WALLEY -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 112 (23 July 2025)

1. At the outset, it is convenient to set out the circumstances and details of the previous sentences.
2. The previous sentences comprise sentences imposed by:

(a) Stavrianou DCJ on 19 July 2022: 4 years 2 months' imprisonment;

(b) Magistrate Hall on 18 August 2022: 6 months' imprisonment (cumulative);

(c) Magistrate Lemmon on 10 March 2023: 2 months' imprisonment (cumulative); and

(d) Magistrate Lemmon on 5 July 2023: 8 months' imprisonment (concurrent).

1. The appellant was convicted on his pleas of guilty of five offences committed over the night of 18/19 September 2020. The offences were committed in the company of a co‑offender, Frederick Bartholomew Williams, and two other unidentified men.
2. At about 8.10 pm on 18 September 2020, front and rear registration plates were stolen from a vehicle in North Fremantle by an unidentified person or persons. They were then put on another vehicle, a black Holden Commodore, which the appellant and his co‑offenders used in the course of the offending which followed.
3. At about 11.53 pm on 18 September 2020, the appellant and the co‑offenders went to a house in Applecross. One of the offenders broke a glass door on the top floor of the house, which enabled Mr Williams and others to enter the house and steal items, with a total value of approximately $5,800. The appellant remained outside the property, as a lookout.
4. At approximately 1.50 am on 19 September 2020, the appellant and the co‑offenders went to the Winthrop Village Shopping Centre. The appellant and one of the unidentified men used a crowbar to force entry to the main doors of the shopping centre. They then forced open the roller door of the Australia Post shop. Mr Williams and others entered the shop, and stole items worth approximately $400. The appellant remained outside, as a lookout.
5. At approximately 2.12 am on 19 September 2020, the appellant and Mr Williams went to Coles Express service station in Bull Creek. The appellant attempted to smash the glass panel on the front door of the store with a crowbar, but he failed to gain entry, and the alarm system was activated. The two men then left the store.
6. In sentencing the appellant, Stavrianou DCJ took into account the appellant's childhood deprivation as a matter which reduced his moral culpability, and gave a 20% discount for the pleas of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA).
7. Stavrianou DCJ imposed the following sentences:

(s 11 of the Sentencing Act)

Aggravated burglary and commit - Australia Post, Winthrop Village Shopping Centre

Stealing - Australia Post, Winthrop Village Shopping Centre

(s 11 of the Sentencing Act)

Attempted aggravated burglary with intent - Coles Express, Bull Creek

1. The total effective sentence imposed by Stavrianou DCJ was 4 years 2 months' imprisonment. The appellant was made eligible for parole, and the sentence was backdated to commence on 15 July 2021.

Proceedings before Magistrate Hall - 18 August 2022

1. On 18 August 2022, the appellant was sentenced by Magistrate Hall for a total of 14 offences. Six of these offences were before the magistrate in respect of a breach of a CSIO made by Magistrate Johnson on 16 June 2021, for offences of attempted aggravated burglary; possession of stolen or unlawfully obtained property; three aggravated burglaries; and a (unaggravated) burglary. Magistrate Johnson sentenced the appellant to 21 months' imprisonment, conditionally suspended for 12 months. It is unnecessary to set out in detail the facts of the offending the subject of the CSIO. It is enough to say that the attempted aggravated burglary, the aggravated burglary offences, and the (unaggravated) burglary were committed on business premises, where entry was obtained, windows were damaged or smashed, and property or cash of very modest value was stolen.
2. The remaining eight offences, which the appellant pleaded guilty to, all breached the CSIO made by Magistrate Johnson. The appellant received custodial sentences for six of these offences. The remaining two offences, which related to the possession of prohibited drugs or a controlled or prescription drug, resulted in fines. The six offences for which the appellant received custodial sentences were two counts of possession of stolen or unlawfully obtained property; three counts of driving a motor vehicle while disqualified; and one count of stealing a Yamaha motorcycle. These offences were committed between 16 August 2021 and 18 February 2022.
3. It is plain from his sentencing remarks that Magistrate Hall was aware of the sentences that had been imposed by Stavrianou DCJ. Magistrate Hall expressly applied the totality principle, and imposed a cumulative total effective sentence of 6 months' imprisonment, as follows:[2]

