went to the hotel 'to make an earn and to bash a guy' (sentencing ts 3). Mr Cadman was to pay the appellant for his assistance by giving him 1 g of methylamphetamine when they returned to Mr Cadman's home after the incident at the hotel. The appellant took with him to the hotel a beanie which had been fashioned into a balaclava.
4. After Mr Cadman and the appellant arrived at the Ravenswood Hotel, Mr Cadman met with Mr Harris in room 11. The appellant and Mr Tamainu waited outside the room.
5. Mr Cadman then signalled to the appellant and Mr Tamainu, by flicking the curtains, to enter room 11. As they entered, Mr Cadman found and took possession of Mr Harris' drugs. Mr Cadman also took possession of money that was on a bench in the room. Mr Cadman left the room with the drugs and money. The appellant and Mr Tamainu remained in the room with Mr Harris. Mr Tamainu was armed with a machete.
6. Next, Mr Hayes (the victim in count 2) and Mr Layton (the victim in count 3) entered room 11. When they entered, the appellant and Mr Tamainu were attacking Mr Harris on the floor. Mr Hayes jumped over the appellant and rugby-tackled Mr Tamainu. Mr Layton picked up a chair and 'ended up hitting Mr Hayes on his back with [the] chair' (sentencing ts 4). Mr Harris was punched to the head and suffered cuts to his mouth (including the inside of his mouth) and bruises to his back and thighs. Those injuries to Mr Harris constituted the bodily harm for the purposes of count 1.
7. Mr Layton endeavoured to stand between Mr Hayes and Mr Tamainu. Mr Layton was struck with the machete on his elbow. He was wounded. Mr Hayes was struck by the machete on his right knee, left thigh and right foot.
8. The injury to Mr Hayes' foot constituted the grievous bodily harm for the purposes of count 2.
9. As Mr Layton attempted to leave room 11, Mr Tamainu struck him with the machete and wounded his back. The injuries to Mr Layton's elbow and back constituted the wounding for the purposes of count 3.
10. Mr Harris went to the Ravenswood Hotel with Mr Hayes and Mr Layton because he wanted 'back up' to ensure that the proposed drug deal with Mr Cadman went according to plan (sentencing ts 4).
11. CCTV footage showed Mr Tamainu in possession of the machete after the incident. Police located the machete in Mr Cadman's garage.
12. At sentencing, his Honour found that:

(a) the incident arose from 'a planned stealing of Mr Harris' drugs in which there was a preparedness to use violence, with [the appellant] going there to punch a guy and Mr Tamainu being armed with a machete' (ts 5);

(b) the appellant and Mr Tamainu took their beanies to the hotel to wear them as balaclavas (ts 5);

(c) it was 'inconceivable' that the appellant did not know about the machete before the incident in room 11 (ts 4);

(d) there was a preparedness to use the machete in the event that it was required (ts 5 - 6);

(e) in the event, there was a fight in the room and the machete was used (ts 6);

(f) the machete was a 'huge weapon' which could only have been intended to be used as a threat or to be actually used (ts 6);

(g) there was an intent to cause grievous bodily harm in the use of the machete, and its use was for the purpose of stealing Mr Harris' drugs (ts 6);

(h) fortunately, Mr Harris only suffered bodily harm and Mr Layton only suffered a wound to his back, but Mr Hayes suffered grievous bodily harm to his right foot (ts 6);

(i) the grievous bodily harm suffered by Mr Hayes 'without the intervention of medical assistance, was both life-threatening and likely to result in permanent injury', but with medical intervention 'his life was not threatened' (ts 6); and

(j) despite the medical intervention, Mr Hayes has been left with a permanent injury to his right foot in that he has limited mobility with his ankle and scarring on his ankle (ts 6).

1. The trial judge said that the offending was aggravated by:

(c) there having been 'a certain amount of planning and preparation' for the stealing of Mr Harris' drugs;

(e) the offending having occurred at a place where members of the public were present (ts 6).

