THORNLEY -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 107 (13 July 2023)

(2) On the same date and at the same place David James Beynon and John Joshua Thornley stole household items the property of [the complainant].

(3) On 4 September 2020 at Ballajura David James Beynon received property, namely a 9 drawer chest, the property of [the complainant], which had then lately been obtained as part of the proceeds of an indictable offence, namely burglary, then well knowing the same to have been so obtained.

(4) On 21 September 2021 at South Lake John Joshua Thornley received property, namely furniture, the property of [the complainant], which had then lately been obtained as part of the proceeds of an indictable offence, namely burglary, then well knowing the same to have been so obtained.

1. Count 1 is an offence of aggravated burglary, contrary to s 401(2)(a) of the Criminal Code (WA) (the Code), and carries a maximum penalty of 20 years' imprisonment. Count 2 is an offence of stealing, contrary to s 378 of the Code, and carries a maximum penalty of 7 years' imprisonment. Counts 3 and 4 are offences of receiving, contrary to s 414 of the Code, and carry a maximum penalty of 14 years' imprisonment.
2. On 18 November 2021, the appellant and Mr Beynon were convicted as charged on their pleas of guilty. Thus, the appellant and Mr Beynon were each convicted of one count of aggravated burglary, one count of stealing, and one count of receiving stolen property (the appellant, counts 1, 2 and 4; Mr Beynon, counts 1, 2 and 3). Because Mr Beynon was a repeat offender (as defined in s 401B of the Code), he was liable in respect of count 1 to a mandatory sentence of at least 2 years' imprisonment, which could not be suspended.[2]
3. The sentencing judge, Wager CJDC, sentenced the appellant to 18 months' immediate imprisonment on count 1, 12 months' immediate imprisonment on count 4, and imposed no penalty on count 2.[3] Her Honour ordered that the sentences on counts 1 and 4 be served cumulatively. On 24 October 2022, pursuant to s 37 of the Sentencing Act 1995 (WA), her Honour corrected the sentence she imposed on count 4 (to take into account a period of 44 days the appellant spent in custody on remand prior to being sentenced) to 10 months 16 days' immediate imprisonment. Thus, the total effective sentence imposed on the appellant by Wager CJDC was 2 years 4 months 16 days' imprisonment.
4. At the time he was sentenced by Wager CJDC, the appellant was serving a sentence of 4 years 6 months' immediate imprisonment. That sentence was imposed by Sweeney DCJ on 10 June 2021 and was backdated to commence on 5 November 2020. The details of this sentence, including the offences committed by the appellant, are set out below at [30] ‑ [32]. The overall total effective sentence to be served by the appellant as a result of the sentences imposed by Wager CJDC and Sweeney DCJ was 6 years 10 months 16 days' imprisonment with eligibility for parole.
5. Wager CJDC sentenced Mr Beynon to 2 years' immediate imprisonment on count 1, 12 months' immediate imprisonment on count 3, and imposed no penalty on count 2. Her Honour ordered that the sentences on counts 1 and 3 be served cumulatively. Thus, Mr Beynon was sentenced to a total effective sentence of 3 years' imprisonment. At the time Mr Beynon was sentenced, he, like the appellant, was serving a term of imprisonment. On 12 March 2021, Mr Beynon was sentenced by Lonsdale DCJ to 2 years 4 months' immediate imprisonment after pleading guilty to two counts of aggravated home burglary and two counts of stealing. An application to this court for leave to appeal against this sentence was refused.[4] The overall total effective sentence to be served by Mr Beynon, as a result of the sentences imposed by Wager CJDC and Lonsdale DCJ, was 5 years 4 months' imprisonment with eligibility for parole.
6. With respect to the sentences imposed upon the appellant and Mr Beynon by Wager CJDC, it will be noted that the total effective sentence imposed upon the appellant (having regard to her Honour's correction of the sentence for count 4) was seven months and 14 days less than that imposed on Mr Beynon. However, taking into account the time spent on remand, the appellant's total effective sentence as imposed by Wager CJDC was in substance six months less than Mr Beynon's total effective sentence.
7. The appellant appeals to this court against the sentences imposed by Wager CJDC. Ground 1 alleges an infringement of the parity principle. In essence, the appellant contends that there was insufficient disparity between the total effective sentence imposed upon him by Wager CJDC as against the total effective sentence imposed upon Mr Beynon. Ground 2 alleges that the overall total effective sentence imposed upon the appellant infringed the first limb of the totality principle.
8. The appellant's appeal has been brought approximately five months out of time. Accordingly, an extension of time to appeal is required. The respondent did not oppose the application for an extension of time.[5] The delay in bringing the appeal has been adequately explained. Accordingly, we would grant an extension of time. The question of leave to appeal on the grounds has been referred to the hearing of the appeal.
9. For the reasons that follow, neither ground of appeal has been made out. We would refuse leave to appeal and dismiss the appeal.