Attempted aggravated burglary with intent - Wattleup Tavern

Aggravated burglary and commit - Aldi, Waikiki Shopping Centre

Possession of stolen or unlawfully obtained property - Suzuki off‑road motorcycle

Possession of stolen or unlawfully obtained property - 1988 Kawasaki motorcycle

(s 49(1)(a) and s 49(3)(b) of the Road Traffic Act 1974 (WA))

18 months' imprisonment and a fine of not less than $1,000 and not more than $4,000

(s 49(1)(a) and s 49(3)(b) of the Road Traffic Act 1974 (WA))

18 months' imprisonment and a fine of not less than $1,000 and not more than $4,000

(s 49(1)(a) and s 49(3)(b) of the Road Traffic Act 1974 (WA))

18 months' imprisonment and a fine of not less than $1,000 and not more than $4,000

Possession of stolen or unlawfully obtained property - stolen credit cards

Proceedings before Magistrate Lemmon - 10 March 2023

1. On 10 March 2023, the appellant pleaded guilty to four offences. Of these, he received custodial sentences for two offences, being one count each of driving while disqualified and dangerous driving. These offences were committed at approximately 10.35 am on 23 December 2021 in Hammond Park. Essentially, the appellant sought to evade a police pursuit, and, in the process, substantially exceeded the speed limit, crossed onto the incorrect side of the road, mounted a kerb, and drove through council gardens and residential front yards, before colliding with a metal bollard on a footpath.
2. In sentencing the appellant, Magistrate Lemmon had regard to the sentences that had been imposed in previous proceedings. The appellant also received discounts pursuant to s 9AA of the Sentencing Act for his pleas of guilty. On each charge, the appellant was sentenced to 2 months' imprisonment. These terms were ordered to be served concurrently with each other, but cumulatively upon the other terms of imprisonment the appellant was then serving.

1. On 5 July 2023, the appellant was again sentenced by Magistrate Lemmon. On this occasion, he pleaded guilty to two offences, being one count each of aggravated burglary on a shopping centre and attempted stealing, which were committed between midnight and 1.00 am on 4 February 2022.[3]
2. The appellant went to a shopping centre in Bertram, in the company of an unknown person. The vehicle in which they were travelling was used to smash open the doors of the shopping centre. The vehicle was then driven into the foyer of the shopping centre, up to an automatic teller machine (ATM). The appellant and the co‑offender were unable to lift the ATM into the vehicle, and, eventually, they abandoned the ATM in the shopping centre. The offences were captured on CCTV footage.
3. Magistrate Lemmon again acknowledged that the appellant was already subject to a substantial term of imprisonment. After giving a 15% discount for the pleas of guilty pursuant to s 9AA of the Sentencing Act, Magistrate Lemmon imposed a sentence of 8 months' imprisonment for the aggravated burglary, and no sentence, pursuant to s 11 of the Sentencing Act, for the attempted stealing offence. His Honour ordered that the sentence of 8 months' imprisonment be served concurrently with the terms of imprisonment the appellant was already serving.

1. In the proceedings before Christian DCJ, the appellant was originally charged on indictment with four offences, all of which were alleged to have occurred on 17 February 2022. The charges were listed for a trial to begin on 12 February 2024. However, after some negotiation, shortly before the commencement of the trial, the appellant agreed to plead guilty to counts 2 and 3. Counts 1 and 4 were discontinued. The facts of the offending are summarised at [2] above. As mentioned, as at 17 February 2022, the appellant was subject to the CSIO that was imposed by Magistrate Johnson on 16 June 2021. He was also on bail in respect of the offences that were ultimately dealt with by Stavrianou DCJ.
2. Her Honour was aware that the appellant was serving the previous sentences, which totalled 4 years 10 months' imprisonment.
3. Her Honour was informed by the prosecutor that, for the previous sentences, the appellant's earliest eligibility for parole was 14 November 2023, and that the sentence would be completed on 14 November 2025.[4] Her Honour was also aware of the sentencing outcome of his co‑offender, Mr Calgaret. While parity with Mr Calgaret was raised in sentencing submissions (and in this appeal), in the end, it was not a significant consideration in the sentencing of the appellant. This is because, while Mr Calgaret was sentenced in respect of more offences, his guilty pleas were entered at an earlier stage than the appellant, and he had significant other mitigation, which the appellant did not have.
4. In sentencing the appellant, the principal issues for her Honour to determine concerned the appellant's antecedents, his prospects of rehabilitation, the discount to be given under s 9AA of the Sentencing Act for the late pleas of guilty, and the application of the totality principle.