The nature and extent of Mr Hayes' injuries

1. The nature and extent of Mr Hayes' injuries was the subject of uncontested evidence at the trial.
2. Dr Nicholas Calvert, a medical practitioner and an orthopaedic registrar at Royal Perth Hospital, was a State witness.
3. Dr Calvert gave evidence that he examined Mr Hayes on 11 June 2016 at Royal Perth Hospital. Mr Hayes had a laceration to his right foot. The laceration went through the skin, subcutaneous tissue and the extensor tendons of the foot. The laceration penetrated one of the arteries in the top portion of Mr Hayes' foot and went into the bones and joints in the middle of his foot. The bones were fractured. In essence, there was a 'deep laceration that went all the way through his foot' (ts 261). In addition to the injury to his right foot, Mr Hayes had two lacerations to his thighs. The deeper laceration was to his left thigh. The smaller laceration was to his right thigh. The length of the laceration to his left thigh was about 9 cm. That laceration went through Mr Hayes' skin and 'down to his quadriceps muscles' (ts 262). The most significant injury was to his right foot.
4. Dr Calvert said that Mr Hayes was taken to theatre and given a general anaesthetic. The surgery team washed out the joints of Mr Hayes' right foot; tied the artery on the top portion of his foot; excised small bone fragments in his foot; repaired the lining of the joints, the tendons, the subcutaneous tissues and the skin; and applied a plaster to enable the injuries to heal.
5. Subsequently, Mr Hayes underwent a period of immobilisation to allow the tendons to heal. He then required physiotherapy for rehabilitation. He was given intravenous antibiotics to prevent infection, analgesia and blood clot prophylaxis.
6. If Mr Hayes had not received medical treatment, there was the potential for him to have lost his life as a result of an infection in the bone 'which could have ... become systemic with infections spreading to his blood stream and then resulting in death' (ts 263). If Mr Hayes had not undergone surgery, he would have had a permanently non-functioning foot.
7. Dr Calvert was not cross-examined (ts 263).

The appellant's personal circumstances and antecedents

1. The appellant was born on 19 June 1976. He was aged 39 at the time of the offending and was 41 when sentenced. The appellant came to Australia in 2002. He has two children from a relationship which ended in about 2010. He has another child with his current partner. He has support from his family.
2. The appellant is a spray painter and a sandblaster by occupation.
3. The appellant has a prior criminal record. Prior to 2001, he had accumulated convictions in New Zealand for common assault, fighting, speaking threateningly, wilful damage, disorderly conduct and receiving. Since 2002, he has accumulated convictions in Western Australia for traffic offences, possession of prohibited drugs, possession of a controlled weapon, stealing a motor vehicle on two occasions and breach of bail and community-based orders.
4. The appellant was on home detention in relation to the offences in question between 10 June 2017 and 19 September 2017. The trial judge said that he would take that period into account by reducing the term of imprisonment he would otherwise have imposed for count 3 from 2 years to 1 year 10 months.

1. The sole ground of appeal alleges, in effect, that the total effective sentence of 6 years 4 months' imprisonment infringed the first limb of the totality principle.
2. On 5 August 2018, Mazza JA referred the application for leave to appeal on that ground to the hearing of the appeal.

The ground of appeal: the appellant's submissions

1. It was submitted, on the appellant's behalf, in his written submissions that:

(a) The total effective sentence of 6 years 4 months' imprisonment was disproportionate to the appellant's overall criminality 'as reflected in the combination of offences before the Court and with regard to matters personal to the appellant'.

(b) Although the offending occurred in company, the appellant was not himself armed.

(c) The grievous bodily harm suffered by Mr Hayes and the wounding suffered by Mr Layton were caused by Mr Tamainu wielding the machete.

(d) The attack on the victims was not characterised by his Honour as 'a deliberate display of violence, nor was it repeated, nor senseless'.

(e) A relevant sentencing factor was the business which the victims were engaged in, namely drug dealing. That business is 'notoriously risky and it was clear that this had been considered by Harris, who had brought back-up for the anticipated sale [of prohibited drugs]'.

(f) The offending 'can only be viewed as towards the lower end of the scale in terms of severity for like offending'.