1. The following facts with respect to the offences in IND 1344 of 2021 are taken mostly from the sentencing remarks of Wager CJDC and are uncontroversial.
2. At all material times, the complainant and his wife owned a high‑value dwelling in Peppermint Grove. They left Australia in November 2019 and were unable to return because of the COVID‑19 pandemic. The owners employed caretakers to pack the furniture and contents of the property prior to its renovation. A quantity of heavy antique Chinese furniture was put into the main dining room. From time to time, the caretakers checked the premises, which were secured, including by locked gates.
3. As to counts 1 and 2, in the early hours of 3 September 2020, the appellant and Mr Beynon attended at the house. Somehow, they entered the property without the consent of the owners. While inside, they removed numerous items of property, including furniture, plastic tubs containing household effects, and wine. A short time later, both offenders were observed by police, driving south in separate vehicles. The vehicles were stopped at separate locations where police observed a number of items in each vehicle. Both offenders were allowed to continue on their way.
4. On 4 September 2020, Mr Beynon attempted to sell a nine‑drawer chest, which had been stolen from the property, on Gumtree. The photograph used for the Gumtree advertisement was taken at Mr Beynon's address. The nine‑drawer chest, which was later identified as belonging to the complainant, has not been recovered. The sentencing judge described the chest as being of 'clearly significant value'.
5. On 5, 8 and 11 September 2020, CCTV footage captured the appellant at his home address unloading property from his vehicle. The property was subsequently identified as having been stolen from the complainant's house.
6. The burglary of the complainant's house was not discovered until 18 September 2020. Forensic officers lifted fingerprints belonging to the appellant from a chair inside the house, and fingerprints belonging to Mr Beynon from a screen divider in the kitchen doorway.
7. On 21 September 2020, police officers executed a search warrant at the appellant's house, where a number of items, including several large items of furniture that had been stolen from the complainant's house, were recovered. The appellant made no comment to the police about the items that were recovered.
8. On 22 September 2020, police executed a warrant at Mr Beynon's address. They recovered items belonging to the complainant, including plastic tubs containing crockery and bed linen.
9. At the sentencing hearing before Wager CJDC, the value of the items stolen from the complainant's house was discussed. Ultimately, her Honour was unable to determine the precise value of the items that were stolen. She described the value of the stolen items as 'significant'. Her Honour accepted that the offenders may not have been aware of just how valuable the items were.[6]
10. Wager CJDC found that the offending was 'a serious premeditated and sophisticated course of conduct'. In this regard, she noted the time of night at which the burglary took place, and that the appellant and Mr Beynon attended the premises in two vehicles. Wager CJDC noted that she had been provided with information that revealed the stolen items were uninsured. Her Honour accepted that the burglary had caused significant loss and grief to the complainant and his wife.
11. It is not disputed that, at the time of the commission of the offences, the appellant was on bail.

1. The sentencing judge was provided with a pre‑sentence report that had been written in relation to the offending that had been earlier dealt with by Sweeney DCJ, an up to date criminal history, and other material, including personal references for the appellant.
2. At the time of the offending, the appellant was aged 32 or 33 years. He was 34 years old at his sentencing. The appellant's parents are still together and are supportive of him. He has had regular employment, and had, in the years prior to his arrest, operated a small home maintenance company.
3. Prior to the commission of the offences, the appellant had been a long‑time user of methylamphetamine. The appellant's use increased over time. At the time of the appellant's arrest for his drug offences the appellant was using approximately 1 g of methylamphetamine a day and spending about $3,000 a week on the drug. The appellant's significant daily use of methylamphetamine coincided with a significant escalation in the seriousness of the appellant's offending.
4. With the exception of the offences that Sweeney DCJ dealt with, the appellant has a short criminal history that consists of traffic, stealing, and minor drug offences.
5. While in custody awaiting sentence for the offences in IND 1344 of 2021, the appellant attended Narcotics Anonymous and 12 recovery from addiction meetings.