1. Among the materials considered by her Honour was a psychiatric report by Dr Siva Bala, dated 16 January 2022, and a psychological report by Ms Claire Lynn, dated 20 May 2022, both of which had been prepared for the sentencing proceedings before Stavrianou DCJ.
2. The appellant was 49 years of age at the time of the offending, and 51 years of age at the time he was sentenced. He was born and raised in Perth by his mother and stepfather. He has four siblings. The appellant's parents abused alcohol, and his stepfather was controlling and physically abusive towards him. The appellant spent much of his childhood living with his grandmother as a result.
3. The appellant was made a ward of the State at the age of 10 years. At various times, he was placed with family members or in detention. The appellant had been sexually abused while a ward of the State.
4. At about the age of 8 years, as a consequence of the environment in which he lived, the appellant started using substances. By the age of 12 years, he was using cannabis. He also abused solvents, prescription medication and opiates. Over the past 20 years, he has been a user of methylamphetamine.
5. The appellant's education was limited. He encountered difficulties at school, sometimes due to racism. Although he has completed some courses in bricklaying and welding while in custody, he has never held employment.
6. According to the psychological report of Ms Lynn, the appellant has experienced symptoms consistent with anxiety, major depression and trauma.
7. The appellant has what her Honour characterised as 'a shocking criminal history'.[5] He has spent most of his life in gaol, and only small periods of time in the community, including as a juvenile.
8. The appellant has multiple convictions for traffic offences; burglary; aggravated burglary; stealing; stealing a motor vehicle; assault to prevent arrest; escaping legal custody; dangerous driving; assaulting a public officer; threats to harm; threats to kill; damage; reckless driving; possession of a weapon; assault; supplying a prohibited drug; using a carriage service to menace, harass, or cause offence; attempting to cause an explosion; and causing an explosion.
9. The appellant has four children from two different relationships. His wife provided a character reference to her Honour, which spoke positively of him as a partner and father.
10. Prior to being sentenced by Christian DCJ, the appellant had taken some steps towards his rehabilitation. At the time of his sentencing, he was participating in a program at the Whitehaven Clinic, paid for by him, to address his drug addiction. A report from the Whitehaven Clinic, which was provided to the sentencing judge, detailed the content of the program.

1. In her Honour's sentencing remarks, she recounted the facts of the offending and comprehensively described the appellant's childhood. She accepted that the appellant's childhood deprivation reduced his moral culpability.[6] Her Honour did not accept that there was a direct causal link between any of the appellant's mental health issues and his present offending.
2. Her Honour noted the appellant's voluntary participation in the Whitehaven Clinic's Addition Recovery Process Program. While observing that the appellant had some way to go before it could be said that he had made any meaningful changes in his life, the steps he had taken towards rehabilitation were to his credit. However, her Honour concluded that the appellant's risk of reoffending was high.[7]
3. Having regard to the fact that the appellant entered his pleas of guilty two working days before the trial was due to commence, Christian DCJ allowed a discount of 10% pursuant to s 9AA of the Sentencing Act.
4. Prior to considerations of totality, her Honour said that she would have sentenced the appellant to a term of 3 years 6 months' imprisonment on count 2, and a term of 4 months' imprisonment on count 3.
5. Her Honour considered the issue of totality, bearing in mind that she was imposing more than one sentence and that the appellant was already a serving prisoner. Her Honour reduced the sentence she would otherwise have imposed on count 2 to 3 years' imprisonment, and instead of ordering some accumulation on count 3, she ordered that the sentence be served concurrently with the sentence on count 2. However, she ordered that the sentence on count 2 be served cumulatively with the term of 4 years 10 months' imprisonment the appellant was then serving.[8]
6. Her Honour said:[9]

So the sentence I have imposed is three years' imprisonment. Now, I consider that bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the other - the fact that you are currently serving a term of imprisonment.