1. It was also submitted, on the appellant's behalf, in his written submissions that the 'one transaction rule' required that the additional term of imprisonment imposed in respect of count 3 be reduced or made wholly concurrent. The three offences constituted 'a single invasion of the hotel room' and none of the offences were 'separate or distinct'. His Honour should have ordered that all of the sentences be served concurrently.
2. Counsel for the appellant argued at the hearing that there were common aggravating factors in relation to the individual offences and that 'the accumulation between counts 2 and 3 [means] that there has been a penalisation in relation to factors twice' (appeal ts 3). Counsel elaborated that 'part of the totality principle involved not engaging in double [counting] in relation to [the] sentencing process' (appeal ts 4).
3. Counsel also argued that although the appellant was 'clearly legally culpable for counts 2 and 3', he did not anticipate the presence of Mr Hayes or Mr Layton and his 'ability to extricate himself from the situation was practically nil' (appeal ts 3).

The ground of appeal: the State's submissions

1. Counsel for the State submitted that it was apparent from the maximum penalties, the circumstances of the offending considered as a whole, the broad sentencing range discernible from comparable cases, the appellant's personal circumstances and the lack of mitigating features that the total effective sentence imposed upon the appellant did not infringe the first limb of the totality principle. Neither the 'one transaction rule' nor the other matters referred to by the appellant demonstrated that a different sentence ought to have been imposed.

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

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

(a) if the offence is committed in circumstances of aggravation ... to imprisonment for 7 years; or

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

1. In the present case, no circumstances of aggravation were alleged against the appellant. The maximum penalty for count 1 was therefore 5 years' imprisonment.
2. The maximum penalty for each of the offences the subject of counts 2 and 3 was 20 years' imprisonment.
3. The appellant does not challenge any of the individual sentences. He does not allege that the parity principle was infringed. His sole challenge is to the total effective sentence.
4. The appellant does not allege that the trial judge made any express error either in his fact-finding for the purposes of sentencing or otherwise.
5. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
6. The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia.[1] Also, the severity or leniency of an individual sentence (which is nevertheless within the 'available range' of sentences) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia;[2] Gaskell v The State of Western Australia.[3]
7. The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
8. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
9. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
10. If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. See Munda v The State of Western Australia;[4] The State of Western Australia v Doyle.[5]
11. Similarly, if, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia.[6]
12. Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[7]
13. In the present case, the sentencing judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act 1995 (WA). Part 2 div 1 comprises s 6 to s 9AA.
14. By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
15. In Mourish v The State of Western Australia,[8] McLure JA (Steytler P & Wheeler JA agreeing) summarised the sentencing dispositions in various cases relating to the offence of assault occasioning bodily harm, contrary to s 317(1) of the Code. Where the case was decided before the commencement of the transitional provisions, her Honour converted the sentences to post-transitional sentences and recorded the pre-transitional sentence in brackets. The relevant cases, as set out by her Honour, were these:

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

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

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

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

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

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

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

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

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

1. In Holden v The State of Western Australia,[9] Wheeler JA said that it is difficult to discern a 'tariff' for the offence of assault occasioning bodily harm because of the great variation in the circumstances in such cases. Her Honour added, however, that:

[I]n cases which have involved pleas of guilty, a post-transitional range could appropriately include sentences from 6 months' suspended imprisonment, to 2 years' immediate imprisonment. That range is demonstrated to be appropriate even in relation to sentences imposed by magistrates, the jurisdictional limit of whose sentencing in respect of such offences is 2 years' imprisonment, as opposed to the 5 years available on indictment [43].