1. At the time of the commission of the offences, Mr Beynon was 32 or 33 years of age. He was 34 years old when he was sentenced. Mr Beynon was raised in New Zealand, predominantly by his mother. He had little to do with his father. Mr Beynon left school at the age of 15 or 16, and eventually joined the New Zealand Army. While in the army, his mother and younger brother were tragically killed in a car accident. After some time off, he resumed service in the army for a period of about three years, which included deployment in East Timor.
2. Mr Beynon struggled following the sudden loss of his mother and brother. After returning from East Timor, at about the age of 21, Mr Beynon left the army and began using illicit substances, including methylamphetamine. He subsequently moved to Western Australia in 2014, returned to New Zealand in 2016, and finally came back to Western Australia in mid‑2018.
3. With respect to Mr Beynon's criminal history, he was convicted of stealing as a servant while he was in New Zealand. In 2018, Mr Beynon was convicted in the Perth Magistrates Court of one count of fraud, 10 counts of stealing as a servant and one count of stealing. As a result, he was placed on a community‑based order for a period of 12 months. In 2019, Mr Beynon was convicted in the Magistrates Court of giving false personal details to police. Then, in 2021, he was convicted of the offences referred to at [6] above.

1. On 10 June 2021, the appellant was convicted on his pleas of guilty of one count of possession of cocaine with intent to sell or supply, one count of possession of a trafficable quantity of methylamphetamine with intent to sell or supply, and one count of possession of money that was reasonably suspected to have been unlawfully obtained.
2. On 28 January 2020, police executed a search warrant at the appellant's home and found him in possession of 21.5 g of cocaine (with a purity of 12%), 49.83 g of methylamphetamine (with a purity of 79%) and $33,400 in cash, which was apparently the proceeds of sale of illicit drugs. The police seized a number of items consistent with drug dealing, including a cutting agent and tick lists. Sweeney DCJ said that it was readily apparent the appellant was dealing in drugs.[7]
3. For these offences, after allowing a discount of 15% for the guilty pleas, pursuant to s 9AA of the Sentencing Act, and taking into account the appellant's prospects of rehabilitation, Sweeney DCJ sentenced the appellant to a total effective sentence of 4 years 6 months' immediate imprisonment, with eligibility for parole, backdated to commence on 5 November 2020.

Ground 1 - alleged infringement of the parity principle

1. The parity principle has been explained in a number of decisions of this court, including recently in Gianguilio v The State of Western Australia.[8] For convenience, we will reproduce what was said in that case:

[60] The parity principle requires that the sentences imposed upon co‑offenders be proportionate to the co‑offenders' respective degrees of culpability, to the aggravating and mitigating factors that apply to each of them and to their personal circumstances and antecedents. The sentences imposed upon co‑offenders must reflect any differences between them in relation to those matters. As Brennan J noted in Lowe v The Queen:

'The imposition of comparable sentences upon co‑offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co‑offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case.'

[61] The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe; Postiglione v The Queen; R v Taudevin. The applicable test is objective not subjective.

[62] The application and effect of relevant sentencing principles must be taken into account in determining whether the parity principle has been infringed. See Jardim v The State of Western Australia.

[63] An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. See Lowe (609). But parity of sentencing does not require the imposition of a sentence that is wholly inadequate having regard to the facts and circumstances of the offence and the criminality of the offender or a sentence that is so lenient as to be an affront to the proper administration of justice. See I (a child) v The State of Western Australia; Billing v The State of Western Australia [No 2]; Green v The Queen.

(a) the parity principle is based upon the norm of 'equality before the law' [28];

(b) equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28];

(c) equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28]; and

(d) the parity principle allows for different sentences to be imposed upon like offenders to reflect 'different degrees of culpability and/or different circumstances' [28].

[64] Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co‑offender has played in the relevant criminal conduct or enterprise [31].