1. In support of the contention that the overall total effective sentence infringed the first limb of the totality principle, the appellant, in his written submissions, focussed on the outcomes of a number of other cases, and submitted that the overall total effective sentence of 7 years 10 months' imprisonment was inconsistent with the outcomes in those cases, particularly as none of the appellant's offending involved acts of physical violence.
2. In her oral submissions, counsel for the appellant submitted that the total effective sentence imposed by Stavrianou DCJ was already sufficient to serve the sentencing objectives of personal deterrence and protection of the public, and that the imposition of a further 3 years' imprisonment was disproportionate to the overall criminality of the appellant's offending. Counsel for the appellant also stressed the findings of both Stavrianou DCJ and Christian DCJ that the appellant's moral culpability was reduced by his childhood deprivation. However, counsel for the appellant accepted that, having regard to his prior criminal history, the appellant was a prolific reoffender, and was likely to reoffend once released from prison.[10]

1. The respondent submitted that the overall total effective sentence was proportionate to the appellant's total criminality, and did not reveal error. The respondent contended that the appellant's offending, particularly the aggravated home burglaries, were serious examples of their type. As for the comparable cases relied upon by the appellant, nearly all involved cases where leave to appeal was refused by this court, thus limiting the utility of these cases as comparators. The respondent also observed that many of the cases cited by the appellant were 10 or more years old, and therefore do not reflect that sentences for home burglary offences had 'firmed up'. The respondent referred to several other cases which were said to support the position that the overall total effective sentence imposed on the appellant was proportionate to his overall criminality.
2. In his oral submissions in this court, senior counsel for the respondent observed that the aggravated home burglary the subject of this appeal had serious features, including that the victim was at home asleep at the time, and that the offence resulted in substantial financial loss. Senior counsel also stressed that personal deterrence was a highly relevant consideration in the appellant's sentencing.[11]

1. The totality principle has been described in countless cases decided in this court. It comprises two limbs. The first limb is that the total effective sentence 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. The second limb, which is not relied upon in this case, is that the court should not impose a 'crushing' sentence.
2. The totality principle has been held to apply in circumstances where an offender, such as the appellant, is still serving a sentence for some other offence at the time of sentencing. The rationale for this was explained by McLure J in Barnes v The State of Western Australia.[12] Her Honour said that the imposition of a wholly cumulative sentence, either in respect of sentences already being served or in respect of sentences to be served, is that the second sentencing court may see or assume that the prisoner has made progress towards rehabilitation during the term of the first sentence, and that there is not the same demand for retribution where a prisoner has already suffered a loss of liberty and emphatic denunciation of his or her criminal behaviour and attitude.