1. We have had regard to numerous sentencing dispositions for offences against s 317(1) of the Code, without circumstances of aggravation, including the relevant dispositions in Mourish; The State of Western Australia v Camilleri;[10] Holden; Wiltshire v Mafi;[11] The State of Western Australia v Cheeseman;[12] Langdon v Kelemete-Leoli-McLean;[13] Ali v The State of Western Australia;[14] Clarke v The State of Western Australia [No 2];[15] Carrick v The State of Western Australia;[16] Allen v The State of Western Australia[17] and Spirovski v The State of Western Australia.[18]
2. The seriousness of the facts and circumstances of offending contrary to s 294 of the Code can be highly variable. See Black v The State of Western Australia [No 2].[19]
3. In The State of Western Australia v Jeffries,[20] Steytler P (McLure and Miller JJA agreeing) referred to Stephens v The State of Western Australia[21] and the cases reviewed in Stephens. His Honour said:

Those were cases of causing grievously bodily harm with intent contrary to s 294 of [the Code] ... They reveal that in such cases sentences of between 7 and 12 years' imprisonment, prior to the operation of the transitional provisions, are not uncommon [12].

1. We have examined numerous prior cases of offending contrary to s 294 of the Code including Minhaj v The Queen;[22] McCormack v The Queen;[23] McMaster v The Queen;[24] Kennedy v The State of Western Australia;[25] Eriha v The State of Western Australia;[26] Rolfe v The State of Western Australia;[27] Petrelis v The State of Western Australia;[28] Abfahr v The State of Western Australia;[29] Zhang v The State of Western Australia;[30] Wells v The State of Western Australia;[31] The State of Western Australia v Naumoski;[32] The State of Western Australia v Legge;[33] The State of Western Australia v Khasay;[34] Oxenham v The State of Western Australia;[35] McKenzie v The State of Western Australia;[36] and Merlo v The State of Western Australia.[37]
2. It is unnecessary to reproduce the facts and circumstances of or the sentencing outcomes in the prior cases of offending contrary to s 317(1) or s 294. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features. The individual sentences imposed in the present case (which are not challenged) were broadly consistent with the sentencing pattern for offences of the kind committed by the appellant, having regard to the comparable and distinguishing features between the prior cases and the appellant's case.
3. In the present case, the appellant's offending was, no doubt, serious. The offending arose from 'a planned stealing of Mr Harris' drugs in which there was a preparedness to use violence' (sentencing ts 5). A machete, capable of inflicting significant and, potentially, fatal injuries, was carried by one of the offenders and used to assault Mr Hayes and Mr Layton. The trial judge made an unchallenged finding that it was 'inconceivable' that the appellant did not know about the machete before the incident in room 11 (sentencing ts 4). The planning for the offence included the appellant and Mr Tamainu taking their beanies to the hotel and wearing them as balaclavas and the appellant and Mr Tamainu entering room 11 upon Mr Cadman giving them a predetermined signal. The appellant made no attempt to withdraw from the offending or prevent Mr Tamainu from wielding the machete. The offending occurred at night when members of the public were staying at the hotel. The offences were committed for purposes relating to prohibited drugs. Mr Hayes (the victim in count 2) suffered significant injuries. He has been left with a permanent injury to his foot (namely, limited mobility with his ankle and scarring on his ankle).
4. In the circumstances, the fact that it was Mr Tamainu, and not the appellant, who used the machete carried little mitigatory weight in the appellant's sentencing.
5. The fact that his Honour did not characterise the attack on the victims as 'a deliberate display of violence, nor was it repeated, nor senseless' is not mitigating. The absence of that characterisation merely indicates that the offending could have been more serious than it was.
6. The fact that the business of dealing in prohibited drugs is 'notoriously risky' is not mitigating. Violent assaults are not less serious merely because the victims are carrying on an illegal enterprise in which violence is not unusual. His Honour noted, correctly, that '[e]ven drug dealers are entitled to the protection of the law' (sentencing ts 9).
7. As we have mentioned, the appellant was aged 39 at the time of the offending and was 41 when sentenced. He was not youthful or inexperienced for sentencing purposes.
8. Also, as we have mentioned, the appellant had previous convictions. His prior criminal record, and any failure of previous sentences to achieve the purpose for which they were imposed, did not aggravate the offending in question. However, his record indicated that the current offences were not an aberration by a person who was otherwise of good character.
9. The appellant was entitled to proceed to trial, but consequently he did not have the mitigation that pleas of guilty would have brought.
10. The application of the first limb of the totality principle requires the sentencing judge to impose a total effective sentence which bears a proper relationship to the overall criminality involved in all of the offences committed by the offender. The offences must be viewed in their entirety and the sentencing judge must take into account all relevant circumstances, including those referable to the offender personally and the total effective sentences imposed in comparable cases. Where an offender has committed multiple offences and there are common aggravating factors in relation to those offences, the sentencing judge must take that commonality into account in applying the first limb of the totality principle. However, the sentencing judge is not bound, merely by virtue of the commonality, to order that the individual sentences be served wholly or to a substantial extent concurrently.
11. The so-called 'one transaction rule' or 'continuing episode rule' is not a rule at all, but merely a guideline. Ultimately, each case must be decided on its own facts and circumstances. The sentencing court must decide, in each case, whether the application of the guideline would result in an appropriate measure of the total criminality involved in the offending conduct considered as a whole, having regard to all relevant facts and circumstances and all relevant sentencing factors. Substantial accumulation of individual sentences may be required, notwithstanding that the offences were committed during one episode of criminal behaviour.
12. In our opinion, it is not reasonably arguable in the present case that the total effective sentence of 6 years 4 months' imprisonment infringed the first limb of the totality principle. Each of the offences involved a different victim. A custodial term of 6 years 4 months was necessary in order properly to reflect the serious nature of the appellant's offending, viewed as a whole, and properly to recognise the important sentencing considerations of personal and general deterrence. The total effective sentence bears a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the seriousness of the overall offending, the pattern of sentencing in reasonably comparable cases and the very limited mitigation referred to by his Honour.
13. Error by the trial judge in the exercise of his discretion cannot be inferred, based on the first limb of the totality principle, from the sentencing outcome. The total effective sentence of 6 years 4 months' imprisonment was not unreasonable or plainly unjust.