[65] In Green, French CJ, Crennan and Kiefel JJ noted:

(a) the foundation of the parity principle in the norm of equality before the law requires that it be applied by reference to matters of substance rather than form;

(b) formal identity of charges against the offenders whose sentences are compared is not essential;

(c) however, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different offences;

(d) the greater the difference between the offences, the greater the practical difficulties, especially where the alleged disparity arises out of a sentence imposed on a co‑offender who has been charged with a less serious offence than the appellant;

(e) however, those practical difficulties and limitations do not exclude the operation of the parity principle; and

(f) the effect given to the parity principle may vary according to the circumstances of the case, including differences between the offences with which co‑offenders are charged [30].

[66] An appellate court, in deciding whether a disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or of giving the appearance in the mind of an objective observer that justice has not been done, must take into account:

(a) all components of the sentence, including the head sentence, the non parole period and the total effective period that both offenders will serve (Postiglione (302)); and

(b) all of the facts and circumstances applicable to both offenders, including the objective seriousness of the offences, for the purpose of identifying whether the disparity was marked and unjustified (Green [30]).

[67] An infringement of the parity principle may occur as a result of a marked disparity in the individual sentences imposed on co‑offenders for a single common offence or from the total effective sentences imposed in relation to multiple common offences, even though either or both of the co‑offenders was also sentenced for other offences. See Higgins v The State of Western Australia.

[68] In our opinion, it is apparent from decisions of the High Court (in particular, Postiglione and Green) that the parity principle is concerned with substance rather than form, and that the manner in which the principle is to be applied will vary according to the facts and circumstances of the case.

[69] All factors relevant to the offenders, the offences they have committed and the sentences they have received must be evaluated and taken into account in determining whether the parity principle has been infringed. The relevant factors will vary according to the facts and circumstances of the case, but those factors will ordinarily include, for example:

(a) the objective seriousness of each offence which each offender has committed;

(b) the culpability of each offender and the aggravating and mitigating factors in relation to each offence which he or she has committed;

(c) whether all of the offences are common to the offenders or whether some of the offences are separate or unrelated and were not committed by all of the offenders;

(d) each sentence imposed on each offender for each offence (both common offences and separate or unrelated offences) which he or she has committed;

(e) whether the sentences imposed on the offenders have been backdated or ordered to be served wholly concurrently, partly concurrently or cumulatively;

(f) the total effective sentence imposed on each offender for the common offences, the total effective sentence imposed on each offender for any separate or unrelated offences and the overall total effective sentence imposed on each offender;

(g) whether any of the offenders were serving terms of imprisonment for other offences when they began serving the sentences about which complaint is made;

(h) the non parole period to be served by each offender; and

(i) the personal circumstances and antecedents of each offender.

[70] The application of the parity principle is often nuanced. Although the court must take into account the actual custodial term to be served by each of the offenders which is solely attributable to the common offences, the weight to be given to that factor will vary. The application of the parity principle does not involve a strict arithmetical comparison between the head sentences and the non parole periods to be served by each of the offenders. Rather, the sentencing court must evaluate and take into account all of the components of the relevant sentences, including any sentences being served for separate or unrelated offences, in the context of all factors of relevance. See Higgins [54], [184].

[71] A sentencing judge's application of the parity principle involves a qualitative and discretionary judgment to which the principles in House v The King apply. See Green [32]; Stanley v The State of Western Australia. (footnotes omitted)

1. It is clear from the sentencing remarks that her Honour was aware of parity considerations in this case.
2. In relation to Mr Beynon, the sentencing judge would have imposed 3 years' imprisonment for count 1 (the burglary offence in common with the appellant), no penalty in respect of count 2 and 12 months' imprisonment for count 3 (the receiving offence) to be served cumulatively on the sentence for count 1. However, for totality reasons her Honour reduced the sentence on count 1 to 2 years' imprisonment. This resulted in a total effective sentence of 3 years' immediate imprisonment.[9]
3. In dealing with the appellant, the sentencing judge concluded that his position was 'different from that of Mr Beynon in that [his] record [was] significantly smaller and [he had not] committed dishonesty offences in the past'.[10] She reflected this difference by referring to imposing a penalty for the appellant on count 1 of 2 years' imprisonment (compared to the 3 years' imprisonment for Mr Beynon) and then reducing the appellant's sentence on count 1 from 2 years to 18 months' imprisonment. In doing so, her Honour said:[11]

But so far as the burglary is concerned, in my view your position is different from that of Mr Beynon because of the history that you present with. So to that end, the penalty in respect of count 1 should, in your situation, have been two years but will be reduced to 18 months.