1. The appellant, rightly, accepts that the individual sentence of 3 years' imprisonment imposed by Christian DCJ on count 2 was not, standing alone, manifestly excessive. The maximum penalty for count 2 is 20 years' imprisonment. The facts and circumstances in which it was committed were undoubtedly serious. The offence occurred on residential premises, at night, when the occupant or occupants were likely to be asleep, and therefore vulnerable. The actions of the appellant and his co‑offender constituted a serious invasion of the victim's privacy and the right to feel protected in his own home. The appellant and his co‑offender stole a number of items, including the victim's car keys. The appellant then used the car keys to steal the victim's vehicle, which was parked in his driveway. The offence occurred while the appellant was on bail and subject to a CSIO.
2. There was little mitigation available to the appellant. The appellant's pleas of guilty, which were entered very late, resulted in a 10% reduction pursuant to s 9AA of the Sentencing Act. This is well within an appropriate exercise of the relevant sentencing discretion. Parity was a relatively minor consideration. While the appellant's nascent efforts to rehabilitate himself are commendable, there is still much work to be done before it can be said that the appellant has been rehabilitated.
3. The appellant was not found to be remorseful, and, having regard to his prior criminal record, and giving due weight to his childhood deprivation, the effects of which do not diminish over time, he remains a high risk of reoffending. Accordingly, the dominant sentencing considerations were personal deterrence and the protection of the public.
4. As this court pointed out in Eldridge v The State of Western Australia,[13] home burglary is a serious offence which is prevalent, and which is ordinarily met with terms of imprisonment. There has long been a recognition that sentences for home burglary need to be firmed up.
5. The real question upon which this appeal turns is whether the overall total effective sentence of 7 years 10 months' imprisonment is disproportionate to the criminality involved in all of the appellant's offending, being the offending dealt with by Christian DCJ and the offending that constituted the previous sentences imposed by Stavrianou DCJ, Magistrate Hall, and Magistrate Lemmon.
6. We have already summarised all of the appellant's offending, including the offending the subject of the previous sentences. Individually and collectively, it was serious offending which involved a high degree of criminality. The appellant committed burglaries upon houses and commercial premises, including shopping centres, retailers within shopping centres and convenience stores. Not only were items stolen, or attempted to be stolen, but the appellant caused considerable damage to the commercial premises he entered, or attempted to enter. He used a vehicle with stolen plates to force entry into shopping centres, and, on one occasion, brazenly and persistently attempted to steal an ATM.
7. We have considered the comparable cases cited by the parties, which are listed in the schedule to these reasons. It is unnecessary to summarise their facts and circumstances. There is no tariff for the offence of burglary. While broad consistency is important, comparisons between cases involving multiple counts of burglary are of limited utility, given the variation in the circumstances of the offending and of the offenders.[14] In some of the cases relied on by the appellant, leave to appeal was refused. These provide little assistance.[15] Indeed, none of the other cases support the ground. Although the appellant's offending did not involve personal violence, offending of this nature runs the risk of violence, especially when burglaries are committed upon houses at times when the occupants are likely to be at home. Given the overall seriousness of the appellant's offending, the need for personal and general deterrence, and the need for public protection, a substantial overall term of imprisonment was required.
8. We do not accept the appellant's submission that the assumed rationale for the operation of the totality principle in cases such as the appellant's, as described by McLure J in Barnes, applies in this case. We have already acknowledged the appellant's nascent rehabilitation, but it is too early to conclude that the term of imprisonment that he was serving at the time he was sentenced by Christian DCJ has achieved any real progress towards his rehabilitation, or achieved the sentencing objectives of personal and general deterrence. As his counsel conceded, the appellant remains likely to reoffend once released from prison.
9. Having regard to all of the relevant facts and circumstances, including those personal to the appellant, and giving due weight to all of the mitigating factors, including the pleas of guilty and the appellant's childhood deprivation, we have concluded that there has been no infringement of the first limb of the totality principle arising from the sentence imposed upon the appellant by Christian DCJ. As we would grant leave to appeal, we would also grant an extension of time, however the ground of appeal has not been made out, and the appeal must be dismissed.
10. The orders that we would make are as follows:
    1. An extension of time in which to appeal is granted.
    2. Leave to appeal is granted.
    3. The appeal is dismissed.

Cockie v The State of Western Australia [2006] WASCA 66

Slater v The State of Western Australia [2006] WASCA 206

Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130

Pennetta v The State of Western Australia [2013] WASCA 234

Pryor v The State of Western Australia [2014] WASCA 143

QJS v The State of Western Australia [2015] WASCA 9

Worthington v The State of Western Australia [2016] WASCA 57

Winmar v The State of Western Australia [2016] WASCA 184

The State of Western Australia v Quartermaine [2021] WASCA 145

Jabbie v The State of Western Australia [2022] WASCA 10

Brindley v The State of Western Australia [2019] WASCA 153

Houlahan v The State of Western Australia [2022] WASCA 85; (2022) 100 MVR 455

Thornley v The State of Western Australia [2023] WASCA 107

Goddard v The State of Western Australia [2023] WASCA 164

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

[1] It appears that the grounding offence for the aggravated home burglary, namely stealing, was constituted by the stealing of the items inside the home, including the car keys, and not the stealing of the vehicle the subject of count 3.

[2] The first six of the offences in the table were the subject of the conditionally suspended imprisonment order imposed by Magistrate Johnson.

[3] The prosecution discontinued six other charges.

[12] Barnes v The State of Western Australia [2004] WASCA 258 [37].

[13] Eldridge v The State of Western Australia [2020] WASCA 66 [64].

[14] Pennetta v The State of Western Australia [2013] WASCA 234 [39].

[15] GUE v The State of Western Australia [2022] WASCA 121 [59].