1. The ground of appeal does not have a reasonable prospect of success. Further, a significant proportion of the appellant's delay in filing his appeal notice has not been explained adequately. We would therefore dismiss the application for an extension of time to appeal.
2. Leave to appeal should be refused. The appeal must be dismissed.

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

[1] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).

[2] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).

[3] Gaskell v The State of Western Australia [2018] WASCA 8 [52] - [60] (Buss P), [150] - [151] (Mazza & Beech JJA).

[4] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).

[5] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).

[6] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).

[7] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).

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

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

[10] The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394.

[11] Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326.

[12] The State of Western Australia v Cheeseman [2011] WASCA 15.

[13]Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368.

[14]Ali v The State of Western Australia [2013] WASCA 55.

[15] Clarke v The State of Western Australia [No 2] [2013] WASCA 197.

[16] Carrick v The State of Western Australia [2017] WASCA 175.

[17] Allen v The State of Western Australia [2017] WASCA 203.

[18] Spirovski v The State of Western Australia [2017] WASCA 230.

[19] Black v The State of Western Australia [No 2] [2010] WASCA 145 [28] (McLure P; Buss JA and Mazza J agreeing).

[20] The State of Western Australia v Jeffries [2007] WASCA 255.

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

[22] Minhaj v The Queen [2000] WASCA 52.

[23] McCormack v The Queen [2000] WASCA 139.

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

[25] Kennedy v The State of Western Australia [2008] WASCA 185.

[26] Eriha v The State of Western Australia [2011] WASCA 167.

[27] Rolfe v The State of Western Australia [2012] WASCA 169.

[28] Petrelis v The State of Western Australia [2012] WASCA 235.

[29] Abfahr v The State of Western Australia [2013] WASCA 87.

[30] Zhang v The State of Western Australia [2013] WASCA 121.

[31] Wells v The State of Western Australia [2013] WASCA 124.

[32] The State of Western Australia v Naumoski [2013] WASCA 215; (2013) 234 A Crim R 566.

[33] The State of Western Australia v Legge [2014] WASCA 47.

[34] The State of Western Australia v Khasay [2014] WASCA 58.

[35] Oxenham v The State of Western Australia [2015] WASCA 30.

[36] McKenzie v The State of Western Australia [2015] WASCA 163.

[37] Merlo v The State of Western Australia [2018] WASCA 71.