And in count 2 will be dealt with by section 11.

And in relation to count 4, being the receiving, given the quantity and value, would be a penalty of 18 months.

1. Thus, before the reductions, the sentencing judge would have imposed terms of 3 years' and 2 years' immediate imprisonment respectively on Mr Beynon and the appellant in respect of count 1. The differential was explained by the sentencing judge as being due to the appellant's 'significantly smaller' criminal history and his lack of convictions for any dishonesty offences.
2. The sentencing judge also reduced the appellant's penalty in relation to count 4 (the receiving offence) from 18 months to 12 months, apparently for totality reasons.[12]

1. The appellant accepts that the criminal culpability of the appellant and Mr Beynon was equal in respect of counts 1 and 2, although the appellant's offending on count 4 was more serious than Mr Beynon's on count 3.
2. In essence, the appellant contends that there were two differences between him and Mr Beynon that were favourable to him in sentencing. First, it is said that the appellant's prior criminal record was 'minor' and did not include any dishonesty or burglary offences, unlike the criminal record of Mr Beynon, which was said to be significant and included prior dishonesty and burglary offences. The second factor in favour of the appellant was that, unlike Mr Beynon, he was not a repeat offender who was subject to a mandatory minimum sentence of 2 years' imprisonment with respect to count 1.
3. The appellant contends that these differences should have resulted in a greater disparity between the appellant and Mr Beynon. This lack of disparity, according to the appellant, gives rise to an objectively justifiable sense of grievance on the part of the appellant. The contended for 'legitimate or justified sense of grievance' arose, according to the appellant's submissions, from the outcome in which the total effective sentence imposed on each offender was such that the appellant received only a 6-month reduction in sentence to that of his co-offender.
4. The respondent submits that the disparity between the appellant and Mr Beynon was, in all the circumstances, sufficient. Accordingly, there has been no infringement of the parity principle.

1. The focus of ground 1 is upon the sentences imposed by Wager CJDC in respect of the offences in IND 1344 of 2021.
2. It is clear from the sentencing remarks that her Honour, in the sentences she imposed, differentiated between the appellant and Mr Beynon by reason of the appellant's more favourable criminal history. Although this basis for the differentiation might be debatable given the seriousness of the drug offences committed by the appellant, it is not challenged by the respondent and should be accepted for the purpose of disposing of this ground.
3. The real issue to be determined in respect of ground 1 is whether the difference in the respective criminal histories of the appellant and Mr Beynon justified a greater disparity in the sentence imposed by Wager CJDC upon the appellant. This issue arises in a context where it is accepted that the appellant's offending on count 4 was more serious than Mr Beynon's offending on count 3. In order to decide the issue favourably to the appellant, he must show that the lack of disparity gives rise to a legitimate or justifiable sense of grievance or gives the appearance in the mind of an objective observer that justice has not been done.
4. Accepting that the criminal history of the appellant was more favourable than that of Mr Beynon, in the context where both offenders had prior convictions for serious offending, this difference was, on any objective view, properly, even generously, reflected in the different sentences that her Honour imposed on count 1.
5. We are unable to see in this case how the fact that Mr Beynon was subject to a mandatory minimum sentence on count 1 of 2 years' imprisonment (as distinct from the prior convictions which engaged the mandatory minimum sentence) had any bearing on the question of parity. In oral submissions, counsel for the appellant did not articulate the rationale behind this submission and, in our view, there is no discernible rationale. In any event, as her Honour stated in her sentencing remarks, because of the difference in Mr Beynon's and the appellant's respective criminal histories, before reductions for totality considerations, she would have imposed a sentence of 3 years' imprisonment on count 1 in respect of Mr Beynon whereas the equivalent indicative sentence for the appellant was 2 years' imprisonment.
6. We are satisfied that the disparity between the appellant's sentence and that imposed on Mr Beynon did not infringe the parity principle or the principle of equal justice. The disparity was objectively a sufficient, even generous, reflection of their different circumstances. It does not give rise to a legitimate or justifiable sense of grievance on the appellant's part or give the appearance in the mind of an objective observer that justice has not been done.
7. In our opinion, ground 1 has no reasonable prospect of succeeding. Leave to appeal in relation to it must be refused.

Ground 2 - alleged infringement of the first limb of the totality principle

1. As described by McLure JA in Roffey v The State of Western Australia,[13] the first limb of the totality principle provides that the total effective sentence imposed must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. An alleged infringement of the first limb of the totality principle alleges an implied material error. An appellate court can only intervene if such an error is established. An appellate court cannot substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion differently.
2. It is well established that the totality principle may be applied in circumstances where the appellant was serving another sentence at the time he or she was sentenced.[14]
3. The real issue to be determined with respect to ground 2 is whether the overall total effective sentence of 6 years 10 months 16 days' imprisonment, being the aggregate of the sentences imposed by Wager CJDC and Sweeney DCJ, infringed the first limb of the totality principle.

1. The appellant accepts that it was appropriate for Wager CJDC to accumulate to some extent the sentences she imposed upon the appellant. However, the appellant submits that the overall total effective sentence bore no proper relationship to the appellant's overall criminality and, thus, infringed the first limb of the totality principle.
2. The respondent submits that the overall total effective sentence was an appropriate reflection of the appellant's overall criminality and, thus, did not infringe the first limb of the totality principle.

1. The offences dealt with by Sweeney DCJ, which resulted in a total effective sentence of 4 years 6 months' immediate imprisonment, were, without doubt, serious offences. The appellant was engaged in commercial drug dealing in respect of two different substances. The quantity of illicit drugs in each case was reasonably significant. In the case of the methylamphetamine, because it was a trafficable quantity (that is, more than 28 g), the appellant was liable to the maximum penalty of life imprisonment. Having regard to the mitigating circumstances, including the pleas of guilty, the total effective sentence of 4 years 6 months' imprisonment was a moderate if not lenient sentencing outcome.
2. The offences dealt with by Wager CJDC were also serious. The appellant, while on bail and in company with Mr Beynon, took advantage of the fact that the complainant's home was unoccupied and committed a premeditated and well‑organised burglary on the house, which resulted in the theft of a substantial amount of valuable property. The maximum penalty for the aggravated burglary offence is 20 years' imprisonment. Offences of the kind committed by the appellant and Mr Beynon are prevalent. This court has stated many times that sentences for this kind of offending must be firmed up.[15] As to count 4, the furniture and other items received by the appellant were also of significant value. The total effective sentence imposed upon the appellant by Wager CJDC for the offences in IND 1344 of 2021 was, on any view, modest.
3. The appellant's concession that Wager CJDC was right to accumulate the sentences she imposed on the sentences imposed by Sweeney DCJ was undoubtedly correct. This offending was separate in time and different in nature to the appellant's earlier drug offences.
4. The appellant has fallen a long way short of demonstrating that the overall total effective sentence ultimately imposed upon him infringed the first limb of the totality principle. It was a proper reflection of the appellant's overall criminality in the matters dealt with by Wager CJDC and Sweeney DCJ, having regard to all of the relevant circumstances and all relevant sentencing factors, including all the mitigating factors and the appellant's personal circumstances.
5. In our opinion, ground 2 has no reasonable prospect of succeeding. Leave to appeal should be refused.

1. The orders we would make are as follows:
   1. An extension of time to appeal is granted.
   2. Leave to appeal is refused.
   3. The appeal is dismissed.

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

[3] This was because the stealing the subject of count 2 was the same as the grounding offence on count 1: s 11 of the Sentencing Act.

[4] Beynon v The State of Western Australia [2021] WASCA 153.

[7] Sentencing transcript, 10 June 2021, ts 30.

[8] Gianguilio v The State of Western Australia [2022] WASCA 77 [60] ‑ [71].

[13] Roffey v The State of Western Australia [2007] WASCA 246 [23] ‑ [24].

[14] See Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[15] See, for example, Eldridge v The State of Western Australia [2020] WASCA 66 [63] ‑ [64].